238 F2d 394 Friebel and Hartman v. United States

238 F.2d 394

FRIEBEL AND HARTMAN, Inc., and American Casualty Company of Reading, Pennsylvania, Appellants,


The UNITED STATES of America for the Use of CODELL CONSTRUCTION COMPANY, Inc., Appellee.

No. 12787.

United States Court of Appeals Sixth Circuit.

October 4, 1956.

Eastman, Stichter & Smith, Toledo, Ohio, for appellants.

Jos. F. Hogan, D. Curtis Reed, Columbus, Ohio, for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.


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This is an action on a payment bond furnished by a contractor, Friebel and Hartman, Inc., under 40 U.S.C. § 270a, 40 U.S.C.A. § 270a, such action having been brought under 40 U.S.C. § 270b, 40 U.S. C.A. § 270b, by a plaintiff, Codell Construction Company, Inc., alleged to have furnished certain equipment to a subcontractor, General Excavators, Inc., which was used under a contract for erecting a public building awarded by the United States to Friebel and Hartman, Inc., a prime contractor. The complaint prays for rental claimed to be due for three pieces of equipment so furnished under an agreed rate of $1,500 per month for each piece of equipment, each of which was used for earth-moving work on the federal public works project being prosecuted under the prime contract.


While the testimony is in conflict, the detailed findings of the District Court are based upon substantial evidence. No reversible error appears in the record. On the claim particularly stressed by defendant Friebel and Hartman, Inc., that the equipment was actually used for only some two weeks, the use for which period was conceded, substantial evidence was introduced that the Codell bulldozer and tournapulls were used on the job for most of the period and that they were available for use during the entire period.


The judgment is in accord with the applicable law, Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206, affirming Illinois Surety Co. v. United States, for Use of John Davis Co., 7 Cir., 226 F. 653, and is affirmed on the grounds and for the reasons stated in the memorandum opinion, findings of facts and conclusions of law of the District Court.