Petition for Writ of Certiorari — Continental Casualty Co. v. United States ex rel. Minneapolis-Honeywell Regulator Co.

SUPREME. COURT, &. &

ne a CLERK

a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 196%

WE Jos

‘Ss

CONTINENTAL CASUALTY COMPANY, Petitioner

\

ail

UNITED STATES OF AMERICA,

_ for the use and benefit of

Minneapolis-Honeywell Regulator Company

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT | .

KAHL K. SPRIGGS

504 Southeri Building

Washington, D.C. 20005

Attorney for Petitioner

Washington, D. C. - Tee PRESS 202 S00 Oeee , ¢

(i)

INDEX

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Questions presented ........-.. ie pepe paxnenees im

Statute and Rules involved ...:......--eeee eee eeeees 9

ene yee eee oma ae Cstacven oe

Reasons for granting the writ: .....-....-+--- tuse ene -§"

Conclusion........ eS es ‘eee e es eeeeccccccerece 11

Appendix A... eee gece eee eee e eect e eee eeeee 12

Appendix Bo... eee eee eee ee eet eee e ee nees 13

Appendix C ......--++--- ‘(en aev hawks see eek vanes 24

| Appendix C-l 52... eae eee eee eee eee veueeexs Pete

Appendix C-2...... 0. es eee eee cree Sepeeeseeeeees 23

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Appendix Ew... cece eee eee ee ee lesen ese eeees 31

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Appendix G 2.2. eee cece eee ee eee eee eee eee eeee 34

4

, CITATIONS 2

‘CASES: ar 3

United States v. Western Electric Co., 337 F.2d 568, 572..... 10

Trinity Universal Insurance Co. v. Girdler, 379 F.2d 317 ieee

General Electric Co. v. Southern Construction Co., 383 ” ;

F.2d 135, cert. den., No. 1023, October Term, 1967 ..... 10

STATUTE AND RULES INVOLVED:

Title 40, United States Code: | y oe

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. Section 270b(b).”......+ ee ae PPR ENE

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- IN THE

SUPREME COURT OF THE UNITED.- STATES |

' OCTOBER TERM, 1967

CONTINENTAL CASUALTY COMPANY, Petitioner

- UNITED STATES OF AMERICA,

for the use and benefit of

Minneapolis-Honeywell Regulator Company: .

9 ' ae :

PETITION FOR;A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

' FOR THE FOURTH CIRCUIT

Petitioner, Continental Casualty Company, a corporation,

petitions for a writ.of certiorari to review the judgment of :

the United States Court of Appeals for the Fourth Circuit,

entered in the above case.

OPINION BELOW

The opinion of thé Court of Appeals hependix E) has not |

_ been reported.

oP oe mien mae AGO bE A AEA NID ete ee 2, et aw os os OnE Ll AE a Dien Seen kt DE ae

i

JURISDICTION

a ‘The decision of the Court.of Appeals for the: Fobith.¢ Cir-

cuit. was entered on January 11, 1968. Petition for rehearing

_ was duly filed February 9, 1968 and was denied February

23, 1968. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1). ‘hs,

r

QUESTIONS, PRESENTED

1. bs it: ‘not a misapplication. or misuse of. both Rule 53

and Rule 52 of the Federal Rules of Civil Procedure when

the District Court, after a limited reference to a Special

Master, accepts the Master’s “opinion” respecting a crucial

matter not ‘referred to him (involving the construction and

application of the Miller Act), rests its conclusion upon’

_ such Master’s- opinion by ‘invoking the clearly .erroneous

provision of Rule 53, after having admitted material docu-

mentary evidence offered by Petitioner, and not before the

' Master; and when the Appellate Court rests therean its own

‘conclusion and judgment, simply by invoking the clearly.

erroneous review provision of Rule 52?

2. Isnota subcontractor’ S suit on December 4, 1964 too.

late under the Miller Act (40 USC, 270b.) when the entire

prime contract work was finally inspected by the Government

in October 1963; the one year guarantee.period was estab-

lished by the Government at October. 23, 1963, the 8

remaining “‘punch list” items listed by the Government were

performed and completed by the subcontractor prior to

. November 24, 1963 and the final billing to the prime con-

tractor for the subcontract work’ for. which the subéontrac

tor’s' claim was made was sent from its home office on

November 27, 1963? -

STATUTE ‘AND RULES INVOLVED

Title 40 United States Code, Section 270b. (part of ‘the

io ‘Act) meres

WIRE cee EAPO

\e

vd

‘ 3

“(ap edy ye person who has furnished labor or ma- .

terial in the prosecution. of the work provided for in

such contract, in respect of which a payment bond

is furnished under section .270a of this title and who

has not been paid in full therefor before the expira-

- tion of a period of ninety days after fhe day. on

which the last of the labor was done or performed

by him or material was. furnished or supplied by him

for which such claim is made, shall have the right to .

sue on such payment bond for the amount, or the .

balarice thereof, unpaid at the time of institution of

such suit-and to prosecute said e geoye to final exe-

cution and judgment for the surh or sums justly due

him: Provided, however, that any person having di- _

rect contractual relationship with a subcontractor but.

-no contractual relationship express or ‘implied with

the contractor furnishing said payment bond shall

have a right of action upon the said payment bond

upon giving written notice to said contractor within

‘ ninety days from the date.on which such person did —

or performed the last of the labor’/or-farnished or

| supplied the last of the material‘for which such claim

is made, stating with substantial accuracy the amount

claimed and. the name of the party to whom the ma-

terial was furnished or supplied or for whom the labor.

was done or performed. Such notice shall be served

by mailing the sare by registered mail, postage pre- os

paid, in an envelope addressed to the contractor at

any ‘place ‘he maintains an office or conducts his

business, or his residence, or in.any manner ‘in which

the United States marshal of the district in which the

public improvement is situated is authorized by law

_to serve summons.’

