United States v. Conkling

• Decision Date: 19 January 1905
• Docket Number: 102.
• Parties: UNITED STATES, for Use of ROCKLAND LAKE TRAP ROCK CO., v. CONKLING et al.
• Court: U.S. Court of Appeals — Second Circuit

135 F. 508

UNITED STATES, for Use of ROCKLAND LAKE TRAP ROCK CO., v. CONKLING et al.

No. 102.

United States Court of Appeals, Second Circuit.

January 19, 1905

John F Foley, for plaintiff in error.

James R. Soley, for defendants in error.

TOWNSEND Circuit Judge.

In May 1899, defendant John P. Conkling entered into a contract with the United States to purchase and remove the stone owned by the United States, stored on the south side of the cut through Dyckman's Meadows, near Spuyten Duyvil and the Harlem river. The contract provided as follows:

'The contractor for the removal of the stone must furnish all appliances and labor necessary to handle and transport it, and must dispose of it in accordance with law. All debris or material which may be mixed with the rock must also be removed. * * *

'The stone will be measured by cubic contents on scows, or other vehicles of transportation on which it may have been placed, and for this purpose it must be compactly piled in such a manner as to facilitate the measurement.

'Measurements will be taken at the place where the stone is stored, by an authorized agent of this office.'

Defendant Conkling, as principal, and defendant the Fidelity & Deposit Company of Maryland, as surety, executed the required bond that defendant Conkling would duly perform the covenants in said contract and 'shall promptly make full payments to all persons supplying him with labor and materials in the prosecution of the work provided for in said contract.'

The relator chartered to Conkling certain scows, to be paid for in monthly payments at a per diem rate, and sought to recover on said bond for their use, on the ground that they were labor and materials supplied in the prosecution of said work. The statute relating to such bonds provides, inter alia, as follows:

'That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work or for repairs upon any public building or public work shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract, and * * * said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit, in the name of the United States for his or their use and benefit against said contractor and sureties and to prosecute the same to final judgment and execution. ' Rev. St. Sec. 3747 (U.S.Comp.St. 1901, p. 2523).

The court below expressed the opinion that these scows and their use were not 'labor.' The evidence shows the correctness of this conclusion.

Jacob E. Conkling, he secretary of the relator, testified as follows:

'We employed the captains of these vessels that we chartered to Conkling, and we paid them. They were simply custodians of the scows-- keepers of the scows. * * * The master is custodian of the scow. He keeps the scow, looks after her, keeps her pumped out, and does such other work around the scow as to protect her and take care of her, and attends to her lines. He has nothing whatever to do with the loading or unloading.'

United States v. Kimpland (C.C.) 93 F. 403.

The question presented is as to the legal construction of the words 'labor or materials,' as used in said statute. Counsel for the relator relies upon the decision in American Company v. Lawrenceville Cement Co. (C.C.) 110 F. 717, as 'a controlling authority.' Counsel for defendants rely on the decision in United States ex rel. James McAllister v. Fidelity & Deposit Company of Maryland, 86 A.D. 475, 83 N.Y.Supp. 752, in which, they say, 'the facts are identical with the facts in the present case.' The cases of American Surety Co. v. Lawrenceville Cement Co., supra, and of United States v. Morgan (C.C.) 111 F. 474, involved claims arising out of the same transaction, and based on the same bond. There one Morgan, as principal, and the American Surety Company, as surety, executed a bond under said statute for the performance of a contract by Morgan to do work and supply materials for gun emplacements at Great Diamond Island, Portland Harbor, Me. In the course of said work the plaintiff, the Loughlin Company, paid the expenses for transporting beams, bolts, and washers, to be used in the work contracted for, from Portland to Diamond Island, and this charge was allowed; but the charges of plaintiff for expense in fitting out and equipping a steam launch, expressly constructed for transporting material to the place where the work was to be done to be used in said work, were disallowed, as were also expenses incurred in constructing cars, ships, tubs, and conveyors used in the prosecution of said contract, 'in making the excavations, * * * and conveying the materials excavated. ' Charges for furnishing tools and appliances used in the prosecution of the work, and for the construction of a track upon which cars were run to transport the earth and rock excavated preparatory to the building of the fortification, and afterwards used for conveying concrete to said building, were disallowed. This decision was rendered by Judge Webb. United States v. Morgan, supra.

In the American Surety Company Case, supra, Judge Putnam allowed other contractors' claims for repairs to the plant, and for trucking from the steamboat landing on the island to the precise locality of the work. Claims 'for water-borne transportation of materials used in the work, such as coal and timber, to the island where the work was done,' were rejected by the master; and the rejection was approved and affirmed, on the ground that the court could not determine from the record on which side of the line they fell, in reference to the rule stated by the court in its opinion. There the court, referring to the report of the master as to the claims, said as follows:

'Also we think the master was too strict with reference to some minor claims for transportation. Clearly, he was right in his illustrative suggestion which led up to his conclusion with reference to claims for trucking and water carriage. As stated by him, the carrier ordinarily has a lien for his freight, which is a sufficient protection to him. Therefore, in cases of transportation by a carrier from distant points, or, indeed, from another port than the port at which the contractor's work is being done, the carrier would not ordinarily be protected by the statutory bond, for two reasons: First, transportation for considerable distances in the regular course, by the ordinary lines of either steam, sail, or rail, cannot easily be brought within the words of the statute, 'supplying labor or materials'; and, second, inasmuch as carriage of that character, especially under an ordinary bill of lading, or its equivalent, creates a well-recognized lien for freight, the equitable rule would apply, that a carrier, under such circumstances, cannot give up his cargo, and enforce his claim against a mere surety, after he has so placed himself that the surety cannot be subrogated to the security which the law gave. The first objection, however, does not necessarily apply to truckmen who are moving materials from

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