National Surety Co. v. United States ex rel. Pittsburgh & Buffalo Co., 228 F. 577

228 F. 577 | 6th Cir. | 1916

DENISON, Circuit Judge

(after stating the facts as above). [1] We pass by, without deciding, certain considerations affecting the right of the Surety Company to insist that a court of equity had exclusive jurisdiction, and assume that it had — and has — the full right to be heard on that question. Its contention is fully supported by the opinion of the Circuit Court of Appeals of the Second Circuit in Illinois Surety Co. v. United States, 212 Fed. 136, 129 C. C. A. 584, filed since the hearing of this case below. The contrary result has been reached in the Seventh Circuit. Illinois Surety Co. v. United States, 226 Fed. 653, 664, -C. C. A.-. In the present case the bond is not sufficient to. pay all the claims, and if, upon a .writ of error attacking only certain claims, they are set aside, whereby the fund becomes sufficient to pay all, the other claimants who have not assigned error can get no benefit, according to the common-law rule affecting1 several judgments. In such a case the defendant surety might go free of part of its liability; and so there is direct force in the argument that a court of equity is the appropriate tribunal, and that therefore it will be presumed that Congress intended to put the jurisdiction there; yet, even since the amendment of the statute, so many courts — and the Supreme Court so many times¹ — have assumed that there was - jurisdiction in the law court that we are reluctant to consider all these, decisions inadvertent. It is enough to turn the scale when we observe, as was done in the Seventh Circuit, that, by the enactment of June, 1915-, section 274a of the Judicial Code — and which enactment applies to pending cases — the only effect of holding in this case that the true jurisdiction, was in equity, would be to send the case back to be transferred to the equity side and heard over again by the same judge upon probably the same proofs. Upon the whole we are better satisfied to say that the court below had jurisdiction.

[2] The statute involved has been many times considered, but the Supreme Court has never had occasion to declare broadly the meaning of “labor and materials.” The standard lien statutes with reference to buildings, in force, probably, in every state, contemplate materials and labor which directly enter into the structure itself. We are not aware of any decisions extending these state statutes so as to reach and create liens for labor or materials which contribute to the construction so indirectly as do. the supplies consumed by the contractor in operating his plant. Of course, where the statute, by its words or by judicial interpretation, gives a lien for labor or materials furnished to subcontractors, it carries us one step away from the structure itself; but this does not necessarily mean more than that the rule of direct contribution is to be applied to the work of the subcontractors.

The language of. the present federal statute, does not seem to be materially different from the typical state lien statute. There is a distinction between the original and the amended act. The act of 1894 directed that the bond given to the United States to secure the completion of the contract should have “the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them labor or materials in .the prosecution of the work,” and further specified that suit might be brought and recovery had upon this bond by any person who had supplied “labor or materials for the prosecution of such work.” When the statute was amended in 1905, there was no change in the language fixing the condition of the bond, but it was specified that recovery thereon could be Rad by the person who had “furnished labor or materials used in the construction or repair” of the work. The substitution of this language, which adopted the usual phraseology of the lien statutes, in the place of the former more general reference to “materials for the prosecution of the work,” is not to be overlooked, and at least has a tendency to bring this statute into harmony with the lien statutes of the states. Some of the decisions, even since the amendment to the statute, speak as if it contained only the provisions fixing the form of the bond, and reached all persons “supplying the contractor with labor and materials in the prosecution of the work,” regardless of whether these things were “used in the construction”; but it is obvious that the two clauses must be read together, and that the provision which gives a right to an intervener only in case he has furnished labor and materials “used in the construction or repair” must receive its due force in interpreting the statute as a whole.

The Supreme Court has repeatedly declared that the bond provided for by this statute is a substitute for the lien of the mechanic’s lien laws (Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 425, 24 Sup. Ct. 142, 48 L. Ed. 242; Hill v. Surety Co., 200 U. S. 197, 203, 26 Sup. Ct. 168, 50 L. Ed. 437; United States v. Ansonia Co., 218 U. S. 452, 471, 31 Sup. Ct. 49, 54 L. Ed. 1107; Title Co. v. Crane Co., 219 U. S. 24, 32, 31 Sup. Ct. 140, 55 L. Ed. 72; Equitable Co. v. United States, 234 U. S. 448, 455, 34 Sup. Ct. 803, 58 L. Ed. 1394); and this declaration of purpose at least suggests that the scope as well as the purpose may be discerned from comparison with the state statutes. The Supreme Court in the Pressed Brick Company Case extended the protection of the statute to subcontractors, in the Hill Case to materials furnished to a subcontractor, and in the Equitable Company Case, to a contract which had been somewhat changed after the surety’s undertaking was made. In each of these cases there is a statement or intimation that the statute is to be construed liberally to accomplish its purpose, rather than strictly; but in each case the labor or material involved was of the class which entered directly into the work, and no one of these cases decides whether or not this liberality of construction will avail to reach classes of materials not commonly thought within state statutes.²