“(b) Every suit instituted under this section shall

| be brought in the name of the United States for the

- use of the person suing, in the United States District

Court for any district in which the contract was to

be performed and executed and not elsewhere, irre-

. spective of the amount in controversy in such suit,

- but no stich suit shall be ‘commenced after the expi-

ration of one year after the day on which the last of

' the labor was performed 9 or material was supplied by

=

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Jv | ‘ 4

“him. The United States shall not: be liable for the

payment of any costs or expenses of any such suit.”

een added)

RULES OF CIVIL PROCEDURE FOR.THE -

( UNITED STATES CRPe ECE COURTS

Rule 52. Findings by the Court

(a) Effect. In all actions tried upon the facts

without a jury or with an advisory jury, the court

shall find the facts specially and state separately its

conclusions of law thereon, and judgment shall be

entered pursuant to Rule 58; and in granting or

refusing interlocutory injunctions the’ court shalf-.

similarly set forth the findings of fact and conclusions

of law which constitute the grounds of its action:

Requests for findings are not necessary for purposes

of - review Findings of fact shall not be set aside

unless clearly erroneous,.and due regard shall be given

-to the opportunity of the trial court to judge of the

credibility of the witnesses. The findings of a mas-

ter, to the extent that}the court adopts them, shall

be considered as the findings of the court. If an

opinion or Jnemorandum of decision is filed, it will

be sufficient if the findings of fact and conclusions

of law appear therein. Findings of fact and conclu-

sions of law are unnecessary on decisions of motions

under Rules 12 or 56 or any other motion except as

provided in Rule 41(b).

Rule 53. Masters (in pertinent part)

(b) Reference. A reference to a master shall be

the exception and not the rule. In actions to be

tried by a jury, a feference shall be made only when

the issues are complicated; in: action€ to be tried

shall be\made only upon 4 showing that some excep-

tional condition requires it:

1965 when reference made)

withouta jury, save in sow account, a reference

in force September 29,

> om abit

‘(e) iin,

(I) Contents and Filing. “The master shall prepare

a report upon the matters submitted to him by the.

order of reference and, if required to make findings’

of fact and conclusions of law, he shall set.them forth

in the report. He shall filed the report with the clerk

of the court and in an action to be tried without a

jury, unless otherwise directed by the order of refer- -

ence, shall file with it a transcript of the proceedings

and of the evidence and the original exhibits. The

"clerk shall forthwith mail to all parties notice of the

filing.

(Il) In indie Actions. In an action to be tried

without a jury the court shall accept the master’s

findings of fact unless clearly erroneous. Within

10 days after being served with notice of the fil-

ing of the report any, party may serve written objec-

tions thereto upon the other parties. Application to

the court for action upon the report and upon

objections thereto shall be by motion and upon no-

tice as prescribed in Rule 6(d). The court after hear-

ing may adopt the report or may modify it or may

reject it ip whole or in part or may receive further.

evidence Or may recommit it with instructions.

STATEMENT

In this it brought on December 4, 1964 in the District

- Court by Minneapolis-Honeywell, use plaintiff subcontractor,

at

against Markowitz Brothers, Inc. (prime coritractor with the |

‘United States for installation of air conditioning equipment

CDGDP RR RE Ey ae HR ES Be

in FOB No. 2, Phases 3 and 4, Arlington, Virginia) and its

Miller Act payment bond surety, petitioner, Continental

Casualty Company the District Court referred the case’ to a

Special Master “to take such evidence as he deems necessary

in determining the amount due, if any, to the-plaintiff on

its complaint and the amount due, if.any, to the defendant

on its counterclaim.” (Appendix A, p. 12) The Special Master

found that Honeywell had established its claim for the Sumy

of $48,038.65, with interest, and that Markowitz wes not

entitled to anything on its counterclaim.

P

In addition, the Saini Master in his ‘lines stated that

he was “of the opinion that 26 December, 1963 was the

last day on which labor was performed and materials sup-

plied by the use-plaintiff.” (Appendix B, pp. 14-15)

At the hearing on the Special Master’s report, the District

Court adinitted in evidence three exhibits (Appendix C-1;

C-2, C-3; pp. 27-29) which were not before the Special

Master. Thereafter; in its memorandum opinion (Appen-

dix C, p.. 26), the District Court stated: .

“This suit was filed on December 4, 1964. ‘The

_ Master found that.December 26, 1963 was the last

day on which plaintiff performed work under its

» centract. Although the evidence on this phase of

, the case is conflicting, the Master has found Decem-

ber 26th to be the controlling date.

“Review of the record discloses that this finding

i is not clearly erroneous, hence it is confirmed by

the Court.”

- On appeal, the Circuit Court of Appeals (Appendix E,

p. 31) merely said and held: a ‘

“Per Curiam: .

“Whether or not this Miller Act suit was timely

filed turns entirely upon a question of ‘fact. We

‘think its resolution by the Master, accepted by the

District Court, was not clearly erroneous.

Affirmed.”

The undisputed facts relative to the timeliness of the suit

were as follows: The Honeywell subcontract with Marko-

witz, dated July 30, 1962, was to furnish and to install a

complete and operating automatic temperature control sys-

tem, including valves and thermostats, where required, for

the lump sum\of $185,000.00, later increased by two change

orders to. $186,284.00. On ‘May 20, 1963, when Markowitz

made its ‘last payment to Honeywell, the latter had billed

for work performed under the subcontract in the sum of

, $174,536.32 and had been paid the sum of $137,536.32,

including the last payment. On August 14 and September .

ARQ sparen age aR cor REED CPE ET RCI

7

19, 1963, Honeywell submitted further invoices respectively

of $10,263 and $1,768 which, added to the previous invoices,

ae amounted to the total adjusted subcontract price less the

~~ sum of $50.00. After final inspection in October 1963 by

representatives of General Services Administration, a “punch

‘ list” was prepared by the Government detailing certain items

of work either not performed or performed improperly by

' Markowitz or by its subcontractors which included 8 items

pertaining to Honeywell’s work. Honeywell’s 8.items were

completed prior to November 24, 1963. The contracting

« officer for the Government informed Markowitz that Octo-

ber 23, 1963 was accepted as the date of substantial com-

pletion of the work done under the contract and that the

air conditioning systems including. heating were operable

- under new controls and on November 15, 1963 he stated

that the guarantee period for all mechanical and electrical

equipment would start from October 23, 1963. *.

Honeywell’s steamfitter Hinds worked on November 22,

1963 at the job site for eight hours atid on November 27,

1963 “Honeywell, from its cost department in Minneapolis,

sent its “final billing” to Markowitz including the $50.00

previously unbilled and leaving a balance of $48,747.68

due, reduced by Honeywell at the trial to $48 038.65, the

principal amount of the judgment. The last payroll affida-

vit submitted by Honeywell (pursuant to Article 4c ofits

- subcontract) covered the period ending November 22, 1963.

