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United States use of D'Agostino Excavators, Inc. v. Heyward-Robinson Co.

United States Court of Appeals for the Second Circuit

May 13, 1970, Argued ; July 24, 1970, Decided

No. 766, Docket No. 34513


 [*1079]  FREDERICK van PELT BRYAN, District Judge.

This is an appeal from a judgment for the plaintiff entered in the United States District Court for the District of Connecticut upon a jury verdict after trial before Chief Judge J. Edward Lumbard, of the Court of Appeals of this Circuit, sitting by designation.

The action involves two subcontracts for excavation work between D'Agostino Excavators, Inc. (D'Agostino) and The Heyward-Robinson Company, Inc. (Heyward) as prime contractor on two construction jobs in Connecticut. One of the prime contracts, for the construction of barracks at the Naval Submarine Base in New London, Groton, was with the federal government (the Navy job). The other, a non-federal job, was for the construction of a plant for Stelma, Inc. at Stamford (the Stelma job).

D'Agostino brought this action against Heyward and its surety, Maryland Casualty Company (Maryland) under the Miller Act, 40 U.S.C. §§ 270a and [**2]  270b, to recover payments alleged to be due on the Navy job. Heyward answered, denying liability on the Navy job and counterclaiming for alleged overpayments and extra costs of completing both the Navy job and the Stelma job. In reply, D'Agostino denied liability on the Heyward counterclaims and interposed a reply counterclaim to recover from Heyward monies alleged to be due on the Stelma job.

At the trial, the two subcontracts in suit were treated together. D'Agostino claimed that Heyward had breached both subcontracts by failing to make progress payments as required and that substantial sums were owing to it from Heyward on both jobs. Heyward claimed that D'Agostino had breached both subcontracts by permitting its compensation and employee liability insurance to lapse; that, as a result, Heyward on October 19, 1965 had terminated both; and that D'Agostino was liable for overpayments and costs of completion on both.

The issue as to whether Heyward had breached the subcontracts prior to October 19, 1965, when Heyward claimed to have terminated them, was submitted to the jury as a special question. The jury found that Heyward had breached the subcontracts prior to that date.

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430 F.2d 1077 *; 1970 U.S. App. LEXIS 8001 **; 7 U.C.C. Rep. Serv. (Callaghan) 1331; 14 Fed. R. Serv. 2d (Callaghan) 305

UNITED STATES of America, for the Use and Benefit of D'AGOSTINO EXCAVATORS, INC., Plaintiff-Appellee, v. The HEYWARD-ROBINSON COMPANY, Inc. and Maryland Casualty Company, Defendants-Appellants

Disposition:  [**1]   Affirmed.


counterclaims, subcontracts, trial court, parties, memorandum, compulsory, appellants', occurrence, suppliers, federal jurisdiction, federal court, terminate, breached, Miller Act, obligations, grounds, progress payment, subject matter, circumstances, settlement, ancillary, contracts, withhold

Civil Procedure, Pleadings, Counterclaims, Compulsory Counterclaims, Subject Matter Jurisdiction, Jurisdiction Over Actions, General Overview, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Crossclaims, Standards of Review, Harmless & Invited Errors, Jury Trials, Jury Instructions, Objections