197 F. 327 | D. Nev. | 1912
(after stating the facts as above). The pleadings are exceedingly voluminous. The complaint contains more than 33,000 words, and the answer more than 19,000. In the complaint there is an effort to state the facts which constitute the cause of action, the evidence, the argument, and a history of the entire transaction, including several appeals and other proceedings in the Department of the Interior.
The answer admits the execution of the contract on which the action is based, and by way of denial to the allegations of the complaint sets out a 54-page letter written by the Commissioner of the General Land Office more than three years before the action was commenced. The pleadings are not so helpful as could he wished. They present no clear statement of the issues. The plaintiff was required by his contract to complete the survey of eight townships, and to prepare plats and field notes of this work. The estimated cost was $3,000. When his account amounted to more than $5,100, he had still some 30 sections to survey. He now demands compensation for the partial performance of his contract. Defendant in its answer takes the position that plaintiff is entitled to nothing because the surveys were defective and incomplete, the notes confusing, improperly arranged, unintelligible, and unfit for record, and the plats not in accordance with, the rules of the Manual. Taking the entire transaction as shown by pleadings and evidence, I have endeavored to determine the rights of the parties without strict construction of the pleadings.
The Survey.
This objection is without merit. Section 2223, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1362), authorizes the Surveyor General “to depute a confidential agent to make such examination,” and in the Commissioner’s circular letter of June 15, 1898, which is made a part of the contract, it is said:
“These retracements must be corroborated by the examiner before the deputy will be allowed compensation, and retracements thus made, as well as surveys, will be noted in the data furnished by Surveyors General to the examiners when starting for the field inspection, and the latter will bo required to examine each mile or portion of a mile of such retracements in order to verify the work done by the deputy for which he asks compensation.”
Thus the examiner is required to inspect each mile of retracement, and proper data therefor must be furnished by the Surveyor General. The Surveyor General and the Commissioner rejected 158(4 miles of
It is alleged in the complaint, and not denied, and it is shown by the official report of Mr. Chaney, that in the discharge of his official duty with a corps of assistants he examined Mr. Scully’s surveys, and found' them properly executed. The Surveyor General himself testifies that Scully’s, surveys were reasonably well executed, and that no complaint is made except to the field notes. Furthermore, the townships which Mr. Scully contracted to súrvey were again surveyed in 1909 by two deputy surveyors employed by defendant for that purpose. Copies of their plats, approved by the Surveyor General, are in evidence. No attempt has been made to show this approval was a mere matter of form, and my attention has not been called to any difference between Scully’s rejected plats and the approved plats of Messrs. Thurtell and Kearney, save that the former exhibit a larger number of resurveyed lines, and the latter show some 30 sections in townships 17 and 18 N., range 44 E., which were not surveyed by Scully. Neither Chaney, Thurtell, nor Kearney are here to explain or contradict the very strong inference from these circumstances. I must therefore find that Mr. Scully’s surveys under said contract.No. 225 were correctly executed in the field.
Finality of Commissioner’s Decision.
“The contract provides that no payment shall be made until the plats and field- notes are accepted by the Commissioner of the General Land Office, and that the Surveyor General shall certify that the services were made in accordance with the provisions of the contract. These requirements obviously mean that the Commissioner' is made the arbiter of the sufficiency of the plats and field notes, and whether the surveyor has complied with the obligations of the contract. Where by contract there is committed to a designated, officer, the matter of deciding questions of dispute, the decision of the officer so designated .is not open to review by the courts, except for fraud or such gross error as would imply bad faith.”
