But that is not our case. Here, no promise was broken; no tort committed; no implied agreement on the part of defendant is justified.'
In Count 2 of the complaint, plaintiff avers that defendant is liable to plaintiff under the Miller Act for the amount which the subcontractor contracted to pay for the work and material furnished by plaintiff.
We find plaintiff's argument somewhat difficult to follow. Plaintiff states in its brief that 'when a surety bond is furnished under the Act, it is merely additional security to the beneficiaries for performance of an obligation of the principal, which does not rest on whether or not the bond has been furnished' (emphasis plaintiff's). To the contrary, we think the prime contractor is under no obligation to a sub-subcontractor, with whom it has had no contractual relation, except that which the prime contractor undertakes when it furnishes a bond in accordance with the requirements of the Miller Act. The language of Cardozo, C.J., in Strong v. American Fence Const. Co., 245 N.Y. 48, 156 N.E. 92, p. 93 (1927) is adequate answer to plaintiff's contention. Speaking with reference to the predecessor of the Miller Act, he stated: 'The statutory liability, which in turn is inseparably linked to the statutory remedy, assumes the existence of a bond as an indispensable condition. Till then, there is neither federal jurisdiction nor any right of action that can rest upon the statute.'
We conclude that defendant's motion for summary judgment must be granted in respect of plaintiff's Miller Act claims.
Plaintiff further claims in Count 3 that plaintiff is entitled to an equitable lien upon all funds in defendant's possession which are payable to Electro, 'under the circumstances of this case'.
This contention brings us to what has aptly been described as a doubtful and darkly obscure area of the law. In Pearlman v. Reliance Ins. Co., 371 U.S. 132, Note 10, p. 136, 83 S. Ct. 232, p. 234, 9 L. Ed. 2d 190 (1962), the Supreme Court spoke of 'the difficulties inherent in phrases like 'equitable lien'.' We are persuaded that both discussion and decision on this point can best await a full development of the facts. We do not consider, either, the question of the adequacy of remedies at law, suggested by the present pendency of attachment proceedings in the State Courts.
Count 4 charges defendant with fraudulent misconduct. We agree with defendant that plaintiff has failed to comply with Rule 9(b) of the Federal Rules of Civil Procedure, which requires that the circumstances constituting fraud 'shall be stated with particularity'. However, no motion appropriate to this failure is before us, and our examination of the entire record, together with the briefs of counsel, indicates that a somewhat involved situation may exist. We deem it advisable, therefore, to withhold consideration of the question until the facts have been fully developed.
Plaintiff contends in Count 5 that, by virtue of the acceptance by the United States of the bid and accompanying bid bond submitted by defendant in order to obtain the prime contract, defendant became obligated to make payment for all labor and materials supplied by plaintiff under the latter's subcontract with Electro.
We have already noted that defendant avers in its supporting affidavit that the contract did not require defendant to furnish a bid bond, and that no such bond was furnished. Plaintiff has not denied this averment. Moreover, plaintiff has not favored us with any supporting argument on this point, and our own research indicates its complete want of merit.
Now, November 29th, 1963, after due consideration, it is ordered that:
1. Defendant's motion for summary judgment be, and it is, granted as to Counts 1, 2 and 5 of the complaint, and judgment is entered for defendant as to those Counts.
2. Defendant's motion for summary judgment be, and it is, denied as to Counts 3 and 4 of the complaint.
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