opinion: MARYLAND CASUALTY CO. v. MORGAN COUNTY COURT et al.
  No. 3167.
  Circuit Court of Appeals, Fourth Circuit.
  Oct. 19, 1931.
  Modified on Rehearing April 29, 1932.
  D. H. Hill Arnold, of Elkins, W. Va. (G. F. Cushwa, of Baltimore, Md., and R. E. O’Connor, of Charleston, W. Va., on the brief), for appellant.
  Charles S. Trump, of Baltimore, Md., for appellee R. F. Feller.
  Clarence E. Martin, of Martinsburg, W. Va. (H. D. Allen, of Berkeley Springs, W. Va., and Martin & Seibert and C. M. Sei-bert, all of Martinsburg, W. Va., on the brief), for appellee County Court of Morgan County.
  Before PARKER and NORTIICOTT, Circuit Judges, and WAY, District Judge.
  NORTHCOTT, Circuit Judge.
  This is a suit in equity brought by appellant, surety, upon a performance bond given by W. J. and J. T. Gephart, contractors, to the county court of Morgan county, W. Va., for the construction of a certain highway in said county, against all known creditors of said Gepharts furnishing labor and material upon said contract and against the county court of Morgan county.
  On the 12th day of Juno, 1922, W. J. and J. T. Gephart were awarded a contract for tho construction of a certain highway in Morgan county, W. Va., known ns the “Paw Paw Great Caeapon Road,” said road being in two sections; the “Paw Paw” road being about three miles of macadam; and tho “Great Caeapon” road-being about five miles of grading and draining.
  Tho bond secured not only the performance of the contract, but contained covenants to pay all and every person furnishing material or performing' labor in and about tho construction of said contract.
  On the 2d day of November, 1923, W. J. and J. T. Gephart became Insolvent and subsequently adjudged bankrupt for acts done as of said dato. At said time tho Morgan county contracts were not completed, and tho Gepharts owed to various creditors the approximate sum of $11,500 for labor and materials used upon said road. Maryland Casualty Company advanced tho money for the past-duo pay roll owing’ by the Gepharts, taking assignments from, the laborers and a deed of trust from Gepharts. On or about the 9th day of November, 1923, the Gep-harts abandoned all work upon the highway, and Maryland Casualty Company completed the road at an approximate expense of $16,-500, exclusive of creditors’ claims.
  Thei'o were various matters in controversy between the county court and tho casualty company, and the cause was referred by tho judge below to a special master, who reported that tho casually company was entitled to recover from tho county court Hie sum of $23,297.38, with interest from April 1, 1926, the dato of the filing' of said report.
  The only creditor whose claim had not been settled was appellee R, E. Eeller, trading as Standard Concrete Pipe Company, and the casualty company contested this claim on the ground that the said Gepharts had unduly extended credit to Feller.
  Tho master in his report found against Feller and in favor of the casualty company. On exceptions to the master’s report, the judge below set aside the findings of the master; found that the county court of Morgan county owed the casualty company nothing, and gave R. F. Feller judgment against the casualty company in the sum of $1,002.33, with interest from April 1, 1926, from which action of the court below the casualty company brought this appeal.
  It is contended on behalf of the county court that the casualty company did not take over the completion of the road work when the Gepharts, as contractors, abandoned their contract, and that there was no formal notice of abandonment, and that the casualty company look over the contract of the Gep-harts as assignee and not as surety, and therefore In all respects stood in the shoes of the Gepharts with regard to all transactions of the county court.
  The specifications under which the contract was let contained the following provisions: “If the Contractor * * * shall discontinue the prosecution of the work, or if the Contractor shall become insolvent or declared bankrupt, or commit any act of bankruptcy or insolvency * * * or shall make an assignment for the benefit of creditors, or from any other cause whatsoever shall not carry on the work in an acceptable manner, the Engineer shall give notice in writing to tho Contractor and his Surety, of such delay, neglect or default, specifying the samo, and if the Contractor, within a period of ten (10) days after such notice shall not proceed in accordance therewith, then the County Court shall, upon written certificate from the Engineer of the fact of such delay, neglect or default and the Contractor’s failure to comply with such notice, have full power and authority, without violating the contract, to take the prosecution of the work out of the hands of such Contractor, to appropriate or use any or all materials and equipment on the ground as may he suitable and acceptable and may enter into an agreement for the completion of said contract according to the terms and provisions thereof, or use such other methods as in his opinion shall be required for the completion of said contract in an acceptable manner. * * * ”
  It is admitted that default of the contractors was not formally made, and it seems clear that the county court did have the privilege and the right to designate who should undertake the completion of the work, yet it is also true that the casualty company only entered into undertaking to complete the contract because of the bond it had given and the force of its obligation as surety. "As was ably said by Judge Parker of this court in Lacy v. Maryland Casualty Co., 32 F.(2d) 48, 53: “The point is made that there was no default under the contract, and that consequently the right of subrogation on the part of the casualty company did not arise. It is true that the work under the contract was not interrupted and no notice of default was given to the casualty company, but it appears that on May 24, 1923, the contractor had become insolvent and was unable to proceed with his contract and that the company, without waiting for notice, advanced the funds to carry on the work, notified the highway commission that it was doing so, and eventually took the contract over. There can be no question that the company did this, not as a volunteer, but because of legal necessity, i. e., because it had guaranteed the performance of the contract and the contractor was financially unable to perform it. Under the principles laid down in the Prairie State Bank Case [164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412] and Henningsen Case [208 U. S. 404, 28 S. Ct. 389, 52 L. Ed. 547], therefore, ■it is clear that the right of subrogation arose. Being compelled because of its contract to advance money to prevent a breach of the contract of the principal, the surety is in no different position, we think, from what it would oeeupy if it had made the advancement after breach or had performed the contract itself. It is the payment under necessity because of the contract of suretyship, and not the breach of the principal's contract, which entitles the surety to subrogation.”
