Cranch, 179, 2 L. ed. 587; Watson v. Jones, | ceptions in an action on a bond to secure 13 Wall. 679, 20 L. ed. 666; Dial v. Rey performance of a building contract, that nolds, 96 U. S. 340, 24 L. ed. 644; Central | the plaintiff gave evidence by several witNat. Bank v. Stevens, 169 U. S. 433, 42 L. nesses that the buildings were not completed. 807, 18 Sup. Ct. Rep. 403. These cases tions, in the particulars set forth in the as. ed according to the plans and specificado not sustain his contention. In Central signment of breaches of such contract, and Nat. Bank v. Stevens it was decided that a that the value, by reason of the omissions, state court had no power to enjoin a party structural defects, and defective materials, whose rights had been adjudged by a circuit was from $2,000 to $3,000 less on each buildcourt of the United States from proceeding ing than if they had been so completed, furwith a sale of property under a decree of nishes no basis for the assertion that there that court. In the other cases cited, except was no evidence of the amount of damage Watson v. Jones, the purpose was to direct sustained from each of the breaches of the ly enjoin parties from proceeding in the contract, but only of the total damage. state courts. In Watson v. Jones was con Appeal — questions reviewable - questions not raised below. sidered what identity of parties, rights, and 2. The objection that there was no evirelief prayed for was necessary to enable the dence of the particular damage for which pendency of an action in one court to be alone a recovery was permitted by the trial pleaded in bar in another court, and it was court, but only evidence as to the total said: “The identity in these particulars damage, cannot be first raised in an appelshould be such that, if the pending case had late court. * already been disposed of, it could be pleaded Building contract--conclusiveness of archiin bar as a former adjudication of the same tect's certificate. matter between the same parties.” The prin 3. The architect's certificate of compleciple was also expressed in that case, and tion according to the contract and its plans sustained by authorities, that the possession and specifications is not conclusive, so as to of property by one court cannot be interbind the owner or relieve the contractor from performance, where the contract, alfered with by another, and, that the act of Congress of March 2, 1793 (1 Stat. at L. 334, obtain such certificate before he is entitled though providing that the contractor must chap. 22, § 5), (now § 720 of the Revised to payment, contains no provision that such Statutes of the United States (U. S. Comp. certificate shall be final and conclusive beStat. 1901, p. 581]), as construed in Diggs tween the parties, but instead provides that v. Wolcott, supra, and Peck v. Jenness, 7 such certificate shall not lessen the responHow. 625, 12 L. ed. 846, is equally conclu- sibility of the contractor, nor exempt him sive against any injunctions from the cir- from liability to replace defective work, cuit court, forbidding the defendants in the contains the positive agreement of the con cuit court, forbidding the defendants in the tractor to perform the work called for in case to take possession of property which an the specifications in the best and most unexecuted decree of a state court required workmanlike manner, and provides that the marshal to deliver to them. The case final payment is to be made only when the at bar has not that feature, nor has it iden- buildings are completed in accordance with tity with the case in the chancery court of the agreement and the plans and specificaShelby county. Its parties and purposes are tions. different. The pendency of a suit in a state court does not deprive a Federal court of ju [No. 245.] risdiction. Gordon v. Gilfoil, 99 U. S. 168, Submitted March 15, 1907. Decided April 8, 25 L. ed. 383; Mutual L. Ins. Co. v. Brune, 1907. 96 U, S. 588, 24 L. ed. 737; Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983; Merritt v. T N ERROR to the Court of Appeals of the American Steel-Barge Co. 24 C. C. A. 530, 49 U. S. App. 85, 79 Fed. 228; Bank of ment which affirmed a judgment of the Su. Kentucky v. Stone, 88 Fed. 383. preme Court of the District in favor of The Circuit Court had jurisdiction, and plaintiff in an action on a bond to secure its decree is affirmed. the performance of a building contract. Affirmed. See same case below, 27 App. D. C. 210. MERCANTILE TRUST COMPANY, Piff. in Statement by Mr. Justice Peckham: The Mercantile Trust Company, by this writ of error, seeks to review a judgment of MELVILLE D. HENSEY. the court of appeals of the District of CoAppeal—bill of exceptions-statement as to lumbia, aftırming a judgment against it of evidence. the supreme court of the District for the 1. A general statement in a bill of ex- / sum of $8,468. The action was brought up*Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, $$ 1293-1296. fEd. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, $81326-1332. I District Porto Columbia to reviene la judge on a bond for $50,000 executed January 24, | if required, satisfactory evidence that no The contract provided that Jones, for the decision will be final.” mentioned therein, would, Although this contract was entered into within seven months from the date thereof, in January, 1900, and under it the houses well and sufficiently erect and replace all were to be completed in seven months, yet, defective work and finish the twenty-one for some reason, Bates Warren, the person brick dwelling houses mentioned “agreeably named in the contract, did not appoint an to the drawings and specifications made by architect until April, 1901, when he appointMelville D. Hensey, architect, and which ed Mr. W. J. Palmer. The evidence given, plans and specifications are signed by the on the part of the plaintiff tended to prove said parties hereto and hereunto annexed, that the contractor, Jones, abandoned the within the time aforesaid, in a good, work work on the houses early in the fall of 1900, manlike, and substantial manner, to the sat- leaving them uncompleted, and the work was isfaction and under the direction of Bates otherwise carried on during the following Warren, or the architect placed in charge by winter, but that there was no architect in him to be testified by writing or certificate charge until Mr. Palmer's appointment. under the hand of Bates Warren, or the ar- From that time Mfr. Palmer seems to have chitect placed in charge by him, and also in some degree superintended the work, and shall and will find and provide such good, on the 29th of July, 1901, reported in proper, and and sufficient material of all writing to Mr. Warren the completion of kinds whatsoever shall be proper the houses in question. In his letter Mr. and sufficient for the the completing and Palmer said: "The work has been done acfinishing all of said twenty-one houses cording to my interpretation of the plans and other works of the said buildings and specifications, and where deviations mentioned in the said specifications for have been made from the plans and specifithe sum of $89,250, to be paid as set out in cations it has been where the same were inthe schedule of payments hereto annexed, consistent and ambiguous, and in all cases and signed by the parties hereto and made a of inconsistency and ambiguity the work has part hereof." Hensey, “in consideration of been done according to the interpretation the covenants and agreements being strictly most beneficial to the houses." performed and kept by the said party of This action was subsequently commenced the second part as specified,” agreed to pay for the purpose of recovering the damages the contractor the above-named sum “as the which the plaintiff Hensey alleged he had work progresses, in the manner and at the sustained by reason of the failure of Jones time set out in the schedule of payments to fulfil and carry out the contract. Issue hereto annexed and signed by the parties being duly joined between the parties, the hereto and made a part of this agreement; plaintiff gave evidence tending to prove that provided that in each of the said cases a cer- the houses were not completed within the tificate shall be obtained from and signed by contract time, nor according to the plans the architect in charge that the contractor and specifications in the particulars stated, is entitled to payment, said certificate, how- and that the value of the houses was beever, in no way lessening the total and final tween two and three thousand dollars less responsibility of the contractor; neither on each house than it would have been had shall it exempt the contractor from liability they been completed according to the conto replace work if it be afterwards discov- tract, plans, and specifications. The defendered to have been ill done or not according to ant duly objected to such evidence and took the drawings and specifications, either in exceptions to its admission. execution or materials; and, further, that A verdict was rendered in favor of the the party of the second part shall furnish, plaintiff in the sum of $8,468, after allow as ing the defendant's claim of set-off of $29,- | architect under his interpretation of the 032. plans and specifications, there was in reality no evidence before the jury upon which Messrs. Hayden Johnson and John Rid- they could have estimated the damages unout for plaintiff in error. der the instruction given them by the court; Messrs. Arthur A. Birney and Henry F. that all the witnesses testified simply as to Woodard for defendant in error. the total diminution in value, as a result of the three items mentioned,-omissions, Mr. Justice Peckham, after making the structural