The subject of what specific materials are included we find touched upon by that court in only two cases, Title Co. v. Crane, supra, and United States, etc., Co. v. Bartlett, 231 U. S. 237, 34 Sup. Ct. 88, 58 L. Ed. 200. In the former case, certain claims for cartage and towage are approved as leading to liability under the bond. Page 34 of 219 U. S., page 140 of 31 Sup. Ct., 55 L. Ed. 72. The contract related to building a boat; the towage and cartage claims were, apparently, for hauling some materials. The facts show that they could not have been for labor, and so they must have been for materials. If we seek to apply the word “furnished” found in the statute, it would seem that the materials delivered at the work, through hauling or towing done by a carrier, were furnished jointly by the vendor and the carrier, and that the value of the transportation entered into and became a part of tire value of the delivered material.³ The case is, therefore, not necessarily inconsistent with the idea that the “materials” contemplated by the statute are those commonly so considered under the lien statutes. The case also allows a claim for patterns furnished to his molding department for the contractor who was building the marine engine which was a part of the boat. This pattern claim seems to be for labor rather than for materials. The engine builder, normally, makes patterns,makes molds, pours the castings, and machines them. All these things are done by the labor of his employés. If he gets some one else to make the patterns for him, their price is none the less part of the labor cost of producing the engine. The value of the raw material in patterns is negligible; and so it could not be assumed that they had any value for preservation to be used again, in the sense that they would become or might become a part of the contractor’s outfit for other use. That this claim was regarded by the Supreme Court as for labor is apparent by the analogy stated between those who make patterns and those who erect scaffolding.

In the other case (United States, etc., Co. v. Bartlett) the contractors were to build a breakwater. They owned a quarry, and, to perform their contracts must open their quarry, get out the stone, transport it, and dump it in the water. There could have been here no question of furnishing materials to the contractors, for' they owned the materials from the beginning. The question involved was the labor cost of quarrying and hauling the materials. The court held the whole of this was labor performed on the contract. It did not appear that the quarry, so far as stripped, remained of any value for future operation; and it is a proper inference that the work of stripping was performed on this contract just as much as the work of quarrying. The case seems clearly to show an instance of labor furnished directly in the construction of the work. • ,

The decisions of courts other than the Supreme Court, and which are chiefly relied upon to extend the benefit of the bond to the “materials” now involved, are the so-called powder cases and coal cases (e. g., Powder Co. v. Greenwich Co., 183 N. Y. 306, 76 N. E. 153, 2 L. R. A. [N. S.] 288, 111 Am. St. Rep. 751, 5 Ann. Cas. 443; City Trust Co. v. United States [C. C. A. 2d Cir.] 147 Fed. 155, 77 C. C. A. 397). In the former, blasting powder, used in making excavations, has been held to give a liability under the bond. These powder cases stand on reasoning peculiar to themselves. The powder, or similar explosive, •is a direct substitute for manual labor, and it is expended or used directly and immediately on the construction work. This statute, like the lien statutes, must extend to excavating as well as to erecting, and unless powder may be considered materials used in that work, there would often be. nothing to which the name “materials” could be applied.

The coal cases are one step further away. The powder directly shatters the rock. The coal serves to carry away the broken rock, but does so indirectly, through the intervention of the boiler, which makes the steam, which operates the engine, which lifts the dredge bucket. The powder is material used in the work; the coal is material the use of which contributes to the work.⁴ However, it is, not necessary to determine whether the coal cases are rightly decided. Some of the claims here allowed were for coal, and error was assigned on such allowance ; but the briefs show that the intention was to raise only subordinate questions, and the general rightfulness of the allowance for coal is not questioned. We refer to these cases only because we must know whether they rest upon principles which require allowances of the supplies involved in this case; and since this case may be well distinguished from them, their correctness need not be determined.

