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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. Unit- The case of American Surety Co. v. Lawed States, for Use of Hill, v. American Se- renceville Cement Co. (C. C.) 110 Fed. 717, curity Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 relied upon by the plaintiff as sustaining its L. Ed. 437.

contention here, seems to have given a simArticle 11 of the contract is indicative of ilar bond a broader construction. There the the intention of the parties thereto in this governing distinction was made between larespect. It reads: “That all materials and bor and materials consumed in the work or workmanship shall be subject during the en- in connection therewith, and labor and matetire progress of the construction to the in- rials made use of in furnishing the so-called spection and acceptance or rejection of the contractor's plant, and available not only for officer in charge or his agent, and any ma. the work there done, but for other work also. terial or work not accepted shall be replaced The court, å single judge, seems to bave by the said E. H. Denniston Co., at their construed the covenant in the bond, which own expense; the rejected materials to be was for the benefit of materialmen, without immediately removed from the premises.” regard to what materials the contractor was Does not this article strongly show that the under obligation with the government to word “materials" as used in the contract has furnish, and without taking into considerareference to such materials only as are with- tion the covenant securing to the governin the purview of that instrument? For ment the performance of the principal conwhat purpose would such a provision re- tract. The case of Zipp v. Fidelity & Despecting other materials be there made ? posit Co., 73 App. Div. 20, 76 N. Y. Supp.

In City of Philadelphia v. Malone, 214 Pa. 386, is much relied upon by the plaintiff. 90, 63 Atl. 539, Malone & Co. entered into a There the contractor entered into an agreecontract with the plaintiff city to excavate ment with the city of Buffalo wherein he and construct certain reservoirs. The agree. agreed to construct a retaining wall across ment required the contractors to furnish all Evans Slip in that city. The security bond the materials and perform all the labor nec- was conditioned for the performance of the essary in constructing the reservoirs in labor and the furnishing of “all the material strict and exact accordance with the pro- necessary to fully complete the work or imposal and specifications attached to and provement” in the contract contemplated, made a part thereof. A bond was given by and for the payment "for all material used the contractors as required by a city ordi- and services rendered in the execution of nance. The use plaintiff furnished coal to such contract." During the progress of the a subcontractor excavating one of the res- work two boilers and engines were used in ervoirs, which coal was used for generating excavating the rocks, stones, and earth, and steam to run the steam shovel and the loco- for pumping the water from the slip. The motive used in excavating and removing plaintiff furnished to the contractor the coal dirt in constructing the reservoir. The bond used as fuel in the boilers to create power. on wbich the suit was brought, taken for the It was contended that the claim for this coal protection of the city and for the security of was not within the strict terms of the conparties from whom the contractor or his sub- tract. The court said the defendant's bond contractor might obtain labor and materials, contemplated the performance of the conwas conditioned that the contractors “shall tract by the contractor, and whatever fairly and will promptly pay * all sums of came within the compass of that work was money which may be due for labor and ma- also within the scope of the bond; that the terials furnished and supplied, or performed generation of power was essential in the perin and about said work." The question was formance of the contract, and that, "wben whether coal was “material" within the the defendant became responsible for the meaning of the bond in suit and the ordi- payment of 'all material used and services nance. It was held that both the labor and rendered in the execution of such contract,' materials which the contractors obligated it might have expected that fuel was to be themselves to furnish were specifically set consumed in the undertaking"'; that the maout and named in the proposal and specifi- terials used need not be a permanent concations attached to and made a part of their stituent of the structure itself, but must be contract; that in determining the question necessarily incident to the execution of the the test was, the materials or labor must be agreement, to come within the purview of such as the contract covers; and that an the bond, and the coal consumed in carrying inspection of the proposal and specification 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 in ed 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 The statute under which the bond in ques- for the plaintiff was error. tion was given was amended by an act ap- By the terms of the contract the work of proved February 24, 1905, c. 778, 33 Stat. 811 the contractor was to be completed on or be(U. S. Comp. St. Supp. 1907, p. 709). Though fore the 1st day of December, 1903. The enacted subsequently to the execution of the coal in question was largely furnished by bond in question, the later act sheds light on the use plaintiff subsequent to that date, and the proper construction of the earlier law; from time to time up to and including Janufor in respect to the persons entitled to the ary 28, 1904. No written extension of time benefit of such a bond the later act effected in which the contractor might perform was no material change. United States, for Use shown, and the parol evidence bearing on of Hill, v. American Surety Co., cited above. the question of an extension other than in The amendatory act describes the persons writing was conflicting. The court refused who shall have the right by intervention to to submit that question to the jury, to which the benefit of the bond as “any person, com- defendant excepted. This exception was pany, or corporation who has furnished labor well taken. The burden of showing that or materials used in the construction or re- an extension of time was granted by the pair of any public building or public work, government was with the plaintiff, and, the and payment for which has not been made.” parol evidence being conflicting, it was a . The great similarity of the language used question of fact for the jury. in the provision of the contract obligating Judgment reversed, and cause remanded. the contractors to furnish materials is noticeable-"shall furnish