Honeywell in writing under date of December 2, 1963

_ through its local Service Supervisor informed Markowitz

( that the temperature controls furnished by it for the job

were installed and operating in accordance with the contract

plans and specifications. .Under date of December 20, 1963

the contracting officer for the Goyérnment wrote Markowitz

regarding heating units in crosswalks and restrooms in FOB

No. 2 stating that unsatisfactory conditions existed in those

areas; that the problem had been referred back to the design

—s, engineer; and that solution thereof was not part of its con-

tract work.

8

As the Master stated in his report (Appendix B, p. 14) the

steamfitter Hinds did testify before him that on December

26, 1963 he worked at FOB No. 2 finishing calibrating and

checking out room thermostats that controlled volume.tem-_

- peratures and P.E. pneumatic electric switches which energize

fan coil units and also installed two capillary remote volume

thermometers; that such work was not considered guaranteed |

work and was “under the contract of the job.”. There was

- no evidence that; either the Government or Markowitz

requested Honeywell to do. the work Hinds said he did.

- REASONS FOR GRANTING THE WRIT

1. The Appellate Court plainly held that the Master re-

solved the question of timeliness of the suit and that his

“resolution” thereof was “accepted” by the District Court.

Yet, after the Master had reported to it, the trial court ad-

mitted three éxhibits in evidence (Appendix C-1, C-2, C-3, pp.

_27-29) offered by Markowitz and Continental which were

material. It may not be said those exhibits could not and

.would not affect the result. NevertKeless, instead of making

its own findings and conclusions on the whole record, unin-

fluenced by and without regard to the Master’s opinion re-

specting the timeliness of the suit (not a matter.entrusted to

the Master in the limited order of reference), the District

Court, invoking: the clearly erroneous provisions of Rule 53,

misapplied the- Rule. The Master’s opinion necessarily in-

volved the construction of ‘the statute’ and the application

thereof under such construction ¢o the undisputed facts.

The Appellate Court compounded the‘error by applying

the clearly erroneous review provisions of Rule 52 to the

procedure and action in the District Court. Thus no one

_ has made original and independent findings‘and conclusions

on the record as a whole and in the light of the Act which .

petitioner believes results i in a lack of due process in the

Constitutional sense.

1 Treated — 2, infra.

waa .

Re Ere

Per eteene AEP T

\ 9

2.(a) The Master’s standard or test was simply whether

work was done by Honeywell and materials were supplied by -

it on December 26, 1963. The District Court incorrectly

attributéd to the Master a “findihg” that Honeywell did .

work “under the contract” on December 26, 1963. 2° The -

correct standard or test applicable to the undisputed facts .

here derives from the proper construction of Section 270b.

of the Miller Act. That section should be considered as a

whole, keeping in mind that subsection 270b.(a) was enacted

in 1935 and subsection 270b.(b) became law in 1959.

(b) Section 270b. (a) of the Act creating ,and accruing the

Tight in n Honeywell to bring suit on the payment bond pin-

points and illuminates the decisive date as being “the day on .

_which)the iast of the labor was done or performed by him

or material was furnished or supplied by him for which such |

claim is made * * *.” The later enacted Section 270b.(b)

must ass, by its very language, relate and refer back to the

same date or day as is provided in 270b.(a): Thus, the ac- .

crual date of the cause of action created by the section and

the closing or termination of the right to sue are’ to be

measured from the same point of time. Such is consistent

with any limiting time period whether one of mere limitation

of action or of condition of right to sue.

_Such construction is reinforced by virtue of the use of the

word “the” in the language “last of the labor was performed

or material was supplied by him. 3 Such sentence is without

a point of reference, meaning or application unless it relates

back to “the sal on which the last of the labor was done

2The “under the contract” conclusionary statement by the steam-

fitter would apply to guaranty work done by request of the Govern-

ment at any time prior'to October 23, 1964 but that would not, as is

well known, extend the time for another year within which to bring

suit on the Miller Act payment bond.

3 Syntax dictates that the word “the” before “labor” also modifies,

“material.”

10° \

* * * for which such claim.is made.” ‘In construing such _

sentence, one may not excise the aforesaid word—“‘the”’ in

ged a (b) nor substitute therefor the word “any.”

Here, the day-on-which Honeywell furnished the last of .

\the labor ‘or material for which its claim was made was at

the latest by November 24, 1963, whereas its suit was

brought on December 4, 1964.

The problem presented here is a frequently recurring one

and important in the construction and application of 270b.

.(b) to Miller Act- payment bond suits. Such has not hereto-

fore been construed by this Court and should be finally to

resolve the question in view of the vast number of construc-

tion contracts of the United States and of the many suitson ~

the Miller Act payment bonds.

“

. \

4The Ninth Circuit, without discussion, in United:States v. Western

Electric Co., 337 F.2d 568, 572, said that suit must be filed within

one year from the date of the events-described in Section 270b(a).

The Fifth Circuit in Trinity Universal Insurance Co. v. Girdler, 379

F.2d 317, and in General Electric Co. v. Southern Construction Co.,

' 383 F.2d 135, cert. den., No. 1023, October Term, 1967, seems not

to have considered the significance of the word “the” in Section 270b.

(b)~It_is believed that the peculiar facts and occurrences in General

Electric may not have been sufficient to raise the: question presented

to this Court in No. 1023. ‘There was no final Government inspection _

of the whole contract work, establishment of guarantee period, and _

- final billing by the plaintiff for all of its work—all more than one year

» prior to the bringing of the suit—as inthe instant case.

& “at Se

*

;

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CONCLUSION

For: the foregoing reasons, the petition for a writ of

certiorari should be granted.

,

Respectfully submitted,

ale |

KAHL K. SPRIGGS

504 Southern Building |

Washington, D. C. 20005

Attorney for Petitioner

17.

APPENDIX A

[A true copy, Teste: /s/ Davis R. Casey, Deputy Cott) “a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

At» Alexandria

UNITED STATES OF AMERICA,

to the Use of MINNEAPOLIS-

HONE LL REGULATOR COM-

PANY, ( /

a Plaintiff,

| | Civil Action No. 3522

MARKOWITZ BROTHERS, INC., me

et al:,

Defendant

ORDER

This case <. herewith referred to James Woolls, Esquire,

. Alexandria, Virginia, who is hereby appointed as Special

Master of this Court for ‘the purpose of taking such evi-

dence as he deems necessary in determining the amount

due, if any, to the plaintiff on its complaint and the amount

due, if any, to the defendant on its counterclaim.

The hearing date for the taking of the evidence herein shall —

be fixed. by the Master as soon as is reasonably. convenient

to the parties in interest, and the Master shall file his report

with the Court on or before sixty days from the date of the

entry of this order.

