Ball Engineering Co. v. J.G. White, Inc.

• Decision Date: 31 August 1922
• Docket Number: 813.
• Citation: 283 F. 496
• Court: U.S. District Court — District of Connecticut
• Parties: BALL ENGINEERING CO. v. J. G. WHITE, Inc.

283 F. 496

BALL ENGINEERING CO. v. J. G. WHITE, Inc.

No. 813.

United States District Court, D. Connecticut.

August 31, 1922

Charles D. Lockwood, of Stamford, Conn., and William M. Parke, of New York City, for plaintiff.

Harry W. Reynolds, of Hartford, Conn., A. L. Humes, of New York City, and J. Kemp Bartlett, of Baltimore, Md., for defendant.

THOMAS District Judge.

This case is now before me for the third time upon the defendant's motion for judgment in its favor upon the report of the committee, and upon the plaintiff's remonstrance and motion to recommit the report to the committee for modifications of his findings of facts, and upon the defendant's demurrer to the remonstrance and motion to recommit. In view of the conclusions herein reached, only the motion to recommit will be discussed. For the previous history of this litigation see (D.C.) 212 F 1009; (C.C.A.) 223 F. 618; 241 F. 989, 154 C.C.A. 661; and 250 U.S. 46, 39 Sup.Ct. 393, 63 L.Ed. 835.

The material findings of the committee's report are:

That on July 10, 1906, the United States entered into a contract with the Hubbard Building Realty Company to construct lock and dam No. 6 on Trinity river, near Dallas, Tex. That the contract provided, inter alia, that if the contractor failed to prosecute the work faithfully and diligently in accordance with the specifications and requirements of the contract the United States should have power to annul the contract by giving the contractor notice in writing to that effect (paragraph 4), and that in case of such annulment the United States should have the right to take possession of all materials, tools, buildings, etc., prepared for use or in use in the prosecution of the work, under purchase, at a valuation to be determined by the engineer officers in charge (paragraph 33). That shortly after the execution of the contract the Hubbard Building & Realty Company was obliged to suspend work for lack of funds, and that thereafter the work on said lock and dam proceeded in the name of the Hubbard Building & Realty Company, under the direction of various parties, who became successively the owners of 30 shares of stock of said company, until October 30, 1907, when George E White, the owner of said stock, sold it to George A. Carden and P.D.C. Ball, who constituted the Ball-Carden Company, and agreed to execute or cause to be executed to said partnership the necessary instruments in writing to transfer to said company, among other things, an undivided one-half interest in all plant and equipment which said Hubbard Building &amp Realty Company had placed on the government reservation at lock and dam No. 6, and a one-half interest in the contract with the government for the building of said lock and dam and that, about the same time, Carden was elected president of the Hubbard Building & Realty Company.

That thereafter the Ball-Carden Company, and, after the dissolution of that partnership in May, 1909, P.D.C. Ball, proceeded with the work of constructing said lock and dam in the name of the Hubbard Building & Realty Company. That all the work done and materials furnished in constructing said lock and dam up to September 9, 1909, were supplied and furnished under said contract and in accordance with the terms thereof, and all payments for work performed and materials furnished up to said date were made upon estimates made up under and pursuant to said contract by the United States Engineer Officer in charge. That all work done on said lock and dam from November 6, 1907, to May, 1909, was done by the Ball-Carden Company in the name of the Hubbard Company, and the monthly payment checks issued by the United States to said company in payment of said work were indorsed over to said Ball-Carden Company. That said partnership purchased some of the machinery, plant, equipment, and materials described in paragraph 3 of the complaint, and used them in the construction of said lock and dam. That after the dissolution of said partnership, in May, 1909, Ball acquired its property, and, in the name of the Hubbard Company, continued the work of constructing said lock and dam under said contract until September 9, 1909, using said property for that purpose. That Carden continued to act as president of the Hubbard Company, and the monthly payment checks for said work were issued as theretofore and indorsed by Carden to Ball.

That both Ball and Carden learned of the provisions of the government contract during the time that the Ball-Carden Company was performing the work on said lock and dam. That said Ball-Carden Company and Ball acted under said government contract, and acquiesced in the provisions thereof, and performed said work thereunder. That the government and its representatives, while insisting always that on its records, it must recognize only the contractor mentioned in the contract between the government and the Hubbard Company, knew that the work thereunder was being carried on by said Ball-Carden Company and Ball respectively, and did not object thereto. Said parties acted in good faith in under taking the work under said contract, and when so undertaking it they respectively intended to be bound by it. That the equipment, tools, machinery, and other personal property referred to in the complaint were prepared for use or in use in the prosecution of the work on said lock and dam, and were at or near the site of said dam at the time of the abandonment of the work thereon and at the time of the annulment of said contract.

That two applications, dated, respectively, August 21, 1908, and May 29, 1909, were made to the government for extensions of time for the completion of the work under said contract in the name of the Hubbard Company and signed by Carden, its...