Plaintiff’s argument that the Commissioner’s approval is unnecessary is based upon that portion of section 456 of the Rev. Stats, of the U. S.(U. S. Comp. St. 1901, p. 258), which was repealed in 1894 (Act July 31, 1894, c. 174, 28 Stat. 207). It would be unreasonable to require payment for services like those performed by Mr. Scully before the government has had opportunity to accept or reject the performance. Authority to accept or reject must be lodged somewhere. The parties here -very properly vested this authority in the Surveyor General and the Commissioner of the Dand Office. If the Commissioner has thus been made the arbiter of the sufficiency of the work, it follows that his decision is binding, unless it is shown to be fraudulent, or the. result of mistake or negligence, so great as to be equivalent to bad faith. United States v. Gleason, 175 U. S. 588, 607, 20 Sup. Ct. 228, 44 L. Ed. 284. It is not necessary-that there should be actual fraud or intentional wrong. It is enough if there has been an arbitrary, unreasonable/ or unjust refusal to accept work which
“absolutely necessary to rosurvey and retrace any portion of tbe exterior township lines, except such as are clearly provided for in the article on pages 72, 73, and 74, the deputy should report the facts immediately to the Surveyor General and await further instructions. The facts as reported to him will be promptly laid before the Commissioner of the General Land Office, specifying the number of miles of retracement required, and, if such resurvey is authorized, the deputy will be immediately notified. In no other case will any resurvey be paid for which is not specifically authorized by the Commissioner.”
These provisions of the Manual were a part of the contract. Under them Mr. Scully had a right to expect such instructions as he needed,
■ My attention has been called to no provision of the contract, or of the Manual, which gives any countenance to the idea that the Land Office is at liberty to refuse or neglect to furnish instructions when demanded by the deputy in the field, or during the progress of his work, or that the Commissioner and the Surveyor General can postpone their replies anywhere from two months to three years after the deputy has concluded the contract, and then condemn work because he was unable to gueSs correctly what their ex post facto instructions might be. Mr. Scully did not complete all the work provided for in his contract, in that he failed to survey some 30 sections in townships 17 and 18 N., range 44 E. His default was clearly due to the conduct and instructions of the Land Office. He was knowingly permitted to proceed with his resurveys, retracements, and resubdivision in the belief that the Surveyor General would do all in his power to secure authorization from the Commissioner of the Land Office for work in excess of the $3,000 liability. After the limit was far exceeded, he was notified:
“That the instructions are explicit, and you will be justified in leaving those townships (townships 17 and 18, range 44 E.) unsurveyed. It is beyond my power to sanction or authorize anything not expressly provided for in the instructions, the circular of. June 15, 1898, attached to and made part of your contract being considered ample authority to sustain any claim you may submit for extra work.”
It is singular that the deputy’s attention was not called to this fact in response to his repeated requests for instruction as to resurveys find retracements. This letter of the Surveyor General was written October 3, 1901. On the day before, the Commissioner had written the Surveyor General, directing his attention to Scully’s letter relating to an excess of liability of $800, over and above the estimated liability of his contract, and advised that:
“Any action looking to the issue of special instructions providing for resiirveys or retracements must be taken and approved prior to December 31,1901.”
Notwithstanding the Surveyor General’s frequent promises of cooperation, there is no evidence that any effort was ever, made to secure such an authorization from the Commissioner. The full significance of this will be better appreciated when we turn to page 223 of the Manual, and there learn that the deputy’s account for such excess, unless it is accompanied by a copy of the office letter authorizing the same, will not be allowed.
Twice in March Scully asked instruction as to resurveys and retracements. This was after nine or ten days of 'preliminary investigation by the deputy, with his assistants, at his own expense, for the purpose of ascertaining exact conditions. April 24th Scully wrote the Surveyor General that all fractional subdivisions would have to be .resubdivided. He said, “I do not see how under the rules I am to
“My notification that the cost would considerably exceed the estimate has-not yet been replied to.”
He had already expended nearly $3,000 in cash. The money was borrowed. He was extremely uneasy at the prospect of expending more without authority. Then he added:
“I request in the most urgent manner that you will advise me by return, what to do until the decision of the <1. L. O. in the matter is obtained. * * * I earnestly request that you will present my statement to the honorable Commissioner, and that you will advise me with as little delay as possible * * * what to do.”
