Volume 53 — Court of Claims Reports

The Reporter’s statement of the case: The general principle governing this case is that stated by the Supreme Court of the United States in Anvil Mining Go. v. Humble, 153 U. S., 540, 552 : • “ A party who engages to do work has a right to proceed free from any let or hindrance of the other party, and if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first…

The Reporter's statement of the case: The term “ steel cars ” included steel underframe cars as well as all-steel cars within the meaning of the act under consideration as intended by Congress. This intent may be gathered not only from the language of the act but from a consideration of the evil which Congress sought to remedy by the legislation.

The Reporter's statement of the case: If the language of a written contract is equivocal, or if the contract is silent as to something to be done in connection with the subject matter, a court may ignore the language and receive parol evidence explaining the subject matter, the conditions, the surrounding circumstances, the relation of the parties, and the inducing causes which led them to make the agreement, so that it may be placed as near as possible in the situation of…

The Reporter’s statement of the case: The Government is not concerned with the duty of the Southern Pacific Co. to transport the goods under the original bill of lading as set forth in the M. K. ds T. By. Go. v. Ward, 244 U. S., 388. The Southern Pacific Co., the agent of the plaintiff, refused to transport the troops or impedimenta under the terms of the contract when the troop train was tendered it for transportation.

The Reporter's statement of the case: The averments of the amended petition to which defendants demur will be found sufficiently set forth in the opinion of the court. The jurisdictional question raised is disposed of by Thayer's case, 20 C. Cls., 137; and State Bank v. United States, 10 C. Cls., 519; 96 U. S., 30. The timber was rightfully cut for railroad purposes, under the act of 1875, and the resulting tie slash was a necessary incident.

The Reporter's statement of the case: The only question in the case is whether the proportionate loss under said sale is available to said company as a deduction in arriving at the net returns subject to the tax under the act of 1909 for the years 1911 and 1912.

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The Reporter’s statement of the case: The averments of the petition, to which defendants demur will be found sufficiently set forth in the opinion of the court. The technical distinction between an assignment and a license is fully set forth in the leading case of Waterman v. Mackenzie, 138 U. S., 252.

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. Section 22 of the Indian appropriation act of April 4, 1910, 36 Stat., 269, 284, provides: “ That jurisdiction be, and hereby is, conferred upon the Court of Claims of the United States to hear, and report a finding of fact, as between the United States and the Yank-ton Tribe of Indians of South Dakota as to the interest, title, ownership, and right of possession of the…

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The Ref crier's statement of the case: The following are the facts of the case as found by the court: I. Under date of October 27, 1904, a contract was entered into by and between the United States, acting by Col. G. J. Lydecker, Corps of Engineers, United States Army, and the • Sheridan-Kirk Contract Co., whereby the said company undertook to furnish the material (except cement), appliances, and labor, and to do all work required for constructing Lock and Dam No. 37, Ohio…

The Reporter's statement of the case: The claimant became eligible for promotion from the warrant office of machinist to the commissioned grade of chief machinist at the expiration of six years’ service, December 27, 1912. He was examined for promotion February 15, 1913, by a board of medical examiners and on February 19, 1913, by a naval examining board, and found and reported qualified for promotion by both of these boards.

The Reporter’s statement of the case: The facts of the case and the grounds of plaintiff’s motion are sufficiently set forth in the opinion of the court. As to each of the transactions upon which compensation is now claimed a ease is made for claimant when it is established that claimant (or its predecessor in title) carried the freights in question, upon the occasions described in the petition, and that no pay has been received with respect thereto.

The Reporter's statement of the case: The cases cited and relied upon by the Government are cases between individuals and corporations under provisions of law requiring payment of just compensation… Held: in Manigault v. Springs, 199 U. S., 484, that there is no right of action until the value of the property has been practically destroyed or materially impaired, and we must accept that as the time of the taking, at least in the sense of the constitutional provision.

The Reporters statement of the case: The averments of the amended petition to which defendants demur will be found sufficiently set forth in the opinion of the court. Plaintiff in its original petition declared upon rules 2, 4, and 5 of the Utah Car Service Association, which it stated to be “ so much as is material ” of those rules.

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The Reporter’s statement of the case: The engineers, in taking the action they did in regard to the making up and approval of the final estimate, and in allowing and disallowing material as class 2, and in testing therefor, acted arbitrarily and capriciously, and failed to exercise honest judgments, and made such gross mistakes jn performing their duties as necessarily to imply bad faith on their parts and the part of each of them.

