50 Ct. Cl. 213 | Ct. Cl. | 1915
Lead Opinion
reviewing the facts found to be established, delivered the opinion of the court:
The plaintiff had two contracts with the defendants, one dated June 24, 1909, and the other dated June 30, 1909, and
For the delay in making delivery of two of the steel and one of the wooden lorchas there was deducted from the amount due the plaintiff the sum of $5,480 under the provisions of the second paragraph of the contracts, and to recover said sum this suit was brought. These three lorchas, numbered, respectively, 460, 461, and 468, were deliverable under paragraph 4 of the contracts as follows: No. 460 on or before December 18, 1909; 461 on or before January 1, 1910; and 468 on or before December 14, 1909. No. 460 was 72 days late in delivery, 481 was 77 days late, and 468 was 125 days late in delivery, making an aggregate of 274 days delay, for which plaintiff was charged $20 per day as liquidated damages.
The proof shows that all of these boats were completed in time to have been delivered sooner than the dates fixed for their delivery, two of them having been completed early in November, and the third, finished on December 3, 1909, was practically completed sooner.
The evidence shows that generally during the months of October and November small craft can be towed across the
According to the record in this case the northeast monsoon generally sets in over the China Sea about December 1 and lasts until April or May, when the southwest monsoon begins; the latter does not bring wind or produce stormy weather on said sea, but during the northeast monsoon light-erage or towages can only be done at great risk and danger to the craft being towed. Safe towage can usually be relied upon during typhoon weather — from April to December— because, as we are told, while there are occasional bursts of very stormy weather during that period they are succeeded by long intervals of fine weather, with calm sea, which makes towage safe.
The plaintiff insists that the contracts do not authorize the deduction of liquidated damages for delay in delivering the said lorchas, but confine the liquidated damages to delay in their completion, and refers to the several paragraphs of each of the contracts as sustaining this contention because, it is insisted, that while article 2 mentions a failure “ to complete in all respects the lorchas called for under this agreement on or before the dates stipulated for such completion ” and fixes the damages at $20 per day for each day that “ each lorcha remains uncompleted after such dates,” there is no mention in specific terms of delay in delivery.
Unquestionably the' whole contract, and not segregated portions of it, must be examined when construction of it is resorted to. “ The elementary canon of interpretation is not that particular words may be isolatedly considered, but that the whole contract must be brought into view' and interpreted with reference to the nature of the obligations between the parties and the intention which they may have manifested in forming them.” O'Brien v. Miller, 168 U. S., 287, 296; Boardman v. Lessees, 6 Pet., 318, 345. The under
The other phase of the contention is more difficult of solution. There is much force in the defendants’ argument that the provisions of paragraph 2 are to be interpreted in the light of the remainder of the contract and the intention shown thereby of the parties. The instructions to bidders informed them that in case of the failure of the contractor “ to complete the work and deliver same ” within the stipulated time the right was reserved by the United States to deduct $20 per day for each and every day “ required for completion of each lorcha ” in excess of the number of days stated in the contracts. The contracts were for the construction and delivery “ complete in every detail ” of the specified lorchas; the consideration to be paid was for the six lorchas in each contract “completed, delivered, and accepted,” as specified in article 1 of the contract. Dates on or before which deliveries were to be made are mentioned; provision is made by article 9 that in case of the contractor’s failure to comply with the contract the defendants can “complete the work” at the contractor’s expense; and article 2, while providing in terms for liquidated damages upon a failure “to complete in all respects the lorchas” on or before the dates stipulated “for such completion,” does not fix any dates for completion unless comprised within the meaning of “ deliveries ” mentioned in article 4.
