1. A bill of exceptions is not valid as to any matter that was
not excepted to at the trial, and cannot incorporate into the
record
nunc pro tunc, as of the time when an exception
should have been taken, one which in fact was not then taken. P.
270 U. S.
356.
2. In a law case tried by the district court without a jury
(Rev.Stats. §§ 649, 700) where there are no special findings of
fact and no exceptions to rulings of law taken during the trial and
preserved by bill of exceptions, questions relating to matters of
fact or conclusions of law embodied in the general finding are not
reviewable. P.
270 U. S.
355.
Page 270 U. S. 350
3. But preliminary rulings on the pleadings made by the district
court under its general authority, before the issues are submitted
under the statutory stipulation, are reviewable as in ordinary
cases, independently of the statute. P.
270 U. S.
357.
4. Under the Materialmen's Act, if suit on a contractor's bond
be not brought by the United States "within six months from the
completion and final settlement" of the contract, suit by any
person who supplied labor or materials, etc., may be brought in the
name of the United States, "within one year after the performance
and final settlement of the contract," but not later.
Held
that allegations in the use plaintiff's declaration and in
intervening petitions that the contract was "completed and final
settlement had" on a date specified, more than six months, but
within a year, before institution of the suit, were not mere
conclusions of law, but allegations of fact. P.
270 U. S.
358.
5 Amendments in such a suit which do not set up a new cause of
action, but merely supplement the defective statement of previously
existing rights, relate back, and may be filed after expiration of
the year following final settlement. So
held where the
amendments brought in a supplementary contract amending, but not
otherwise affecting, the original construction contract. P.
270 U. S.
359.
6. The strict letter of an Act must yield to its evident spirit
and purpose when this is necessary to effectuate the intent, and
unjust or absurd consequences are to be avoided if possible. P.
270 U. S.
359.
7. The Materialmen's Act provides that, where suit is instituted
by a creditor or creditors, only one action shall be brought, which
must be within one year from " performance and final settlement" of
the contract, and any creditor may file his claim and be made a
party within one year from the completion of the "work" under the
contract, and not later.
Held, in view of the remedial
purpose of the Act and the liberal construction called for, that
intervening claimants, like original plaintiffs, have one year from
final settlement. P.
270 U. S.
360.
8. Amendments
held germane to causes of action
originally alleged. P.
270 U. S.
362.
9. A judgment of the district court may validly be entered at a
term following that in which the case was heard and taken under
advisement. P.
270 U. S. 363.
298 F. 330 affirmed.
Error to a judgment of the circuit court of appeals which
affirmed a judgment of the district court (298
Page 270 U. S. 351
F. 320) recovered by the plaintiffs and intervening claimants,
in a suit against a contractor and surety, under the federal
Materialmen's Act.
MR. JUSTICE SANFORD 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. [
Footnote 1] 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, 298 F. 320, which was affirmed by
the circuit court of appeals, 298 F. 330. This writ of error was
allowed in March, 1924. A motion was interposed to dismiss the writ
of error upon the ground that the record presents no question
properly reviewable by this Court, or to affirm the judgment; the
consideration of which was postponed to the hearing on the
merits.
The Materialmen's Act, as amended, provides that the usual penal
bond required of any one entering into a contract with the United
States for the construction of any
Page 270 U. S. 352
public work, shall contain an additional obligation for the
payment by the contractor of all persons supplying labor and
materials in the prosecution of the work. Any such person not thus
paid may intervene in any action instituted by the United States on
the bond and obtain judgment
pro rata with other
intervenors, subject to the priority of the claim of the United
States. If no suit is brought by the United States "within six
months from the completion and final settlement" of the contract,
any such person shall have a right of action upon the bond, and
may, "within one year after the performance and final settlement"
of the contract, but not later, commence suit against the
contractor and his sureties, in the name of the United States, for
his use and benefit, in the federal court of the district in which
the contract was performed, and prosecute the same to final
judgment and execution. Where suit
"is so instituted by a creditor or by creditors, only one action
shall be brought, and any creditor may file his claim in such
action and be made party thereto within one year from the
completion of the work under said contract, and not later."
If the recovery on the bond is inadequate to pay the amounts due
to all of the creditors, judgment shall be given to each
pro
rata.
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 upon 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"
Page 270 U. S. 353
the filing of the suit. The intervening petitions, which were
filed between June 15 and September 24, 1921, contained
substantially the same general averments as the declaration, and
alleged further that they were filed "before the expiration of one
year after the completion" of the contract. In December, 1921, the
plaintiff, by leave of court, amended the declaration so as to
allege that the original contract had been amended by a
supplemental contract in May, 1919, and the defendants had
thereafter executed an additional bond, and that the contract as
amended "was completed and final settlement had" on September 25,
1920. The intervening petitions were likewise amended so as to
incorporate substantially these same averments, and allege further
that the petitions were filed "before the expiration of one year
after the completion of said original contract as amended."
