(248 U. S. 272) ANDREWS v. VIRGINIAN RY. CO. allowance of a writ of error from this court, to review the judgment of that court of June (Argued Dec. 16 and 17, 1918. Decided Jan. 16, 1916, which was allowed, resulting in the 7, 1919.) JUDGMENT RENDERED BEFORE ACT. A judgment of a state trial court within a class as to which power of national Supreme Court to review by writ of error was taken away, and authority to certiorari was substituted, by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), was not within the exception of a judgment rendered before the act became operative; it not being till thereafter that the state Court of Appeals refused to exercise its discretionary power of review, rendering the trial court's judgment a final judgment of the court of last resort of the state, which alone can be reviewed. case which is before us. Messrs. A. P. Staples and A. B. Hunt, both of Roanoke, Va., for plaintiff in error. Messrs. Harvey T. Hall and G. A. Wingfield, both of Roanoke, Va., for defendant in error *Mr. Chief Justice WHITE, after making the foregoing statement of the case, delivered the opinion of the Court. At the threshold, there arises a question of our jurisdiction which we may not overlook and which we must therefore decide. The question is, has this court power by writ of error to review the judgment below; or, in other words, is the authority of the court to review that judgment confined by In Error to the Roanoke County Circuit the Act of September 6, 1916, c. 448, 39 Court, State of Virginia. Action by Maude L. Andrews, administratrix of A. W. Andrews, deceased, against the Virginian Railway Company. The Court of Appeals of Virginia refused to review a judgment for defendant (118 Va. 482, 87 S. E. 577), and plaintiff brings error. Dismissed. *To recover for the wrongful death of Andrews, a locomotive engineer in the employ of the defendant in error, the plaintiff in error, the representative of his estate, com- | menced this suit in April, 1914. Both the Employers' Liability Act and the act of Congress providing for the inspection of boilers of locomotives were alleged. Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 86578665); Act Feb. 17, 1911, c. 103, 36 Stat. 913 (Comp. St. §§ 8630-8639). On October 12, 1914, there was a judgment on a verdict in favor of the plaintiff. A writ of error having been allowed by the Court of Appeals of Virginia, the judgment was, on January 13, 1916, reversed and the case remanded for a new trial. Virginian Ry. Co. v. Andrews, Adm'x, 118 Va. 482, 87 S. E. 577. The circuit court of Montgomery county, in which the case was tried, thereupon, by consent of the parties, transmitted it for trial to the circuit court of Roanoke county, in which court, on the 16th day of June, 1916, there was judgment in favor of the defendant. There upon a petition for writ of error to review this judgment was separately and out of term presented to the judges of the Court of Appeals and was denied, and on the opening of the term was, in accordance with the Virginia law, presented to the court, and was there finally denied on November 13, 1916. Then, on the 27th of November, 1916, a petition was presented to the presiding judge of the circuit court of Roanoke county for the Stat. 726 (Comp. St. § 1214), to the right to do so by certiorari in the mode and time provided by that act? Considering the subject only from the character of the controversy, it is indisputable that the case comes within the generic class as to which the power to review by writ of error was taken away by the act of 1916 and the authority to certiorari substituted. It results that, unless the judgment in question comes under some limitation or exception provided by the statute to the general rule which it establishes, we have no jurisdiction. There is no room for such exception unless it results from the provision in the statute taking out of the reach of its terms judgments rendered before it became operative. The act was approved on September 6, 1916, and was made operative 30 days thereafter. In form, the judgment to which the writ of error was addressed was rendered on June 16, 1916, before the operation of the statute, and was therefore outside of its provisions. But the question remains, Was the judgment a final judgment at the date named, or did it become so only by the exercise by the Court of Appeals of its power as manifested by its declining to take jurisdiction on November 13, 1916, *after the passage of the act? Undoubtedly, before the action of the Court of Appeals, the judgment was not final and was susceptible of being reviewed and reversed by that court. Undoubtedly, also, until the Court of Appeals acted, the trial court was not the court of last resort of the state whose action could be here reviewed. The contention, therefore, that the judgment of the trial court was a final judgment susceptible of being here reviewed by writ of error must rest upon the impossible assumption that the finality of that judgment existed before the happening of the cause by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes which alone finality could be attributed to it. I claim in the nature of a quantum meruit for It is true that under the law of Virginia, | labor