The questions saved for this review, interpreting the assignments by the brief, pertain to claims which may be divided into three classes: (1) Those for groceries and provisions for the men; (2) those for machines or appliances of such a character as to become a part of the contractor’s quasi permanent outfit, and as not to be used up or worn out on this job, unless they happened to be; and (3) those for machine or miscellaneous repairs or supplies of a more temporary character.

[3] The Brogan claim was for groceries furnished to the contractor’s' boarding house. We cannot attach any importance to the fact that the character of the country where this work was done made it necessary for the contractor to board its men on the job — in other words, compelled it to give them their board as a part of their pay for their work. Rven if there may be distinctions between one who furnishes food consumed by the men in their contractor’s boarding house and food consumed by the same men in an outside boarding house, it is not seen how it can be of any importance whether the men agree to board at the contractor’s place, because it is the only oue, or do so for some other reason; nor can there one rule in a city and another in a wilderness. The provisions, in one case as in the other, either are or are not “labor” or “materials” used in the construction of the work.

Counsel agree that in no case under this statute has the liability been extended to provisions, and that in the cases decided under the state lien, statutes such liability has been denied (Perrault v. Shaw, 69 N. H. 180, 38 Atl. 724, 76 Am. St. Rep. 160; Carson v. Shelton, 128 Ky. 248, 107 S. W. 793, 15 L. R. A. [N. S.] 509; Luttrell v. Knoxville Co., 119 Tenn. 492, 519, 105 S. W. 565, 123 Am. St. Rep. 737 ;⁵ Dudley v. Toledo Co., 65 Mich. 655, 32 N. W. 884; Pennsylvania Co. v. Mehaffy, 75 Ohio St. 432, 80 N. E. 177, 116 Am. St. Rep. 746, 9 Ann. Cas. 305); but it is said they stand on the same basis as the coal for the engine, as they provide the energy which malees the machine — in this case, the human machine — do the work. The District Court, while regarding the question as very close, thought this final step in the reasoning could not be avoided. We find a sufficient distinction in the difference between labor and materials. Coal has been allowed as a material; it is expended as a material; it never is and never can be transformed and merged into that labor which is the “labor performed,” as distinguished from the “material furnished,” for each of which the statute gives a right of recoveiy. The logic of the coal cases — regardless of its persuasiveness — is that the word “materials” in the statute should be thought to include coal, because the latent energy of the coal was developed into a mere substitute for that human labor which is expressly included in the law, and unless this energy thus put into the work is protected in this way it is not • protected at all. On tire other hand, tire food for the men never contributes to the work, except after it is transmuted into the form of that labor which, as labor, is protected. It is not to be thought that the statute gives twice a claim for the one thing.

In this case the entire labor right has been satisfied. The contractor paid the men their wages and furnished them their board, and they have no claim. Money that he may have borrowed to pay part of their wages is, on this principle (though not in responsiveness to the name “materials”) difficult to distinguish from the food he borrowed— bought on credit — to pay the balance of their wages; but such money loans are not liénable. 47 Cyc. 44. Nor, if a claim were to be allowed for food for the men, could we well refuse one for rent of their quarters, special clothing, free tobacco, or anything else which the contractor might have agreed to provide as part of their pay. Indeed, among the items allowed on this claim, we find soap and towels, bedding, matches, kitchen and table furniture, etc. These last-named items only illustrate that if, by vague equities, or by the supposed liberal policy of the statute, we are led away from the field of direct and immediate use in the construction, we find no place to stop short of what the Supreme Court of New Hampshire called “interminable litigation and confusion.” Perrault v. Shaw, supra. We cannot believe that these provisions sold by Brogan constitute “labor furnished or materials used in the construction of the work,” save in a sense so indirect and remote as not to be within the fair contemplation of' the statute.

While the cases above cited from the state courts denying a lien to board or provisión claims are not under the statute now involved, we do not see controlling distinctions, either in the state statutes cited in these cases or in the reasoning of the decisions. In the federal courts the point has not been directly decided, but it has been twice argumentatively pointed out that board or provisions are'not materials for construction work. In Giant Powder Co. v. Oregon Co. (C. C.) 42 Fed. 470, 475, 8 L. R. A. 700, Judge Deady says:

“Tfie food furnished a contractor for his men may he said to be ‘used’.onel ‘consumed’ in the construction of the road on which they work, hut this only in a remote or consequential way or sense. The food does not enter directly into the structure and is not so used.”

