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we must not overlook the manifest purpose, to include coal furnished for running the of the statute to require that labor and ma- steam shovel or locomotive. The judgment terial actually contributed to the construc- was for the defendants. In effect the same tion of public buildings shall be paid for, construction was given in United States v. and to provide security to that end; also, Kimpland (C. C.) 93 Fed. 403; United States that the language used in that obligation, v. Morgan (C. C.) 111 Fed. 474; Thomas read in the light of the statute, looks to the Laughlin Co. v. American Surety Co. of protection of those who supply the labor or New York, 114 Fed. 627, 51 C. C. A. 247. materials provided for in the contract. United States, for Use of Hill, v. American Security Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 L. Ed. 437.

Article 11 of the contract is indicative of the intention of the parties thereto in this respect. It reads: "That all materials and workmanship shall be subject during the entire progress of the construction to the inspection and acceptance or rejection of the officer in charge or his agent, and any material or work not accepted shall be replaced by the said E. H. Denniston Co., at their own expense; the rejected materials to be immediately removed from the premises." Does not this article strongly show that the word "materials" as used in the contract has reference to such materials only as are within the purview of that instrument? what purpose would such a provision respecting other materials be there made?

For

In City of Philadelphia v. Malone, 214 Pa. 90, 63 Atl. 539, Malone & Co. entered into a contract with the plaintiff city to excavate and construct certain reservoirs. The agreement required the contractors to furnish all the materials and perform all the labor necessary in constructing the reservoirs in strict and exact accordance with the proposal and specifications attached to and made a part thereof. A bond was given by the contractors as required by a city ordinance. The use plaintiff furnished coal to a subcontractor excavating one of the reservoirs, which coal was used for generating steam to run the steam shovel and the locomotive used in excavating and removing dirt in constructing the reservoir. The bond on which the suit was brought, taken for the protection of the city and for the security of parties from whom the contractor or his subcontractor might obtain labor and materials, was conditioned that the contractors "shall and will promptly pay * * all sums of money which may be due for labor and materials furnished and supplied, or performed in and about said work." The question was whether coal was "material" within the meaning of the bond in suit and the ordinance. It was held that both the labor and materials which the contractors obligated themselves to furnish were specifically set out and named in the proposal and specifications attached to and made a part of their contract; that in determining the question the test was, the materials or labor must be such as the contract covers; and that an inspection of the proposal and specification

The case of American Surety Co. v. Lawrenceville Cement Co. (C. C.) 110 Fed. 717, relied upon by the plaintiff as sustaining its contention here, seems to have given a similar bond a broader construction. There the governing distinction was made between labor and materials consumed in the work or in connection therewith, and labor and materials made use of in furnishing the so-called contractor's plant, and available not only for the work there done, but for other work also. The court, a single judge, seems to have construed the covenant in the bond, which was for the benefit of materialmen, without regard to what materials the contractor was under obligation with the government to furnish, and without taking into consideration the covenant securing to the government the performance of the principal contract. The case of Zipp v. Fidelity & Deposit Co., 73 App. Div. 20, 76 N. Y. Supp. 386, is much relied upon by the plaintiff. There the contractor entered into an agreement with the city of Buffalo wherein he agreed to construct a retaining wall across Evans Slip in that city. The security bond was conditioned for the performance of the labor and the furnishing of "all the material necessary to fully complete the work or improvement" in the contract contemplated, and for the payment "for all material used and services rendered in the execution of such contract." During the progress of the work two boilers and engines were used in excavating the rocks, stones, and earth, and for pumping the water from the slip. The plaintiff furnished to the contractor the coal used as fuel in the boilers to create power. It was contended that the claim for this coal was not within the strict terms of the contract. The court said the defendant's bond contemplated the performance of the contract by the contractor, and whatever fairly came within the compass of that work was also within the scope of the bond; that the generation of power was essential in the performance of the contract, and that, "when the defendant became responsible for the payment of 'all material used and services rendered in the execution of such contract,' it might have expected that fuel was to be consumed in the undertaking"; that the materials used need not be a permanent constituent of the structure itself, but must be necessarily incident to the execution of the agreement, to come within the purview of the bond, and the coal consumed in carrying on the work was of that character.

