15 Ct. Cl. 174 | Ct. Cl. | 1879
Lead Opinion
delivered the opinion of the court:
The first and most important question in this case is as to the construction that should be given to the second clause of the specifications, which is in these words: “ The foundations and the brick walls now standing that were uninjured by the fire will remain and be carried up to the height designated on the plan by new work?.
The circumstances known to both parties which preceded and attended the making of this contract were these:
The old walls were in the possession and under the control of the defendants. It was to their interest that as much as possible of these old walls should be saved, yet that no imperfect portion should be retained. To a contractor it mattered not until he entered into a contract whether much or little should be utilized. If the former, there would be so much the less work for him to do; if the latter, he would be paid for doing so much the more; in either case, he could regulate his bid by the amount of old wall that was to enter into the new building. But it was vital to every contractor to know how much of the old walls woidd remain, and how much new work he must contribute. A superficial inspection would not tell the bidders what was the real condition of the walls. It was necessary that they be dismantled of the injured parts, if the contractors sending in proposals were to make close and accurate estimates ; otherwise every bidder would leave margin enough in his calculations to cover the unknown contingency, and the result might be that the government would- be allowed little or nothing for the old walls. Such being the conditions of the case, the officers of the government, instead of leaving the walls' as the fire left them, and turning them over to the contractor to be razeed by him to such extent as might be found necessary, pulled down what they deemed the imperfect portions, and apparently left only so much of them standing as was fit for the new superstructure. They next prepared the specifications afterward annexed to the contract, and then, handing the contractor a copy of these specifications on the one hand and show
These circumstances, so far as they go, point to an interpretation favorable to the claimant. “ The duty of the court is to ascertain not what the parties may have secretly intended as contradistinguished from what their words express, but what is the meaning of words they have used. It is merely a duty of interpretation, that is, to find out the true sense of the written words as the parties used them; and of construction, that is, when the true sense is ascertained, to subject the instrument in its operation to the established rules of law.” (1 Greenl. § 277, p. 323.) If the defendants had turned the old walls over to the contractor untouched at the time he entered into the contract, that would have been a significant, a controlling fact against him. If it was not their intention to save the uninj ured portion of the walls and reject the injured, why did they touch them ? If the contractor was to assume the risk of the old walls, what object had the defendants in apparently rejecting- and apparently retaining a portion before inviting his bid ? Somebody had to assume the risk of the old walls being fit to build upon. Responsibility for their fitness (in the absence of express words to the contrary) would naturally be assumed by the party who owned them, and controlled them, and put them into the contract, and who apparently had prepared them for the uses and purposes of the contract. It would be contrary to the ordinary dealings of men to infer, from such circumstances, that the party who did not own them or control them, who did not put them into the work as his contribution toward the new building, and who had not examined, tested, or prepared them for a new superstructure, was to assume and be responsible for their fitness.
• The other terms and provisions of the contract which have any bearing upon this point are not very significant, but, so far as they go, are likewise favorable to the claimant. In the first place, the contract, like the advertisement upon which it was founded, was not for rebuilding the edifice, but for “ repairs.” In the second place, the contract expressly throws “the risk and expense of all the materials and work” which the claimant was to “furnish” upon him, but does not in terms, if at all, throw upon him any risk as to the fitness of the walls furnished by the defendants. In the third place, the contract
That clause of the specifications was prepared by the defendants before the .contract was made, and was shown to the claimant when he was estimating for the work. Upon the faith of it he made his bid. Its language is, “ The foundations and the brick walls now standimg that were uninjured by the fire will remain and be carried up to the height designated on the plan by new work.” It is manifest that this language needs some amplification to make its meaning clear. The defendants contend ip effect that it means [“ So much of] the foundations and the brick walls now standing [as subsequent examination may show] were uninjured by the fire will remain and.be carried up.” The claimant contends that the true construction is, “ The foundations and the brick walls now standing [being those portions'] that were uninjured by the fire will remain.”
As was held by the Supreme Court in Garrison Case (7 Wall., 688; 7 C. Cls. R., 78), “doubtful expressions should be construed most strongly against the party who uses the language.” This expression of this contract is “ doubtful,” because its meaning cannot be rendered certain without the interpolation of words (one way or the other) which the party who used the language neglected to employ. The defendants first razeed the burnt walls1 to their own liking by throwing off the supposed injured parts; then prepared these specifications; then gave them to the claimant to estimate upon; then made them
For these doubtful acts and doubtful expressions the defendants are justly responsible. The old walls were their contribution toward the new building to save themselves the expense of so much new work; they were not put in for the benefit of the contractor; and it seems unreasonable to hold that he was to take the risk of the defendants’ material being fit for the purpose for which they intended it should be used. If the defendants withdrew this part of their material and made the contractor furnish other material of his own in its stead and do more work than he would otherwise have been required to do, the law will imply a contract on their part to pay for that which they ordered done.
