12 Ct. Cl. 624 | Ct. Cl. | 1876
Lead Opinion
delivered the opinion of the court:
The petition in this case sets forth three causes of action, all growing out of the same contract, and the defendants file a general demurrer to the petition. The contract as first entered into, and the supplemental one, and certain, letters relied upon, are all subjoined to the petition, so that we have before us, as we suppose, all that is necessary to enable us to decide the questions of law presented by the demurrer.
I. The first cause of action is for the recovery of $70,745.74, which the claimant avers to be due to it, over and above what has been paid to it by the Government; and the question whether the claimant is entitled to any more than was so paid it, upon the facts as set out in the petition, is the point now to be decided. If the claimant is, in our judgment, entitled to more, the demurrer must be overruled ; if not entitled to more, the demurrer must be sustained.
The claimant, by the contract, agreed with the Supervising Architect of the Treasury Department to furnish and deliver at the site of the new post-office building to be erected in the city of New York, granite from the quarries of the claimant on Dix Island, to be used in the construction of said buildiug; and the contract contained a stipulation for the payments to be made to the claimant in the following words:
“The party of the first part hereby covenants and agrees to pay or cause to be paid unto the said party of the second part, or their legal representatives, for the stone so delivered by the party of the second part, in lawful money of the United States, the sum of 65 cents per cubic foot for all stones where the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding twenty feet.”
The controversy is over the meaning of the last sixteen words of that clause, viz, “ and one cent additional for every cubic foot of those having such dimensions exceeding twenty feeV lb is remarkable that at least thre.e different interpretations can be given to those words.
The petition alleges that, under the orders of the Supervising Architect, the claimant furnished a large number of stones, each of quarried dimensions exceeding 20 feet, amounting in the aggregate to 353,728 cubic feet and 7 inches, for which the
“And your petitioners further show that the United States claim aud pretend that said amount is not due to your petitioners because they say by the construction of said contract, as they hold, for every cubic foot in said stone exceeding in dimensions 20 cubic feet, they are only to pay under said contract to your petitioners as many cents per cubic foot beyond 65 cents as there are cubic feet i i said stone exceeding 20 cubic feet; and under said claim the United States have paid to your petitioners for said stone a sum so reckoned only, leaving the aforesaid balance of $70,745.74 now due aud owing to your petitioners according to his contract.”
The difference between the claimant and the Government can best be shown by illustration, taking a stone containing 30 cubic feet as the example.
The claimant’s idea of what should be paid for such a stone is, first, 65 cents for each of the 30 feet; aud, secondly, to add to each of the 30 feet the sum of 30 cents, to meet the contract requirement of “ 1 cent additional for every cubic foot of those having such dimensions exceeding 20 feet.” This would make each of the 30 feet cost 95 cents, and the whole $28.50.
The rule of construction by which the Government paid the claimant was, first, 65 cents for each of the 30 feet; and, secondly, to add 10 cents to each of the 30 feet, as the 1 cent additional on the excess over 20 feet, so that each.of the 30 feet would cost 75 cents, and the whole $22.50.
In the opinion of a majority of the court neither of these constructions is the true one, but that the words in question are satisfied by allowing 1 cent additional for each of the 30 cubic feet, making them each cost 66 cents, and the whole $19.80.
If this be the correct view, then the claimant has been paid on the whole 353,728 cubic feet and 7 inches at the rate of $2.70 more on every 30 cubic feet than the contract required. Of course, then, there is no ground for any claim over and above the amount the claimant has received; and therefore the claimant’s first cause of action is bad, and as to that the demurrer must prevail.
II. The second cause of action is based on the following stipulation in the supplemental contract:
*630 “Any claim heretofore made or presented by the party of the second part for the payment of the cost of shops, sheds, &c., used for the working, dressing, and boxing of the granite, is hereby waived and withdrawn, it being understood that the contract of said party to work, dress, and box the granite implies that they were and are to provide all usual and reasonable facilities for the performance of the work at their own proper cost and expense. It is agreed, however, that if at any time the party of the first part should deem it necessary that a greater number of granite-cutters than one hundred, with a proper proportion of blacksmiths and carpenters, should be employed, temporary shops, sheds, &e., for the accommodation of the additional force, shall be erected by said party of the second part, on the written order and under the direction of the party of the first part.”
