James Stewart & Co. v. United States, 45394.

• Decision Date: 07 January 1946
• Docket Number: No. 45394.,45394.
• Citation: 105 Ct. Cl. 284,63 F. Supp. 653
• Parties: JAMES STEWART & CO., Inc., v. UNITED STATES.
• Court: U.S. Claims Court

63 F. Supp. 653

105 Ct. Cl. 284

JAMES STEWART & CO., Inc., v. UNITED STATES.

No. 45394.

Court of Claims.

January 7, 1946.

John W. Gaskins, of Washington, D. C. (King & King, of Washington, D. C., on the brief), for plaintiff.

William A. Stern, II, of Washington, D. C. (Francis M. Shea, Asst. Atty. Gen., on the brief), for defendant.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHITAKER, Judge.

Plaintiff had a contract for the erection of the United States Court House at Foley Square, New York City. It sues for damages for delays due to two things: first, delay in furnishing models for the capitals of columns and pilasters; and, second, in making changes. The defendant admits the delays but denies that they were as long as the plaintiff insists they were. The plaintiff says these two things delayed it a year; defendant says the delay did not exceed 88 days, if so much.

The building is thirty-one stories high. The first six floors occupy substantially all the site. The roof over the sixth floor is flat. Rising above it is a tower twenty-five stories high. This is set back from Pearl and Duane Streets and from Foley Square about the same distance. It covers about one-third the area of the roof over the sixth floor.

There are ten granite columns four stories high on the Foley Square front. On the top of these columns are Ionic capitals. Flanking these columns are pilasters with capitals of similar design. These pilasters continue down the Duane Street side and around a return bordering on a church property in the rear and also run a part of the way down Pearl Street. The capitals support the stone work on the two floors above.

The contract provided that the defendant should furnish the models for the capitals. Very soon after the work had started, Cass Gilbert, the private architect employed by defendant, asked the defendant's supervising architect to let to plaintiff the contract for the models, in order that plaintiff might sublet it to a subcontractor to be selected by the architect, thus avoiding the necessity for competitive bids. The architect believed the work of preparing these models should be given to him who could do it best and not to him who would do it the cheapest. At first the supervising architect agreed, but later, doubtful, no doubt, of the legality of such action, he notified the architect that the work must be let on competitive bids.

The architect refused to recede and the point was argued pro and con. In the meantime Gilbert went to Europe, and his son, who was left in charge, requested that a decision be postponed until his father's return, irrespective of the effect this would have on the progress of the work. He was gone three months. After his return the matter was debated further, with the result that the supervising architect finally agreed that the man Gilbert had selected should be employed to do the work.

The controversy extended over a period of ten months. The contract for the models for the granite capitals was not let until January 23, 1934, although plaintiff had entered into the subcontract for the granite on March 7, 1933, nearly a year before.

The result was that when plaintiff reached the top of the fourth floor where the capitals were needed it had to stop the stone work on the lower six floors except in the rear and on a part of the Pearl Street side. This left this part of the first six floors unenclosed, with the result that no interior work could be done there. The unenclosed portion was about 50 percent of the total area of the first six floors.

The proof shows the plaintiff was ready for the first capitals on March 22, 1934, and for the others on April 3 and April 14. The first capitals to arrive on the job was about July 22, 1934, a delay of four months. The stone work on the Pearl Street front was completed September 13, 1934, on Duane Street on October 5, 1934, and on Foley Square on November 12, 1934. The portion of the first six floors where capitals were not required were fully enclosed and waterproofed in June 1934, but where they were required they were not fully enclosed and waterproofed until December 12, 1934.

When the stone work was stopped on the first six floors plaintiff proceeded with the stone work on the tower and minimized the delay all it could.

Partitions were erected in the enclosed part of the first six floors and in the tower, but they could not be erected in the unenclosed portion of the first six floors because the covering on the pipes that ran up through the partitions would have been ruined by the weather.

Furring and lathing were done where the partitions had been erected, but the proof shows that the plastering could not have begun until after the first six floors had been fully enclosed and the partitions therein had been erected and the furring and lathing had been done. It was not begun until February 7, 1934, four months later than it would have been except for the delay, and the proof shows this was as early as it could have been begun consistent with good business practice.

Although the jury pool delay further restricted the area in which the plasterers could work, it still is not altogether clear why plastering could not have been carried on in the tower and in the rest of the enclosed portion of the first six floors while waiting for the remainder of the first six floors, but the clear preponderance of the proof is that it could not have been. All of plaintiff's employees, its vice-president, its superintendent, and its assistant superintendent so testify; the subcontractor for the plastering so testifies; and defendant's assistant construction engineer corroborates them. This latter witness says the contractor "would have lost his shirt" if he had carried on the work this way. He agrees that February 7, 1934 was as early as he could have started.

This was four months later than he could have started had there been no delay in furnishing the models. All of the interior finish work followed the plastering, and the final completion of the building was correspondingly delayed.

Defendant says that a carpenter strike was in part responsible for the delay. Whether there would have been any delay due to this strike if the models had been delivered on time, we do not know, but we do know defendant's failure to deliver the models on time would have caused this delay whether or not there had been a strike. Cf. William Cramp & Sons Ship & Engine Building Co. v. United States, 50 Ct.Cl. 179, 181, 182.

The contracting officer granted an extension of time of six months for the delay "due to the models and the carpenters' strike." We are satisfied that a delay of four months was due to the delay in furnishing models.

There were numerous changes made. With respect to many of them defendant procrastinated greatly in making up its mind what it wanted to do or could do with the funds available, and as a result greatly and unnecessarily delayed plaintiff in doing the work in the particular areas.

Plaintiff complains of the delay in connection with ...