performed and materials furnished, eviin a case like this the power of the Court of dence that when plaintiff ceased work it had Appeals to review the judgment of the trial left on the premises certain materials, machincourt was gracious or discretionary, and ery, and tools that defendant took and appropriated to its use, which item was specified in not imperative or obligatory; but the ex- the bill of particulars, is not subject to objecistence of the power, and not the considera- tion of being immaterial and not within the tions moving to its exercise, is the criterion pleadings. by which to determine whether the judgment of the trial court was final at the time of its apparent date, or became so only from the date of the happening of the condition-the action of the Court of Appeals-which gave to that judgment its only possible character of finality for the purpose of review in this court. Nor is the result thus stated a technical one, since it rests upon the broadest considerations inhering in the very nature of our constitutional system of government, and material, therefore, to the exercise by this court of its rightful authority. That this is true, would seem to be demonstrated by considering that if it were not so a judgment of a state court susceptible of being reviewed by this court would, notwithstanding that duty, be open at the same time to the power of a state court to review and reverse, thus, in substance, depriving each court of its power and begetting the possibility of conflict and confusion. From this it follows that the judgment to which the writ of error was addressed was in substance a judgment *rendered after the going into effect of the act of 1916, and was only reviewable by certiorari, as provided in that act. The writ of error, therefore, must be and it is Dismissed for want of jurisdiction. (248 U. S. 334) GUERINI STONE CO. v. P. J. CARLIN (Argued Nov. 7 and 8, 1918. 1919.) No. 218. 3. APPEAL AND ERROR 662(3) — CONFLICT BETWEEN OPINION AND RECORD. Though the opinion of the Circuit Court of Appeals shows that counsel for plaintiff in that court stated that the quantum meruit claim had been disregarded, and that the trial proceeded solely on ground of breach of special contract, the bill of exceptions failing to bear this out, the trial court cannot, on the theory that such was the fact, be put in error in admission of evidence. 4. DAMAGES 124(1)—BREACH OF BUILDING CONTRACT-MATERIALS ON HAND. Within the rule giving a building subconbecause of total breach of the contract by the tractor who declined to go on with the work, principal contractor, right to recover what it had expended towards performance of the contract, subject to deduction for materials on hand when performance was stopped, materials then on hand being appropriated by the general contractor to its use should be treated as a part of subcontractor's contribution to performance of the contract. 5. ACTION 28-WAIVER OF TORT. One whose materials are appropriated may waive any tort therein, and sue on implied assumpsit. 6. DAMAGES 124(1)-BREACH OF BUILDING CONTRACT-CONTRACTOR'S EXPENDITURES. Tools and appliances brought to the premises by plaintiff building subcontractor for use in performance of the contract, and so used by it, till it declined to go on with the work, because of defendant principal contractor breaching the contract, and then left in position, being accepted and retained by defendant, are not to be considered outside the contract, but as part Decided Jan. 7, of plaintiff's expenditures on which damages from defendant's breach are to be computed. 7. CONTRACTS 303(5) TRACTS-DEFAULT IN PARTIAL PAYMENTS. In a building or construction contract calling for the performing of labor and furnishing of materials covering a long period of time and involving large expenditures, a stipulation for payments on account from time to time during the progress of the work is so material that a substantial failure to pay justifies the contractor in declining to proceed. 303(4) DISCHARGE BY 1. CONTRACTS BUILDING CON 8. CONTRACTS 214-BUILDING CONTRACT 2. DAMAGES 159(6)—QUANTUM MERUIT-subcontract to call upon subcontractor to do EVIDENCE. The complaint of a subcontractor, who on the ground of a total breach of the contract by the principal contractor, declined to go on with the work, and sued for damages, containing a Where contractor's acceptance of option in certain additional work did not make a separate contract, but merely added something to the work to be done under the subcontract, the subcontract provision as to partial payments, during progress of the work, of a percentage of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 9. CONTRACTS the estimated construction, applied to such ad- | Court of Appeals for the First Circuit, setting ditional work. up assignments of error based upon rulings of the trial court in admitting and excluding evidence and in giving and refusing instructions to the jury. The Court of Appeals reversed the judgment and ordered the cause to be remanded for further proceedings (241 Fed. 545, 154 C. C. A. 321); and to review this judgment the present writ of certiorari was allowed (245 U. S. 643, 38 Sup. Ct. 9, 62 L. Ed. 346(4)—ACTION FOR BREACH -EVIDENCE ADMISSIBLE UNDER PLEADINGS. Though a subcontractor's complaint, in alleging breach of contract provision for monthly payments of percentage of work upon subcontractor's written requisition, alleged requisitions for payment were made "in accordance with the contract," evidence of an agreement subsequent to the pleaded contract, relating to unit prices, was admissible as a basis for the requisition shown in evidence. - AMEND 10. APPEAL AND ERROR 889(2) To prevent reversal for an unimportant INSTRUCTIONS-EXCEPTIONS. 