defects, and defective material, foregoing statement, delivered the opinion —while the court charged, agreeably to the of the court: twelfth request of the plaintiff in error, that After even more than the usual number they were at liberty only to consider damof pleas, additional pleas, replications, re- ages resulting from omissions. joinders, and deinurrers, which are to be The twelfth prayer of the plaintiff in erfound in the pleadings in this District, the ror, which its counsel asserts was granted by parties came to trial on the issues of fact, the court, is as follows: and the plaintiff recovered a verdict as stat- “The jury are instructed that, in coned. The judgment entered on the verdict sidering the question of structural defects, was affirmed by the court of appeals. 27 they are not at liberty to consider anything App. D. C. 210. but omissions, if any they find, and are not The grounds submitted in this court for entitled to consider substitutions of mathe reversal of the judgment are reduced to terials or modifications of construction made two, set forth in the brief for the plaintiff with the approval of the architect, under his in error, as follows: interpretation of the plans and specifica“First, that the testimony of all the plain- tions." tiff's witnesses who testified in respect of de- There are several answers to the first ficiencies in construction being as to the ground urged by the plaintiff in error for a total damage sustained by the plaintiff as reversal of this judgment. the result of structural defects, defective (1) It does not appear that there is any materials, and omissions, and the trial court basis in the record for the assertion of the having ruled that the jury should consider plaintiff in error that there was no evidence omissions alone, there was no basis upon given showing the amount of damage suswhich the jury could segregate damages tained from each of the breaches of the concaused by defective materials and damages tract, but only a statement of the sum total caused by omissions, so as to reach a ver sustained by reason of all the breaches. dict in accordance with the court's ruling. The bill of exceptions does not purport to "Second, that under the building agree- set forth all the evidence given upon the ment, the architect's certificate of comple- | trial of the case. There is a general statetion should have been held to be final and ment that the plaintiff gave evidence by sevconclusive of such completion, there being eral witnesses that the houses were not comno evidence of fraud or bad faith on his pleted according to the plans and specificapart.” tions in the contract, in the particulars set In regard to this first ground of reversal forth in the assignment of breaches, and that the record is at first sight somewhat con- the value, by reason of the omissions, strucfused. The plaintiff in error asserts that tural defects, and defective materials was there was no evidence given segregating the from two to three thousand dollars less on items upon which the sum total of the dam- each house than it would have been had age was arrived at; that the evidence given they been completed according to the on the part of the plaintiff was that the contract, plans, and specifications. This houses were each worth between two and is not at all equivalent to saying that three thousand dollars less on account of the there is evidence except as the failure of plaintiff in error to fulfil the con- total damage. It is much more probditions of the contract, but that it is im- able that the trial such evidence possible to discover from that evidence what was given, and that the statement in amount of the damage was due to omissions, the bill is simply a summary of the total what amount to structural defects, and what amount of damage, which the evidence amount to defective material; and, as the showed in detail had been sustained from court instructed the jury that in considering each particular breach. It does not mean the question of structural defects they were that there was no evidence of the amount of not at liberty to consider anything but omis. the damage caused from each breach that sions, and were not entitled to consider sub- was proved. It is very improbable that the stitutions of material or modifications of case was tried in any such manner. The consiruction made with the approval of the amount of damage on account of each breach on that was proved would most naturally have parties and was a bar to the maintenance of also been proved as part of the case. this action. It is part of the duty of a plaintiff in er- Mr. Palmer, in his letter or certificate, reror affirmatively to show that error was ported the completion of the buildings accommitted. It is not to be presumed, and cording to his interpretation of the plans will not be inferred from a doubtful state and specifications, and