Furniture Co., v. Henningsen, 40 Wash. 87, | terials" are fairly within the express or im82 Pac. 171, the principal contract was for plied terms of the contract are within the the construction, equipment, and furnishing scope of the bond, and any one supplying of a certain lighthouse and two keepers' resi- them in the prosecution of the work provided dences. The specifications attached to the for in the contract, and not receiving pay contract and made a part thereof expressly therefor, is entitled to the benefit of the required the contractors to furnish certain bond. It cannot be said that any more liberfurniture for the residences. The bond exe- al rule of construction was contemplated by cuted was conditioned that the contractors the parties, and none should be given. should fully perform the contract, "and During the trial of the case at bar the promptly make payments to all persons sup- plaintiff offered in evidence certified copies plying them with labor and materials in of the bond, of the contract, and of the specithe prosecution of the work therein pro- fications referred to in the contract. The vided for." The contractors, in the per- court without objection admitted the copies formance of the contract, purchased of the of the bond and of the contract, but excluduse plaintiff certain furniture called for ined the copies of the specifications. It does the specifications, a part of the purchase not appear from the record that any excepprice of which remained unpaid. It was tion was taken to this exclusion, yet the contended that the furniture so purchased specifications were a part of the contract was not "material" within the meaning of so material to the case that without them the statute. It was held that the law should the record contains nothing whereby it can be liberally construed, and that all persons be determined whether the coal furnished by furnishing any materials in the prosecution the use plaintiff and used as before stated of the work provided for were protected by was or was not "material" within the purthe bond, even though the materials did not view of the bond and of the statute under enter into or become a part of any permanent which the bond was given. It follows that structure; and that a recovery could be had without showing more the evidence objected for the furniture sold to the contractors. in to was improperly admitted; that the depursuance of the terms and stipulations of fendant's motion for a verdict should have the principal contract. been granted; and that to direct a verdict for the plaintiff was error.

The statute under which the bond in question was given was amended by an act approved February 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1907, p. 709). Though enacted subsequently to the execution of the bond in question, the later act sheds light on the proper construction of the earlier law; for in respect to the persons entitled to the benefit of such a bond the later act effected no material change. United States, for Use of Hill, v. American Surety Co., cited above. The amendatory act describes the persons who shall have the right by intervention to the benefit of the bond as "any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made." The great similarity of the language used in the provision of the contract obligating the contractors to furnish materials is noticeable "shall furnish * materials

By the terms of the contract the work of the contractor was to be completed on or before the 1st day of December, 1903. The coal in question was largely furnished by the use plaintiff subsequent to that date, and from time to time up to and including January 28, 1904. No written extension of time in which the contractor might perform was shown, and the parol evidence bearing on the question of an extension other than in writing was conflicting. The court refused to submit that question to the jury, to which defendant excepted. This exception was well taken. The burden of showing that an extension of time was granted by the government was with the plaintiff, and, the parol evidence being conflicting, it was a question of fact for the jury.

Judgment reversed, and cause remanded.

(82 Vt. 103)

UNITED STATES v. UNITED STATES FIDELITY & GUARANTY CO. (Supreme Court of Vermont. Chittenden. Feb. 27, 1909.)

1. UNITED STATES (8 67*)-CONTRACTS-LIABILITY OF SURETY "MATERIAL.

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necessary for the construction of the following buildings," etc. And, in view of the fact that the same words are used in the statement of the contract in the condition of the bond, we apprehend that the language later used therein, "materials in the prosecution of the work provided for in said contract," can have no broader signification. In either A person contracting with the United States government to furnish materials for the conexpression the "materials" are to be as-struction of buildings according to plans and certained from the contract, including the specifications executed a bond, required by statspecifications, construed like any other con- ute, binding himself to pay persons furnishing tract, in view of the work to be performed for in the contract. The contract provided that him labor and materials for the work provided and in the light of the circumstances sur- all materials should be subject to inspection of rounding the transaction. Whatever "ma- the officer in charge. Held that, to be within

the scope of the bond as "material" furnished, the construction of the bachelor officers' lumber must have been fairly within the express quarters and the two barracks were admitor implied terms of the principal contract, including the specifications, and must have been ted in evidence without objection, and are beused in the prosecution of the work provided for fore us as a part of the exceptions. in that contract, and no recovery could be had on the bond for defective lumber rejected by the inspector and not used in the prosecution of the work.

[Ed. Note.-For other cases, see United States, Dec. Dig. § 67.*

For other definitions, see Words and Phrases, vol. 5, pp. 4409-4413.]