273(5)-REVIEW An exception to action of court "in giving all instructions requested by plaintiff" is too general to point any error in an instruction on damages in duplicating elements, so as to allow of review. On Writ of Certiorari to the United States Circuit Court of Appeals for the First Cir cuit. Action by the Guerini Stone Company against the P. J. Carlin Construction Company. Judgment for plaintiff was reversed by the Circuit Court of Appeals (241 Fed. 545, 154 C. C. A. 321), and plaintiff brings certiorari. Reversed, and District Court judgment affirmed. 528). The controversy arose in the course of the construction of a federal post office and court building at San Juan, Porto Rico. Plaintiff had a subcontract for a part of the work under defendant, which was the general contractor under the government of the United States. Pertinent clauses of the contract and a general history of the case were set forth in our former opinion and need not be repeated at length. The evidence at the second trial followed Defendant the general lines of the first. was to construct the foundation complete to the basement floor. Upon this, plaintiff was to construct the principal part of the building, and roof, to be built of concrete. For this including exterior and interior walls, floors, work and the necessary materials defendant agreed to pay to plaintiff the sum of $64,750 in certain monthly installments on account and the balance on completion. The plans called for certain granite work, for which defendant was to send the cut blocks from the United States; and under an option set forth in paragraph 25, afterwards accepted Mr. Edward S. Paine, of San Juan, P. R., by defendant, plaintiff was to set this granite for petitioner. Mr. John C. Wait, of New York City, and Charles Hartzell, of San Juan, P. R., for respondent. for 40 cents per square foot of surface. It appeared that after the work had been in progress for some time a disagreement arose between the parties about payments on account. Paragraph 12 of the contract provided that there should be "monthly payments *Mr. Justice PITNEY delivered the opinion on *account, not to exceed in amount 85 per of the Court. cent. of the cost of the work actually erected 'in the building, provided that the subcontractor furnishes to the general contractors a written requisition, on a form to be This case is before us for the second time, our former decision being reported in 240 U. S. 264, 36 Sup. Ct. 300, 60 L. Ed. 636. It was an action for damages, brought by the pres-supplied by the general contractors, not less ent petitioner as plaintiff against the pres- than twelve days before payment is requir ent respondent as defendant in the District ed," etc. The contract, however, did not proCourt of the United States for Porto Rico. vide how such cost of the work, other than Our first review was upon a direct writ of er- the granite setting, should be ascertained. ror sued out by plaintiff under section 244, Ju-In December, 1911, and January, 1912, plaindicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087, 1157 [Comp. St. § 1215]), prior to the amendment of January 28, 1915 (38 Stat. 804, c. 22, §§ 3, 6 [Comp. St. § 1704a]). Judgment was reversed and the cause remanded for further proceedings. Upon the going down of the mandate a new trial was had, resulting in a verdict in plaintiff's favor *for substantial damages. To review the judgment entered thereon, defendant, under the act of 1915, prosecuted a writ of error from the Circuit tiff made written requisitions which were not complied with; and, according to plaintiff's evidence, it was agreed between the parties on or about February 2, 1912, that future applications and payments should be made upon the basis of a schedule which specified, inter alia, "Exterior and interior concrete walls, arches, and cement work $1.07 per cubic foot." On March 9, 1912, plaintiff made a requisition for payment computed on this basis, and showing a balance due of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 338 *339 $11,735.95. This requisition was in effect | formed and materials furnished in and about refused, and no further payment was made the construction of the building. except the sum of $674, which was paid a few days later. In the month of February, 1912, the government superintendent of construction found a serious settlement in the foundation, as a result of which work upon the building was ordered to be stopped. This order was communicated verbally by defendant's representative to plaintiff's agent at San Juan on the 9th of March, and was confirmed two days later by letter, in which, however, a request made by plaintiff's agent for instructions as to what should be done with plaintiff's force