United States v. Mitchell, 11395.
| Decision Date | 11 July 1939 |
| Docket Number | No. 11395.,11395. |
| Citation | 104 F.2d 343 |
| Parties | UNITED STATES v. MITCHELL. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Maurice W. Hibschman, Atty., Department of Justice, of Washington, D. C. (Maurice M. Milligan, U. S. Atty., and Richard K. Phelps, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for the United States.
J. R. Clagett, of Kansas City, Mo. (E. H. McVey and McVey & Randolph, all of Kansas City, Mo., on the brief), for appellee.
Before SANBORN and THOMAS, Circuit Judges, and SULLIVAN, District Judge.
This is an appeal from a judgment of the District Court in favor of the plaintiff and against the United States. The parties will be designated hereinafter as in the court below.
The suit was brought under the provisions of the Tucker Act, 28 U.S.C.A. § 41 (20). The petition is in two counts, one on an express contract, and one in quantum meruit, to recover the sum of $2,354.84, claimed as the balance due on the rental of certain equipment for use by the Soil Conservation Service of the Department of Agriculture. A general denial to each of the counts was interposed by the defendant.
A review of the evidence discloses that the Soil Conservation Service of the Department of Agriculture, during the year 1935, was engaged in the improvement of certain lands at or near Mankato, in the State of Kansas, and in connection with said work required the use of certain mechanical equipment, and caused to be sent out invitations for bids for the rental of the necessary equipment. The plaintiff was the owner of this type of equipment, and one L. C. Miller, doing business in the name of the Contractors Equipment Company, was the agent of and acted for him in those transactions under consideration
In a letter dated December 2, 1935, the Soil Conservation Service sent to the plaintiff's agent a copy of the invitation to bid and a bid form for the rental of a power shovel with drag-line boom and bucket, with skilled operator, for the period of "approximately three months from date of award to April 1, 1936". This phrase was incorporated in the specifications which were a part of the invitation for bids. The invitation for bids also contained a specification that payment would not be made for days the shovel was not in actual use, due to breakdowns or other causes within the control of the contractor. The plaintiff submitted a bid on the form prepared by the government and attached to the invitation, and in compliance with and subject to all the conditions of the said invitation for bids for the rental of the equipment, at a flat monthly rental rate of $1,000 per month. The bid was conditioned upon an acceptance by the government within ten days from the date of the opening of the bids, namely, December 16, 1935. This condition was also set out in the specifications. No award of the contract was made by the government within said ten days. Nothing further was done in reference to the matter until January 29, 1936, upon which date an agent of the Department of Agriculture inquired by telegram of the plaintiff's agent: "Is your bid still open for acceptance?" That telegram was answered by plaintiff's agent as follows: "* * * our bid still open for acceptance". Then, on January 30, 1936, the agent of the Department of Agriculture telegraphed plaintiff's agent, "Will you accept contract on basis of three months * * *", and plaintiff's agent on the same day answered this inquiry by telegram, stating, "* * * will accept contract award on basis of 3 months' period or more".
Thereafter, and on February 10, 1936, the original invitation, bid and acceptance form was returned to the plaintiff's agent with the acceptance of the bid attached thereto, signed by the Chief of the Division of Purchases, Department of Agriculture. These papers were received by the plaintiff's agent on or about February 12, 1936. A formal notice of acceptance of the proposal was given by the Chief of the Division of Purchases by letter dated February 10, 1936, but evidently released for mailing on February 18, 1936, and which was received by the plaintiff's agent on February 20th. This letter reads as follows:
Part of the equipment was shipped by the plaintiff to the location of the work on February 29, 1936, and the remaining equipment was received on the location about March 5, 1936. The plaintiff, shortly after March 10, 1936, caused an invoice to be mailed the defendant for $1,000, to cover the period from February 10 to March 10, 1936. The defendant returned this invoice with a letter advising that the machine was not properly equipped and put into operation until March 12th, and directed the submission of an invoice covering the period from March 12, 1936, to March 31, 1936. This was done by the plaintiff's agent, and the revised invoice evidenced a claim for $645.16 for that period, which amount was paid by the defendant. The equipment remained on the location job for a period of three months from and after March 10th, but there is nothing in the record which indicates that it was used thereon after March 31, 1936.
The trial court made no finding as to the quantum meruit count in the complaint, but found that the defendant accepted plaintiff's offer as modified by the exchange of telegrams between the parties, and that the invitation for bids, specifications, acceptance by the government, and proposal by the plaintiff through his agent, and the telegrams, constituted a contract between the parties for the rental of the equipment, together with an operator, for a period of three months from and after February 10, 1936, at a monthly rental for said equipment of $1,000. It determined that ...
To continue reading
Request your trial
-
United States v. Mississippi Valley Barge Line Co.
...Rule 52(a), F.R.Civ.Proc. Sun Insurance Office Limited of London v. Be-Mac Transport Co., 8 Cir., 132 F.2d 535, 536; United States v. Mitchell, 8 Cir., 104 F.2d 343, 346; Stokes v. United States, 2 Cir., 144 F.2d 82, 85. At common law a common carrier is liable for damage occurring during t......
- United States v. Robinson, 16
-
Shultz v. Manufacturers & Traders Trust Co.
...___; Kuhn v. Princess Lida, 3 Cir., 119 F.2d 704, 705, 706; United States v. South Georgia R. Co., 5 Cir., 107 F.2d 3; United States v. Mitchell, 8 Cir., 104 F.2d 343, 346; Midwood Associates, Inc., v. Com'r, 2 Cir., 115 F.2d 871, 872; Com'r v. Buck, 2 Cir., 120 F.2d 775, 779; Kycoga Land C......
-
United States v. Gallagher
...42 F.Supp. 636. See footnote 9. 12 See Carriso v. United States and other cases, supra, applying Rule 73(a). See, also, United States v. Mitchell, 8 Cir., 104 F.2d 343; United States v. Borg-Warner Corp., 7 Cir., 108 F.2d 424; United States v. Anderson, 7 Cir., 108 F.2d 475; Smith v. United......