United States v. Croft-Mullins Electric Company

• Decision Date: 03 August 1964
• Docket Number: No. 21116.,21116.
• Citation: 333 F.2d 772
• Parties: UNITED STATES of America, Appellant, v. CROFT-MULLINS ELECTRIC COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

333 F.2d 772 (1964)

UNITED STATES of America, Appellant, v. CROFT-MULLINS ELECTRIC COMPANY, Inc., Appellee.

No. 21116.

United States Court of Appeals Fifth Circuit.

June 19, 1964.

Rehearing Denied August 3, 1964.

Alan S. Rosenthal, David L. Rose, Robert V. Zener, Attys., Dept. of Justice Washington, D. C., for appellant.

F. Robert Raley, Macon, Ga., for appellee.

Before TUTTLE, Chief Judge, and POPE^* and BROWN, Circuit Judges.

POPE, Circuit Judge.

This was an action brought by the appellee Croft-Mullins Electric Company, Inc., against the United States alleging the execution of a contract between the parties whereby Croft-Mullins agreed to perform certain construction work for the rehabilitation of airfield lighting at an air station at Pensacola, Florida, for which the Government undertook to pay the contractor a stipulated sum.

It was alleged that by the contract the Government undertook to furnish certain materials required for the completion of the job; that the Government willfully failed to fulfill its obligation to furnish material and "neglected its duty in connection with the furnishing of the property it was under contractual obligation to furnish" to plaintiff. In this respect it was alleged the Government was guilty of negligence and misconduct which delayed the contractor's performance causing Croft-Mullins damages to the extent of $9914.98, for which sum it prayed judgment. Jurisdiction was stated to be founded upon that portion of the Tucker Act set forth in Title 28 § 1346 referring to certain claims against the United States not exceeding $10,000.¹

After answer filed the case was tried to the court without a jury and the court made and filed its findings and conclusions determining that the plaintiff was entitled to judgment in the sum of $9380.44. Judgment was entered accordingly.

The contract upon which suit was brought was executed in the form prescribed by GSA regulations for contracts for the construction, alteration or repair of public buildings or works. It was dated April 26, 1957, and provided that the work should be started May 1, 1957, and completed October 28, 1957. Plaintiff based its claim for damages upon an alleged failure of the Government to furnish materials it was to supply for the job within the time which plaintiff asserted the Government had agreed to supply them. After completion of the contract plaintiff sought an administrative award of damages which the contractor claimed it had suffered. This was denied and this action followed.

The court found that "by the exercise of ordinary and reasonable diligence on the part of the Government, it could have procured all of the items as to which there were delayed deliveries"; that had such ordinary care and diligence been exercised, "all of the items which the contract obligated it to furnish", could have been obtained and furnished on schedule. The court found that "the Government was negligent in failing to deliver all delinquent items, and was also negligent in encouraging plaintiff to maintain its forces on the job by promising immediate and early deliveries without knowing that it would be able to make good on its promises of early delivery."

The court found that although work was to commence under the contract on May 1, 1957, and although the contract contemplated that the United States would furnish material and equipment for the job, the furnishing of that material was delayed until seven months after the original scheduled date of the completion of the project during which time plaintiff had repeated requests for the materials which the Government "was obligated under the contract to furnish."

The record shows that pursuant to the provision of the contract which provided that in case of delays due to causes beyond the control and without the fault of the contractor, including acts of the Government, the time for completing the work could be extended; such an extension was granted, and the completion date put forward to August 29, 1958.²