materials necessary for the construction of the follow

(82 Vt. 103) ing buildings,” etc. And, in view of the fact UNITED STATES v. UNITED STATES that the same words are used in the state

FIDELITY & GUARANTY CO. ment of the contract in the condition of the (Supreme Court of Vermont. Chittenden. Feb. bond, we apprehend that the language later

27, 1909.) used therein, “materials in the prosecution 1. UNITED STATES (8 67*)–CONTRACTS-LIAof the work provided for in said contract," BILITY OF SURETY-"MATERIAL.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

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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 admitcluding 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 Subject to exception, the plaintiff introon the bond for defective lumber rejected by the duced evidence tending to show that the inspector and not used in the prosecution of the flooring in question was shipped by the use work.

[Ed. Note.--For other cases, see United States, plaintiffs to Ft. Ethan Allen, that it was acDec. Dig. § 67.*

cepted by the contractor, and that the latter For other definitions, see Words and Phrases, agreed to pay therefor. The uncontradicted vol. 5, pp. 4409-4413.)

evidence of the defendant tended to show that 2. UNITED STATES (8 67*)—CONTRACTS — LIA- it was not such flooring as was required by BILITY OF SURETY.

For lumber of an inferior quality at first the contract between the government and the condemned, but later used with the inspector's contractor; that a large part of it was deconsent, either in its original condition or by be- fective on account of being warped, cracked ing remilled, the liability of the surety under at the ends, improperly milled and matched, the bond would be the reasonable value thereof, not exceeding the contract price, with the right, and not being straight grain, rift sawed, and under the express provisions of P. S. § 2689, to heart faced, and on account of having sap have the benefit of any defense which might be stains, sap streaks, resin and pitch pockets available to its principal in an action brought in its face; that very little, if any, of said against it on the same obligation.

[Ed. Note.--For other cases, see United States, flooring would meet the requirements of the Dec. Dig. $ 67.*]

specifications forming a part of that conExceptions from Chittenden County Court; in Burlington in order to overcome improp

tract; that 39,226 feet thereof were remilled George M. Powers, Judge. Action by the United States of America, width of each board was reduced from 243

er milling and matching, and in so doing the for use of J. G. Strait & Son, against the inches to 244 inches; that the mill charge 'United States Fidelity & Guaranty Com. for remilling was $2.50 per thousand feet, pany. Judgment for plaintiff, and defendant and the transportation of the flooring from excepts. Reversed and remanded.