There is nothing to show that any effort had been or thereafter was. made to obtain such a decision of the General Land Office. Scully was advised by the Surveyor General’s letter of April 4, 1901, that:
“Sufficient showing has been made to justify the resurvey of the entire township boundaries (of township 18, range 45), and to entitle you to compensation for so doing.”
Relying upon this, Mr. Scully resurveyed the boundaries of that township, and on May 1, 1902, he was informed by the Surveyor General that the resurvey of 18 miles of that township boundary was unauthorized, and his failure to fully subdivide said townships 17 and 18 “was such a violation of both the language and spirit of the contract itself, as well as the established policy of the General Land Office, as to preclude the possibility of my approving your work, or of its being accepted by the honorable Commissioner.”
After Mr. Scully’s letter referred to above, in which he explained that under his construction of the rules in the Manual he did not see how he could avoid subdivision, no other reply was given than the statement that the Manual and other instructions already given were sufficient. It is clear that the Surveyor General’s office was informed by the deputy in April, early in the progress of the survey, that he was resurveying certain interior and exterior lines, in the belief that he was authorized and required so to do by the Manual. To his request for advice and direction as to whether this was proper, the reply of the Surveyor General was:
“Your course is clearly pointed out in the circular of June 15, 1898. I appreciate your difficulties. I commend your conscientious work, and leave the details of executing your difficult task entirely to your own professional skill and judgment.”
July 13th, the Surveyor General wrote, I “have no doubt but full compensation will be awarded you for the extra care and trouble bestowed upon your arduous work,” and he adds that he would be pleased to recommend it. All this is flattering, but it is not specific..
It is impossible to believe that the Surveyor General’s office intended, or that Scully understood from these letters, that his work was disapproved, or that no resurveys or retracements would be sanctioned •or authorized save those expressly provided for in the circular of June 15, 1898. Under the circumstances, it was easy for Mr. Scully to believe that his construction of the Manual met with the approval of the Surveyor General, and it is difficult to understand how the Surveyor General could have anticipated anything but that Scully would resurvey the exterior and interior township lines, as he said he would in his letter, and that the field notes would contain the details of such surveys. It is difficult to understand why the deputy was not at least warned that his methods were improper, if that were •the fact.
The default of the government contributed in a very large degree to Scully’s failure to complete the surveys of townships 17 and 18 N., range 44 E., consequently Scully is not barred from recovery for what he did in accordance with the contract, even though the contract is entire. To hold otherwise is to hold that the government can take •advantage of its own default. McElwee v. Bridgeport L. & I. Co., 54 Fed. 627, 629, 4 C. C. A. 525; Salmon v. Helena Box Co., 158 Fed. 300, 303, 85 C. C. A. 551; United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Thacke v. Hernsheim (Supp.) 115 N. Y. Supp. 216; Delafield v. Village of Westfield, 41 App. Div. 24, 58 N. Y. Supp. 277, 280.
Refusal to Obey Instructions.
Complaint is made that Mr: Scully “preferred to use his own judgment as to what constituted work to be performed under the contract, rather than submit to the instructions and dictation of the department of the government which by the very terms of the contract he' signed he agreed to do.”
There is no evidence that Mr. Scully knowingly disobeyed, or refused to obey, any instructions whatever while he was engaged in the performance of his contract. On the other hand, there is abundant •evidence of the fact that he again and again asked for instruction, which he did not receive.
Opportunities to Correct Work.
The government says:
“It must be very evident from tbe persistent efforts made by the proper •departmental officers to bave- petitioner expressly comply with the requirements of his contract that they were not intentionally endeavoring to deprive him of any rights to which he was legally entitled. Every opportunity was afforded petitioner to comply with the special instructions sent him, ■ and the •evidence shows that he persistently refused such compliance.”
