Volume 46 — Court of Claims Reports

<p>The Be farter’s statement of tbe case:</p> <p>The facts of the case will be found in the opinion of the court.</p>

The Reporter's statement of the case: The claim in the above-entitled case was transmitted to the court by the Committee on Claims of the House of Representatives on the 17 th day of February, 1905, in pursuance of the act of March 3, 1883, commonly called the Bowman Act.

The Reporter's statement of the case: The following are a statement and the facts of the case as found by the court: The claimant in his petition makes the following allegations : That he is a citizen of the United States and is a resident of the county of Monongalia and the State of West Virginia.

<p> On the claimants Motion. </p> <p>The claimant flies a motion to discontinue the case. Before it is acted upon by the court the defendants file a counterclaim much in excess of the amount for which the claimant will be entitled to judgment. The claimant now moves for leave to discontinue on the ground that no counterclaim had been filed at the time when the first notice of discontinuance was filed, and insists that he should be allowed to discontinue his action “ as a matter of right,” the motion Raving been actually made before the defendants’ counterclaim was actually filed.</p> <p>I. In the Atlantic Contracting Co. v. United States (35 C. Cls. R., 30) it was Reid that allowing or overruling a motion to discontinue a case is within the sound discretion of a court, but it was at the same time Reid that the discontinuance should be allowed if there was nothing to show that some right of tht defendants would be thereby violated.</p> <p>IX. The forms of pleading in this court do not require that the right to recover on a counterclaim shall be restricted by the. pleading. Omissions to plead counterclaims are never fatal to the rendition of such judgments as the facts demand.</p> <p>III. The general rule in a court of equity is that the complainant may dismiss his bill at any time before the Rearing; but to this general rule there are well-recognized exceptions. Yet “ prejudice to the defendants ” must be 'something more than the mere prospect of future litigation.</p> <p>IY. Where there was evidence accompanying the motion of the Government for leave to file a counterclaim which tended to establish fraud and the right to have judgment for a larger amount than the claimant could recover the discontinuance asked for should not be allowed.</p> <p>V. When a party invokes the jurisdiction of this court to obtain a judgment against the Government he is bound to know that if the Government has a counterclaim against him it may be set up and a recovery thereon be had.</p> <p>VI. A counterclaim ought to be pleaded as promptly as possible.</p>

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. The claimant in No. 27502, Samuel Ellery Jennison, is a citizen of the United States and a resident of Battery Point, in the State of Maine. II. Mary E. Peabody is a citizen of the United States and a resident of Cambridge, in the county of Middlesex and Commonwealth of Massachusetts, and a single woman.

The Reporters’ statement of tbe case: The grounds upon which the motion rests will be found set forth in the opinion of the court.

The Reporters’ Statement of the case: The facts of the case sufficiently appear in the following statement and in the opinion of the court: This is a claim for pay due John W. Acker for service as first lieutenant, Fifty-second Illinois Volunteer Infantry, between October 24, 1864, and December 17, 1864, growing out of the fact that he performed all of the duties of said grade under the appointment or commission from the proper authority; that said claim was duly presented…

The Reporter's statement of the case: The grounds of the defendants’ demurrer are stated in the opinion of the court. I. Comparatively few of the special acts conferring jurisdiction on this court contain any allusion to the lapse' of time or the statute of limitations.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On July 21,1899, claimant entered into a contract with the United States through Capt. Charles McD. Townsend, Corps of Engineers, United States Army, for building dams and shore protection on the Mississippi River between Cass-ville, Wis., and Dubuque, Iowa, as set forth in the petition as amended. This contract was approved by the Chief of Engineers on August 26, 1899. II.

<p> On the claimant's Motion. </p> <p>It appears that the case was voluntarily discontinued by the claimant in 1908. She now makes a motion for leave to resume proceedings.</p> <p>I.An order of the court allowing a claimant to discontinue is in legal effect an order to dismiss; and when a case is dismissed it is .at large.</p> <p>II.An order to discontinue does not have its origin in the court, and the discontinuance becomes the act of the court only by an order directing the dismissal granted at the behest of the claimant.</p> <p>III.The reinstatement of a discontinued case can not be placed upon the ground of a mistake arising out of misprision of the clerk or out of the conduct of the defendants.</p> <p>IY. The voluntary dismissal of a cause discloses an intention to abandon the cause of action in the court. It is an abandonment. Where it is dismissed by agreement it may embrace a full settlement of the contested points.</p> <p>V. Where the jurisdiction is lost, being the result of inadvertence or mistake, there may be reinstatement after the term under the rule applicable to all courts of the United States. But there can not be reinstatement merely to evade the statute of limitations.</p>