Since the action is founded upon a contract which it is alleged the Government has failed to perform, the primary question we must ask is what did the contract require with respect to the furnishing of materials and equipment by the Government. The provisions of the contract in that respect are found in § 52(b) which reads as follows: "The time for completion of the work under this contract is based upon the expectation that the Government-furnished property, if any, as set forth in the specification will be delivered to the Contractor at the times stated, or, if not so stated, in sufficient time to enable the Contractor to perform within the time for completion of the contract work. In the event that the Government-furnished property is not delivered to the Contractor by such time or times, the provisions of Clause 5 respecting an extension of time shall apply. The Government, however, does not warrant or guarantee any time or times for delivery of such property. For any delay in delivery or failure to deliver any or all of the Government-furnished property, the Government shall not be liable to the Contractor for damages, loss of profits, or increased costs; provided, however, that the Contractor shall be entitled to an equitable adjustment, as provided in Clause 3 of this contract, for any change thereunder directing the Contractor to furnish any such property." Relevant to this provision is the provision of § 5(c) relating to delays in the work for which the contractor was not responsible and for causes including "acts of the Government". It provides in substance that in case of such delay, and receipt of notice thereof from the contractor, the Contracting Officer for the Government shall extend the time for completing the work when in his judgment the findings of fact justify such an extension. This portion of the contract is set forth in the margin.³

It will be noted that the portions of the contract here quoted fail to specify any time or times at which the Government was obligated to furnish these materials. In this respect the contract is as silent as was the contract dealt with in United States v. Foley Co., 329 U.S. 64, 66, 67 S.Ct. 154, 155, 91 L.Ed. 44, where the court noted "In no single word, clause, or sentence in the contract does the Government expressly covenant to make the runways available to respondent at any particular time."

It is plain that the trial court must have realized this for the court's conclusions from its findings disclose that it was relying upon an implied promise on the part of the Government to furnish the materials called for within the time specified for completion of the contract. The theory on which the court below proceeded was stated in its conclusions of law as follows: "Where the obligation of plaintiffs requires an expenditure of a large sum in preparation to perform it and a continuous readiness to perform, the law implies a duty of the other party (including the government) to do whatever is necessary to enable plaintiffs to comply with their promise or covenant. United States v. Speed, 8 Wall 77, 75 U. S. 77, 19 L.Ed. 449."⁴

We do not question but that if the contract here involved simply required Croft-Mullins to install equipment furnished by the Government according to stated specifications and within a stipulated time, it would be proper to construe the contract as containing an implied promise or undertaking by the Government to supply such equipment in time to permit Croft-Mullins to perform.⁵ However, the difficulty with the implication of such a promise on the part of the Government in this case is that § 52(b) of the formal written contract above quoted contains the specific provision: "The Government, however, does not warrant or guarantee any time or times for delivery of such property."

It is elementary that one cannot imply a term or promise in a contract which is inconsistent with an express term of the contract itself. Klebe v. United States, 263 U.S. 188, 192, 44 S.Ct. 58, 68 L.Ed. 244; Hawkins v. United States, 96 U.S. 689, 697, 24 L.Ed. 607.⁶

When we look about to find some promise, express or implied, binding the Government to furnish the material and equipment contemplated at some specific time or within some period we are confronted with the very explicit language above quoted that there is no such obligation. It is also to be noted that within the framework of this contract there was express provision as to the consequences of the delay due to the "acts of the Government". That provision is the one quoted above from § 5(c) to the effect that in that event the contractor shall be entitled to an extension of time for the completion of the contract. We cannot read the contract as providing for any other consequence of the delay on the part of the Government.⁷

The record discloses that Croft-Mullins received the benefits of this provision on two occasions. On December 9, 1957, the performance deadline was extended 59 days to December 26, 1957; and on July 18, 1958, a further extension of 246 calendar days was granted carrying the completion date to August 29, 1958, a total extension of 305 days.⁸

Much of the language used in the court's findings, as we have above indicated, refers to the failure of the Government to exercise ordinary care and reasonable diligence. Some of the language sounds as if the court were dealing with a tort claim based on the Federal Tort Claims Act. Of course the plaintiff did not predicate its action upon a tort claim which would have required an examination of the local state law (that of Florida) in order to determine whether the acts or neglects of the Government were committed "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (Title 28 § 1346(b).

If this were to be considered as a case arising under the Tort Claims Act it would meet...