U.S. v. U.S. Fid. & Guar. Co.

• Decision Date: 11 February 1910
• Citation: 83 Vt. 278,75 A. 280
• Court: Vermont Supreme Court
• Parties: UNITED STATES, for Use of ELI AS LYMAN COAL CO. v. UNITED STATES FIDELITY & GUARANTY CO.

75 A. 280

83 Vt. 278

UNITED STATES, for Use of ELI AS LYMAN COAL CO.

v. UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Vermont. Chittenden.

Feb. 11, 1910.

Exceptions from Chittenden County Court; Wm. H. Taylor, Judge.

Action by the United States, for the use of Elias Lyman Coal Company, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant excepts. Affirmed.

See, also, 82 Vt. 94, 71 Atl. 1106.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Powell & Powell, for plaintiff.

E. M. Horton and J. E. Cushman, for defendant.

WATSON, J. At the close of the evidence the defendant moved for a verdict on the grounds: (1) That the coal, which the evidence tends to show was furnished, is not "material," within the meaning of the United States statute (Act Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523]), the bond, contract, or specification; and (2) that there is no competent evidence tending to show that any part or all of the coal was used for the purpose of heating any of the buildings named in the specifications attached to the principal contract. To the overruling of the motion defendant excepted. By agreement of counsel the issue was then withdrawn from the jury and submitted to the court, by which there was a finding of facts.

When this case was here before (82 Vt 94, 71 Atl. 1106), it was held that whatever "materials" are fairly within the express or implied terms of the contract are within the scope of the bond, and that the "materials" are to be ascertained from the contract, including the specifications, which are made a part thereof, construed, like any other contract, in view of the work to be performed and in the light of the circumstances surrounding the transaction. The principal contract, in which plans and specifications of the buildings to be erected are referred to and made a part thereof, was admitted in evidence, as were also the specifications of the two barracks and of the bachelor officers' quarters. These specifications stipulate that the contractor shall provide stoves and fuel in cold or wet weather for heating the buildings while his work is going forward and until it is dry, and all material and work are to be properly protected from the weather. The specifications of the two stables to be erected were separate from the specifications of the other buildings, and were not Introduced in evidence.

One question was whether the coal furnished by the use plaintiff was all used to heat the barracks and the bachelor officers' quarters. A witness called by the plaintiff testified that it was used "to heat the buildings," whereupon counsel for defendant objected, stating that there seemed to be no necessity for any evidence outside of the contract and specifications. The court said the question of fact put in issue is whether the coal in question was used for the purpose specified in the specifications, and if no question is made concerning it that will eliminate the evidence. In answer to this, counsel for defendant said: "We make no question but that the coal was used to heat the buildings covered by these specifications." The plaintiff afterwards being allowed to put in evidence on the same question, the defendant's counsel undertook to withdraw this concession, but made no claim that it...