Fleischmann Construction Co. v. United States Ex Rel. ForsbergFleischmann Construction Co. v. United States Ex Rel. Forsberg
delivered the opinion of the Court.
This is a suit under the Materialmen’s Act of 1894, 28 Stat. 278, c. 280, as amended by the Act of 1905, c. 778.
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It was brought in the name of the United States by Forsberg, a materialman, as use plaintiff, in the federal district court for Eastern Virginia, to recover on a bond given by the Fleischmann Construction Company, as contractor, and the National Surety Company, as surety, for the construction, under a contract with the United States, of a torpedo assembly plant in Alexandria. Various materialmen and subcontractors filed intervening petitions in the suit. The plaintiff and the intervenors recovered judgment,
The Materialmen’s Act, as amended,
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provides, that the usual penal bond required of anyone entering into a contract with the United States for the construction of any
The first question to be determined is whether any of the matters presented by the assignment of errors — which relate chiefly to the times at which- the suit was brought and the intervening petitions - filed — are now open to review upqn the record.
Shortly outlined, the proceedings in the case were these: The suit was brought by Forsberg on April 6,1921. The declaration alleged that the Construction Company entered into a contract with the United States for the construction of the plant and gave bond to secure its performance, in October, 1918; and that this contract “was completed and final,settlement had on” September 25, 1920, “ more than six months and within one year before ”
The defendants filed demurrers to the original and amended declaration and petitions. All of these were overruled. And the amended declaration and petitions were then put at issue under pleas filed by the defendants.
By agreement of all the parties the case was .referred to a special master to hear the evidence and find the facts. In his report, he found that, the work was completed February. 5, 1920, and that the date of final settlement wai October 1, 1920.
Thereafter, in April, 1923, before action had been taken on this report, the parties filed a written stipulation, under § 649 of the Revised Statutes, waiving'a jury and agreeing that all the issues might be tried and determined by' the court.
In August, the District Judge handed down an extended written opinion in which he considered the entire case as to the facts and law, and concluded,
inter
alia, that the master had found correctly that the date of the final settlement was October 1, 1920;.that it was unnecessary to determine the date on which the work had been com
On the same day a judgment was entered,, which “ for reasons stated ” in the opinion, awarded the plaintiff and the intervenors recoveries upon their several claims, the aggregate of which was less than the amount of either bond.
The defendants, without having excepted to any of the rulings or conclusions of the court or requested any special findings of fact, sued out, in September, a writ of error from the Circuit Coúrt of Appeals. After this writ had issued, however, the District Judge, in October, granted them a “ bill of exceptions,” which recited that the court had filed its opinion and entered its final judgment on the same day, without notice to the parties; set forth various exceptions then, for the first time, noted by the defendants “to the rulings, findings of fact and conclusions of law by the, court” in the opinion and judgment; and stated that, by reason of the circumstances, these exceptions were “ to be taken as severally made at the'time thereof and before the entry of judgment thereon.” And later the District Judge granted them another “ bill of exceptions,” embodying the evidence and the proceedings before the master, and setting forth in the saíne manner other- exceptions to be taken, for like reason, as made before, the entry of the judgment.
The Circuit Court of Appeals disposed of the case in a
per curiam
opinion stating that, while there was a-serious
The assignment of errors challenges the affirmance of the judgment because of the action of the District Court in overruling the demurrers to the original and amended declaration and petitions; in allowing the amendments to the original declaration and petitions; and in making various other “ holdings ” and “ findings ” in reference to matters of law and fact. It is clear that none of these questions are open to review except those which arise upon the pleadings.
Section 700 of the Revised Statutes — re-enacting a like provision in the Act of March 3, 1865, c. 86 2 — provides that when an issue of fact in a civil cause is tried and. determined by the court without the intervention of p' jury, according to § 649, “ the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed” upon writ of error; “and when the finding is special the review may extend to the determination of the sufficiency of the facts found .to support the judgment.”
The opinion of the trial judge, dealing generally with the issues of law and fact and giving the reasons for his conclusion, is not a special finding of facts within the meaning of the statute.
Insurance Co. v. Tweed,
These rules necessarily exclude from our consideration all the questions presented by the assignment of errors except those arising on the pleadings. All the others relate either to matters of fact or to conclusions of law embodied in the general finding. These are not open to review, as there were no special findings of fact and no
The statute, however, relates only to those rulings of law which are made in the course of the trial, and by its terms has no application to the preliminary rulings of the District Judge made, in the exercise of his general authority, before the issues are submitted 'to him for hearing under the statutory stipulation. Such rulings on the pleadings and the sufficiency of the complaint are therefore subject to review as in any other case, independently of the statute.
Norris
v.
Jackson, supra,
128;
Martinton
v.
