BOWl!! 17. UNITED STATES.
761
lease. George v. Tate, 102 U. S. 564. The replication to the second and third pleas must therefore be held bad on demurrer. The fourth and fifth pleas set forth an accord and satisfaction and the payment of a specific sum agreed upon between plaintiff and defendant to be received by the former in full settlement of his claim. The replication neither admits nor denies the receipt of this sum. To that extent, it does not meet the issue tendered by the pleas. The replication, moreover, contains long averments to the effect that the plaintiff was induced to agree to the settlement of his claim in the manner set forth by fraud and imposition. This is merely pleading evidence. If, through any fraudulent practices of the defendant, the plaintiff was 80 deceived as to the character and condition of his claim against defendant that the minds of the parties did not in fact meet,-in other words, that there was no accord and satisfaction,-such facts may be shown under a replication joining issue upon the defense raised by the plelt. Demurrer to replication sustained, with leave to tile a new replication within 20 days, if so advised.
BOWE fl. UNITED STATES.
(Circuit Court, N. D. Georgia. April SII, 1890.)
L
CoWl'ILUl'1'-ExTRAS-ARBITRATOR.
t.
Where a A'overnment contract provides that the work done and the materials furnished shall be subject. to the inspection of a certain officer, who shall have full power to reject any work Or materials which in his opinion do not conform to the plans and sp8CificaV-ons of the contract, the contractor can have no extra claim against the government for work done and materials furnished under the requirementsof such officer, or for delay in the work caused by such requirements, where the officer made his requirements in good faith, in order to compel the execution of the contract as he understood it, and the contractor failed to make, at the time, any claim for extra compensation for work or material which he now insists were outside of the contract. An agreement between a government contractor and one of the sureties on his bond, by which the surety agrees to furnish the money necessary for carrying out the contract, and the contractor agrees to divide the profits with hiIn, does not amount to a transfer of the contract, within the meaning of Rev. St. U. s. 5 8787, which declares that the transfer of a public contract shail annul it.
SAME-AsSIGNMENT.
a.
SAME-ACTION AGAINST GOVERNMENT.
Under Act Congo March 8,1887,0. 359, which allows suits to be brought against the United States "upon contract, expressed or implied, or for damages in cases not sounding in tort, n an action may be brought by a contractor for extra work done by him under the direction of the government's agent, and for damages for an improper interference by such agent with the fulftllnient of the contract.
At Law. Action by William F. Bowe against the United States under the act of March 3, 1887, (c. 359,) which provides that actions may be brought against the United States "upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or un. liquidated, in cases not sounding in tort." Rev. St. U. S. § 3737. pro-
FEDERAL
vo}. 42.
1idesthatno.pQblic contract shall. be transferred by the party with whom it is made, and that. any such transfer shall cause the annulment of the contract. Arnold« Arnold, for plaintiff. S. A. Darnell, U. S. Atty., and E. A. AngUr, Asst. Atty. N.J. Hammond, for J. W. Jacobs. NEWMAN, J. This is a suitbrQught by William F. Bowe against the United States under the provisions of the act of congress of March 3, 1887, in which he alleges that on the 30th day of June, 1886, the said plaintiff,with J. W. English and Y. E. Maher as securities, entered into a written contract with the United States, through its agents, a copy of which is attached. He further alleges that the contract was for the erectionof five certain public buildings, to be used as armyquartera, near Atlanta, Ga. ; and, for the consideration therein named, plaintiff, being a; buildiQ,gcontra.ctor, ulldertook. the Same. The contract refers to certain plans and specifications of the five buildings to be erected, and by one of the terms of the contract these plans and specifications were to govern in the erection of the buildings, and this was the consideration moving the plaintiff to enter into the thing. Plaintiff made his calculations accordingly, and estimated the quantity and quality of the material and work to be used, taking into consideration the character of the buildings to be constructed, and the purposes for which the same were to be used; and also the plans and Plaintiff computed the time within which, reasonably, said buildings could be completed by carrying out the contract in good faith, and according to a just and reasonable construction thereof.· He Went so far as to take other buildings to begin after the qompletion of this contract. Within a: reasonable time after the executiou,'ofsaid contract,he began work on the same, and employed a large force ofartisans arid laborers, and gave orders for material, his guide being said plans andapecifications, and consideration thereof, consistent with the character of the buildings to be· erected. Soon thereafter the agent of defendant, one Jacobs, whose duty it was to represent the defendant throughout the transactions, began to change .and vary the construction of said bliildings from the terms of the plans and specifications in ,many particulars, and added considerably thereto. AU of these variaations and additions plaintiff made and completed at the special instance and request of said Jacobs, acting as a duly-authorized agent of defendant. Said extra work was for the benefit of defendant, who has since acquiesced in and ratified the same. Plaintiff has performed and completed all his duties under tbeconLract, and defendant has paid the consideration therein stipulated. Defendant has refused, and still refuses, to pay plaintiff for the labor and material used on said buildings which were not contemplated and included in said written contract and speeifications. Plaintiff avers that by no reasonable intendment could said labor and material just referred to be included under the said written contract. The discretion reserved therein to defendant's agent. Jacobs, of approving workmanship and material is not an arbitrary discretion,
BQWE fl. UNITED STATES.
763
but was to he exercised reaesonably, and in the light of the whole contract, considering the purposes for which said buildings were to be used, to-wit, quarters for soldiers. Said Jacobs, as agent for, and with the subsequent ratification of, defendant, has frivolously ,and without reason or just cause, condemned from time to time, during the progress of the work, much material and workmanship, requiring the· plaintiff to do the same over in a different way. On account of this plaintiff lost much material and labor, having to replace that which was suitable for the purpose in,tended by such other material and labor as suited the whims and caprices of said Jacobs; also, at divers times, said Jacobs, acting for defendant, discharged without cause various workmen in plaintiff's employ, and secured others at higher wages, though no more competent than those discharged. The plaintiff further avers that, through. the general officious, meddlesome, arbitrary, and arrogant conduct of said Jacobs,completion of the contract by plaintiff was unnecessarily delayed 12 months. All the work done by plaintiff not covered by said plans and specifications was done by plaintiff with the. understanding, communicated to defendant, that the same was not covered, by said contract. Plaintiff also gave notice to defendant that all rejected workmanship and material which corresponded to, and was a substantial compliance with, said plans and specifications would have to be accounted for to plaintiff, together with all extra cost incurred in making the change. Plaintiff shows that he remonstrated with defendant's said agent, Jacobs, against his unwarranted interference with work and men, which interference had caused plaintiff's payments to be delayed, and the loss ofinterest thereon. Atthis time plaintiff had no right of action against the United States in such case, and he was compelled to obey every whim and order of said Jacobs at the risk of losing his contract altogether. Then follows a specific enumeration of plaintiff's charges. To this declaration a demurrer was interposed, on the following grounds: (1) Because. no cause of action was set forth. (2) the suit is predicated on the act of congress approved March 3, 1887 t whereas the bond on which the thing was based was executed the 30th of June, 1886, and the act is not retroactive in its terms or by intendment·. (3) Because there is a joinder in the suit of an action ex contractu. and ex delicto. (4) Because the suit is not verified, and does not pray for. judgment, as required by the act of March 3, 1887. (5) Because the plaintili"s remedy, if he had or has one, is an appeal to the quartermaster general, as condition precedent to bringing suit. (6) Because, by the terms of the bond on which plaintiff sues, "all the material furnished and work performed shall be of the quality described in the said specincations, and subject, during the entire work, to the inspection, approval, or rejection of the party of the first part; and the said party of the first part, or his agent, shall have full power to reject any material or workmanship which in their opinion is not in every respect in complete conformity with the aforesaid plans and specifications;" also, because by an in said bond, "that no allowance shall be made for extra work claimed to have been done, unless provided for beforehand
764
FEDERAL REPORTER,
vol. 42.
