Howard University v. Cassell

• Citation: 126 F.2d 6
• Decision Date: 01 December 1941
• Docket Number: No. 7727.,7727.
• Parties: HOWARD UNIVERSITY v. CASSELL.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

126 F.2d 6 (1941)

HOWARD UNIVERSITY v. CASSELL.

No. 7727.

United States Court of Appeals for the District of Columbia.

Argued October 7, 1941.

Decided December 1, 1941.

Writ of Certiorari Denied April 27, 1942.

Mr. George E. C. Hayes, of Washington, D. C., for appellant.

Mr. Warren E. Magee, of Washington, D. C., with whom Messrs. Charles S. Baker, Benj. L. Tepper, and Daniel J. Andersen, all of Washington, D. C. were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

Writ of Certiorari Denied April 27, 1942. See ___ U.S. ___, 62 S.Ct. 1046, 86 L.Ed. ___.

GRONER, C. J.

This suit was begun in the court below by appellee, Albert I. Cassell, against appellant, Howard University, to recover $26,250 as compensation for services as agent of the university in supervising and managing for a period of three and a half years its so-called university extension plan. The complaint was filed June 4, 1936, and claimed recovery (1) on a quantum meruit; (2) on an agreement to pay an express sum; and (3) on the acceptance of the services and the recognition of their value by the university in the sum sued for. The university by appropriate pleadings denied any express agreement or any ratification or acceptance of any benefits for which it was liable, but alleged that the services rendered by Cassell were embraced in and were part of his duties as a salaried employee of the university. The university also pleaded the statute of limitations to the complaint and to each part thereof. There was a trial to a jury and a verdict in favor of Cassell for $19,687.50. From the judgment of the court on the verdict, this appeal was taken.

From 1920 until sometime after the events out of which this controversy grows, Cassell was associated with Howard University in a number of different capacities. For several years he was head of the Department of Architecture, and thereafter for a number of years University Architect. During a part of the latter time he was also Superintendent of Buildings and Grounds. As architect, he received variously $5,000 and $6,000 per annum, and for most of the time an additional sum of $1,500, apparently for services in supervising the buildings. In the early part of 1929 the university began the development of a 20-year program of expansion and extension work, and in June of 1929 a committee called the Trustee Committee on Extension was set up by the board of the university. The task of the committee was to work out the plan and obtain funds to make it effective. In July of 1929 the Committee made Cassell its agent, and from then until January 1, 1933, a period of three and a half years, he performed services in connection with the purchase of real estate contiguous to the university grounds and the maintenance and rental of the same. On this appeal, he insists that the only issue is whether as such agent he was entitled, either by express agreement or by the acceptance of his services and work, to receive other and additional compensation. The record contains a vast amount of contradictory evidence on the subject, but in the view we take of the case it is unnecessary to consider this, since we think Cassell's services terminated and his compensation, if he was entitled to any, became payable more than three years (the statutory period) before this suit was begun. And we are unable to find in the record any facts on which to sustain his claim that the running of the statute, for any part of this time, was tolled.

As to the commencement of his services in extension work, Cassell testified that early in 1929 the president of the university asked him if he would "undertake the problem" of securing the property necessary under the extension plan and assured him that, if he would, he would be given $7,500 a year in addition to his other compensation. On July 1, 1929, a committee of the board met under the chairmanship of the president. Cassell was present by invitation, and the committee was informed by the president that they were to go ahead with the acquisition of the needed properties under the then available $600,000 grant from the General Education Board and the Rosenwald Foundation. Cassell was informed that he was to act as agent for the committee. Subsequently and about April 23, 1932, Cassell obtained from Hawkins, secretary of the committee, a letter addressed "To Whom it May Concern", stating that "at a regular meeting of the Extension Committee of the Trustee Board of Howard University Mr. Albert I. Cassell was duly appointed as Agent to represent the University in the matter of negotiations for purchasing property * *".

