City Trust, Safe Deposit & Surety Co. of Philadelphia v. United States

• Decision Date: 22 May 1906
• Docket Number: 220.
• Citation: 147 F. 155
• Parties: CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA v. UNITED STATES, to Use of BRYANT et al.
• Court: U.S. Court of Appeals — Second Circuit

147 F. 155

CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA v. UNITED STATES, to Use of BRYANT et al.

No. 220.

United States Court of Appeals, Second Circuit.

May 22, 1906

W. R Conklin, for plaintiff in error.

H. A Heyn, for defendants in error.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts).

1. The defendant trust company contends that the complaint should have been dismissed on the ground that coal is not a material supplied and used in the performance of the work, within the meaning of the act of 1894. Very many authorities are cited but it will not be necessary to refer particularly to any except such as deal with the federal statute. As was pointed out in American Surety Company v. Laurenceville Cement Co. (C.C.) 110 F. 717, the ordinary mechanic's lien statutes of the different states are not all expressed in the same language, and few, if any, of them in as broad terms as is the act of 1894. A common form of expression in these mechanic's lien statutes is:

'Whoever performs labor or furnishes materials in erecting, altering, or repairing a house, building, or appurtenances.'

The federal statute provides security to 'all persons supplying (the government contractor) labor and materials in the prosecution of the work provided for in such contract. ' We concur with Judge Putnam in the conclusion (expressed in 110 F. 719) that:

'The act of Congress and the bond given under it are susceptible of a more liberal construction than the lien statutes referred to and they should receive it.'

See, to the same effect, U.S. v. National Surety Co., 92 F. 549, 34 C.C.A. 526.

But no especially liberal construction is required to bring the materials supplied in this case within the protection of the act. The labor expended by men in wheeling barrows of material from the point of receipt to the place where it is to be used; in working hand pumps to clear an excavation of water; in turning the cranks of a hoisting derrick, so as to raise materials to a proper elevation-- all such labor is so manifestly labor in the prosecution of the work that no one could have the hardihood to contend that it is not within the express terms of the statute. If the contractor, whether for purposes of economy or of expedition, elects to do this work by the power of steam, instead of the power of human muscles, it is difficult to understand how it can be logically contended that such power is not supplied in the prosecution of the work, or that the cost of the coal which produces it should not be equally within the protection of the same statute.

There is nothing in the decisions interpreting the act of 1894 which requires the disallowance of such a claim as this. In U.S., for the Use of Sica, v. Kimpland (C.C.) 93 F. 403, Sica had furnished board and lodging to laborers employed on the work. It was held that this was not within the statute. 'The contractor's duty,' says the court, 'as a contractor, and as regards the sureties, was to pay his laborers their wages, and allow them to buy their board and clothing where they would.'

In U.S. v. Hyatt, 92 F. 442, 34, C.C.A. 445, the court disallowed the claim of a railroad for freight on materials which it transported to the contractor from a point distant 120 miles from the work, saying:

'The labor which Congress intended to protect is evidently labor used directly upon the public work, claims for which would be made by the laborers primarily against the work, thus impeding, possibly, the prosecution of the work and hampering the government officers. Congress could not have intended to include in the term 'labor,' as used in this act, the freight charges of a railroad on materials carried by it. The railroad is abundantly protected by its lien on freight, and Congress did not contemplate that a charge for transportation by a railroad would be made against the work, and certainly not when the carrier was fully secured otherwise.'

In American Surety Co. v. Laurenceville Cement Co. (C.C.) 110 F. 717, the court approved of a general discrimination 'between labor and materials consumed in the work or in connection therewith, and labor and materials made use of in furnishing the so-called contractor's plant, and available not only for this, but for other work'; and it allowed for trucking from the regular steamboat landing on the island where the work was done to the precise locality of the work, and also for sundry small repairs to the plant, but disallowed the cost of fitting out a steam launch, and the construction of dump cars, conveyors, etc., which became part of the plant and survived the work.

In U.S. v. Fidelity & Deposit Co., 86 A.D. 475, 83 N.Y.S. 752, the court disallowed the cost ($1,800 per month) of a steam lighter, with crew, coal, and all supplies, chartered to transport lumber and materials from Newport, Fall River, and Providence to three different localities where the contractor was erecting buildings for the government.

In Standard Oil Co. v. Trust Co., 21 App.D.C. 369, the court disallowed a claim for lubricating oils used in the operation of a dredge. The only ground stated for the conclusion is:

'If the dredge or tools or material of a contractor are not materials in the sense used in the statute, then, for as strong a reason at least, the oil used for their preservation cannot be so considered.'

The facts are not quite fully stated. If the oil was really used for the preservation of the machinery, we would fully concur; but, if it was in fact wholly consumed in doing the work which had been contracted for, we do not find this authority persuasive. In that event it would be materials used solely in the actual prosecution of that particular work, and not merely intended to keep a plant, available elsewhere, in good repair.

In U.S. v. City Trust, 23 App.D.C. 153, the same court disallowed a claim for coal furnished for the operation of a dredging machine, upon the authority of the case in 21 App.D.C. 369, saying:

'Both (the oil and the coal) are equally necessary for the operation of the machine, and equally outside of the operation of the statute. Neither one is used or consumed in the performance of the work in the sense of the law.'

As above explained we think that the coal is as much used and consumed prosecution of the work as would be the labor of men who might be hired to raise the dredge scoops by turning a hand crank, and do not find this opinion persuasive to a different conclusion.

Several cases have been cited by defendant in error, which are referred to generally as the 'powder cases.' It seems unnecessary to quote from them, since they are all under different statutes from the one...