November 29, 1902, the Surveyor General advised Mr. Scully that it was impossible to continue office work on his field notes and sketch plats, further consideration of them being merely a waste of time,
In a previous letter, written in May, the Surveyor General had assured Mr. Scully that- his failure to fully subdivide a township, as distinctly specified in his contract, was such a violation, both of the. language and the spirit of the contract itself, as well as the established policy of the General Rand Office, as to preclude the possibility of approving his work, or of its being accepted by the Commissioner of the Rand Office, and that serious departures from his special instructions and the directions of the Manual rendered his entire work open to rejection or suspension. July 8, 1903, after enumerating a number of serious errors in the survey, and calling attention to the unnecessary resurveys, the failure to complete the contract, the deputy’s irregular and obscure methods, and his poorly prepared notes, he was given 30 days within which to signify his willingness to correct his surveys in the field, and to furnish field notes in proper form for acceptance. July 31, 1905, after specifying about 100 errors committed by Mr. Scully in the field, the Commissioner directed that Mr. Scully be allowed 30 days within which to signify his willingness to correct his surveys in the field, and furnish field notes in proper form for acceptance.
Compliance with any of these orders involved a reperformance of work which has subsequently been admitted to be correct. Consequently Mr. Scully’s refusal was justifiable.
Arrangement of the Field Notes.
If Mr. Scully has failed to arrange his notes in such manner as to meet the approval of the Surveyor General and the Commissioner of the Rand Office, the fault, for the most part, lies very near the door of the Rand Office itself. The maxim, “The king can do no wrong,” lias no application to the officials of that department. Having once made this contract, they were hound by it. They were no more at liberty to disregard its provisions than was Mr. Scully. True, Scully agreed to complete the surveys in conformity, among other things, with other surveying instructions issued by the Commissioner, and with such special instructions as he might receive from the Surveyor General. But the instructions referred to were instructions issued or received prior to or during the progress of the survey. It is unreasonable to construe the contract otherwise. To concede a retroactive efficiency and obligation to orders issued by the Commissioner subsequent to the performance of the work is to hold that these parties by agreement conferred on the Commissioner power to order proper work reperformed, and correct field notes rearranged again and again, by varying methods, and thus render execution of the contract so expensive as to be impossible.
Scully was not bound by the Manual of 1902, or by instructions issued to the Surveyor General of Montana in 1903. By the Manual of 1894 Scully was directed to incorporate his field notes of resurveys with the field notes of the subdivisions to which they relate. By the
It is also charged that Scully has not placed field notes of the subdivisions of each township in a book by themselves; and notes of exteriors, base, and meridian lines in another book, as required by the Manual, p. 64, par. 13. Directions as to the preparation of field notes begin on page 60 of the Manual. The first 11 paragraphs clearly relate to the deputy surveyor. Section 12 requires him to send his notes to the Surveyor General.. Section 13 requires the Surveyor General to prepare a certified transcript of the notes, and directs how it shall be done, and how it shall be arranged. Among other things, it requires field notes of base lines, standard parallels, principal and guide meridians, township exteriors, and division and meander lines, to be written in separate books, and field notes of subdivisions to be written in a separate book for each township.
Mr. Scully has failed to comply with these provisions. He contends they do not apply to deputy surveyors. The Land Office, takes the contrary view. The Commissioner of the Land Office says:
“Section 13, page 64, of the Manual of 1894, directs how transcripts of original field notes'shall be prepared by the Surveyor General for the records of this office, and, therefore, as a condition precedent, he must require the same form in every particular from the deputy — in other words, sec. 13 (a) to (f) apply to the deputy as well as to your office.”
It does not appear, however, that the Surveyor General ever expressly required this of Mr. Scully until long after the field notes were completed. The strong argument against the Commissioner's interpretation of paragraph 13 is that it would have been exceedingly easy to extend its directions to deputy surveyors as well as to Surveyors •General by express, unmistakable terms, if the Land Office had so intended. That it was not done is significant. A more important consideration is the fact the Land Office knew in December, 1901, when Mr. Scully was practically at the beginning of the work on his notes, how he interpreted paragraph 13. He was permitted to proceed with his work without a suggestion, having good reason to believe that his construction of the rule- was satisfactory. It was only after his work -of months had been completed that he was informed he had not segregated his notes properly, and had included therein field notes for 158% miles of unauthorized resurveys and retracements. There
In Central Pac. Ry. Co. v. United States, 28 Ct. Cl. 427, it is said:
“A construction given to a contract by the express declaration of one party and the silent acquiescence of the other, prior to and during the performance of a service, cannot be repudiated after a party has acted upon the faith of it.'’
