Lambert Lumber Co. v. Jones Engineering & Construction Co.

• Decision Date: 02 February 1931
• Docket Number: No. 8875.,8875.
• Parties: LAMBERT LUMBER CO. v. JONES ENGINEERING & CONSTRUCTION CO., Inc., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.2d 74 (1931)

LAMBERT LUMBER CO. v. JONES ENGINEERING & CONSTRUCTION CO., Inc., et al.^*

No. 8875.

Circuit Court of Appeals, Eighth Circuit.

February 2, 1931.

Harris L. Moore, of Kansas City, Mo. (John W. Moore and W. C. Michaels, both of Kansas City, Mo., on the brief), for appellant.

David A. Murphy, of Kansas City, Mo. (John T. Harding and R. Carter Tucker, both of Kansas City, Mo., on the brief), for appellees.

Before KENYON and GARDNER, Circuit Judges, and MUNGER, District Judge.

KENYON, Circuit Judge.

Appellant furnished material to the Jones Engineering & Construction Company to be used in the performance of a contract for the construction of a government hospital at Excelsior Springs, Mo. It sought on March 15, 1926, to intervene in an action brought by another contractor under section 270, title 40, chapter 3, USCA, against the Jones Engineering & Construction Company and the sureties on its bond.

A jury was waived in writing. The trial court held that the intervention was not in time, as it was attempted over a year after the work was performed and final settlement made between the government and the contractor, and dismissed intervener's petition.

Findings of fact were made by the court, i. e., that the bond contemplated under section 270 (40 USCA) was duly given; that intervener furnished the materials to the contractor, as claimed, and is entitled to recover, if its intervention was in time; that an original contract and a supplemental contract had been entered into; that suit was originally filed upon the bond by another company, which was dismissed but afterwards reinstated to permit intervention; that the work undertaken by the contractor was completed more than one year before intervention; that material had been furnished by intervener both for the original contract and the supplemental contract; but that it was unnecessary to separate the liability of the several sureties. We quote certain of the findings:

"5. The contract in question specifically provided that:

"`The work * * * shall be done under the jurisdiction and control of the Chief of the Bureau of Yards and Docks, Navy Department, or such representative as he may designate.'

"Relative to payment under the contract, it was provided that the contractor `shall be paid, * * * upon vouchers prepared and certified by the Bureau of Yards and Docks, Navy Department, and approved by the Director, U. S. Veterans' Bureau.'

"7. In the matter of final settlement the evidence showed and the Court finds that on February 20, 1925, the Government procured a release from the contractor which contained the following recitals:

"`Whereas, by provisions of the contract dated September 20, 1923, by and between Jones Engineering and Construction Company, Inc., a corporation of the State of Nebraska, party of the first part, and the United States, a party of the second part, for the construction of a ward and subsistence building, at the U. S. Veterans' Hospital, Excelsior Springs, Missouri, it is contemplated that final settlement therefor shall not be made until the party of the first part shall have executed and delivered a final release of all claims or demands growing out of the contract; and

"`Whereas all the conditions, covenants and provisions of the said contract as modified have been performed and fulfilled by and on the part of the party of the first part;

"`Now, therefore, in consideration of the premises and of the sum of ten thousand nine hundred seventy-five and 39/100 ($10975.39) dollars, lawful money of the United States, being the full and entire sum due upon the completion of the work, as aforesaid, to the said party of the first part in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, the said party of the first part does hereby remise, release, and forever discharge the said party of the second part of and from any and all manner of actions, suits, debts, dues, sums and sums of money, accounts, reckonings, bonds, bills, covenants, controversies, agreements, promises, claims, and demands whatsoever in law or in equity that the said party of the first part has or may have for or on account of or in connection with the contract aforesaid, as modified by Changes A and B and Supplemental Agreement.'"

