105 Misc. 99 | N.Y. Sup. Ct. | 1918
Plaintiff urges that certain allegations of the answer import the admission that the contracts with the government were voluntary on the part of the defendant. The admission might be conclusive (Horan v. Hastorf, 223 N. Y. 490; Fullerton v. Northern Bank, 184 App. Div. 37), but it is doubtful whether, as a matter of pleading, there is the admission. In testifying the defendant repudiates the idea that the contracts were voluntary,, but the evidence tends to establish the fact. It is certain that defendant voluntarily, introduced, and recommended, to the government the use of its product, and had little, if any, reluctance about entering into contract relations, and, in fact, at once did so. The withholding of its actual signature to the first contract, it claims was, in part, because precedence for the government was not in terms provided for. This, as well as the claim that defendant only yielded when the government “ sent us a letter and told us unless we forthwith would sign that contract, we would be put in jail,” is hardly borne out by the evidence. The letter referred to, which is that from Col. Zalinski, of July twenty-third, is not so arbitrary or coercive, and defendant’s letter of July twelfth, which evoked it, and might further have explained it, defendant did not introduce. Apparently the controversy, and the insistence were on subject of the “ strike clause,” and not about the silence of the contract on the subject of precedence. Acceptance of the contract, was, in that respect voluntary on the part' of the defendant. It does not seem necessary to hold more than this. The defendant’s contention is that
This is section 120 of the National Defense Act as follows: “ The President, in time of war or when war is imminent, is empowered, through the head of any department of the Government, in addition to the present authorized methods of purchase or procurement, to place an order with any individual, firm, association, company, corporation, or organized manufacturing industry for such product or material as may be required, and which is of the nature and kind usually produced or capable of being produced by such individual, firm, company, association, corporation, or organized manufacturing industry. Compliance with all such orders for products or material shall be obligatory of any individual, firm, association, company, corporation, or organized manufacturing industry, or the responsible head or heads thereof and shall take precedence over all other orders and
The determinative inquiry therefore in the case is whether precedence was contracted for, or ordered, in pursuance of this statute. It goes by the saying that it should be broadly construed, with its terms and implications undiminished. But it is not to be overlooked that there is not to be found in it any declaration of inherent right, or general right, to precedence in governmental contracts. No express declaration certainly, nor any reasonably sure implication, calls for the conclusion that such was intended. The statute is not self-executing. In terms it is only where the government shall “ place an order ” that by force of the statute “ such order ” is “ obligatory ” and given precedence “ over all other orders ” with penalties prescribed for refusal.
It is suggested, in a tentative way, that the making of a contract is, ‘ ‘ in ordinary parlance ’ ’ the ‘1 placing of an order.” It is probably so in commercial colloquialism, and an overlooked instance is in the contract upon which plaintiff sues, and which states the conditions under which “ this order is placed.” But congress did not have the colloquialism in mind. Resort to the presumption against loose verbal usage in the interpretation of a solemn statute, is not needed. Explicitly and repeatedly it is made manifest that orders placed under the statute are to be something extraordinary, something “ in addition to the present authorized methods of purchase and procurement.” The very terms bar the inference of an intent to include a purchase by ordinary contract as being the placing of an order under the section. The contracts here were ordinary contracts, negotiated and closed in pursuance of an ordinary and established method
A generally apposite case is Graves v. Miami S. S. Co., 29 Misc. Rep. 645. It was there held that a contract of affreightment was not abrogated by the declaration of war between the United States and Spain, and that it was no defense that sailings were discontinued because the carrier had disposed of its charter to the government. It appeared that such disposition was both voluntary and profitable and I think the evidence establishes the like conclusion in the present case. The court said, “ Performance of the contract might have been excused had the United States government, in the exercise of the power óf eminent domain, seized the defendant’s vessels * * * Governmental compulsion might have excused performance; the voluntary act cannot.”
The plaintiff’s motions to strike out the testimony and dismiss the defenses and for judgment are granted. I find that the market value of the woolen goods due plaintiff was $4 per yard, and that on the basis of fifty yards, in each of the ninety pieces, his damage is $10,125.
Ordered accordingly.