  We do not think, however, in view of our conclusion as to other questions involved, that it is necessary to decide the question as to whether the casualty company completed the contract as assignees.
  It was contended by the county court, and clearly proven, as we see it, by the evidence, that the contractors, either by a mistake or carelessness, almost amounting to fraud, were clearly overpaid in the estimates given them by the engineers, an amount in excess of' the sum claimed by the surety. These overpayments would, as we see it, be properly chargeable against the retained percentage due contractors, and the balance of such wrongful overpayment would be a proper charge against the bond.
  This overpayment was brought about through what was a wrong system of measurement of the work done, and wrong estimates given by the engineer. The court below found the mistakes to be so gross as to practically amount to fraud.
  The retained percentage is retained primarily for the benefit of the party letting the contract, but also for the surety and for all parties interested, but, if payment is made by mistake, contracting party has an undoubted right to deduct from it for retained percentage. Claiborne Parish School Board v. F. & D. Co. (C. C. A.) 40 F.(2d) 577, and eases there cited.
  It is contended on behalf of appellant that part of the retained percentage was wrongfully paid the contractors by the county court, but, even if this be true, the overpayment by mistake-to the contractor more than offset any claim of this kind, and there could be, because of failure to retain the percentage, nothing due the surety on that account. As was said by this "court in Pickens County v. National Surety Co., 13 F.(2d) 758, 762:
  “On the contrary, the evidence is that plaintiff has sustained damage in excess of the amount of the bonds plus this advancement, to the contractor; and the damage would have been greater, and not less, if the advancement had not been made, and the contractor had not been enabled thereby to do a part of the work under the contracts.-
  “We do not see, therefore, how the advancement to the contractor could possibly have caused injury to defendant, and it was calculated to benefit the defendant, in that it enabled the contractor to proceed with work, the performance of which the'defendant had guaranteed. It is well settled that the rule of strietissimi juris, ordinarily applied in relief of an individual surety, is not applied in ease of compensated sureties, and that where a bonding company, for a monetary consideration, has insured against failure of performance of a contract, it must show that it has suffered some injury by reason of departure from the strict terms of the contract, before it can for that reason be discharged from its liability. Atlantic Trust Co. v. Laurinburg (C. C. A. 4th) 163 F. 690, 90 C. C. A. 274; Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 24 S. Ct. 142, 48 L. Ed. 242; [United States for Use of] Hill v. American Surety Co., 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 437; Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 S. Ct. 614, 61 L. Bd. 1206; National Surety Co. v. Lincoln County (C. C. A. 9th) 238 F. 705, 151 C. C. A. 555; American Bonding Co. v. U. S. to Use of Francini (C. C. A. 3d) 233 F. 364, 147 C. C. A. 300; note in 12 A. L. R. 382, and cases cited. And payments to a contractor in advance of the time specified in the contract are expressly held not to be sncli a depai ture from or change in the terms of the contract as will discharge from liability a bonding company which has guaranteed its performance, in the absence of a showing that the bonding company has suffered injury therefrom. Atlantic Trust Co. v. Laurinburg, supra; National Surety Co. v. Lincoln County, supra; American Bonding Co. v. U. S. to Use of Francini, supra.”
  It is contended on behalf of the appellant that the findings of the special master should not he disturbed, as “Ms conclusions have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake on his part.” Camden v. Stuart, 144 U. S. 104, 12 S. Ct. 585, 590, 36 L. Ed. 363. Wo do not think this case binding here, because it seems clear to us that the findings of the master were clearly mistaken.
  With regard to the claim of appellee Feller, we think the action of the judge below was correct, under authority of Maryland Casualty Co. v. Ohio River Gravel Co. (C. C. A.) 20 F.(2d) 514. There was no unreasonable or unusual extension of time by the contractor to Feller, and the surety was in no way damaged by the extension.
  The decree of the court below is accordingly affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.