2. UNITED STATES (§ 67*)-CONTRACTS - LIABILITY OF SURETY.

For lumber of an inferior quality at first condemned, but later used with the inspector's consent, either in its original condition or by being remilled, the liability of the surety under the bond would be the reasonable value thereof, not exceeding the contract price, with the right, under the express provisions of P. S. & 2689, to have the benefit of any defense which might be available to its principal in an action brought against it on the same obligation.

[Ed. Note. For other cases, see United States, Dec. Dig. $ 67.*]

Exceptions from Chittenden County Court;

George M. Powers, Judge.

Action by the United States of America, for use of J. G. Strait & Son, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before ROWELL, C. J., and TY

LER, MUNSON, and WATSON, JJ.

Max L. Powell and Rufus E. Brown, for plaintiff. E. M. Horton and J. E. Cushman, for defendant.

WATSON, J. This case was before this court on the pleadings, and is reported in 80 Vt. 84, 66 Atl. 809. The action is brought upon the same bond as was that of United States, for the Use and Benefit of Elias Lyman Coal Co. v. United States Fidelity & Guaranty Co., 71 Atl. 1106.

Upon the trial it was stipulated that the declaration should be treated as covering everything which could be properly declared upon and recovered in this action by virtue of the federal statute, under which the bond was given, and that in turn the defendant might avail itself of any further defense thereto, as if formal pleas had been filed. All other and further pleadings were waived by both parties.

J. G. Strait & Son, the use plaintiffs, seek to recover the balance due for flooring furnished by them to the E. H. Denniston Company, the contractor, the lumber having been delivered to that company at Ft. Ethan Allen, in this state, while the company was constructing the buildings named in the principal contract with the government, for the performance of which the bond was given. Certified copies of the bond, of the principal contract, and of such parts of the specifications referred to in the contract and made a part thereof as relate to upper flooring for

Subject to exception, the plaintiff introduced evidence tending to show that the flooring in question was shipped by the use plaintiffs to Ft. Ethan Allen, that it was accepted by the contractor, and that the latter agreed to pay therefor. The uncontradicted evidence of the defendant tended to show that it was not such flooring as was required by the contract between the government and the contractor; that a large part of it was defective on account of being warped, cracked at the ends, improperly milled and matched, and not being straight grain, rift sawed, and heart faced, and on account of having sap stains, sap streaks, resin and pitch pockets in its face; that very little, if any, of said flooring would meet the requirements of the specifications forming a part of that conin Burlington in order to overcome improptract; that 39,226 feet thereof were remilled

width of each board was reduced from 21⁄2 er milling and matching, and in so doing the inches to 24 inches; that the mill charge for remilling was $2.50 per thousand feet, and the transportation of the flooring from

Ft. Ethan Allen to Burlington for that purpose and back again was $2 per thousand feet; that some of the flooring furnished by the use plaintiffs was condemned by the United States inspector, but later the contractor was allowed by the inspector to select therefrom the best of it and lay the part thus selected in the floors, and some that was condemned was afterwards remilled and used in laying the floors. It was conceded that the contractor at an expense of $241.61 bought elsewhere 5,369 feet of pine flooring to take the place of some of the flooring purchased of the use plaintiffs which had been rejected. And the evidence tended to show that the contractor sold to one Dumas between four and five thousand feet of the rejected flooring. The uncontradicted evidence further tended to show that in order to use the portion of flooring purchased of the use plaintiffs and laid in the officers' quarters and barracks, before the same was remilled, much labor was required to scrape the boards contiguous thereto, by reason of improper milling, so that the flooring would have an even surface; that the government inspector condemned the first flooring laid, covering an area of less than 100 square feet, and caused the same to be torn up and removed on account of the defective condition of at least 50 per cent. of the boards laid therein; that the condition of the flooring rendered the same defective according to the specifications mentioned in the principal contract, and only about two-fifteenths of the entire flooring furnished by the use plaintiffs would meet the requirements of the specifica

tions. The defendant claimed that in order to entitle the plaintiff to recover it must show that the flooring furnished by the use plaintiffs complied with the requirements of the government's specifications. The court ruled that all the plaintiff needed to show was that the lumber in question was furnished to the contractor for the work at Ft. Ethan Allen; that whether or not it strictly complied with the requirements of the specifications is not at the use plaintiffs' risk; and that the question of whether or not the lumber furnished conformed to the requirements of the specifications under the government contract is immaterial. To which holdings defendant excepted.