\ The Clerk will furnish the Special Master with cos all .

pertinent papers in this case together with a copy this

‘order, and will mail a copy of this order to all counsel

of av ap)

| ; /s/' Oren R. Lewis . .

September 29, 1965 _ United States District J udge

sala dae ‘y ¥ bees Sie pi oe SE Bt a ea ee daa 3

@

13

APPENDIX B

{Filed Feb. 2, 1966] |

REPORT OF SPECIAL MASTER

‘TQ: THE HONORABLE OREN R. LEWIS, /

UNITED STATES DISTRICT JUDGE: ‘

- The,undersigned, James Woolls, having been named as

Special Master herein by Order entered in this cause on

29 September, 1965, respectfully reports as follows:

That, pursuant to the fequirements of Rule 53 (d) of the

: Federal Rules and of said Order of Reference, the under-~

signed met with counsel for the parties on 1 November,

. 1965 at which meeting all present selected a time for the

presentation of the evidence. Counsel prepared and ex-

changed statemtents of their claims in November, 1965, cop--

ies of which have been filed herein.

On 11, 12, and 13 January, 1966, the undersigned did

proceed to further execute said Order of Reference by pro-

ceedings held in the Post Office Building in Alexandria, Vir-

ginia. Counsel for the parties were present and examined

the witnesses; that attached hereto and asked to be read as

a part hereof is exhibit “A”, a listing of the exhibits pre- -

sented by the parties. All proceedings, with the exception

of the aforesaid Conference, were stenographically recorded. .

That by Order of this Court, the time allowed for the filing

of this report was.extended to 30 January, 1966. _

After consideration of the testimony of the witnesses cal--

led by the parties, of the exhibits filed herein, and of the ©

pleadings i in this cause, the undersigned would respectfully

report: ©

1. Ability of Defendant 1 to Prove Set-off, Recoupment,

or Counterclaim. °

Counsel, in opening statement, indicated that the Court

had reserved decision on the issue of whether the defend- ©

. ant, Markowitz Brothers, Inc., could prove a claim to set-

j

, . . -

2 : ‘

14 ,

~ off in these proceedings. No testimony was offered to show

such defendant had actual: notice of the requirements of

._ Virginia Code Section 54-142, prior to the,execution of the

contract. Because of the particular nature of this action,

the ‘matter appears limited to the question of Whether. thew

Court’s: discretion will .permit the assertion of a counter-

claim in the Answer and Answer to Interrogatories in the

erests of justice. (Cf. ‘Virginia*Code Sec. 54-141, US. .

for the use of Bernadot vs. Golden West Construction Co.

(1961) 194 F. Supp. 371; F.R. Civ. P. 1a), 8 a) ~ (c).)

2.. Time of limitation of action.

The plaintiff, Minneapolis-Honeywell Regilator Company,

Nas complied with the requirement that it establish this ac-

n. It was commenced within one year fr6m the date om

which the last of. the labor was performed, or material was |

supplied by it. “The statute conferring the action. limits lia-

: bility, and plaintiff must show timeliness of filing, even in

the “absence of special pleas by the defendant. -

. Mr. Robert Shuinan, Mr. Lawrence Hinds, Mr. William

Kempton and Mr. R. Kinzer testified concerning the date

of completion of the contract, mentioning the notification

of completion, the request and payment of labor charges

‘ and the request and payment of “progress payments.”” Pay °

records indicate that there were no regular employees of

use plaintiff at the job site after Noventber, 1963, how-

ever, Mr. Lawrence Hinds testified that he worked on the

job site in November and on 26 December, 1963, on which

dates he performed approximately eight (8) hours work in

calibrating, testing and checking the items.installed by plain-

tiff and in installing two thermometers. He identified doc-

‘uments prepared in December, 1963 and stated that his work .

was “contract” work, rather than “guarantee” work. The.

work and documents were completed in December, 1963,

for purposes other than extending the times for filing of

punta. -

2 1S

Article 4 © of the contract states ‘that’ final testing of

materials supplied is the responsibility of the subcontrac-

‘died tor, who is to bear the expense of the same. The under- }

_.’ _ signed is of the opinion that 26 December, 1963 was the + |

. | last day on which labor was performed and materials sup--

plied by the use plaintiff. :

™—

. 3. The amount, if ~. due the use e plaintiff on its com-

. plaint. . .

~The duties and obligations of the parties are determined

- by the agreement of 30 July, 1962, as modified by two

_» change orders accepted by all parties heséto (plaintiff's ex-

hibits 10, 11 and 12).

As a result of discussion made during these proceedings,

the total clairn of the use plaintiff has been reduced. from

$48,747.68 to $48,038.65, which figure represents the total

_ contract price, less credits allowable to the defendants.

The evidence establishes that the use plaintiff undertook to ©

furnish and install a complete and operating automatic tem-

rature-control system in the project known as Federal

‘Office Building No. 2, Arlington, Virginia. ‘The use plain-

- tiff’s obligation to the contract is more particularly described

in the said three exhibits — they are not herein described,

except insofar as placed ‘in issue by the’ parties.

Several witnesses stated that the air conditioning equip- ©

, ment was apparent on the job site and was in apparent con-

_. formity to the plans and specifications. The plaintiff has _

shown it actually completed its work in December, 1963;

.the defendant, Markowitz Bros., accepted this work as com-

plete in October, 1963.

* The plaintiff's substitution of electrical items for “pneu-

matic” items depicted on the architect’s plans is not a breach °

_of contract, preventing recovery by the plaintiff.

Mr. J. McNabb, who participated in the preparation of

the architect’s plans, stated that the “pneumatic” controls

16

were used merely for simplicity and that the plans and

specifications permitted the substitution of electrical items

or electronic iteras for pneumatic items. .

Article 15 of the contract states that drawings are to be

* considered, together with specifications. The specifications

to the particular project (plaintiff's exhibit No. 4) refer to

substitutions of items and, further, refet to the standard air

conditioning specifications.. The standard air conditioning

specifications (plaintiff's exhibit No. 3) also allow the sub-

stitution of items and state that the one system may be sub- -

stituted for the other at the option of the contractor and

that control diagrams are not intended to indicate a pref-

erence for a particular type of system. The prime contrac-

“tor (Markowitz Bros.) had not indicated a preference for

one of the three systems. . Mr. John Leander testified that

prior to.the letting of the contract to the use plaintiff, he

advised Markowitz Bros. of the type of system he proposed

to use and that it substituted electrical for pneumatic items.