For this reason it was not necessary that the contractor should object. If the defendants had ordered a change of the material which he had agreed to furnish, or in the work which he was bound to perform amid circumstances that might imply or warrant the belief that no additional expense would result from the change, it would have been his duty to notify them that he could not make the substitution for the contract-price. But if they had determined to abandon the old walls in toto, and to substitute entire new walls and entire new foundations, or if they had determined to withdraw the old lumber which they likewise had put into the contract as a portion of their contribution to the work, and directed new lumber to be substituted by the contractor, assuredly no notice would have been necessary on his part to tell them that the substitution must be at their cost and charge. The commanding officer of the naval station, Commodore Hitchcock, did not indeed order the entire walls to be obliterated, but he did order one-third of them to be removed. He was not the engineer in charge (termed by the contract “ the superintendent of the work”), who had power to reject the contractor’s materials; but he was the representative of the defendants, their highest responsible
It is proper to add that the representations made to the claimant’s agent, as set forth in finding III, at the time the walls were shown to him, we put entirely out of sight. If this were a suit to reform the contract, such evidence would be admissible 3 and it may be that if the civil engineer (who is designated in the specifications as the person who was to supervise and inspect the work) had authority to make such representations, they would be a part of the res gestee, admissible to show the thing contracted for; but as the authority of the officer is doubted, we prefer to exclude his representations in the consideration of the case.
2. The second question of importance in the case is whether its consideration upon the merits is barred by the statute of limitations.
The item of $4,050 for tearing down and replacing portions of the old wall was not, strictly speaking, extra work. The wall as finally constructed was neither longer nor higher nor of different material than the wall which the contract called for. The demand is properly to recover an extra expense thrown upon the contractor contrary to the true intent and requirements of the contract. Strictly, he sues not for work outside of the express agreement, but for the defendants’ breach of their
The item of $362.79 is of the same nature. The defendants furnished to the contractor a portion of the material necessary for packed beams and gave him his option to put them in or solid-tie beams, as he might elect. They were not at liberty, in the face of their agreement, to say that the material so furnished was not suitable, and compel the contracter to put in the other kind of beans. This was a hinderance and expense thrown upon the contracter contrary to the terms of the contract, but was in no sense extra work under a different or an implied agreement. Instead of being able to bring an action in assumpsit for these beams as for work not required by the contract, the claimant’s cause of action sprang out of the very terms of the contract.
The items for brown-stone capitals and for supporting foundation-walls, on the contrary, are clearly eases of extra work. They were not required by the contract; they were distinct things which the claimant had not agreed to construct or furnish ; and he might have gone on and completed all that he had agreed to do without them. They were furnished before the 7th December, 1866, and if the claimant could have maintained an action for them while the specific contract remained execu-tory, they are barred by the statute.
The contract contemplated “ changes and modifications.” It provided that “ no extra charge for modifications will he allowed unless agreed upon hy the parties, and no changes or modifications mutually agreed upo n by the parties to this contract shall in any way affect its validity.” It further provided that three specific installments of $12,000 each (of sums in gross and not percentages) should be paid to the contractor as the work progressed,
On the 7th December, I860, the work had not been entirely completed. If payment for extra work falls within the foregoing provision of the contract, the statute of limitations does not preclude a recovery.
As the Supreme Court said in Dermott v. Jones (2 Wall., 1), “While a special contract remains executory, the plaintiff must sue upon it.” “He must produce the contract upon the trial, and it will be applied as far as it can be traced; but if, by the fault of the defendant, the cost of the work or material has been increased, in so far the jury will be warranted in departing from the contract prices.” If the claimant had brought his action for any of these items of extra work immediately after performing it, the defendants might have answered that the contract was still executory; that it was to be applied so far as it could be traced; that no payments were to be made except the installments specified in the contract until the buildings should be completed.and accepted; that it cannot always be determined what are extras until the contract work be done; and that by the plain import of the contract the defendants were not to be thus harassed, and that such suits were premature.
It is not easy to understand how the provision that “no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity ” can have any other significance. Certainly changes or modifications mutually agreed upon would not per se affect the validity of an express agreement; certainly they would affect -the price, notwithstanding this clause, for it cannot be supposed that either party intended that extra work should be furnished without an additional consideration. The only rational’ interpretation of the clause is that those provisions of the contract which threw upon the defendants the obligation of paying three specific installments, and assured to them the privilege of having all other payments delayed and gathered up into one final payment when the entire work should be completed, was not to be impaired by demands for extras, but should remain valid, i. e., operative as to them as well as to the subject-matter proper of the express agreement.