This exception was well taken. The specifications provide: "Upper floors of first and second stories to be laid at completion of other inside work of % inch T. and G. clear-heart face, straight grain, quarter saw; long leaf yellow pine, from the Gulf states, showing 21⁄2 inch space, thoroughly kiln dried, tightly strained, and blind nailed at joists, and planed off and scraped at finish. Butt joints of floor to be cut over joists only. A three inch mitered border to be placed around half projecting 3/16 of an inch above the floor." Further: "The contractor shall give his personal superintendence to the work, or have a competent foreman, satisfactory to the officer in charge, on the job at all times, to act for him, and shall furnish all materials, labor, etc., necessary to complete the work according to the true intent and meaning of the drawings and these specifications, of which intent and meaning the officer in charge shall be the interpreter. No local terms or

classifications will be considered in the interpretation of these specifications." And, by the principal contract, all materials and workmanship shall be subject during the entire progress of the construction of the buildings to the inspection and acceptance or rejection of the officer in charge, or his agent, and any material or work not so accepted shall be replaced by the contractor at its

own expense.

The liability of the defendant does not depend wholly upon the fact that the lumber was furnished to the contractor for the work at Ft. Ethan Allen, that he accepted it, and agreed to pay for it. To be within the scope of the bond as "material" furnished, the lumber must have been fairly within the express or implied terms of the principal contract, including the specifications, and must have been used in the prosecution of the work provided for in that contract. United States, for the Use and Benefit of Elias Lyman Coal Co. v. United States FidelCity & Guaranty Co., 71 Atl. 1106, mentioned above. Consequently no recovery can be had for the defective lumber rejected by the gov ernment inspector and not used in the prosecution of the work. This, however, does not

include that at first condemned but later selected and used by his consent either as it was or by being remilled. In either case the flooring used, being of an inferior quality and but a portion of that shipped by the use plaintiffs to the contractor, the liability of the defendant therefor under the provisions of the bond is measured, not by the contract price, but by the reasonable value thereof, not exceeding the contract price, with the further right by statute in the defendant as surety to have the benefit of any defense which might be available to its principal in an action brought against it on the same obligation. P. S. 2689; Flagg v. Locke, 74 Vt. 320, 52 Atl. 424.

Judgment reversed, and cause remanded.

(82 Vt. 132)

BATCH ELDER v. WHITE'S ADM'R. (Supreme Court of Vermont. Windham. March 5, 1909.)

1. EXECUTORS AND ADMINISTRATORS (§ 235*) -ALLOWANCE OF CLAIMS-"CLAIMS"-"DEMANDS.'

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commissioners to receive and adjust claims and P. S. 2814, provides for the appointment of demands of persons against decedent. Section 2820 gives the court power to limit time for presenting claims. Section 2824 provides that one who fails to exhibit his claim shall be barred from recovering such demand. Held, that the words "claim" and "demand" as so used mean the same thing.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 837-840; Dec. Dig. § 235.*

vol. 2, pp. 1202-1211; vol. 8, p. 7604; vol. 2, For other definitions, see Words and Phrases, pp. 1973-1974; vol. 8, p. 7633.]

2. EXECUTORS AND ADMINISTRATORS (§ 228*) -ALLOWANCE OF CLAIMS-METHOD OF PRESENTATION "PRESENT"-"EXHIBIT."

The words "present," as used in P. S. 2820, and "exhibit," as used in section 2824, as indicating how a creditor of the estate is to get his claim before the commissioners for allowance, are synonymous, the statute requiring no particular formalities to constitute a sufficient presentation of the claim.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 822; Dec. Dig. § 228.*

For other definitions, see Words and Phrases, vol. 3, pp. 2583-2584; vol. 6, pp. 5528-5529; vol. 8, p. 7761.]

3. EXECUTORS AND ADMINISTRATORS (§ 228*)— ALLOWANCE OF CLAIMS SUFFICIENCY OF PRESENTATION.

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A person holding a note of a decedent, acting through a relative living at the late residence of decedent, sent to the commissioners of the estate a statement of the note, which was received by them during the life of their commission, to the effect that the amount due on a note of decedent in favor of the creditor was as shown therein, followed by a statement of the amount of the note, amount of a payment thereon, and the interest due. Held, that the note was sufficiently

presented.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 822; Dec. Dig. § 228.*]

4. EXECUTORS AND ADMINISTRATORS (§ 235*)- | cessful application for relief to the probate
ALLOWANCE OF CLAIMS-FAILURE TO RE- court before he brought this bill.
PORT ON CLAIM PRESENTED RIGHT OF
CREDITOR TO RELIEF.