by written agreement to that effect, specifying the cost of the same;" and a fair construction of plaintiff's suit shows it is an attempt to vary, alter, and add to a solemn written instrument by parol; and because, under said bond and the law, said Capt. J. W. Jacobs could not enter into the verbal covenants set up by the plaintiff. (7) Because, by the terms of the contract, 'lthe United States officer in charge, or his agent, are to have at all timesac6ess to the work, which is to be entirely under his control, and may, by written notice, require any contractor to dismiss forthwith such workmen as he deems incompetent or careless." The first, second, third, and fifth grounds of the demurrer were expressly overruled. The declaration was amended so as to relieve it of the objections made by the fourth ground of the demurrer. As to the sixth and seventh grounds of demurrer, the court made this order: "The court only passes upon the 6th and 7th grounds of the demurrer so far as to determine to hear the evidence before passing upon the legal question raised in the contract, and the effect of thA stipulations in the contract set up in the demurrer." Defendant filed a plea of general issue, and plea for payment in full for all work done for it by the plaintiff. The court has heard evidence at considerable length from witnesses for both plaintiff and defendant on the issues involved, and on the various items embraced in the suit and the subject of contest. The following facts, as applicable to the entire case, may now be stated: From the testimony it appears that the contract price for this whole work was $61,120. This amount was paid to Bowe, or to his authorized representatives, in full. There were several extensions of the time for the completion of the contract attthorized by the war department in regard to which Capt. Jacobs testified as follows: "This contract was entered into June 30, 1886. The work was commenced within thirty days thereafter. The contract to be completed July 1, 1887. It wllS,not so completed, and, on my recommendation the contract was from July 27, 1887, extended to 75 working days, expiring September 26, 1887. In this connection thecolltractor made verbal request for two months' ex'tension. September 21, an extension of two months from September 26, 1887, was granted, expiring November 26, 1887. '.rbat was the second extension. Atllird extension was necessary, and that was granted from December 5, 1887, for 50 working days, expiring January 24, 1tltl8. A fourth extension was necessary. On January 24, to May 3, 1888, work was suspended preparation of material. May 3d, work was resumed under an extension of 80 days from this date. That is four extensions. After this extension the contract was completed, and the contractor released from his obligation to the United States, June'15, U:l88." , It appears that during the latter part of work on these buildings Mr. Bowe was absent ftom the work the greater part of the time, and that the control of the work for some time before its completion was practically in the hands of M. E. Maher, one of his sureties on his bond to the government. It appears, also, that there was considerable loss ro the contractor by this Mntract, which lOBS fell on Mr. Maher, the surety named. About the time the contract between Bowe and the government between Bowe and Maher, by was entered"into, a contract was
BOWE ". UNITED STATES.
, 765
which Maher become interested in the contract, and was to receive a part of the profits to be derived from it. This contract was as follows: "Articles of agreement made this July 2,1886, between W. F. Bowe and M. E. Maher, both of the city of Atlanta, Ga. Whereas, the said W. .F. Bowe having secured a contract with the United States government to build certain houses known as the · BalTacks Houses,' it is agreed that the said W. F. Bowe shall give his personal attention to said work, and superintend the same. The said M. E. Maher agrees to furnish all moneys from time to time, as needed, necessary for the successful and economical completion of the same. All moneys received frOID the government on account of said work by said W. F. Bowe shall be deposited to credit of said M. E. Maher on l.Iarracks account. All checks shall be drawn on said account by W. F. Bowe to the order of M. E. Maher or his attorney. No account shall be made or contract entered into on account of said work for an amount exceeding one hundred dollars without the consent of both parties. It is agreed tbat the saidW. F. Bowe is allowed to draw one hundred and fifty dollars rer month for bis personal expenses, to be charged to his share of the profits when said work is completed; also that he be allowed fifty dollars per month when said work is completed, to be deducted from M. E. Maher's sbare of the profits, in consideration of said Bowe's personal attention to said work. That M. E. Maher shall g:ve all personal services that may be required. All transactions and accounts of said work shall be kept in regular baol,s, which shall be open to the inspection of both parties. When said work is completeu, the protits shall be divided equally. This agreement shall apply to all contracts made, 01' to be made, by either party on the government reservation at Atlanta, Ga. All labor reqUired and compensation for the same shall be agreed to by both parties. W. F. BOWE. "M. E. MAHER. "Attest: W. F. MANRY, N. P., Fulton County, Ga. "ATLANTA, GA., Oct. 22, 1887. Whereas, the said W. F. Bowe has this day given to W. F. Manry a power of attorney for the purpose of raising money, it Is not intended to vitiate this contract, but the same is to remain of full force and effect. W. F. BOWE. "M. E. MAHER."
During the progress of this work, Capt. J. W. Jacobs, the assistant quartermaster in charge of the work for the government, exercised a constant and careful supervision over it. He seems to have examined with great care all material before it went into the building, and all the work, and each part of it, as it progressed. He also had a superintendent, Mr. Alexander Russell, a practical man, who, under Capt. Jacobs, exercised immediate supervision over the entire work. Capt. Jacobs offered to go anywhere in Georgia with Bowe, at the expense of the government, to examine material, and decide whether it would be satisfactory or not, so that Bowe need not be put to the delay and expense of bringing unsatisfactory material on the ground. He did go with him to a place where sand was to be obtained, and pointed out the character of the sand he would be willing to receive. The orders given and decisions made by Capt. Jacobs were all positive, sometimes peremptory; and yet in every instance, so far as they have been drawn in question here, they seem to have been made in good faith, and with the 80le purpose oLhaving these ,buildings constructed in accordance with the contract,
'166 -
and to, discharge his duty as a superintendent for the government. Mr. Bowe:waS frequently informed by Capt. Jacobs that, if any decision made/by hi.m was not,satisfactory;he could appeal from the same, through hini, ,to ,the war department; but in no instance did Bowe avail himself of this tight, except as to one of the applications for extension,ahout which he and Capt. Jacobs seem to have differed, and which the secretaryq( war ,allowed. 'rhere is a clause in the contract between Bowe and the United States making it subject to the approval of the quartermaster general. Finding of ,facts by the court as to each item of plaintiff's claim are now given: FACTS A. lteJrn 1. For "cutting tongue on wainscoting. The specifications required the wainscoting to be "neatly capped;" the manner in which it should be done, except that it should be neatly done, waS not specified. The contractor was required by the quartermaster to put a groove in the top of the wainscoting, and to put a tongue on the cap or moulding for the top of tbis wainscoting. The complaint is that the "tongue and groove" required by the quartermaster was extra being no specifications as to how the wainscoting should be capped, the contractor should have understood thatit would be required to be well and neatly done. The specifications for building No.9 (page 3) provided: "This building is to be erected in accordance with the accompanying plans, and such additional elevations, sections, and drawings as will be furnished by the United States officer in charge." When, in the course of building, this wainscoting was. reached, the detail'furnished by the quartermaster through' his superintendent required it to be capped in the manner which furnishes the ground for the claim made in this item. No complaint was made by the contractor to the quartennaster as to the manner in which this work was required to be done at the time it was done, nor afterwards during the· progress of the work, as to this item specifically. lteJrn 2: "Braces under ridge poles, $100." It appears that the method adopted for supporting the roofs, and the manner in which the timbers were placed, were somewhat different from that provided in the specfications; and, after giving to the testimony of all the witnesses what seemed to be due weight, the evidence does not show that the maniler in which the work was done involved any additional expense to the contractor over that which was specified in the plans for the building, so that the finding of facts from the evidence as to this item is that there was no extra cost to the contractor. lteJrn 8: "Screws on inside beads of 280 windows, ten to each, at ten cents per dozen, $230." The contention as to this item is that for the purpose of fastening the strip of wood, called the "bead," which holds the window in place on the inside, screws were required instead of nails; plaintiff's claim being that, unless otherwise specified, nails only could be required, and that the excess of cost to him of screws over nails was
BOWE fJ. UNITlilD STATES.
767
the amount above specified. I find the f!lct to be as to this item that the strips called the "bead" Were delivered from the mill to the contractor at the barracks, with Q.ails driven in them to be used for fastening them in . The contractor was required by the government to use screws for fastening the bead, instead of nails. I adopt the testimony of Mr. Russell as to the cost of doing this work with screws or nails, and find that the excess is $41.70. The usual way of doing such work in Atlanta is with nails. There is no evidence as to how work of this character is usually done on buildings such as these erected by the government. The for requiring the use of screws is that it frequently becomes necessary to remove the sash, and often, before the buildings are finally comcan pleted, to make them fit well, etc.; and the removal and be much more satisfactorily done when screws are used to fasten the bead. I do not find that any objection was made to the requirement to use screwsat,the time, or any request or demand that the excess of cost over nails be treated as an extra for which the contractor was entitled to compensation. Item 4: For "extra work on cornices of bake-house, commissary, and service buildings, being glued up, and joints tongued, $50." It is claimed by plaintiff as to this item that he was required to tongue and groove the .ends of the planks at the joints on the cornices of the bakehouse, commissary-house, and four service buildings. The manner in which this work was required to be done by the quartermaster in charge was unusual, an4 somewhat more expensive than the ordinary way of doing such work. It is claimed in their testimony by both plaintiff, Bowe, and his superintendent, Compton, that the cost of this work, which they claimed as extra, was $50, but they failed to show how they arrived at this round SUDl. No calculation as to how this sum was reached is given. Mr. Russell, in his testimony, gives a careful calculation as to the cost of this tongue and groove work in this item, and he puts it at $15.32. I am unable to find in the evidence, and do not recollect, any testimony as to the cost separately of the gluing. I conclude that the cost of the tonguing and grooving was that given by Mr. Russell, $15.32. I am unable to find the cost of the gluing, for the reason stated above; and it is perhaps immaterial, as no objection was made at the time to the manner in which this work was required to be done, and no request or demand that it should be treated as an extra was made of the quartermaster by the contractor. Item 5: "Extra work, plank for plumber to lay pipe on." The claim of the plaintiff as to this item is that thespecifications called for pipe to be laid on top of second-story joists. It appears that, in order to get a sufficient fall for the pipes, it would be necessary to cut into the joists; and the plumber in charge of the work suggested to Capt. Jacobs that it would be better to lay the pipes on planks underneath the joists; and that this metlwd and the work done in accordance with thesuggestiop. of the plumber.,>:;Jl'heplumberstated to Capt. Jacobs that there would be no extra cost about it.
