Appeal from the Circuit Court of the United States for the Eastern District of Michigan. On motion for the allowance of a writ of superBedeas.

Henry M. Duffield, for appellants.

Alfred Russell, C. F. Burton, and Nathl. Wilson, for appellee. WAITE, C. J. This is a motion for a writ of supersedeas to stay the execution of a writ of assistance issued by the circuit court, after an appeal to this court, to put the appellee in possession of a part of the property involved in the litigation below. The material facts affecting the motion, as found and determined by the circuit court, or otherwise shown by the motion papers, are these:

On the seventeenth of November, 1866, Oliver, the appellee, executed to Henry S. Cunningham, Garrett B. Hunt, and Jacob Eschelman a mortgage on certain lands in Michigan to secure a debt of $35,000. Included in this mortgage was the S. frac.section 12, township 29, N., range 8 E., containing 227 5-100 acres, more or less, "with the saw-mill and other improvements thereon." In the summer of 1868,* Oliver owned and possessed other lands incumbered by other mortgages, one to Calvin Haines and Philip N. Ranney, and others to other parties, and he also owed other debts to other persons, which were unsecured, amounting in the aggregate to a large sum. On the second of September, 1868, Cunningham assigned his interest in the $35,000 mortgage to his co-mortgagees, Hunt and Eschelman, and then took a conveyance from Oliver of all his property, real and personal, for the purpose of assisting him in disposing of it, and realizing any surplus that should remain after his debts were paid. Among other lands conveyed by Oliver at this time and for this purpose was frac. section 12, township 29 N., range 8 E. The decree finds that Cunningham took this conveyance "for the joint benefit of himself and his co-mortgagees." After this conveyance was made, Cunningham, Hunt, Eschelman, Haines, Ranney, George Robinson, and Henry Robinson formed a partnership to carry on lumbering business, and to cut the timber upon the property and manufacture it. Hunt then proceeded to foreclose the $35,000 mortgage, and purchased the mortgaged property at the foreclosure sale. After this, on the thirteenth of March, 1873, Oliver filed a bill in equity in the circuit court of the United States for the eastern district of Michigan against Cunningham, Hunt, Eschelman, Haines, Ranney, and the two Robinsons, the object of which was to redeem the lands which had been conveyed to Cunningham and to charge the defendants, as mortgagees in possession, with the rents and profits of the property. Upon this bill a final decree was rendered on the twenty-first of September, 1882, finding due from the defendants to Oliver the sum of $41,488.87, for which execution was ordered, and directing the defendants to "surrender and yield up to the complainant possession of all lands transferred by said complainant to said defendant Cunningham, by deeds dated September 3, 1868," and to make, execute, and deliver to complainant good


and sufficient conveyances to transfer all their title and interest in and to the land described in said deeds, and which should describe and specify the lands as follows: "The entirety of the following lands: Entire frac. sec. 12, town. 29 north, range 8 east. *" From this decree Hunt and Eschelman alone appealed, giving security for a supersedeas. Upon section 12 is a valuable sawmill, but the complainant claims it is located on the north half of the section and not on the south half. After the appeal and supersedeas were perfected, Oliver applied to the circuit court for a writ of assistance to put him in possession of the north half of this section, and the writ was granted, on the ground that as Hunt had title only to the south half of the section, his appeal did not operate to stay the execution of the decree as to the north half. It is to stay the execu tion of this writ that the present application is made.

We think this motion should be granted. The decree appealed from finds as a fact that although the conveyance of Oliver was in form to Cunningham alone, it was taken by him for the joint benefit of himself and his co-mortgagees; that is to say, Hunt and Eschelman, the appellants. Such being the case, it is a matter of no importance that the legal title to the north half of section 12 may not have been in either of the appellants. As Cunningham took title to the whole property for them as well as himself, whatever in the decree affects that title affects them as well as him. They have been charged with the entire amount realized from the whole property, and it is impossible to reach any other conclusion, from the papers submitted on this motion, than that, in the whole proceeding below, the appellants were deemed to have been in equity grantees under the deed to Cunningham jointly with him, and that their rights under the appeal are to be governed accordingly. Certainly an appeal with supersedeas by him would on the face of the papers stay the execution of the writ of assistance now complained of, and if such an appeal would have that effect as to him, the present appeal must as to these appellants.

