United States v. Utz

80 F. 1006 | 3rd Cir. | 1897

ACHESON, Circuit Judge.

This suit was brought in the court below on the 23d day of February, 1895, under the act of congress of March 3, 1887 (24 Stat. 505). The petition sets out a contract in writing entered into on the 31st "day of January, 1888, by and between William Utz (the petitioner), as party of the first part, and the United States (the defendant), as party of the second part, whereby the petitioner agreed to do the cartage of all merchandise in the custody of the government at the port of New York “from the first day of February, 1888, up to and including the first day of February, 1890, at the rate of fourteen and one-half cents per package for all packages from the importing vessel, and from general order store and warehouses to public store, with the exception of sample packages; and that said party of the first part will cart all sample packages from all points at the rate of one cent per package.” The suit is for an alleged balance due the petitioner under this contract, he alleging that he had carted a large number of packages upon which he was entitled under the contract to compensation at the rate of 14% cents per package, but upon which he had received payment at the rate of only 1 cent per package. The court below sustained the claim of the petitioner to the extent of 84,536.56, and gave judgment in his favor against the United States for that sum. The record shows that as to a part of the petitioner’s allowed claim, namely, the sum of $1,631.21, the right of action accrued more than six years before the suit was brought. In all other particulars than those above specified, the finding of fact by the court below, and its stated conclusions of law in this case, were the same as they were in the suit of William Utz, Thomas M. Garrett, and William H. Kirby against the United States. The questions for determination by this court are therefore the same in these two causes, and the decision which we have just made in the case of U. S. v. Utz, 80 Fed. 848, is decisive of the controversy here. For the reasons stated at length in our opinion in that case, the judgment of the court below in this case must be reversed. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded to that court, with directions to dismiss the petition.