It is alleged that the field notes are unintelligible, ambiguous, and confusing. In support of this the Commissioner in the last paragraph of his letter, attached to the answer, refers to two extracts from the notes, one quoted at page 49 (45), and the other at page 51 (46) of the letter. Examination shows the extracts have lost nothing of incomprehensibility in being transferred from the original field notes to the Commissioner’s decision.
On pages 45 and 46 (49) of the decision there is a quotation of 56 lines. In the process of transcription the text has lost 17 punctuation marks and 2 words, 3 words have been misplaced, 5 new words have been added, and in 6 instances a different word has been substituted for the one used by Mr. Scully.
On pages 46 and 47 (51) of the decision there is a quotation of 40 lines. The copyist has omitted 15 punctuation marks and 3 words used by Mr. Scully, and in four places substituted his own word for the word used in the original notes.
On pages 41 and 42 there is a description in 42 lines of the parallel line run by the deputy to find the west boundary of township 18 N., range 45 E. This extract the Commissioner pronounces incomprehensible. Comparing it with the original text on page 58, book I of the field notes, it appears that 7 paragraphs used by Mr. Scully have been
On page (49) we find the following:
“Chains:
“80.30 Intersect E. bdry of T. 19 N. R 45 E. N. 89°18' W. 4.02 cbs. from S. E. Tp. cor (compare 3 miles S. Easting of point on Meridian line 40.4(4 minutes difference in azimuth).”
The Commissioner asks “What does this mean?” From the quotation it appears that the deputy going north on the east boundary of the township bisects the east boundary of the township to the north. This, of course, is absurd. Referring to the original text, on page 88, book I of Mr. Scully’s field notes, we find the following:
“80.30. Intersect S. bdy of T 19 N. R 45 1 N 89° 18' W. 4.02 chs. from S D Tship Cor (Compare 3 miles S. Easting of point on Meridian line 404(4' minute difference in azimuth).”
On page 8, line 1, of the decision, is this quotation:
“80.00 Ascending 1.00 cor found set mound of rock to make line 15 Iks. E. (What does this mean?).”
Turning to page 315, book C, resurveys of section boundaries, township 14 N., range 41 E., we find:
“80.00 Ascending no cor found - set mound of rock to mark line 15 Iks. E.”
-After such mutilation, it is not at all surprising that Mr. Scully’s notes are somewhat difficult to understand.
It is impossible to assume the errors of the copyist were intentional; but the fact that the honorable Commissioner in a matter so important to Mr. Scully could have used these quotations from the field notes without verification is perplexing. If such inaccuracy is exceptional in the Rand Office, it should be explained; if not exceptional, why is Mr. Scully’s work condemned with so much severity?
The Commissioner’s Decision is Not Conclusive.
(1) The Commissioner in his decision of January 17, 1905, found more than 100 defects in the survey. He failed to take into consideration the now admitted fact that the survey was reasonably well executed, and the government has no complaint to make in relation to the work in the field.
'(2) He found 'that Scully had not completed the subdivision of townships 17 and 18 N., range 44 E. He failed to take into consideration the undisputed fact that the Surveyor General wrote Mr. Scully October 3, 1901, that he would be justified in leaving those townships unsurveyed because the estimated amount of his contract had been exceeded.
