UNITED STATES SHIP. BEF CORP. v. Galveston Dry Dock & C. Co.

• Decision Date: 20 July 1926
• Docket Number: No. 4713.,4713.
• Citation: 13 F.2d 607
• Parties: UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. GALVESTON DRY DOCK & CONSTRUCTION CO.
• Court: U.S. Court of Appeals — Fifth Circuit

13 F.2d 607 (1926)

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. GALVESTON DRY DOCK & CONSTRUCTION CO.

No. 4713.

Circuit Court of Appeals, Fifth Circuit.

June 5, 1926.

Rehearing Denied July 20, 1926.

J. Frank Staley, Sp. Asst. Atty. Gen., and H. M. Holden, U. S. Atty., of Houston, Tex., for plaintiff in error.

Maco Stewart, of Galveston, Tex., and Albert J. De Lange, of Houston, Tex. (Clarence Milheiser, of Houston, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the defendant in error, Galveston Dry Dock & Construction Company (herein referred to as the plaintiff), against the plaintiff in error, United States Shipping Board Emergency Fleet Corporation (herein called the defendant or the Fleet Corporation), to recover the amount alleged to be due for work done and material furnished by plaintiff under three contracts, evidenced by plaintiff's acceptance of written orders, dated, respectively, September 24, 1920, September 25, 1920, and October 4, 1920; the following being a copy of the first-mentioned order, omitting the attached statement of the labor and material called for:

"Authorization to Perform Work Chargeable Division of Construction and Repair.

"United States Shipping Board Emergency Fleet Corporation to Galveston Dry Dock & Construction Co. Date, September 24, 1920. You are hereby authorized to perform work on the steamship Latham as itemized in attached Req. No. G-88-d-21.

"Work to be performed on time and material basis, charged to the account of the United States Shipping Board, to be audited and checked by representatives of the comptrollers; statement covering the cost to be rendered to the Division of Construction and Repair at New Orleans, La.

"In performing work requested on this order, workmanship and materials must be of the very best throughout, and in no case will materials of less weight or thickness than the original be allowed for the parts replaced, and in every case must meet the requirements of the Classification Society, the owner or his representative, and the Steamboat Inspection Service, United States Department of Commerce. No extras will be allowed, unless covered by separate written order duly authorized on this form.

"While the vessel is undergoing repairs or alterations at the contractor's yard or wharf, the contractor shall be held responsible for and make good at his expense, and all damage of whatsoever nature, or/and loss to the vessel or/and its equipment or/and its movable stores, except where such damage or loss is due to causes beyond the contractor's control. The contractor is to fully protect the ship and owners against any and all claims for injury to workmen engaged by him or his subcontractors in carrying out work on vessel.

"It is agreed that the work outlined in attached requisition shall be completed by October 5, 1920, without working overtime. Signed W. A. Ridout, Asst. Dist. Mgr. Repairs, By Thos. G. Fielding, Accredited Representative Division of Construction and Repair Department.

"Though the above is not meant to be in the nature of a contract, it is, however, to be a guide for this department, and, if the work is not completed by you in a reasonable time, we will consider ourselves justified in canceling our order with you and reawarding the incompleted work to some other contractor."

Except as to dates and attached itemized statements of work and material, the other two orders were like the one above set out. Plaintiff's original petition alleged the making of the above-mentioned contracts, plaintiff's compliance with its obligations thereunder, the amount due plaintiff for the material furnished and the labor done under those contracts, and defendant's refusal to pay that amount. After the defendant had demurred to the original petition, plaintiff filed an amended petition. The petition as it was amended contained allegations to the following effect:

