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UNITED STATES EX REL. M. A. BRUDER & SONS v. AETNA

November 9, 1979

UNITED STATES of America for Use and Benefit of M. A. BRUDER & SONS, INC., Plaintiff,
v.
AETNA CASUALTY & SURETY CO., Blake Construction Co. and Harry F. Ah, Jr., Defendants.



The opinion of the court was delivered by: PENN

MEMORANDUM ORDER

The use plaintiff, M. A. Bruder & Sons, Inc. (Bruder), filed this action to recover under a payment bond, for moneys allegedly due it as the result of its contract with William S. Alt & Son (Alt) to supply paint for the new Walter Reed Army Medical Hospital. The prime contractor was Blake Construction Co., Inc. (Blake). The action is filed pursuant to the Miller Act, 40 U.S.C. §§ 270a-270d, and the court has jurisdiction over this proceeding, 40 U.S.C. § 270b(b).

 The case came on for a nonjury trial on October 29, 1979. After considering the evidence offered by the parties, together with their legal memoranda, and the arguments of counsel, the Court makes the findings of fact and conclusions of law set forth below.

 I

 Findings of Fact :

 1. The United States contracted with the defendant, Blake for the construction, alteration, or repair of the new Walter Reed Army Medical Hospital (Hospital) which is located in the District of Columbia. *fn1"

 3. On or about November 18, 1974, Blake entered into a contract with "Wm. S. Alt & Son, 4080 S. Four Mile Run Drive, Arlington, Virginia," to supply labor and materials to do pavement markings, painting, general and plastic fabric wall covering in and for the Hospital.

 4. Sometime in May, 1975, A. Larry Lee (Lee), the manager of the Washington Division of Wm. S. Alt & Son, discussed with Thomas S. Morris (Morris), a Washington metropolitan area sales representative for Bruder, the possibility of having Bruder supply paint to Alt for use in the Hospital project.

 5. As a result of that discussion, Bruder sent a letter to Alt, dated May 19, 1975, setting forth the specifications and prices for various paints it could supply for the Hospital project.

 6. Prior to that time, Alt had been using paint supplied by Glidden.

 7. Lee, on behalf of Alt, accepted those prices and requested Bruder to supply the necessary paint.

 8. There was no written contract between Alt and Bruder. The agreement and credit allowed Alt was approved at Bruder's home office in Pennsylvania, based in part on Bruder's prior experience with Alt, and in part, on Alt's rating in Dun & Bradstreet, Inc.

 9. Bruder furnished the paint requested by Alt, pursuant to the agreement between Morris and Lee. Occasionally, paint was ordered on behalf of Alt by a "Doc White". ...


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