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March 26, 1971

UNITED STATES of America, to the Use of Louis J. VIGLIONE and Anthony Viglione, trading as Viglione Gradall Rental, Plaintiff,
KLEFSTAD ENGINEERING COMPANY, Inc. and Blackhawk Heating & Plumbing Company, Inc. and Aetna Insurance Company, Defendants

Gerald J. Weber, District Judge.

The opinion of the court was delivered by: WEBER

GERALD J. WEBER, District Judge.

 This is an action brought in this court under the Miller Act, 40 U.S.C.A. ยง 270a.

 The use-plaintiff here is an excavation sub-contractor who undertook work for the defendant prime contractor. *fn1" The defendant prime contractor was engaged in performing a construction contract for the United States. The sub-contract between plaintiff and defendant incorporated in it terms and conditions of the principal contract, including the provision that sub-contractor assumes toward the contractor the obligations that contractor assumes toward the owner relating to the work. Further the sub-contract provided that any claims for extra shall be made by the sub-contractor to the contractor in the same manner required by the principal contract for claims against the owner.

 Plaintiff's contract was to excavate rock estimated by the United States engineer at 110 cubic yards for a price of $14,800. This price was to be adjusted up or down depending on whether more or less than 110 cubic yards was excavated.

 The defendant's contract with the United States required that when payment for rock excavation was claimed by the defendant, the defendant was required to have the material exposed and uncovered and to notify the Government's Resident Engineer before proceeding, so that accurate measurements could be made. It was the duty of the defendant under his contract with the Government to hire and pay for the services of a Registered Professional Engineer or Registered Surveyor who would make a computation and certification of quantities for submission to the Government for payment.

 The defendant's Registered Surveyor hired for this purpose was Mr. Aires. Upon plaintiff's requests he came to the excavation site and made the necessary measurements and computations. Mr. Aires was hired and paid by defendant and was defendant's agent under defendant's prime contract with the Government.

 Before Mr. Aires could make the computations of quantities and transmit them to plaintiff his records were destroyed by fire. Without these measurements the Government has refused payment to defendant. Defendant refuses to pay plaintiff for the amount of excavation claimed by plaintiff under the proofs that plaintiff is able to submit for the reason that plaintiff cannot submit it to the computation and certification of quantities by a Registered Surveyor under the same terms and conditions required of defendant in submitting such claim to the Government.

 Defendant relies on the language of the sub-contract that plaintiff sub-contractor assumes the same duties to defendant prime contractor as the prime contractor assumed to the owner, the United States.

 We do not read the prime contract between defendant and the Government as allowing the defendant to pass on or sublet the duty of defendant to hire a Registered Surveyor to compute and certify quantities of excavation for payment. The contract requires the defendant to do this as a condition of payment by the Government. The defendant in turn under the sub-contract could require the plaintiff, its sub-contractor, to provide the same type of proof in support of its excavation claim, but in actual practice the parties in carrying out the sub-contract relied upon the measurements and certification to be made by defendant's Registered Surveyor.

 We find that there is an ambiguity between the terms of the general contract between defendant and the Government, which places the responsibility for measurement and certification upon the Registered Surveyor hired by defendant, and the terms of the sub-contract which requires the sub-contractor to satisfy the same requirements as are imposed on the general contractor. In the face of such ambiguity we may turn to the practice of the parties in carrying out the sub-contract as the best guide to the intention of the parties. Aetna Casualty & Surety Co. v. United States, 365 F.2d 997 [8th Cir., 1966]; Nassif et al. v. United States, 187 F.2d 794 [1st Cir., 1951]; Pittsburgh Railways Co. v. Equitable Life Assurance Society, 198 F. Supp. 602 [W.D. Pa., 1960], affd. 288 F.2d 640 [3rd Cir.].

 A clause in a sub-contract incorporating the prime contract into it, does not require the sub-contractor to act in place of the contractor in all areas. The Government does not recognize or deal with the sub-contractor, and the sub-contractor is only required to perform its obligation to the prime contractor. United States for Use of B's Co. v. Cleveland Electric Co., 373 F.2d 585 [4th Cir., 1967]; John A. Johnson & Sons v. United States ex rel. Bal. Brick Co., 153 F.2d 534 [4th Cir., 1946]; Fanderlik-Locke Co. v. United States for the Use of Morgan, 285 F.2d 939 [10th Cir., 1960].

 Plaintiff testified that the instructions to call upon defendant to do the survey work were received from Mr. Gordon Sutherland, defendant's superintendent on the job. Mr. Sutherland also instructed him to excavate all trenches to a five foot width despite ...

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