3. As to the bill of extras dated October 18, 1866, reduced
The judgment of the court is that the claimant recover—
For the extra work upon the wall. $4, 050 00
For the entire expense in putting in solid beams.... 362 79
For the brown-stone capitals.. 621 48
Amounting in the aggregate to..... . 5, 034 27
Dissenting Opinion
dissenting:
From so much of the opinion of the majority of the court as holds the claimant entitled to recover $4,050 for an additional quantity of brick put into the walls, over and,.above what he supposed, before he made his proposals, would be necessary, I am constrained to dissent.
The case, stated in condensed form, is as follows:
At the outbreak of the rebellion, certain brick buildings in the Norfolk navy-yard were burnt, but portions of the walls remained standing.
In 1866, the Bureau of Yards and Docks of the Navy Department advertised for proposals for the repair of those buildings, and the advertisement contained this clause:
“Persons desiring to bid must necessarily visit the yard and examine the present condition of the works, and can there see the plans and specifications, to enable them to bid understandingly.”
In anticipation of the repairs, the officers of the navy-yard had caused portions of the walls to be taken down; after which, and after the advertisements for proposals had been published, an agent of the claimant visited the yard and saw the plans and specifications of the work proposed to be done, and was shown the walls by a quarterman acting under the civil engineer of the yard. The agent asked if those walls were to stand.
After the claimant had begun work under the contract, it was discovered that about one-third of the walls still standing had been so injured by the fire as to be unftt for building a superstructure thereon; and thereupon the commandant of the yard ordered that portion of the walls to be taken down; which was done; and in consequence thereof the claimant was obliged to furnish bricks of the value of $4,050 over and above what would have been necessary if he could have built upon the walls as they stood when his agent examined them, before making his proposals.
The claimant, at the time, made no objection to that taking down of the one-third of the walls.
Upon the case as thus in substance stated, the majority of the court, as it seems to me, hold that there were tioo contracts between the claimant and the government: first, the written one sued on; and, secondly, a previous unwritten one, resulting from a visit of the claimant’s agent to the navy-yard and the then condition of the walls that were shown to him; from which condition and showing, it is claimed, resulted an implied undertaking and agreement on the part of the government, that the walls as they then stood and were shoion to the agent were fit to be used and should be used to support the new superstructure which the proposed repairs would require to be built upon them.
It is said that if no part of the old walls had been taken down by the government officers before the claimant entered into the contract sued on, or, in other words, if the walls had been seen by the agent in the exact condition they were left in by the fire, and had been turned over to the contractor in that exact condition, to be razeed by him to such extent as when he entered upon the work he might find necessary, the whole responsibility
But if it be supposed that this undertaking of the government resulted not alone from the fact that parts of the walls were left standing, but from that coupled with the other fact that the parts left standing were shown to the claimant’s agent by servants of the government, there is to my mind a sufficient answer to the proposition in the further fact that what the government intended to say in regard to the walls was not left to inference, but was precisely expressed in the written specifications of the proposed work, shown to and examined by the claimant’s agent at the time, and afterwards made a part of the contract. The existence of those specifications and the agent’s knowledge of them at the time, in my opinion, utterly preclude any implication against the government in regard to the walls, growing out of their having been left standing and shown to the agent. JSxpressum faeit eessare taciturn is a maxim which seems to me to close and bar the door against any such implication.
The agent visited the yard after the advertisement for proposals was published. What took him there ? Of course nothing but, in the words of the advertisement, “ to examine the present condition of the works and see the plans and specifications, to enable him to bid understandingly.” The government said to bim and all others, in effect, “There are repairs to be done at the Norfolk navy-yard, and the work is to be let out by contract. Go and examine the condition of the works, the plans, and the
If it was the intention of the Navy Department that the walls as they then stood should be built upon, every dictate of ordinary business capacity, of the plainest common sense, and of common houesty, would have prompted its announcement in the advertisement; but it was not there. So far from that, the specifications open with this stipulation:
“ The foundations and the brick walls now standing that were uninjured by the fire will remain and be carried up to the height designated on the plan, by new work.”
