J.G. White & Co. v. Ball Engineering Co.

• Decision Date: 07 April 1924
• Docket Number: 272.
• Citation: 298 F. 709
• Parties: J. G. WHITE & CO. v. BALL ENGINEERING CO.
• Court: U.S. Court of Appeals — Second Circuit

298 F. 709

J. G. WHITE & CO. v. BALL ENGINEERING CO.

No. 272.

United States Court of Appeals, Second Circuit.

April 7, 1924

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

Cummings & Lockwood, of Stamford, Conn. (William M. Parke, of New York City, and Charles D. Lockwood, of Stamford, Conn., of counsel), for defendant in error.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

HOUGH Circuit Judge.

This writ is the latest step in a litigation now 13 years old. It grows out of a seizure by the United States of certain property used in building a lock and dam for the government and found at the work place when the contractor defaulted and the engineers in charge annulled his contract. Plaintiffs assert that this property was theirs, and was neither owned by the contractor, nor leased to him. Defendants are sued for the conversion of the same, and bring this writ after judgment against them for its value, with many years' interest added. Judgment resulted from the lower court's decision reported in 283 F. 496, where reference to the lengthened earlier history of the litigation may be found.

Defendants once had judgment in their favor, which was reversed in 250 U.S. 46, 39 Sup.Ct. 393, 63 L.Ed. 835; the present record results from a new trial, and the question before us is, in substance, whether this record so differs from that before the Supreme Court as to warrant departure from the conclusion there reached on the proceedings submitted to that tribunal. The case was tried by consent without a jury and before a referee or master, whose findings, on familiar principles, have the force of a verdict. The court below accepted all the fact findings, but (differing from the referee) drew from them the conclusion of law that plaintiff was entitled to judgment.

Most of the items of this story have never been doubted, and might have been agreed to years ago. The outline of the tale may be thus told, according to its legal effect. Hubbard Company contracted to build this lock in 1906. It was a small local corporation, and became unable to proceed on its own capital. The contract contained the well-known seizure clause of such government agreements. See 250 U.S.at page 53, 39 Sup.Ct. 393, 63 L.Ed. 835. When the contractor ran short, one Epps took up the work by the device of becoming a shareholder in and taking charge of Hubbard Company. Epps grew tired, and was succeeded by White Bros., and they in turn yielded to Ball; each taking over a stockholder's interest in Hubbard Company and transacting business with the government engineers as Hubbard Company. This method of carrying on was known to said engineers.

Ball procured the property in suit, used it in going forward with the work, and when in 1909 he quit work, and the United States annulled the contract (never changed from one with Hubbard Company, and never assigned nor subcontracted), the United States engineers in charge seized the property in suit, in assumed compliance with the cited contract clause. Then they advertised for bids to complete the lock and dam, and defendant was the unfortunate successful bidder. Its contract provided that, if defendant so requested, the United States would take possession of and retain said property, and defendant would be permitted to use the same in prosecuting the work, for which there would 'be charged a fair rental or purchase value, to be determined by the engineer officer in charge. ' This contract further provided that:

'Since the ownership of the' said machines etc., 'is not free from doubt, the United States does not undertake to transfer title, does not guarantee physical possession and uninterrupted use, and will not defend any action or writ that may be instituted against the contractor concerning the same.'

By this time the United States had already kept possession of the property claimed by Ball for upwards of six months; there is no finding that defendant ever 'requested' its delivery, but it was delivered to defendant as lessee of the United States; and defendants used it until substantial completion of lock and dam, paying the government $380 a month therefor. When the work was done it was returned to the custody of the United States officials, in what condition (it consisted of machines and tools) does not appear. The master's report finds as facts the following:

'There was at this time (when Ball was doing work) a desire and intention on the part of Ball to undertake the execution of the work called for in said government contract (of Hubbard Company), and in pursuance of such intention and desire did, as hereinafter stated enter upon such work, and did so with the knowledge and acquiescence of said Hubbard, and with the knowledge and acquiescence of the representatives of the government of the United States in charge of said work.'

'Ball during said period (i.e., his work period) acquired knowledge of the provisions of said government contract; and the master finds that said Ball acted under said government contract, and acquiesced in the provisions thereof and performed said work thereunder.'

'The parties (i.e., Ball et al.) so as aforesaid actually doing the work and furnishing the materials for said lock and dam No. 6 respectively claimed and took for themselves under said government contract, through the medium of said Hubbard, the benefits and compensations accruing from the doing of said work and the furnishing of said materials. Said parties were not intermeddlers therein, and they acted in entire good faith in undertaking the work under said government contract, and when so undertaking it they respectively intended to be bound by the terms and provisions of said contract.'

This suit was begun after defendant had finished its contract, and after the property in question had been returned to the physical possession of the United States officials; that is on January 30, 1911, the...