#### United States of America For the Use of Elias Lyman Coal Company *v.*United States Fidelity & Guaranty Company.

January Term, 1910.

Present: Rowell, C. J., Munson, Watson, Haselton, and Powers, JJ.

Opinion filed February 11, 1910.

*Attorney and Client*— Admissions *by Attorneys on Trial*— Effect *—Contractor’s Bonds*— *Construction*— *“Material”*— *Discharge of Surety*— Extension *of Time for Performance.*

Admissions made by an attorney in tbe course of a trial for tbe purpose of dispensing with the formal proof of some fact are binding on bis client and irrevocable, except tbat, when it is clearly shown tbat they were made improvidently and by mistake, tbe court, in its discretion, may relieve bim from tbe consequence of bis error.

Coal used by a building contractor to beat a building tbat be is constructing under a contract with specifications tbat require bim to provide fuel for beating while tbe work is going on, is “material” within tbe implied terms of tbe contract, and hence within tbe scope of bis bond given in conformity to tbe Act of Congress of August 13, 1894, for tbe protection of persons supplying material.

A surety on a government contractor’s bond, which provides tbat it is security for tbe performance of tbe contract as well during any period of extension as during tbe original term, and for ,the prompt payment of all labor and materials, is bound by an extension of tbe time for performance, though granted without notice to tbe surety, and without its consent beyond tbe terms of tbe bond.

Covenant on a contractor’s bond given in conformity to the Act of Congress of August 13, 1894. Formal pleadings waived by each party, and all necessary pleadings treated as filed. Partial trial by jury at the March Term, 1909, Chittenden County, *Taylor,*J., presiding. At 'the close of all the evidence the defendant moved for a directed verdict on the grounds recited in the opinion. Motion overruled, to which the defendant excepted; and thereupon by agreement the issue was withdrawn *279from the jury and submitted to tbe court. Judgment, *pro forma,*for the plaintiff. Tbe defendant excepted.

*E. M. Horton*and *J. E. Cushman*for tbe defendant.

Tbe coal used by tbe contractor was not “material” witbin tbe meaning of tbe bond. *Philadelphia to the use of Taylor*v. *Malone,*63 Atl. 539; *Sica*v. *Eimpland,*93 Fed. 403; *Laughlin Go.*y. *Morgan,*114 Fed. 627; *Am. Siirety Go.*v. *Lawrenceville Cement Go.,*110 Fed. 717; *Standard Oil Co.*v. *City Trust Safe Deposit do Surety Go.,*21 App. D. C. 369; *Marble Go.*v. *Burgdorf,*13 App. D. C. 506; *Mochon*v. *Sullivan, 1*Mon. 470; *Phillips*v. *Wright,*5 Sanford 361; Z7. $. v. *Trust Go.,*23 Dist. of Col. App. 153; *¶. S.*v. *Surety Co.,*200 U. S. 197; *Basshor et al. v. B. & O. B. Go.,*3 Atl. 285; *Antietam Paper Go.*v. *Chronicle Pub. Go.,*20 S. E. 366; *Standard Oil Go.*v. *Lane,*44 N. W. 644, 75 Wis. 636, 7 L. R. A. 191; *Central Trust Go.*v. *Texas & St. L. B. Go.,*23 Fed. 703; *Gordon Hardware Go.*v. *8. F. & S. B. Co.,*22 Pac. 407; *Morey*v. *Penn. Slate Go.,*71 Pa. 293; *Allen*v. *Elwert,*29 Ore. 443; *Oppenheimer*v. *Morrell,*12 Atl. 307; *Hinckley <& Go.,*v. *James,*51 Yt. 240.

Usage and regulations can be relied upon. Tbe surety bad a right to expect and rely upon a “written extension” after January 1, 1904. *Jones*v. *Moore,*50 Yt. 53; *Bioux*v. *Byegate etc.,*72 Yt. 148; *Allen*v. *Thrall,*36 Yt. 711; *Hutchinson*v. *Ford,*62 Yt. 97.

*Powell & Powell*for tbe plaintiff.

Watson, J.

At tbe close of tbe evidence tbe defendant moved for a verdict on tbe grounds, (1) that tbe coal wbicb tbe evidence tends to sbow was furnished, is not “material” witbin tbe meaning of the United States statute, tbe bond, contract, or specification; and (2) that there is no competent evidence tending to sbow that any part or all of tbe coal was used for the purpose of beating any of tbe buildings named in tbe specifications attached to tbe principal contract. To tbe overruling of tbe motion defendant excepted. By agreement of counsel tbe issue was then withdrawn from tbe jury and submitted to tbe court by wbicb there was a finding of facts.