A writ of supersedeas, such as is asked for, may issue on applica tion to the clerk by the appellants, or either of them.

(109 U. S. 200)


(November 12, 1883.)


The appellee, a contractor, entered into a contract with the government to rebuild and repair a certain government building according to the plans and specifications furnished by the appellant, the materials and work to be furnished at the contractor's own risk and expense, and no charge for extras of any kind to be made. By the terms of said specifications the walls of the building at the time standing, and which had been damaged by fire, were to remain and to be carried up to the height designated in the plans. After the work was begun it was discovered that a portion of the walls still standing had been so injured as to be unfit for building a superstructure thereon, and the government, by its officer in command of the station, ordered the same to be razed. This required the contractor to expend more work and material than was agreed upon in the contract, and he sues for the amount of such extra expenditure. Held, that the contract must be construed to intend that the old portion of the work was to remain as a part of the new structure only so far as it was in fact fit to do so, having reference to the character and uses of the building, and that the United States had the right to determine the fact of fitness; that, this being so, it was but reasonable and just to the contractor that decision as to this fitness should be made at the outset; and as the right to make it belonged to the proprietor, the duty followed to exercise it so that the contractor shall not be misled and injured.

Appeal from the Court of Claims.

Asst. Atty. Gen. Maury, for appellant.
Enoch Totten, for appellee.

MATTHEWS, J. The principal question in this case relates to the proper construction of a building contract between the parties, entered into May 22, 1866, the United States acting by Joseph Smith, chief of the bureau of yards and docks, under the authority of the navy department, for the repair of the entrance buildings and carpenter-shop at the Norfolk navy-yard, which had been destroyed by fire in 1861, at the outbreak of the civil war. The contract required the appellee to furnish, at his own risk and expense, all the materials and work necessary for the repairs of the buildings, according to the plans and specifications annexed; the entrance buildings to be entirely completed and delivered within 120 days, and the carpentershop within 30 days, from the date of the contract. A gross sum was to be paid for the work on each, partial payments to be made during the progress of the work upon the certificate of the superintendent, and final payment when the work should be entirely completed, according to the plans and specifications, "and to the satisfaction of the party of the second part." It was declared in the contract that "no extra charge for modifications will be allowed unless mutually agreed upon by the parties, and no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity." The specifications for the entrance buildings contained the following clause, upon which the case turns: "The foundations



and the brick walls now standing that were injured by the fire will remain, and be carried up to the height designated in the plan by new work." The contract was made in pursuance of proposals, invited by an advertisement, in which it was stated that "persons desiring to bid must necessarily visit the yards and examine the present condition of the works, and can there see the plans and specifications to enable them to bid understandingly." The findings of fact by the court of claims bearing on this point are as follows:


(3) At the outbreak of the late rebellion these buildings mentioned in the contract were burnt, but portions of the walls were left standing. Prior to the proposals for work an inspection of these fragmentary walls, so left standing, had been made by the officers of the government in charge of the works, and those portions of them deemed unfit to form a part of the permanent structure were taken down, and those parts which were considered uninjured and proper to be built upon were left standing for that purpose. After the agents of the government had prepared the walls, retaining the portion which the civil engineer of the navy-yard in charge of the work supposed might be used in the new structure, the chief of the bureau of yards and docks invited the examination of bidders by the advertisement annexed to the petition, and the claimant, by his agent, visited and saw the walls so standing. At the time the claimant, by his agent, so visited the yard he was shown the walls by a quarterman acting under the civil engineer of the yard. The claimant's agent asked if those walls were to stand. The quarterman replied that they were, so far as he knew, and that Mr. Williams, the master mason of the yard, and Mr. Worrall, the civil engineer of the yard, had said that they were to stand. (But it does not appear that the quarterman was authorized to make such representations to the claimant's agent.) And the civil engineer likewise represented to the claimant's agent that the portion of the walls then standing would remain and be used in the new work. After the claimant's agent had so visited the yard and been shown the walls the claim. ant made his bid.

