Schnackenberg and Knoch, Circuit Judges, and Mercer, District Judge. Schnackenberg, Circuit Judge (dissenting).
This appeal arises in a suit by plaintiff, Chrysler Corporation, against the defendant, The Hanover Insurance Company,*fn1 upon a performance bond issued by defendant, as surety, and Indiana Tempered Air, Inc., hereinafter referred to as ITA, as principal. Judgment was entered for plaintiff. Defendant appeals.
ITA, now bankrupt, was an installer and retailer of plaintiff's air conditioning equipment. ITA was owned by Christopher Meyer, who also owned Temperature Control, Inc., hereinafter referred to as TC, a distributor of plaintiff's products. At all material times, the pattern of operation of those two corporations was that TC bought from plaintiff and sold to ITA, which in turn sold to the public.
On September 6, 1957, plaintiff entered into a contract with the American Fletcher National Bank, hereinafter referred to as AFNB, to install air conditioning in the bank's building at Indianapolis, Indiana. On November 12, 1957, plaintiff entered into a subcontract with ITA whereby ITA undertook to furnish all the labor and materials for the installation of the equipment to be furnished by plaintiff for the building.
Plaintiff agreed to pay to ITA $140,000.00 for the project. Payment was to be made by periodic progress payments equal to 90% of the work completed to the time of each billing. The remaining 10% of the contract price was to be retained by plaintiff and paid upon completion of the project and acceptance of the work by plaintiff, but only after ITA had submitted satisfactory proof to plaintiff that it had paid for all labor and materials for which a lien could be asserted against the AFNB real estate.
The contract required ITA to furnish to plaintiff a surety bond for the faithful performance by ITA of the subcontract. On November 26, 1957, ITA, as principal, and defendant, as surety, executed and delivered the $140,000 bond in suit pursuant to that contract requirement.
Prior to the date of the subcontract, TC was indebted to plaintiff in an amount in excess of $500,000. Plaintiff had refused to extend to it any further credit. To obtain the AFNB subcontract, ITA agreed with plaintiff that 30% of the contract price should be applied by plaintiff to the reduction of the TC debt. The oral agreement was that plaintiff would deposit money equal to 70% of each progress billing in ITA's bank account, would credit 20% of each such billing to reduction of the TC indebtedness and would, upon completion of the contract, credit the 10% which plaintiff had retained likewise to the reduction of the TC debt.
Plaintiff also guaranteed a loan of $35,000 from AFNB to ITA which was necessary to enable ITA to undertake the performance of the contract.
Upon progress billings from time to time in the amount of $126,525.65, plaintiff retained $12,652.57, applied $16,678.69 to reduction of the TC indebtedness and deposited to ITA's account the balance of $97,194.39.
In August, 1958, mechanics' liens totalling $51,000 were filed against the AFNB premises. Other mechanics and materialmen demanded from plaintiff and AFNB payment of their claims and threatened to file liens unless payment was made. ITA advised plaintiff that it could not pay the sums demanded and that it then owed about $100,000 for material and labor, not including material and labor not then billed.
After an audit of the books and records relating to the several claims, plaintiff paid for materials and services rendered to ITA in the performance of its subcontract the sum of $107,253.20.
Though ITA threatened to abandon performance of the contract, it continued in the performance thereof at plaintiff's insistence until October 8, 1958, when a bankruptcy proceeding was filed against ITA. Thereafter, plaintiff undertook to complete the performance of the subcontract by successive agreements with the receiver and trustee of ITA and, ultimately, through its own factory branch. In that endeavor, plaintiff incurred expenses of $5,826.42 for work performed in the completion of the contract and warranty work required by the subcontract.
Plaintiff notified defendant of the default and of its claim under the performance bond in November, 1958. After defendant rejected plaintiff's claim, plaintiff filed this suit on April 30, 1959.
ITA defaulted on its AFNB loan. On September 2, 1958, plaintiff paid that obligation in the amount of $32,506.96.
The court below found that plaintiff had fully performed all obligations imposed upon it by the contract and the bond, that its payments to materialmen and mechanics were reasonable payments for lienable materials and services rendered in the performance of the ITA contract, that plaintiff had expended $113,079.62 required for the completion of the subcontract and that defendant had failed to prove its defenses of lack of notice of default and alteration of the subcontract.
Although the court found that the proceeds of the $35,000 loan were used by ITA in the performance of the contract, it also found that plaintiff could not retain to defendant's detriment $26,589.72 applied by plaintiff to the AFNB guaranteed loan. The court also found that the $16,678.69 applied by plaintiff to reduction of the TC indebtedness could not be retained by plaintiff to the detriment of defendant. After the subtraction of those items, the court entered ...