768
Item 6: "Changing pulleys on proof-racks, $10." The proof-rack is a kind of cupboard in which to dry bread. The doors in front are run by pulleys. It appears, as to this item, that the pulleys which were used in connection with the door or doors of the proof-rack would not work after they were first put in, and the contractor was required to put in pulleys that would work. No complaint was made' at the time of this requirement. .. Item 7: "Catch-pans under dormer windows, $40." It appears that in the construction of dormer windows the slats were'. so placed in the frame that the rain was blown into the building through these windows, and the water came through the ceiling, and was injuring the buildings. Before they were accepted by the quartermaster, the quartermaster and Mr. Bowe's superintendent examined the matter, and the quartermaster required Bowe to construct certain "catch-pans," as they were called. It seems that a frame was required to be constructed in some way on the inside of the dormer windows, and a tin basin arranged on tde wooden the slats of the dormer winframe-work, so that the water coming dows would be turned back upon the roof. It appeared that the dormer windows were constructeu according to the specifications, and had been accepted by Capt. Jacobs' superintendent, Mr. Russell. No objection was made. by the contractor to the requirement of the quartermaster that he should do this work at the time, or no request or demand that it should be treated as an extra, except as may be inferred from the following letters. The work was worth the amount of $40, as claimed by the plaintiff. A letter is in evidence of the date ofNovember 24, 1887, from Capt. Jacobs to Mr. Bowe, which is as follows: "ATLANTA, GA., November 24th, 1887. "William F. Rowe, Esq., rJontractor: Referring to the tin linings for aprons for dormer windows on the two bal'l'acks buildings, you are respectful· ly informed that some weeks ago, finding that the lining had never been put on as ordered by me several months before, I directed the tinner to do the work, and guarantied him the pay. I do not consider this extra work, but coming under clauses 5 and 10, general conditions of your contract, and you must accept my guaranty, and arrange for the payment on before next payday. Please acknowledge receipt, and report actions. " {w
To this no reply was received but the following letter was afterwards received from McLain, the subcontractor: "ATLANTA, GA., June 15th, 1888. "Captain J. W. Jacobs, A. Q. M.- DEAR 8IR: Mr. Bowe assumes the payment of the tin safety pans under dormer windows, which relieves the government of tllat obligation. JAMES F. McLAIN."
Itlrm 8: "Hand-smoothing, sand-papering, and scraping ceilings, 200 squares, at $5.00, $1,000." Item 8, (a:) "Hand-smoothing ceiling of verandas, $900," Item 8, (b:) "Hand-smoothing, scraping, and sand-papering joists and girders of verandas, $900." ,
-
.
BOWE ft. UNITED
·
169
. Item 8, (c:) "Hand-smoothing, scrnping, and sand-papering inside of girders and columns, 22 squares at $5.00, $110." Item 8, (d:) "Hand-smoothing, sand-papering, and scraping ceilings of service buildings, 18 squares, at $5.00, $90." . Item 8, (e:) "Hand"smoothing, sand-papering, and scraping window and door frames and cases of same, 274 windows, at .25; 41 outside doors, at .40; and 50 inside doors, at .70,-$119." Item 8, (j:) "Hand-smoothing wainscoting, 175 squares,at $2.50, $437." This is the principal item of plaintiff's claim. The complaint is that after the lumber with which this work was done had been delivered where the work was in progress, planed by machinery at the mills, the contractor was required by Capt. Jacobs, the quartermaster in charge, to bring the lumber to a greater degree of smoothness, and better finish, before he would allow it to go into the buildings. The contractor desired to put the lumber as delivered into the buildings, and the quartermaster objected, claiming that the lumber as delivered did not have the finish required by the specifications and the character of the work. The contractor, on the other -hand; at the time insisted that all his contracts required was good mill-dressed lumber. The specifications as to the construction of the ceilings do not state how the material -used in the ceilings should be' finished. The language as to ceilings is this: "All the rooms in the first story must be ceiled with 7-8x5 beaded ceiling, with suitable moulding planted in the angle." One of the provisions of the specifications as to this work was: "The contractors are to provide all materials and labor necessary for the complete and substantial execution of everything described, shown, or reasonably implied in the drawings and specifications, including all transportation, scaffolding, apparatus, and utensils requisite for the same; all materials to be of the best of their respective kinds, and all workmanship to be of the best quality.'" Another of thespecificatiolls is as follows: "In a word, each class of work must present a finished appearance, whether specified on plans or in specifications, harmonize throughout, and be entirely satisfactory to the officer in charge." The testimony shows that mill-dressed lumber, such as was':delivered at the government location, is used without further finish in buildings of ordinary character in Atlanta, but that for buildings of a better and more expensive class a greater degree of finish is required to be given the lumber used in work of the character em· braced in this item. When a greater degree of finish than that given by ordinary mill dressing is required, it is usual to provide for it in the specifications. Item 9: "Scraping and sand-papering wainscoting, 175 squares, at 82.50, $437." Item 10: "Scraping and sand-papering verandas, $200." The claim as to the above two items is the same a8 that contained in Item A and its subdivisions, and the facts as to that item may be applied to these two items· . Item 11: "Extra work on stairs, $150." v.42F.no.13-49
FEDERAL ·REl'QRTER
vol,. 42.
The facts appear to he, as to this.item, that Mr. Russell, Capt. Jacobs' superintendent, selected two men from: ,the contl;actor's force of workmen, to work on the stairs, and the claim is that he required the stairs to be constructed in a way that made them more ex;pensive than they would have been if constructed in some 'other way, which other way does not clearJyappear. No objection was made to the manner in which this work was done, so far as the evideQce shows, at the time. Item 12: "Extra cost of Yale locks, $100." The claim as to this item is that the contract provided for certain doors to be finished with ",Yale Standa..rd Draw-Lock, No. 961," and that locks of this description were secured by the contractor; but it was found that the barrel was too short to go. through the doors, and that, therefore, it became necessary to exchange them for other locks with a longer barrel. In a letter which is i,n evidence from Mr. Bowe to Capt. Jacobs, dated March 5,1887 ,among ot\ler things, is this .statement: "The Yale lock was an error which I will have corrected." , It is claimed by counsel for plaintiff that he did uo:& me.an by this to say that it was his own error; but I am unable to copcur in this view, and,l think he m,eant to say in this letter, written thistim(l, that the errol' was his own,or.of those from whom he purchased. There certljoinly is nothing in this language, or elsewhere in indicate that he claimed any error on the part of thequaror attached any blame to him for the misfit of the lock. CerI,no objection was made, and nQclaim for the allowance of any additionlU cost as an extra was made, at the time, by the contractor. ' Item 13: "Extra cost of putting on neck mould after column was set, inwhicbmanner one hand could put on only six per day, whereas, otherwise,one man could have put on eighteen per day;..-an excess of .26 each above cost, and loss of profit of.09; 280 columns at .35, $100." It appears that the contraetor defil'ed·to put what is called the "neck mould"'J\round the columns before the columns were put in place, and that he was required to put up the columns, and put the neck mould on afterwards. The claim is that it-was more expensive to do this work as it :was required to bedolle than in the manner the contractor wished to do it. It appears that theiColumns were not sufficiently seasoned at the time they were put up,and that Capt. Jacobs allowed them to be placed in position in, this unseasoned condition in order to enable Bowe to proceed more ,rapidly with the work, which he did not think would injure substantially the buildingsj.and that,if Capt. Jacobs had insisted on the columnsbEling seasotloobefore they were put in position, it would have fetarded the progress of the work', and caused some loss to the contractor. The unseasoned condition of the columns was the reason given by Capt.: Jacobs· and his superintendent for not allowing the caps to be put on the columns before they were placed in position. No claim was made for extra oompepS&tion as ·tQthiswork at the time. Jtern14::o"Workon board and wainscoting, $75." The claim as to thisiteQI is that Jacobs required Bowe to dry his planks to be used for wainscoting too thoroughly, and that after the wainscoting was put in place the fact that the lumber was too dry'caused it to ('buckle olit," and
llOWE V. UNITED STATES.
