Salyers v. United States

• Citation: 257 F. 255
• Decision Date: 19 February 1919
• Docket Number: 5038.
• Parties: SALYERS et al. v. UNITED STATES, for Use of INDIANA QUARRIES CO. et al. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

257 F. 255

SALYERS et al. v. UNITED STATES, for Use of INDIANA QUARRIES CO. et al. ^[1]

No. 5038.

United States Court of Appeals, Eighth Circuit.

February 19, 1919

J. R Files, of Ft. Dodge, Iowa (Mitchell & Files, of Ft. Dodge Iowa, on the brief), for plaintiffs in error.

D. M Kelleher, of Ft. Dodge, Iowa (Henry M. Hagan, of Chicago Ill., and B. J. price and Clarence M. Hanson, both of Ft. Dodge, Iowa, on the brief), for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

BOOTH District Judge.

Action at law by the United States of America against Isaac N. Salyers and National Surety Company, commenced May 19, 1913, for the use of Indiana Quarries Company, under Act of Congress of August 13, 1894 (28 Stat. 278, c. 280), as amended by Act of February 24, 1905 (33 Stat. 811, c. 778 (Comp. St. Sec. 6923)), requiring bonds by contractors on public buildings for the payment of labor and material. (The Quarries Company will hereafter be referred to as plaintiff.)

After the action had been commenced on behalf of the plaintiff, several parties intervened, alleging the furnishing of labor and material. By written stipulation of the parties the action was tried, in June, 1917, to the court without a jury, and resulted in judgments in favor of the plaintiff and the interveners; claim of plaintiff being reduced, however, by certain counterclaims by defendant Salyers, the contractor.

By the present writ of error it is sought to reverse the judgment in favor of plaintiff. Specifications of error relied upon are as follows:

First. Error in permitting the plaintiff to amend its petition in November, 1916, and in receiving evidence under said amendment.

The building for which the material was furnished was completed May 21, 1912, and, as stated, the action was commenced May 19, 1913, which was within the year provided by the statute. In its original petition plaintiff alleged that it had furnished certain stone to the contractors which had been used and not paid for; the value of the stone furnished was alleged to be $5,000, and the amount demanded was also $5,000. By the first amendment to the petition, filed June 20, 1916, plaintiff alleged that it had furnished to the contractor stone amounting to $3,495.71, and that there was a balance due thereon of $1,736.59, for which amount judgment was demanded.

The second amendment (being the one of November, 1916, and the one complained of) separated the claim of the plaintiff into two parts, or counts. In one count it was alleged that stone had been furnished by Perry-Mathews-Buskirk Stone Co. (hereinafter called the Perry Company) in the amount of $3,718.73, and that the claim of the Perry Company had been assigned to the plaintiff in November, 1910. In the second count it was alleged that stone was furnished to the contractor by the plaintiff in the amount of $606.62; and it was further alleged that there was due and owing upon both of said counts the sum of $1,736.59. Motion was made on behalf of the defendants to strike out the amendment of November, 1916, on the ground that it introduced a new cause of action. No ruling seems to have been preserved upon this motion. At the close of all the evidence, however, defendants moved to strike from the record and exclude from consideration that portion of plaintiff's claim based on assignment from the Perry Company, on the ground that said assignment, set up in said amendment, introduced a new cause of action, and that at the time of the filing of said amendment (November, 1916) the year for filing claims as fixed by the federal statute had expired, and that the filing of said amendment could not relate back to the filing of the original petition.

The method adopted by defendant in preserving its rights was appropriate. The filing of the amendment did not cut off the defense. Railway v. Wyler, 158 U.S. 285, 295, 15 Sup.Ct. 877, 39 L.Ed. 983.

The contention of the plaintiff is that the amendment of November, 1916, did not set up a new cause of action, but simply restated in two counts the cause of action originally set up; one of the counts being on behalf of the plaintiff as original furnisher of material, and the other on behalf of the plaintiff as assignee of the claim of the Perry Company.

The bond required by the statute above cited performs a double function: First, to secure to the government a faithful performance on the part of the contractor; secondly, to protect persons from whom the contractor obtains labor and materials. U.S. v. Nat. Surety Co., 92 F. 549, 34 C.C.A. 526; U.S. v. Rundle, 100 F. 400, 40 C.C.A. 450. And the statute is to be liberally construed to effect the purposes within its scope. Ill. Surety Co. v. John Davis Co., 244 U.S. 376, 37 Sup.Ct. 614, 61 L.Ed. 1206; U.S. v. Lowrance, 252 F. 122, . . . C.C.A. . . . .