"(4) After the claimant had begun work under his contract it was discovered that a portion of the walls still standing had been so injured by the fire as to be unfit for building a superstructure thereon. Commodore Hitchcock, commanding the naval station, thereupon ordered that the walls be further razeed, and, pursuant to his orders, about one-third of the portion then standing was taken down by the claimant before proceeding to build. The effect of this second razeeing was that the claimant had to substitute new brick-work for that so removed; and the additional cost of construction thereby thrown upon him was the sum of $4,050; and for it he has received no remuneration additional to the price named or consideration expressed in the contract. It does not appear that at the time Commodore Hitchcock ordered the walls to be further razeed the defendant's officers made any pretense or claim that the increased expense was to be borne by the claimant as work required by the contract; nor does it appear that the claimant made any objec tion to the taking down of the walls as ordered by Commodore Hitchcock.'

The appellee claimed compensation beyond the contract price for the additional cost of construction rendered necessary by rebuilding that portion of the walls torn down by order of Commodore Hitchcock. The United States contended that it was covered by the terms of his contract.

In our opinion the court of claims committed no error in allowing the claim of the contractor.

The language of the specifications is, perhaps, susceptible of two meanings. According to one, it is as if read that "the foundations and the brick walls now standing," so far as they "were uninjured by the fire, will remain;" according to the other, that "the foundations and brick walls now standing," being such as "were uninjured by the fire, will remain." But, without going into any refinements of merely verbal interpretation, we think the meaning of the parties, explained by the circumstances attending the transaction, is sufficiently plain, and determines satisfactorily their relative rights and obligations.

It must be conceded, we think, that it was intended that the old portion of the work was to remain as part of the new structure only so far as it was, in fact, fit to do so, having reference to the character and uses of the building, and that the United States had the right to determine the fact of fitness. It was clearly its interest to do so, in advance of bidding, because if it reserved the right to make the determination at any stage in the progress of the work, or even at the time of final acceptance on its completion, the whole risk of the contingency would be thrown upon the contractor, who could only indemnify himself by an increase in the estimate of probable cost; and the government would thus be compelled to pay for an uncertainty which could as well be resolved in advance. The United States having a right to determine the fact, it would be reasonable, having regard merely to its own interests, to do so before letting the contract. It would be equally reasonable and just to the contractor that the decision should be made at the outset; and as the right to make it belongs to the proprietor, the duty follows to exercise it so that the contractor shall not be misled and injured.

Under the circumstances in the present case, and according to the terms of the specifications, we think it was the duty of the officers acting for the United States, the right performance of which the government assumed, to point out to the bidders the parts of the foundations and walls which were in fact so far uninjured as to enter into the new structure, and that this was actually done by dismantling and stripping the burnt building, so that upon inspection of what was left standing the proposing contractor would be able by measurement to ascertain precisely what new work he was to do, and be paid for. To require him to determine the fact for himself provisionally, subject at any time before completion of the work to have his judgment reversed, and to be required in consequence to perform work which he could not and did not provide for in his estimates, would be unreasonable and unjust. The inspection invited by the advertisement was not for the purpose of assisting the contractor to determine subject to such a condition the question of the fitness of the standing walls to remain, but was, as we think, that he might see, as part of the plan of the work, what the authorized agents of the United States had designated as intended to remain in the permanent structure. It was the duty of the United States to point out the work deemed to

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