43 Ct. Cl. 336 | Ct. Cl. | 1908
delivered the opinion of the court.
April 4, 1903, a contract was executed between the United States and plaintiff for the construction of a hospital building at Chickamauga Park, Ga., in accordance with plans and specifications attached, wherein it was stipulated that plaintiff should be paid the sum of $59,472 for said work. The contract contained a provision that work on the building should begin April 6, 1903, and be completed on or
Articles 2 and 3 of the contract, which are material in the issue before us, are in the language following:
“Article 2. The time of the completion of the work being an essential element and consideration of this contract, it is further agreed that in case of the failure of the party of the second part to complete in all respects the work called for under this contract on or before the date stipulated for such completion, the loss resulting to the United States from such failure, as liquidated, ascertained and fixed damages is hereby fixed at twenty (20) dollars for each and every day that the work on the building remains uncompleted after such date, and it is hereby stipulated that the party of the first part may withhold such amount as liquidated damages from any money due the party of the second part from the United States, and should the amount due the said party of the second part be insufficient to cover the loss at the above rate, then the party of the second part shall pay the excess of such damages over the amount due; provided, that delays caused by quarantine restrictions, storms, floods, or other violence of the elements may, upon the recommendation of the proper officer and approval by the Quartermaster-General, be excluded in determining the amount of said damages.
“Article 3. That work on this contract shall commence on or before the sixth day of April, nineteen hundred and three, shall be carried forward with reasonable dispatch, and be completed on or before the first day of January, nineteen hundred and four.”
After considerable work had been done it became manifest to plaintiff, as shown by the findings, that he could not complete the work within the time required by the contract, and on December 9, 1903, he requested an extension of time, and in this request he obligated himself in case his request was granted to complete the work within a reasonable time, naming ninety days thereafter, and agreeing to become liable for any damages which might arise should he fail to carry out his obligation under such waiver, and agreeing further that all other provisions of the original contract should remain in full force and effect.
The officer- in charge of the construction of the building favorably recommended plaintiff’s application for an extension of time in which to complete his contract. The Quartermaster-General, after due consideration, decided that “ The time limit of said [this] contract is hereby waived in accordance with office circulars of November 8, 1902, and August 6, 1903, the conditions of which you will communicate to the contractor,” which was accordingly done by the officer in charge of the work.
The circular letters to Avhich reference was made by the Quartermaster-General authorized the agents of the United States in his department to waive the time limits of contracts, provided applications therefor are made in writing, and the consent of their sureties are appended to their requests for waivers, instead of annulling the original contracts, and stating also that reasonable time may be allowed for the completion of the work under their contracts.
The defendants contend, however, that the Quartermaster-General did not possess the power to waive the provisions of a contract which stipulated liquidated damages for breach thereof, and they, therefore, insist that the terms of section 2 of the contract, supra, should be literally carried out. The findings show that the defendants’ agent who was superintending the construction of the building and the Quartermaster-General both treated plaintiff as free from fault, and not only waived the time limit, but advised that no damages should be assessed against him.
We do not deem it necessary to consider the waiver respecting the damages assessed against the plaintiff, since he was prevented by the defendants from executing his contract in accordance with its terms (Finding I). It stated that time is an essential feature of the contract, but it also provides that it must be approved by the Quartermaster-General
It appears that the plaintiff completed the construction of the building in this case, within a reasonable time, and that the defendants incurred no expense and suffered no loss in consequence of such delay.
In the case of Dannat et al. v Fuller (120 N. Y. R., 550), in passing upon a contract very similar to the one at bar, the court decided: “ It consequently appears to us that the failure of the plaintiffs to perform on their part operated as a waiver of the performance of the contract as to time, and the defendant consequently had the right to perform his part of the contract within a reasonable time after the plaintiffs had completed their part. The allowing of the defendant thirty days additional time in which to complete the contract, as was done in this case by the referee, does not restore the provisions of the contract which had been waived. It was, in effect, the making of a new contract for the parties by the referee. The defendant having contracted to do this work within a specified time, was bound to have his servants and employees on hand ready to perform within that time. He had the right to assume that the plaintiffs would perform on their part, and therefore could properly contract with other parties for the time of himself and employees for any future time not covered by his contract with the plaintiffs. They could not prevent his performance by delays on their part for even a greater period than that specified in the contract in which he was to perform, and then require him to proceed immediately, for this would require him to do the work at another time than that named in the contract, and when he might be under obligations to other- parties.”
The officer in charge of the construction of the work for the defendants, after taking into consideration the “ reasonable time ” necessary under existing conditions to complete the construction of the hospital building, paid the plaintiff in full, after the same was completed and received by him under the terms of the original contract and the extension of time granted by the Quartermaster-General in which to construct the same. Subsequently the sum of $4,860 was charged back to him by the Auditor of the Treasury for the War Department under a decision of the Comptroller of the Treasury as liquidated damages from January 1 to August 31,1904, a period of 243 days, at $20 per day, as provided by the original contract. Upon the request of the defendants’ representative in charge of the construction of the building, under the contract, plaintiff promptly refunded to said representative $4,860, and to recover the same he brings this suit.
It is true, as shown by the findings, the plaintiff refunded to the defendants said sum of money, so that said officer might be enabled to adjust his accounts with the Auditor of
It seems from the findings of fact, that the refunding of the $4,860 by plaintiff was simply an intent to restore the status quo ante, and to leave the matter open for future adjustment by the officials of the Treasury Department, or by the courts should it be necessary to appeal to them for relief. The refunding was done at the request of the agent of the defendants; the plaintiff acquired no benefit from the transaction ; the defendants acquired the money without consideration and have in their treasury a fund which in equity and good conscience they should not retain. (Carter v. Riggs, 112 Iowa, 245; Lyman v. Lauderbaugh, 75 Iowa, 481; Juneau v. Stunkle, 40 Kans., 756; Guynn v. Guynn, 31 S. C., 482; Putnam v. Dungan, 89 Cal., 231; Stipp v. Johnston, 68 Ill., 176; and Ellis v. Jacob, 17 N. Y. App. Div., 471.) The elements essential to a voluntary payment are clearly wanting.
For the reasons above set forth judgment is awarded for the plaintiff against the defendants for the sum of $4,860.