The Reporter’s statement of tlie case: The representation as to the character of the material to be excavated was plainly intended to be… Held: that the defendant had a right to rely upon the representation, and to rescind the contract by reason of its falsity. It was said: “ In a sense it is true that Hingston had equal opportunities with Smith to know the character of the work to be done, and by going to Ashtabula he might have inspected the work and examined the chart.

The Reporter's statement of the case: The plaintiff seeks to recover, as a separate item, for the value of the corn and other crops destroyed. To this the defendants object, as the growing crops were a part of the realty and their value should be considered only as affecting the value of the land taken, and not as a distinct item of damage.

The Reporter’s statement of the.case: The Supreme Court of the United States said: “ It may be assumed that if the Government had installed its battery, not simply as a means of defense in war, but with the purpose and effect of subordinating the strip of land between the battery and the sea to the right and privilege of the Government to fire projectiles directly across it for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of…

The Reporter’s statement of the case: The averments of the petition to which the defendants demur will be found sufficiently set forth in the opinion of the court.

The Reporter's statement of the case: Epitomized, the facts are that with respect to each of its postal routes the claimant company transported the mails under a contract with the Postoffice Department covering a period of four years, some of the contract periods running to June 30, 1907, some to June 30, 1908, and some to June 30, 1909, but that there was nothing in those contracts that bound the company to operate the trains in strict compliance with their time schedules.

The Reporter’s statement of the case. We desire to direct the attention of the court to the effort of the claimant to secure the taking of depositions because the claim is now largely dependent for proof upon ex parte affidavits. There is some evidence in the record from reports of the Post Office Department and contemporaneous publications corroborating and confirming the evidence taken by way of ex parte affidavits.

The Reporter's statement of tbe case: The first question which presents itself is whether a marine officer is entitled to promotion on the retired list by reason of service on active duty since retirement under the act of June 3, 1916, 39 Stat., 183, or under the act of August 29, 1916, 39 Stat., 581, and the second question is whether he is entitled to credit for increased longevity pay by reason of said active service after retirement under said acts.

The Reporter's statement of the case: The paramount question in these cases is whether or not the Postmaster General was legally authorized to issue order No. 165 as amended by order No. 412 and thereafter to apply it in the computation of claimants compensation for carrying the mails.

The Reporter’s statement of the case: The averments of the petition to which defendants demur will be found sufficiently set forth in the… Held: “ Because the term provided is used in the law, it does not necessarily follow that the matter which may succeed is a proviso in its technical sense; it is a matter of the succeeding words, and not the form, which determines whether it is or is not a technical proviso.” The proviso in the Miimis case, 15 Pet., 423, relied upon by…

The Reporter’s statement of the case: In this case there are but two issues to be considered: First. Whether the Secretary of War may vitiate a contract made by a duly authorized quartermaster with the railroad, and substitute for the rate agreed upon in the contract lower rates which he deems to be just and reasonable. Second.

The Reporter's statement of the case: What are the rights of the parties in view of the impracticability of construction in the exact manner pointed out by the contract and the refusal of the owner of the work, the Government, to allow the contractor to construct by the only practicable method?

The Reporter’s statement of the case: There is only one way to do an inventor justice, and that is by taking the testimony of his contemporaneous searchers after the prize; and if we find as a matter of fact that others were searching for the prize and searched for it in vain, and that they were men skilled in the art, then we know, not as a matter of theory but as a matter of fact, that the solution of the problem was not obvious.

Thee Reporter*s statement of the case: The subject matter of this proceeding is sufficiently disclosed by the opinion itself.

The Reporter’s statement of the case: All matters in controversy were settled by the arbiters selected in accordance with express covenants; of the contract, and their decision is conclusive. The contract further provides that if a h.ibmce shall appear in favor of the contractors the same shall be. paid to and accepted by them in full discharge of all claims under the contract.

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. The plaintiffs herein, George F. Archer and Kate C. Archer, were in the year 1903, have been since, and are now the owners in fee of those lands lying and being situated in Chicot County, Ark., known as Point Chicot, being the tract of land opposite the town of Greenville, Miss., bounded on the north, east, and west by the waters of the Mississippi Eiver, and on the south…

The Reporter’s statement of the .case: It seems clear from the record that the destruction of this road was caused, not by the maintenance of water at pool level, but by the frequent floods and rises… Held: not for the purpose of emolument, but for public use, especially the public use of navigation and commerce — the question arises whether it is a kind of property susceptible of pecuniary compensation, within the meaning of the Constitution.

The Reporter's statement of the case: Defendants contend: First, that permanent possession of the land was taken by the military authorities under the right of eminent domain on July 1, 1900, and that the court is without jurisdiction because the claim is barred by the statute of limitations, petition not having been filed until December 7, 1906.

