This Court may not draw an inference of bad faith on the part of
a government inspector unless the findings are so clear on the
subject as to take the inference beyond controversy.
It is the duty of the Court of Claims in dealing with the
question of bad faith on the part of a government inspector to
explicitly find the facts in regard to that subject.
The Court of Claims should find as a fact whether or not
complaints were made to the proper officers as to improper conduct
on the part of subordinates, and if made, when and what action was
taken thereon.
Page 220 U. S. 492
Where proper finding are not made by the Court of Claims on
specific matters to enable this Court to properly review the
judgment, the record will be remanded to that court for additional
findings as to such matters,
United states v.
Adams, 9 Wall. 661, and so ordered in this case,
with instructions to return to this Court with all convenient
speed.
45 Ct.Cl. 621 remanded with instructions.
The facts, which involve the construction of a contract for
public works with the United States and the validity of claims made
by the contractor thereunder, are stated in the opinion.
MR. CHIEF JUSTICE White delivered the opinion of the Court.
These are cross-appeals from a judgment entered by the Court of
Claims against the United States and in favor of Henry C. Ripley.
The claim of Ripley was based upon a written contract between
himself and the United States, executed on April 6, 1903,
containing numerous stipulations, by which in substance Ripley
agreed to furnish materials for and do certain jetty work at
Aransas Pass, Texas, authorized by an Act approved June 13, 1902,
32 Stat. 340, c. 1078.
In his amended petition, Ripley set forth numerous items of
damage, aggregating $45,930, which it was asserted resulted from
violations by the United States of the terms of the contract.
Judgment was entered against the United States for $14,732.05. 45
Ct.Cl. 621. Ripley prosecuted this appeal in order to obtain an
increased allowance,
Page 220 U. S. 493
while the United States, by its cross-appeal, seeks a reversal
of the judgment.
Among other things it was provided in paragraph 61 of the
specifications as follows:
"Between Stations 20 and 27, and from the vicinity of Station
55, seawards, the method of construction shall be as follows: a
mound of small riprap shall first be built up over and around the
existing structure to about one foot elevation. When, in the
judgment of the U.S. agent in charge, this mound has become
sufficiently consolidated, its gaps and interstices shall be filled
and its crest leveled with small riprap, generally one-man stone.
Large blocks shall then be bedded in crest of mound in two rows,
breaking joints with their longest dimensions parallel to the axis
of jetty in such manner that voids under the placed blocks will be
at a minimum, and side slopes and remainder of crest shall then be
covered with large riprap."
A large sum was demanded by Ripley, upon the contention that the
completion of the work was greatly delayed owing to the fact
that
"on the portion of the line where no foundation had previously
been laid, and where petitioner therefore placed the foundation
materials, said Captain Jadwin and the subordinate officers in
charge forbade and restrained petitioner from imposing the cap
blocks until long after the foundation, in their judgment and, in
fact had become sufficiently consolidated and they had caused the
crest to be leveled."
On this branch of the case, the Court of Claims found as
follows:
"
VII
"
"In the performance of said work, it was advantageous to
claimant to have his employees operate on the lee side of the
structure, where they could be protected from the action of the
rough seas, and for this purpose it was desirable that he be
allowed to impose the crest block on the top of the core as rapidly
as possible, so that the waves
Page 220 U. S. 494
could not pass over it and interfere with the workmen, and thus
prevent delay in the completion of the contract. The Aransas Pass
Harbor Company had laid the foundation for the entire jetty and for
2,800 feet -- that is, between Stations 27 and 55, the entire core
of the structure had been built up, and between Stations 27 and 40
the crest blocks had been laid. The foundation and the core thus
previously constructed were fully consolidated when the contract
with claimant was let."