that where deviations ment in the record. We think in this case had been made from them it was where the the record fails to show the absence of the same were inconsistent and ambiguous, and evidence as argued by the plaintiff in error. in all cases of inconsistency and ambiguity (2) If, however, we assume that there was the work had been done according to the no such evidence in detail and only a con- interpretation most beneficial to the houses. clusion given as to the total amount of We do not think this certificate was condamage, and if we further assume that the clusive, and it did not, therefore, bar the twelfth request of the plaintiff in error was maintenance of this action. The language of charged by the court, and the right of re- the contract, upon which the claim is based, covery was thereby limited as stated, it does is set out in the foregoing statement, and not appear that the plaintiff in error made while it provides that the work shall be comany point on the trial of the absence of pleted agreeably to the drawings and specifithe evidence of damage in detail, or that the cations made by M. D. Hensey, architect, in court was asked to direct a verdict for the a good, workmanlike, and substantial mandefendant on account of its absence. If ner, to the satisfaction and under the dithere were no evidence of the amount of rection of Bates Warren, or the architect damage caused by each particular breach, placed in charge by him, to be testified by but only of the total amount sustained, and writing or certificate under the hand of the plaintiff in error desired to avail itself Bates Warren, or the architect placed in of that objection to a recovery for the par. charge by him, it omits any provision that ticular damage permitted, counsel should the certificate shall be final and conclusive have called the attention of the court to the between the parties. In other words, the point, and requested a direction of a verdict contract provides that before the builder can for the defendant on that ground. No such claim payment at all he must obtain the cerrequest was made, and nothing was said tificate of the architect; but, after such cerwhich would show that counsel for the tificate has been given, there is no provision plaintiff in error had any such objection in which bars the plaintiff from showing a vio. mind, and he cannot argue an objection here lation of the contract in material parts, by which was never taken in the trial court. which he has sustained damage. A contract (3) In truth the court did not limit the which provides for the work on a building to recovery of damages, as is set forth in the be performed in the best manner and the maabove-mentioned twelfth request to charge, terials of the best quality, subject to the but permitted a recovery for the total sum acceptance or rejection of an architect, all to of the various items proved. be done in strict accordance with the plans The defendant in error insists that the and specitications, does not make the actwelfth request, instead of being charged, ceptance by the architect final and conclu. was in fact refused by the court. We think sive, and will not bind the owner, or relieve that in this assertion the defendant in error the contractor from the agreement to peris perfectly right. Some little confusion at form according to plans and specifications. first appears on looking in the record, Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. caused by a mistaken reference to the re- 449; Fontano v. Robbins, 22 App. D. C. quest which was charged, but a more careful 253. There is also in the contract the properusal of all that appears regarding the vision already mentioned in the statement of facts in regard to payments as the work procharge of the court, and the requests and refusals to charge, bring us to the conclusion gressed, which showed that a certificate was fusals to charge, bring us to the conclusion to be obtained from and signed by the archithat there is not the slightest doubt that the tect in charge before the contractor was encourt refused the twelfth request, instead of titled to payment, but it was provided that charging it. In such case there was no oc- the certificate should “in no way lessen the casion for segregating the items of dam- total and final responsibility of the contractage proved. or; neither shall it exempt the contractor This leaves the argument of the plaintiff from liability to replace work, if it be afterin error upon the first ground wholly wards discovered to have been done ill, or without merit. not according to the drawings and specificaThe other ground taken for a reversal | tions, either in execution or materials." in this case is that the architect's certificate There is the further positive agreement of of July 29, 1901, was conclusive between the the contractor to execute and complete all the work