He then distinguishes between this remote use, for which there .will be no lien, and the more direct use of powder in blasting, or of water in making mortar, or of lumber used in scaffolding, no one of which remains in the final structure, hut each of which is so directly used as to support a lien.

In United States v. Kimpland (C. C.) 93 Fed. 403, Judge Thomas was considering this statute in its 1894 form, and he said (page 406):

“Is the board, which the contractors have agreed conditionally to pay out of the men’s wages, labor or materials supplied in the prosecution of the work? * * * It is considered that the word ‘labor,’ as ’used in the statute, does not admit of such remote and indirect equivalents, but requires the sureties to insure the payment for the visible material that was furnished for direct use and incorporation in the work. * * * Thereby the sureties had a clear conception of the limits of their liability. They were not concerned to see to it * * * that persons who furnished stores or food or lodging to the workmen, under an agreement by the contractor to pay for the same out of the wages due those benefited, should be paid. The contractor was under no such primary duty to the United. States. His duty as a contractor, and as regards the sureties, was to pay the laborers their wages, and allow them to buy their board and clothing where tliev would.”

United States, etc., Co. v. Bartlett, supra, is clearly a case where a claixii was allowed for labor upon the theory that the unpaid wages of the laborers had been assigned to the claimant (see Justice Day’s comment on page 243 of 231 U. 34 Sup. Ct. 88, 58 L. Ed. 200); and so, although the original claim was for board, the claim allowed was for labor, and the case has no application here. Lybrandt v. Eberly, 36 Pa. 347, and Bangs v. Berg, 82 Iowa, 350, 48 N. W. 90, are instances where liens were allowed for that agreed price of labor or materials and board which had been made a part of the contract price. In Kollock v. Parcher, 52 Wis. 393, 9 N. W. 67, the statute was express.

[4] The second class of items here involved may be typified by the “Rand drills.” As a matter of common knowledge, such drilling machines are portable engines operated by suitable power, and intended to be used in one location after another until they are worn out. Their life depends upon the care given to them. It was found as a fact as to these machines that, because they had been either so much used or so badly used upon this work or because the business was to be liquidated, the receiver considered them not worth moving and they were abandoned. If the bond is to extend at all to machines, tools, and appliances used upon the work, their inclusion must be determined by their inherent character, and not by the length oí time for which or the manner in which they happen to be used. Such drilling machines become a part of the permanent outfit of the contractor. True, they might wear out sooner than a dredge, or a crane, or a hoisting engine; but they might outlive any of these things. In our judgment, they cannot be regarded as materials used in tire construction of the work. Of the same class are many other things found- among items allowed. Rope i.n large quantities, wire cable, anchor chains, etc., are clearly normally a part of the permanent or quasi permanent outfit of the contractor. They obviously would outlast any short piece of work; and the proper name to give them must be fixed by the nature of the materials, and not by the length of the job. If, in fact, any of these things, like rope, was intended for current consumption in the direct doing of the work, it does not so appear upon this record. Things of this class are not normally intended for specific use and exhaustion upon the work where they are first sent. They are not materials used in the work; they are facilities for doing that work and any other work to which they may be applied.

[5, 6] The third class consists of miscellaneous supplies and repairs for the contractor’s plant. This plant consisted of a dredge and its machinery, a drill boat and its machinery, two tender tugs, and the boarding house. So far as these supplies may have been specifically intended for current consumption directly on the work, they are allowable, like the blasting powder, and like the lumber actually consumed in scaffolding or in concrete forms. Of this character would be the drills used in the drilling machines, or the material therefor. The record does not show certainly the amount of these articles,' but steel generally described may have been for this purpose. These drills are made to be used up currently. Their life is a matter of days, if not of hours. The contractor buys only his current needs on the particular job. The drills are used up in direct and immediate contact with the rock, the removal of which is the “construction of the work,” and we are satisfied, by analogy to the powder cases, to regard such drills as materials under the statute.

