1. Stipulations by the United States, in a construction
contract, to furnish a right of way for ingress and egress to and
from the places where materials to be furnished by the United
States were stored and the place of their use in the work
construed, in relation to other facts, as allowing the
contractor to use a right of way on which was a railroad, but not
as obliging the government to put the railroad in repair. P.
271 U. S.
122.
2. Damages will not be awarded for a slight delay in starting
work under a contract, not satisfactorily shown to have been caused
wholly by the government, where the contractor made no protest at
the time and no claim until nine months later. P.
271 U. S. 124.
59 Ct.Cls. 582 affirmed.
Appeal from a judgment of the Court of Claims rejecting claims
under a building contract.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The appellant sued the United States in the Court of Claims for
$30,697.73 for breach of a contract made by it with the United
States for certain construction work at the government nitrate
plant No. 2 at Muscle Shoals,
Page 271 U. S. 122
Alabama. The work was done and the contract price paid. The
amount here sued for was made up of nine claims for damages for
breaches and extras. The Court of Claims found against the claimant
on every cause of action alleged. Appeal to this Court relates to
only two of them.
The first is for $3,059.65, and is based on the alleged failure
of the United States to furnish a right of way as stipulated in the
contract for use in hauling materials to the place of
construction.
After providing that the contractor should furnish certain
materials for construction, the contract read:
"The United States of America to furnish at its present location
on the reservation at United States nitrate plant No. 2 all other
construction materials, the contractor to perform all necessary
labor required in transporting such materials to the proper place
of for use in construction, the United States of America at all
times to furnish the necessary right of way for ingress and egress
to the place of present storage of such materials and the place of
ultimate use in construction."
"The United States government further agrees to furnish to the
contractor, for the purpose of transporting materials and
performing the necessary construction work, such tools and
equipment, including locomotives, flat cars, dump cars, hoisting
engines, locomotive cranes, steam shovels, concrete mixers, air
compressors, automobile trucks, clam shell buckets, etc., as are
now the property of the United States government and available at
United States nitrate plant No. 2, and in such quantities as in the
discretion of the constructing quartermaster may be reasonably
necessary for such use in construction, and further may be
reasonably furnished by the United States government, without
material detriment or inconvenience to the United States
government. The contractor to accept such equipment as is, and to
assume all responsibility
Page 271 U. S. 123
for placing such equipment in first-class working condition, and
the proper care and maintenance of such equipment, from the time it
is turned over to him by the constructing quartermaster."
Finding No. 2 by the court is:
"The right of way furnished by the United States consisted of
railroad tracks running from the site of the work to the storage
yards. These tracks were used by others, and were not in good
condition when the plaintiff submitted its bid, nor were they in
any worse condition when it began its work under the contract. The
United States did not keep the tracks in good condition during the
performance of the contract, but turned them over to the plaintiff
for its use with the necessary rolling stock. The plaintiff
expended the sum of $705.50 for labor in repairing the tracks and
$700.66 for making repairs to equipment damaged by reason of the
defective tracks; it also expended the further sum of $1,653.49 for
labor in connection with derailments."
What the government agreed to furnish was a right of way, not a
railroad for transportation. It agreed that ingress and egress by
this right of way should at all times during the performance of the
contract, be given the contractor, and such ingress and egress were
afforded it. The defective track on the right of way was evident to
the contractor when it made the contract, and the reasonable
construction of the contract is that the contractor, in order to
avail itself of the right of way, with constant ingress and egress,
took over the track as it was as part of the equipment for
transportation, just as he did the locomotive and cars, and as it
found it, with sole responsibility for placing it in working
condition and maintaining it for its use. It is clear that the
Court of Claims was right in rejecting this claim.
The other claim was for damages for delay by the government in
arranging for the contractor's start upon the
Page 271 U. S. 124
work. The contract provided that the work should be commenced on
June 10, 1920, and, by that time, the contractor had its executive
office force at the plant. The contractor was able to begin work on
June 13. The delay resulted from the inability to get material
issued to the contractor. The actual amount expended for salary and
services to the persons kept waiting was $360. No complaint and no
protest were made by the contractor at the time, and no claim was
filed by the contractor until March 14, 1921. The holding of the
Court of Claims was that, because it did not satisfactorily appear
that the delay was due wholly to the government, and in view of the
absence of a claim or protest for nine months thereafter, the claim
should be rejected. We concur in this.
Judgment affirmed.