Moore Bros. Co. v. Brown & Root, Inc.

207 F.3d 717, 2000 U.S. App. LEXIS 5651



Sureties for hire must abide by their contracts and pay everything which by fair intendment can be charged against them. They act, not to accommodate others, but to promote their own interests, and are to be judged accordingly.


Brown (defendant) was an equity partners with TRIP. TRIP hired Brown as a general contractor and was subcontracted by Moore Brothers Co., Inc. and The Lane Construction Corp. (Plaintiffs) to build a road. The contract between TRIP and Brown had a "pay when paid" clause in the subcontracts. The defendant appealed a summary judgment in favor of the plaintiff subcontractors. Defendant appealed an award of damages against it for additional "change in scope" work and an early completion bonus. Plaintiffs cross-appealed the courts denial of prejudgment interest on part of the award. 


Did the court err when it granted summary judgment against the defendant?




The court affirmed summary judgment against the defendant when it did not include "pay when paid" condition precedent in bond and could not assert a clause contained in construction contract between plaintiff and defendant. The court affirmed the ruling that defendant contractor was liable for "change in scope" work. The court remanded the issue of "pay when paid" condition regarding bonus claims, and the court affirmed the denial of prejudgment interest.

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