The great part, however, of the items allowed as supplies and repairs, were for the ordinary and current repairs on the machinery and for miscellaneous articles used in the maintenance and operation of the boats and dredges. The articles for outfitting the boarding house (the soap, etc., above mentioned) really belong in the same class. These supply items are of infinite variety, as would be expected when we see that they are not for use directly on the work, but are for the maintenance of buildings, boats, and machinery in suitable condition for living in the buildings or on the boats, navigating and operating the boats, and operating the machinery. As a class we think they are beyond the statute. We may specify bolts and nuts, valves, cylinder heads, electric wire,- lanterns, wrenches, files, electric light globes, divers’ overalls, waste, oakum, packing, grindstones, kerosene, paints, etc. We even find among the items to which specific ‘attention apparently was not called, but which were allowed against the general objection, two typewriter ribbons, five lengths of stovepipe, ,and three rat traps. It cannot be denied that even these last items may be necessary supplies for the proper keeping of the boats or buildings in habitable condition, but we cannot think they are “materials used” in the deepening of St. Mary’s river; and this not because they are extreme and striking instances, but because they typify things which are either additions to the contractor’s working outfit or are intended to maintain the existing outfit in as good order as possible against the wear and depreciation which would otherwise accrue. We approve generally and apply the rules of separation of items as stated by Judge Webb in United States v. Morgan (C. C.) 111 Fed. 474, 488.

•It results that the judgments in favor of the Pattison Supply Company, the Soo Hardware Company, the George Worthington Company, the Upson-Walton Company, and J. P. Brogan must be reversed. As to the Brogan claim, no new trial will be awarded, since, upon the undisputed facts, there can be no recovery. In each of the other claims just named, the claimant may be able to furnish proof which, under our view of the statute, will show a liability as to some of the items. As to each of these claims there will be a new trial — unless counsel, before the mandate goes down, file a stipulation fixing the amounts recoverable under the rules we have indicated. In that event the mandate will direct judgments accordingly, and our action will then be final and subject to immediate review. See In re Martin (C. C. A. 6th Cir.) 201 Fed. 31, 38, 119 C. C. A. 363.

[7] We see no practical way of considering the judgment below as one at law and still subject to partial review', except to treat it as 11 separate judgments in favor of or against 11 separate claims, which for convenience were united in one group proceeding, one hearing, and one judgment, with the same force and effect as if they were consolidated actions. Diggs v. Railroad (C. C. A. 6th Cir.) 156 Fed. 564, 84 C. C. A. 330, 14 L. R. A. (N. S.) 1029. No one of < the powder or coal claimants complained of the cutting down of its claim to 90 per cent, but each accepted its judgment for that amount; and we affirm the judgments so rendered. There seems to be no insuperable difficulty in allowing part of the judgments, to stand, although they are united in one entry with the judgments which are reversed.

The plaintiff in error will recover its costs against the five defendants in error whose judgments are reversed. The four defendants in error whose judgments are affirmed will collectively recover costs against plaintiff in error.

1 Mankin v. Ludowici Co., 215 U. S. 533, 30 Sup. Ct. 174, 54 L. Ed. 315; United States v. Construction Co., 222 U. S. 199, 32 Sup. Ct. 44, 56 L. Ed. 163; Texas Co. v. McCord, 233 U. S. 157, 34 Sup. Ct. 550, 58 L. Ed. 893.

2 The present force of Judge Putnam’s comment in American Co. v. Lawrenceville Co. (C. C.) 110 Fed. 717, 719, to the effect that this statute should not be limited, like the lien statutes, to materials added to the value of the structure, may be somewhat lessened because it had reference to the original act, and because it was written before the Supreme Court had so often declared that the bond was a substitute for the liens.

3 “Ordinarily tlie contractor for the material delivers the same, and includes the expense of the hauling in the price of the material. No objection, so far as we are aware, has ever been made to thus including the expense of the hauling and the price of the material. If it may be so included, and lien made to cover the same, why may not the cartman make a separate contract for hauling, and acquire a valid lien therefor?” Kehoe v. Hansen, 8 S. D. 198, 200, 65 N. W. 1075, 1076, 59 Am. St. Rep. 759.

4 The leading federal coal case, City Trust Co. v. United States, supra, arose under the act of 1S91, unamended; and even under the original act the Court of Appeals of the District of Columbia reached the opposite conclusion regarding coal. United States v. City Trust Co., 23 App. D. C. 153.

5 This ease reviews many decisions and carefully classifies many articles now involved. See 119 Tenn. 512-520, 105 S. W. 565 (123 Am. St. Rep. 737).