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 was 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 completed,
Page 270 U. S. 354
since the intervenors had filed their petitions within one year
after the final settlement; that the actions were not barred
because the amendments setting up the supplemental contract were
made more than a year after the final settlement, the original and
supplemental contracts being one and the same, and the amendments
relating back to the bringing of the original suit and the filing
of the original petition, and that the claims of the plaintiff and
the intervenors were severally established. No special findings of
fact had been requested, and none was made.
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 court 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 for the various
exceptions then, for the first time, noted by the defendants "to
the rulings, finding 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 same 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
Page 270 U. S. 355
question whether there was anything before it because of the
want of due exceptions, it preferred to rest the affirmance of the
judgment on the merits, as it thought the district court was
clearly right on all the points decided.
1. The assignment of error 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 is open to review except those which
arise upon the pleadings.
Section 700 of the Revised Statutes -- reenacting a like
provision in the Act of March 3, 1865, c. 86 [
Footnote 2] -- provides that, when an issue of
fact in a civil cause is tried and determined by the court without
the intervention of a 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, 7 Wall. 44,
74 U. S. 51;
Dickinson v. Planters'
Bank, 16 Wall. 250,
83 U. S. 257;
Raimond v. Terrebonne Parish, 132 U.
S. 192,
132 U. S. 194;
British Mining Co. v. Baker Mining Co., 139 U.
S. 222;
York v. Washburn, 129 F. 564, 566;
United States v. Stockyards Co., 167 F. 126, 127. And it
is settled by repeated decisions that, in the absence of special
findings, the general finding of the court is conclusive upon all
matters of fact, and prevents any inquiry
Page 270 U. S. 356
into the conclusions of law embodied therein, except insofar as
the rulings during the progress of the trial were excepted to and
duly preserved by bill of exceptions, as required by the statute.
Norris v.
Jackson, 9 Wall. 125,
76 U. S. 128;
Miller v. Insurance
Co., 12 Wall. 285,
79 U. S. 300;
Dickinson v. Planters' Bank, supra, 83 U. S. 257;
Insurance Co. v.
Folson, 18 Wall. 237,
85 U. S. 248;
Cooper v.
Omohundro, 19 Wall. 65,
86 U. S. 69;
Insurance Co. v.
Sea, 21 Wall. 158,
88 U. S. 161;
Martinton v. Fairbanks, 112 U. S. 670,
112 U. S. 673;
Boardman v. Toffey, 117 U. S. 271,
117 U. S. 272;
British Mining Co. v. Baker Mining Co., supra,
139 U. S. 222;
Lehnen v. Dickson, 148 U. S. 71,
148 U. S. 73;
St. Louis v. Telegraph Co., 166 U.
S. 388,
166 U. S. 390;
Vicksburg Ry. v. Anderson-Tully Co., 256 U.
S. 408,
256 U. S. 415;
Law v. United States, 266 U. S. 494,
266 U. S. 496;
Humphreys v. Third National Bank, 75 F. 852, 855;
United States v. Stockyards Co., supra, 127. To obtain a
review by an appellate court of the conclusions of law, a party
must either obtain from the trial court special findings which
raise the legal propositions or present the propositions of law to
the court and obtain a ruling on them.
Norris v. Jackson,
supra, 76 U. S. 129;
Martinton v. Fairbanks, supra, 112 U. S. 673.
That is, as was said in
Humphreys v. Third National Bank,
supra, 855,
"he should request special findings of fact by the court, framed
like a special verdict of a jury, and then reserve his exceptions
to those special findings, if he deems them not to be sustained by
any evidence, and if he wishes to except to the conclusions of law
drawn by the court from the facts found he should have them
separately stated and excepted to. In this way, and in this way
only, is it possible for him to review completely the action of the
court below upon the merits."
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
Page 270 U. S. 357
exceptions to the rulings on matters of law were taken during
the progress of the trial or duly preserved by a bill of
exceptions. The defendants offered no exceptions to the rulings of
the court until after the writ of error had issued, transferring
jurisdiction of the case to the court of appeals. And the recitals
in the subsequent "bills of exceptions" that the exceptions, then
for the first time presented, were to be taken as made before the
entry of the judgment, are nugatory. A bill of exceptions is not
valid as to any matter which was not excepted to at the trial.
Walton v. United
States, 9 Wheat. 651,
22 U. S. 657;
Insurance Co. v. Boon, 95 U. S. 117,
95 U. S. 127.
And it cannot incorporate into the record,
nunc pro tunc
as of the time when an exception should have been taken, one which
in fact was not then taken.
Walton v. United States,
supra, 22 U. S. 658;
Turner v.
Yates, 16 How. 14,
57 U. S. 29.
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, 76 U. S. 128;
Martinton v. Fairbanks, supra, 112 U. S. 673;
Lehnen v. Dickson, supra, 148 U. S. 72;
St. Louis v. Telegraph Co., supra, 166 U. S. 390;
Vicksburg Railway v. Anderson-Tully Co., supra,
256 U. S. 415.
And see 62 U. S.
Boyreau, 21 How. 223,
62 U. S. 226;
Bond v. Dustin, 112 U.
S. 604,
112 U. S. 606;
Erkel v. United States, 169 F. 623, 624, and
Ladd Bank
v. Hicks Co., 218 F. 310, 311, as to the questions which are
open to review where the case is heard by the judge by consent, but
without the jurisdictional stipulation.
