Cranch, 179, 2 L. ed. 587; Watson v. Jones, I 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. ed according to the plans and specificanesses that the buildings were not completed. 807, 18 Sup. Ct. Rep. 403. These cases tions, in the particulars set forth in the asdo 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. Appeal questions reviewable - questions not raised below.

2. The objection that there was no evidence of the particular damage for which alone a recovery was permitted by the trial court, but only evidence as to the total damage, cannot be first raised in an appellate court. *

Building contract-conclusiveness of architect's certificate.

state courts. In Watson v. Jones was considered what identity of parties, rights, and relief prayed for was necessary to enable the pendency of an action in one court to be pleaded in bar in another court, and it was said: "The identity in these particulars should be such that, if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties." The principle was also expressed in that case, and sustained by authorities, that the possession of property by one court cannot be interfered with by another, and, that the act of Congress of March 2, 1793 (1 Stat. at L. 334, chap. 22, § 5), (now § 720 of the Revised Statutes of the United States [U. S. Comp. Stat. 1901, p. 581]), as construed in Diggs v. Wolcott, supra, and Peck v. Jenness, 7 How. 625, 12 L. ed. 846, is equally conclusive against any injunctions from the circuit court, forbidding the defendants in the case to take possession of property which an unexecuted decree of a state court required the marshal to deliver to them. The case at bar has not that feature, nor has it identity with the case in the chancery court of Shelby county. Its parties and purposes are different. The pendency of a suit in a state court does not deprive a Federal court of jurisdiction. Gordon v. Gilfoil, 99 U. S. 168, Submitted March 15, 1907. Decided April 8, 25 L. ed. 383; Mutual L. Ins. Co. v. Brune, 96 U. S. 588, 24 L. ed. 737; Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983; Merritt v.

3. The architect's certificate of completion according to the contract and its plans and specifications is not conclusive, so as to bind the owner or relieve the contractor from performance, where the contract, although providing that the contractor must obtain such certificate before he is entitled to payment, contains no provision that such certificate shall be final and conclusive between the parties, but instead provides that such certificate shall not lessen the responsibility of the contractor, nor exempt him from liability to replace defective work, contains the positive agreement of the contractor to perform the work called for in the specifications in the best and most workmanlike manner, and provides that final payment is to be made only when the buildings are completed in accordance with the agreement and the plans and specifica

tions.†

[No. 245.]

1907.

American Steel-Barge Co. 24 C. C. A. 530. N ERROR to the Court of Appeals of the

49 U. S. App. 85, 79 Fed. 228; Bank of Kentucky v. Stone, 88 Fed. 383.

The Circuit Court had jurisdiction, and its decree is affirmed.

MERCANTILE TRUST COMPANY, Plff. in

Err.,

V.

MELVILLE D. HENSEY.

District of Columbia to review a judgment which affirmed a judgment of the Supreme Court of the District in favor of plaintiff in an action on a bond to secure the performance of a building contract. Affirmed.

See same case below, 27 App. D. C. 210.

Statement by Mr. Justice Peckham: The Mercantile Trust Company, by this writ of error, seeks to review a judgment of the court of appeals of the District of Co

Appeal-bill of exceptions-statement as to lumbia, affirming a judgment against it of

evidence.

the supreme court of the District for the
sum of $8,468. The action was brought up-

1. A general statement in a bill of ex-
*Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1293-1296.
†Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 1326-1332.

was to be made "when the houses are fully completed in accordance with the said agreement and the plans and specifications prepared therefor."

All the materials were to be new and of the best quality, and the contractor was to "execute and complete all the work as set forth in the specifications and drawings in the best and most workmanlike manner." It was agreed that "in all cases of doubt as to the meaning of the drawings reference is to be made to the architect in charge, whose decision will be final."

Although this contract was entered into in January, 1900, and under it the houses were to be completed in seven months, yet, for some reason, Bates Warren, the person named in the contract, did not appoint an architect until April, 1901, when he appointed Mr. W. J. Palmer. The evidence given, on the part of the plaintiff tended to prove that the contractor, Jones, abandoned the work on the houses early in the fall of 1900, leaving them uncompleted, and the work was otherwise carried on during the following winter, but that there was no architect in charge until Mr. Palmer's appointment. From that time Mr. Palmer seems to have in some degree superintended the work, and on the 29th of July, 1901, reported in writing to Mr. Warren the completion of the houses in question. In his letter Mr. Palmer said: "The work has been done according to my interpretation of the plans and specifications, and where deviations have been made from the plans and specifications it has been where the same were inconsistent and ambiguous, and in all cases of inconsistency and ambiguity the work has been done according to the interpretation most beneficial to the houses."

