UNITED STATES V. KIMPLAND.
is so opposed to the decision of the trial court that the question becomes oDe of law, for it is only 'upon questions of ,law that this court has appellate jurisdiction. * * * 'l'he evidence of' each juror was contradictory in 'itself. It was subject to more than one construction. A finding by the court either way upon the challenge would have support in the eVidence, and under such circumstances the trial court is the final arbiter of the question; tor under such conditions the question presented to this court by the appeal is one of fact, and our power to hear and determine is limited to appeals upon questions of laW alone."
Guided by the principles announced in the foregoing decisions, both of the courts of the United States and of California, I think the finding of the trial court in this case upon the question of the competency of the juror is conclusive. Conceding that the juror's evidence appears contradictory, and that there are portions of it which WQpldlfad to a contrary conclusion, it must be borne in mind that it is not our province to weigh the evidence, and to say whether or not the trial court should have found differently upon the facts. The only question for us to consider is whether there was evidence to supp<>rt the finding. The record shows that there was. When asked if he would sit as a juror, and render a verdict based solely evidence, he answered: "I think 1 would. I feel that I upon migllt." The force of these words would, it is true, largely depend upon and tones in which they were uttered. They might be said a hesitating, doubting manner, such as to convey the impresdistrusted his ability to divest himself sion that the speaker of bis bias; and, upon the other hand, they might be expressed with such earnestness and sincerity as to carry to the court the conviction that notwithstanding his bias the juror could and would act impartially. The trial court had a better opportunity than have we to judge of the effect and the credibility of that testimony, and he had the right to trust and act upon it. In so doing, he exercised a discretion which was vested in him by the statute; and his finding upon the facts is not, I think, subject to our review.
UNITED STATES, to Use of SICA, v. (Circuit Court, E. D. New York.
et al. f\,pril 18, 1899.)
PRINCIPAL AND SURETy-BOND OF CONTRACTOR FOR PUBLIC WORK,-FuRNISHING LABOR on MATERIALS.
The condition in a bond of a contractor with the United States for public work, prescribed by 28 Stat. 278, which requires that the contractor shall make prompt payments to all persons supplying him labor and materials in the prosecution of the work, is intended to cover payments only for the visible material furnished for direct use and incorporation in the work, and of wages to the men whose services are directly employed in doing the work; and an action against the sureties on such a bond can only be malntained, under the statute, by one who has title to a claim for labor or materials so supplied. A person furnishing board and lodging to laborers employed on the work does not supply either labor or materials, within the statute.
SAKE-ACTION ON BOND.
Plaintiff brought action, under 28 Stat. 278, on the bond of a contractor for public work, conditioned, as therein reqUired, for the payment by the 'contractor ()f all perllons supplying him labor and materials in the prose-
98 FEPERAf< REPORTER.
cution of the work; alleging that she furnished board and lodging to laborers employed on therwork, under an agre,ement between. herself, thelaborers,and the contractor, by which the latter agreed to pay for such board and lodging, retaining the .amount from the wages due the men. Held, on demurrer, that the complaint alleged which enabled the plaintiff, to maintain an action against the contractors, and also the sureties, unless the contractors had paid the-laborers entitled to the wages, without knowledge on the· part of the sureties of the right ·of the plaintiff to receive the wages, or some part thereof, and that it was not necessary that c0D:Jplaint should such payment by the contr!lctors,
ThisJsan aC.tioninthe,nalUe of the United States1 for the use and benefit of EllenSica1 against ChArles N. Kimpland1 iwpleaded with others,on a bond given bycontractQl'sfor public work. Heard on demurrer, of the defendant Kimpland to the complaint. Wilson, Bennett & Urtderhill of counsel), for plaintiff. Kellogg, Rose & t-1mith '(}fl'. Rose, of counsel), for defendant Kimpland. THOM"AS, Distriet ,Judge. 'The complaint shows'that, bycontraet concluded August 11, 1897, certain persons, under the firm name of Mairs & Lewis, agreed with tpe United States to furnish all labor and 'or the constructi()ll,of two gun emplacements and a mining casement on Plum Island, in the state of New York, together with a wharf or pier, in accordanGe with certain specifications; that Kimpthat¥alrs & Lewis land, defendant, and another,by "should, .in all respects, duly and ftilly observe and perform, all and singular, thecovenants;'conditloils, and agreements in. and by the saIa contrac't agreed and covenanted by said Mairs & Lewis to be observed and pel:formed, according to the true intent and meaning of the said contract, . * · and shall promptly make full payments to all persons supplying them labor. or materials in the prosecution of the work provided for in said This bond was given pursuant to an act of congress passed in 1894, which provides that:
"Hereafter any person or persons entering Into a formal contract with the United States, for the construction of any pUblic building, or the prosecution and completion, of any public work, or repairs upon a,ny public building or public work, shall be required before commencing such work to execute the usual penal bond, with good. and sufficient sureties, with the additional obligation that such contractor or' contractors shall promptly make payments to all persons supplying him or them labor and material In the prosecution of the work proylded for In such contract; and any person or persons making appIication therefor, and furnishing affidavit to the department under the direction of which said work Is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payments for which have not been made, shall be furnished with a certified copy of such contract and bond, upon which said person or perl';l)ns supplying such labor or materials shall have a right of action, and shall be authorized to' bring suit in the name of the United States for his or their use and benefit, against said contractor and sureties," etc. 28 Stat. 278,
On the 3d day of September, 1897, the contractors agreed, in writing, with Ellen Sica, that the latter should "keep a boarding house 0.Q Plum work sbaUcontinue, whether it be for a longer or sh,(lrterperi(xl than one year,and to 1)oardall the workmen of second parties engaged in said work who rna" wish to board with
UNITE!> STATES V. KIMPLAND.
