Where the contractor refuses to go on with the work, there is no
question of revision of judgment of an officer annulling the
contract, and a right of action accrues to the government without
need of any useless ceremony of approval by the superior officer or
board.
United States v. McMullen, 222 U.
S. 460, distinguished.
In this case, as the bond in terms contemplated an extension of
time and the contract provided for modifications, the surety was
not discharged by waiver of time limit or for modifications without
its express consent.
Under a contract that the government would furnish the
contractor with granite blocks free on board cars at the quarry, he
to transport them,
held that the contractor was to furnish
the cars, and was responsible for delay in that respect.
In federal courts, the judge and jury are assumed to be
competent to play their respective parts, and
held that
the charge to the jury in this case as to the meaning of the phrase
"net dimension block " was adequate and fair.
This Court will not upset a verdict upon the speculation that
the jury did not do their duty and follow the instructions of the
court; the fact that the attention of the jury was called by
counsel for the government to the statement on the letterhead of
the surety company defendant that its capital was $1,000,000
held not to have been prejudicial.
An instruction that the government was entitled to recover, in
case of breach found, an amount, not exceeding the penalty of the
bond, equal to the difference between the reasonable and necessary
cost to it for transporting, cutting, and delivering the granite
mentioned in the case and the amount specified in the contract
held to have referred simply to the granite actually in
controversy, and, there
Page 231 U. S. 475
being evidence in the case to warrant the finding, and as the
measure followed the contract, a verdict for the amount was
correct.
188 F. 651 affirmed.
The facts, which involve the validity of a judgment obtained by
the United States against a contractor and surety for failure to
perform, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action upon a bond against a contractor and his
surety for breach of a contract made under the Act of March 3,
1903, c. 1007, 32 Stat. 1102, with Green, superintendent of
construction, acting under the direction of the regents of the
Smithsonian Institution, for the United States, party of the first
part, which the bond was given to secure. The contractor, Graham,
agreed to
"transport from the quarry, cut, box, and deliver complete, all
of the Bethel granite, to be furnished by the party of the first
part free on board cars at the quarry at Bethel, Vermont, required
for"
a part of the National Museum in Washington, described in the
specifications,
"and to do all other things needful to carry out all and
singular the several requirements of the said specifications, the
drawings therein referred to, and the instructions and general
conditions,"
for a gross sum. In case of failure to prosecute the work
diligently in the judgment of the Superintendent of Construction,
Green or his successor was given power, "with the sanction of the
Regents of the Smithsonian Institution, to annul" the contract by
notice in
Page 231 U. S. 476
writing, whereupon payments under the contract were to cease,
etc., and the United States was given the right to recover from
Graham any excess over the contract price expended for completing
the contract, which it was authorized to proceed to do. There were
provisions for an extension of time by the Superintendent, for
written modifications of the contract as to the character or
quantity of the labor or material, and for payment of ninety
percent as the progress of the work might warrant. The bond was for
the performance of the contract according to its true intent and
during any period of extension granted by the United States.
On March 7, 1908, after the time fixed for the completion of the
work, Graham discharged his workmen and stopped work, the contract
not having been performed. On March 11, the Superintendent wrote to
him, saying that he had heard that Graham apparently had stopped
work indefinitely, and asking for immediate correct information. On
the 14th, Graham's lawyer answered that Graham had stopped work;
that the step was necessary for his financial welfare in view of
the damage that he had sustained through the government's conduct,
and that "if this matter can be in any way amicably adjusted," he
would be glad to do anything fair. On the 16th, the Superintendent
replied that, if he received no immediate assurance that the work
was to be resumed promptly, he must proceed to annul the contract,
and on the 18th notified Graham that the contract was annulled with
the sanction of the Regents of the Smithsonian Institution. To this
Graham's lawyer rejoined that they could not concede any default,
that the government alone was to blame, but that they were willing
to do what was fair, and to let the government use their plant if
the damage sustained could be adjusted. The Superintendent had
written on the 18th to the Secretary of the board of Regents,
recommending the so-called annulment and notice
Page 231 U. S. 477
to the contractor and his surety, and had received his approval,
expressed to be on behalf of the Board of Regents. Afterwards the
United States completed the work. There was a long trial which
resulted in a verdict and judgment for the plaintiff for the
penalty of the bond, $50,000, subject to exceptions. The judgment
was affirmed by the circuit court of appeals. 188 F. 651.
