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UNITED STATES v. FIDELITY AND CASUALTY CO. OF NEW YORK

No. 12095.

402 F.2d 893 (1968)

UNITED STATES of America, for the Use and Benefit of HUMBLE OIL & REFINING COMPANY, Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, and Frank Burkholder and Robert Burkholder, Jr., Co-partners, doing business as Burkholder and Burkholder, General Contractors, Appellees.

United States Court of Appeals Fourth Circuit.

Decided September 29, 1968.

Attorney(s) appearing for the Case

Lewis F. Powell, Richmond, Va., and J. Sloan Kuykendall, Winchester, Va. (Henry H. Whiting, Winchester, Va., and Jack Spain, Jr., Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., and Kuykendall & Whiting, Winchester, Va., on the brief), for appellant.

Thomas H. McGrail, for appellees.

Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

Humble Oil & Refining Company, the use plaintiff ("Humble") sued the general contractor, Burkholder and Burkholder ("Burkholder"), and its surety, The Fidelity and Casualty Company of New York ("Fidelity"), for asphalt and petroleum products Humble furnished Burkholder for use on Federal Highway Project No. 100-A-12 (the "project"), a construction contract to which the Miller Act, 40 U.S.C.A. § 270a et seq. (Supp.1967), was applicable...

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