195 F.2d 433 (10th Cir. 1952), 4368, Broderick Wood Products Co. v. United States

Docket Nº:4368.
Citation:195 F.2d 433
Case Date:March 17, 1952
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 433

195 F.2d 433 (10th Cir. 1952)




No. 4368.

United States Court of Appeals, Tenth Circuit.

March 17, 1952

Page 434

Leo W. Kennedy, Denver, Colo. (William James Chisholm, Washington, D.C., was with him on the brief), for appellant.

Henry E. Lutz, Asst. U.S. Atty., Denver, Colo. (Charles S. Vigil, U.S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, HUXMAN, and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

Broderick Wood Products Co., a corporation organized under the laws of Colorado,

Page 435

instituted this action against the United States. It was alleged in the complaint that on December 31, 1948, the parties entered into a contract under which in consideration of $3,400 plaintiff was to and did furnish defendant certain material; that plaintiff was required to furnish such material within a specified time; that extreme weather conditions constituting an act of God made it impossible for plaintiff to comply fully with the contract; that defendant knew of such weather conditions; and that notwithstanding such facts, the defendant invoked a liquidated damage clause in the contract, to the detriment of plaintiff. The prayer was for judgment in the sum of $1,428. By answer, the defendant admitted the execution of the contract; admitted that plaintiff was required by the contract to furnish the material within a specified time; alleged that plaintiff did not perform the contract within the specified period or until forty-two days after the expiration of such period; alleged that in consequence of such failure of performance, the defendant invoked the liquidated damage clause contained in the contract; alleged that the contract contained a provision under which plaintiff could have absolved itself from noncompliance within the specified time for performance on account of weather conditions by applying to the defendant within such time for an extension of time; alleged that plaintiff failed to avail itself of such contractual provision; and alleged that plaintiff failed to seek allowable administrative relief provided in the contract. A pretrial conference was held at which certain documents and certain letters were admitted in evidence, and certain admissions of fact were made. Following the pretrial conference, the defendant filed a motion for summary judgment in its favor, based upon the pleadings and exhibits admitted at the pretrial conference. The court sustained the motion for summary judgment, and plaintiff appealed. For convenience, reference will be made to the parties as the company and the Government, respectively.

It is appropriate at the outset to consider the contention of the Government that the court was without jurisdiction of the cause. The argument is that no breach of contract was alleged or claimed; that the action of the Government in invoking the liquidated damage provision contained in the contract was in express pursuance of the contract; that unless the Government breached a contract, there was no statutory authority for the action; and that if it be contended that the action was one in which the company sought equitable relief because of the liquidated damage provision, relief was equally barred. But the contention is not well founded. Title 28, section 1346(a)(2), United States Code, expressly vests in the district courts jurisdiction to hear and determine any civil action or claim against the Government, not exceeding $10,000 in amount, founded upon the Constitution, upon an Act of Congress, upon a regulation of an executive department, or upon an express or implied contract with the Government, for liquidated or unliquidated damages in cases not sounding in tort. The essence of the action as pleaded in the complaint was that by the contract the Government agreed and obligated itself to pay the company a fixed amount for the material; that the material was furnished and accepted; that the Government wrongfully withheld part of the amount it was obligated to pay; and that the withholding of such amount constituted a breach of the contract. The complaint undertook to state a cause of action for breach of contract on the part of the Government to pay the company a certain amount. And under the statute, the court had jurisdiction of an action of that kind. United States v. Ohio Oil Co.,...

To continue reading