Before considering the excuses alleged by Graham, we will
dispose of a preliminary objection that the suit cannot be
maintained because the Secretary of the Board of Regents did not
consult the Board before undertaking to sanction the "annulment" of
the contract. It is unnecessary to pass upon the argument that,
under the statute, the Board could have no voice, and that, by
custom and practice as well as by necessity, in view of the
constitution of the Board, the Secretary represented it in matters
like this. The provision as to annulment, construed in
United
States v. McMullen, 222 U. S. 460,
222 U. S. 471,
and cases cited, referred to cases where there was a failure to
prosecute the work diligently in the judgment of the Secretary, and
allowed a revision of that judgment in cases of that sort before
the United States should decline to proceed further and complete
the work by other means. But when Graham refused to go on, there
was no question of judgment to be revised, but a plain breach of
the contract unless the refusal was justified, and a right of
action accrued without the need of a ceremony that would have had
no meaning or use. The letters from March 7 to March 18, 1908,
appear to us to show a clear refusal by Graham to do any further
work. The expressions as to adjustment suggest nothing but a
compromise of mutual claims, to be followed by the government's,
not Graham's, use of Graham's plant.
Another objection not going to the merits of Graham's case is
that the surety was discharged by a waiver of the
Page 231 U. S. 478
original time limit without its assent, and by Graham's being
called on for some extra work due to a slight enlargement of the
diameter of the dome, for which he was paid. The bond in terms
contemplated an extension of time as possible, and the contract
provided, as we have said, for a waiver of the time limit and for
written modifications. The modifications were exhibited in letters,
but perhaps it is unnecessary to consider how far a surety whose
undertaking extends to modifications of the principal contract is
concerned with the form in which they are made. The surety was not
discharged.
United States v. McMullen, 222 U.
S. 460,
222 U. S.
468-469.
The only question of substance is whether Graham's refusal to
finish the work was justified or excused by the conduct of the
other party. The first and only serious matter of complaint on his
part was delay in furnishing him granite. The undisputed testimony
is that this delay was due to their being unable to get cars at the
quarry to take the stone, and so, under the instructions, the jury
must have found, so that the responsibility for it depends upon who
was bound to furnish the cars. By the contract, the government was
to furnish the granite free on board the cars at the quarry, and
Graham agreed to transport it from that place. On such an
undertaking, as Graham was to do the transporting, and moreover was
made responsible for safe delivery on the site of the Museum
building, and as the railroad would be his bailee, he naturally
would be held to furnish the cars. No different conclusion seems to
us to follow from the language of the preliminary description and
conditions. These recite that
"the necessary Bethel granite stock, in net dimension blocks, is
to be furnished to the government by the present contractor, free
on Board cars at the quarry in Bethel, ready for the contractor for
the cutting of the granite, to transport it to his cutting yard for
that purpose."
They go on:
"Bidders for the Bethel granite work
Page 231 U. S. 479
will therefore bid on the basis and understanding that the
granite in net dimension blocks, one block for each separate
pattern, will be furnished to them without unnecessary delay and
without charge, free on board cars at the quarry at Bethel,
Vermont."
The first passage does not mean that, because the quarryman was
to furnish the granite free on board and ready for transportation,
the quarryman was to furnish the cars. It may mean that, as between
him and the government, the government was bound to do it; but, by
the same reasoning, the second passage means that bidders were
invited to step into the government's shoes and assume a like
obligation towards it as by the agreement, when made, Graham did.