771
that this was caused by the absorption of the moi!'lture by the lumber after being placed in position. The base-board could not, therefore, fit up tightly against the as the board struck. only the extended joints, and left crevices betwe·en. This necessitated much work in smoothing off the high points so that the base-board would fit up tightly. No claim was made for any extra allowance for this work at the time, and no com'plaint, so far as can be gathered from the evidence, of any . kind was made as to this work. Item 15: "Mould around 44 doors, $100." The claim as. to this item is that the contractor was required to put moulding around the frames of44 doors to hide the cracks left between the door-frame and the brickwork. It appears that the door-frames were put in place before the around them was done; that this was necessary, for the reason that atl iron dowel was to be run from the stone up the frame, which required the frame to be' placed in position before the bricks were laid. On account of this method of doing the work the crack was left between the brick"work and the door-frame from one-eighth to one-fourth of an inch wide. The contractor was required to put moulding around the door-frame to hide this crack. This moulding does not seem to have been required by the specifications. The quartermaster states that when he objected to the work as it stood, the cracks showing between the'doorframe and the brick-work, that "they" (alluding to the contractor and his superintendent, as I understand) suggested this moulding as a remedy for the defect, and that he accepted it, and made no further objection. To this I find no denial. Items 16, 17, 18, and 19 may be considered together. They were for damage to lumber by being exposed to the weather by order of Capt. Jacobs. The contention of the plaintiff is that Capt. Jacobs and his superintendent, Russe-ll, ordered all dressed lumber to be exposed in the open air, stacked up in what is called "wig-warn fashion." It is said that this exposure caused the lumber to warp, and get in bad shape for use, which made it necessary to rework it, at considerable expense to the contractor. Thetotal amount claimed in these items is $1.550. It appears as So fact, from the evidence. that a considerable amount of the lumber to be used in the buildings erected by Bowe was stacked up in what is called "wig-wam fashion in the open air. It further appears as a fact that this injured the lumber, causing it to warp, and get in bad shape for use. To find as a fact who is really responsible for this is very difficult, in view of the conflicting'character of the testimony. It appears that on Febrnary 6, 1888, Capt. Jacobs wrote a letter to Bowe, in which, among other things, direction was given as to certain lumber as follows: l)
",," ,'" ... You are also informed that an examination of, the commissary building after the recent storm convinces me that toe seasoning of the flooring is much retarded by being stored in the building, instead of exposure to the air out of doors, and all lumber 80 stored must be at once removed, and the practice of turning a building into a drying kiln, and the building of large tires therein, must also cease. During a storm all the buildings must
772
be closed, and during fair drying weather the windows. must be raised or lowered. This precautiop to prevent deterioration has been much neglected by you in the past." . In view of the fact that the burden is on the plaintiff to establish his case where there is a conflict by preponderance of tC$timony, my conclusion is that the only order given by Jacobs as to how the lumber should be dried was that contained in the paragraph. given above from this letter. It appears clearly that Capt. Jacobs required the lumber to be exposed to the open air, ,but not satisfactorily as to how it should be exposed. As to Mr. Russell, Capt. Jacobs' superintendent, and as to whether he gave orders requiring this lumber to be stacked in the man.ner it was, there is a more decided conflict in the evidence than as to Jacobs. He overlooked the work of placing the lumber in this position, and made suggestions concerning it. He suggested the fact that lumber had been dried for work under his in that way at Hot Springs. The fact is not satisfactorily established by the evidence that he gave any positive orders that the lumber should be stacked in this way. Item 20: "Extra work on mantels,$200." The details of this item are unboxing, setting 32, 1,000 fire-brick, fire-clay, 3,000 common brick, mortar and drayage, iron for mantels, and superintendence. The specifications in reference to mantels was as follows: "Provide for setting up, in all the rooms having open fire-places, mantels, grates, and hearths, to cost, complete, not less than $20.00 each, the pattern and size to be selected by the officer iu charge. Grates must be set in the most approved style, with full backing of fire-brick or soap-stone, as may be directed. In the day mess and wash rooms mantels need not be furnished." It is claimed by plaintift'''that the cost of the mantels complete, including the settirig and. all the cost of same, should not, under this specification, have heen required to exceed the $20 each named in the flpecification. The q1;lartermaster construed this specificjl.tiol1 ,as providthat the mantels" with eveI:ything necessary, shquld cost not $20; bllt the show.s tha.t hernade a concession to the contractor iu this respeCt, and that the cost of the mantels, ':Without the cost of setting them up, instead of being $680, as it might have been, was only $509. The work of setting the mantels, and the inaterial used in setting, was in addition to thi:-. . items 21 and 22. These two items may be consolidated. They were for 20,000 extra brick in bake-house and commissary buildings m,ore than required by the specifications, at $20 per thousand, $400. The contest of the plaintiff as to these items is that the pillns for these buildings showed them to be on level ground, and that the ground sloped so that to comply with the specifications,·and to place the floor at the proper elevation above the highest point, required the extra amount of brick mentioned in the above item. It shown quite clearly by the evidence that at the place where these two buildings were erected a considerable amount more of brick-work was necessary than would have been had the huildings been on level ground. It also appears thattheattention orMr. was caUed'tothe matter,
BOWE V. tJNITED STATES.
7i3
and that at one time he agreed to allow something for it, bui that 80011 .afterwards he withdrew the agreement, saying that he intended to complete this work without any extras. It appears further, from the evidence, that Bowe had ample opportunity to examine'the ground where the buildings were to be located, and that he could easily have ascertained this before making his bid. Mr. Bowe was interrogated about this matter: "question. Didn't you go there and examine this )'oU made a bid? Answer. I don't remember whether it was before I bid or not. Q. .Didn't you examine that map before you bid? A. I just say'that it may be 80; that it may have been. I will not assert that it was. Q.' Don't you think it was before you bid ? A. I cannot answer whether it was before or afterwards. If I remembered. I would just as lief ackno"'lellge one time as the other.. The time I saw it. I think more p:uticular was for some grading than it was for the ground. Q. You knew the map was in existence befure you made the bid? A. I think so." There is more of this testimony on this subject. This is enough, hoWever, to show that it is more than likely, even from his own. statement; that he examined the ground before bidding. It appears, further, that Bowe's contract with the government was dated June 30, 1886, and that on the 15th day of May, before that, the quartermaster issued a circular in to these buildings which contained the following: ' "The bnildings are to be located on the cites indicated on the map panying the plans and specifications. unless otherwise directed by cOlllpetent authority. " Mr. Bowe was asked if he had read that circular before he made his bid. His answer was: "I more than likely did." This question was then asked him: "I wish it to be understood that you admit you read it?" Answer: "I would rather admit that I read it. I did not want assert that I did not read it, or that I did read it." So that it appears quite probable that Bowe examined the ground before bidding, :ind,as there was a map indicating the location of the various buildings on the grounds, that he could have ascertained, even if he did not, the exact, loCati.on proposed for these buildings. . . ; . Item 23: cost of painting not required by specification, two, coats of hard oil, instead of one, on 117 wardrobes, $158." The facts; in reference to this item are somewhat difficult to find. It seems, how·: ever, that the contract originally required the wardrobes to have three Goats of paint, and that the work was really done in a different way, and a material which Bowe calls "hard oil," and Capt. Jacobs "varnish,?' was used. The change, it appears, was suggested by the foreman of the contractor. So far ,as appears from the evidence, no objection whatever was made at the time to the change, nor was any claim made that there should he extra cost or expense attached to it; on the contrary, the only proof on that subject is the testimony of Capt. Jacobs, who states that, the foreman told him it would not cost any more.' .> Item 24:" Trimming with red, instead of a differentshade of the same c:!olor as body, as first ordered, $300." Claim for this item was .ahall,l/ by the plaiutia:. .
to
:'1,7;4
FEDERAL REl'PRTER,
BOWE fl. UNITED STA'1'ES.
