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"Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience."

The case we are considering is essentially one on the part of the petitioner to protect from interference by striking former employees of the Tool Company, the contract which that company had with the men employed by it to take their places. Petitioner's claim of right, the validity of which we are not called upon to determine, is rested wholly upon the contract of the Tool Company with its [81] employees, and the character and construction of that contract of employment must inevitably be passed upon in any decision of the case; and, obviously, if the petitioner should fail in such a suit as this, with the Tool Company not a party, any decree rendered would not prevent a relitigating of the same questions in the same or in any other proper court, and it would settle nothing.

Thus, if the Tool Company be considered as having any corporate existence whatever separate from that of the petitioner, it must have an interest in the controversy, involved in such a case as we have here, of a nature such that a final decree could not be made without affecting that interest, and perhaps not without leaving the controversy in a condition wholly inconsistent with that equity which seeks to put an end to litigation by doing complete and final justice; and therefore it must be concluded that it was an indispensable party, within the quoted long established rule.

tion of executive officers of the two companies, which have been described.

Looking, as the court must, beyond the pleadings, and arranging the parties according to their real interest in the dispute involved in the case (Dawson v. Columbia Ave. Sav. Fund, S. D. Title & T. [82] Co. 197 U. S. 178, 180, 49 L. ed. 713, 715, 25 Sup. Ct. Rep. 420; Steele v. Culver, 211 U. S. 26, 29, 53 L. ed. 74, 75, 29 Sup. Ct. Rep. 9), it is clear that the identity of interest of the Tool Company with the petitioner required that the two be aligned as plaintiffs, and that with them so classified, the case did not present a controversy wholly between citizens of different states, within the jurisdiction of the district court (Susquehanna & W. Valley R. & Coal Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179; Hooe v. Jamieson, 166 Ú. S. 395, 41 L. ed. 1049, 17 Sup. Ct. Rep. 596).

The allegations of the bill that the contracts which the petitioner had with the United States government were of a character which must be given priority under § 120 of the National Defense Act, approved June 3, 1916 (39 Stat. at L. pp. 166, 213, chap. 134, Comp. Stat. §§ 1715a, 3115g, 9 Fed. Stat. Anno. 2d ed. pp. 925, 1343), and that they involved interstate commerce, are much too casual and meager to give serious color to the claim now made that the cause of action asserted is one arising under the laws of the United States. The contention is an afterthought, and plainly was not in the mind of the writer of the bill of complaint.

It results that the decree of the Cir

cuit Court of Appeals must be affirmed.

Appeal dismissed, petition for writ of certiorari granted, and decree of the Circuit Court of Appeals affirmed.

Mr. Justice Pitney and Mr. Justice McReynolds dissent.

WELLS BROTHERS COMPANY
OF NEW YORK, Appt.,

V.

UNITED STATES.

Plainly, the appellant was not mistaken when it made the Tool Company a party to the suit. But making it a party defendant could not give to the district court jurisdiction against the objection of another party, or over the court's own [83] scrutiny of the record, unless there existed a genuine controversy between it and the plaintiff, the petitioner. Judicial Code, § 24. That there was not, and could not be, any substantial controversy, any "collision of interest," between the petitioner and the Tool Company, is, of course, obvious from the A government contractor cannot repotential control which the ownership cover damages from the United States, oc of stock by the former gave it over the casioned by delays ordered by the governlatter company, and from the actual ment, where the contract gave large discrecontrol effected by the membership of tion to the United States to suspend perthe boards of directors and by the selec-formance, or change the work or material,

(See S. C. Reporter's ed. 83-87.)

United States - contracts
loss by requested delay.

liability for

providing for a compensating extension of time for performance, and in addition expressly declared, "No claim shall be made or allowed to the contractor for any damages which may arise out of any delay caused by the United States."

[For other cases, see United States, VI. f, in Digest Sup. Ct. 1908.]

[No. 75.]

Submitted April 30, 1920. Decided November 8, 1920.

the subject of delay, their covenant is binding.

Wall. 1, 17 L. ed. 762; Merchants' Loan Dermott v. Jones (Ingle v. Jones) 2 & T. Co. v. United States, 40 Ct. Cl. 117; Chouteau v. United States, 95 U. S. 61, 67, 68, 24 L. ed. 371-373.

Mr. Justice Clarke delivered the opinion of the court:

This is an appeal from a judgment of the court of claims, sustaining a general demurrer to and dismissing the amended

APPEAL from the Court of Claims to petition.

review a judgment dismissing the petition of a government contractor for the recovery of damages resulting from delays ordered by the government. Affirmed.