The petition alleges that the United States required the employment by the claimant of more than eight hundred granite-cutters, with all the necessary labor for working, boxing, and dressing stone, transporting and delivering the same at the wharves, and freighting the same from Dix Island, and delivering the same in New York; and that the claimant, in order to carry on the work, under the direction of the United States and under the order of the superintendent of the work appointed by the United States, built boarding-houses, sheds, store-houses, and barns; and was forced and obliged, for the purpose of freighting said stone, to build additional wharfage facilities at Dix Island, and also an additional store-house to store the lumber, steel, iron, salt, and other materials furnished by the United States, and for the protection of the same from the weather; and also a market-house or shop in which provisions might be stored and furnished to the men for their support while so employed ; and large boarding-houses in which the men could be lodged and fed; and barns for the cattle employed in hauling the stone; all of which was done with the full knowledge and consent of the officers of the United States, and upon their requirements, and were necessary for the completion of the work in the time required by the Supervising Architect, and were of great benefit and advantage to the United'States; and that all of those buildings and erections have been paid for by the defendants, except the following, which cost the sums set opposite to them, respectively:
*631
For this amount the claimant asks judgment, and we are all of the opinion that the petition does not, in respect thereto, show a cause of action.
By the contract, whatever “ shops, sheds,” &c., might be needed “for (he accommodation of the additional force,” were required to be erected “ on the written order and under the direction of the party of the first part;” and the Supervising Architect of the Treasury Department was the party of the first part. He was the officer whom the contract designated as the one whose “written order” should authorize the erection of those structures; and, to entitle the claimant to recover on account of them, it must be averred that he ordered their erection. It does not meet the requirements of the case for the petition to say that theyAvere built “under the direction of the United States,” or “ under the order of the superintendent of the work appointed by the United States,” or “ with the full knowledge and consent of the officers of the United States, and upon their requirement;” for none of those allegations, nor all put together, necessarily include the Supervising Architect, who was the party to act. For all that appears in the petition, he may never have known that the claimaut had built any of those structures. Certainly it does not appear that he ordered their erection.
In the abseuce of au averment to that effect, the second cause of action is bad, and the demurrer to it is well taken.
III. The third cause of action is for the sum of $14,219.12, which it is averred the claimant lost by the increased cost of the work done by it under the contract, after the 10th of June, 1872, consequent upon a letter — which the petition styles au “order” — written by the Supervising Architect to the claimant on the 8th of June, 1872, as follows:
“I am instructed by the Secretary of the Treasury to request you to give the mechanics and laborers employed by you on the work for- cutting and boxing the granite for the new post-office*632 at New York the benefits of the eight-hour law, from and after the receipt of this letter. The Department does not expect that any reduction will be made in the rates of wages on that account.”
To this letter the.claimant, on the 10th of June, answered as follows:
“ Yours of the 8th is this morning to hand, and, in accordance with your request, have telegraphed to Dix Island and to Charleston to adopt the eight-hour law, which you are aware' causes hn increase in the cost of granite, &e., which certainly should not be borne by us.”
To this the ¡Supervising Architect, on the 12th of June, replied thus:
“Yours of June 10th, notifying me that you have adopted the eight-hour rule at Dix Island and Charleston, is received, for which please accept my thanks.
“ I also note your statement that the cost of the granite will be increased thereby, and that you do not think that it should be borne by you. On this question I do not desire to express my opinion, it being a subject for the consideration of Congress, and not for the Department.”
By the contract the United States were to pay to the claimant “ the full expense and cost of working, dressing, insuring, and boxing the stone,” and the petition alleges that the granite-cutters, dressers, aud boxers of the stone were paid by the United States. They were, therefore, in fact, the employés of the Government, though their labor was engaged aud directed by the claimant; and, as such, they were subject to, and entitled to the benefit of, the Act June 25, 1868, (15 Stat. L.,. 77,) which declared “that eight hours shall constitute a.day’s work for all laborers, workmen, aud mechanics now employed, or who may be hereafter employed, by or on behalf of the Government of the United States.”
The claimant, in entering into this contract, knew, or was bound to know, of the existence of that law, and was bound to understand that it would, or at any rate might, be applied to the workmen who should be employed under the contract. That law was as much a part of the contract as if an express stipulation making it so had been therein inserted. When, therefore, the claimant was requested to give those workmen the benefit of that law, there was no violation of the contract, but,.
The demurrer is sustained as to all the alleged causes of action.
Dissenting Opinion
dissenting:
Of most things which are bought and sold the value or prices in the direct ratio of the quantity. Thus if a sack of flour weighing fifty pounds be worth §3, one weighing one hundred pounds would be worth $10; or, if a yard of cloth be worth $2,. ten yards would be worth $20. It may be true in many cases that a large article is more valuable than a small one of the same variety, as in the case of fruit, where<a barrel of large apples is worth more than a barrel of small ones, though of the same kind; yet here the unit is the barrel and not the apple, and the difference of size in the fruit is reckoned as a difference of quality, the fact remaining always that a hundred barrels of the same kind and quality will not cost more than a hundred times the cost of one barrel, but ordiuarily less.