der to second parties, once in each month, a bill of the amount of the indebtedness of each of !jaid workmen to her for such board and supplies." In consideration whereof, the second parties agreed "to pay the bills which shall be presented to them, as above provided, by first party, for board and supplies furnished by her to said workmen during the continuance of the said work, out of any moneys which may be. due from second parties to said workmen as wages for their work, within reasonable time after the presentation thereof, provided that there shall be sufficient sums due to said workmen, respectively, from second parties to pay their respective bills, and provided that saId workmen shall respectively consent that so much of their wages as shull be necessary for that purpose may be paid by second parties to first party, in payment of their respective bills for board and supplies." The complaint alleges that, pursuant to this contract, said Sica furnished board to the contractors' laborers, bread and other merchandise to the contractors, and loaned money to the contractors on account of the said contract with the government, for which payment has not been made; and suitable allegations of compliance with the terms of the contract between the said Sica and the contractors are made; and judgment therefor is demanded against the contractOl'S and their sureties. And to this complaint one of the sureties demurs. The learned counsel for the plaintiff insists that the "furnishing of board and necessaries to the men engaged in this government work constituted a supplying of labor, within the meaning of this s..tatute"; and that "it is literally true that the plaintiff supplied labor to the contractors, by assisting the contractors in paying for their labor in part"; and also that it was snpplying material; and the mgument is fortified by the decision in Lybrant v. Eberly, 36 Pa. St. 317, where the contractor agreed to pay his laborers, and also to board them, as part of the consideration, and the court stated that "the board of the hands appears to have been part of the compensat ion to be paid for the work and Jabor in the erection of a house, and, therefore, the cost of it is a proper item in the claim for a lien." The defendant's answer is that the agreement of the contractors was that they wonld be answerable for the board bills of their men, so far as they had wages therefor and the men consented to the withholding thereof and the payment of the same to the boardinghonse keeper; and cites McCormick v. Water Co., 40 Cal. 185, where it was decided that a person hired by a contractor to cook for the men engaged in a construction was not entitled to a lien on account of services rendered in that capacity. The bond and statute are 8imilar in their provisions, and it is quite unimportant whether the language of one or the other be taken for construction. In either case, the liability of the sureties will not be extended by implication, or be,Yond the fair meaning of the statute or bond. The statute required the bond as security for the performance of the work of construction, and to insure the payment for "labor and materials" supplied "in the prosecution of the work." To execute the work, materials were · needed. Such materials must be fashioned for placement in the struchue, conducted to such place, and deposited therein. This required
her, and furnish them such other supplies as they may need, and ren-
the United Sta:tes"requ£i-ed that 'ctlnstructionshould' be paid for by the contracfur&," all trouble froID liens, and affording security t01those work. The first questitJD is this: Is the board, inclined, which thecQritractors have agreed conditionally to payout or the men's, wageS:, labor or materials'u,pplied in the prosecution of the work? Sieag-ave food and necessariesW the men, to giv-e the men streIlgth,lU)d to labor; hence,the men worked., But this labor wli.snot the service rendereqby' Sica. But the argument proportion ceeds,:' ,(pThe men labored. (2fSica,ft,rnished board of their wages. '(3) Hence, she advanced an eqUivalent of money to pay the wages of the laborers. (4) Hence, she furnished labor. It is cOllsidered that the word "labor," 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, and the payment of the wages to tne men whose service witS directly 'employed in doing the work., the sureties had it blear conception of the limits of their liallilit1; " They were not see to it that money borrowed. to aid the prosecnfj()U ,of. the work ,should be reo paid ;"that ,persons whofhrnished stores, or' food or lodging to the workmen1 "under an agreement by the ',contractor to pay'for the same out of t4ewages due those benefited, should be paid. The contractor was 111lder nb such primary duty to the United, States. His duty as a contractor, Illld as regardsthesureties,wns to pay his laborers their wages, lU1d allow them to buy their ,board and clothing where they