The facts are stated in the opinion. Messrs. Abram R. Serven and Burt E. Barlow submitted the cause for appel

lant:

A material change in either the character or cost of the thing contracted to be done does not come within the terms of the contract, and is a new or different work from that contracted for.

Cook County v. Harms, 108 Ill. 151; Salt Lake City v. Smith, 43 C. C. A. 637, 104 Fed. 457; McMaster v. State, 108 N. Y. 542, 15 N. E. 417; Dunning v. Orange County, 139 App. Div. 249, 124 N. Y. Supp. 107; National Contracting Co. v. Hudson River Water Power Co. 192 N. Y. 209, 84 N. E. 965; Gillet v. Bank of America, 160 N. Y. 555, 55 N. E. 292; Wood v. Ft. Wayne, 119 U. S. 312, 30 L. ed. 416, 7 Sup. Ct. Rep. 219; Chesapeake & O. Canal Co. v. Hill, 15 Wall. 94-101, 21 L. ed. 64-68; Utah N. & C. Stage Co. v. United States, 199 U. S. 414, 50 L. ed. 251, 26 Sup. Ct. Rep. 69; Serralles v. Esbri, 200 U. S. 103-111, 50 L. ed. 391-395, 26 Sup. Ct. Rep. 176.

Provisions against delay, contained in a contract, are to be construed reasonably and in accordance with the intention of the parties at the time of the execution of the contract, and to cover only such delays as were contemplated by the parties.

Curnan v. Delaware & O. R. Co. 138 N. Y. 480, 34 N. E. 201; W. L. Waples Co. v. State, 178 App. Div. 357, 164 N. Y. Supp. 797; United States v. Mueller, 113 U. S. 153, 28 L. ed. 946, 5 Sup. Ct. Rep. 380.

Assistant Attorney General Davis submitted the cause for appellee. Mr. John W. Trainer was on the brief:

The parties having contracted upon

[84] The allegations of this amended. petition, admitted by the demurrer, and essential to be considered, are:

The appellant, a corporation organized under the laws of New York, and engaged in the general building and construction business, entered into a written contract with the United States for the construction of a postoffice and courthouse building in New Orleans, dated September 30, 1909, for which it was to be paid $817,000, but its bond for performance was not approved until nine days later, on October 9; on the day after the contract was signed the United States "ordered and directed" appellant to delay ordering limestone (as specified in the contract) for the exterior of the street fronts of the building "for the reason, as stated, that a change was contemplated in said exterior face stonework, which would require an additional appropriation by Congress;" the appellant assented to a delay of two weeks only, but, although protesting that further delay would result in its damage, it refrained from purchasing limestone until August 19, 1910, when, the required appropriation by Congress having been obtained, a supplemental agreement was entered into by the parties to the contract by which marble was substituted for limestone for the street fronts of the building, the compensation of the appellant was increased $210,500, and the time for completion of the building was extended from April 1, 1911, to February 5, 1912; during this delay the contractor proceeded with other work under the contract, and, prior to August 19, 1910, it had completed all the required excavation,

foundation, and structural steel work; after the "modification and addition of August 19, 1910, to the contract work" the appellant so proceeded with the performance of the contract that, by February 1st, 1912, the building was substantially completed except the interior partitions, and thereupon the United States, again over the

protest of appellant, "ordered and di-, materials, than that here used. The prorected" a delay, which continued to vision for the protection of the work August 24, 1912, [85] until congres- shows that long interruptions were consional legislation was obtained author- templated, with a compensating extenizing the parcel post, whereupon the sion of time for performance provided plans for the interior arrangements of for, and it is admitted that eight days the building were adapted to that serv- before its bond was approved and it beice and the building was completed. came bound, the appellant received its first order to delay, for the reason that "a change was contemplated in said exterior stonework which would require an additional appropriation by Congress."

The claim is wholly for damages occasioned by the two delays thus described, and the question for decision is whether the terms of the contract authorized the government to require such delays without becoming liable to the contractor for damages which may have been caused to it thereby.

The contract involved contains this provision:

"It is further covenanted and agreed that the United States shall have the right of suspending the whole or any part of the work herein contracted to be done, whenever, in the opinion of the architects of the building, or of the supervising architect, it may be necessary for the purpose or advantage of the work, and upon such occasion or occasions the contractor shall, without expense to the United States, properly cover over, secure, and protect such of the work as may be liable to sustain injury from the weather, or otherwise, and for all such suspensions the contractor shall be allowed one day additional to the time herein stated for each and every day of such delay so caused in the completion of the work; the same to be ascertained by the supervising architect; and a similar allowance of extra time will be made for such other delays as the supervising architect may find to have been caused by the United States, provided that a written claim therefor is presented by the contractor within ten days of the occurrence of such delays; provided, further, that no claim shall be made or allowed to the contractor for any damages which may arise out of any delay caused by the United States."

