194 F. 940 | 6th Cir. | 1912
The National Home for Disabled Volunteer Soldiers is incorporated under congressional act of March 21, 1866 (14 Stat. 10, c. 21), and the acts amendatory thereto (Rev. Stat. § 4825 [U. S. Comp. St. 1901, p. 3337]). By act of January 28, 1901 (31 Stat. c. 184, p. 745), the board of managers of the Home was authorized to purchase grounds and erect buildings for what is now called the Mountain Branch of the Home, near Johnson City, Tenu.; an appropriation being made for the purpose. On November 19, 1901, the Plome, through its general treasurer, contracted with the appellee for the construction of a group of buildings for this Mountain Branch of the Home. After the construction was partly performed, the Home annulled the contract for failure of the contractor to fulfill its terms, and the buildings were completed by the Home authorities. Under proceedings in equity instituted by the Home and its General Treasurer (cross-bill being filed by the appellee), the conflicting claims and equities of the parties growing out of the contract and the proceedings thereunder, including the completion of the buildings by the Home authorities, were fully tried out, with the result that appellee was, by final decree, held entitled to recover against the Home the net amount of $21,139.12, after allowing in the latter’s favor the payments made to appellee, the expense of completing the buildings, and deductions on account of defects and omissions. To this sum was added interest from February 15, 1904, the date when (as stated in the decree) “the Home went into complete possession of said property, using and enjoying the same for its purposes.” In an opinion filed as basis for the final decree the presiding judge stated that the Home “had in its hands, at the time of annulment, reserved percentages, on its own estimate of work previously done, aggregating $23,353, or more than the principal sum now found to be due Parrish [appellee] on the basis of the accounting.” The errors assigned challenge only the award of interest.
Whether, apart from the statutory authority given the Home to make contracts, and the power to sue and to be sued (to which we shall later refer), the case is taken out of the rule of nonliability for interest, from the mere fact that the suit is not directly against the United States, we do not find it necessary to determine; nor did the learned judge who presided below decide that question. It is to be noted, however, that no case has been cited, nor has any been found by us, in which the rule of nonliability to interest has been applied elsewhere than in a proceeding directly against the government, state or national, or one in which payment directly from the national or state treasury was sought. The case of Bledsoe v. State, supra, which was cited with approval in United States v. North Carolina, supra, and on which case appellants place great reliance, is not strongly in' point. In that case, although the claims under consideration were for supplies furnished the State Asylum, they were under express constitutional provision audited by the court as claims against the state. The fact that the action of the court was only recommendatory to the Legislature is not important. It is further to be noted that in suits against collectors to recover moneys paid under protest, even though the recovery is by express statute, payable directly from the United States treasury, upon certificate of probable cause, recovery of interest is allowed (Erskine v. Van Arsdale, 15 Wall. 75, 77, 21 L. Ed. 63; Kinney v. Conant [C. C. A. 1] 166 Fed. 720, 721, 92 C.
‘perpetual succession, with powers to take, hold, and convey real and personal property, establish a common seal, and to sue and be sued in courts or' law and equity; and to make by-laws, rules, and regulations, not inconsistent with law, Tor carrying on the business and government oí the Home, and to affix penalties thereto.'’
Appellants urge, however, that this statutory subjection to suit does not make the Home liable to a recovery which the United States would not he liable to under a similar statute; that the law merely imposes a liability to suit, as distinguished from a liability in suit. In support of this contention, reliance is had upon cases such as Overholzer v. National Home, supra; Maia v. Eastern Hospital, 97 Va. 507, 34 S. E. 617, 47 L. R. A. 577; Moody v. State Prison, 128 N. C. 12, 38 S. E. 131, 53 L. R. A. 855; Lyle v. National Home (C. C.) 170 Fed. 842, which hold that administrative government agencies, state or federal, are not liable to actions for torts arising through the negligence or misconduct of the officers of such institutions. These decisions seem to rest largely upon the proposition that statutes imposing power and liability to sue and to be sued relate to such matters only as are within the corporate powers of the defendant sued. But in the case before us the board of managers was expressly authorized to erect the buildings in question, and by necessary implication to make contracts'therefor. The contract on which recovery has been had was clearly within the statutory authority given the Home. It is true that the statute did not expressly authorize the awarding of interest, in case of default on the part of the Home in péríormíng such contract. But it did of necessity impose liability for damages for breach of the contract.
“It [the Home] obtained possession of the buildings shortly after the annulment, and the buildings were completed, as reported by the master, and agreed by counsel at bar, on or before February 15, 1904, since which time it has been in complete possession of the property, using and enjoying the same for its charitable purposes.”
As already said, interest was awarded only from February 15, 1904, and an award of principal and interest combined will, as said by the trial judge, “result in an aggregate decree for less than the reasonable value of the property which it [the Home] obtained at the annulment, as otherwise fixed on a quantum meruit basis.”