92 Ct. Cl. 54 | Ct. Cl. | 1940
delivered the opinion of the court;
The facts with reference to the question here involved are set forth in the findings, and the provisions of Contract art. 11 are quoted in finding 7.
On July 17, 1936, plaintiff entered into a subcontract with the Cauldwell-Wingate Company, who had thereto
Par. • (c) provided that no laborer or mechanic -doing any part ..of the work called for by the contract, in the employ of the contractor or any subcontractor contracting for any part:pf the work, should be required or permitted to work more than 8 hours in any one .calendar day upon such work at the site thereof, and for each violation of these' requirements a penalty of $5 would be imposed upon the contractor for each. laborer or mechanic for every calendar day in which such employee was required or permitted to labor more than 8 hours upon the work, and that all penalties thus imposed should be withheld for the use and benefit of- the United States.
The amount-sued for represents the total of- the penalties exacted by the defendant from moneys due the prime contractor which- was otherwise payable to plaintiff, under its subcontract. Plaintiff, admits that -it required and permitted the cement masons to work more than 8 hours in certain calendar days, for which penalties at the rate of
Plaintiff was familiar with the regulations of the Cement Masons Union with reference to the hour on any day at which such masons would begin work. The evidence shows that plaintiff could have complied with the 8-hour provision of the contract, but that such compliance would have materially added to plaintiff’s' expense of performing the work called for by its contract with the prime contractor. In other words, plaintiff could not otherwise have performed as much work as it did had the masons worked only 8 hours. Hardships or inconveniences involved in the fulfillment of a contract will not relieve a party from compliance therewith. Columbus Railway, Power & Light Co. v. City of Columbus, Ohio, et al., 249 U. S. 399; Penn Bridge Co. et al. v. Kershaw County, 226 Fed. 728; Lewman et al. v. United States, 41 C. Cls. 470; Edwards v. United States, 80 C. Cls. 118. Performance of a contract is not excused by unusual or unexpected expense. Wickham & Burton Coal Co. v. Minnesota Coal Co., 7 Fed. (2d) 873; Farmers' Fertilizer Co. v. Lillie, 18 Fed. (2d) 197; Megan v. Updike Grain Corp., 94 Fed. (2d) 551. In United States v. Garbish, 222 U. S. 257, the court held that that which inheres in the nature of the work or is merely a requirement of business convenience or pecuniary advantage is not an emergency within the meaning of the exceptions to the statutory provisions as to hours of labor. See also Ellis v. United States, 206 U. S. 246.