The contract further declares that the contractor:

"Will make any omissions from, additions to, or changes in the work or material herein provided for whenever [86] required by said first party . . . and that no claim for damages on account of such changes or for anticipated profits shall be made or allowed."

It would be difficult to select language giving larger discretion to the United States to suspend the performance "of the whole or any part of the work" contracted for, or to change the work or

Such a delay as was thus ordered was certain to be an indefinite and very probably a long-continued one; but the appellant, experienced contractor that it was, did not hesitate to submit to it by permitting the approval of its bond, which rendered its obligation under the contract complete, more than a week after notice had been received of the order. Thus, with much the longest delay complained of ordered and actually entered upon, the appellant consented to be bound by the language quoted, which vested such comprehensive discretion over the work in the government. That this confidence of the contractor was not misplaced is shown by the fact that this first delay resulted in the substitution of marble for limestone for the street fronts of the building, and in a supplemental agreement by which it received additional payments, aggregating $210,500, and an extension of ten months for the completion of the work.

In addition to all this it must be noted that the first paragraph above quoted concludes with this independent proviso:

"Provided further, that no claim shall be made or allowed [87] to the contractor for any damages which may arise out of any delay caused by the United States."

Here is a plain and unrestricted covenant on the part of the contractor, comprehensive as words can make it, that it will not make any claim against the government "for any damages which may arise out of any delay caused by the United States" in the performance of the contract, and this is emphasized by being immediately coupled with a declaration by the government that, if such a claim should be made, it would not be allowed.

Such language, disassociated as it is from provisions relating to "omissions from," the making of "additions to or changes in," the work to be done or "material" to be used, cannot be treated as meaningless and futile, and read out

Intoxicating liquor — keeping
stead Act.

Vol

of the contract. Given its plain meaning, it is fatal to the appellant's claim. Men who take million-dollar contracts 3. Kept for sale or barter or other commercial for government buildings are neither un- word "kept," as used in § 21 of the Volpurpose is what is meant by the sophisticated nor careless. Inexperience stead Act of October 28, 1919, which deand inattention are more likely to be clares that any room, house, building, or found in other parties to such contracts place where intoxicating liquor is manu than the contractors, and the presump-factured, sold, kept, or bartered, in violation is obvious and strong that the mention of the act, and all intoxicating liquor signing such a contract as we have here and property kept and used in maintaining protected themselves against such de- the same, are a common nuisance, and prolays as are complained of by the higher vides penalties for the maintaining of such a place. price exacted for the work.

We are dealing with a written contract, plain and comprehensive in its terms, and the case is clearly ruled in principle by Day v. United States, 245 U. S. 159, 161, 62 L. ed. 219, 221, 38 Sup. Ct. Rep. 57; Carnegie Steel Co. v. United States, 240 U. S. 156, 164, 165, 60 L. ed. 576, 578, 579, 36 Sup. Ct. Rep. 342; Dermott v. Jones (Ingle v. Jones) 2 Wall. 1, 7, 17 L. ed. 762, 764; and Chouteau v. United States, 95 U. S. 61, 67, 68, 24 L. ed. 371, 373. The judgment of the Court of Claims, dismissing the petition, must be affirmed.

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Note. As to constitutionality and effect of the Volstead Act-see note to this case as reported in 10 A.L.R. 1553.

Intoxicating liquor
possession
4. A warehouse corporation which has
leased a room in its warehouse for the stor
age of intoxicating liquors that are in the
lessee's exclusive possession and control
does not "possess" such liquors within the
meaning of § 3 of the Volstead Act of Octo-
ber 28, 1919, which provides that "no per-
son shall on or after the date when the 18th
Amendment to the Constitution of the
sell, barter, transport, import, export, de-
United States goes into effect, manufacture,
liver, furnish, or possess any intoxicating
liquor except as authorized in this act, and
all the provisions of this act shall be liber-
ally construed to the end that the use of
intoxicating liquor as a beverage may be
prevented."
Intoxicating liquor
delivery to owner
5. A warehouse corporation, by permit.
ting the owner of intoxicating liquor law-
fully acquired before the effective date of
the Volstead Act of October 28, 1919, and
stored in its warehouse, to have access to
such liquors to take them to his dwelling
for lawful use, would not be delivering
them, within the meaning of § 3 of such
act, which provides that "no person shall
on or after the date when the 18th Amend-

warehousemen Volstead Act.

warehousemen Volstead Act.

ment to the Constitution of the United barter, transport, import, export, deliver, States goes into effect, manufacture, sell, furnish, or possess, any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." Intoxicating liquors-transportation warehouse to home of owner.