arriving in Atlanta in the morning, I by this mail send yourll'tter Mr.: McLain, my subcontractor for the tinning. The amount contracted by you, $220.00, appears to be very high, tho' of course I am unaware of the amount of work contracted for." "ATLANTA, GA., January 11, 1888. "Oaptaln J. W. Jacobs, ..4.. Q. Y.-DEAR 8m: In reply to yours notifying me that you had given a contract to other parties for $220.00 to repair tin roofs on buildings under my contract, I beg leave to respectfully protest against such action, as being in violation of my contract, and unnecessary, and submit the following facts for your consideration: That my subcontractor on tinning did work on the roofs, and did seek to tind the leaks when· ever they showed; that the foreman of the carpenters, the subcontractor and boss tinner have often searched under the roofs at night during the rains for the purpose of finding the leaks, aJld that they were supposed to have been stopped, and that the roof was tight: that an extremely heavy rain showed other leaks, or some of the old ones anew: and that the fact that the roofs are an A No. 1 job is a reason Why any leaks are difficult totind: and that without allOWing me an opportunity or direoting me to have my subcon': tractor repair them, or to have them repaired without reference to the Bub. contractor, you made this aforesaid contract: that I am now and always have been.wiIlingto fully comply with my contract in every respect: that I have never refused to work on. these roofs when caUed on, either myself or fore. man or subcontractor or the boss tinner: that all of us have been desirous ot making the roof satisfactory: that, furthermore, the aforelilaid contract vides for the roof to be reseamed by hand: that I have never been informed that this was your desire, and had no opportunity to refuse to do so: that the hand-seatniDg of the standing edges is useleSs, and detrimental to the roof:' that there are no leaks showing to come from the standing edges; that the bake.house. commissary-bouse, and all verand 811 .do not show any leaks, .nd arepet;fectly tight: that the hand-seaming as is being done is useless, I am prepared to prove by abundance of evidence. For all which reasons I do most earnestly protest against your action, and hereby refuse to abide by it, and deem it my duty to notify you that the contractors working on the roofal>solve me from all liability concerning them, and that therefore I shall con" sider that part of the work as finished, and accepted by you. Regretting the necessity of this protest, I am, "Very respectfully, etc., WILLIAM F. BOWE. to The amount specified, $220, was retained by Jacobs from the amount' due Bnwe .under his contract, and applied to having these roofs reworked, as indicated in his letter of January 4, 1888. ltem26. This is plumbing not required by specifications, running gaspipes from :meters to the outside of buildings, $25. It appears thatthe quartermaster required the contractor to run the gas-pipes froIn each Qf the buildings outside the walls of the buildings, so that the connection with the outer gas-pipes could be made there. It is claimed that .the Gas Company of Atlanta is willing to run through the walls of the build· mg, and connect with the meter inside, and that the pipe required togo from the inside of the building to the outside was unnecessary and un.; usual. 'I;he of an expert in plumbing, whose evidence: wall offered in the case was: "Where'it would be very hard to get to it after the house was compieted; 'Why, 1 would C8l"tairily run them outside the wall. It would necessitate
77(J ting
FEDERAL REPORTER;
the wall, and taking up' the floor, to put the pipes in after thEt completed; whereas, before the floor is done, it is a very easy matter toll:\Y the pipe. "
Item 27: "Extra cost of oven casting, etc., $100." This item was' Rbaridonedby plaintiff on the heating. 'Item 28: "Grates and ash-fenders, over and above cost specified for $25." It appears that; when the buildings were about to be turned dver by the contractorto the quartermaster, that 19 fenders were missing. The, fenders in connection with the mantels, etc., had been by Capt. Jaoops, under the authority given him in the contract, from Hunnicutt & Bellingratb, of Atlanta. When the matter of these missing fenders was:investigated, Hunnicutt & Bellingrath claimed to have delivered theIJi. 'An affidavit was made by their employe, charged ,,'ith'fhe delivery of articles at the government reservation, stating bad been delivered, and describing the fenders, and exactly what nedid about them. Thereupon the following correspondence took place between the qu'artermaster and the contractor: lylnf()rmed that the preponderancl}of evidenct,J I have been able to obtain concerning the 19 fenders for the barracks buildings under your contract goes tQ establishqle fact that Hunnicutt&' delivered them t,'lll,,:to, I,m,less.,' you can, til, I'nish eVid,ence to t,he contrary, I sil,all, have tohbld you responsible for them. Please let me hear from you as soon pr!+cticabJe. " ".. .
, "wt,Uam F.
4,tla'l1,ta,
"ATLANTA, GA., June 18. 1888. Ga.-DEAR SIR: You, are
'fothis Capt. JaMbs received the following reply: . "ATLANTA, GA., June 20. W. Jacobs",DEAR SIR: Yoursof the 18th instant just handed tl:l,e oll.tIle of my departure from the city fQr a few days, Immediately on my will to present you the other, side of the case, <. , " .Re\\pectfully. ,. 'W.F. BOWE." . i
When cpntractwas closed and final paymentw'as the termaster reserved $25, which he had ascertained would be the cost of these fenders; and,receiving no 'further evidencefroin Bowe, on the subject, on the 4th of August he paid Hunnicutt & Bellingr:tth, who had . delivered the fenders, the $25. Item 20.. lCDelay of carpenter work; $1,500." It is claimed by the item, in his bill of particulars, that he was not allowed plaintiff. by Capt.. Jacob8 to rush or push his carpenters, and that he was prevented in that wa.y-from getting as good work out of them as he would have obtained if ,he: bad not been interfered with. The contention is that by this interference the amout named in this item, and more, was lost to the contractor. Capt. Jacobs admits that he frequently objected to work as being improperly done, requiring it to be done overjand the probable result of.ihis was that,iil order to do it in a satisfactory way, it would be necessary to do it more carefully, and consequently more slowly. No to beUl made by the contractor as the work progressedas to. the right of ,the, quartermaster,underJhe contract,. to pass
BOWE tI. UNITED STATES.
777
on the character of the work as it was done.· This strict supervision of the work by Capt. Jacobs would undoubtedly cause it to be done more carefully, and, naturally, somewhat slower, thlUl it otherwise would have been. CONCLUSIONS OF LAW.
The facts as to each item embraced in this action have thua been given separately, and as briefly stated as possible. The conclusions of the court upon all questions of law involved in the case may now be stated. 1. Thefirst position aesumed by the .plaintiff through his counsel is that extras lDay be recovered for on a quantum meruit, independently of and outside of the express contract; that "extras are paid for on the same we:r:eno express contract. Extras constitute a separate account.. The government's original. obligation was to pay certaiLl money; contractor to work according to certai,n specifications. If.the contractqr'swork is increased by extras, the government's obligation to pay is enlarged. An order for extras may be considered ,additiop .to or enlargement of the old contract,and is a seJ:>arate it/. itself; ibut in either case the pay is a reasonable valuation." power of Capt. Jacobs to bind the governtnent as to matter," outsid,e of the ,conbact Gould be conceded, and if the contractor had placed aelf in the proper position under the contract, during the progress of the work,to,Claim the various items involvedaf;1 extras, to S9 much of the work as coJlld be extra plaintiff's contention would be proper enough,at/.Q the principle he contends for would be applicltble. Other are involved, however, which must control the case independently of the general principle thus c o n t e n d e d . f o r . , ,2. In article 1 of the contract under which these buildings were ereoted ' is a clause as, follows: , .. Also, no allowance shall be made for extras claimed to rhave been done, unless provided for befort'hand by. written agreement that effect, specifying the coat of the same." It is said that this clause is for· the governmenFs benefit. and one which the government can insist on seeing earried out, or waive; and that, if extra work is ordered by the government, that the government cannot protect itself from payment by this clause, even though the ordel' be verbal, and there is n'} written agreement. Supposing that Jacobs had authority to bind the government for the payment of work which was clearly outside the contract,-that he stood in the position of an individual having work done for position assumed would f'eem to be correct. Even though having a contract covering a piece of work; and having a clause in it such as this, it would be unjust to allow other party to receive the benefit of the contractor's work and material upon a verbal order, and then shield himself under a clause such as this; which atthetime of the order he had failed to invoke. To make this prinCiple applioable, however, it would be necessary that the work done or material furnished should be extra, and so understood and treated' at the time. The real question then would be, was any work orderedanitt
Ji,Eli'9,ltTEB,
v,ol.42.
,<:o:qtract, to the officer in the was: ,th,aHt wo,liIJClc b;e,'so treated by L "And tl:J.en, what was Jacobs' authority under the law? Upon the last-named tion, that is, as to the case must come within a wellrecognized rule. ,It is stated by the supreme court in the case of White2:4:7,.as follows: ,' " ...tllli' mentl'B not bound by the actor declaration of' Its agentllnless it manifestly appears'that 'lie acted within the scope of his authority, or was ,9' -en1ployMin his cap8.()li1ly as a public agent to do the act, or make, the declaratWDffQr
tpe notice
\
;Alld; ;inaddition'" tbe court states : as weH Jas courts. must take notice of the extent of authority cotiferredby Jaw upon:. person acting in an official capacIty." ":'WbatJ8.cobs' authoritYWl;LS is discussed later. . ".' , ' S.'Furtherposition'9.ss\lined by counsel for plaintiffistbat as Jacobs IbJatme'd,'Ss to theva.i'ious items in 'dispute; when question was raised abO\\t'them during' the' progresS, of' the work, that' they were within the 'sple¢ltications, by'the contract,that he thereby waived the that Bpwe ill1oitl(i give notice tnlittnese. items would be extra,' andtbat the matter be reduced to writing. The effort made to it oo'oa..Ca'se that of an insurand a to l?8:Y, proofs be. dlspensedwlth., ThlSposltlOn lsclearly. unsound. Where 1hlfi>flicerin charge required w6rk to' be done in 'a 'certain way, and', .ttpdd' the contractor objecting, the officer insisted that the specifications required it to be done as he had requested, and then the contractor proceeded !to!'d6 tHe work in accordance with the officer's reqUirement without further objection, or any notification that the work or material 'Would be trea'ted'8Sl extra, what would be the; effect? 'rhe officer, ofcourse, would ha\le the right to pres't'lme that that was the end of ihe when the contractor acquiesced in his decision. If the officer had notice that the protested, and would tteat the work.or material as outside the c(jntfl\ct,and .claim additional compensation for the same,he an to determine whether or not, under that view of ,the. Platter, he would insist on work proceeding as he had indiOr refer the superior ()ffi,cers for determination. As.Capt. by the constituted the arbiter to decide as.to the and the sufficienpJ, of the work as it progressed, when the differ!lS to. the manner of doing the work.or the character of the Ip."tfilrial,bis decisiop, of <;O'ijrse, became neceSSlJ,rYi and the decision thus be final, in ,the absence of notice by the contractor that it 80 considered" lJnd that a claim would be interposed for the ,To allow the contractor to apparently accept of the and proceed to do the work in accordance with and 'deoision as would be a fra,ud ,of;Hcer, :It is ,assurped" fQrthe purpose of this conclusion, tAat .no IPistake in .to the work OX' material, and that
BOWE V. UNITED STATES.