<p>The Reporters' statement of tbe case:</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

<p>The Reporters' statement of the case:</p> <p>The facts of the case will be found in the opinion of the court.</p>

The Reporters'1 statement of the case: ' The following are the facts of the case as found by the court: I. The claimant was engaged, under contract with the Government, in the work of constructing an extension to Piers Nos. 2 and 3 at League Island Navy Yard, near Philadelphia. In connection therewith it employed a derrick barge or lighter.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. On July 6, 1901, a contract was made between the United States and the claimant and approved by the Acting Chief of Engineers on July 18, 1901, as set forth in Exhibit A to claimant’s petition. II. The advertisement and specifications attached to the contract and referred to therein are as set forth in Exhibit A to claimant’s petition. III.

The Reporters’1 statement of the case: The following are the facts of the case as found by the court: I. The Evansville Contract Company is a corporation organized under the laws of the State of Indiana and is a resident of that State.

The Reporters' statement of the case: The following are the facts of the case as found by the court: PRELIMINARY. On the 14th day of March, in the year 1899, John J. O’Brien and John 0. Held: and so advised the receiver, that an extension of the time for the completion of the contract would be allowed covering all but 304 days of the period of delay.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. James H. Doyle entered the naval service of the United States as an enlisted man on August 3, 1872, and has served continuously in the Navy since that date. He was rated a mate on April 15, 1898; was appointed a boatswain from March 6, 1899; and was promoted to cheif boatswain from March 6, 1905, which rank he still holds. II.

The Reporter's statement of the case: The following are the facts of the case as found by the court: I.' The claimant,'Henry C. Gearing, was during the period covered .by this claim a commander of more than 20 years’ service in the United States Navy. XI.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimants, March 7, 1902, entered into the contract set forth in the petition. The contract called for the construction and erection of a steel tank and trestle and heater room at Fort H. G. Wright, Fishers Island, N. Y., the consideration therefor being $5,950. Sections II and IV of the contract provided as follows: “Article II.

The Ref otters'1 statement of the case: The following are the facts of the case as found by the court: I. George W. S. Kyle enlisted in the Marine Corps as a private February 14, 1901, at Harrisburg, Pa.; was transferred the same day to the marine barracks, navy yard, League Island, Pa.; was transferred October 17, 1901, to the marine barracks, navy yard, Boston, Mass., and was there honorably discharged February 22, 1906, with character “ excellent.” II.

<p>The Reporters' statement of the case:</p> <p>The facts of the case will be found set forth in the opinion of the court.</p>

The Reporters' statement of the case : The following are the facts of the case as found by the court: I. The Wrought Iron Bridge Company, of Canton, Ohio, was duly incorporated, chartered, and existing under the laws of tlie State of Ohio, and Frank M. Wyant is its successor and assignee.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The brig Hope, whereof John Gould was then master, sailed on a commercial voyage some time in the year 1800 from Kennebunk, in the then State of Massachusetts, bound for the West Indies.

The Reporters’ statement of tlie case: The following are the facts of the case as found by the court: I. The brig Fanny, J ohn Gould, master, sailed on a commercial voyage from Kennebunk, in the then State of Massachusetts, on the 27th day of November, 1796, bound for Leogane, Hispaniola, on which voyage she was captured on the high seas on December 30, 1796, by the French privateer Loyaute, Capt. Dolhabaret, and carried into Port de Paix.

The Reporters’ statement of the case: The court made the following supplemental finding of fact and modified conclusion of law: The following additional sums have been received by the United States from the sale of the lands ceded by the plaintiffs to the United States under the act of June 15, 1880: For the fiscal year ending June 30, 1009_$70, 628. 23 For the fiscal year ending June 30, 1910_ 136, 826. 98 Total-'_ 207,455. 21 The following sums have been expended of the…

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

The Reporters’ statement of the case : The following are the facts of the case as found by the court: I. The claimant is a citizen of the United States and a resident of the city of Boston, in the State of Massachusetts. II.

