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U.S. Supreme Court

Fleischmann Construction Co. v. United States, 270 U.S. 349 (1926)

Fleischmann Construction Co. v.

United States for Use of Forsberg

No. 50

Argued October 15, 1925

Decided March 1, 1926

270 U.S. 349


1. A bill of exceptions is not valid as to any matter that was not excepted to at the trial, and cannot incorporate into the record nunc pro tunc, as of the time when an exception should have been taken, one which in fact was not then taken. P. 270 U. S. 356.

2. In a law case tried by the district court without a jury (Rev.Stats. §§ 649, 700) where there are no special findings of fact and no exceptions to rulings of law taken during the trial and preserved by bill of exceptions, questions relating to matters of fact or conclusions of law embodied in the general finding are not reviewable. P. 270 U. S. 355. chanroblesvirtualawlibrary

Page 270 U. S. 350

3. But preliminary rulings on the pleadings made by the district court under its general authority, before the issues are submitted under the statutory stipulation, are reviewable as in ordinary cases, independently of the statute. P. 270 U. S. 357.

4. Under the Materialmen's Act, if suit on a contractor's bond be not brought by the United States "within six months from the completion and final settlement" of the contract, suit by any person who supplied labor or materials, etc., may be brought in the name of the United States, "within one year after the performance and final settlement of the contract," but not later. Held that allegations in the use plaintiff's declaration and in intervening petitions that the contract was "completed and final settlement had" on a date specified, more than six months, but within a year, before institution of the suit, were not mere conclusions of law, but allegations of fact. P. 270 U. S. 358.

5 Amendments in such a suit which do not set up a new cause of action, but merely supplement the defective statement of previously existing rights, relate back, and may be filed after expiration of the year following final settlement. So held where the amendments brought in a supplementary contract amending, but not otherwise affecting, the original construction contract. P. 270 U. S. 359.

6. The strict letter of an Act must yield to its evident spirit and purpose when this is necessary to effectuate the intent, and unjust or absurd consequences are to be avoided if possible. P. 270 U. S. 359.

7. The Materialmen's Act provides that, where suit is instituted by a creditor or creditors, only one action shall be brought, which must be within one year from " performance and final settlement" of the contract, and any creditor may file his claim and be made a party within one year from the completion of the "work" under the contract, and not later. Held, in view of the remedial purpose of the Act and the liberal construction called for, that intervening claimants, like original plaintiffs, have one year from final settlement. P. 270 U. S. 360.

8. Amendments held germane to causes of action originally alleged. P. 270 U. S. 362.

9. A judgment of the district court may validly be entered at a term following that in which the case was heard and taken under advisement. P. 270 U. S. 363.

298 F.3d 0 affirmed.

Error to a judgment of the circuit court of appeals which affirmed a judgment of the district court (298 chanroblesvirtualawlibrary

Page 270 U. S. 351

F. 320) recovered by the plaintiffs and intervening claimants, in a suit against a contractor and surety, under the federal Materialmen's Act.

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