Capt.'Jacobs acted in good faith in making his decisions. Asoase/nipplicable to this and preceding paragraphs, see Miller v. McCaffrey, 9 P8,.St.\ 245; Cemetery <lJ.v. <lJburn, 7 Md., 202; Trusteesv.Platt,5Ilt.App.567. See, also, the following cases cited by plaintiff's counsel as appli·cable to this general subject: Amoskeag Manufg Co. v. U. S., 17 Wall. 592;U. S. v. Smith, 94 U. S. 214; Clark v. U. S., 6 Wall. 543; Mueller "I. U. S., 113 U. S. 155, 5 Sup. Ct. Rep. 380. ' 4. This leads to the consideration of the question presented by the language used in closing the preceding paragraph,as to what must be shown in order that Capt. Jacobs' decision should not be final and conclusive asio any questions arising during the progress of the work. The provisions of the contract under which this. work was done is as follows: ..And it is further mutually agreed to by the parties of this eontract that all the materials furnished and the work performed shall be of the quality described in said specifications, and SUbject. during the entire work, to the inspection. approval, or rejection of the party of the first part, or of such other person or persons as may be designated, for such duty; and the said party of the first part. or his agent. shall have full power to reject any materials or workmanship whichin their opinion is not in every respect in complete conformity with the aforesaid plans and specifications: and that the said materials or workmanship thus shall be immediately removed froLD the premises by the party of the second part... Very broad power was given Capt. Jacobs by this ,clause of the contract; in. fact, it was stipulated very Clearly, by this' provision, that the wotk and material sh'ouId be of a character Jacobs. What would be necessary, then, to impeach Jacobs' decision, and justify the. cuurt in permitting the contrac'tor to go behind it, and Bet up a claini for compensatiqn such as is presented here? In the. case of Downey v. O'DonneU,86 Ill. 49, a question like this arose, and the conclusion ofthe court is stated in this langqage: "When it. is provided in a. building contract that the decision of an architect of difference arising under the contract. his deshall be final 011 all is completed in conformity with tlJe terms of the concision that the tract is conclusiv'e until impeached for frau4." . In the same case again before that court, as reported in 92 Ill. 559, the ruling upon this question was unchanged, and the case of McAuley v. Carter, 22 Ill. 53, cited as authority. In the case of Snell v. Brown, 71 Ill. 133, a similar question arose over a contract for work in building a railroad, 'fheriourt uses this language: "By reverting to the provisions of the contract. relating to measurements and estimates. it wUl be recollected that the work was to be executed undel" the uirel,:tion. and supervisioI\ of the cnief engineer and his assistants, by whose measureml'nts anll calculations Of qus'ntities and amounts the SeVeral kindS of work perform'l'dunder the contract should be determilled. and whose determination shoUld 'he concl usive llpun the parties. and who should ' have full power to nject· 01': condemn all work or materials Which, in his'or . their opinion. did not fully conform to the spirit of the contract. This may. seem to be unfair and oppressive towards, appellees. It is nevertheless their own contract,· voluntarily entered into, and they cannot eVade or disregard it, ' . unless for fraud, clearly proved."
780
FEDEHAI, REPOHTER,
See, also;the cases of 'J}tlsteesv. Lynch, 5 Gilman, 521; HfJl'ric'k.v. knap, 27 673. The authority as to the correct rule for this conrfon this question is .the case of KiJUberg v. U. S., 97 U. S. 898. A quotation from the syllabus will be sufficient to show the scope and character . of the ruling: "A contract between the United States and A. for the transportation by him of stores between certain points provided that the distance should be ' ascertained and fixed by the Ahiefquartermaster,' and that A. should be paid for the full of stores delivered by him. Annexed to the contract, and by the parties, was a tabular statement fixing the sum to be paid for eachobehundred pounds of stores transported. The distance as ascertained anll' fixed by the chief quartermaster was. less than by air line, or by the usual and customary route.. Held, (1) tliat his action is, in the absence of fraud. or. as ne<;essariJy imply bad faith, or afailure to eXerciSe an hqllesbjudgmenh cQnclusive upon the parties."
, It"will be, perceived,that it is stated in that case as fact "that the distnnaeasascertainedaild fixed by the chief quartermaster was less than (ly air' lhil'eor by theusnal'ahdcustomary route;" and yet, in the ibsence' Of .fratidohulstake;his decision as to tb'e distance Was held to tp1j.'t nile under consideration, it might. be a,dmlttRoq. that Capt. Jacobs in some instances required a better class 0'£ work or materia.l. than was culled for by the contract. Yet it would seem thatcH 111 goodfilith,aud with an honest desire,to discharge his duty. rothe obtain fodhe contractor work of the character which hebeliev'ed the cOl;ltrftCt and speCifications called for, and no more, and, in the language olth\3(:Rse just cited, there was "no such gross mistake aswollldnecessariJyirrlply bad' faith, or failure to exercise an honest jUdgmen't;" his decillidn eould not be attacked. The contention on this pointhy plliintiff's counsel is thatthe authority and the discretionvested in J aeobs, by the contract, to pass on the character of the work and rial :shouHl' have been exereised reasonably, and in the light of tMcontiact,and. that unreasonable decisions would be void. He cites the fol. lowing authorities: Fleicher v.Railroat;l Co., 19 Fed. Rep. 731; v. Schipper,16 Atl. Rep. 316; Boiler Co. v. Garden, 4 N. E. Rep. 749, 54 Amer.Rep. 709-711,note; Chapman v. (lity of Lowell, 4 Cush. 378;Tetz ". Butterfield, (Wis.) 11 N. W. Rep. 531; McCartney, 33 Wis.' 331;alsothe'case of Kihl;berg v. U. S.,stlpra. Counsel rely gra!1.tly on the case of Fletcher v. Railroad Co., decided by Judge PARDEE·. Examination of the case shows that decision to be in entire harmony with the There the engineer of the railroad seems to have been by. the terms· of the contract the' arbiter as to the work done for the company by 'thecontractol', .and the ruling is that averments that the engineer's deCiSions t.'ill bad faith," and that there was "a failure to exercise honest judgment," and that the decisions were 'farbitrary, wrongful," were sufficient to authorize the admission· of evidence·. ' The judge there saya: . : :: ;:"':-':'.1 ,,' '. .. . ',', ", umpire and, the. defend- ) ant existing as seen above, that charging the a<:tion of
a
781
bitrary, unreasonable, wrongfll}:, and in bad faith would include all the charges' of fraud, collusion, and gross mistake necessary." There is no difference, therefore, whatever between this decision and the general line ohuthorities on the subject; and the same is true of all cases that were cited by the plaintiff on this question, so far as I have been able to examine them. 5. It is insisted on behalf of the plaintiff that some of the heaviest items here are not for extra work, in the sense of the contract, but are for; damages resulting from Jacobs' improper interference with Bowe. This' states a more proper classification of much of this claim than that in which it has 80 far been considered. Such, clearly, is tbe item in reference to the alleged order that the lumber should be placed in the position heretofore named, in the open air, and probably that as to the finish required to be placed on the lumber used in inside work. To such part of the claim as comes more properly under this latter classifi-; cation it is that the rule just discussed is especially applicable:. Where a claimis for an improper interfererlce with the work, or for an improper' as to the finish of the work,the rule as to the: necessity of showing 'ftaudor mistake would certainly apply. Where, however, the item CRn more properly be classed as a claim for the compensation for. work donear material furnished outside the contract its merit can be tested by 'ascertaining wheth1!l'sny claim was made at the time by the: contractor that it was extta,as well as by the' good or bad faith of the {)flicer in his decision. 6. In the course of the argument the act of congress of June 2, 1862,: (12 St. at Large, 411,) and its effect on this case, have been discussed. This is an act making it the duty of the secretary of war, the secretary ()f the navy, and the secretary of the interior, "to cause and require every contract made by them, severally, on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed," etc. It is claimed' that even if Jacobs had so intended he had no power or authority to bind' the government by contract not in writing. If Capt. Jacobs had ordered' an additional house to be built, or a room adrlitional to those provided for in the contract and specifications, or any other piece of work to be' done clearly outside of, independent of, the contract, an inquiry as to his power to bind the government by a verbal agreement ,for additional' work done by the contractor would be pertinent; but in the view taken by the court of this case it is unnecessary to determine it. I would be un-' willing, however, in any way to commit myself to the position thatthis officer could bind the government by verbal contracts for material additions to these bnildings, or so involve the government in considerable extra expense. The above-named act of· congreSEl is discussed iIi, the' ca.Se of SaliYTrWn v. U. S., 19 Wall. 17, and in Clark v. U. S;, 95U.S.: 539. See, also, Camp v. U. S., 113 U. S. 648, 5 Sup. Ct. Rep. As pertinent just here it may be added that the last article infhe,con-) tract between Bo'we and the United States is as fo1l6ws: ";Article 8.'