on a bond for $50,000 executed January 24, | if required, satisfactory evidence that no 1900, by the company as surety for one lien does or can exist upon the work." The Jones, for the performance by him of a writ-last payment provided for in the contract ten contract entered into on the same date between him and the defendant in error, who was the plaintiff below, relative to the completion by Jones for the defendant in error of certain houses already in process of construction in the city of Washington. The condition of the bond was, in substance, that if the principal, Jones, should duly and faithfully perform and fulfil all the conditions of the contract entered into between him and the defendant in error the bond was to be void, otherwise to remain in force. The contract provided that Jones, for the consideration mentioned therein, would, within seven months from the date thereof, well and sufficiently erect and replace all defective work and finish the twenty-one brick dwelling houses mentioned "agreeably to the drawings and specifications made by Melville D. Hensey, architect, and which plans and specifications are signed by the said parties hereto and hereunto annexed, within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of Bates Warren, or the architect placed in charge by him to be testified by writing or certificate under the hand of Bates Warren, or the architect placed in charge by him, and also shall and will find and provide such good, proper, and sufficient material of all kinds whatsoever as shall be proper and sufficient for the the completing and finishing all of said twenty-one houses and other works of the said buildings mentioned in the said specifications for the sum of $89,250, to be paid as set out in the schedule of payments hereto annexed, and signed by the parties hereto and made a part hereof." Hensey, "in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part as specified," agreed to pay the contractor the above-named sum "as the work progresses, in the manner and at the time set out in the schedule of payments hereto annexed and signed by the parties hereto and made a part of this agreement; provided that in each of the said cases a certificate shall be obtained from and signed by the architect in charge that the contractor is entitled to payment, said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work if it be afterwards discovered to have been ill done or not according to the drawings and specifications, either in execution or materials; and, further, that the party of the second part shall furnish,

This action was subsequently commenced for the purpose of recovering the damages which the plaintiff Hensey alleged he had sustained by reason of the failure of Jones to fulfil and carry out the contract. Issue being duly joined between the parties, the plaintiff gave evidence tending to prove that the houses were not completed within the contract time, nor according to the plans and specifications in the particulars stated, and that the value of the houses was between two and three thousand dollars less on each house than it would have been had they been completed according to the contract, plans, and specifications. The defendant duly objected to such evidence and took exceptions to its admission.

A verdict was rendered in favor of the plaintiff in the sum of $8,468, after allow

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.

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 error affirmatively to show that error was committed. It is not to be presumed, and will not be inferred from a doubtful statement in the record. We think in this case the record fails to show the absence of the evidence as argued by the plaintiff in error. (2) If, however, we assume that there was no such evidence in detail and only a conclusion given as to the total amount of damage, and if we further assume that the twelfth request of the plaintiff in error was charged by the court, and the right of recovery was thereby limited as stated, it does not appear that the plaintiff in error made any point on the trial of the absence of the evidence of damage in detail, or that the court was asked to direct a verdict for the defendant on account of its absence. If there were no evidence of the amount of damage caused by each particular breach, but only of the total amount sustained, and the plaintiff in error desired to avail itself of that objection to a recovery for the particular damage permitted, counsel should have called the attention of the court to the point, and requested a direction of a verdict for the defendant on that ground. No such request was made, and nothing was said which would show that counsel for the plaintiff in error had any such objection in mind, and he cannot argue an objection here which was never taken in the trial court.

(3) In truth the court did not limit the recovery of damages, as is set forth in the above-mentioned twelfth request to charge, but permitted a recovery for the total sum of the various items proved.

The defendant in error insists that the twelfth request, instead of being charged, was in fact refused by the court. We think that in this assertion the defendant in error is perfectly right. Some little confusion at first appears on looking in the record, caused by a mistaken reference to the request which was charged, but a more careful perusal of all that appears regarding the charge of the court, and the requests and refusals to charge, bring us to the conclusion fusals to charge, bring us to the conclusion that there is not the slightest doubt that the that there is not the slightest doubt that the court refused the twelfth request, instead of charging it. In such case there was no occasion for segregating the items of damage proved.

This leaves the argument of the plaintiff in error upon the first ground wholly without merit.

