Citations
- 122 F.2d 73
Full opinion text
GRONER, C. J.
In December, 1936, the United States entered into a contract with appellant, Irwin & Leighton, for the construction of a library building at Howard University in the District of Columbia. A performance bond and a payment bond were required in accordance with the Miller Act. The surety on the bonds was the other appellant, United States Guarantee Company. Irwin & Leighton completed the building in accordance with the contract and paid all subcontractors in full. Appellee, Noland Company, Inc., however, had furnished materials on the order of a subcontractor, for which it was not paid. Accordingly, it brought this action on the payment bond in the name of the United States. The general contractor and the surety moved to dismiss on the ground that the university building was not a “public building or public work of the United States” within the meaning of the Miller Act, under which the suit was brought. The trial court was of the opinion that it was the intention of Congress to include within the provisions of the Miller Act contracts for work such as the one involved in the suit, and rejected the motion. We granted a special appeal.
The established and admitted facts are as follows: By Act of February 14, 1931, Congress authorized the contraction at Howard University of a library building to cost not to exceed $800,000, of which sum $400,000 was made immediately available. A small part of the latter sum was used for architectural fees, but shortly after the first election of President Roosevelt the original appropriation was “impounded” and no steps were taken to erect the library until after the enactment of the liational Industrial Recovery Act, at which time the Administrator of Public Works (the Secretary of the Interior), with the approval of the President, allocated sufficient funds for the construction of the building under a section of that Act authorizing a program of public works projects. The plans and specifications were drawn by an architect selected by Howard University, and were approved by the Secretary. The contract was signed by the Assistant Secretary, and the funds were expended under the direction of the Administrator of Public Works.
The National Industrial Recovery Act contained no requirement for a bond to secure the faithful performance of contracts made pursuant to its provisions. But the Secretary, in preparing the contract and in his instructions to bidders, gave notice that two bonds would be required — one, a “performance bond” and the other, a “payment bond”, both running to the United States “as required by the Act of Congress approved August 24, 1935” (the Miller Act, supra, footnote 1). When the suit in this case was instituted in the United States District Court for the District of Columbia, it was brought in the name of the United States and was expressly based on the provisions of the Miller Act. The main question, then, for decision is whether the bond sued upon was authorized to be demanded of the contractor under the provisions of that Act.
In Maiatico Construction Co. v. United States, 65 App.D.C. 62, 79 F.2d 418, cer-tiorari denied, 296 U.S. 649, 56 S.Ct. 309, 80 L.Ed. 462, we dealt with a state of facts substantially identical with those we have narrated. That case, as this, involved a contract made by the United States for the construction of buildings for Howard University. There, as here, the government had appropriated the necessary funds. We held there that an unpaid material-man coul