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.
Page 270 U. S. 358
2. This brings us to the consideration of the questions arising
on the pleadings as to which errors are assigned. We may assume for
present purposes, without deciding, that the defendants did not
waive their demurrers by pleading over to the merits after they had
been overruled.
Compare, however, 75 U.
S. Martin, 8 Wall. 354,
75 U. S. 357;
Stanton v. Embrey, 93 U. S. 548,
93 U. S. 553;
Teal v. Walker, 111 U. S. 242,
111 U. S. 246;
Bauserman v. Blunt, 147 U. S. 647,
147 U. S. 652;
Nalle v. Oyster, 230 U. S. 165,
230 U. S. 174;
Denver v. Home Savings Bank, 236 U.
S. 101,
236 U. S. 104;
Harper v. Cunningham, 8 App.D.C. 430, 434.
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 averments 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
Page 270 U. S. 359
determined against the defendants by the general finding of the
court.
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 allegations 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, 233 U.
S. 157,
233 U. S. 164;
Illinois Surety Co. v. Peeler, 240 U.
S. 214,
240 U. S.
222.
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
Page 270 U. S. 360
accrued when the claims were filed. It is urged that, while the
Act permits the original suit to be brought "within one year after
the performance and final settlement" of the contract, it requires
intervening creditors to file their claims in such action "within
one year from the completion of the work" under the contract. It is
obvious that, if this latter provision is to be taken literally,
the time allowed intervening creditors in which to file their
claims would expire earlier than the time allowed for bringing the
original suit, since such suit might be instituted within one year
after the final settlement, but other creditors could only
intervene within one year after the completion of the work, a
period necessarily terminating within less than a year after the
final settlement.
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,
143 U. S. 457,
143 U. S. 459;
Ozawa v. United States, 260 U. S. 178,
260 U. S. 194.
And unjust or absurd consequences are, if possible, to be avoided.
Lau Ow Bew v. United States, 144 U. S.
47,
144 U. S. 59;
Hawaii v. Mankichi, 190 U. S. 197,
190 U. S.
213.
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., 235 U. S. 327,
235 U. S. 337;
Illinois Surety Co. v. Davis, 244 U.
S. 376,
244 U. S. 380.
In resolving the ambiguities in its provisions, the court must
endeavor to give coherence to them in order to accomplish the
intention of Congress, and adapt them to fulfill its whole purpose.
Bryant Co. v. Steam Fitting Co., supra, 235 U. S.
337-338. In this case, it was further stated, as the
premise on which the court rested
Page 270 U. S. 361
the solution of the particular ambiguity there involved, that
the Act "imposes a limitation of time on all claimants, . . .
beginning to run from the same event" -- that is, the performance
and final settlement of the contract -- and that, just as the
creditor who institutes the original suit has one year from the
final settlement in which to commence the action, other creditors
must file their claims "within the same limit of time." A like
construction of the Act was also adopted in
Pederson v United
States, 253 F. 622, 626, and
London Indemnity Co. v.
Smoot, 287 F. 952, 956. And this we now confirm.
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,
233 U. S. 163;
Miller v. Bonding Co., 257 U. S. 304,
257 U. S. 307.
And if a suit is then instituted by a creditor or creditors, "only
one action shall be brought," and all shall file their claims in
that suit. If, therefore, the provision limiting the right of other
creditors to file their claims to twelve months after the
completion of the work is to be taken literally, the result would
be that where for any reason the final settlement of the contract
between the United States and the contractor is delayed until more
than six months after the completion of the work, as may frequently
happen, the only creditors who could recover on the contractor's
bond would be those who should succeed in first commencing a suit
after the expiration of the six months from the final settlement,
since, more than a year having then elapsed after the completion of
the work, other creditors would be debarred from any recovery
whatever, either in the suit thus brought or in any independent
action. In such case, the bond would be appropriated solely to the
payment of the debts due the creditors who instituted the suit,
and, to
Page 270 U. S. 362
the extent of any surplus, the contractor and his surety would
be entirely released from liability.
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
within one 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.
3. 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, 240 U. S.
222.
4. It is also contended that the judgment of the district court
is void for the reason that it is recited in one of
Page 270 U. S. 363
the "bills of exceptions" and in a memorandum subsequently filed
by the district judge, that the case was heard and taken under
advisement in April, while the opinion was filed and the judgment
entered in August, that is, after the commencement of a new term of
court. There was no exception to the judgment on this ground, and
no assignment of error in reference to this matter. And even if the
statements thus made by the district judge after the writ of error
had issued could be looked to for the purpose of contradicting a
specific recital in the judgment that it was entered on the same
day on which the case was heard and argued, the contention is in
conflict with the long established practice and immemorial usage of
the federal courts in this respect, and entirely wanting in
merit.
The judgment of the circuit court of appeals is
Affirmed.
[
Footnote 1]
33 Stat. 811. This is set forth in the margin of
Texas
Cement Co. v. McCord, 233 U. S. 157,
233 U. S. 161,
note 1.
[
Footnote 2]
13 Stat. 500, 501.