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

• Citation: 223 F. 618
• Decision Date: 13 April 1915
• Docket Number: 214.
• Parties: J. G. WHITE & CO. v. BALL ENGINEERING CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

223 F. 618

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

No. 214.

United States Court of Appeals, Second Circuit.

April 13, 1915

H. W Reynolds, of Hartford, Conn., J. K. Bartlett, of Baltimore Md., Lewis Sperry, of Hartford, Conn., and Stuart S. Janney of Baltimore, Md., for plaintiff in error.

W. M Parke, of New York City, and C. D. Lockwood, of Stamford, Conn., Thomas L. Hughes, of New York City, and S. L. Swarts, of St. Louis, Mo., for defendant in error.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

This is a writ of error to a judgment in favor of the plaintiff for damages for conversion by the defendant of certain personal property specified in the complaint used by defendant in constructing Lock and Dam No. 6 on the Trinity river, Tex. The trial was before a referee, called in Connecticut a 'committee,' and therefore the only question before us for consideration is whether his findings of fact sustain the judgment. We can look only at the pleadings, order of reference, findings of fact, conclusions of law, and judgment of the court. We cannot consider the testimony, the exhibits (except so far as included in the findings of fact), or the refusals of the committee to find. Andes v. Slauson, 130 U.S. 435, 9 Sup.Ct. 573, 32 L.Ed. 989; David Lupton's Sons Co. v. Automobile Club, 225 U.S. 489, 32 Sup.Ct. 711, 56 L.Ed. 1177, Ann. Cas. 1914B, 699; Edenborn v. Sim, 206 F. 275, 124 C.C.A. 339.

What seems to us to be the material facts found by the committee were substantially as follows:

July 10, 1906, the Hubbard Building & Realty Company entered into a written agreement with the United States to construct Lock and Dam No. 6 on the Trinity river, Tex.

Some time in the year 1908 a partnership composed of George A. Carden and P. D. C. Ball, trading under the name of the Ball-Carden Company, placed on the site of the lock and dam a considerable amount of property consisting of machinery, tools, and materials and used the same in constructing the lock and dam until the month of May, 1909.

In April or May, 1909, the partnership was dissolved, Carden transferring all his interest to Ball, who continued the work under the name of Ball Engineering Company until on or about September 8, 1909.

September 9, 1909, work on the lock and dam was discontinued, and October 22d the government, in accordance with its provisions, annulled the contract with the Hubbard Company.

April 2, 1910, the plaintiff, Ball Engineering Company, was incorporated under the laws of Missouri, and P. D. C. Ball transferred to it all of the property mentioned in the complaint.

June 6, 1910, the government entered into a written contract with the defendant, J. G. White Company, Inc., to complete the work.

The government took the property belonging to the plaintiff at a value of $11,578 fixed by the engineer and credited the amount in account of the Hubbard Company. It professed to act under section 33 of the contract with the Hubbard Company, which reads:

'Annulment.-- In case of the annulment of this contract as conditionally provided for in the form of contract adopted and in use by the Engineering Department of the Army, the United States shall have the right to take possession of, wherever they may be, and to retain all materials, tools, buildings, tramways, cars, etc., or any part or parts of same, prepared for use or in use in the prosecution of the work, together with any or all leases, rights of way or quarry privileges, under purchase, at a valuation to be determined by the engineer officer in charge.'

This property the government leased to the defendant, who used the same in completing the work and after completion returned all of it to the government except such material as had been used in construction.

As a conclusion of law, the...