United States v. Freel

• Decision Date: 05 January 1900
• Docket Number: 78.
• Citation: 99 F. 237
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES v. FREEL.

99 F. 237

UNITED STATES v. FREEL.

No. 78.

United States Court of Appeals, Second Circuit.

January 5, 1900

In Error to the Circuit Court of the United States for the Eastern District of New York.

PRINCIPAL AND SURETY-- RELEASE OF SURETY-- ALTERATION OF CONTRACT.

Where a contract for the construction of a dry dock for the United States, 'to be located at such place on the water line of the navy yard, Brooklyn, N.Y., as shall be designated by the party of the second part,' had attached thereto and made a part thereof the plans and specifications for the dock reserving the right to the United States to make changes in such plans and specifications, the difference in the contract price on account of any such changes to be determined as therein provided, and contained a further provision that 'no change herein provided for shall in any manner affect the validity of this contract,' a supplemental contract changing the location of the entire dry dock from the water line, as fixed by the initial contract, to a point 64 feet inland, and requiring the contractor to make all necessary excavations and connections with the water at an increased payment of $5,000, and with an increased time for performance, was not within the terms of such provision, but was a change in substance of the contract, not contemplated thereby, which released the sureties on the contractor's bond, who did not assent thereto, from liability.

George H. Pettitt, for plaintiff in error.

Howard A. Taylor and James R. Soley, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the plaintiff in the court below to review a judgment for the defendant, Freel, as executor of Edward J Freel, entered upon a demurrer to the complaint. (C.C.) 92 F 299. The action was brought to recover upon a bond executed to the plaintiff by Edward J. Freel as surety for one Gillies, whereby Freel, as such surety, undertook that Gillies would well and truly perform the stipulations of a contract of even date therewith. It was averred in the complaint that Gillies entered upon the performance of the contract, but thereafter failed and neglected to fulfill it, to the damage of the plaintiff.

The contract referred to in the bond, and bearing the same date, was executed by Gillies as party of the first part and the United States as party of the second part, and was one by which Gillies undertook to construct a dry dock for the United States at the price of $412,000. The contract contained, among others, the following clauses:

'First. The contractor will, within twenty days after he has been tendered the possession and the occupancy of the site by the party of the second part, commence, and within twenty-seven calendar months from such date construct and complete, ready to receive vessels, a timber dry dock, to be located at such place on the water line or the navy yard, Brooklyn, N.Y., as shall be designated by the party of the second part.'

Seventh. The construction of the said dry dock and its accessories and appurtenances herein contracted for shall conform in all respects to and with the plans and specifications aforesaid which plans and specifications are hereto annexed, and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorporated herein. No omission of the plans or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect in accordance with the true intent and meaning hereof shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the contractor, and all claims for extra compensation by reason of or for or on account of such extra performance are hereby, and in consideration of the premises, expressly waived; and it is hereby further provided, and this contract is upon the express condition, that the said plans and specifications shall not be changed in any respect except upon the written order of the bureau of yards and docks; and that if at any time it shall be found advantageous or necessary to make any change, alteration, or...