Where commissioners of an estate failed to allow or disallow a claim duly presented, and omitted to mention it in their report, and the creditor, without legal fault, did not discover the failure until his statutory remedies had expired, he could have relief in equity.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Lig. § 235.*] 5. EXECUTORS AND ADMINISTRATORS (8 235*) · CONCLUSIVENESS PROBATE JUDGMENT DISALLOWING CLAIM AS BAR TO EQUITABLE RELIEF.

The fact that the creditor first made an unsuccessful application to the probate court would not bar his suit in equity.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 235.*]

Appeal in Chancery, Windham County; Seneca Haselton, Chancellor.

Bill by Newton M. Batchelder against Alvin H. White's administrator. Decree of dismissal, and orator appeals. Reversed and remanded, with mandate that decree pass for orator.

Under our statute, commissioners have jurisdiction to adjust "claims" and "demands." P. S. 2814. these terms mean the same thing, for P. S. It is apparent that 2820, speaks only of "claims," and P. S. 2824, provides that one who fails to exhibit his "claim" shall be barred from recovering "such demand." The "claim" here involved was the thing demanded; the "thing demanded" was the debt represented and evidenced by the note. So the claim was properly represented before the commissioners by the statement above recited.

P. S. 2820, indicates that a creditor is to "present" his claim; P. S. 2824, that he is to "exhibit" it. So these are convertible terms used to indicate how a credit is to

get his claim before the commissioners for allowance. No particular formalities are required by the statute to constitute a sufficient presentation of the claim. And properly so, for it is of first importance that the Procedure before the commissioners shall be simple, plain, and expeditious. Without attempting to lay down a general rule, we hold

Argued before ROWELL, C. J., and MUNSON, WATSON, and POWERS, JJ. Herbert G. and Frank E. Barber, for that this note was sufficiently presented as a orator. F. D. Stowe, for defendant.

claim, since the statement notified the commissioners that such a debt existed against the estate, gave them sufficient information as to the nature and amount thereof to enable them to act intelligently thereon, and was brought to them in such circumstances as to show that the creditor was seeking to

POWERS, J. When Alvin H. White, late of Newfane, was alive, he owed the orator a promissory note and a small balance ou open account. Commissioners on White's estate were duly appointed, and the orator, acting through a relative living at Newfane, season-charge the estate with its payment. Of ably sent to them a statement of the book account, and the following statement of the note:

"Newfane, Vt. December 14, 1905.
"Commissioners A. H. White Estate.
"The amount due on note of Alvin H.
White in favor of N. M. Batchelder is as per
statement rendered below:

Dated August 25, 1898, face.....
Payment, August 16, 1904.......

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$207 59
1 00
$206 59
86 94
15 75
$309 28

course, there was no legal evidence before the commissioners to support the claim; but that was important, not on the question whether or not the commissioners should act at all, but only on the question of what their action should be. It was as much the duty of the commissioners to act upon the claim to allow or disallow it-as it would

have been had the note itself been presented. This being so, the case comes within the holding in Dickey v. Corliss, 41 Vt. 127; for the orator was without legal fault, and his mistaken application to the probate court should not bar him here.

Decree reversed and cause remanded, with mandate that a decree pass for the orator according to the prayer of the bill, with costs, both here and in the court below.

CARVER v. SYKES.

5, 1909.)

(82 Vt. 135)

"Yours, etc., F. A. De Witt." These statements were received by the commissioners during the life of their commission, and it is apparent that they understood that they were expected to act upon them as regularly presented claims. For they allowed the book account, and made re (Supreme Court of Vermont. Windsor. March turn thereof as required by law. They kept the statement of the note, but took no action upon it, and omitted all reference to it in their report. The orator supposed that the evidence that defendant's brother stated to plainIn an action for conversion of certain sheep, note had been allowed, and made no further tiff's servants, who were sent for the sheep, that move in the matter until his statutory reme- they were in defendant's pasture, to which no dies had expired, though he made an unsuc-objection was taken when it was first introduced,

APPEAL AND ERROR (§ 1170*)-REVERSAL-EB-
BOR IN ADMISSION OF EVIDENCE.

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