would, and also to pay, the persons supplying the ml;l.terial, and allow them to disburse their own money., The ,condition that the "contractors shall' promptly make' payments to all, persons supplying" them "labor and ,m.aterials in the prosecution of the work" means, at least as regards thf sureties, directly what it states; so that only he who has, title to the claim for the labor or material furnished, from the person furnishing HI could invoke the benefit of the statute. This summarizes the court's conception of the meaning of the statute. In the case at bar, Sica has contributed neither labor nor material, within the contemplation of the statute. The ne:xt ,tnquiry is this: Does Sica stand in the place of the workmen whom she boarded under the arrangement, so as to entitle her to sue the contractors and sureties for their wages? The con· tractors agreed to pay Sica the amount of the board, from moneys boarded by Sica, if the boarders consented. Hence, if due Sica boarded. A., a: workman, and he consented, so much of the money due A. as should be necessary to discharge A.'s board bill was payable to Sica. ,This arrangement, after A/s consent, gave Sica the right to recover from Mairs, & Lewis such sum. Let it be supposed that the contractors owed A. $50, and that there was due Sica $25 for A.'s board.,· Row, by the tripartite agreement, A. releases the .contractors from payment to A. Sica has no claim against A., and upon the payment Sica has no claim against the contractors. The agreement aJ;llounts to the supplying of A. with board, and the promise to accept, in payment, such wages as the contractors might owe elemel1ts 1ijf
be sustained. It may be thatafiIlaI. concluwitbout use the absent facts; J:iutiHs deemed better to forbear a decision untii'aII the facts shall be before the court, when the protection of the nights of the parties maybe more intelligentlyattenipted; and this is So, .although it be the duty. of the plaintiff to plead the facts essential to a just determination. Therefore, the question of the liability of the sureties for the payment of the money to Sica, with the solution of any pertinent technical questions relating thereto, is reserved until the precise situation may be known. and' meanwhile the demurrer is overruled. The defendant may, if sO advised, plead over within 20 days.
JEFFREY MFG. CO. v. CEKTRAL COAL & IRON CO.
(Circuit Court, D. Kentucky.
April 1, 1899.)
CONTRACT-DELAY IN PERFORMANOE-WAIVER.
Where plaintiff agreed to furnish certain machinery by a fixed time, but failed to perform his contract In time, and defendant did not cancel the contract, or release plaintiff from its obligation thereunder, or reject the machinery and material, when tendered, as coming too late, but accepted them and put them into use" the stipulation as to time was waived, and the obligation to pay'the agreed price was complete, subject to the right to recoup the damages, If any liability therefor had been incurred by plaintiff.
Plaintiff agreed to furnish certain machinery within 90 days from the approval of the contract; foundation and material therefor to be put in place, ready for machinery, by def.endant, the purchaser, but to be construcied under plans furnished by plaintiff, who was to furnish experts. to superintend the erection o,t the plant. Shortly after the execution of the contract, plaintiff demanded' a modification thereof so as to make the notes given for the price payable l:n gold. The delay consequent on this desired cbange resulted in fai,lure to perform the contract within the specified time. The plan for, the construction of the foundation was not supplied promptly by plaintiff, and defendant did not put in the foundations ready for the' apparatus until after the 00 da,ys had expired within which the contract was to be performed. Defendant alleged that Its failure to construct the foundations was the of the failure of to furnish the plans, and of plaintiff's announcement that it would' not perform the contract unless the alterations In the contract were made. Held, that as the, failure of defendant to furnish the foundations in due time was, to a certain extent, the fault of defendant, in that, if it had performed on Its part, the. damages alleged to have resulted to it from the delay would have been In part reduced, defendant will not be allowed the entire amount of dam;:tges which it claims to have SUffered by reason of the delay In the completion of the contract, but the amount of interest that it would have paid on the notes that it was to give for the purchase price, but which It failed to give, jJrom the time the, work was accepted until the time of bringing suit.
Barnett, Miller & Barnett andH. B. Arnold, for complainant. Humphrey & Davie, for defendant. On the 5th 'day of June, 1896, the complainant and defendant entered into a contract whereby the former was to furJiisht() the latterl f. o. b. cars. at Central City and Ren-