United States Fidelity & Guaranty Co. v. Jaeger Mfg. Co.

• Decision Date: 01 December 1924
• Docket Number: No. 6520.,6520.
• Citation: 1 F.2d 975
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. JAEGER MFG. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 975 (1924)

UNITED STATES FIDELITY & GUARANTY CO. v. JAEGER MFG. CO.

No. 6520.

Circuit Court of Appeals, Eighth Circuit.

September 25, 1924.

Rehearing Denied December 1, 1924.

Eugene S. Quinton, of Topeka, Kan., for plaintiff in error.

Ord Clingman, of Lawrence, Kan., for defendant in error.

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

KENYON, Circuit Judge.

This action was commenced by defendant in error in the district court of Douglas county, Kan., against Olson & Johnson Company, a corporation, Olson-Magee Company (the same corporation under a different name), and plaintiff in error, likewise a corporation, to recover for certain material furnished by defendant in error to Olson & Johnson Company and its successor, Olson-Magee Company (hereafter called the contractor); the same being used in the construction of or addition to a certain building at the Kansas State University, Lawrence, Kan. Plaintiff in error was surety on a bond executed by the contractor to secure the faithful performance of the contract for the construction of said building entered into by them with the state of Kansas. The material furnished by defendant in error to the said contractor amounted to $12,950. Defendant in error also claims that it furnished to said contractor additional material, which was used in the construction of said building extra to the contract between them, in the sum of $133.10. Judgment was asked for balance due in the sum of $6,132.09.

The case was removed upon petition of plaintiff in error from the district court of Douglas county, Kan., to the United States District Court for the District of Kansas. A motion was made to remand the case on the part of the defendant in error, but later withdrawn. The case was tried under a stipulation waiving a jury and providing for the trial of the cause to the court.

Plaintiff in error in its answer admitted it executed the statutory bond as required by the statute of Kansas in such cases made and provided. It claims that the cause of action was barred by the statute of limitations of the state of Kansas, for the reason that more than six months had elapsed after the completion of said public building before the commencement of the action. The court found the issues for defendant in error — that the building had not been completed by the contractor in accordance with its contract on December 2, 1918, as the plaintiff in error contended, and that the same was not completed more than six months prior to the date the action was instituted; hence that the same was not barred by any statute of limitations. The opinion filed March 2, 1923, directed judgment to be entered for defendant in error in the sum of $6,132.09. March 5, 1923, plaintiff in error requested of the court certain findings of fact, and on March 10, 1923, requested the court to find certain declarations of law. Both of these requests were made after the decision of the case by the court, and were by it denied.

Practically all legal questions raised in the brief and discussed arise out of the requests for declarations and conclusions of law. The requests both for fact findings and declarations of law being made after the decision of the court, were they timely, and are any questions raised thereby for the consideration of this court? The Kansas statutes regulate the procedure as to requests of the court to state its findings. Being a matter of procedure, no federal question being involved, this court under the Conformity Act (Comp. St. § 1537) will follow, as nearly as it can, the procedure the Supreme Court of Kansas has determined as proper under the statute of that state. Georgia Ry. & Power Co. v. Decatur, 262 U. S. 432, 43 S. Ct. 613, 67 L. Ed. 1065; Colorado Power Co. v. Halderman (D. C.) 295 F. 178; Pacific American Fisheries v. Hoof (C. C. A.) 291 F. 306; Amy v. Watertown, 130 U. S. 301, 9 S. Ct. 530, 32 L. Ed. 946; C. M. & St. P. v. Metalstaff et al., 101 F. 769, 41 C. C. A. 669.

The Kansas courts have passed on this statute, and have held that requests for special findings must be made before the court announces its decision; that it is too late to make them after a general finding. Smythe v. Parsons, 37 Kan. 79, 14 P. 444; Wilcox v. Byington, 36 Kan. 212, 12 P. 826; Allen v. Dodson, 39 Kan. 220, 17 P. 667. In Wilcox v. Byington, supra, the court said: "Clearly the request should be made before the final decision of the court." In Allen v. Dodson the court said: "But that request must be made at such a time and at such a stage of the proceedings as to give the court a fair opportunity to comply with it." It is apparent that under the holdings of the Kansas court the requests of the trial court to state its findings of fact and declarations of law were too late, and this court will not consider questions raised solely thereby.

A jury being waived, the court was agreed upon as the trier of fact as well as of law. It found that the building was not completed six months prior to the time of the commencement of the action. There was evidence to support such finding. Hence that stands as an established fact. The legal question arising therefrom under the record is whether the legal conclusion of the court on such finding of fact was erroneous. Certainly if the building was not completed prior to six months before the commencement of the action, the court's conclusion, that the statute of limitations of the state of Kansas did not apply, was correct. The court also found that the materials contracted for from defendant in error were furnished as per the terms of the contract; also that certain extras of the value of $133.10 were furnished and received by the contractor, and that of the purchase price of these materials there remained unpaid to the defendant in error, under the terms of the contract, the sum of $6,132.09, with interest from July 17, 1919. And the court says this fact "seems to be...