as set forth in the specifications in tried” for any crime or offense committed the best and most workmanlike manner, and prior to his extradition other than the of. also that final payment is to be made only fense for which he was surrendered until when the houses are completed in accordance he shall have had an opportunity of return. with the agreement and the plans and speci- ing to the country from which he was sur. rendered, does not justify the imprisonfications prepared therefor. ment, upon a former conviction for another The whole contract shows, in our opinion, and different offense, of a person extradited that the certificate that the houses had been from Canada for an offense against the completed according to the contract and its United States, until he has had an opporplans and specifications was not to be con- tunity to return to Canada, especially clusive of the question, and the plaintiff was where extradition has been refused for the not thereby precluded from showing that in other offense,-since this omission is inadefact the contractor had not complied with quate to overcome the positive provisions his contract, and the plaintiff had thereby Comp. Stat. 1901, pp. 3595, 3596, and the of U. S. Rev. Stat. 88 5272, 5275, U. S. sustained damage. The cases cited in the otherwise manifest scope and object of the opinion of the court below (Fontano v. Rob- treaty, and the earlier Ashburton treaty of bins, supra; Bond v. Newark, 19 N. J. Eq. 1842, which are to limit imprisonment as 376; Memphis, C. & L. R. Co. v. Wilcox, 48 well as the trial to the crime for which exPa. 161; Adlard v. Muldoon, 45 Ill. 193) tradition has been demanded and granted. are in substance to this effect. To make | Statutes-repeal by implication-effect of such a certificate conclusive requires plain subsequent treaty. language in the contract. It is not to be 2. A later treaty will not be regarded implied. Central Trust Co. v. Louisville, St. as repealing an earlier statute by implica tion unless the two are absolutely incomL. & T. R. Co. 70 Fed. 282, 284. The cases , of Sweeney v. United States, 109 U. S. 618, without antagonizing the treaty. * patible, and the statute cannot be enforced 27 L. ed. 1053, 3 Sup. Ct. Rep. 344; Martinsburg & P. R. Co. v, March, 114 U. S. [No. 481.] 549, 29 L. ed. 255, 5 Sup. Ct. Rep. 1035; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. Argued March 4, 5, 1907. Decided April 8, 185, 34 L. ed. 917, 11 Sup. Ct. Rep. 290; 1907. Sheffield & B. Coal, Iron & R. Co. v. Gordon, 151 V. S. 285, 38 L. ed. 164, 14 Sup. Ct . A PPEAL from the Circuit Court of the United States for the Southern District Rep. 343,—were all cases in which the contract itself provided that the certificate of New York to review an order discharging, should be final and conclusive between the on habeas corpus, a person extradited from parties. Canada, for an offense against the United The only case in which the certificate of States, from imprisonment upon a former the architect or his decision was by the con conviction for another and different offense. tract made final was in case of doubt as to Affirmed. the meaning of drawings, in which case ref Statement by Mr. Justice Peckham: erence was to be made to the architect in The respondent sued out a writ of habeas charge, whose decision was to be final. Both grounds urged by the plaintiff in er- corpus from the circuit court of the United ror in this court for reversal of the judg- States for the southern district of New ment are untenable, and it must therefore be York, directed to the agent and warden of affirmed. the state prison at Sing Sing, in the state of New York, where he was confined, and Mr. Justice Brewer took no part in the pursuant to the terms of the writ the redecision of this case. spondent was brought before that court in New York city, and after a hearing the court ordered his discharge. The agent and ADDISON JOHNSON, Agent and Warden warden has appealed to this court from of the State Prison of the State of New that order. York at Sing Sing, N. Y., Appt., The facts appearing on the hearing be fore the circuit court on the return to the CHARLES C. BROWNE. writ were these: The respondent was an examiner of silks Extradition-imprisonment under prior con- in the appraisers' department in the port viction of other offense. 1. The omission of the words "or be the circuit court of the United States for of New York, and in the spring of 1903, in punished” from the provision of art, 3 of the extradition treaty of July 12, 1889 (26 the southern district of New York, a grand Stat. at L. 1508), with Great Britain, that jury found two indictments against him, no person extradited "shall be triable or be one being found against him jointly with *Ed. Note.--For cases in point, see vol. 46, Cent. Dig. Treaties, § 11. V. |
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