Some of the distinctions between the three options is

_ referred to herein under “Amount, If Any, Due the Defend-

ant on its Counterclaim.”

The parties are in agreement that, of the total contract

price $186,284.00, the defendant should be-given credit

‘ for payments and deductions totaling $138,245.32. The -

defendant has not paid use plaintiff the balance of $48,-

038.65, which is the: amount due the use plaintiff. .

4. The amount, if any, due the defendant, Markowitz

Bros. on its counterclaim.

Of several items listed by the defendant, Markowitz Bros.,

prior to the hearings, it -has pene evidence only as to

the following:

(a) For $9, 500. 00 as damages caused by delays occa-

sioned by plaintiff resulting in an assessment of $19,000.00,

pursuant to the terms of the contract between Markowitz

. Bros:, and the ee States ——— Services Administra-

tion). —

17

(b) For $3,058.02 as expense of relocation of control

panels and systems initially installed by use plaintiff.

(c) For liquidated damages of $60,000.00, pursuant to

Paragraph 6, Schedule (a) of contract, =“ $500.00 per

day for 120 days. /

(d) For $12,880.00, as difference in contract price, due

to substitution of “electrical” items for pneumatic items,

depicted in architect’s plans.

(e) For $6,893.11 as the expense of additional wiring

and connections caused by use plaintiff's substitution of

“electrical” items for “pneumatic” items.

_ Total claim is $92,331.23.

A. Evidence concerning the claim for damages in the

amount of $9,500.00, consists of statements of one witness

that he knew of and the defendant, Markowitz Bros., being

assessed $19,000.00, when its contract with the United Sta

(General Service Administration) was not completed accord-

ing to its terms. There is no evidence to indicate the use

plaintiff's responsibility for the delay or for any portion of °

- the assessment. .

B. Mr. John Seeies ond r. Alvin B. Culpepper

of Allen & Whalen of Virginia, Inc., stated that their firm -

moved approximately fifteen-control panels installed by use

plaintiff and that the expense of such relocation was $3,-

058.02. Their testimony further shows that the panels were

initially installed according to plans and specifications with

slight modifications required by the physical characteristics

of the building. An overcrowding of controls required these

panels to be relocated and placed in a more “practical” site.

The-move was ordered by the General Services Administra-

—tion and the use plaintiff.is not a peat for the expense

of relocation.

‘C. Paragraph 6, Schedule (a) of the contract of 30 June,

- 1962, cele ee of $500.00 per day in the event

reverse. RRL ee ie ee . o me ‘oR LPTs

: “ oe 5 Sia Ps a8 Aa “A

18

the use plaintiff fails to provide the defendant, Markowitz

Bros. Inc. “‘acceptable” shop drawings and supporting data

“as required by the contractor-and/or the project specifi-

‘ cations.” This time limit is longer than that mentioned in

Article 14 of the contract.

There is no evidence of -actual damages resulting from

- breach of this contractual provision. Prior to 22 August,

1962, the use plaintiff submitted certain shop drawings and

supporting data. Mr. Hill testified that these were exam-

ined by the defendant only to determine if they concerned

the subject project. They were then forwarded to the archi-

tect on 22 August, 1962. In August and September, 1962,

the architect and agents of the use plaintiff discussed amend-

ments and corrections to the shop drawings. On or about

23 September, 1962, four of the original shop drawings were

prepared. Mr. McNabb testified that the architect was to

revised and three additional drawings were prepared. Mr.

McNabb testified that the architect was to recommend ap-

proval or disapproval, and that final approval was the func-

tion of the General Services Administration. He stated that -

the revisions of September, 1962 concerned minor details |

only.

On 24 September, 1962, the revised shop drawings were

sent to Markowitz Bros. to the architect. On 29 Novem-

ber, 1962, the architect forwarded the shop drawings and

supporting data; with “eleven advisory comments” to the

General Services Administration who finally approved the

plans and comments during the first two months of 1963.

Shop drawings are required to implement the architect’s

plans and to assist him, and other contractors:in the estima-

' * tion and coordination of the work to be performed. The

drawings prepared in August of sual were sufficient for

this.

Article 14 of the contract, Section 1-22 of its general con-

ditions, and Section 2-10 of its Special conditions, outlines

19

the procedure for the submission of shop drawings ‘and sup-

“\ porting data. Revision of minor details and resubmission

is contemplated and the parties in this case did not expect

immediate approval by the General Services Administration.

The defendant, Markowitz Bros. Guiset plans ‘“‘accept-

able” to it and for the above purposes. It did “accept” and

approve the plans in August, 1962. Although the plans were

not approved by the General Services Administration until

the following year, the use plaintiff has complied with Para-

graph 6, Schedule A of the contract.

The remaining two claims of the defendant concern the

option to substitute electrical control systems (fire stat’s,

freeze stat’s, etc.) for pneumatic control systems in 322 in-

stances. -The difference between the two systems has been

partially explained by the ~-vidence. It appears that a “‘pneu-

matic”’ electrical -control system contains a device which, by

air pressure impulse, operates an electro-pneumatic relay,

which in turn starts and stops other electrical devices. It.

is “essentially” pneumatic, and does require some electri-

cal wiring. Those elements which &re “pneumatic” were

.’ connected by pipes, rather than wires. Installation of the

piping is a field of a steam fitter, rather than an electrician. .

Some electrical wiring is also required. The use plaintiff,

Minneapolis-Honeywell, was required to furnish the piping

to “‘pneumatic” items installed. Where an electrical or a |

pneumatic-electric. system is substituted for a pneumatic

system, additional.electric controls are sometimes called for.

Both systems are found in congested * ‘equipment”’ rooms .

of the building. :

Mr. Leander stated-that prior to the,execution of the con-

tract, he advised Markowitz Bros. Inc. that a combination

pneumatic-electrical system would be installed. Prior to the

execution of the. contract, he conferred with agents of the

defendant to clarify the matters, to permit defendant to ne-

gotiate with the electrical contractor (Tr. pp. 62, 63). He

stated that prior to the execution of the contract, he pre-.

20 o

pared a listing of equipment that required wiring and mount- _

ing of electrical devices. In negotiations, use plaintiff did not

' advise the defendant of disparaties between the written spec-

ifications and the architect’s plans. They did furnish sub-

mittal data and listings of equipment to the defendant,

.Markowitz Bros: Inc. They did specifically mention one

option regarding multiplex and non-multiplex items (Tr. p.