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Words such as "possessed" and "kept," appearing in like context, have frequentreceived judicial interpretation. State v. Lowry, 166 Ind. 372, 4 L.R.A. (N.S.) 528, 77 N. E. 728, 9 Ann. Cas. 350; Williams v. Fireman's Fund Ins. Co. 54 N. Y. 569, 13 Am. Rep. 620.

the purpose of being sold, bartered, ex-
changed, given away, furnished, or other
wise disposed of in violation of the provi-ly
sions of the act, that, if such presumption
is rebutted by appropriate testimony, the
possession shall be considered not unlawful,
even though it be by a person not holding
a technical permit to possess it, such as is
provided for in the act.

Intoxicating liquors confiscation.

Transportation is an incident of possession, and not possession an incident 8. An intention to confiscate private of transportation. The act condemns property even in intoxicating liquors will transportation for commercial purposes; not be raised by inference and construc- but it nowhere condemns the carriage tion from provisions of law which have ample field for other operation in effecting a purpose clearly indicated and declared.

[No. 278.]

of liquor on the person only, as an incident of the right of ownership and possession. The word "transportation" is not generally applied to articles which a man carries in his clothing in the

Argued April 26, 1920. Decided November course of his ordinary ownership thereof for personal use, such as a pen or his money.

8, 1920.

APPEAL from the District Court of the United States for the Southern District of New York to review a decree dismissing the bill in a suit to enjoin interference with the storage of intoxicating liquors in a warehouse, and with the removal or disposing of such liquors by the owner. Reversed.

See same case below, 267 Fed. 706. The facts are stated in the opinion. Messrs. Joseph S. Auerbach and Charles H. Tuttle argued the cause, and, with Mr. Martin A. Schenck, filed a brief for appellant:

The Volstead Act and the Prohibition Amendment are in pari materia; and any construction of the act which would cause it to overstep the amendment should be avoided.

State ex rel. Loftin v. McMillan, 55 Fla. 246, 45 So. 882; Webb v. Ritter, 60 W. Va. 193, 54 S. E. 484.

It does not follow that because the possessor is not a person "legally permitted," therefore he is a criminal.

State v. McIntyre, 139 N. C. 599, 52

S. E. 63.

When one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over other sections in which only incidental reference is made thereto. Not because one section has more force as a legislative enactment than another, but because the legislative mind, having been, in the one section, directed to this matter, must be presumed to have there expressed its intention thereon rather than in other sections where its attention was turned to other things.

Long v. Culp, 14 Kan. 414; United States v. Jackson, 75 C. C. A. 41, 143 Fed. 783.

Pipe Line Cases (United States v. Ohio Oil Co.) 234 U. S. 548, 561, 58 L. ed. 1459, 1470, 34 Sup. Ct. Rep. 956; People v. Suydam, 204 N. Y. 422, 97 N. E. 858; United States v. 46 Packages & Bags of Sugar, 183 Fed. 642.

Assistant Attorney General Frierson argued the cause, and, with Solicitor General King, filed a brief for appellees.

Mr. Justice Clarke delivered the opinion of the court:

By the motion to dismiss the bill filed in this suit it is.admitted: That the defendant Lincoln Safe Deposit Company is a corporation, organized under the laws of the state of New York, and authorized to engage in the warehousing business; that prior to the effective date of the National Prohibition (Volstead) Act [October 28, 1919, 41 Stat. at L. 305, chap. 85], the appellant was the lessee of a room in the warehouse of the defendant Deposit Company, in which he had stored wines and liquors lawfully acquired by him, which "are in his exclusive possession and control and are intended to be and will be used only for personal consumption by the plaintiff and the members of his family or bona fide guests;" that the defendant Daniel L. Porter is an agent of the Commissioner of Internal Revenue, charged with the duty of enforcing the Volstead Act, who, in his official capacity, has publicly declared and threatened that such storage of liquor by the defendant Deposit Company would be unlawful after the Volstead Act became effective, and would expose plaintiff and the Deposit Company to the penalties of that act, which would be enforced against them; that [90] the appellant desired to continue

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