It follows that he cannot charge the United States with delay due
to lack of cars. Furthermore, in a letter of February 10, 1908,
when the delay had ceased, he wrote that the work was nearly
finished, and that he intended to devote his whole yard to it until
it should be about completed. This is wholly irreconcilable with
the defense that, a month later, he abandoned the work because of
the delay.
The next excuse put forward is that the granite was not
furnished in "net dimension blocks." There was contradictory
evidence as to the meaning of the phrase, Graham contending, in the
face of his contract to cut, that it meant perfect blocks. But he
admitted that he did not have that understanding when he
contracted, and although on February 14, 1907, he complained of the
size in the letter just mentioned of February 10, 1908, he wrote
that the work
"has had to be cut and shipped, but it is now nearly finished,
and I intend to devote my entire yard to Museum work until I see
the work about completed."
The judge left it to the jury
"whether, on a fair average, the rough stone furnished complied
with the stipulation that it should be furnished in net dimension
blocks, as you find the meaning and intention of that stipulation
was understood by the parties to the contract. "
Page 231 U. S. 480
He added:
"If you find that, in the latter part of February and the early
part of March, the stone, in point of its dimensions and roughness,
did not comply with the contract, . . . Graham could not be held to
the further performance of his contract, and your verdict should be
for the defendants."
The reference to February and March did not import a limitation
of time, but simply a reference to the period as to which the judge
understood that there was special complaint. No attention was
called to the matter, as it should have been if any
misunderstanding was feared. The charge on the point was adequate
and fair. It is objected that the judge called the jury's attention
to Graham's testimony concerning his expectation when he
contracted. The judge had a right to do more than that if he left
the decision to them. Universal distrust creates universal
incompetence. In the courts of the United States, the judge and
jury are assumed to be competent to play the parts that always have
belonged to them in the country in which the modern jury trial had
its birth.
Rucker v. Wheeler, 127 U. S.
85.
The ground on which Graham testified that he stopped work was
that he could not get any money; but there seems to be no evidence
that the government failed in its obligations as to payment, and
this point is not one of those most pressed. We have examined the
places in the record referred to by the defendants, and think it
enough to say that we discover no error of which they can
complain.
Much emphasis was laid in the argument on what seem to us
meticulous objections to every detail in the conduct of the trial.
One that was dwelt upon was that, in putting in a letter from the
surety showing notice to it of Graham's default and the position
taken by it, the counsel was allowed to read the letterhead, which
contained the words "Capital and Surplus over $1,000,000," as well
as the letter itself (which last was not objected to), and that, in
argument, the counsel for the government said: "There is no
Page 231 U. S. 481
room for sympathy for the poor defendant in this case." The
document went in as a whole, properly enough, and the judge charged
the jury that it was "not a case for sentimental considerations of
any kind," with more in the same direction. It would be absurd to
upset a verdict upon a speculation that the jury did not do their
duty and follow the instructions of the court. As to various
remarks made by the judge in the course of the trial, it is enough
to refer to what we have said already as to his power, and that we
discover nothing that could have created a prejudice against the
defendants or have been open to objection even if he had been more
strictly tied down by law than he was.
We find no error on the question of damages. The judge
instructed the jury that the plaintiff was entitled to recover, of
course, not exceeding the penalty of the bond, the difference
between
"the reasonable and necessary cost to the plaintiff for
transporting, cutting, and delivering the granite mentioned in this
case . . . and the amount specified in the contract"
to be paid to Graham. There was some cavil at the phrase
"granite mentioned in this case," but obviously it meant the
granite in controversy. There was evidence warranting a finding,
and the measure followed the contract, and was correct.
United
States v. McMullen, 222 U. S. 460,
222 U. S. 471.
A superfluous number of prayers was submitted, and exceptions were
taken at every step. We deem it enough to say in regard to them all
that the instructions to the jury were fair, the rulings on the
questions in the case correct, and that nothing appears that would
warrant us in ordering the case to be retried.
Judgment affirmed.
THE CHIEF JUSTICE took no part in the decision of this case.