Yeskel v. United States, 5853.

• Decision Date: 06 March 1940
• Docket Number: No. 5853.,5853.
• Citation: 31 F. Supp. 956
• Parties: YESKEL v. UNITED STATES et al.
• Court: U.S. District Court — District of New Jersey

31 F. Supp. 956

YESKEL v. UNITED STATES et al.

No. 5853.

District Court, D. New Jersey.

March 6, 1940.

Schotland, Harrison & Schotland, of Newark, N. J., for plaintiff.

John J. Quinn, U. S. Atty., of Trenton, N. J., and Hubert J. Harrington, Asst. U. S. Atty., of Newark, N. J., for defendant United States.

Glickenhaus & Glickenhaus, of Newark, N. J., for defendant National Surety Corporation.

FAKE, District Judge.

Plaintiff seeks to obtain a declaratory judgment against the United States of America and the National Surety Corporation.

It appears from the allegations of the complaint that on or about the 21st of September, 1935, the plaintiff submitted a bid, in writing, to the Paymaster General of the United States Navy by which he agreed that if he became the successful bidder he would furnish the Navy Department with certain cloths at certain prices, the first delivery to be made within five days after the date of the contract. Plaintiff's bid was accepted, and by the terms of the bid it was provided that plaintiff would, if required, execute the form of government contract known as Standard Form No. 32 within sixty days after the date of the opening of the bids which occurred on September 24, 1935. The Navy Department did not present such a contract to the plaintiff until January 3, 1936 and the same was dated back to October 8, 1935 providing for shipments to be made on dates prior to the date of presentation of the contract for signature, with which provisions as to shipment plaintiff could not comply, since certain of the dates of delivery had then long since elapsed. Plaintiff requested that the date of the contract be extended to the date when it was presented to plaintiff for execution, but the Navy Department refused to do so. Plaintiff therefore could not and did not perform the said contract. On March 20, 1936 the Navy Department notified plaintiff that it had purchased the materials covered by plaintiff's bid, in the open market at a sum of $3,597 in excess of plaintiff's bid and demanded said sum from plaintiff.

On September 24, 1935, defendant National Surety Corporation entered into a bond in favor of the United States of America guaranteeing that if plaintiff's bid was accepted, plaintiff would within ten days after notice execute a contract for the same and give a performance bond to cover it. Under his agreement with the Surety Corporation, plaintiff agreed to deposit with the Surety Corporation funds in such amount as they should deem necessary as a reserve in the event that the United States of America should make any claim against the plaintiff on its bid. The United States of America served notice of its claim against plaintiff and demanded payment from the Surety Corporation. The Surety Corporation then instituted a suit in the Court of Chancery of New Jersey to compel plaintiff to deposit with it the sum of $3,597 by reason of said Government claim, and a decree was entered in said suit ordering plaintiff to make such deposit, the same to remain with the Surety Corporation until the claim of the Government is adjudicated. The Government has refused to sue plaintiff on the claim and the Surety Corporation threatens to enforce its decree. Plaintiff seeks no money judgment but prays for a decree here declaring the rights of the parties to the subject matter in controversy and appropriate injunctions.

The defendant, United States Government, moves to dismiss the complaint upon four grounds: (1) Upon the ground that the complaint fails to disclose a cause of action...