of men pending the suspension of the work was evaded. Plaintiff stopped work pursuant to defendant's notice, and did nothing more upon the building. Thus matters remained until May 22, 1912, plaintiff in the meantime having received no payment pursuant to its requisition of March 9 beyond the small sum mentioned above, nor any instructions or permission to pro*ceed with the work upon the building; and, according to plaintiff's evidence, it was impossible to tell when the work could proceed. On May 22 plaintiff wrote to the defendant, referring to the stoppage of the work and to "the very considerable cost and damage to us caused by your breach of contract," to the inability to get payments from defendant in accordance with the terms of the contract, and to defendant's refusal of an offer of arbitration and refusal of "an assurance that even now we would have an opportunity within any reasonable time to proceed with our work," and concluding with this notification: "Under these circumstances and owing to your entire failure to comply with the terms of the contract, we hereby notify you that we now terminate the contract and shall proceed no further with the work, and that we shall hold you liable for the damages we have sustained by reason of your breach of contract, including your failure to provide labor and materials not included in the contract with us in such manner as not to delay the material progress of our work and your failure to make payments in accordance with the terms of the contract, and all other breaches of contract on your part." The principal ground of action was based upon the contention that in refusing to respond to plaintiff's requisitions for payments on account, and in the complete and indefinite stoppage of plaintiff's work under the circumstances mentioned, defendant had committed breaches of the contract so material as to amount to a total breach, justifying plaintiff in declining to proceed further and in suing at once for its damages. See Anvil Mining Co. v. Humble, 153 U. S. 540, 552, 14 Sup. Ct. 876, 38 L. Ed. 814. But as we pointed out in 240 U. S. 283, 36 Sup. Ct. 300, 60 L. Ed. 636, plaintiff counted also upon a quantum meruit for work and labor per The Circuit Court of Appeals attributed error to the trial court in the following respects: [1] *1. The trial court refused defendant's request to instruct the jury that plaintiff was not justified in terminating the contract because of delays, and in instructing them on the contrary, as the court did in substance, that if it was evident to the parties on May 22, 1912, that there would be a long delay or an indefinite delay, or if it was evidently impossible to tell when the work could be begun again, plaintiff had a right to terminate the contract and was not obliged to await indefinitely the pleasure of the government as to the resumption of work. It should be noted that when plaintiff took action to terminate the contract, more than two months already had elapsed since the work was stopped. This was undisputed, and of course must be considered in dealing with the instruction referred to. It is sufficiently obvious that a contract for the construction of a building, even in the absence of an express stipulation upon the subject, implies as an essential condition that a site shall be furnished upon which the structure may be erected. In this case the matter was not allowed to rest upon an implication, for, as we held in our former opinion, the eleventh paragraph of the subcontract, providing: "The general contractors will provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work, and in the event of failure so to do, thereby causing loss to the subcontractor, for such loss" agree that they will reimburse the subcontractor -as applied to the facts of the case, imported foundation in such manner that plaintiff an agreement by defendant to furnish the night build upon it without delay, and was inconsistent with an implication that the parties intended that delays attributable to the action of the owner should leave plaintiff remediless; and defendant's obligation to furnish a suitable foundation was not dependent on whether it was at fault or whether the delay was attributable to a stoppage of work by the owner in the exercise of a right con*ferred upon it by a provision of the principal contract which was not brought into the subcontract. The Circuit Court of Appeals, however, held (241 Fed. 549, 154 C. C. A. 321) that although under paragraph 11 defendant would be liable to respond in damages for such delays if plaintiff completed or stood ready to complete its contract, yet it did not follow that if plaintiff was delayed in completing its work within the 300 days specified in paragraph 6 it could decline to go on, since by paragraph 7 it was provided that should the subcontractor be obstructed or delayed in *340 342 the prosecution or completion of the work by neglect, delay, or default of the owner (among other causes), the time fixed for the completion of the work should be extended for a period equivalent to the time lost from such causes. The court held that this rendered it clear that delays occasioned to the plaintiff by the owner, the general contractor, etc., were not to excuse plaintiff