81).. y,

D. The claim.for $12,880.00 is founded upon Mr. Kin-

ser’s estimate of a unit cost of $40.00 to install units... He

stated that, of the 322 units mentioned in the letter of Al-

len & Whalen Company, (defendant’s exhibit 2), the cost

per unit to install electrical units would be $20.00 (Tr. p.

163 et seq.). It is not certain from his testimony whether

the cost of installation of pneumatic units is $20.00 or

$40.00 greater than that for electrical units. Allen & Wha-

len Company has claimed approximately $20.00 per unit

for wi electrical units. The claim is presented in addi-

tion age for actual expense of wiring the units. The de-

fendant contends that it would not have accepted use plain-

tiffs bid for the contract price of $485,000.00, had it been

advised of the substitution. It contends that it, rather than

the use plaintiff, should profit by a savings of $12,880.00,

‘resultant from the substitution of 322 electrical units for

322 pneumatic units. There is no evidence to show that .

during the construction of Federal Office Building No. 2,

the matter was asserted to justify a deduction from the

- contract price. The claim is not described in any of the doc-

uments prepared prior to the hearing. The evidence shows

that five firms presented bids for the subcontract, and that

the letter of intent (plaintiff's exhibit 9), was received by

the plaintiff prior to the time it received documents nec-

essary to prepare its shop drawings. The difference in the

cost of installation of 322 units was relatively minor, and

- in an area not covered by contract negotiations. Prior to

the execution of the contract, the use plaintiff had no duty

PY ROR BE BPE Oy MATA TCCLT

2 2 :

2

to mention the substitution. The contract drafted by the

defendant would required use plaintiff to bear the cost of

its substitution of more expensive items (Cf. Art. 15 of

Contract, U. S. for use of Westinghouse Electrical ~~

Company vs. Ahearn, 231"\Fed. 2d, 353). b

The undersigned is of the opinion that the substitution of

the 322 units was permitted by the contract documents and

and that the use plaintiff is not obligated to share with the

defendant, any profit or saving resultant from the substitu-

tion of units. : y

E. The defendant’s claim for $6,893.11 is for additional

electrical wiring, occasioned by the selection of electrical

‘- control units, rather than pneumatic control units. The.

contract of 30 July, 1962 states that the “use plaintiff

is not obligated to furnish electrical wiring’to units instal-

‘led by it.” The firm of Allen & Whalen Companys was °

the subcontractor to wire the controls after their instal-

lation. Its agent stated that their contract was “let in a’

hurry and in a rush” in the summer of 1962. Their esti-

mate was based upon the architect’s plans and they did

not see use plaintiff's shop drawings until “late winter’ or

early fall” of the following year. The 322 items are shown.

as pneumatic items on the architect’s plans. In the summer

of 1963, the additional work and expense occasioned by |

the additional electrical wiring, was the subject of discus- *

sion between the defendant, use plaintiff and Allen & Whalen

Companys. The additional work was later actually peformed

by Allen & Whalen Companys and its charge of $6,893. 5 oe

is reasonable for such work. Article 15(b) of the contract

states that “‘in case of any discrepancy in the figures, draw-

ings or specifications, the matter shall be immediately sub- .

mitted to the contractor, whose decision of such discrepancy -

shall not be adjusted by the subcontractor, save only at A

own risk and expense.” White the use plaintiff and the

fendant did confer, prior to th8 execution of the contract

and did then discuss the particulars of the work to enable

"2

the defendant to negotiate with the electrical contractor,

' it does not appear that use plaintiff made specific mention —

of the extent of its substitution of electrical for pneumatic ° ~

items.

Allen & Whalen Companys, as a firm, has not been made

a party to this cause and it has not been established that

either of the defendants has paid its charge of $6,893.11.

Interest and Costs — |

The use plaintiff has requested that it be allowed inter-

est on its claim to Commence the date of the completion of

the contract, 26 December, 1963: Article 4(f) of the con--

tract would fix ‘a date for interest 45 days later than the |

26th of December, 1963 and is controlling on this point.

__ Costs incurred by reasons of hearings held. by the under-

signed would include compensation due the Special Master

and compensation due court reporters, G. T. Cunningham

(12 days) and Deo Wilson (1 day).

a

| SUMMARY

The undersigned is of the opinion that the use plaintiff,

Minneapolis-Honeywell Regulator Company has established

its claim for $48,038.65, with interest from 10 February,

1964, and that this amount is due to it from the defend-

_ ant; Markowitz Bros., Inc. and the Continental Casualty

Company, surety of such defendant. —

The defendant, Markowitz Bros., Inc., has shown that the

use plaintiff failed to advise it of discrepancies between the

drawings and specifications of the contract, but has not .

shown that it has been damaged as a result of such failure.

Respectfully submitted,

James Woolls — Special Master

23

_/“EXHIBIT A’: | Seis

Plaintiff's Exhibits:

1. Set of drawings, F.O.B. No. 2, Phase 4 (74)

.2. Set of drawings, F.O.B. No. 2, Phase 3 (62 + 27)

3: Standard Air Conditioning, Specifications, August, 1961.

4. Project Specification & Invitation for bids — 5/16/62.__

5

. Amendments | to 4 of contract, dated 6/1/61, rn

6/5/62 and 6/7/62.

6. Folder, Shop drawings 61-1 18C.

7. Folder, Shop drawings (G.S.A.)

8. Proposal, Minneapolis-Honeywell to Wm. H. Singleto

.. Co. (2 p.p.).

-- 9, Letter, Hurst to Minneapolis-Honeywell, dated 7/30/62.

10: Contract, June 1962 (w/o Change Cusers)

11. Change Order No. | ro

12. Change Order No. 2

13. Work Report ‘of L. Hinds

14. — A Construction Contract 28 June, 1962.

14. — B Bond

Defendant's Exhibits:

1. (For Identification) Contract, June, 1962: (same i as Plain-

tiff’s No. 10).°

2. Letter of Allen & Whalen dated 8/8/ 63 (first two pages).

3. Proposal — Minneapolis-Honeywell to Markowitz Bros.

dated 10 July, 1962 (2 p.p.)

4. Letter, H. L. Hill to. Minneapolis-Honeywell 6/20/63. |

5. Letter — Minneapolis-Honeywell to Markowitz Bros.

6/21/63. -

y 6.- Letter H. L. Hill to Minnespote Honey el 5 August,

1963.

7. Payroll record and transmittal letter of 12/12/63.

24- :

8. Letter, J. A. Leander to Markowitz Bros." April, 1964.

9. Letter, A--W. Griggs to Markowitz Bros: 2 Dec. 1963.

' 10. — A — Invoice, Minneapolis-Honeywell, 033707-1 40.

