Bowe v. United States

• Decision Date: 29 April 1890
• Citation: 42 F. 761
• Parties: BOWE v. UNITED STATES.
• Court: U.S. District Court — Northern District of Georgia

42 F. 761

BOWE v. UNITED STATES.

United States Circuit Court, N.D. Georgia.

April 29, 1890

Action by William F. Bowe against the United States under the act of March 3, 1887, (c. 359,) which provides that actions may be brought against the United States 'upon any contract expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort. ' Rev. St. U.S. Sec. 3737, provides that no public contract shall be transferred by the party with whom it is made, and that any such transfer shall cause the annulment of the contract.

Arnold & Arnold, for plaintiff.

S. A Darnell, U.S. Atty., and E. A. Angier, Asst. U.S. Atty.

N. J Hammond, for J. W. Jacobs.

NEWMAN J.

This is a suit brought by William F. Bowe against the United States under the provisions of the act of congress of March 3, 1887, in which he alleges that on the 30th day of June, 1886, the said plaintiff, with J. W. English and M. E. Maher as securities, entered into a written contract with the United States, through its agents, a copy of which is attached. He further alleges that the contract was for the erection of five certain public buildings, to be used as army quarters, near Atlanta, Ga.; and, for the consideration therein named, plaintiff, being a building contractor, undertook the same. The contract refers to certain plans and specifications of the five buildings to be erected, and by one of the terms of the contract these plans and specifications were to govern in the erection of the buildings, and this was the consideration moving the plaintiff to enter into the thing. Plaintiff made his calculations accordingly, and estimated the quantity and quality of the material and work to be used, taking into consideration the character of the buildings to be constructed, and the purposes for which the same were to be used; and also the plans and specifications. Plaintiff computed the time within which, reasonably, said buildings could be completed by carrying out the contract in good faith, and according to a just and reasonable construction thereof. He went so far as to take other buildings to begin after the completion of this contract. Within a reasonable time after the execution of said contract, he began work on the same, and employed a large force of artisans and laborers, and gave orders for material, his guide being said plans and specifications, and consideration thereof, consistent with the character of the buildings to be erected. Soon thereafter the agent of defendant, one Jacobs, whose duty it was to represent the defendant throughout the transactions, began to change and vary the construction of said buildings from the terms of the plans and specifications in many particulars, and added considerably thereto. All of these variations and additions plaintiff made and completed at the special instance and request of said Jacobs, acting as a duly-authorized agent of defendant. Said extra work was for the benefit of defendant, who has since acquiesced in and ratified the same. Plaintiff has performed and completed all his duties under the contract, and defendant has paid the consideration therein stipulated. Defendant has refused, and still refuses, to pay plaintiff for the labor and material used on said buildings which were not contemplated and included in said written contract and specifications. Plaintiff avers that by no reasonable intendment could said labor and material just referred to be included under the said written contract. The discretion reserved therein to defendant's agent, Jacobs, of approving workmanship and material is not an arbitrary discretion, but was to be exercised reasonably, and in the light of the whole contract, considering the purposes for which said buildings were to be used, to-wit, quarters for soldiers. Said Jacobs, as agent for, and with the subsequent ratification of, defendant, has frivolously, and without reason or just cause, condemned from time to time, during the progress of the work, much material and workmanship, requiring the plaintiff to do the same over in a different way. On account of this plaintiff lost much material and labor, having to replace that which was suitable for the purpose intended by such other material and labor as suited the whims and caprices of said Jacobs; also, at divers times, said Jacobs, acting for defendant, discharged without cause various workmen in plaintiff's employ, and secured others at higher wages, though no more competent than those discharged. The plaintiff further avers that, through the general officious, meddlesome, arbitrary, and arrogant conduct of said Jacobs, completion of the contract by plaintiff was unnecessarily delayed 12 months. All the work done by plaintiff not covered by said plans and specifications was done by plaintiff with the understanding, communicated to defendant, that the same was not covered by said contract. Plaintiff also gave notice to defendant that all rejected workmanship and material which corresponded to, and was a substantial compliance with, said plans and specifications would have to be accounted for to plaintiff, together with all extra cost incurred in making the change. Plaintiff shows that he remonstrated with defendant's said agent, Jacobs, against his unwarranted interference with work and men, which interference had caused plaintiff's payments to be delayed, and the loss of interest thereon. At this time plaintiff had no right of action against the United States in such case, and he was compelled to obey every whim and order of said Jacobs at the risk of losing his contract altogether. Then follows a specific enumeration of plaintiff's charges.

To this declaration a demurrer was interposed, on the following grounds: (1) Because no cause of action was set forth. (2) Because the suit is predicated on the act of congress approved March 3, 1887, whereas the bond on which the thing was based was executed the 30th of June, 1886, and the act is not retroactive in its terms or by intendment. (3) Because there is a joinder in the suit of an action ex contractu and ex delicto. (4) Because the suit is not verified, and does not pray for judgment, as required by the act of March 3, 1887. (5) Because the plaintiff's remedy, if he had or has one, is an appeal to the quartermaster general, as condition precedent to bringing suit. (6) Because, by the terms of the bond on which plaintiff sues, 'all the material furnished and work performed shall be of the quality described in the said specifications, and subject, during the entire work, to the inspection, approval, or rejection of the party of the first part; and the said party of the first part, or his agent, shall have full power to reject any material or workmanship which in their opinion is not in every respect in complete conformity with the aforesaid plans and specifications;' also, because by an express stipulation in said bond, 'that no allowance shall be made for extra work claimed to have been done, unless provided for beforehand by written agreement to that effect, specifying the cost of the same;' and a fair construction of plaintiff's suit shows it is an attempt to vary, alter, and add to a solemn written instrument by parol; and because, under said bond and the law, said Capt. J. W. Jacobs could not enter into the verbal covenants set up by the plaintiff. (7) Because, by the terms of the contract, 'the United States officer in charge, or his agent, are to have at all times access to the work, which is to be entirely under his control, and may, by written notice, require any contractor to dismiss forthwith such workmen as he deems incompetent or careless.'

The first, second, third, and fifth grounds of the demurrer were expressly overruled. The declaration was amended so as to relieve it of the objections made by the fourth ground of the demurrer. As to the sixth and seventh grounds of demurrer, the court made this order: 'The court only passes upon the 6th and 7th grounds of the demurrer so far as to determine to hear the evidence before passing upon the legal question raised in the contract, and the effect of the stipulations in the contract set up in the demurrer. ' Defendant filed a plea of general issue, and plea for payment in full for all work done for it by the plaintiff.

The court has heard evidence at considerable length from witnesses for both plaintiff and defendant on the issues involved, and on the various items embraced in the suit and the subject of contest. The following facts, as applicable to the entire case, may not be stated: From the testimony it appears that the contract price for this whole work was $61,120. This amount was paid to Bowe, or to his authorized representatives, in full. There were several extensions of the time for the completion of the contract authorized by the war department in regard to which Capt. Jacobs testified as follows:

'This contract was entered into June 30, 1886. The work was commenced within thirty days thereafter. The contract to be completed July 1, 1887. It was not so completed, and on my recommendation the contract was from July 27, 1887, extended to 75 working days, expiring September 26, 1887. In this connection the contractor made verbal request for two months from September 26, 1887, was granted, expiring November 26, 1887. That was the second extension. A third extension was necessary, and that was granted from December 5, 1887, for 50 working days, expiring January 24, 1888. A fourth extension was necessary. On January 24, 1888, to May 3, 1888, work was suspended awaiting preparation of material. May 3d, work was resumed under an extension of 30 days from this date. That is four extensions. After this extension the contract was completed, and the

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