Prior to September 21, 1920, the defendant delivered the steamship Latham to plaintiff's dry dock at Galveston under an agreement to have repairs made thereon. On that date the plaintiff, in order to save the Latham from destruction by a threatened hurricane, submerged the dry dock with the Latham on it. When the dry dock with the Latham on it was raised on September 24, 1920, the Latham was found to need repairs in addition to those which had previously been contracted for; the additional repairs being what was called for by the three contracts sued on. While plaintiff was making the repairs called for by the contracts sued on, the Fleet Corporation, with checks signed by it, paid plaintiff various sums of money for repairs made prior to September 21, 1920, under similar contracts, whereby plaintiff was led to believe, and did believe, that the contracts sued on were with the Fleet Corporation, and but for such acts and facts and belief plaintiff would not have done the work called for by the contracts sued on, and by reason of its said acts the Fleet Corporation is now estopped to deny that it is bound for such work. At the time said work was ordered performed, authorized agents of defendant ordered same done for and charged to defendant, with the understanding that a written contract and confirmation would be delivered to plaintiff, and it was the agreement and understanding between plaintiff and defendant that the work under the contracts sued on would be charged to and paid by defendant; and when the contracts sued on were handed to plaintiff by defendant, plaintiff construed same to be chargeable to defendant. It was understood between the parties that the use of the said wording in said contract "United States Shipping Board" was but a short way of expressing the name of the defendant, United States Shipping Board Emergency Fleet Corporation. After the completion of the work under the contracts sued on, plaintiff presented its bill therefor to the Fleet Corporation, and the latter did not deny that the amount payable for the work was chargeable to it, but admitted liability therefor, and claimed that it was entitled to offset an equal amount against the plaintiff on the ground that the damages to the Latham which were repaired under the orders sued on were due to negligence of the plaintiff in sinking the Latham and in failing to take precautions to avoid the damages which resulted from the sinking.

The defendant demurred to plaintiff's amended petition and excepted to several parts thereof, alleging what occurred between plaintiff and defendant before and after the making of the contracts sued on. One of the grounds of the demurrer to the amended petition was to the effect that its allegations showed that defendant did not contract with plaintiff for the services for which the suit was brought. The demurrer and the exceptions were overruled. The answer to the amended petition put in issue its allegations, and set up the defense that the damages to the Latham which were repaired under the contracts sued on were due to plaintiff's negligence in submerging the Latham without taking reasonable precautions to shut out water from the engine room and other parts of the vessel where the damage from water was done.

Plaintiff adduced evidence to the following effect: Before and after the making of the contracts sued on plaintiff had sundry dealings with the Fleet Corporation, acting through the same officials with whom it dealt in the transaction in question. Plaintiff and other concerns were paid for work done under contracts like those sued on by checks signed by the Fleet Corporation by its official or officials, such checks being drawn on the Treasurer of the United States. There was no evidence of any discussions or statements by or between the plaintiff and officials of the Fleet Corporation as to the meaning of any of the provisions or terms of the contracts sued on. The Latham was a concrete vessel. Before it was placed in plaintiff's dry dock on September 7, 1920, its hull had been cracked, with the result that, after the loose concrete had been cut out, there was a crack in the hull between the keel and the bilge about 160 feet long, about 5 feet wide at one end, and running down to nothing.

D. T. Langbehn, plaintiff's president, after testifying to his having conversations and correspondence with D. T. Williams, district manager of the Fleet Corporation, and other officials of that corporation, in regard to doing work on the Latham, was asked by plaintiff's counsel the following question: "In doing all of this work on the Latham, with what company or concern did you believe you were doing business?" The defendant objected to this question on the ground that it called for a conclusion of the witness. The court overruled the objection, the defendant excepted to that ruling, and the witness answered: "We were doing business with the United States Shipping Board Emergency Fleet Corporation, of which Mr. D. T. Williams held himself out to be the district manager."

The following is an extract from the bill of exceptions in reference to testimony of the same witness:

"And thereafter, while the same witness was on the stand, the following question was propounded to him by plaintiff: `Q. Did you act on that belief yourself? I say, did you act on the belief, in accepting the orders and doing the work, that you were dealing with the United States Shipping Board Emergency Fleet Corporation?' To which question defendant objected, on the ground that it called for a conclusion of the witness and was an attempt to vary by parol the terms of a written contract, upon which plaintiff's suit was based, and, the objection being overruled by the court, the...