782,'
shall be subject to the of the quartermaster general,"-and the contra9t was approved the quartermaster general United states, !lormy. Was not Bowe by this. put on notice that the scope of did not extend to. making, even in writing, additions to. the character or cost of these buildings? 7. Suits such as this, under the act of March 3, 1887, against the Unitefl ,States, must be .brought in the dis,trict where the pl!Lintiff resides, aIld tlle ,qqestion was raised as to t11,e r-esidence of Bowe at the time this sui.t ;was His testimony Q1ust that question, as it is the only evidence on the and he testified that at the time the suit was. bro\lght he resided in the northern district of Georgia. 8., I,tis urged that the arrangement between Maher and Bowe, under of July.S, 1886, which has been copied above, amounted transfer by Bowe to Maher of thiscolltract, 0):' or such an interest ther,einlls to come within section 3737 of the Revised Statutes of the United' States, as to. cause the annulment of the contract. between Bowe and the, .United States, and that the effec,t of the sam,e,.l.l$I understand the argument, is to deprive Bowe ahny right to use hiscontraGt. the gov.erpm!Jnt as a basis for this. proceeding. Ido not think the proper the agreement between Bowe and Maher brings it the section of the Revised Statute. cited. Even if the agreement 8m(jlUnted to such a transfer of the contract, or'an interest therein as to bring it within this llJ.w, it is too late now for the defendant to make that question. After treating Bowe as the contractor, and responsible all suoh.all.through this work, and until its completion,and after an acceptance of the entire work as anli .a final. settlement by the government with Bowe, it certainly ought not to be allowed now to make that Bowe was not a lawful contractor. the. 9. The only qu('stion of law raised in this case,and remaining to be dispose,d of, is as to wh,atclass suits may be brought againl;lt the United States under the aGt of congress of :March 3, 1887. It is immaterial here further to allude to· this matter than to state that this entire case arises out of a contract,and the claim of the plaintiff is based either upon an implied promise to pay for work by: ordering and accepting it. or for damages to one or the contract by the improper interference of the other party with its fulfillment. It may be that an exception should be made as to the item claiming that the lumber was ordtj\red to bE' placed in the position named therein in the open air. But .even as to this, if the plaintiff had any :they would seem to grow out of the contract, and be based on aviolf:ltion py Capt. Jacobs of his duty under the contraGt. It is further conten<ied in this connection that part of this suit, "sQunding in tort," canllqt be sustained, and that t1;le plaiijtiff has improperly joined. c.ontract8ijdtort. Of course, lI,nypart of the case, "sounding in tort" would go out on that ground, but, as has been the 'Yho1e ofa right of action arises .out of a contract, and under the .Hb,eralrule lI,S to the pleading adoptl'ld by t.he court of c1ai,ms . seem, should .be followed here in actions of this kind) the. to [email protected] and the Qharacter of th,e action can-
BOWE". tJNITED STATES.
783
not be sustained; 'Clark voU. S., '95 U. S,'539; Peirce's GUS8, 1 Ct. Cl. . 195, and other court ofclaims cases. lO.n may be proper to add that in the view taken of the facts in this case, and the principles of law controlling it, it is not necessary to determine the effect of the final receipt given by Bowe through his attorney in fact to the government when the contract was completed. There has been some diseussion: as to its effect and as to Capt. Jacobs' power to bind the government to change in any way the legal effect of the receipt by his statement to Bowe's attorney in fact that the receipt was simply" for so mnch money." It is immaterial as to What its effect is in view of the rulings oLthe court in the other questions in the case. Having found the facts, and stated the conclusions of the court upon questionsofJaw involved, the conclusions of the court as to plaintiff's right to recover, considering each item separately; will now )be stated. The following items of plaintiff's claim are without merit, atxf should not ,have been allowed if. claim for extra compensation had been' made and insisted, upon at the time and notice given in accordance with the view hereinbefore expressed by the court. . .', ..' Item 1. The manner in which this work was required to be done was ·not unreasonable. The requirement of the "tongue and groove" was not such additional· work to that required bytbe specifications that it could be fairly claimed as extra. Item 2. The· facts do not sufficiently show any extra expense to the contractor. i, Item 5: "Plank forpluwber to lay platform." Thestatement,offacts disposed of this item. . . Item 6: "Change of pulleys on proof-racks. The quartermaster re-. -quired that certain doors should be made to work properly. He was right in so doing. Item 20: "Ex:tra work on mantels. The quartermaster was right in his construction of the specifications in question that the $20 completereferred to the mantel, and everything that was necessary for the mantel, aelaid down at the building,and he was right in requiring the work of .setting, as additional to this, of the contractor. Consequently the contractor was required to dono more than the specifications called for. IteTn821 and 22: "20,000 extra brick in bake-house and commissary building." After the ample opportunity and means given the contractor to know,the location of these buildings, if he failed to know the point at which they to be erected, and the character of the gTGund, it was clearly his own fault, and there was no ground for the demand for,pay for brick-work required by the character of the ground. Item 23: "Extra cost of painting," etc;, "wardrobes." Tile ·change complained of seems to have been suggested by the foreman ineharge of the painting, with the statement that it would involve no extrac0st. As to the following items the 'plaintiff is not entitled to recover,because no .claim for extra compensation was made at the time the (lone, aIld· De notice given that any of the work would be regarded tIS extra. As.toall of'these items the decision of the .:quartermaster,waa
FEPERAlt
vol. 42
in, and the work done in accordance with his requirement without any notice to him that his determination of the matter was not .final and conclusive. These items hereinafter named, as well as those ,heretofore named, are controlled by the conclusions oLthe court heretofore expressed. Item 26\' "Running gascpipes from meters to the outside of buildings." Ite1n 8: ' If Screws on the inside bead.o£280 windows." ltem·4::"Extra work 011 cornices," eto. IteJrn 11:"Extra work on stairs." Item 13: "Extra cost for putting on neck mould," etc. Item 14: "Work on board andwa.inscotiilg." Item 15: "Mould around 44 doors." Item 8, (fL, b, c,d,e, and J:)' "Hand-smoothing, sand-papering, and l!lcraping ceilings,"etc.' . It wiUbe.. perceived from the quotations from one of the specifications statement of that it 'was required that "each class of work wustpresent a finished appearance, whether specified on plans or in specifications, harmonize throughout, .and be entirelysatistactory to the officerincharge." It would seem that ,while the contractor knew that a large <i(ltmt of the w(lrk to be done, under the contrac.t was inside wood work,.;and; with as that just mentioned in the contract, leaving the character to be determined by the officer in charge, that be would have ill,ade some inquiry and investigation in advance as to the character of finish that would be required for the work. No such .inqUiry seems to have been made,.,abdthe 'question as to what was required by the contract and specifications, and a fair construction of the to have arisen the officer in charge and the .c,ontractor, about the time this part 6£ the work was to be commenced, in addition to the general reason given elsewhere as to the failure of the ;ooot:t'aQtortoclaim this as an extra at the time, and to l'equest that it be so treated and reduced to writing, whichlapplies to this item as to the others,,· It is not at all clear that this lumber was required to be brought tO$:lly:grljater degree of llrnoothness and, finish than the character of the work>a:nd a fair construction of the specifications required. It is unnecessary' to determine this question, however, as it is held that the clahti is controlled by the general reasons given elsewhere as to failure t()) make any claim' for extra compensation. . :;.JtfTM9and 10.. These two items may be considered together. They <)( tbelsamecbaracter as Item 8, and are controlled by what is stated
Item 12: "Extra cost of Yale locks. "Even if the mistake as to locks w.as6!ll Mooun't of a defect in the plans; and there was no error on the .part !of"thecontractor,he failed to make any claim whatever for compensation ;for his loss atthe time. . As tt> :Item 7, for catch-pans imder:dormer windows, there is more difficUlt"" although involving a small amount, than as to any other item in. It appears from,. this letter of November 24, 1887, that C.apt. i Jacobs decided that this work was .not extra, in which, it seems
785
