United States v. Hurley

• Citation: 182 F. 776
• Decision Date: 12 October 1910
• Docket Number: 3,285.
• Parties: UNITED STATES v. HURLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F. 776

UNITED STATES v. HURLEY.

No. 3,285.

United States Court of Appeals, Eighth Circuit.

October 12, 1910

Charles C. Houpt, U.S. Atty.

Walter L. Chapin, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and REED, District Judge.

HOOK Circuit Judge.

In an action by Joseph A. Hurley against the United States to recover a sum of money conceded to have been earned, the latter, under section 6 of the Tucker act (Act March 3, 1887 c. 359, 24 Stat. 506 (U.S. Comp. St. 1901, p. 755)), set up a counterclaim for damages for failure of Hurley to perform properly a construction contract, the work under which had been completed, accepted, and paid for more than four years before. It was alleged by the government that the army officer authorized to supervise the performance of the contract 'carelessly, negligently, and wrongfully' permitted Hurley to do various things contrary to the contract, and to omit others provided for therein, and approved the work, and certified that it had been duly performed, thereby misleading its other officers and agents and inducing them to accept what had been done and to pay the full contract price. The trial court sustained a demurrer to the counterclaim and rendered judgment for Hurley.

It has frequently been decided by the Supreme Court and by this court that where the question of the due performance of a contract is committed to a third person, with a provision that his decision shall be final, what he does within the scope of the authority so conferred is conclusive upon both of the contracting parties in the absence of fraud or such gross mistake as would imply fraud or a failure to exercise an honest judgment. In the case at bar, however, it was not alleged by the government that the certificate of the officer in charge, upon which Hurley was paid the contract price, was the result of fraud or such gross mistake. The question in the case is, therefore, reduced to this: Was it provided in the contract and the specifications, which were part of it that the decision of the officer should be final or conclusive?

We find the following provisions in the contract and specifications The work is to be executed under the direction and to the satisfaction of the United States officer in charge and in conformity with his instructions. The materials, labor, etc shall accord with the true intent and meaning of the drawings and specifications, of which intent and meaning the officer in charge shall be the interpreter. The officer in charge may require the contractor to dismiss such workmen as he deems incompetent or careless, and is to have at all times access to the work, which is to be entirely under his control. In all cases where an article is mentioned, followed by the words 'best quality,' 'approved quality,' or 'other equally good,' etc., the officer in charge shall decide what is the best and most suitable article to use. Additional detail drawings will be furnished of such portions of the work as the officer in charge may desire to explain more fully, and work not constructed according to the details so furnished, except by permission expressly obtained, must be taken down and replaced with other work, in accordance with them, at the contractor's expense, if so directed by the officer in charge. The contractor must understand that the materials and labor, at any and all times during the progress of the work and before final acceptance and payment, shall be subject to inspection of the officer in charge, or other authorized agent of the government, with full right to accept or reject any part thereof, and if he does not remedy defective or unsatisfactory materials or work and remove condemned materials the officer in charge may have the same done at the contractor's...