(3) He found that Scully’s resurveys, retracements, and resubdivisions being greatly in excess of any authorization, the notes thereof should be eliminated. He failed to take into consideration the fact that Scully during the whole of his work in the field was vainly asking instruction as to this extra work, and an authorization therefor, and that the Rand Office as early as April, 1901, was informed that he-
(4) He found that Scully had improperly arranged and segregated his field notes, but failed to take into consideration the fact that Scully early in the preparation of his notes submitted specimens thereof, with a letter directing attention to and exhibiting his method of arrangement, that no objection was made, and the Land Office knowingly permitted Mr. Scully to complete his notes in the belief that they were satisfactory to the Department.
(5) The Commissioner found that Mr. Scully’s field notes were obscure and unintelligible. The quotations from said notes on which this finding is apparently based were incorrectly transcribed. A decision in which so many important and vital considerations are ignored cannot be treated as conclusive.
Survey for Private Parties.
The Commissioner, at page 24, line 24, of the decision of January 17, 1905, in speaking of the surveys made in township 17 N., range 44 E., says:
“The resurvey appears to have been made for private individuals for wMctt this office cannot assume responsibility.”
In other words, the deputy has surveyed for private individuals, and charged the expense to the government. This is a serious charge. It should not be made unless susceptible of proof. The only testimony I have found on this subject, or which has been called to my attention, is Mr. Scully’s letter to the Surveyor General, dated February 25, 1905, in which he states that this resurveyed land “is barren and waterless, and will not be bought for generations to come.”
After Mr. Scully’s letter of explanation, it is strange this charge should have been incorporated in the answer without explanation, unless the government knew that it could be proven.
It is possible the rates allowed for the work are inadequate, but they are the rates fixed by the contract itself, and the court is powerless to change them. A court of equity cannot relieve against such a contract simply because the deputy signed it without knowledge of the unusual and peculiar difficulties of the work. There is no showing that the officers of the Land Department or the government fraudulently concealed from him any fact which should have been disclosed, or that he did not have ample opportunity to investigate the situation before signing the contract. The contract appears to be a correct expression of precisely what the parties agreed to.
The testimony shows that petitioner performed more than $3,000 worth of work under the terms of his contract. Three thousand dollars was the liability fixed. The Manual provides (page 223) that:
“When the amount of an account is in excess of the liability of the contract, a copy of office letter authorizing the excess must always accompany the account.”
(1) I find the survey in question was reasonably well executed by Mr. Scully.
(2) Inasmuch as no defects have been pleaded or called to my attention, I find the plats have been properly prepared by the deputy.
(3) The failure to subdivide portions of townships 17 and 18 N., range 44 E., was caused by advice and direction of the Surveyor General, and by the failure of the government to properly instruct Scully • as to resurveys and retracements.
(4) The inclusion of field notes of excessive resurveys, retracements, . and resubdivision .lines was due in large part to letters from the Surveyor General’s office, from which the deputy could reasonably infer his course was approved, and that every effort would be made to secure proper authorization by the Commissioner for such resurveys and retracements.
. (5) The failure of the deputy to incorporate field notes of retracements and resurveys with the field notes of the subdivisions to which they are directly related, as required by the Manual of 1894, was due to the Commissioner’s instructions in the circular of June 15, 1898, in which the deputy was directed to place such notes in a book by themselves.
. (6) The deputy included his field notes of subdivisions in the same book with the field notes of base lines of township exteriors, etc.,.blit in separate portions of the same book, and in a separate book for each township. He did this in the belief that section 13, p. 64, of .the Manual, had no application to deputy surveyors. The attention of the Surveyor General was seasonably directed to this arrangement, and no objection or suggestion was offered by the Land Office until long . after the notes were completed..
■ (7) The field notes, though written in a small cramped hand, and in places not easily understood by one without technical knowledge, are reasonably accurate, and comply with the provisions of the con- . tract.
(9) I find that the work performed by Scully in strict compliance with the conditions of the contract and at the rates provided therein amounted to more than $3,000, and was reasonably worth more than $3,000.
Let judgment be entered in favor of the plaintiff for the sum of $3,000.