Ft. Ethan Allen to Burlington for that purArgued before ROWELL, C. J., and TY.

pose and back again was $2 per thousand LER, MUNSON, and WATSON, JJ.

feet; that some of the flooring furnished by Max L. Powell and Rufus E. Brown, for the use plaintiffs was condemned by the plaintiff. E. M. Horton and J. E. Cushman, United States inspector, but later the confor defendant.

tractor was allowed by the inspector to select

therefrom the best of it and lay the part WATSON, J. This case was before this thus selected in the floors, and some that court on the pleadings, and is reported in 80 was condemned was afterwards remilled and Vt. 84, 66 Atl. 809. The action is brought used in laying the floors. It was conceded upon the same bond as was that of United that the contractor at an expense of $241.States, for the Use and Benefit of Elias Ly- 61 bought elsewhere 5,369 feet of pine floorman Coal Co. v. United States Fidelity & ing to take the place of some of the floorGuaranty Co., 71 Atl. 1106.

ing purchased of the use plaintiffs which Upon the trial it was stipulated that the had been rejected. And the evidence tenddeclaration should be treated as covering ed to show that the contractor sold to one everything which could be properly declared Dumas between four and five thousand feet upon and recovered in this action by virtue of the rejected flooring. The uncontradicted of the federal statute, under which the bond evidence further tended to show that in orwas given, and that in turn the defendant der to use the portion of flooring purchased might avail itself of any further defense of the use plaintiffs and laid in the officers' thereto, as if formal pleas had been filed. quarters and barracks, before the same was All other and further pleadings were waived remilled, much labor was required to scrape by both parties.

the boards contiguous thereto, by reason of J. G. Strait & Son, the use plaintiffs, seek improper milling, so that the flooring would to recover the balance due for flooring fur- have an even surface; that the government nished by them to the E. H. Denniston Com- inspector condemned the first flooring laid, pany, the contractor, the lumber having been covering an area of less than 100 square feet, delivered to that company at Ft. Ethan Al- and caused the same to be torn up and relen, in this state, while the company was moved on account of the defective condition constructing the buildings named in the prin- of at least 50 per cent. of the boards laid cipal contract with the government, for the therein; that the condition of the flooring performance of which the bond was given. rendered the same defective according to the Certified copies of the bond, of the princi- specifications mentioned in the principal conpal contract, and of such parts of the specifi-tract, and only about two-fifteenths of the encations referred to in the contract and made tire flooring furnished by the use plaintiffs a part thereof as relate to upper flooring for would meet the requirements of the specifications. The defendant claimed that in order include that at first condemned but later to entitle the plaintiff to recover it must selected and used by his consent either as it show that the flooring furnished by the use was or by being remilled. In either case plaintiffs complied with the requirements of the flooring used, being of an inferior qualithe government's specifications. The court ty and but a portion of that shipped by the ruled that all the plaintiff needed to show use plaintiffs to the contractor, the liability was that the lumber in question was fur- of the defendant therefor under the provinished to the contractor for the work at sions of the bond is measured, not by the Ft. Ethan Allen; that whether or not it contract price, but by the reasonable value strictly complied with the requirements of thereof, not exceeding the contract price, the specifications is not at the use plaintiffs' with the further right by statute in the derisk; and that the question of whether or fendant as surety to have the benefit of any not the lumber furnished conformed to the defense which might be available to its prinrequirements of the specifications under the cipal in an action brought against it on the government contract is immaterial. To which same obligation. P. S. 2689; Flagg v. Locke, holdings defendant excepted.

74 Vt. 320, 52 Atl. 424. This exception was well taken. The speci- Judgment reversed, and cause remanded. fications provide: “Upper floors of first and second stories to be laid at completion of other inside work of 7 inch T. and G. clear-heart

(82 Vt. 132) face, straight grain, quarter saw; long leaf BATCH ELDER v. WHITE'S ADM'R. yellow pine, from the Gulf states, showing (Supreme Court of Vermont. Windham. March 242 inch space, thoroughly kiln dried, tightly