The other ground taken for a reversal in this case is that the architect's certificate of July 29, 1901, was conclusive between the

Mr. Palmer, in his letter or certificate, reported the completion of the buildings according to his interpretation of the plans and specifications, and that where deviations had been made from them it was where the same were inconsistent and ambiguous, and in all cases of inconsistency and ambiguity the work had been done according to the interpretation most beneficial to the houses. We do not think this certificate was conclusive, and it did not, therefore, bar the maintenance of this action. The language of the contract, upon which the claim is based, is set out in the foregoing statement, and while it provides that the work shall be completed agreeably to the drawings and specifications made by M. D. Hensey, architect, in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of Bates Warren, or the architect placed in charge by him, to be testified by writing or certificate under the hand of Bates Warren, or the architect placed in charge by him, it omits any provision that the certificate shall be final and conclusive between the parties. In other words, the contract provides that before the builder can claim payment at all he must obtain the certificate of the architect; but, after such certificate has been given, there is no provision which bars the plaintiff from showing a violation of the contract in material parts, by which he has sustained damage. A contract which provides for the work on a building to be performed in the best manner and the materials of the best quality, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications, does not make the acceptance by the architect final and conclusive, and will not bind the owner, or relieve the contractor from the agreement to perform according to plans and specifications. Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449; Fontano v. Robbins, 22 App. D. C. 253. There is also in the contract the provision already mentioned in the statement of facts in regard to payments as the work progressed, which showed that a certificate was to be obtained from and signed by the archito be obtained from and signed by the architect in charge before the contractor was entitled to payment, but it was provided that the certificate should "in no way lessen the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings and specifications, either in execution or materials." There is the further positive agreement of the contractor to execute and complete all

the work as set forth in the specifications in the best and most workmanlike manner, and also that final payment is to be made only when the houses are completed in accordance with the agreement and the plans and specifications prepared therefor.

tried" for any crime or offense committed prior to his extradition other than the offense for which he was surrendered until he shall have had an opportunity of returning to the country from which he was surrendered, does not justify the imprisonment, upon a former conviction for another and different offense, of a person extradited from Canada for an offense against the United States, until he has had an opportunity to return to Canada,-especially where extradition has been refused for the

other offense, since this omission is inadequate to overcome the positive provisions of U. S. Rev. Stat. §§ 5272, 5275, U. S. Comp. Stat. 1901, pp. 3595, 3596, and the otherwise manifest scope and object of the treaty, and the earlier Ashburton treaty of 1842, which are to limit imprisonment as well as the trial to the crime for which extradition has been demanded and granted. Statutes-repeal by implication-effect of subsequent treaty.

The whole contract shows, in our opinion, that the certificate that the houses had been completed according to the contract and its plans and specifications was not to be conclusive of the question, and the plaintiff was not thereby precluded from showing that in fact the contractor had not complied with his contract, and the plaintiff had thereby sustained damage. The cases cited in the opinion of the court below (Fontano v. Robbins, supra; Bond v. Newark, 19 N. J. Eq. 376; Memphis, C. & L. R. Co. v. Wilcox, 48 Pa. 161; Adlard v. Muldoon, 45 Ill. 193) are in substance to this effect. To make such a certificate conclusive requires plain language in the contract. It is not to be implied. Central Trust Co. v. Louisville, St. L. & T. R. Co. 70 Fed. 282, 284. The cases of Sweeney v. United States, 109 U. S. 618, 27 L. ed. 1053, 3 Sup. Ct. Rep. 344; Martinsburg & P. R. Co. v. March, 114 U. S. 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; Sheffield & B. Coal, Iron & R. Co. v. Gordon,

151 U. S. 285, 38 L. ed. 164, 14 Sup. Ct.

Rep. 343,-were all cases in which the contract itself provided that the certificate should be final and conclusive between the parties.

The only case in which the certificate of the architect or his decision was by the contract made final was in case of doubt as to the meaning of drawings, in which case reference was to be made to the architect in charge, whose decision was to be final.

Both grounds urged by the plaintiff in error in this court for reversal of the judgment are untenable, and it must therefore be

2. A later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible, and the statute cannot be enforced without antagonizing the treaty. *

[No. 481.]

1907.

A United States for the Southern District

PPEAL from the Circuit Court of the

of New York to review an order discharging, on habeas corpus, a person extradited from Canada, for an offense against the United States, from imprisonment upon a former conviction for another and different offense. Affirmed.

Statement by Mr. Justice Peckham:

The respondent sued out a writ of habeas corpus from the circuit court of the United States for the southern district of New York, directed to the agent and warden of 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.

affirmed.

ADDISON JOHNSON, Agent and Warden of the State Prison of the State of New York at Sing Sing, N. Y., Appt.,

v.

CHARLES C. BROWNE. Extradition-imprisonment under prior conviction of other offense.

1. The omission of the words "or be punished" from the provision of art, 3 of the extradition treaty of July 12, 1889 (26 Stat. at L. 1508), with Great Britain, that no person extradited "shall be triable or be

spondent was brought before that court in New York city, and after a hearing the court ordered his discharge. The agent and warden has appealed to this court from that order.

The facts appearing on the hearing before the circuit court on the return to the writ were these:

The respondent was an examiner of silks in the appraisers' department in the port of New York, and in the spring of 1903, in the circuit court of the United States for the southern district of New York, a grand jury found two indictments against him, one being found against him jointly with

*Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Treaties, § 11.