*280■When this case was here before (82 Vt. 94, 71 Atl. 1106), it was held that whatever “materials” are fairly within the express or implied terms of the contract are within the scope of the bond, and that the “materials” are to be ascertained from the contract, including the specifications which are made a part thereof, construed like any other contract in view of the work to be performed and in the light of the circumstances surrounding the transaction. The principal contract, in which plans and specifications of the buildings to be erected are referred to and made a part thereof, was admitted in evidence, as were also the specifications of the two barracks and of the bachelor officers’ quarters. These specifications stipulate that the contractor shall provide stoves and fuel in cold or wet weather for heating the buildings while his work is going forward and until it is dry, and all material and work are to be properly protected from the weather. The specifications of the two stables to be erected were separate from the specifications of the other buildings, and were not introduced in evidence.

One question was, whether the coal furnished by'the use plaintiff was all used to heat the barracks and the bachelor officers’ quarters. A witness called by the plaintiff testified that it was used “to heat the buildings.” Whereupon counsel for defendant objected, stating that there seemed to be no necessity for any evidence outside of the contract and specifications. The court said the question of fact put in issue is, whether the coal in question was used for the purpose specified in the specifications, and if no question is made concerning it that will eliminate the evidence. In answer to this, counsel for defendant said: “We make no question but that the coal was used to heat the buildings covered by these specifications.” The plaintiff afterwards being allowed to put in evidence on the same question, the defendant’s counsel undertook to withdraw this concession, but made no claim that it was made improvidently, or by mistake. The record states that leave was not granted by the court to withdraw the concession, and we are controlled by the record in this respect. Later without objection that it contradicted the concession, the defendant introduced evidence tending to show that some of the coal was used in the stables. If in the circumstances the defendant was bound by the concession, the court found that all the coal was used to heat the two barracks *281and the bachelor officers’ quarters; but if the concession should be disregarded such fact was not found. Thus the force of a judicial or solemn admission, distinct and formal, by an attorney in the trial of a cause for the express purpose of dispensing with the formal proof of some fact at the trial, and his right to withdraw the same, are fairly presented.

There can be no doubt that such admissions by attorneys, so made for that purpose, are binding upon their clients, and cn motives of policy and justice are in general conclusive. *Young*v. *Wright,*1 Campb. 139, 141; 1 Greenl. Ev. §186; 1 Taylor Ev. §§772, 783, 820. And the party will be held to the admission, except that when it is clearly shown that the same was made improvidently, and by mistake, the court in its discretion may relieve him of the consequences of his error. 1 Greenl. Ev. §206; 1 Taylor Ev. (10th ed.) §838.

This holding results in substantiating the finding that all the coal in question was used to heat the two barracks and the bachelor officers’ quarters; which finding, taken with the further findings that at the time the coal was so used — between the 25th day of November and the last days of January following — these buildings were nearing completion, the work of plastering, putting on finish, painting, and the like, under the contract, being done thereon, and that the coal was reasonably necessary for the purpose for which it was used, fairly makes the coal “material” within the implied terms of the principal contract, which the contractor thereby obligated itself to furnish, and which was used in the prosecution of the work provided for in the contract; and consequently, under our holdings in this case when previously before us, it is within the scope of the bond. It follows that the defendant’s motion for a verdict was properly overruled.

The principal contract by its terms was to be completed on or before the first day of December, 1903. The time was extended by the government to January 1, 1904, with the consent of the defendant; and later it was further extended by the government. It is said, however, that the second extension was without notice to, or consent by, the defendant, and therefore it is not bound thereby. By express provision, the bond is security to the government for the performance of the principal contract according to the true intent and meaning thereof, as *282well during any period of extension that may be granted on tbe part of tbe United States as during tbe original term, and for prompt and full payments to all persons supplying tbe contractor labor or materials in tbe prosecution of tbe work provided for in said contract. Necessary labor and materials furnished tbe contractor for tbe construction of tbe buildings in accordance with tbe plans and specifications during any extension of time granted by tbe government was as much supplying it labor and materials in tbe prosecution of tbe work provided for in tbe contract as it would have been bad tbe time originally been as extended.

Under tbe provisions of tbe bond it was within tbe power of tbe government, without notice to tbe surety and without its consent beyond that contained in tbe bond, to grant such extension of time for tbe performance of tbe principal contract as it saw fit; and tbe covenant for tbe protection of persons supplying labor and materials manifestly was intended to cover tbe full term allowed for such performance, whether it includes an extension of the original time specified or otherwise.

*Judgment affirmed.*