Of some other things, however, either because of the extraordinary rarity of the greater size, or of extraordinary difficulties in manufacturing or transporting, the value or price is cumulative. The most notable examples of these are diamonds and plate-glass. For a long time the rule for computing the value of diamonds of equal purity ran in this way:
If a diamond of I carat were worth £8, one of 2 carats would be worth £32; one of 3 carats would be worth £72; one of 20 carats would be worth £3,200.
And it is stated in The Attorney-General v. The Plate-Glass-Company, (1 Anst. R., 43,) that if a piece of plate-glass be cut in two it will, not have one-eighth of the value that it had» before.
The counsel for the claimant maintained, on the argument
The language to be interpreted in this contract is as follows:
• “The party of the first part hereby covenants and agrees to pay the sum of sixty-five cents per cubic foot for all stoues, when the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding tweuty feet.”
The entire controversy and $70,745.74 depend upon the meaning of seven words, “ one cent additional for very cubic foot.”
Three interpretations have been ascribed to this clause :
1st. That the price intended was sixty-five cents per foot for ■stones of twenty feet or less, and for larger stoues sixty-six cents; which is the interpretation of the court.
2d. That the price intended was sixty-five cents per foot for stones of twenty feet or less, and fpr larger stones one cent additional “ for every cubic foot ” in a stone except the first itwenty; which is .the interpretation said to have been given to ■the clause by the Supervising Architect of the Treasury.
■3d. That the price intended was sixty-five cents per foot for
As to the second interpretation it is manifest that it inserts a provision not to be found in the contract by excepting from the computation the first twenty feet. The words “for every cubic foot” deny any such limitation, and it is generally conceded that its arbitrary insertion by construction would be factitious and fanciful. The controversy, therefore, is reduced to the simple question whether the price of the class of larger stones was intended to be fixed or cumulative.
The first interpretation ascribes to this class of stones a fixed price, but in regard to it there are several things to be said.
' In the first place, if all that the parties intended when they entered into their agreement was to designate for two classes of stones two fixed prices, it is utterly incomprehensible that they did not say so in so many words. When they said that “ sixty-five cents” was to be the price of the one class why did they not say that sixty-six cents should be the price of the other ? If all that they meant was that for stones under twenty feet' the price should be sixty-five cents, and for stones over twenty feet, sixty-six, why did they go so far out of their way to avoid saying three such simple words as “sixty-six cents'?” If they did not intend a varying scale of cumulative prices for this class, why did they provide a fixed price for the first class and a cumulative scale for the second 7 Certainly, if the words “sixty-five cents per cubic foot and one cent additional for every foot of those having dimensions exceeding twenty feet” were used to express nothing more than “ sixty-six cents,” they furnish as ridiculous a paraphrase as can be found in English literature.
In the second place, this contract contains no limitation as to the size of the stone which the claimants were to furnish ; and, on the contrary, bound them under very stringent penalties to furnish “ all such stone as might be required in the construction” of the Hew York post-office. Apart from any knowledge of a custom of cumulative prices, ordinary intelligence suggests that a contract to furnish stone of unlimited dimensions at the trivial advance of one cent a foot over the price agreed upon for the smallest would be ruinous. The language of the contract is the thing to be interpreted, but itjs to
In the third place, the defendants here conceded as the work progressed that/ the contract intended a cumulative pricej though the parties differed as to the starting-point of computation. Contemporary construction is an item of great weight where an ambiguous clause is the subject of construction j and it is rarely warrantable for courts to go behind it and say that they know better what, the parties intended than they knew themselves — to say that the price was intended to be fixed when both parties treated it as cumulative.
In the fourth place, it is a matter of legislative and executive history that the price of the similar stone bought by the Government for the Treasury Department was seventy cents per foot for stones of ten feet; eighty cents for stones of twenty feet j ninety cents for stones of thirty feet, &e.j in other words, that there was a cumulative price of “one cent for every additional cubic foot,” though the standards or rests agreed upon as the basis of computation varied from the single rest provided by this contract. In the case of the cap-stones of the piers of the outside stairways the dimensions of each stone were 18 x 17 x 1.10, and the cumulative contract-price for these six stones amounted to $102,000. This enormous cost led to the interference and investigation of Congress, and thus the matter became one of public notoriety.
I am therefore of the opinion that the contract in this particular means what it says; and that what it says is that the price of the larger class of stones shall be per cubic foot 65 cents + (1 cent x the number of feet in the stone.)
Should the claimants wish to amend by making proper aver-
As to the second cause of action, I concur with the majority of the court. As to’ the third, I am of the opinion that there was an agreement by the agent of the Government, subject in terms to the approval of Congress, and that this case conse