5, 1909.) strained, and blind nailed at joists, and plan- 1. EXECUTORS AND ADMINISTRATORS (8 235*) ed off and scraped at finish. Butt joints of -ALLOWANCE OF CLAIMS—“CLAIMS" –"DEfloor to be cut over joists only. A three inch MANDS. mitered border to be placed around balf pro commissioners to receive and adjust claims and

P. S. 2814, provides for the appointment of jecting 8/10 of an inch above the floor." demands of persons against decedent. Section Further: "The contractor shall give his per- 2820 gives the court power to limit time for presonal superintendence to the work, or have a senting claims. Section 2824 provides that one competent foreman, satisfactory to the officer who fails to exbibit his claim shall be barred

from recovering such demand. Held, that the in charge, on the job at all times, to act for words "claim” and “demand” as so used mean ñim, and shall furnish all materials, labor, the same thing. etc., necessary to complete the work accord- (Ed. Note.--For other cases, see Executors ing to the true intent and meaning of the and Administrators, Cent. Dig. 88 837-840; drawings and these specifications, of which Dec. Dig. & 235.* intent and meaning the officer in charge vol. 2, pp. 1202-1211; vol. 8, p. 7604; vol. 2,

For other definitions, see Words and Phrases, shall be the interpreter. No local terms or

pp. 1973-1974; vol. 8, p. 7633.] classifications will be considered in the in

2. EXECUTORS AND ADMINISTRATORS ($ 228*) terpretation of these specifications." And, by

-ALLOWANCE OF CLAIMS-METHOD OF PRESthe principal contract, all materials and ENTATION—“PRESENT''-"EXHIBIT." workmanship shall be subject during the The words "present," as used in P. S. 2820, entire progress of the construction of the and “exhibit," as used in section 2824, as indi

cating how a creditor of the estate is to get buildings to the inspection and acceptance or his claim before the commissioners for allowrejection of the officer in charge, or his agent, ance, are synonymous, the statute requiring, no and any material or work not so accepted particular formalities to constitute a sufficient shall be replaced by the contractor at its presentation of the claim. own expense.

(Ed. Note. For other cases, see Executors

and Administrators, Cent. Dig. $ 822; Dec. Dig. The liability of the defendant does not

§ 228.* depend wholly upon the fact that the lum

For other definitions, see Words and Phrases, ber was furnished to the contractor for the vol. 3, pp. 2583-2584; vol. 6, pp. 5528–5529; work at Ft. Ethan Allen, that he accepted vol. 8, p. 7761.] it, and agreed to pay for it. To be within 3. EXECUTORS AND ADMINISTRATORS (8 228*)— the scope of the bond as "material” fur- ALLOWANCE OF CLAIMS — SUFFICIENCY OF nished, the lumber must have been fairly

PRESENTATION. within the express or implied terms of the through a relative living at the late residence of

A person holding a note of a decedent, acting principal contract, including the specifications, decedent, sent to the commissioners of the estate and must have been used in the prosecution a statement of the note, which was received by of the work provided for in that contract. them during the life of their commission, to the

effect that the amount due on a note of decedent United States, for the Use and Benefit of in favor of the creditor was as shown therein, Elias Lyman Coal Co. v. United States Fidel- followed by a statement of the amount of the ity & Guaranty Co., 71 Atl. 1106, mentioned note, amount of a payment thereon, and the inabove. Consequently no recovery can be had terest due. Held, that the note was sufficiently

presented. for the defective lumber rejected by the gov

[Ed. Note.-For other cases, see Executors ernment inspector and not used in the prose- and Administrators, Cent. Dig. § 822; Dec. Dig. cution of the work. This, however, does not 8 228.*]

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PORT ON

4. EXECUTORS AND ADMINISTRATORS (8 235*)— cessful application for relief to the probate ALLOWANCE OF CLAIMS-FAILURE TO_RE- court before he brought this bill.

CLAIM PRESENTED RIGHT OF CREDITOR TO RELIEF.