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. Pursuant to authority, the Secretary of the Navy, through the Chief of the Bureau of Yards and Docks, on November 29,1899, entered into a contract with the Atlantic, Gulf & Pacific Co. for the construction of a dry dock at the United States Navy Yard at Philadelphia for the sum of $782,600,-which, by supplemental contract of April 6, 1901, was so modified as to provide for…

The Reporter's statement of the case: The evidence shows that the agreement entered into with the master of the Manchester Engineer was one of towage. The contract at the time it was entered into was capable of performance, and the failure of the master of the British ship to perform was not rendered impossible by act of God or by any act or omission on the part, of the master and crew of the Wilkes.

The Reporter's statement of the case: The lease provides that the premises are demised and leased to the United States— “ from January 1,1911, to June 30,1911, inclusive, at a rental at the rate of sis thousand eight hundred dollars ($6,800) per annum, payable in equal monthly payments; it being understood and agreed by the parties hereto that the continued use and occupancy of the above specified premises by the party of the second part after the 1st day of July in any…

The Reporter’s statement of the case: Plaintiff’s removal was an absolute nullity, being unlawful, invalid and of no force and effect, and contrary to civil service Rule XII, section 2, as amended by Executive Order of February 8, 1912, to articles 1385 and 1386 of the Customs Laws and Regulations of 1908, and to section 6 of the act of August 24,1912, 37 Stat., 555.

The Reporter’s statement of the case: The charges against plaintiff were preferred by the Collector of Customs at the instance of the Department of Justice. Prior to, and after his removal, plaintiff made repeated efforts to obtain a hearing and begged for the privilege of facing his accusers but such requests were not granted.

The. Reporter's statement of the case: Section 1 of the act of June 3, 1856, 11 Stat., 21, enacts “ that there be, and hereby is, granted to the State of Michigan, to aid in the construction of… Held: “ That no portion of the claimant’s road was constructed in whole or in part by a land grant within the meaning ” of the act stated and, therefore, the Government was not entitled to deduct 20 per cent from the contract price due the claimants for carrying the mails.

The Reporter’s statement of the case: Defendants’ contentions are that the material did not differ to an unreasonable extent from what it… Held: as stated in the syllabus: “ Where there is a deceptive representation in the specifications as to the material to be excavated which actually misleads the bidder who obtains the contract, and it is admitted by the Government that time did not permit borings to be made by the contractor to verify the representations, the latter is…

The Reporter’s statement of the case: This cause arose under the act of February 20, 1907, 34 Stat., 898, known as the Immigration Act. This act superseded the act of March 3, 1903, 32 Stat., 1213, and preceding acts.

<p> On the Proofs, </p> <p>Evidence. — The rules of evidence deduced from the common law govern in this court, and as the evidence here adduced is merely comparative, there is no rule of common law under which it can be regarded as competent or of any probative value at all.</p>

The Reporter's statement of the case: What is the legal consequence of delay by the United States causing the plaintiff to be unable to complete the work on time?

The Reporter’s statement of the case: The jurisdictional act creates no liability, but simply affords a forum for the adjudication of the claim on its merits. The plaintiff takes the position that the treaty of March 16, 1854, 10 Stat., 1043, is an executed contract binding on the Government.

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. On September 23,1905, Prendergast & Clarkson entered into a contract with the United States for the construction of the Shoshone Dam and auxiliary works in the State of Wyoming for the sum of $515,730.

The Reporter’s statement of the case: The following are the facts of the case as found by the court: I. On the 25th day of September, 1906, the plaintiff company entered into a contract with the Secretary of the Interior, acting with authority for the United States, to furnish all materials, with certain exceptions, and labor and to construct a dam and accessory structures on the lower Yellowstone Eiver, in Montana, at stated unit prices.

The Reporter’s statement of the case. In the original presentation of the case it was said arguendo on claimant’s part that the acceptance in the appropriation bill of claimant’s patented design, upon his offer and explanation of it to the Senate committee and the suggestion by the Acting Chief of Engineers of an operating plan for such use, constitued a contract notwithstanding that no amount, and no measure, for claimant’s compensation was named; and we respectfully submit…

The Reporter’’s statement of the case: The following are the facts of the case as found by the court: I. The plaintiff, George E. Burnap, was Secretary of War landscape architect in the Office of Public Buildings and Grounds. He took the oath of office and entered upon duty July 1,1910.

The Reporter’s statement of the case: The gravamen of the action is that the United States holds money of this plaintiff which was paid to. it under a mistake of fact. It is to be anticipated that the defense will be put mainly on the theory of some negligence of plaintiff which now estops it to complain of what was done.