Graham v. United States

• Decision Date: 19 June 1911
• Docket Number: 1,014.
• Citation: 188 F. 651
• Parties: GRAHAM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

188 F. 651

GRAHAM et al. v. UNITED STATES.

No. 1,014.

United States Court of Appeals, Fourth Circuit.

June 19, 1911

In the Sundry Civil Appropriation Act, approved March 3, 1903, c 1007, 32 Stat. 1102, Congress enacted:

'To enable the Regents of the Smithsonian Institution to commence the erection of a suitable fireproof building with granite fronts, for the use of the National Museum, to be erected on the north side of the Mall, between Ninth and Twelfth streets, Northwest, substantially in accordance with the plan A, prepared and submitted to congress by the Secretary of the Smithsonian Institution under the provisions of the act approved June twenty-eighth, nineteen hundred and two, two hundred and fifty thousand dollars. Said building complete, including heating and ventilating apparatus and elevators, shall cost not to exceed three million five hundred thousand dollars, and a contract or contracts for its completion is hereby authorized to be entered into subject to appropriations to be made by Congress. The construction shall be in charge of Bernard R. Green, Superintendent of Buildings and Grounds, Library of Congress, who shall make the contracts herein authorized and disburse all appropriations made for the work, and shall receive as full compensation for his services hereunder the sum of two thousand dollars annually in addition to his present salary, to be paid out of said appropriations.'

On October 23, 1906, Frank F. Graham entered into a contract with Bernard R. Green, 'acting under the direction of the Regents of the Smithsonian Institution, for and in behalf of the United States of America,' whereby he (Graham) agreed to 'transport from the quarry, cut, box and deliver complete, all the Bethel granite,' to be furnished by Green 'free on board cars at the quarry at Bethel, Vt required for that portion of the South Pavilion above the first floor level of the said building for the National Museum in Washington, District of Columbia, described as part 'C' in the specifications, the drawings therein referred to, and the instructions and general conditions, all for the gross sum of one hundred and forty nine thousand dollars. ' To secure the performance of his contract Graham executed bond in the penalty of $50,000 with the Title Guaranty & Surety Company as surety. This contract, among other things, provided that, if Graham failed 'to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then green or his successor legally appointed should have power with the sanction of the Regents of the Smithsonian Institution to annul this contract by giving notice in writing to that effect' to Graham. That the United States should have the right to recover whatever sums might be required to complete the contract after such annulment, in excess of Graham's contract price, and apply to such completion of the work any sums not paid over to Graham at the time for work done by him. On March 18, 1908, Green, alleging that Graham had stopped work and failed to prosecute it faithfully and diligently as the contract required, gave notice to Graham in writing of its annulment, and subsequently the work was done and completed by the government under Green's supervision at a cost in excess of Graham's contract price, after taking into account prior payments, of $56,080.75. Thereupon the United States instituted this suit upon Graham's bond and after a protracted jury trial, on June 25, 1910, secured a verdict for $50,000 against Graham and the surety company, upon which verdict judgment was entered by the court on June 28, 1910, for said sum of $50,000 and $280.19 costs of suit. To this judgment this writ of error has been sued out.

Charles F. Harley (George R. Gaither, John B. A. Wheltle, and Burdette B. Webster, on the brief), for plaintiffs in error.

John Philip Hill, U.S. Atty., and J. Craig McLanahan, Asst. U.S. Atty., for the United States.

Before PRITCHARD, Circuit Judge, and DAYTON and CONNOR, District judges.

DAYTON District Judge (after stating the facts as above).

Graham filed some 14 and the surety company 15 pleas in defense of this suit. The first 14 filed by the surety company are substantially the same as those filed by Graham, and both sets could have been well reduced to 4, one the general issue, the other 3 setting forth the charges: First, that the contract was not annulled lawfully by Green; second, that Green had not performed the conditions of the contract required of him in the furnishing of the granite properly to Graham, whereby and by reason whereof he had broken the contract, and Graham was entitled to abandon it; third, that the expenditures after annulment of the contract by Green in the completion of the work were not reasonable and fair. The fifteenth plea filed specially by the surety company set forth that, without its knowledge and assent, material alterations had been made in the contract, whereby it became released of its surety obligation. Thus analyzed it will be perceived that of these three substantial defenses, other than the general issue, set up by these defendants jointly in their multitude of pleas, the last two presented wholly questions of fact which were proper to be submitted to the jury under instructions of the court. During the course of the trial, extended over some 28 days, 39 separate bills of exception were taken, and 47 assignments of error are now here made.

It could hardly be expected of us to consider these exceptions, and assignments in detail. The great majority relate to the action of the court in admitting and refusing testimony, and to remarks of the court and opposing counsel in the course of trial. Especial stress is here made by counsel in argument and brief on the fact that the government's counsel was permitted to introduce in evidence written communications from the surety company, which set forth upon their printed heads the fact that its capital and surplus was over $1,000,000, because it is asserted in the brief that:

'It is difficult for a person, natural or artificial, to secure a fair trial in a case of this kind against the United States, and the line against evidence and argument of this character should be fairly and firmly drawn.'

We are not prepared to concur in the assertion of fact contained in this proposition. Nor can we quite see what line can be firmly drawn against the introduction of a letter headed communication which letter head has been promulgated, published, and used by the surety company for no other purpose that we can conceive of then that of furnishing a brief, accurate description of itself, its address, its responsible officers, the nature of its business and its financial ability to conduct such business, and it is far from clear to us how such defendant could be prejudiced by this its own act, especially before a jury charged, as in this case, by the court that:

'The same principles of right and justice which prevail between individuals should control the construction and carrying out of contracts between the government and those who contract with it or its agents.'

A careful examination of all this kind of exceptions has convinced us that they present no just ground of complaint on the part of the defendants, and they will be dismissed without further consideration. Others of these exceptions relate to the refusal of the court to give to the jury 27 special instructions or special prayers. The very number of these was calculated...