George A. Fuller Co. v. United States

• Decision Date: 03 February 1947
• Docket Number: No. 44585.,44585.
• Citation: 108 Ct. Cl. 70,69 F. Supp. 409
• Parties: GEORGE A. FULLER CO. v. UNITED STATES.
• Court: U.S. Claims Court

69 F. Supp. 409

108 Ct. Cl. 70

GEORGE A. FULLER CO. v. UNITED STATES.

No. 44585.

Court of Claims.

February 3, 1947.

Alexander M. Heron, of Washington, D. C. (Hinton & Heron, of Washington, D. C., on the briefs), for plaintiff.

Currel Vance, of Washington, D. C., John F. Sonnett, Asst. Atty. Gen., for defendant.

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

WHITAKER, Judge.

The plaintiff sues the defendant for damages for delays caused by defendant in failing to furnish models on time, for delays caused by changes made in the work, and for delay in the approval of the limestone to be used.

The plaintiff entered into a contract for the erection of the Archives Building in the City of Washington, D. C. Under it the Government agreed to furnish models for the ornamentation of granite, limestone, bronze, plaster, and other materials used in the construction of the building. There were delays in the furnishing of the models for the granite and limestone, and for the plaster, and for the bronze and glass. The plaintiff also claimed that it had been delayed by changes made by the Government and by the Government's failure to promptly approve the limestone for the building, but it says these delays ran concurrently with the model delays, and, hence, it will be unnecessary to consider them, since we are of opinion that the delays in furnishing the models for the building delayed its final completion and that the Government is liable therefor.

The contracting officer, on February 11, 1935, in response to plaintiff's letters of December 5, 1934, and January 16, 1935, claiming delays on account of the tardy furnishing of models and of the approval of limestone, and on account of a carpenters' strike, and on account of changes, wrote plaintiff, in part, as follows: "From time to time you notified this office of delay due to the lack of models, which constituted the necessary notification within ten days as required by your contract. The engineer verifies your statement that the delay has reached the extent of six months from causes beyond your control and without your fault or negligence. Under Article 9 of your contract note will be made at time of final settlement of one hundred and eighty (180) calendar days delay on account of the conditions outlined above in connection with the waiver of liquidated damages. It is noted that you state in letter of January 16, that all of the models had not yet been received by your subcontractors. It is understood at this writing that the last models have now been received but it appears that the delay taken into consideration as named above will be sufficient to cover any other items which might arise. You state that you have claims for additional cost on account of the delay set forth above. You are reminded that your contract contains no provision for payment on account of delays under Article 9 thereof, and in accordance with the rulings of the Comptroller General of the United States, this Division would be without authority to make payment on such claims if you present them."

This letter constitutes an admission on the part of the Government that the contractor was in fact delayed for a period of six months. It is admitted that the defendant caused the delays. The defendant offers no evidence sufficient to overcome this admission and, hence, we accept it as a statement of the true facts. Irwin & Leighton v. United States, 101 Ct. Cl. 455. Plaintiff has been unable to show that the delay was of longer duration, and we have accordingly found as a fact that plaintiff was delayed in the completion of the work for a period of six months due to the defendant's failure to furnish models on time. Under prior decisions of this court and of the Supreme Court, it follows that the defendant is liable for the damages sustained as a result of these delays.

It is true there is no express provision in the contract which renders the Government liable for delays it may cause the contractor in the performance of the work, nor is there any express provision exempting it from liability for such delay; it is, however, an implied provision of every contract, whether it be one between individuals or between an individual and the Government, that neither party to the contract will do anything to prevent performance thereof by the other party or that will hinder or delay him in its performance.

Williston on Contracts, Section 1293-A, quotes the following statement from Gay v. Blanchard, 32 La.Ann. 497: "Where a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing that thing."

Williston says that "such hindrance is moreover a breach of contract." In Section 1318 he says: "In any case where the plaintiff's performance requires the cooperation of the defendant, as in a contract to serve or to make something from the defendant's materials or on his land, the defendant, by necessary implication, promises to give this cooperation and if he fails to do so he is immediately liable though his only express promise is to pay money at a future day. Indeed, there is generally in a contract subject to either an express or an implied condition an implied promise not to prevent or hinder performance of the condition. Such prevention, if the condition would otherwise have been performed, is, therefore, an immediate breach of contract, and if of sufficiently serious character damages for the loss of the entire contract may be recovered."

