Holloway & Dupont Dredging Co. v. Des Rocher & Watkins Towing Co.

Fifth Circuit

Holloway & Dupont Dredging Co. v. Des Rocher & Watkins Towing Co.

57 F.2d 864, 1932 U.S. App. LEXIS 4087

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 7, 1932

DocketNo. 6507

StatusPublished

Cited by5 cases

This text of 57 F.2d 864 (Holloway & Dupont Dredging Co. v. Des Rocher & Watkins Towing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Holloway & Dupont Dredging Co. v. Des Rocher & Watkins Towing Co., 57 F.2d 864, 1932 U.S. App. LEXIS 4087 (5th Cir. 1932).

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Opinion

FOSTER, Circuit Judge.

The Holloway & Dupont Dredging Company, Inc., was awarded -a contract by the United States for dredging in the Oklawaka River canal above Moss Bluff, Fla., and gave bond to guarantee the faithful performance of the contract and the payment of all persons supplying it with labor and materials in the prosecution of the work, with the Indemnity Insurance Company of North America as surety, under the provisions of the Act of February 24, 1905, as amended (40 USCA § 270). The work was completed, and, within the limitation allowed, Bes Roeher and Watkins Towing Company brought suit under the provisions of the statute to recover $4,425 for the rental of a dredge, houseboat, launch, and other equipment leased to the contractor for the purpose of doing the work. J. E. Iwanowski intervened to recover $588.31 for the rental of a lighter also used in doing the work under contract. Verdicts were directed and judgments entered in the amounts above set out. This appeal followed.

It is not questioned that the equipment of both appellees was rented to the contractor and used by it in actually doing the work of dredging; and that the amount of the judgments awarded were correct; but it is contended that, as they were not subcontractors, and furnished no labor for the operation of the equipment rented, appellees did not supply the contractor with labor and materials in the prosecution of the work within the contemplation of the statute.

Of course, recovery in each ease depends upon the particular facts shown. It is certain that the work could not have been successfully prosecuted without the use of the equipment. It was rented for that specific purpose and not for use generally or on other work as well. The ruling of the District Court was right. United States Fidelity & Guaranty Co. v. U. S. for Benefit of Bartlett, 231 U. S. 237, 34 S. Ct. 88, 58 L. Ed. 200; Illinois Surety Co. v. John Davis Co. et al., 244 U. S. 376, 37 S. Ct. 614, 61 L. Ed. 1206; Brogan v. National Surety Co., 246 U. S. 257, 38 S. Ct. 250, 62 L. Ed. 703, L. R. A. 1918D, 776; Utah Const. Co. et al. v. U. S. (C. C. A.) 15 F.(2d) 21; City of Stuart v. American Surety Co. (C. C. A.) 38 F.(2d) 193.

Affirmed.

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FOSTER, Circuit Judge.

The Holloway & Dupont Dredging Company, Inc., was awarded -a contract by the United States for dredging in the Oklawaka River canal above Moss Bluff, Fla., and gave bond to guarantee the faithful performance of the contract and the payment of all persons supplying it with labor and materials in the prosecution of the work, with the Indemnity Insurance Company of North America as surety, under the provisions of the Act of February 24, 1905, as amended (40 USCA § 270). The work was completed, and, within the limitation allowed, Bes Roeher and Watkins Towing Company brought suit under the provisions of the statute to recover $4,425 for the rental of a dredge, houseboat, launch, and other equipment leased to the contractor for the purpose of doing the work. J. E. Iwanowski intervened to recover $588.31 for the rental of a lighter also used in doing the work under contract. Verdicts were directed and judgments entered in the amounts above set out. This appeal followed.

It is not questioned that the equipment of both appellees was rented to the contractor and used by it in actually doing the work of dredging; and that the amount of the judgments awarded were correct; but it is contended that, as they were not subcontractors, and furnished no labor for the operation of the equipment rented, appellees did not supply the contractor with labor and materials in the prosecution of the work within the contemplation of the statute.

Of course, recovery in each ease depends upon the particular facts shown. It is certain that the work could not have been successfully prosecuted without the use of the equipment. It was rented for that specific purpose and not for use generally or on other work as well. The ruling of the District Court was right. United States Fidelity & Guaranty Co. v. U. S. for Benefit of Bartlett, 231 U. S. 237, 34 S. Ct. 88, 58 L. Ed. 200; Illinois Surety Co. v. John Davis Co. et al., 244 U. S. 376, 37 S. Ct. 614, 61 L. Ed. 1206; Brogan v. National Surety Co., 246 U. S. 257, 38 S. Ct. 250, 62 L. Ed. 703, L. R. A. 1918D, 776; Utah Const. Co. et al. v. U. S. (C. C. A.) 15 F.(2d) 21; City of Stuart v. American Surety Co. (C. C. A.) 38 F.(2d) 193.

Affirmed.

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57 F.2d 864, 1932 U.S. App. LEXIS 4087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holloway-dupont-dredging-co-v-des-rocher-watkins-towing-co-ca5-1932.

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