from proceeding to complete the contract, but were to operate merely as an extension of the time within which by the terms of the contract plaintiff was required to perform its work. In our opinion there was error in holding that the provisions of the sixth and seventh paragraphs limited, thus, the provisions of the eleventh. From the fact that by paragraph 6 plaintiff was obliged to finish the work in 300 days, and by paragraph 7 this time was extended for plaintiff's benefit in the case of delays caused by the owner, the general contractor, or otherwise as specified, it does not follow that plaintiff was not entitled to finish the work more speedily if it could do so; or that a breach of paragraph 11 by defendant, so serious as to result in a total suspension of the work, with no reasonable prospect that it could be resumed within any reasonable time, left plaintiff still under an obligation to hold itself in readiness to proreed, and without remedy except an action for damages under that paragraph. [2] *2. The court found error in the admission of evidence tending to show that at the time plaintiff ceased work it had on hand and left upon the premises certain materials, machinery and tools of the value of $3,500, which defendant took and appropriated to its own use. As pointed out above, the complaint contained a general claim in the nature of a quantum meruit for labor performed and materials furnished. The particular item in question was specified in the bill of particulars. This clearly justified the trial court in admitting the evidence over the only substantial objection made, which was that it was immaterial and not within the pleadings. There is nothing to show that it was admitted only for its bearing upon the question of damages for breach of the special contract. It is true that in answer to the objection of immateriality plaintiff's counsel said: "I will show you a case where it says that the rule is that plaintiff's expenditure minus any materials which he may have on hand and plus any profits which he might have made" -evidently referring to United States v. Behan, 110 U. S. 338, 344, 346, 4 Sup. Ct. 81, 28 L. Ed. 168; but in responding to a further objection that the material could not be charged to defendant, plaintiff's counsel insisted, "I propose to show that the defendant took it and has it," and followed it up with proof to this effect. [3] The opinion of the Circuit Court of Appeals (241 Fed. 550, 154 C. C. A. 321) shows that counsel for plaintiff in that court stated that the quantum meruit had been disre garded, and that the trial proceeded solely upon the ground of a breach of the special contract; but the bill of exceptions fails to bear this out, and error cannot be attributed to the trial court on that theory. There was no waiver of the general claim for materials, and the evidence referred to furnished a ground of recovery upon that claim, irrespective of plaintiff's right to recover damages for breach of the special contract. [4] But upon the latter question also it was) admissible, *upon the assumption that the rule of damages laid down in United States v. Behan, supra, was applicable, which is not disputed. That rule would give the plaintiff a right to recover what it had expended toward performance of the contract, subject to a deduction for the value of the materials remaining on hand at the time performance was stopped. But of course the deduction is based upon the theory that those materials remained the property of plaintiff and subject to its disposal. If they were appropriated by defendant to its use-and this is what the evidence tended to show-it is plain that their value should not be deducted from, but should be treated as a part of, plaintiff's contribution to the performance of the contract, in addition to its other outlay in respect of work performed. [5] The Circuit Court of Appeals considered that the furnishing of the materials in question was a matter so entirely outside of the contract that it could not properly be considered as an element of damage for its breach, and that plaintiff's remedy to recover their value must be by action of tort for conversion. But the evidence showed no tortious conversion; it tended to show that the articles were appropriated by defendant with plaintiff's consent; and it hardly is necessary to say that, if tort there were, plaintiff could waive it and sue upon the implied assumpsit. Great Falls Mfg. Co. v. Atty. Gen., 124 U. S. 581, 598, 8 Sup. Ct. 631, 31 L. Ed. 527; N. J. Law, 509, 513, 55 Atl. 645. · Hirsch v. C. W. Leatherbee Lumber Co., 69 [6] Nor was this a matter entirely outside of the contract. The materials in question consisted in the main of tools and appliances that had been brought to the building by plaintiff for use in the performance of the contract, were so used, presumably were fitted for further use on the building, and upon the interruption of the work were left in position in the control of defendant and ready to be employed by it whenever it should proceed with the work that plaintiff had been prevented from doing. If they were accepted and retained by defendant, as the evidence tended to show was the fact, it was proper to take them into account as a part of plain. #344 |