These considerations may tend to the conclusion that if the said clause is to be given effect the completion in all respects of the lorchas includes their delivery. “A rigid adherence to the letter often leads to erroneous results and misinterprets the meaning of the parties.” Reed v. Insurance Co., 95 U. S., 23, 30. But where the language used is plain and unambiguous no construction is necessary, and in construing contracts words are to receive their ordinary and popular meaning. Moran v. Prather, 23 Wall., 492, 499. What the court should do is to ascertain and effectuate the
It being competent for the parties to agree upon liquidated damages, the terms in which they saw fit to express that agreement are not necessarily to be interpreted by what the court may think the parties had in mind, if, in fact, they expressed something different.
The Government insists that article 2 authorized the deduction made by it from the compensation of the plaintiff because the latter failed to deliver the lorchas within the stipulated times, and the plaintiff replies that it completed the lorchas in time for their delivery, and failed to make deliveries because of the conditions prevailing on the China Sea and its inability to secure towage, and, further, that its contracts do not provide for liquidated damages upon a failure to deliver, but refer to a failure to complete. Claiming the right of deduction it is for the Government to show that the contracts authorize it.
The language used is that of the defendants, whose agents drew the contracts, and it is a rule of law that words will be construed most strongly against the party who used them. American Security Co. v. Pauly, 170 U. S., 160, 168. It seems to us that it was the original intention of the parties, evidenced by the clause of the instructions to bidders where the matter of liquidated damages is mentioned, to provide for the same upon failure to complete and deliver the several lorchas, the question here being whether that intention is expressed in the contract. In Germann & Co.'s case, 50 C. Cls., —, Judge Barney said that the rule allow
Whatever of doubt there may be on the above phase of the case, we are satisfied the plaintiff should recover. Before the period for delivery under the first contract had expired, and similarly as to the second contract, the deputy quartermaster general, being the chief quartermaster, under the official seal of that office, notified the plaintiff’s agent at Manila that the plaintiff would be permitted “to proceed and complete the work, same to be done with utmost des-patch,” and that all expense incurred by the United States after December 14 (in the first contract and January 1 in the second) would be charged against the plaintiff and deducted when final payment was made. The reason for this action of the chief quartermaster (he being the person to whom by the provisions of the contracts delivery was to be made) seems apparent. The storms during October and November had prevented deliveries, and two lorchas had recently been lost. The dangers of loss if deliveries were attempted in December were great, and though the contract provided for delivery at stated times, and, let us assume, provided for liquidated damages, said officer was probably informed by the plaintiff’s agents, to whom said letters were addressed, that the lorchas were ready for shipment, and if he was not cognizant of the condition generally prevailing over the China Sea during that period of the year he did'know that two lorchas had a short time before been lost in the attempt to tow them to Manila. It seems prudent and reasonable that he should, under such circumstances, authorize the plaintiff to complete the work of delivery as soon as practicable. We must assume that he had authority to act as he did while he was at Manila. The letters show that the plaintiff had not asked for an extension of time, and the quartermaster may have desired to forestall attempts at further delivery during said period because of the risks attending them.
A judgment will accordingly be awarded the plaintiff for said sum of $5,480. And it is so ordered.
Concurrence Opinion
concurring:
I fully concur in the conclusion reached in this case and all that is said in the opinion of the Chief Justice, except the implied doubt expressed upon the question of the construction to be given to the paragraph of the contracts relating to liquidated damages. Upon that question I do not believe the plaintiff was chargeable with liquidated damages even if there had been no extension of the contract period.
Dissenting Opinion
dissenting:
I can not agree with the majority decision of the court, for the reason that section 1 of the two contracts in the case provides for the “completion and delivery” of the lorchas at Manila, P. I., at certain specific dates; and section 2 provides, further, that liquidated damages at $20 per day (which is not unreasonable in a contract of the magnitude of the instant case) may be assessed against the contractor for each and every day for failure to comply therewith. Were it not for this latter provision in the contracts the claimant company could use its own pleasure in the delivery of the barges, and thus force the Government to prove actual damages caused by such failure. The petition therefore should be dismissed, and judgment should be entered for the United States.
Other reasons for nonconcurrence could be given, but X deem this one sufficient.