"When claimant had completed from 100 to 200 feet of the core,
he requested from the inspector in charge permission to begin to
lay crest blocks, which was refused on the ground that the core had
not consolidated. By the end of December, 1903, claimant had
completed 400 to 500 feet of the core, and again he requested
permission to impose the crest blocks. Said inspector refused, and
continued to refuse permission to lay said crest blocks until May,
1904 at which time between 1,400 and 1,500 feet of the core had
been repaired and completed. Commencing in October, 1903, when
about 300 feet of the core had been built up to the required
elevation, slope stones were laid on the jetty, which afforded some
protection from the action of the waves to the riprap already
constructed, but not as much protection as the crest blocks would
have afforded. When claimant was thus laying the slope stones, and
throughout December, 1903, and January, February, March, and April,
1904, it was manifest that large parts of the work done by him had
fully settled and consolidated. If claimant had been permitted to
lay the crest blocks from that time on, as the work progressed,
there would have resulted an additional protection which would have
enabled him to work sixty days more than he did between that time
and May 7, 1904, date the first crest blocks were laid. When
claimant was seeking permission to lay the crest blocks as
aforesaid, the inspector, in refusing same, alleged as a reason
that the jetty had not had sufficient time to
Page 220 U. S. 495
consolidate, and it does not appear that any other reason was at
any time given by said inspector for so refusing."
In the brief of counsel for Ripley it is said:
"This Court will perceive that, with the exception of two
matters of minor importance, to which we will hereafter briefly
refer, the main complaint involved in this appeal is the erroneous
application of Finding VII to the judgment. The Court of Claims, in
Finding VII, has found that, as early as October, 1903, claimant
was endeavoring to obtain permission to lay the crest blocks on the
core of which 'it was manifest that large parts . . . had fully
settled and consolidated.' 'Manifest,' according to all the
dictionaries, means 'clear,' 'plain,' 'evident to the eye and
understanding.' So that, if it was 'manifest' that the core had
fully settled and consolidated, it naturally follows that this was
known to the inspector, and that the denial of the permission to
lay the crest blocks (which the claimant had the right to do upon
the consolidation of the core) was such a fraud as entitles him to
recover the damages he has thereby suffered. The claimant's right
to recover could not be more complete had the Court of Claims found
in so many words that the decisions of the government's officer
were grossly fraudulent and made in bad faith. Apparently the Court
of Claims, with delicate considerations for the feelings of the
engineer department, chose to employ different, though just as
effective, language. But for the denial of this permission to lay
these crest blocks, they would have been laid, and thus
substantially all of the delay in the completion of the contract
would have been avoided."
We are of opinion, however, that, while it may be open to
conjecture that the word "manifest" as used by the court in its
finding is susceptible of the broad significance which the argument
thus imputes to it, we do not think such meaning is so clear and
free from doubt as to justify us in concluding that there was bad
faith on the part of the government inspector in charge of the
work. We say
Page 220 U. S. 496
this because it is certain that we may not draw the inference of
bad faith unless the findings are so clear on the subject as to
cause such inference to be plain beyond controversy. It follows,
therefore, that the finding below on the subject of the knowledge
and good faith of the inspector is so incomplete and inconclusive
as to render it impossible for us to decide the cause without grave
risk of doing wrong to the plaintiff or serious injury to the
government. It was the clear duty of the court below, in dealing
with the question of bad faith on the part of the government
inspector, not to leave that subject dependent upon an ambiguous
expression, susceptible of being construed one way or the other,
but to explicitly find whether or not that which it states was
manifest was or not known to the inspector, and whether that
subordinate official acted in good or bad faith in the various
refusals recited as having been made to the laying of the crest
blocks and the reasons assigned for those refusals. Further, the
court should have found as a fact whether or not complaint was made
by the claimant, either to the engineer officer in charge or to the
chief of engineers, as to the action of the subordinate inspector
in refusing the requested permission, and, if complaint was made,
when it was made, and what action was taken thereon.
Following the approved practice (
United
States v. Adams, 9 Wall. 661), the following order
will be made:
Ordered: that the record in this case be remanded to the Court
of Claims, and that said court be instructed to find and certify to
this Court, as matters of fact, in addition to the facts found and
certified in said record:
First. Whether, when the claimant was laying the slope stones,
and during the months of December, 1903, and January, February,
March, and April, 1904, as recited in Finding VII, the inspector in
charge knew "that large parts of the work done by the claimant had
fully settled and consolidated."
Page 220 U. S. 497
Second. Whether, in the various refusals to permit the laying of
crest blocks, stated in Finding VII, the inspector in charge acted
in good faith.
Third. Whether at any time the claimant notified the engineer
officer in charge or the chief of engineers that the inspector in
charge wrongfully refused to permit the laying of the crest blocks,
and if such notice was given, whether it was oral or written, when
the notice or notices were given, and what action, if any, was
taken by such superior officer.
And it is further ordered that the said record, with the said
additional findings of fact, be returned to this Court with all
convenient speed.