No. J-150 | Ct. Cl. | Jun 1, 1931
delivered the opinion:
In this suit plaintiff seeks to recover from the defendant his actual loss and damages sustained because of failure of the defendant to deliver title and to put him in possession of certain improvements constructed by the defendant upon leased premises for the wrecking and removal of which, and for the restoration of the premises, the plaintiff and the de
The contract in question was a “ Contract for the Construction and- Repair of Public Works, Including Vessels.” The United States had constructed an Army cantonment known as Camp Kearney upon leased premises in the State of California, including buildings, waterworks, sewer system, telegraph and telephone lines, lighting system, roads, and railways. The use of the premises as an Army cantonment had been abandoned and the United States advertised for bids for the letting of a contract for the removal of all of these improvements and for the restoration of the premises to a condition satisfactory to the defendant. The United States was bound to restore the premises as far as possible, and the plaintiff was the successful bidder and was awarded the contract to do the work. The subject matter of the contract was the wrecking and removal of the improvements, the restoration of the premises, and the sale of the salvaged material. Inasmuch as the right to keep and dispose of the salvaged materials that might be removed from the premises was more valuable than the cost of the wrecking and removal thereof and the restoration of the premises, the plaintiff agreed to pay the defendant $25,515 for the privilege of doing the work and retaining the salvaged material. Plaintiff was experienced in work of this kind and estimated the probable expense of doing the work and the amount which he could probably realize from the salvaged material. The contract required that the work be completed within ninety days after the execution of the contract.
Under the contract the United States warranted that it was the owner and entitled to possession and the right to remove the improvements upon the premises in question. The defendant, through its authorized officers, represented to bidders that the successful bidder would be given free access to the premises and would be placed in the possession of the improvements. As a matter of fact, however, at the time the advertisement and call for bids was made, and contin
By specific direction of the Attorney General, the United States attorney for the southern district of California instituted a suit in the name of the United States in the District Court, Southern District of California, for an injunction against the Mack Copper Company and for damages. The basis of that suit was that the United States was the owner of the improvements and was entitled to possession thereof and the right to remove the same. This was denied by the Mack Copper Company and others and the issue thus joined was tried out. The Mack Copper Company contended that the United States had sold whatever right it had to Weiss-baum and that he was the proper plaintiff. The court decided, after a full and complete hearing, that the United States was the owner and entitled to possession of all of the improvements and equipment erected and installed by it in and upon said land of the Mack Copper Company, and that it had the right to remove, or cause to be removed off the premises, all of the improvements on said lands and premises, and decreed that the United States recover from the Mack Copper Company all damages arising by reason of their wrongful interference with the removal of said improvements and for the full value of all those improvements that were sold by the United States to the plaintiff and thereafter sold, missing, or removed from the premises by persons other than the plaintiff.
The matter was referred to a special master to take proof as to the damages. Upon appeal by the Mack Copper Company to the United States Circuit Court of Appeals for the Ninth Circuit, the decree of the district court was affirmed. Final judgment was entered by the district court in favor of the United States for $33,781.88 representing the value of the improvements removed from the premises by the Mack Copper Company and for interest of $822.79 upon that amount.
Upon entry of the decree of the court the defendant notified the plaintiff that it was then ready to deliver the balance
No amount was included in the judgment of the district court for the actual expenses and damages sustained by the plaintiff, inasmuch as no amount on account thereof had been paid by the United States.
Counsel for the defendant in this case relies upon the second clause of paragraph 4 (Q,) of the specifications as a defense to the plaintiff’s right to recover his actual damages and insists that under this provision title and possession of the improvements passed to the plaintiff upon the «execution of the contract and that under the decision in the case of Tyrrell v. United States, 60 Ct. Cl. 753" court="Ct. Cl." date_filed="1925-05-11" href="https://app.midpage.ai/document/tyrrell-v-united-states-8586418?utm_source=webapp" opinion_id="8586418">60 C. Cls. 753, the plaintiff may not recover from the defendant his actual loss. In the circumstances of this case we think this contention is without merit. The paragraph of the specifications referred to provided that “All loss or damage to the property purchased, by fire, water, storm, theft, or otherwise, shall be immediately assumed by all purchasers, and the United States shall be in no way or manner liable therefor. Possession of and title to the property sold shall immediately pass to the purchasers on payment of the purchase price and execution of the contract of sale.” This specification must be read in the light of existing conditions and must be construed in the light of the subject matter of the contract. We deem is unnecessary to consider sporadic cases of sales of personalty cited in defendant’s brief other than to point out that they state elementary rules relating to passage of title and possession of personalty. None of the cases is similar to the situation here involved. They are all cases of personal property not affixed to realty and present none of the problems of this case and involve no similar conduct on the part of the seller. In the nature of things, it is impossible for title or possession of things affixed to the realty to pass by such a statement as
In Williston on Sales (2d ed.), sec. 65, page 102, it is pointed out that:
“ The legal interest which a tenant has in articles affixed to the realty, but which he has a right to remove, is a right to sever the fixtures and revest himself with the title to them as personalty, * * *. A case where a tenant attempts to sell his fixtures to a third person should be sharply distinguished if the tenant is to sever them. Such a transaction involves an agreement on the part of the tenant to transfer the title to them and, therefore, it is a contract to sell goods. If it is contemplated that the buyer shall make the severance, he becomes owner of the property severed, not by virtue of an agreement by the tenant to transfer title, for the tenant has not the title, but only a power on severance to regain title, but by virtue of this power transferred by the tenant.
