United States ex rel. Boyer v. Port Deposit Quarry Co.

PER CURIAM. [1] The contention of the defendant that there can be no recovery for the rent of a derrick or lighter used in transporting stones from the quarry to the place of deposit designated in the contract, and in depositing them there, has, I think, been foreclosed [699] by various decisions of the Supreme Court of the United States, notably Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 Sup. Ct. 614, 61 L. Ed. 1206. There can be no difference in principle between the rent of cars to be used in doing work under a government contract a„nd the hire of a boat for the same purpose. Whether you shall call the transportation and the hoisting part of the materials in place, or part of the labor in putting them in place, seems to me to afford opportunity for interesting exercise in intellectual gymnastics, but in this case it would scarcely seem that it would make any difference how it was answered. If a subcontractor had undertaken to deliver the material in place for a total price, his undertaking would have been covered by the bond. The -work might have been done by putting the stones by hand on rafts or galleys propelled by oars. Hand power might have been used to lower the stones into place. That is doubtless what an ancient Egyptian contractor would have done. The pay of the rowers and of the laborers in putting the stones where the government wanted them would have been labor supplied under the contract. Whether, on the whole you prefer to call it the one or the other, would not affect the result. [2] The only other question in the case is whether a derrick hoister, chartered to be used successively upon two government contracts, one of which is covered, by a bond and one is not, can be held, as to any part of its services, to be either labor or material supplied for the contract job. In this case, and for the period for which suit is brought, the derrick hoister was chartered, by the day. All due under the original charter of $600 per month has been paid. All that is here charged is the number of days upon which this derrick hoister was actually engaged in doing work absolutely necessary to he done, if this contract was to be performed, and the bond discharged. I see no reason why the surety should not he1 held liable for the balance of the hire of the derrick for those days. The plaintiff is entitled to a verdict in the sum of $848.92.