United States v. Howard Foley Co
| Decision Date | 25 November 1946 |
| Docket Number | No. 50,50 |
| Parties | UNITED STATES v. HOWARD P. FOLEY CO., Inc |
| Court | U.S. Supreme Court |
Mr.A. Devitt Vaneck, of Washington, D.C., for petitioner.
Mr. Alexander Heron, of Washington, D.C., for respondent.
The Court of Claims rendered a judgment for the respondent and against the Government for an asserted breach of a construction contract. Ct.Cl., 63 F.Supp. 209, 215. We granted the Government's petition for certiorari which alleged that the Court of Claims' decision was in direct conflict with Crook v. United States, 270 U.S. 4, 46 S.Ct. 184, 70 L.Ed. 438 and United States v. Rice, 317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53. We hold that the Government's contention is correct.
The respondent, an electrical contractor, agreed for a fixed fee to supply the materials for and install a field lighting system at the National Airport, Gravelly Point, Virg nia, then under construction. The agreement was embodied in a standard form Government contract. Respondent promised to complete the job within 120 days after notice to proceed. In fact the job was not finished until 277 days after notice was given. The delay came about in this way. The site of the airport was being built up from under water by a fast but then unique method of hydraulic dredging. As portions of the earth base for the runways and taxiways settled, they were to be paved and the shoulders 'rough-graded.' As segments of this work were finished, respondent was to move in, wire them, and install the lighting fixtures. The dredging took longer than Government engineers had anticipated, because some of the dredged soil, proving to be too unstable for runways and taxiways, had to be replaced. This in turn delayed completion of the runway sections and until each was finished the lighting equipment for each segment could not be installed. The 157 days delay resulted from the consequently long and irregular intervals between the times when these segments were made available to respondent to do its job. But for these delays, respondent apparently could have finished its work in 120 days.
The Court of Claims considered that the Government breached its contract by failing to make the runways available in time for respondent to do its work within 120 days. The judgment against the Government was for certain overhead and administrative expenses which respondent incurred during the consequent period of delay.1
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. Cf. United States v. Blair, 321 U.S. 730, 733, 734, 64 S.Ct. 820, 822, 88 L.Ed. 1039. It is suggested that the obligation of respondent to complete the job in 120 days can be inverted into a promise by the Government not to cause performance to be delayed beyond that time by its negligence. But even if this provision stand- ing alone could be stretched to mean that the Government obligated itself to exercise the highest degree of diligence and the utmost good faith in efforts to make the runways promptly available, the facts of this case would show no breach of such an undertaking. For the Court of Claims found that the Government's representatives did this work 'with great, if not unusual, diligence,' and that 'no fault is or can be attributed to them.' Consequently, the Government cannot be held liable unless the contract can be interpreted to imply an unqualified warranty to make the runways promptly available.
We can find no such warranty if we are to be consistent with our Crook and Rice decisions, supra. The pertinent provisions in the instant contract are, in every respect here material, substantially the same as those which were held in the former cases to impose no obligation on the Government to pay damages for delay....
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