“Agreements are not infrequently made for the sale of buildings or of the materials in standing buildings. If the contract is to sell and deliver a house, even though the house is at the time of the bargain affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations. On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject matter of the sale shall be severed within a short time, * * * 35
One of the principal features of the contract here in question was, therefore, the right to remove the improvements which the defendant did not make good and as result of which the plaintiff sustained the loss which is here claimed. The facts and circumstances in this case distinguish it from the case of Tyrrell v. United States, supra. In that case it appeared that before the contract was signed the plaintiff had been apprised by the land company that it claimed ownership of the buildings and that the plaintiff had entered into negotiations with that company to obtain a release of its claims. After the contract had been executed the plaintiff was on the property, had opened up an office on
Paragraph 4 (K) of the specifications provided that “ Releases from any part of the work required in these specifications by the landowner are not permitted, except in the case of removal of concrete foundations, platforms, and so on, in the warehouse area. Such release must be given in writing, and will not become legal unless approved by the Quartermaster General of the Army.”
After the district court had entered a decree and judgment in favor of the United States and alter the plaintiff had entered upon the Mack Copper Company land and was engaged in wrecking and removing the improvements, the water system, and all piping within a distance of the surface of the ground specified in the contract, and before he had taken up the matter of the removal of the large septic tank upon the premises of the Mack Copper Company, that company proposed to the plaintiff that it desired to acquire the light, telegraph, and telephone poles standing upon the premises as they were and also the water system, and that in consideration therefor the Mack Copper Company would pay the plaintiff $1,080 and release the plaintiff from his obligation to remove the sewer and water systems, the light, telegraph, and telephone poles and railroad ties, and in addition release it from its requirement to fill certain trenches and holes. This agreement was reduced to writing and was entered, into June 5, 1925, and was approved by the proper official of the defendant. In connection with this transaction counsel for the defendant insists that the plaintiff was relieved of the removal of the septic tank, which, defendant's counsel insists, should reduce its damages by $14,000. TTe think the matter of the removal of the septic tank was entirely taken out of these proceedings by the
In entering into the agreement with the Mack Copper-Company the plaintiff considered that he would make a profit from the removal of the light, telegraph, and telephone poles, and the entire water system over and above the cost of removal thereof, including the cost of removing the septic tank, and the consideration paid by the Mack Copper Company was upon this theory. We may not say, therefore, that the plaintiff profited by being released from the removal of the septic tank any more than he would have been had he proceeded to wreck and remove all of the property as he had agreed.
The facts definitely establish the total of plaintiff’s actual loss and damages in the amount of $63,618.82, which consists of his actual expenses, losses, and damages less $2,— 267.16, being the amount it would have cost him to remove the improvements which the Mack Copper Company or its representatives removed and converted to their own use. This amount he is entitled to recover. Miller v. United States, 49 Ct. Cl. 276" court="Ct. Cl." date_filed="1914-01-09" href="https://app.midpage.ai/document/miller-v-united-states-8585532?utm_source=webapp" opinion_id="8585532">49 C. Cls. 276. Snare & Triest Co. v. United States, 43 Ct. Cl. 364" court="Ct. Cl." date_filed="1908-04-20" href="https://app.midpage.ai/document/snare--triest-co-v-united-states-8585148?utm_source=webapp" opinion_id="8585148">43 C. Cls. 364. Bulkley v. United States, 19 Wall. 37" court="SCOTUS" date_filed="1874-01-19" href="https://app.midpage.ai/document/bulkley-v-united-states-88857?utm_source=webapp" opinion_id="88857">19 Wall. 37. United States v. Behan, 110 U.S. 338" court="SCOTUS" date_filed="1884-02-04" href="https://app.midpage.ai/document/united-states-v-behan-91040?utm_source=webapp" opinion_id="91040">110 U. S. 338. United States v. Wyckoff Pipe & Creosoting Co., Inc., 271 U.S. 263" court="SCOTUS" date_filed="1926-05-24" href="https://app.midpage.ai/document/united-states-v-wyckoff-pipe--creosoting-co-100879?utm_source=webapp" opinion_id="100879">271 U. S. 263.
Plaintiff also claims interest at 6 per cent upon the total amount of his loss from February, 1925, when the defendant secured to him the right of entry upon the Mack Copper Company land for delivery to him possession of and the right to remove the improvements thereon, but, under the provisions of section 177 of the Judicial Code, which provides that no interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for
Judgment in plaintiff’s favor for $63,618.82 will be entered. It is so ordered.