"8. This release was the culmination of correspondence between the proper department of the Government and the contractor. Under the contract, the work should have been completed on or before September 3, 1924. It was actually completed September 20, 1924. Because of this delay of seventeen days the Government deducted for liquidated damages $50.00 a day or a total of $850.00 from the contract price. After such deduction was made a balance of $10,975.39 was determined. A voucher for said sum was approved by each and every department interested in the construction, as provided by the contract, on the day the release was executed, to-wit, February 20, 1925, save the approval of L. E. Gregory, Chief of the Bureau of Yards and Docks, was noted upon the voucher as of March 2, 1925."

"10. After this was done, the voucher was sent to the general accounting office of the Government, accompanied by the following letter:

"United States Veterans' Bureau Claim Reference to General Accounting Office Treasury Division. _____ 19__

"Examined in the sum of $10,975.39 and respectfully referred to the General Accounting Office for examination, settlement and approve for payment in the amount found due to Jones Engineering & Construction Co., Inc., c/o Chief, Bureau Yds. & Docks, Navy Dept. Washington, D. C. from the appropriations stated below:

"`Hospital Facilities & Services, Veterans' Bureau'

"Letter dated May 22, 1924, extended the contract time 23 calendar days because of abnormal weather conditions. In view of recent suspensions, because time extensions were given for similar reasons, the voucher is forwarded for direct settlement.

"Frank T. Hines, Director."

"11. On April 2, 1925, the Comptroller General of the general accounting office certified that he had `examined and settled the claim of Jones Engineering and Construction Company for final payment.'

"If the settlement was made on April 2, 1925, as certified by the Comptroller General of the general accounting office, then the intervener is entitled to recover because its claim was filed by its intervention on March 15, 1926, which was less than one year after final settlement. If the final settlement was made on March 2, 1925, the date on which the voucher in final settlement was approved by the departmental representatives mentioned in the contract, then intervener is not entitled to recover because its intervention was more than one year after final settlement."

"12. The Court finds that final settlement occurred prior to March 15, 1925, and that the intervention herein was filed more than one year after the date of final settlement and that therefore intervener cannot recover."

The trial court filed an opinion pointing out that the only question was the time of final settlement, and stated that the litigants were in agreement that "a `final settlement' is when the government finally determines according to administrative methods what amount it is willing to pay to the contractor." It relied on Illinois Surety Co. v. Peeler, 240 U. S. 214, 36 S. Ct. 321, 324, 60 L. Ed. 609, in its holding that "`the appropriate administrative determination with respect to the amount due' was committed to the Bureau of Yards and Docks, Navy Department and the Director of the U. S. Veterans' Bureau." It took the position that the Comptroller General was not in a position to ascertain the amount actually due under the contract, and that it was not "a part of his administrative function."

Two reasons seem to be controlling in the court's decision: First, that there was no authority in the General Accounting Office, represented by the Comptroller General, to make a final settlement within the meaning of section 270, title 40 USCA; and, second, that the appropriate administrative determination as to the amount due was in the Bureau of Yards and Docks of the Navy Department and the Director of the Veterans' Bureau.

Section 270, title 40, USCA, reads substantially the same as the Act of February 24, 1905, c. 778, 33 Stat. 811, which amends the Act of August 13, 1894, c. 280, 28 Stat. 278, the only change being the substitution of the words "District Court" in section 270 for Circuit Court, as appeared in the Act of February 24, 1905. Section 270 contains this proviso:

"Provided, That where suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later."

There is no controversy on the proposition that a complete performance of the contract had taken place more than a year before intervention was sought, so that question is eliminated from the case.

The only question here is, When was final settlement made as that term is used in said section? If made prior to March 15, 1925, then the intervention is barred. If made on April 2, 1925, as claimed by appellant, then the intervention is not barred.

At the threshold of the case, we are met with a question raised by appellees that, in view of a jury being waived in writing, the finding of the trial court "that final settlement occurred prior to March 15, 1925 and that the intervention herein was filed more than one year after the date of final settlement and that therefore intervener cannot recover," is a finding of fact, that of necessity it supports the judgment, no evidence being before this court, and hence that there is nothing for this court to determine.

The procedure of waiver of jury in writing is under section 773 and section 875 of 28 USCA. Section 773...