But, while the statute creates a new cause of action, it does so upon the terms named in the statute.

'The right of action given to creditors is specifically conditioned upon the fact that no suit shall be brought by the United States within the six months named, for it is only in that event that the creditors shall have a right of action and may bring a suit in the manner provided. The statute thus creates a new liability and gives a special remedy for it, and upon well-settled principles the limitations upon such liability become a part of the right conferred and compliance with them is made essential to the assertion and benefit of the liability itself. ' Texas Cement Co. v. McCord, 233 U.S. 157, 162, 34 Sup.Ct. 550, 552, 58 L.Ed. 893.

Among the limitations in the statute is that of 12 months for bringing suit or filing claims. Texas Cement Co. v. McCord, 233 U.S. 157, 34 Sup.Ct. 550, 58 L.Ed. 893; Ill. Surety Co. v. Peeler, 240 U.S. 214, 36 Sup.Ct. 321, 60 L.Ed. 609; U.S. v. Boomer, 183 F. 726; Baker Contract Co. v. U.S., 204 F. 390, 122 C.C.A. 560; Eberhart v. U.S., 204 F. 884, 123 C.C.A. 180. The claims of the various persons furnishing labor or material are assignable. Title Co. v. Crane Co., 219 U.S. 24, 31 Sup.Ct. 140, 55 L.Ed. 72; U.S. v. Rundle, 100 F. 400, 40 C.C.A. 450; Title Co. v. Puget Sound Works, 163 F. 168, 89 C.C.A. 618. And each claim is separate and represents a distinct cause of action. Title Co. v. Crane Co., 219 U.S. 24, 35, 31 Sup.Ct. 140, 55 L.Ed. 72; Ill. Co. v. Peeler, 240 U.S. 214, 225, 36 Sup.Ct. 321, 60 L.Ed. 609.

The two claims of the plaintiff and of the Perry Company being originally distinct and representing distinct causes of action, it remains to be considered whether by the amendment to plaintiff's petition of November, 1916, a new cause of action was introduced into the petition, or whether the cause of action represented by the Perry Company claim was already included in said petition. It has been noted that the amount demanded in the original petition was $5,000, and in the first amendment to the petition this amount was changed to $1,736.59, and that the amendment of November, 1916, retained this latter amount. The last amendment to the petition, therefore, did not change the amount demanded; but this is not determinative.

The tests to determine whether two causes of action are identical are fully stated in Whalen v. Gordon, 95 F. 305, 313, 37 C.C.A. 70, 79. Among those tests are:

'Will the same evidence support both? And will a judgment against one bar the other?'

Applying the first test to the instant case, it is plain that to support the cause of action stated in the original petition and in the petition as first amended, in addition to the formal proof of the giving of the bond and the completion of the contract and settlement thereunder, evidence was necessary (1) that the stone supplied had been furnished to the defendant; (2) that it had been furnished by the plaintiff; (3) that it had not been paid for. To support the cause of action set up by the amendment of November, 1916, in addition to the formal proof mentioned, evidence was necessary: (1) That the stone supplied had been furnished to defendant; (2) that it had been furnished by the Perry Company; (3) that it had not been paid for; (4) that the Perry Company had assigned its claim to the plaintiff prior to the expiration of one year from the completion of the contract and 'settlement'; (5) that plaintiff was still the owner of the claim. Ill. Surety Co. v. Peeler, 240 U.S. 214, 225, 36 Sup.Ct. 321, 60 L.Ed. 609. It is clear, therefore, that evidence was needed to support the cause of action set up in the amendment different from and in addition to what was needed to support the cause of action set up either in the original petition or in the original petition as first amended. The first test above mentioned has therefore not been met. Applying the second test: If plaintiff had gone to trial upon the original petition, or upon the original petition as first amended, and had obtained judgment in whatsoever amount it could have shown itself entitled by reason of itself furnishing stone to the contractor, it is plain that such judgment would not have been a bar to a recovery by plaintiff for other stone furnished by the Perry Company, the claim for which had been assigned to plaintiff; and the reverse is also clearly true, that the recovery on the latter claim would have been no bar to recovery on the former. The second test was therefore, not met.

Furthermore the amendment of November, 1916, was not a mere amplification or expansion of what was stated in the original petition, and therefore within the scope of the decisions. Railway v. Wulf, 226 U.S. 570, 576, 33 Sup.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134; Seaboard Air Line v. Renn, 241 U.S. 290, 36 Sup.Ct. 567, 60 L.Ed. 1006; Friederichsen v. Renard, 247 U.S. 207, 38 Sup.Ct. 450, ...