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case will be found set forth in the opinion of the court.</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. From July 1, 1896, to June 30, 1900, the claimant, the Louisville and Nashville Railroad Company, whose principal offices were located at Louisville, Ky., was- engaged, among other things, in the transportation of United States mails over the portions of its road involved in the controversy in this suit, under contract relations created as follows: On January 25, 1896, the…

The Refortevs1 statement of the case: The following- are the facts of .the case as found by the court: I. The claimant, Frank de L. Carrington, a major in the United States Army, was tried and convicted by civil court in the Philippine Islands in 1905, but on writ of error his conviction .was reversed by the Supreme Court of the United States (208 U. S., 1).

The Reporters' statement of the case: The claim in the above-entitled, cause arises out of personal injuries alleged to have been sustained by claimant while in the employ of the United States. The claim was first referred to the court by the Committee on Claims of the House of Eepresentatives, February 27, 1905, under the act of March 3, 1887, and numbered 11762, Congressional.

<p>The Reporters' statement of the case-:</p> <p>The grounds of the motion sufficiently appear in the opinion of the court.</p>

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. The Harvey Steel Company, claimant herein, is now, and at all times since the year 1887 has been, a corporation created, organized, and existing under the laws of the State of New Jersey.

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. On July 24, 1905, a contract was entered into between the United States, acting through Thomas Ryan, Acting Secretary of the Interior, and the claimant, with specifications and drawings attached, the same being for erecting the structures required in connection with the Huntley (Mont.) reclamation project, which, contract and specifications are set forth in claimant’s…

The Reporter’s statement of the case: The facts of the case appear sufficiently in the opinion of the court. • In considering a contract of this kind, it should be borne in mind that the courts have always preferred to construe such provisions as penalties rather than as liquidated damages. 13 L. E. A., page 672 (note), cites a long line of authorities in support of the proposition.

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case will be found set forth in the opinion of the court.</p>

The Reporter's statement of the case: The facts of the case will be found set forth in the opinion of the court. We challenge the validity of that part of the contract which undertakes to vest in the Postmaster General the power to accept inferior twine, and “ fix such price therefor as may seem to him just and reasonable under the circumstances.” 1. The Postmaster General is one of the parties to the contract because he signed it in his official capacity.

The Reporters'’ statement of the case: The following are the facts of the case as found' by the court: I. Jeróme E. Morse entered the naval service of the United States as a midshipman on October 13, 1862, and has served continuously therein since that date. During the Civil War he served with credit otherwise than as a cadet prior to April 9, 1865.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. M. K. Cathell, E. V. Cathell, and Edw. K. Stembridge, copartners, doing business under the firm name of Cathell Bros. & Co., at Baltimore, in the State of Maryland, are citizens of the United States. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. At the time of the depredation hereinafter stated the claimant was a citizen of the United States. II. On or about Sptember 15,1866, in Erath County, Tex., Indians belonging to the Comanche tribe of Indians took and drove away property of the kind and character described in the petition, the property of claimant, which was reasonably worth the sum of $2,000.

The Reporters’ statement of the case : The following are the facts of the case as found by the court: I. On the 1st day of May, 1898, after the Battle of Manila Bay, the United States sent a large number of troops to the Philippine Islands. On the 8th day of July, 1898, Lieut.

<p>The Reporters* statement of the case:</p> <p>The facts of the case appear sufficiently in the opinion of the court..</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The Chicago and Alton Railroad Company was organized in 1861 under the laws of the State of Illinois, and the Chicago and Alton Railway Company was organized in 1900 under the laws of said State. On the 14th day of March,*1906, the above two companies were consolidated into one company, taking the name of said Chicago and Alton Railroad Company.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, August C. Brant, under date of April 29, 1899, entered into two contracts with the United States, both of which are set forth in and made a part of the petition.

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. During the times hereinafter mentioned claimant was •a first lieutenant in the Philippine Scouts, United States Army. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. This claim was referred to the court by an act of Congress entitled t£ An act for the relief of the Mille Lac Band of Chippewa Indians in the State of Minnesota, and for other purposes,” approved February 15, 1909 (35 Stat.

