A. contracted to cut, furnish, and deliver in Washington City,
at specified rates, granite to the United States at such times as
it might require and to furnish such number of men as it might deem
necessary to the proper prosecution of the work. The full cost of
their labor, increased by fifteen percent, as also to be paid to
him by the United States. For every day that he was in default he
was to forfeit and pay $100.
Held that there was no
privity between they United States and the men employed by him in
the execution of his contract.
The facts are stated in the opinion of the Court.
The court below rendered judgment
pro forma for the
claimant.
Page 96 U. S. 422
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an appeal from the Court of Claims. The petition of the
appellee alleges that he worked the number of days specified for
the United States, ten hours a day when he was required by law to
work only eight hours a day; that he was paid at the rate of ten
hours a day; and he claims further compensation for such number of
days as the additional two hours aggregated will make, computing a
day's work at eight hours instead of ten hours.
This is the basis and extent of the claim. The United States,
among other defenses, allege that the appellee was never employed
by them, nor on their behalf.
The case is fully set forth in the findings of the Court of
Claims. A brief statement of the facts will be sufficient for the
purposes of this opinion.
The United States contracted with Ralph Ordway to furnish, from
certain quarries near Richmond, Va., granite, to be delivered in
Washington City. He was to be paid at specified prices.
They contracted with him, further, "to furnish all the labor,
tools, and materials necessary to cut, dress, and box, at the
quarry or quarries, all the granite, in such manner" as should be
directed. The United States were to pay him "the full cost of said
labor, tools, and materials, and also the insurance on the granite,
increased by fifteen percent on such cost."
The contract contained this further clause:
"And the party of the second part [Ordway] further agrees to
furnish such number of men as may be deemed necessary for the
proper prosecution of the work by the party of the first part [the
United States], and the party of the second part further agrees to
cut as well as furnished and deliver all the granite herein
contracted for, at such times as may be required by the party of
the first part, and in default thereof to forfeit and pay to the
United States the sum of one hundred (100) dollars
per
diem for each and every day thereafter, until the final
delivery of the same, which sum shall be deducted from any moneys
which may be due him, and if that amount be not due him, then his
bondsmen are to be held liable for any deficiency, to be recovered
of them by suit in the name of the United States. "
Page 96 U. S. 423
The larger the amount of the cost, the larger would be the
amount to be paid Ordway. His interests and those of the United
States were, in this particular, therefore, in direct antagonism.
Hence the United States employed and paid a superintendent and
clerk, who were to be present all the time. The former was to see
that everything was done according to the contract and that no
frauds were committed on the government. It was also his duty, at
the end of every month, to certify Ordway's accounts for his
expenditures during that time. The clerk was his assistant, and
subject to his directions. The employees were engaged and paid as
follows: when a man was set to work, Ordway's foreman gave his name
to the clerk of the superintendent, who put it on the time book.
The foreman put the price opposite the name. The clerk kept a
ledger account, made out a payroll at the end of each month, and
had the men sign it. It was approved by the superintendent and
delivered to Ordway, and he received the amount from the United
States, with the fifteen percent added, according to the contract.
He then paid the men, according to the payroll and their receipts
thereon. The appellee was employed and paid in this way.
It is clear that there was no privity between the appellee and
the United States. Ordway employed him and was to pay him and did
pay him. The United States had no interest in the rate or amount
paid save that the sum so paid, with fifteen percent in addition,
was the measure of the amount to be paid to Ordway. The fact that
Ordway procured the appellee's receipts, presented his own vouchers
to the government, and received his pay before paying his hands, is
immaterial as regards the rights of the parties. It was a
convenience to the contractor, and safe for government. The hands
trusted the former, and if he had failed to pay them, the loss
would have been theirs. The government having the contractor's
receipts, it could not have fallen upon the United States. The
acknowledgment of payment by the employees, before getting their
money, was wholly their own concern. Ordway was bound by his
contract to have the work done as specified, and upon every default
he was liable for a penalty of $100 a day until he should fulfill
his undertaking. This stipulation is incongruous with the
Page 96 U. S. 424
idea of his being an agent, and not a contractor. The latter was
his relation to the government. Between himself and the appellee it
was simply that of employer and employee.
The mode, manner, and rate of Ordway's compensation was a matter
between him and the United States, and was one with which the
appellee had nothing to do. Hence, in this case it can in nowise
affect the rights of the parties. The appellee stands upon exactly
the same ground as the employees of any other contractor with the
government. It follows that he can have no rightful claim against
the appellant. This is conclusive against him. It is therefore
unnecessary to consider the other points of defense insisted upon
by the United States.
Judgment reversed and the case remanded with directions to
dismiss the petition.