Under our statute, commissioners bare Where commissioners of an estate failed to jurisdiction to adjust "claims" and "de allow or disallow a claim duly presented, and mands." P. 8. 2814. It is apparent that omitted to mention it in their report, and the these terms mean the same thing, for P. S. creditor, without legal fault, did not discover the failure until his statutory remedies had expired, 2820, speaks only of "claims,” and P. S. 2824, he could have relief in equity.

provides that one who fails to exhibit his (Ed. Note. For other cases, see Executors "claim" shall be barred from recovering and Administrators, Dec. Lig. § 235.*]

"such demand." The "claim" here involved 5. EXECUTORS AND ADMINISTRATORS (8 235*) was the thing demanded; the "thing demand.

CONCLUSIVENESS PROBATE JUDGMENT ed" was the debt represented and evidenced DISALLOWING CLAIM As Bar to EQUITABLE by the note. So the claim was properly repRELIEF.

The fact that the creditor first made an un-resented before the commissioners by the successful application to the probate court would statement above recited. not bar his suit in equity. (Ed. Note. For other cases, see Executors

P. S. 2820, indicates that a creditor is to and Administrators, Dec. Dig. § 233.*]

“present" his claim; P. S. 2824, that he is Appeal in Chancery, Windham County ;

to "exhibit" it. So these are convertible Seneca Faselton, Chancellor.

terms used to indicate how a crediti z is to Bill by Newton M. Batchelder against Al- get his claim before the commissioners for vin H. White's administrator. Decree of dis allowance. No particular formalities are re missal, and orator appeals. Reversed and

quired by the statute to constitute a suffiremanded, with mandate that decree pass ly so, for it is of first importance that the

cient presentation of the claim. And proper. for orator.

Argued before ROWELL, C. J., and MUN- procedure before the commissioners shall be SON, WATSON, and POWERS, JJ.

simple, plain, and expeditious. Without ats

tempting to lay down a general rule, we hold 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 com

missioners that such a debt existed against POWERS, J. When Alvin H. White, late the estate, gave them sufficient information of Newfane, was alive, he owed the orator a

as to the nature and amount thereof to enpromissory note and a small balance ou open able them to act intelligently thereon, and account. Commissioners on White's estate was brought to them in such circumstances were duly appointed, and the orator, acting as to show that the creditor was seeking to through a relative living at Newfane, season charge the estate with its payment.

Or ably sent to them a statement of the book ac

course, there was no legal evidence before count, and the following statement of the the commissioners to support the claim; note:

but that was important, not on the question "Newfane, Vt. December 14, 1905.

whether or not the commissioners should "Commissioners A. H. White Estate.

act at all, but only on the question of what “The amount due on note of Alvin H. their action should be. It was as much the White in favor of N. M. Batchelder is as per duty of the commissioners to act upon the statement rendered below:

claim-to allow or disallow it—as it would Dated August 25, 1898, face... $207 59 have been had the note itself been presented Payment, August 16, 1904.

1 00 | This being so, the case comes within the hold.

ing in Dickey y, Corliss, 41 Vt. 127; for the

$206 59 Interest (simple).

86 91

orator was without legal fault, and his misInterest (annual).

15 75 taken application to the probate court should

not bar him here. $309 28

Decree reversed and cause remanded, with "Yours, etc.,

F. A. De Witt."

mandate that a decree pass for the orator ac These statements were received by the cording to the prayer of the bill, with costs, commissioners during the life of their com- both here and in the court below. inission, and it is apparent that they understood that they were expected to act upon

(82 Vt. 135) them as regularly presented claims. For

CARVER V. SYKES. they allowed the book account, and made re (Supreme Court of Vermont. Windsor. March turn thereof as required by law. They kept

5, 1909.) the statement of the note, but took no action APPEAL AND ERROR (8 1170*)-REVERSAL-EBupon it, and omitted all reference to it in BOR IN ADMISSION OF EVIDENCE. their report. The orator supposed that the evidence that defendant's brother stated to plain

In 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,

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