from the':e"idence, he was mistaken. If these dormer windows were constructed as they seem to have been, in accordallce with the specifications, although the result was that the rain entered the building, it does not seem that it was the contractor's fault. It seems, however, from McLain's letter of June 15,1888, that Bowe acquiesced in Jacobs' decision by assuming the payment of these catch-pans. Why no settlement ofthe matter was made frornthe date of Capt. Jacobs' letter (November 24, 1887) to the date of McLain's letter (June 15, 1888) does not apJ?ear, and the conclusion mUl:lt be that in the mean the matter had been amwged in way to Bowe's satisfaction, and consequently he assumed the .payment of the amount involved. While this item is more meritorious than any other involved in plaintiff's claim, it is subject to the general objection of failure at the time to give any notice of the claim. for extra compensation. In addition to this, my conclusion is that Capt. Jacobs acted in entire good faith in making his decision on the subject"and, even though he erred, as Bowe seems to have acquiesced at the time, the conclusion is that even as to thisitern plaintiff' cannot recover. Items ,16, 17. 18, and 19 may be considered together. They are for damage to, lumber by being exposed to the weatherby order of. Capt. Jacobs. The conclusion as to the matter embraced in these items. is that·neither Capt. Jacobs nor his superintendent, Mr. Russell, had any authority whatever to give the contractor orders as to how his lumber should be dried. Their only authority extended to accepting or ing lumber when offered for use in the building. No such authority is given thel'epresentative of the government by the contract, and it Cl1nnot be inferred from anything stated therein. If Jacobs or Russell had given any such orders as claimed by the 'plaintiff, and Bowe, feeling bound to do so, had followed them, it is clear that the government would not be bound by their action. It seems from Bowe's testimony that he knew that Jacobs had no such authority as this; but, even if he did not,he can take no advantage from it here. While the facts found hardly render the foregoing statement necessary, it is made as covering the item and disposing of it, even though the facts are as strongly with the plaintiff as contended for. Item 25: "The amount retained by Captain Jacobs for alleged defects in tin roofs." It will be perceived from the statement of facts as to this item that Bowe protested earnestly against this action of Capt. Jacobs at the time. If the action of the quartermaster was not justified by the condition of the roofs, the government will owe Bowe this amount. Bowe's attention was first called to these leaks August 3d, and on August 27th' he was warned that the quartermaster would have the work done and charge the same to him. After Bowe's attention was again called to the matter, in December, in January the quartermaster made the contract alluded to. It seems from Bowe's letter of January 6th tha,t be,klltlly,tbat there were Some leaks,thongh be says the hands had b6!'!p,ltt, work on them, and had reported to him that they were stopped.. p.nquestional;>ly .to. have been great delaJT on Bowe's part in v.42"F.no.13-50 '
,78(i
mmedyingthe defectS in the toof,andl am unable to find,thatthe action of the quartermaster was unjustifiable. Article 4 of the contract between Jacobs, aCtingforthe United States, and Mr. Bowe,has this pro, vision: : ,: "That it the secondpart,Bowe, fails to comply with the stipulations of this agreement according to the true intent and meaning thereof, then the ,party'of the6ri!tpart, Jacobs,for the United f:;tates,shall have the power to complete the'Elntire work, Or any pad thereof remaining to be completed;eithel' byspEicial contract, daYll' labor, or open purchase, as the said P$rtY, ot the first part 8111&11' deem, to be best for the interest of the pubHc service::an(i the party 'of; seCond 'party' ghall be charged with any t'xpensll thus: incurred by reasb!)' of failure'on the part of the party of:theseoond part; and,tJl,e amol!nt o{,snch-,expensemay be deducted from any moneys due, or become party of second part."
'!Rem 28: "Amount for 19 missing fenders." l,amunable to see 'haw Capt. Jacobs could have adopted any other course than he didjthat is, to investigate the matter and see who was responsible for tbe'In.issing articles, and to put the expense of buying them where it justly belonged. He seems to have investigated the matterimpfl.rtially, have endeavored to determine fairly where the responsibility'rested. :Ris impossible for the court to determine here and'ndw whether he decided the matter correctly or not; and, after waiting trm<n June to Augustfor evidence from Bowe on ,his side of the question; ,r do: 'not see ,ho" he can' be ,blamed for' paying over the money as he did to Hunnicutt,&Bellingratb. N'o objection a'ppea:rsto have heen made by Boweat tl1'e time to the retention of the'IDonayby Jacobs until the matter cotild' be investigated, and no rear effort -seems to have been made to produce evidence showing thai the' fenders were not delivered. I fail tO'Dnd any merit in :this item. Item .29: "Delay to oarpenter work;" , I: think there is noclllim by plaintiff-there certainly cannot, in justice, 'be 'any-that this supervision ,of the quartermaster, and interference, 'if'lt may beso'called,was for any other purpose or with any other intent''thanto hold Mr. Bowe to a strict compliance with his contract as to the .eba'l'acter of the work. Bowe had by the contract ,given him this authority, and it seems too late now to complain of its exercise, unless forbad 1'aith,or otherwise actuatedthan to faithfully represent the governmElnt and obtain for it its just rights in the >Elfection of these build.. iogs; ,'Item 24: fl Trimming\Vith red instead of a differeht :shade of same color as body; as first , , lte1tl27: "Extra cost,oroven castings," etc.' The two last-named ;items were abandoned by the plaintiff on the ,hearing;' , ';lhl'1'aybe proper td ad,d' that the court does not desire that the infetienC&'$bll.U be drawh:that the other items,' exceptJ:those'first disposed oflioove,' would h8:ve been meritorious if theyhadbeeli properly claimed 'tiime. Where this :has been clearly true it has' been13tated. and .not -alluded t,dt· was because' they were eontrolled by ()thertea,
t'. Fl:\K.
787
sons, irrespective of the merits of the particular item if it had been properly urged when the questionll.rose during the progress of the work. I have thus endeavored to find the facts in this case and the conclusions upon questions of law involved, as well as the conclusions as to each ofthe plaintiff's claim. The court has been very greatly aided in all this by the careful and able argument by the counsel on both sides. The court has been specially benefited by the carefully prepared argument and brief submitted by the junior counsel for the plaintiff, enabling the court, a8 it has by its references to the testimony, to find without difficulty such parts of the voluminous testimony in the case as have been most material in its consideration. The conclusion in this case is that the plaintiff is not entitled to recover in any amount, and that the judgment must be rendered in, favor of the defendant, with costs of suit.
HARRISON t1. (0IrcuU Court, N. D. Georgfa. .Tune 91, 1890.)
L C.lB1!J" OJ' PA88ENGEBll-E.n!OTJON OJ PASSBNGEBI-REJUllAL TO PAY ExTJU. FARE. Where a passenger sought to buy a ticket, but could not, because the agent hil:d left the office, and gone to meet the train, then standing at a water-tank some2Otl feet away, anp the passenger refullOO. willfUlly aud captiouslY, to PllY the conductor 25 cents in excess of the regular. fare, aud take a rebate chec'k, (the requirement 'of the conductor being in accordance with his Instructions, and baving the.sanctlon of the railroad commission of the state,) and, this refusal being persisted in until the train was stopped, the conductor was authorized to put the passenger off the train. I. SAKE-OlI'I'BR TO P.n AJl'TBR EJECTION. ' A passenger, who knew the duty of the conductor, and willfully and oaptiously refused to pay extra fare, demanP!ld.of him because he had no ticket, cannot reinstate himself, after the train has been stopped to put'him off, by offering to pay. 8. SAlIB-"-AsSAUL'1' BY CoNDUCTOR-PROVOCATION.
A Pllssen!!'er cannotclaim da:qlages on account of.the conductor drawing a pistol on him, and speaking of hilIlas a coward to the other passengers, if the conductor'. conduct was provoked and caused by the acts of the. pssBenger.
At Law. HaU &: Hammond, for plaintiff. Bacon &: Rutherford, for defendant. Before PARDEE and NEWMAN, JJ.
NEWMAN,J. This is a motion.:fora. new trial, At the conclusion of all the testimony, both plaintiff and defEmdant having introducing evidence, the court directed a verdict for the defendant, for the reason that, under the most favorable view of the evidence for the plaintifr, he was not entitled to recover. The facts in the case were substantially as follows: On the '11th day. of February. 1886, the plaintitf,accompanied by his friend, Mr. traveling salesmen,-came from Monticello, in a .ppvate.conveyanoe" to Flovilla, a station on the railroad Qperated by· the defendaIitas receiver at that time. They came to Flovilla to take