10. — B — Invoice, Minneapolis-Honeywell, 42829-140.

11. Work Orders, Allen & Whalen, Nos. 751. thru 757.

| 7 APPENDIX C

[Filed Mar. 28, 1967]

ORDER AND MEMORANDUM OPINION

The Master concluded that the use plaintiff, Minneapolis-

Honeywell Regulator Company, has established its claim for.

$48,038.65 with interest from February 10, 1964, and that

- this amount is due to it from the defendant, Markowitz

Prothers, Inc., and the Continental ew Company, its

surety.

Upon reviewing the record in ‘this case, the Court is of

the opinion that the Master’s report — to be confirmed,

and dees

It Is-So Ordered. .

Markowitz Brothers, Inc. excepted only to that portion

of the Master’s report disallowing its counterclaim en toto

and in finding that. December 26, 1963 was the last day on

_which the plaintiff performed work under its subcontract.

| The contract between the parties (§ 6, Schedule A) pro-

vided that the plaintiff would have to pay Markowitz

Brothers liquidated damages of $500.00 a day in the event.

that the “Subcontractor fails ta. furnish to the Contractor,

within sixty (60) days of the date hereof; acceptable shop

drawings . . . and supporting data, as required by the Con-

tractor and/or the project specifications.”

The ‘record clearly shows that the shop drawings were

first submitted August 22, 1963. (These, drawings were not

acceptable.) Shop drawings were resubmitted on Septem-

ber 24, 1962, within the sixty-day period. Between these

i

two dates the architect and the plaintiff discussed the orig- ~

inal shop drawings and as a result the resubmitted shop

' drawings contained four revised and three additional draw-

ings. The resubmitted shop drawings were transmitted via

_ the architect to G.S.A. G.S.A. approved these ee! in,

late January or early February of 1963.

The defendant takes the position that the plaintiff's shop

* drawings had to be accepted within the sixty-day period: ©

We do not so read | the ‘contract. All the plaintiff had to do ©

was to file acceptable shop drawings within this.period of .

time. ‘That it did. 4

"9 Markowitz Brothers next complains that the plaintiff saved ©

approximately $13,000.00 by installing a pneumatic-elecs

tric temperature control system in lieu of a pneumatic tem-

_ perature control system. The defendant further contends

- that this substitution on the part of the plaintiff required

it to spend some $7,000.00 additional for necessary electri-

cal wiring. It claims first a reduction in the subcontract

price of the amount, saved ($13,000.00) or, in the altegna-

tive, reimbursement. of the $7,000. 00 additional electrical

expenses incurred.

a

Both contentions are without merit. The. record clearly

shows that the bid plans provided for either an electric,

pneumatic, or pneumatic-electric temperature control sys-

tem. The,shop drawings submitted by the: plaintiff provided

for a pneumatic-electric system. The record further discloses

that the plaintiff informed a representative of the defend-

ant, both prior and subsequent to the-signing of the -sub-

contract, that Minneapolis-Honeywell intended to install a

pneumatic-electric systeni. 4

~The additional electrical work was not a peal of the Min-

* neapolis-Honeywell subcontract. ‘The.fact that the additional

322 electrical outlets were not included in the Allen &

Whalen, Inc. electrical subcontract does not make the |

-charge therefor payable by Minneapolis-Honeywell.

- o

he “

y » "i = prtiss Seer i: be eta TS Nd Ke BAF N 41} ads

26

- Subsequent to the hearing before the Master and the fil-

ing of his report, the defendant moved for leave to submit

additional exhibits A, Band C. These exhibits were admit- ¢

ted by the Court over the plaintiff's objections and were

considered by the Court in reviewing the record in this

case.

The defendant contends that Minneapolis-Honeywell com-

pleted work under its subcontract on October 23, or, by

the very latest, December 2, 1963. This suit was filed on

_ December 4, 1964. The Master found that December 26,

1963 was the last day on which the plaintiff performed

work under its contract. Although the. evidence on this

phase of the case is conflicting, the Master has found De-

~cember 26th, to be the controlling date.

Review of the record discloses that this finding is not

clearly erroneous, hence it is confirmed by the Court.

Counsel for the plaintiff should prepare an appropriate

judgment in accordance with this order and memorandum

opinion, submit it to counsel for the defendants for appro-

‘val as to form, and then submit it to the Court for entry.

United States District Judge

27

APPENDIX C-1_

DEFENDANT'S EXHIBIT A

GENERAL SERVICES ADMINISTRATION

Region 3 Ln

, fe: a 25, D. i

Nov. 12, 1963

Markowitz Bros., Inc.

4808 Auburn Avenue.

Washington, D. C. 20014

Gentlemen:

Reference is made to your letter dated October 23, 1963,

your number 405, regarding heating in FOB No. 2.

. October 23, 1963, is accepted as the date of substantial |

completion for work done under this contract. Aircondi-

tioning systems, including heating, are operable under new

coat. ‘

Sincerely yours, |

/s/

Chief, Repair’ and. Improve-

ment, Construction Branch

28

APPENDIX C-2.

ee EXHIBIT B

GENERAL SERVICES ADMINISTRATION

Region 3

Washington ye Sod

Markowitz Brothers, Inc: ;

4808 Auburn Avenue

Washington, D. C. 20014 —

_ Gentlemen: .

Reference is madé'to your letter dated October” 31, 1963,

your number 408,. Tegarding three Pom relating to com-

pletion of the contract.

:.

The. guarantee petiod for all mechanical and electri-

cal equipment will start from October 23, 1963, the

date of substantial completion for this contract.

Recommendations have been made to the contrac-

ting officer to reduce the retained percentage of

the contract to 2% of the original contract amount.

Time extensions will be considered only. after all

claims are evaluated. Time extensions listed in your

summary are not acceptable because some of the work

. on change orders was done concurrently with con-

tract work and because delays for material submit-

ted were mainly due to incomplete or unacceptable

submittals.: °

: Sincerely yours,

/s/

Chief, Repair and Improvement . .

+ ° . Construction Branch

ae 29

APPENDIX C-3

DEFENDANT’S EXHIBIT C

GENERAL SERVICES ADMINISTRATION

Region 3 a

Washington 25,D.C. — —

‘Markowitz Bros., Inc.: -

— 4808 Auburn Avenue —

Washington, D. C. 20014

Gentlemen:

Reférence is made to your letter dated December 10,

1963, regarding operation of heating units in crosswalks and =

‘rest rooms in F.O.B. No. 2.

