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UNITED STATES v. RELIANCE INSURANCE COMPANY

No. 24-70.

436 F.2d 1366 (1971)

UNITED STATES for the Use of Howard L. NELSON and Milton A. Nelson, d/b/a Nelson Brothers, a copartnership; and Howard L. Nelson and Milton A. Nelson, d/b/a Nelson Brothers, a copartnership, Plaintiffs, Appellants, v. RELIANCE INSURANCE COMPANY, a corporation; Utilco Constructors, a division of McGrath Construction Company, a corporation; McGrath Construction Company, a corporation, and J. M. McGrath, Defendants, Appellees.

United States Court of Appeals, Tenth Circuit.

January 18, 1971.

Attorney(s) appearing for the Case

Leonard O. Thomas, Kansas City, Kan. (Robert H. Bingham and David K. Fromme, Kansas City, Kan., on the brief), for appellants.

John J. Alder, Overland Park, Kan. (Richard D. Rixner, Overland Park, Kan., on the brief), for separate appellee, Reliance Ins. Co.

Before PHILLIPS, HILL and HICKEY, Circuit Judges.

HILL, Circuit Judge.

This is a Miller Act suit, in which Nelson Brothers, a subcontractor, seeks recovery from the prime contractor, McGrath Construction Company (Utilco),1 and the latter's surety, Reliance Insurance Company. The complaint prayed for relief under 40 U.S.C. §§ 270a through 270d for labor and materials furnished, and for damages on a common law count that Nelson Brothers, through the promises and misrepresentations...

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