United States Shipping Board Emergency Fleet Corp. v. Tabas
| Decision Date | 01 November 1927 |
| Docket Number | No. 3498.,3498. |
| Citation | 22 F.2d 398 |
| Parties | UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. TABAS et al. |
| Court | U.S. Court of Appeals — Third Circuit |
George W. Coles, U. S. Atty., and Paul W. Knox, both of Philadelphia, Pa. (I. V. McPherson, George A. Parker, and George Biddle, all of Washington, D. C., of counsel), for plaintiff in error.
Donald S. Edmonds and Porter, Foulkrod & McCullagh, all of Philadelphia, Pa., for defendants in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Abraham Tabas, Morris Tabas, and Samuel Tabas, copartners trading as the Northern Metals Company, entered into a contract with the United States Shipping Board Emergency Fleet Corporation, defendant, to purchase from it "all underground cable used for the supply of light and power from main substation to the wet basins and to the various ways' substations, approximately 125 net tons," located at Hog Island, Pa. The material was purchased "as is, where is," for "$75.60 per net ton."
When the contract was signed, the plaintiffs paid to defendant $945 in cash, and delivered to it an irrevocable domestic letter of credit for $8,505, the approximate balance of the purchase price.
Plaintiffs at once began to remove the cable. There appears to have been more material than was anticipated by defendant, and on November 29, 1922, defendant notified plaintiffs that they would not be permitted to remove any more cable. Thereupon the plaintiffs brought suit against the defendant for damages for breach of the contract of sale. Plaintiffs contend that there remained underground, when they were notified not to remove any more material, 146.8 tons, and that the market price of the cable was $.0827 per pound and the cost of removing was $2.56 per ton. Plaintiffs brought suit for the net difference between contract price and market price on 146.8 tons.
The jury rendered a verdict for them, and the defendant brought the case here on writ of error.
The assignments may be compressed into the following three propositions upon which the defendant relies for reversal:
(1) The contract is the sole contract of United States as the disclosed principal, and the defendant is not liable thereon.
(2) If not the sole contract of the United States, it was the joint obligation of the United States and the defendant, which cannot be sued without joining the United States.
(3) The evidence is not sufficient to sustain the verdict.
Defendant says that in making and entering into the contract, it was in fact and in law acting only as the agent of the United States, and, notwithstanding its signature to the contract, it is the sole obligation of the United States.
This contention, was not made to the District Court, and it would be unfair to reverse a judge on a point not brought to his attention at the trial. It is elementary that, in order to lay a foundation for review by a writ of error, the questions of law proposed to be reviewed must be raised by specific, precise, direct, and unambiguous objections, so taken as clearly to afford the trial judge an opportunity for revising his rulings, and that a bill of exceptions not fulfilling this test will not support an assignment of error. Farrar v. Churchill, 135 U. S. 609, 10 S. Ct. 771, 34 L. Ed. 246; Behn, Meyer & Co. v. Campbell, 205 U. S. 403, 27 S. Ct. 502, 51 L. Ed. 857; Briscoe v. Rudolph et al., 221 U. S. 547, 31 S. Ct. 679, 55 L. Ed. 848; Wood v. Wilbert, 226 U. S. 384, 33 S. Ct. 125, 57 L. Ed. 264; Frey & Son v. Cudahy Packing Co., 256 U. S. 208, 41 S. Ct. 451, 65 L. Ed. 892; In re Federal Contracting Co. (C. C. A.) 212 F. 693; Connell Bros. Co. v. Diederichsen & Co. (C. C. A.) 213 F. 737.
Furthermore, we do not think that this view is tenable on the merits. The defendant has cited a number of cases in support of the proposition that, when an official of the government, acting within the scope of his authority, enters into a contract for the United States, he is not personally bound, but the United States is. There is no question about this statement as a correct proposition of law. When such an officer of the government as the Postmaster General, for example, in his official capacity, enters into a contract for the performance of governmental work, the interests of the government are so directly involved as to make the United States a necessary party and in effect the real party, although not named in the contract. Hodgson v. Dexter, 5 U. S. (1 Cranch) 345, 2 L. Ed. 130; Parks v. Ross, 52 U. S. (11 How.) 362, 13 L. Ed. 730; Sheets v. Seldon, 69 U. S. (2 Wall.) 177, 17 L. Ed. 822; Wells v. Roper, 246 U. S. 335, 38 S. Ct. 317, 62 L. Ed. 755. But the defendant here occupies a different position. The act under which it was created was a war measure. The act contemplated a corporation in which private persons might be stockholders, and which was to be organized like any business corporation under the laws of the District of Columbia. The meaning of incorporation is that the corporate entity is a person and as such is subject to the general rules of law. While the United States owns all the stock of the defendant corporation, it is controlled and managed by its own officers, who are responsible directly to it, and must be regarded as a separate entity, which may enter into contracts and sue and be sued. Manufacturers' Land & Improvement Co. v. United States Shipping Board Emergency Fleet Corporation et al. (C. C. A.) 284 F. 231; United States v. Strang et al., 254 U. S. 491, 41 S. Ct. 165, 65 L. Ed. 368; Sloan Shipyards v. U. S. Fleet Corporation, 258 U. S. 549, 42 S. Ct. 386, 66 L. Ed. 762. The fact that the defendant is an instrumentality of the sovereign does not, on the one hand, exempt it from suit, nor, on the other, subject the sovereign to suit without its express consent.
The defendant says that, if the contract is not the sole contract of the United States, it is...
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