<p> On the defendants’ Denvurrer. </p> <p>Architects agree to furnish plans and specifications for officers’ quarters at the naval station at New Orleans. The cost of the quarters is limited to $32,375; and the architects’ fees are to be contingent upon the receipt of an' acceptable bid within the amount named. The department changes the plans and specifications and advertises for bids but none is received. The changes made by the department are without the advice or consent of the architect and tend to increase the cost of the building.</p> <p>I. Where it was agreed that the compensation of architects should be contingent upon an acceptable bid being made for the erection of a building planned within a price specified, and the petition alleges that the defendants did not submit the plans and specifications furnished by the architect to bidders, the court can not hold on demurrer that the architects are not entitled to compensation.</p> <p>II. The failure of the defendants to obtain a bid for plans and specifications which were not strictly those of the architects does not prove that the building could not have been erected within the amount named in the contract according to the unchanged plans of the architect.</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The plaintiff is a resident and citizen of the State of South Carolina, and was, at the time of the commission of the grievances hereinafter set forth, the owner in fee simple of two plantations involved in this suit, known as “ Lucknow ” and “ Redeem,” containing 3,100 acres of high land and rice land, situated on the Savannah River, in the county of Beaufort, in the…

The Reporters' statement of the case: There follow a statement and the facts of the case as found by the court: STATEMENT OF CASE. This is a claim for the destruction of a dwelling house and furniture therein by a detachment of soldiers of the United States Army on the night of December 20,1865.

The Reporter’s statement of tbe case: Tbe following are tbe facts of tbe case as found by the court: • I. During tbe time hereinafter… Held: in arriving at its conclusion, that the six-year limitation of section 1069, Revised Statutes, was applicable to claims presented under the act, and also that where the decision of the Secretary of War had been adverse to the claimants the court was without jurisdiction; but where the decision had been in favor of the claimant “ the…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein is a corporation incorporated under the laws of the State of Pennsylvania, and carries on the business of ship and engine building, with its yards and plant and works located in the city of Philadelphia, in said State. II.

The Reporters’ statement of the case: The grounds of the defendants’ motion are sufficiently set forth in the opinion of the court. 1. The Bowman Act (22 Stat. L., 485) was the first act to give jurisdiction to this court to find facts without a judgment, but this excluded claims barred by existing law. Many claims so barred were those for stores and supplies taken by the Army and for cotton seized by Treasury agents.

The Reporters' statement of the case. The following are the facts of the case as found by the court: I. July 8, 1904, the claimant, trustee, became by an instrument in writing (Finding VII) the assignee of Frederick Lewis Sawyer to an invention described in an application for letters patent of the United States, filed by the said Sawyer May 26, 1904, as serial No. 209951, and issued as Patent No. 782701, February 14, 1905, to Frederick L. Sawyer, assignor to John J. Knapp,…

<p>On the defendants’ Motion.</p> <p>At tbe time of the cession of the Philippines to the United States a British corporation has procured from the Spanish Government grants and concessions for the establishment of submarine cables to be worked by the company at its own expense for an annual subsidy of 4,500 pounds. After the cession of the islands the United States use the cables in their public business. The company brings this suit to recover the subsidy assured to it by Spain as its compensation for such service. The defendants move to dismiss the case under Revised Statutes (sec. 3066) prohibiting the court from entertaining jurisdiction of claims “ groioing out of or dependent on any treaty stipulation entered into loith foreign nations.”</p> <p>I.By the treaty of Paris, December —, 1898, the control and sovereignty of Spain over the Philippine Archipelago passed to the United States. All buildings, wharves, and public property which belonged to the public domain were ceded or relinquished to the United States; but it was expressly provided that the cession and relinquishment should not “ impair the property or rights which l)y law belonged to the peaceful possession of property of all hinds ” whether “of civic bodies or of private individuals of whatsoever nationality such individuals may be." The cables owned by the claimant under the Spanish concession are such private property.</p> <p>II.The Revised Statutes (sec. 1066) prohibit this court from entertaining jurisdiction of claims “ growing out of or dependent on any treaty stipulation entered into with foreign nations,” but the statute contemplates a direct and proximate connec-. tion between the claims and the treaty. The right itself must have its origin in and derive its life and existence from the treaty.</p> <p>III. The right of action in this case grows out of the use of private property, the claimant’s marine cables, by the defendants for public purposes; and the fact that the claimant acquired its property by a concession of the Spanish Government and had entered into an agreement with that government for rendering service does not affect the obligation of the United States.</p> <p>IV. But the obligation of the Spanish Government to the company does not extend to the United States as successors of the public property of Spain. The measure of damages, if the claimant be entitled to recover, will be the reasonable compensation for the use of the cables upon an implied contract, and not the compensation prescribed by the company’s express contract with Spain.</p> <p>V.Whether the provision of the Revised Statutes (sec. 1066), which excludes from this court jurisdiction of claims “ groining .out of or dependent on any treaty stipulation with foreign nations," has been repealed, and whether the court has or has not jurisdiction of such claims are questions upon which the court does not pass at this time. The subsequent statutory history of the provision reviewed.</p>