Beard v. United States

Court of Claims

Beard v. United States

3 Ct. Cl. 122

CourtUnited States Court of Claims

DecidedDecember 15, 1867

StatusPublished

Cited by4 cases

This text of 3 Ct. Cl. 122 (Beard v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Beard v. United States, 3 Ct. Cl. 122 (cc 1867).

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Opinion

Casey, C. J.,

delivered the opinion of the court:

In July, 1861, General Frémont was appointed to the command of the department of the west, with headquarters at St. Louis, Missouri. He was invested with all the power the President and Secretary of War could confer in regard to raising, equipping, supplying, and organizing an army to repel the threatened invasion of the loyal western States, and for descending the Mississippi. He was without any definite instructions as to the general management of, or the adoption of any system of, military operations. These matters were intrusted to his own discretion.

As a part of the system which he adopted it was determined to fortify the city of St. Louis by a circumvallation of earthworks, constructed in accordance with a general plan previously laid out under .the direction of General Lyon.

About this time the claimant arrived in St. Louis from California. General Fremont had known him there as a competent and skilful contractor on streets, roads, &e. He at once sent for him, and requested him to make an, offer for the performance of the work as laid down by the plans of the engineers in the best and most expeditious manner. That interview led to the following proposal and contract :

“ St. Louis, September 4, 1861.

“The undersigned proposes to-build all the fortifications, redoubts, bastions, and all else required, of timber and earthwork, for the defence of the city of St. Louis, from fortification No. 6, at St. Malachi church, to the northern limit of the city — all to be done according to and under the direction of the engineer or engineers in charge of the work — binding myself to complete the work in five (5) days after the same is laid out, for the sum of three hundred -and fifteen thousand dollars, ($315,000.)

“B. L. BeaRD.

“ J. C. Frémont,

“Major General Commanding.”

[126]*126The answer of General Frémont to this proposition was as follows:

“ HEADQUARTERS, September 4, 1861.

“ In order to place this city immediately in a state of at least partial defence, I recommend the execution of a contract with Mr. E. L. Beard, who makes this proposition.

“J. C. Fremont,

“Major General Commanding.

“ Brigadier General J. McKinstry,

“ Quartermaster United Slates Army.”

(Claimant’s petition, p. —.)

On the 5th day of September a more formal contract was drawn up and signed by the claimant, and by General McKinstry on behalf of the United States. That portion of the last-mentioned contract which becomes material to this inquiry is as follows :

“For all excavations, forty-five (45) cents per cubic yard. For all earth embankments, fifty-five (55) cents per cubic yard. For all puddled earth, ninety (90) cents per cubic yard. For sodding the fortifications, embankments, &c., one dollar and fifty cents ($1 50) per yard. For paving walks and yards, floors of block houses, &c., one dollar ($1) per square yard, said pavement to be of the best quality of gravel pavements. For building all cisterns, tanks, &c., for holding water, twenty-five (2(5) cents per cubic gallon of two hundred and thirty-one (231) inches,'said cisterns to be of the best quality, complete, with arched brick cover, and cement finish. For all the timber and lumber used in building the block houses, magazines, &c., and quarters of officers and soldiers, sewers, &c., and all the labor used in constructing the same, (timber and lumber to he measured in the buildings, &c., after the same are completed,) one hundred dollars ($100) per thousand feet. For constructing all the fascines, breast-works, &e., required on the works, one dollar ($1) per cubic foot. For roofing all the buildings, four dollars and fifty cents per square of one hundred superficial feet, the same to be made of the best quality of three-ply gravel roof.” (Claimant’s petition, p. 5.)

The claimant entered upon the performance of his contract, and, as the evidence shows, completed it to the satisfaction of the engineers in charge and the general commanding. The whole work performed by him under the contract amounts, at the stipulated prices, to the sum of two hundred and ninety-eight thousand three hundred and twenty-six dollars and seventy-eight cents, ($298,326 78.) Of this sum he [127]*127has been paid the sum of one hundred and ninety-one thousand dollars, ($191,000.) He brings this suit to recover the balance he alleges to be due him under the contract, viz: one hundred and seven thousand three hundred: and twenty-six dollars and seventy-eight cents, ($107,326 78.)

The United States resist this recovery, and set up as matter of defence—

1. That General Fremont had no authority to bind the United States for such expenditures without the express authority of the President or Secretary of War.

2. That the quartermaster of the department had no lawful authority to make such a contract, but that it should have been made, if at all, by the engineer’s department.

3. That the prices allowed for the work in the contract are so extravagant and excessive as to be evidence that the claimant took advantage of the want of knowledge and skill of the quartermaster to obtain these exorbitant rates, or that they colluded together to the injury of the United States; and that in either event the contract is fraudulent and void.

The view which we take of the facts and the conclusions we have arrived at upon them relieve us from considering the legal aspects of the case, as presented in the first and second points above stated.

The evidence proves that this contract was made at a time when all business and enterprise in and around St. Louis, and indeed all over the country, was greatly depressed and prostrated.

The wages of labor and the prices of material were reduced to the lowest points. Any number of common laborers could be hired at eighty cents per day; mechanical and other skilled labor at ‡1 25 per day. Lumber could be purchased at twelve dollars per thousand feet, board measure. The evidence showed that the usual price for excavation and embankment of the kind here made was from fifteen to twenty-five cents per cubic yard; the contract allows from forty-five to fifty-five. The customary price for sodding, fifteen to twenty-five cents per square yard; the contract gave. $1 50. Fascines and gabions, twenty cents per foot; by the contract, one dollar. Lumber from twelve dollars to thirty dollars per thousand feet; the contract allowed one hundred dollars. All other prices were proportionately high.

The following comparative statement and table, made by General Cullom, of the corps of engineers of the army, from actual measurements on the ground, shows what would have been the cost of these [128]*128works at the customary prices, proved by tbe witnesses, and their cost under the contract McKinstry made with Beard :

Value of materials and, labor on forts and batteries.

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