Whatever meaning may be ingeniously ascribed to those words, it is noteworthy that the claimant did not in his petition aver that he or his agent understood them at the time to mean that the walls then standing were fit to build upon and were to remain as they then stood; nor did his counsel, in his brief, take any such position; nor has either ventured to claim, much less has any attempt been made to prove, that the claimant’s bid was based on his or his agent’s understanding that that was the meaning of those words. If that had been his supposition, is it reasonable to suppose that he would not have averred and attempted to prove if? I think not. And because he did neither the one nor the other, it is to my mind conclusive evidence that he had at the time no such supposition.
' But, however that may be, those specifications were made a part of the contract, and it is the business of the court to declare their meaning.
It is claimed that the clause should be construed as if it read “The foundations and the brick walls now standing [being those portions] that were uninjured by the fire will remain.” But where is the authority for the interpolation included in brackets ? I know of no such authority. The parties themselves did not make it.
If it was the intention of the Navy Department to say what that interpolated sentence says, all that was needed to that end was simply not to have inserted the words “that were uninjured by fire,” and then it would read, “ The foundations and the brick walls now standing will remain and be carried up * * * by new work.” So framed, there could have been no question about the meaning; and if that had been the intention of the department, would it not have been so expressed %
"When, therefore, the clause was not so shaped, but those words were inserted, had they not a purpose and a meaning % When the sentence was made to read, “ The foundations and the brick walls now standing, that were uninjured by the fire, will remain and be carried up * * * by new work,” ought there
But to my mind the claimant has, by his own acts, precluded himself from any recovery, on account of the razeeing of the walls after the contract was entered into.
For the sake of the argument, let it be admitted that the clause in question is ambiguous. It has been held by this court that if the parties to a contract, while the contract is in process of execution, do, either expressly or by tacit concurrence, agree or act upon a particular construction of it, neither party can after-wards set that construction aside and insist upon a different and inconsistent one. (Merriam’s Case, 14 C. Cls. R., 289; and see Swift & Co's Case, ib., 208.)
Can it be for a moment doubted that this claimant, while the work was in progress, tacitly acquiesced in the construction put by the government’s officers on this now for the first time disputed clause ? If the claimant really considered it his right under the contract to build upon the walls as they stood when his agent examined them, would he, when ordered by the commandant of the yard to razee one-third of them, have done so, and gone on to rebuild them, without uttering a word of objection ? Is it consistent with any sensible view of his capacity! to understand his rights under the contract, and how to proteo! them, to suppose that neither when the order to razee was givenl nor when he proceeded to obey it, nor yet up to the hour when! after the completion of the whole contract job, he received th<| final payment on account of it, he should have been dumb ? I
If, on the other hand, the previous examination had showii his agent that parts of the old walls, as his agent saw theml were, in fact, so injured by fire as to have to come down, ancj his bid was based on the knowledge of that fact and the calcuB lations necessarily resulting from that knowledge, his silencB when the razeeing was ordered and done is instantly and satisB factorily explained as an indication of his own consciousnesl that the razeeing was necessary and right, and had been hi
When, therefore, ou oue theory his silence is unnatural and inexplicable, and on the other is quite natural, and also quite consistent with our observation and experience of men, I am compelled to adopt the latter as the true theory of his action.
And when the silence remains unbroken until nearly six years after the whole work was done, and after he had rendered a bill purporting to chargefor all extra work done by him, as well as for the contract work, and had been paid in full, and then for the first time this claim is set up, I am constrained to the conviction that it is an afterthought and a mere speculative demand, as, in my opinion, it is without merit in conscience or justification in law.
But were every view I have expressed insufficient, there is one other which seems to me conclusive.
If the circumstances of the agent’s examination of the works, and what he then saw, are to have any effect towards the claimant’s recovery here, they are to have that effect by engrafting on the written contract a stipulation not found in its words. To do that-requires words to be inserted in the contract as signed and acted under by both parties. If any one rule in the law of contracts is settled, and has been so always, it is that such a thing cannot be done; and that when parties, after whatever conversation or preparation, at- last reduce their agreement to writing, that is to be looked upon as the final consummation of their negotiation and the exact expression of their purpose. The parties write the contract when they are ready to do so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and so make this certain and permanent. (2 Parsons on Contracts, 5th ed., 548; Oelricks v. Ford, 23 How., 49; Hawkins v. United States, 12 C. Cls. R., 181; affirmed on appeal, 96 U. S., 689.)
Discarding, then, all in regard to the walls but the one clause of the specifications which has been discussed, T hold that that clause is without ambiguity; that the claimant acted upon it las having the meaning put upon it by the Navy Department; [that he made no objection to what was required of him under p; and finally settled for his pay under it without protest or pemur. Such being the case, I can see no justification for ¡awarding him any part of the $4,050 allowed him by the majority of the court.