Fairbanks, supra,
673;
Lehnen
v.
Dickson, supra,
72;.
St. Louis
v.
Telegraph Co., supra,
390;
Vicksburg Railway
v.
Anderson-Tully Co., supra,
415. And see
Campbell
v.
Boyreau,
Since, therefore, the questions arising on the pleadings in this case are now open to review, the motion to dismiss the writ of error must be denied.
The demurrers to the original declaration and petitions were based upon the grounds that they were insufficient in law, since the averment in the declaration that, the contract was completed and final settlement had on September 25, '1920, was a mere conclusion of law, and the facts averred did not show that a right of action had accrued or that the court had jurisdiction of the cause when the suit was instituted. And the demurrers to the amended declaration and petitions were based on like grounds, and on the further ground that they set up new causes of action and were not filed within the times' required by the Materialmen’s Act;
. These demurrers were rightly overruled. The aver-ments in the declaration, as originally filed and as amended, that the contract between the Construction Company and the United States was completed and finally settled on September 25,' 1920, were not mere conclusions of law, but specific averments of an ultimate fact, appropriately pleaded. And since, as appeared from the record, the original suit was brought on April 6, 1921, they showed upon their face that- it was instituted more than six months and “within one year after the performance and final settlement” of the contract, as required by the Act; thereby tendering an issue of fact as to the date of the final settlement which was conclusively
And although the amended declaration and petitions showing the supplemental contract between the Construction Company and the United States, were filed more than one year after the date of the final settlement, they did not set up new causes of action at a time beyond that permitted by the Act. The original declaration set forth a provision in the original bond that it was given to^secure the performance of the contract
“
as it now exists or may be modified according to its terms.” And the supplemental contract — a copy of which was attached to and made a |part of the amended declaration — specifically provided that it should be regarded as amendatory of the original contract; that all provisions and requirements of the original contract should remain in full force, except as specifically changed; and that the original bond should not be released or otherwise affected, but should remain in full force as though the changes provided for had been included in the original contract; and it expressly recited that the Surety Company, which also signed the supplemental contract, was made a party thereto “for.the purpose of extending the obligation of said bond to cover the changes herein provided.” It is clear that the amended declaration and petitions did not set up new causes of action, '.'but- merely supplemented by appropriate allegar tións the defective statements of the rights which had existed when the original declaration and petitions were filed; and that the amendments when made related back, by operation of'law, to the dates on which the original suit was brought and the original petitions filed.
Texas Cement Co.
v.
McCord,
Furthermore, it was -not essential that the petitions should allege the date on which the work was completed, in order to show that the intervenors’ rights of action had
The strict letter of an act must, however, yield to its evident spirit and purpose, when this is necessary to give effect to the intent of Congress.
Holy Trinity Church
v.
United States,
The purpose, of the Materialmen’s Act, which is highly remedial and must-be construed liberally, is to provide security for the payment of all persons who supply labor or material in a public work, that is, to give all creditors a remedy on the bond of the contractor, to be enforced within a reasonable time in a-single proceeding in which all claimants shall unite.
Bryant Co.
v.
Steam Fitting Co.,
. By the terms of the Act no creditor can institute a suit until after six months from the completion and final settlement of the contract, within which period the United States alone has the right to commence an action.
Texas Cement
Co. v.
McCord, supra,
163;
Miller
v.
Bonding Co.,
It is clear, considering the entire provisions of the Act, that such an anomalous and unreasonable result was not intended, frustrating the plain purpose that the bond should inure to the benefit of all creditors and that all should share pro rata in the recovery. And to give effect to the manifest intention of Congress it must be held that the phrase “ within one year from the completion of the work” was used in reference to the filing of intervening claims in the same sense as the phrase' “ within one year after the performance and final settlement of the contract ” in reference to the commencement of the original suit; that is to say, not only that the original suit may be commenced withimone year after the performance and final settlement of the contract but that other creditors may file their claims in such suit within the same period of time. In other words, as was said in the Bryant Co. Case, there is the same limit of time for the commencement of the suit and for the filing of intervening claims, “ beginning to run from the same event,” namely, the performance and final settlement of the contract; thereby avoiding a race of diligence between creditors and bringing about the equality in the distribution of the avails of the bond among all creditors which Congress obviously intended.
We find no error in the allowance of the amendments to the declaration and petitions, setting up the supplemental contract. Aside from the fact that the defendants did not object to the allowance of these amendments or except to the orders of the court permitting them to be made, they were plainly germane to' the causes of action originally alleged; and, as already stated, did not bring in any new causes of action. Their allowance was entirely proper. Illinois Surety Co. v. Peeler, supra, 222.
It is also contended that the judgment of the District Court is void for the -reason that it is recited in one of
. The judgment of the Circuit Court of Appeals is
Affirmed.