Fleischmann Const Co v. United States Forsberg, 50

• Decision Date: 01 March 1926
• Docket Number: No. 50,50
• Citation: 70 L.Ed. 624,46 S.Ct. 284,270 U.S. 349
• Parties: FLEISCHMANN CONST. CO. et al. v. UNITED STATES, to Use of FORSBERG et al
• Court: U.S. Supreme Court

270 U.S. 349

46 S.Ct. 284

70 L.Ed. 624

FLEISCHMANN CONST. CO. et al.

v UNITED STATES, to Use of FORSBERG et al.

No. 50.

Argued Oct. 15, 1925.

Decided March 1, 1926.

[Syllabus from pages 349-351 intentionally omitted] Messrs. Levi H. David, of Washington, D. C., and William F. Kimber, of New York City, for plaintiffs in error.

Mr. Bynum E. Hinton, of Washington, D. C., for defendants in error Forsberg and others.

Mr. David W. Kahn, of New York City, for defendants in error Wallace & Gale.

Messrs. Weissberger & Leichter, of New York City (Messrs. Milton Leichter and Isidor Weissberger, both of New York City, of counsel), for defendants in error Pierce, Butler & Pierce Mfg. Corporation, Structural Slate Co., and Beaton & Cadwell Mfg. Co.

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. 778.¹ 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,¹ provides that the usual penal bond required of any one entering into a contract with the United States for the construction of any 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' 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 section 649 of the Revised Statutes (Comp. St. § 1587), 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 com- pleted, 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 were 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 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 are open to review except those which arise upon the pleadings.

Section 700 of the Revised Statutes (Comp. St. s 1668)-re-enacting a like provision in the Act of March 3, 1865, c. 86²-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 section 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, 51, 19 L. Ed. 65; Dickinson v. Planters' Bank, 16 Wall. 250, 257, 21 L. Ed. 278; Raimond v. Terrebonne Parish, 10 S. Ct. 57, 132 U. S. 192, 194, 33 L. Ed. 309; British Mining Co. v. Baker Mining Co., 11 S. Ct. 523, 139 U. S. 222, 35 L. Ed. 147; York v. Washburn, 129 F. 564, 566, 64 C. C. A. 132; United States v. Stockyards Co., 167 F. 126, 127, 92 C. C. A. 578. 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 into the conclusions of law embodied therein, except in so far as the...