Burton v. Frank A. Seifert Plastic Relief Co

• Decision Date: 11 June 1908
• Citation: 108 Va. 338,61 S.E. 933
• Parties: BURTON et al. v. FRANK A. SEIFERT PLASTIC RELIEF CO.
• Court: Virginia Supreme Court

108 Va. 338

61 S.E. 933

BURTON et al.

v.FRANK A. SEIFERT PLASTIC RELIEF CO.

Supreme Court of Appeals of Virginia.

June 11, 1908.

1. Principal and Surety—Remedy of Creditor—Nature of Action on Bond—Pleading.

An action by a subcontractor against building contractors and their surety on a bond binding them to pay for labor and material used, to recover a balance due under the subcontract, must be regarded as a suit on the bond, and not on the subcontract, though the subcontract was filed in the clerk's office when the declaration was filed, where it was no part of the pleadings, and the declaration made every allegation necessary for a suit on the bond.

2. Pleading—Demurrer—Question of Fact.

In an action by a subcontractor against building contractors and their surety, on a bond binding them to pay for labor and material used, to recover a balance due under the subcontract, whether the subcontractor had complied with the subcontract was a matter of fact, which could not be questioned on demurrer to the declaration.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 535.]

3. Courts — Conflicting Jurisdiction — State and United States Courts—Statutes—Repeal—Retroactive Effect.

Under Rev. St. U. S. 1878, § 13 (U. S. Comp. St. 1901, p. 6), providing that the repeal of a statute shall not release any liability incurred under it, in the absence of express provision to that effect, and that the statute shall remain effective to sustain any proper action to enforce such liability, a subcontractor having sued in a state circuit court government building contractors and their surety on a bond given under Act Cong. Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523) binding them to pay for all labor and material used for a balance due under the subcontract, the subsequent enactment of Act Feb. 14, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1907, p. 709), limiting jurisdiction of such actions to the federal circuit courts, did not oust the state court's jurisdiction; that act not disclosing an intent to affect existing actions.

4. Statutes—Retroactive Operation.

There is a presumption against retroactive legislation, and words in a statute will not be construed as having a retroactive effect unless they clearly have no other effect, and the legislative intent cannot otherwise be satisfied.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, § 344.]

5. Appeal and Error—Reversal—Formal Defects—Depositions—Use in Evidence-Objections—Defective Certificate.

It was not reversible error to admit depositions to be read, though they were not properly certified, a mere matter of form which could have been corrected had the objection been made in due time; there being no objection to the legality of the evidence contained in the depositions.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4540-4545.]

6. Same — Harmless Error — Admission of Evidence—Letter Press Copies—Preliminary Proof.

It was not prejudicial error to admit letter press copies of letters because proper notice to produce the originals had not been given, where, when called upon to produce the originals after objecting to the copies, the party holding them refused to do so, complaining that the notice was too short; it being reasonably inferable that the originals were then in court, or that they could have been readily produced.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4153-4160.]

7. Evidence—Best and Secondary—Notice to Produce.

The question of reasonable notice to produce original letters, to make letter press copies admissible, is a relative one, and, in the absence of statutory requirement, depends upon the circumstances of each case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 646-656.]

8. Customs and Usages — Building Contracts—Question for Jury.

In an action to recover a balance due from contractors to subcontractors on the subcontract, the questions whether there was a custom requiring contractors to leave their scaffolds for the use of subcontractors, and whether the parties expressly or impliedly contracted respecting the custom, etc., held, under the evidence, for the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Customs and Usages, § 47.]

9. Appeal and Error—Review—Parties Entitled to Allege Error—Estoppel.

Defendants may not complain of the admission of evidence on a given subject, where they offered evidence on it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3597.]

10. Same — Insufficient Presentation of Objection—Admission of Testimony.

An exception to a question asked a witness and the answer will not be reviewed, where the exception does not bring the evidence preceding the question to the attention of the court, but leaves the court to examine the whole of the preceding evidence to determine whether the question and answer were proper.

11. Evidence — Official Documents—Government Reports.

A government building inspector's report, made in the line of his duty, when verified, is to be regarded as an official public document, admissible in evidence under proper circumstances.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 1247.]

12. Principal and Surety — Remedies of Creditor—Action on Bond of Building Contractor—Evidence.

On an issue in an action by a subcontractor against government building contractors and their surety to recover a balance due on the subcontract, whether the subcontractor failed to make good a guaranty that plaster would remain in good condition until a specified time, the subcontractor could show by a government building inspector's report that the contractors failed to use proper paint, as required by their contract; thus preventing the subcontractor from fulfilling its guaranty.

13. Contracts — Building Contracts—Performance — Defects—Repairs—Liability of Subcontractor.

If a subcontractor on a government building performed his contract, and the work was accepted by the government and paid for by the contractors and subsequent repairs required were not caused by the subcontractor, but by the contractors' failure to perform their contract, the subcontractor is not liable to the contractors for any part of the cost of such repairs.

14. Trial — Instructions — Requests—Matters Covered by Instructions Given.

Instructions given having clearly and fairly submitted to the jury the determination of the facts the evidence tended to prove, objections to the refusal of further instructions will not be considered.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

15. United States — Contracts — Government Buildings — Contractors' Bonds — Effect.

Act Cong. Aug. 13, 1894. c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 25231. as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1907, p. 709), requiring a government building contractor to give a bond to pay all persons supplying labor and materials, makes the surety liable to a subcontractor for the subcontractor's profits, the act not restricting liability to the value of labor and materials furnished.

16. Appeal and Error—Review—Verdict— Conclusiveness.

Findings of a jury, upon full evidence and correct instructions, and approved by the trial judge, will not be disturbed on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.]

Error to Circuit Court of City of Richmond.

Action by the United States of America, for the benefit of the Frank A. Seifert Plastic Relief Company, against W. O. Burton and others. Judgment for plaintiff, and defendants bring error. Affirmed.

The following are the instructions given in the court below:

"No. 1. The jury are instructed that the contract price to be paid by defendants to plaintiff, including extra work not disputed, is $53,964, and that this work is admitted to have been done except a part of the railing. The value of this rail (which the jury will ascertain from the evidence), together with the undisputed credits, $48,772.74, must be deducted from said sum of $53,9G4, and the balance so found is the amount due the plaintiff May 19, 1904, less any other credits which may have been proven by the defendants, and to which they may be entitled under the instructions of the court. But the burden is on the defendant to prove by a preponderance of the evidence any credit claimed which is not admitted by the plaintiff, and a similar burden is upon the plaintiff to prove any item of its claim not admitted by the defendants.

"No. 2. The jury are instructed that if they believe from the evidence that the plaintiff performed and executed, in accordance with the specifications, both as to materials and workmanship, the work it contracted for, that said work was accepted by the United States government, and paid for to the defendants W. O. & C. G. Burton, and that the subsequent repairs required by said government upon the said work was not occasioned or caused by any improper materials furnished by the plaintiff, or by any defective execution on its part of the said work, but was occasioned by the failure of W. O. & C. G. Burton to cover with tin certain of the projections on the buildings to be constructed more than 10 inches in width, provided the jury believe the superintendent did not upon submission direct that said projections should not be covered with tin, but should be plastered, and that in so directing the superintendent acted honestly and intelligently, provided the decision was made in writing, or if made orally that the requirement to be in writing was waived, or by the failure to use weatherproof paint, not sufficiently durable to last until the expiration of two months after the close of the St. Louis Exposition, or by an improper application of the paint used, or by any of such acts or failures jointly—then the plaintiff is not to be charged with any cost or expense to...