So much for the beginning of Cassell's extension agency; now for its termination. On December 5, 1932, the Board of Trustees met and adopted the following resolution:

"Voted, That the responsibility for the management of all real estate of the University heretofore purchased from the Extension Fund, so-called, be assigned to the Treasurer of the University on and after January 1st, 1933, in accordance with the requirement of Article III, Section 5, of the By-Laws.

"Voted Further, That the Committee on Property Extension be required to prepare and submit to the Chairman of the Board a report as of December 31st, 1932, of all properties purchased and managed by it up to the present time, and containing full details showing the rents, encumbrances, insurance carried, expenses, and any other information which the Committee may deem proper.

"Voted Further, That the Board hereby express its thanks to the Committee for its arduous and efficient labors in purchasing and managing the property in question for the University."

On the following January 4th the Committee requested Cassell to submit by January 20th a comprehensive report of his work and appropriated the sum of $300 for his bookkeeping and clerical expenses in connection with the preparation of the report. On January 5th the president informed Cassell of the committee's action, and within a week or two thereafter Flexner, chairman of the board, requested Cassell to hurry the report; and again in February instructed him to turn over promptly to the treasurer of the university all of the records of the extension fund. Then on February 28th, Flexner telegraphed Cassell, demanding that the records be turned over to the treasurer at once. The same day Cassell telegraphed Flexner that he needed the records to prepare his report. March 1, 1933, Flexner reiterated his demand, and notified Cassell he would have access to the records in the treasurer's office; and on March 22nd wrote Cassell, quoting the December 5th action of the Board of Trustees (requiring that the extension property be turned over to the treasurer), recounting the request to turn over the records to the treasurer and demanding that Cassell submit his report on extension activities at once. Flexner's letter concluded: "After the completion of this report your further duties in connection with the Trustee Committee on Extension will be confined solely to the performance of the services which that Committee may call upon you to render in connection with the purchase of further pieces of property. These properties will be administered by the treasurer. You will therefore be free to devote your entire time to the construction projects already assigned to you as architect by the Board." On March 26th Cassell telegraphed Flexner, giving further reasons for delay; and on March 29th following again wrote Flexner, stating that the latter's letter was his first knowledge of the resolution of the trustees turning the management of extension properties over to the university treasurer. The next day Flexner replied that Cassell's duties were to remain "what they are" until he was otherwise notified, and again requested the report. Subsequently the treasurer of the university sent Cassell a certified copy of the minutes of the December 5, 1932, meeting of the trustees. On April 21, 1933, Cassell sent Flexner his final report of activities in connection with the extension fund. The period covered was from July 30, 1929, to January 1, 1933, and the concluding paragraph of his letter of enclosure was as follows: "I thank you for the opportunity of presenting this review of my connection with Howard University's land extension program during the past three years. To date I have received no compensation of any description for this prolonged task. It is my hope that you will recommend to the Trustees that I be compensated adequately for these services."

Since more than three years elapsed between January 1, 1933, or April 20, 1933, and June 4, 1936, when the suit was begun, it is obvious that if either of the two first above dates be accepted as the time of the accrual of Cassell's cause of action, the plea of the statute will defeat recovery. D. C.Code 1929, T. 24, § 341. But Cassell's position is that his services did not terminate on either January 1, 1933, or April 21, 1933, but continued until March or April, 1934. One basis for this assertion is that after delivery in April of his report to the authorities of the university, the report was referred to accountants for audit, and the auditors from time to time during June, July, and August of 1933 called on Cassell for explanation and interpretation of several items in the report. This work, he says, required his presence and services for a time and hence necessarily prolonged the period during which he could legally demand compensation. The learned District Judge accepted this view, and in denying the motion for a directed verdict at the close of plaintiff's case, said that since the evidence showed that Cassell did work in June, July, and August in assisting the auditors in the examination and verification of his accounts, the obligation of the university to pay him did not accrue until after he had performed this duty.

But the evidence from Cassell's own pen shows...