Kincaid & King Construction Co. v. United States

An action under the Miller Act, 40 U.S. C.A. §§ 270a-270d, was filed in the United States District Court for the Territory of Alaska by the United States for the use of William Olday, appellee herein, against Kincaid & King Construction Company and others for moneys alleged to be due to Olday as a subcontractor of Kincaid & King, the general contractor. Kincaid & King filed an answer denying the allegations of the complaint and a counterclaim (erroneously designated below as a cross-complaint) seeking damages from Olday by reason of alleged breaches of Olday’s subcontractor obligations in the sum of $74,534.97. A few weeks later with the court’s permission *788 Kincaid & King filed a third-party complaint against Continental Casualty Company, the surety on Olday’s performance bond, seeking damages in the exact sum mentioned in the counterclaim. In addition, the third-party complaint prayed “for judgment against each of said parties [Olday and Continental] in such amount as these defendants may be held liable in pending or future suits brought by creditors of the said William Olday * * *»

After a trial by the court judgment was rendered in favor of Olday and against Kincaid & King…