United States v. John Kerns Const. Co.

• Decision Date: 20 July 1943
• Docket Number: No. 618.,618.
• Citation: 50 F. Supp. 692
• Parties: UNITED STATES ex rel. GILLIOZ v. JOHN KERNS CONST. CO. et al.
• Court: U.S. District Court — Eastern District of Arkansas

50 F. Supp. 692

UNITED STATES ex rel. GILLIOZ v. JOHN KERNS CONST. CO. et al.

No. 618.

District Court, E. D. Arkansas, W. D.

July 20, 1943.

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COPYRIGHT MATERIAL OMITTED

Buzbee, Harrison & Wright, of Little Rock, Ark., for plaintiff.

John A. Sherrill and Howard Cockrill, both of Little Rock, Ark., for defendants.

TRIMBLE, District Judge (after stating the facts).

The right of action and the jurisdiction of this Court in this case are conferred by a federal statute, but the construction of the federal statute is not involved, nor is the United States a real party in interest; hence the questions of substantive law arising herein are controlled by the laws of the State of Arkansas, which are both lex loci contractus and lex fori. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487, and cases following that decision. Even though the parties must rely upon a federal statute for their remedies, this does not change the above rule of law. Dysart v. United States, 8 Cir., 95 F.2d 652; Ervin v. Texas Co., 8 Cir., 97 F.2d 806 (the last case arising in Arkansas), and United States v. Durrance, 5 Cir., 101 F. 2d 109.

The well established principle of law that strict performance of a written contract may be waived by parol agreement of the parties needs no citation of authorities to sustain it.

Counsel have cited Tidwell v. Southern Engine & Boiler Works, 87 Ark. 52, 112 S.W. 152; Grayling Lumber Co. v. Hemmingway, 128 Ark. 535, 195 S.W. 508, and American Mortg. Co. v. Williams, 103 Ark. 484, 145 S.W. 234. While the Court agrees with the principle announced in those cases, they are not in point here, for the question of consideration for the waiver or modification was not there in issue, as here. The other cases cited in plaintiff's brief are not in point on the issue of consideration for the waiver of performance upon which he relies. Certainly strict performance of a contract may be waived either expressly or by conduct, but such waiver is uninforcible when there is no consideration therefor.

This case falls within the principle announced in the decision of the Supreme Court of Arkansas in the case of Feldman v. Fox, 112 Ark. 223, 164 S.W. 766. At page 226 of 112 Ark., 164 S.W. at page 767, that Court said: "If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter of the original one." Citing Thompson v. Robinson, 34 Ark. 44. * * * "Now, the parties to a contract may, by new agreement, change the terms thereof, and the mutual undertakings will support the new contract * * *; but in the present case there were no additional undertakings on the part of appellee. He was merely to perform the terms of his original contract, and gave up nothing as a consideration for the alleged agreement of appellant to guarantee the price of the cotton crop."

This case has not been overruled.

It will not improve plaintiff's position should the Court apply the Federal law instead of the State law. In Cuneo Press v. Claybourn Corporation, 7 Cir., 90 F.2d 233, 235, the Court said: "Modification of a contract by subsequent agreement is subject to the rules governing all contracts. Consequently any promise therein contained to do that which one is already obligated to do confers no advantage on the promisee, imposes no detriment on the promisor and is without consideration. 1 Williston on Contracts (1936) § 130; 1 Page on Contracts, § 589; Alaska Packers' Ass'n v. Domenico, 9 Cir., 117 F. 99; Empire State Surety Co. v. Hanson, 8 Cir., 184 F. 58; Frankfurt-Barnett Co. v. William Prym Co., 2 Cir., 237 F. 21; In re American Range & Foundry Co., D.C., 14 F.2d 466; Brunswig Grain Co. v. Anchor Grain Co., 5 Cir., 10 F.2d 304; G. S. Johnson Co. v. Nevada Packard Mines Co., D. C., 272 F. 291. In other words, consideration is necessary to support a waiver or release of rights whether accomplished by an original instrument or by a modification of an existing contract. Frankfurt-Barnett Co. v. Prym Co., 2 Cir., 237 F. 21; Empire State Surety Co. v. Hanson, 8 Cir., 184 F. 58; Weed v. Spears, 193 N.Y. 289, 86 N.E. 10; Goldsborough v. Gable, 140 Ill. 269, 29 N.E. 722, 15 L.R.A. 294." See, also, Hasler v. West India S. S. Co., 2 Cir., 212 F. 862, 867; Gleason v. McDonald, 6 Cir., 103 F.2d 837, 838; Nash v. Towne, 72 U.S. 689, 18 L.Ed. 527; Fisher v. Underwriters at Lloyd's London, 7 Cir., 115 F.2d 641.

A careful search of the brief and argument of plaintiff fails to disclose where he has distinguished the case of Feldman v. Fox, supra, from the case at bar, or has pointed out any consideration to the contractor or where the subcontractor has performed any work or furnished any material which he was not already bound to perform and furnish under the terms of his contract with the contractor. In view of this holding, the Court will not pass upon the admissibility of parole evidence to establish the purported agreement.

The plaintiff earnestly contends that the subcontractor was prevented from performing his contract by the conduct of the contractor and of the owner's engineers. However, in his briefs and in the evidence before the Court, the two matters...