It is understood that unsatisfactory eaten i exist in —

_ these areas. . This problem has been referred back to the

design engineers. Solution of the problem is not part of

your contract work.

Thank you for bringing this matter to our attention.

bs - Sincerely yours,

/s/

Chief, Repair and Improvement

Construction Branch

a

30

| APPENDIXD —_—s| “er

[Filed Mar. - 28,1967] |

ORDER»

Upon consideration of the record of sieediian before

the Special Master, the Special Master’s Report, Exceptions

thereto and arguments of counsel for all parties to this cause

and this Court having issued its Memorandum Opinion, it

is, in accordance with said Opinion,

ORDERED AND ADJUDGED, that the yse-plaintiff,

' Minneapolis-Honeywell Regulator Company, have judgment —

against the defendants, Markowitz Brothers, Inc. and Con-

tinental Casualty Company, in the amount of Forty-eight _ \

Thousand Thirty-eight and 65/100 Dollars [$48,038.65] ,

together with-interest thereon at the rate’of six percentum

[6%] per annum from February 10, 1964, until paid, to-

gether with costs of bringing this action.

Judge —

—<? -

3]

¥

APPENDIX E

UNITED STATES COURT OF APPEALS

_ FOR THE FOURTH CIRCUIT

No. 11,498.

[CAption Omitted]

APPEAL FROM THE Unirep States District Court FoR!

THE EASTERN DISTRICT OF VIRGINIA, AT ALEXANDRIA.

OreEN R. Lewis, District JUDGE.

(Argued December 8, 1967. Decided January 11, 1968.)

Before HayNswortu, .Chief Judge, and Craven and

_ Butzner, Circuit Judges.

Kahl K. Spriggs (John F. Myers and Mark P. Friedlander

on bricf) for Appellants, and Ernest L. Ruffner (James

'R. Treese, and Jackson, Gray & Laskey on brief) for

Appellee. : |

PER Curiam:

Whether or not this Miller Act suit was timely filed

turns entircly upon a question of fact. We think: its resolu-_

tion by the Master, accepted by the District Court, was not

clearly crroncous.

Affirmed. |

32 .

APPENDIX F

| ae SR eee ee )

UNITED STATES COURT OF APPEALS

For the Fourth Circuit —

No. 11,498 -

[Caption Omitted]

APPELLANTS’ PETITION FOR REHEARING

i

Appellants, Markowitz Brothers, Inc. and Continental

Casualty Company, hereby petition the Court for a fehear-

ing of its per curiam decision and judgment in the above-

entitled cause, or alternatively for a rehearing by the Court

‘en banc, upon the following grounds:

1. (a) Contrary to the implication of this Court’s opin-

ion, the Master neither had the authority under the re- ~~

stricted order of reference (JA 5a) to decide the question

of the timeliness of the suit below, nor could the District —

Court, properly or legally “accept” the Master’s “‘resolu-

tion” thereof because the District Court itself received ma-

terial and crucial documentary evidence not before the Mas-

ter (Defendants’ Exhibits A, B and C, JA 57a-59a). As no’

33

one may say what the Master’s “opinion” waits have been

had such evidence been before him (even if he had been au-

thorized to decide the matter), and as equally no one may

say that such evidence could not or would not affect the

_ result, the clearly erroneous rule, Rule 53 FRCP, was not

applicable in the District Court.

(b) The District Court, after receiving and considering

the documentary evidence admitted by it, as ,

rested its determination on the Master’s opinion instead of.

making its own finding of fact and conclusions of law on

the matter of timeliness. Rule 52, therefore, does not

come into play in view of the record in. this case, aside -

from the necessity of construing and applying the provi-

sions of the Miller Act to the undisputed evidence below.

2. (a) Whether the suit below was timely on the state

of this record does not turn “entirely’upon 2 question of

fact” or upon any dispute concerning a question of fact.

To the contrary, the facts respecting the timeliness of the

suit are undisputed. The statement of facts made by appel-

lants in their brief (pages 3 to 9) was said by Honeywell

(page 2 of its brief) to be “correct and include essentially

all those matters pertinent to the points raised on this ap-

peal.” The conclusions to be drawn therefrom present:

legal questions turning upon the proper construction of the

provisions of the Miller Act.

Ab) The legal standard and test used by the Master and

upon which his opinion was founded (JA 7a) was “that 26,

December, 1963 was the last day-on which labor was per-

formed and materials supplied by the use plaintiff.” The

District Court in saying (JA 18a) “The Master found that --

December 26, 1963 was the last day on which plaintiff

performed work under its contract,” and in accepting the

Master’s opinion also applied an. erroneous legal standard

and test. both under the Miller Act and under Rule 53.

This. Court in accepting the District Court’s action as not:

being clearly erronéous has transcended Rule 53 and has

not met or dealt with the important legal question involv- —

= é ‘ wr

3 34

ing the construction of the Miller Act and its application

, upon such construction, to the undisputed facts.

* cd *

Respectfully submitted,

MARK P. FRIEDLANDER

1210 Shoreham Building .

806 Fifteenth Street, N.W.

Washington, D. C. 20005

Attorney for Appellant

_ Markowitz Brothers, Inc.

KAHL K. SPRIGGS

504 Southern Building

Washington, D. C. 20005

Attorney for Appellant

» Continental Casualty Company

We hereby certify that the foregoing petition for rehearing

is filed in good faith and not for delay.

MARK P. FRIEDLANDER

KAHL K. SPRIGGS

35

[Filed Feb. 23, 1968]

APPENDIX G 7

UNITED STATES COURT OF APPEALS

_ FOR THE FOURTH CIRCUIT. -

{Caption Omitted] fe.

[ORDER ON PETITION -FOR REHEARING] -

_ The Court having heretofore on January 11,1 968 entered

‘ its judgment and filed an ‘Opinion in the above entitled case

and a petition for rehearing having been filed on denoted

9, 1968, - gy :

Now, therefore, upon consideration of the -petition for

rehearing, and with the concurrence of the entire Court,

It is ordered that the petition for rehearing be, and the

same hereby is, denied.

CLEMENT F. HAYNSWORTH, JR.

Chief, Judge, Fourth Circuit

J. BRAXTON CRAVEN, JR.

United States Circuit Judge

J JOHN D. BUTZNER, JR.

' United States Circuit Judge

[A true copy, Teste: /s/ Margaret L. Davis, Chief satin)

Clerk}