57 Ct. Cl. 151 | Ct. Cl. | 1922
delivered the opinion of the coui*t:
The plaintiff was a cost-plus contractor for the erection of a quartermaster terminal at Philadelphia, Pennsylvania. During the progress of the work Lieutenant Colonel E. B. Morden, of the Quartermaster Corps, was in charge as construction quartermaster and was duly authorized as the l-epresentative of the contracting officer.
Colonel Morden, without consultation with the plaintiff so far as appears, took up with the fii’m of Lasette & Murphy the matter of entering into a subcontract for the plumbing work and likewise with Gillis & Geoghegan the matter of entering into a subcontract for the heating and ventilating work and prepared the contracts afterward executed between these two firms as subcontractors and the Snare & Triest Company.
There had been prepared for use and printed, forms of contract, a form for use in the making of the prime contract and a form for use in the making of subcontracts thereunder and they were so prepared that they operated together and that in some instances reference from one contract to the other was necessary for the determination of terms and conditions. Before entering into these subcontracts a representative of Lasette & Murphy and a representative of Gillis & Geoghegan had seen and examined the printed forms and so far as had been made known to them during
The work was terminated before completion and upon submission of the final statement by the plaintiff it was reported that the amount of work done by Lasette & Murphy was $287,875.00, on which they were entitled to a subcontractor’s fee of six and one-half per cent, or $18,879.36, and that the amount of work done by Gillis & Geoghegan was $343,583.40, on which, at six and one-half per cent, they were entitled to a fee of $21,511.13. Fees were allowed to the plaintiff for the subcontractors on the basis of five per cent upon the amounts of work done instead of six and one-half per cent, a difference in the case of Lasette & Murphy of $4,310.60 and in the case of Gillis & Geoghegan of $4,964.10. The five per cent fees allowed to the plaintiff for the subcontractors were received by the plaintiff and paid over to the subcontractors, and the plaintiff, who had received for itself all that was due it under the prime contract, here sues for the sums stated for the use and benefit of these subcontractors.
It is quite apparent that had the work contemplated by the subcontracts been fully performed there could have been no room for dispute, since whether the pi’ogress payments were made upon a basis of six and one-half per cent or five per cent the maximum fee in either event would have been attained, and in this connection it is apparent that, without intending thereby to affect the ultimate amount of compensation, there may have been a reason for the changing of the progress payments from a six and one-half per cent to a five
It is desirable to note the interlocking character of the prime and the subcontracts requiring, so far, at least, as the subcontracts are concerned, that they and the prime contract be construed together, practically as one contract. For the purposes of the present case it is to be noted that the subcontracts contained the provision that “ said principal contract is hereby adopted and made a part of this contract and a copy thereof is hereto attached,” and that by virtue of the provisions of Article III of the subcontracts the pi*ime contractor thereunder is placed in the position occupied by the United States under the prime contract and the subcontractors are placed in the position of the contractor under the prime contract. Article III of the prime contract contains a schedule of fees and that schedule of fees is referred to in the subcontracts. It is to be noted further that the subcontracts contain no specific, provision authorizing the abandonment of the contracts and prescribing the basis of settlement in such a contingency, but that provision therefor is made in Article VIII of the prime contract.
There are two possible views of the situation presented each, however, resulting in the same conclusion. First, in view of what has been said with reference to the interlocking character of the two contracts, the provision specifically making the prime contract a part of the subcontracts, and the absence from the subcontracts of any specific provision for the abandonment of the work and the settlement with the subcontractors in that event, it seems clear that upon abandonment of the work reference for the authority therefor, as well as for the basis of settlement in that event, must be found in Article VIII of the prime contract. Under this provision each of the subcontractors here involved were entitled to a fee of six and one-half per cent upon the ascertained amount of work done by them under their subcontracts. Second, there is inconsistency, such
No question is made in the case of the right of the plaintiff herein to sue for the use and benefit of these subcontractors and there would seem to be room for no question as to that right. The contracts read together indicate clearly that the rights of the subcontractors, both as to reimbursement of expenditures and payment of fees, were necessarily to be worked out through the prime contractor.