McMullen v. United States

• Decision Date: 01 February 1909
• Docket Number: 1,642.
• Citation: 167 F. 460
• Parties: McMULLEN et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

167 F. 460

McMULLEN et al. v. UNITED STATES. ^[1]

No. 1,642.

United States Court of Appeals, Ninth Circuit.

February 1, 1909

On or about September 14, 1897, the Navy Department of the United States advertised for proposals for dredging at the United States naval station at Port Royal, S.C. The New York Dredging Company sent a bid which was accepted, and on October 25, 1897, a contract in writing was executed by that company as principal and John McMullen and R. Percy Wright as sureties, parties of the first part, and the United States of America, party of the second part. To the contract was annexed a bond in the sum of $30,000, with the New York Dredging Company as principal and John McMullen and R. Percy Wright as sureties, conditioned for the faithful performance of the contract. The plans and specifications on which the bids had been made were attached to the contract and made a part of it. The portions of the plans and specifications and bonds necessary to be considered on the writ of error are as follows:

'16. Time of commencement of work.-- The contractor shall commence work within thirty days from the date of signing the contract and continue without interruption; the entire work to be completed in sixteen calendar months from date of contract.

'17. Progress of work.-- If at the close of any working month the progress of the work shall not have been such as to indicate that it will be completed within the time specified in the contract, the government may refer the matter to a board of three officers, and if recommended by them, and the interests of the government so require, annul the contract and complete the work in such manner as it deems best, at the expense of the contractor and his sureties.

'18. Unavoidable delays.-- When an unavoidable accident, storm or other act of Providence occurs, through which the progress of the work is or seems likely to be delayed, the contractor shall immediately notify, in writing, the officer in charge of the occurrence in detail, and state in what way and to what extent it will delay the fulfillment of his contract, in order that the necessary investigation may be made, and the matter put on record. And it is clearly to be understood that unless it be done whenever such thing occurs, no subsequent application for an extension of time for the completion of the contract on account of such occurrence will be recommended.

'19. Unavoidable delays.--Should the progress of the work be delayed by anything but unforeseen and unavoidable accidents, storms, or other acts of Providence, or by the action of the government, no application by the contractor for an extension of time for the completion of his contract will be recommended by the officer in charge for favorable consideration, except on condition that the contractor make good any deterioration caused by such delay and bear the additional cost of supervision and inspection by the government, and other expenses caused by the failure of the contractor to fulfill his contract with the United States according to its terms; and by granting the extension of time asked for there shall be reimbursed to the United States by the contractor the amount of such additional charges, to be deducted from any money that may be or may become due him from the United States under this contract, the difference only to be paid him upon his receipt.

'20. Authority for extension of time.-- No extension of time for the completion of the work will be made except upon the authority of the Secretary of the Navy.'

The condition of the bond was as follows:

'The condition of the above bond is such, that if the said above-bounden New York Dredging Company, their heirs, executors, or assigns, shall well and truly, and in a satisfactory manner, fulfill and perform the stipulations of the contract hereto annexed, entered into with the Chief of the Bureau of Yards and Docks, acting under the directions of the Secretary of the Navy, for and in behalf of the United States, and shall conform in all respects to said contract, and to the plans and specifications attached thereto and forming a part thereof, and to the satisfaction of the said Chief of the Bureau of Yards and Docks, and shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in the aforesaid contract, then this obligation to be void and of no effect; otherwise to remain in full force and virtue.'

The New York Dredging Company began work under its contract, and encountered difficulty through striking rock. The work was also delayed by storms and accidents to machinery. Early in 1899, and before February 15th, it was ascertained by the government that only about one-third of the dredging contracted for had been done. Two weeks then remained of the sixteen months in which the contract was to be completed. In response to a request from the dredging company, the time for the completion of the contract was extended to December 30, 1899. The dredging company failed to complete the contract within the time so extended. On March 25, 1901, the Chief of the Bureau of the Department of the Navy addressed a letter to the dredging company as principal, and to McMullen and Wright as sureties, stating that because of their failure to perform the contract of October 25, 1897, 'the party of the second part, exercising the option reserved to them, declare said contract null and void, without prejudice to their right to recover for defaults therein or violation thereof,' and notified them that an advertisement had been prepared and issued inviting proposals for the completion of the work under said contract, and that the same would be completed at the expense of the dredging company and the sureties. On December 5, 1903, the United States brought this action against the dredging company and the sureties to recover the sum of $25,588.02, alleged to be the difference between 'what the defendant New York Dredging Company agreed to perform the work of dredging for, and what it actually cost these plaintiffs to complete the work,' and for the further sum of $31,750 as liquidated damages. The answer of the sureties set up the defense, among others, that the contract entered into on October 25, 1897, was, by the terms thereof, to have been fulfilled by the dredging company and the work mentioned therein was to have been completed between February 23, 1897, and December 30, 1899; that the time was extended, and the condition of the contract was in that regard changed by the plaintiffs without the consent of said sureties. Upon the pleadings and an agreed statement of the facts, judgment was rendered for the defendant in error.

Burke Corbet, J. R. Selby, and Edward J. Lynch, for plaintiffs in error.

Robert T. Devlin, U.S. Atty., and ...