The opinion of the court was delivered by: GREEN
Plaintiff, Ibex Industries, Inc., t/a Washington Roofing Products Co. ("Ibex" or "Washington Roofing Products Co."), brought this action against defendants Coast Line Waterproofing Co., Inc., ("Coast Line"), Edward Kirby, Sr., Iris Kirby, Edward Kirby, Jr., Bromley Contracting Co., Inc., ("Bromley") and Continental Insurance Co. ("Continental") under the Miller Act, 40 U.S.C. § 270a and 270b as amended. Ibex alleges that defendant Coast Line failed to pay for materials which were used to renovate the "Elephant House" at the National Zoological Park in Washington, D.C. Default judgments have been entered against Coast Line, Edward Kirby, Sr., Iris Kirby, and Edward Kirby, Jr. Therefore, the instant action involves only defendants Bromley and Continental.
A trial was held in this action on April 25, 1983. The Court heard testimony from the following witnesses: Ian Kramer, President of Ibex; James Kaufman, Corporate Secretary and Treasurer of Ibex; James Quade, truck driver at Washington Roofing Products Co.; Michael Eldrige, truck driver at Washington Roofing Products Co.; Carl Bleakney, Territory Manager at Koppers Co.; Robert Hall, Counter Sales Manager at Washington Roofing Products Co.; and Melvin Bloom, Vice-President and General Superintendent at Bromley.
Ibex is a corporation organized and existing under the laws of the District of Columbia. It is a supplier of roofing materials.
Defendant Bromley is a corporation organized and existing under the laws of New York. Defendant Coast Line is a corporation organized and existing under the laws of Virginia and is authorized to do business in the District of Columbia. Defendant Continental is a corporation organized and existing under the laws of New York. It is the surety that executed the payment bond in this case.
Defendant Bromley entered into a contract with the United States by and through the Smithsonian Institution to perform certain construction work on the "Elephant House" at the National Zoological Park. See Plaintiff's Exhibit 7. Defendants Continental and Bromley executed and delivered a payment bond to the United States for the protection of all persons supplying labor and materials pursuant to this contract, in accordance with the Miller Act, 40 U.S.C. § 270a. See Plaintiff's Exhibit 7.
Subsequently, defendant Bromley entered into an agreement with Coast Line wherein Coast Line was to provide the labor, material, and equipment necessary to complete the construction contract. The contract called for the following work to be performed:
removal of existing roofing, replacement with new insulated room [sic] membrane assembly, associated roofing work, removal of skylight frames and replacement of broken skylight glass . . . .
Defendant Coast Line purchased materials, tools, and equipment on account from plaintiff on several occasions between October 1, 1981 and January 4, 1982. See Plaintiff's Exhibits 1B, 1C, 1D, 1E, 1F, 1G, 1H, 1I, 1J, 1L, 1M, 1N, 1O, 1Q, 1R, 1S, 1U (plaintiff's invoices). In consideration of plaintiff's extension of credit to Coast Line, the individual defendants, the Kirbys, executed an agreement with plaintiff wherein they each personally guaranteed payment to plaintiff of any indebtedness incurred by Coast Line. See Exhibit A attached to Amended Complaint. The agreement provides for payment of interest at the rate of six percent per annum as well as costs and attorneys fees of fifteen percent. Id.
The majority of the materials used to renovate the Elephant House were delivered by the plaintiff. The other materials were either picked up by defendant Coast Line or shipped directly to the job site by the manufacturer. Plaintiff has not been paid for any of these materials.
The following items ordered by Coast Line pursuant to this contract constitute tools or equipment:
Plaintiff's Exhibit Item Cost
1B Brush and Hose $ 55.65
1C 2 Axes 42.58
2 Wheel Barrows 162.00
1E Goss Burner (complete) 86.00
2 Hoses 39.20
1G 5 Pairs Goggles 20.50
1J Ladder Vator 1,395.90
Gravel Hopper 188.10
1M Mop Handle 13.90
Total: $ 2,027.68
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