In support of these statements Williston cites, among a number of other cases, United States v. Peck, 102 U.S. 64, 26 L.Ed. 46; and Lovell v. St. Louis Mutual Life Insurance Co., 111 U.S. 264, 274, 4 S.Ct. 390, 28 L.Ed. 423. An examination of these cases shows that they fully support the statements made. The last case cited above relies upon the decision of the Supreme Court in United States v. Behan, 110 U.S. 338, 4 S.Ct. 81, 85, 28 L.Ed. 168. This was a case brought against the United States for wrongfully terminating a contract. The Supreme Court affirmed the judgment of this court awarding damages therefor. In the course of its opinion, among other things, the Supreme Court said: "The willful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained."

It is a necessary corollary to this principle that one who, while not preventing the other party from carrying out the contract, nevertheless hinders or delays him in doing so, breaches the contract, and is liable for the damage which the injured party has sustained thereby. The Supreme Court so held in United States v. Smith, 94 U.S. 214, 24 L.Ed. 115. In this case it was said: "Under such circumstances, the law implies that the work should be done within a reasonable time, and that the United States would not unnecessarily interfere to prevent this." The Supreme Court accordingly affirmed the judgment of this court awarding damages for the unlawful delay. See also United States v. Speed, 8 Wall. 77, 84, 19 L.Ed. 449, and Restatement of the Law of Contracts, Section 315.

Indeed, so far as we have been able to find, it has never been doubted that the Government is liable for delays caused by it, in the absence of a clause in the contract expressly exempting it from liability therefor. Shortly after this court was established, the Supreme Court so held in Clark v. United States, 6 Wall. 543, 18 L.Ed. 916. It also so held in United States v. Speed, supra; and in United States v. Smith, supra; and in United States v. Mueller, 113 U.S. 153, 156, 5 S.Ct. 380, 28 L.Ed. 946; and in United States v. Wyckoff Pipe & Creosoting Co., 271 U.S. 263, 46 S.Ct. 503, 70 L.Ed. 938; and this was implied in Plumley v. United States, 226 U.S. 545, 548, 33 S.Ct. 139, 57 L.Ed. 342.

The decisions of this court so holding are too numerous to list them all; but see Weehawken Dry Dock Co. v. United States, 65 Ct.Cl. 662, Id., 672; Carroll v. United States, 67 Ct.Cl. 513; Donnell-Zane Co. v. United States, 75 Ct.Cl. 368; Pope v. United States, 75 Ct.Cl. 436; Levering & Garrigues Co. v. United States, 73 Ct.Cl. 566; Knauff Co. v. United States, 78 Ct.Cl. 423; Karno-Smith Co. v. United States, 84 Ct.Cl. 110; Ouilmette Construction & Engineering Co. v. United States, 89 Ct.Cl. 334; Phoenix Bridge Co. v. United States, 85 Ct.Cl. 603; Plato v. United States, 86 Ct.Cl. 665; Sobel v. United States, 88 Ct.Cl. 149; Newport News Shipbuilding & Dry Dock Co. v. United States, 79 Ct.Cl. 1, 25, 37, 46; and Harwood-Nebel Construction Co. v. United States, 105 Ct.Cl. 116.

It is true in the cases of Wells Brothers Co. v. United States, 254 U.S. 83, 41 S.Ct. 34, 65 L.Ed. 148, and Wood et al. v. United States, 258 U.S. 120, 42 S.Ct. 209, 66 L.Ed. 495, it was held that the defendant was not liable for damages for delay, but this was because of express provisions in these contracts exempting the Government from liability therefor. In the Wells Brothers Co. case 254 U.S. 83, 41 S.Ct. 35 the contract provided that "no claim shall be made or allowed to the contractor for any damages which may arise out of any delay caused by the United States." There was a similar provision in the contract in the case of Wood et al. v. United States. But, in the absence of such an express provision, neither this court nor the Supreme Court has ever exempted the Government from liability for damages for delays not contemplated by the contract.

Nor has it ever been thought that the provisions of Article 9, providing for an extension of time for completion of the work on account of delays due to unforeseen causes, including those caused by the Government, would serve to relieve defendant of liability for damages for such delays. In the following cases this court has held...