Cronan v. Peters

9 La. Ann. 468

• Court: Supreme Court of Louisiana
• Decided: June 15, 1854
• Status: Published

Opinions

Ogden, J.

The Government of the United States, on the 16th of November, necessary to the building of the customhouse in New Orleans. The contract was executed on the part of the Government by Denis Priew, Aide Labranahe and William if. Gioin, in the capacity of Commissioners on behalf of the United States, and was approved by the Secretary of the Treasury. These Commissioners were appointed by the Secretary of the Treasury under power vested in him by law. The following facts are material for the proper understanding of the respective rights and obligations of the parties: 1848, entered into a contract with the plaintiff for the hauling of the materials

“ That, whereas, in compliance with the acceptance on the part of said parties •of the second part, of the proposal made by said party, if the said party of the first part, of the 30th October, 1848, to do all the hauling of the materials necessary to the building of said customhouse, said party of the first part doth hereby covenant and bind himself to and with said party of the second part, to do all the hauling of the building materials which may be deemed necessary for the erection of said customhouse, at the same rates and agreeably with the tariff established by the general council of the city of New Orleans, on the 5th June, A. D., 1843, in such cases, said party of the first part binding himself to do and perform said hauling when thereto required, without prejudice to the progress ■of the work on said building, and at all times and at such places as may be designated by the superintendent of said building or by the architect thereof, to have and deliver said materials; and in case said party of the first part fail in any respect to do and perform said hauling when thereto required, and in the manner hereinafter stated, then said party of the second part shall have the right to go out and employ others to do said hauling, and said party of the first part by such failure or neglect shall forfeit to said party of the second part the difference, if any, in price, which said party of the second part may have paid by reason of such default; and said party of the first part, as well as his surety in the bond to be given by him, given for the faithful performance of the stipulations of this contract, shall forfeit and be responsible to said party of the second part for such damages as may have been incurred in the progress of the work on said building, by reason of the default of said party of the first part in furnishing and delivering the materials when required; and said party of the first part doth hereby covenant and bind himself to and with said party of the second part,

“1st. To haul all the building materials, including the granite, and to deliver the same when thereto required, at such points as may be designated by the superintendant or architect of said building, in good order and free from all injury from hauling or otherwise, the granite to be delivered free from breakage, or being soiled in its transmission from the Levee to the site of the building, and the said parties of the second part acting in their capacity aforesaid, do hereby covenant and bind themselves to and with said party of the first part, to pay unto said party of the first part, the same rate and amount per load for hauling said building materials as are established by the ordinance aforesaid, and now in force in this city upon such subjects; except, however, as to the granite, said party of the second part agree and bind themselves to pay unto said party of the first part, the same amount and rate per load as paid by the Second Municipality of the city of Now Orleans, for hauling the granite necessary for the new Municipal Hall, said rates, however, to be increased or diminished in proportion to the extra distance over which the granite shall or may be hauled for the customhouse, when compared with the distance over which the granite for the new Municipal Hall has been hauled. Said payment to be made by said parties of the second part on the delivery of said building materials in accordance with the stipulations of this contract, or at such times as the contracting parties may agree upon hereafter.

“Now, it is expressly understood by these presents, that the foregoing contract and all the stipulations therein contained are subject to the approval of the Secretary of the Treasury of the United States, and binding only in the event of his approval. And it is further understood, by and between the parties here contracting, that the payments to be made, said parties of the first part shall depend only upon the appropriations ipade by Congress, from time to time, for the completion of said customhouse.”

By the contract, the plaintiff bound himself in a penal sum, with security, to do all the hauling of the building materials, when thereto required, at the rates established by the tariff adopted by the City Council in 1848, and it was stipulated that on his default at any time, the Government might employ others to do the hauling, and hold him and his security liable for any difference in the price of hauling they should have to pay.

The Commissioners, by whom this contract was made, were succeeded in office by S. J. Peters, J. W. Groekett and W. Turnbull, against whom this action is brought to recover from them in solido $0050 as damages alleged to have been sustained by the plaintiff, up to the time of filing the petition, by reason of the wrongful act of defendants in depriving the petitioner of a profit of that amount, which he would have realized from his contract if the Commissioners had not contracted with other parties for the hauling of materials, in violation of the petitioner’s rights under said dbntract to do all the hauling of the materials necessary for the construction of the customhouse. It appears that some time before the contract was entered into with the plaintiff, the Government had made a contract, through the agency of the same Commissioners, with Kendall & Co. to furnish the Government a large quantity of bricks, and that on default of those contractors furnishing the bricks as required, it was stipulated the Government should have the right to purchase bricks from any other persons and hold the contractors responsible for any difference in price they might have to pay. These contractors having made default, the defendants, , acting as Commissioners, made contracts with other parties for the purchase of bricks, and included in the contracts that made the hauling of the bricks to the customhouse; whereas, by their contract with Kendall & Co. the bricks were deliverable at the levee, from which place the plaintiff, under his contract, was entitled to have the hauling. It is for the hauling of these materials, for which it appears by the evidence, the plaintiff would have been entitled, if he had done the hauling, to charge $6563 95, that a recovery is sought to be had from the defendants, in the shape of damages for their illegal act in making contracts with other parties for the delivery of bricks at the customhouse. The suit is prosecuted against defendant, Peters, alone, the other defendants not having been served with process, and it is averred that Peters especially, of his own illegal and personal acts, and without the sanction of- the Government, prevented the plaintiff from doing the hauling, by inducing certain persons to agree with the Commissioners to sell them bricks deliverable at the customhouse, including the hauling. It is averred in the petition that defendant became the disbursing agent of the Government in the matter of their contract with the petitioner, and that he had violated the rights of the plaintiff in the several particulars as before stated.

On the 21st of June, 1851, a letter was written by the Commissioners to the Secretary of the Treasury, informing him that the plaintiff complained of these acts as being in violation of his rights, and claimed to be paid the contract prices for the hauling thus done by others, and requesting instructions on the subject. In this letter they state that when they were compelled to purchase bricks from others, they found they could only get them at a reasonable price by allowing the persons from whom they were purchased, the benefit of contracting to deliver them at the site of the building, and that it is the universal custom to buy such bricks delivered. They further state that, although the plaintiff insisted that by a proper construction of his contract, he was entitled to all the hauling, under all circumstances, they, the Commissioners, thought a reasonable construction of the contract was, that they should give the plaintiff all the hauling of materials required and purchased under ordinary circumstances. To this’ letter the Commissioner of Customs at Washington, to whose department the letter was referred, replies of date July 11th, 1851, approving the construction the Commissioners had placed on the contract, and instructing them not to pay the plaintiff. A subsequent letter from the Commissioners, which bears date the 30th June 1852, after this suit was brought, is also in evidence, in which they ask for more explicit instructions on the subject. In this letter they state that they conceive it to be their duty, in making purchases, to obtain all articles on the most favorable terms; yet, in so doing, their action is necessarily controlled by existing contracts, so that no wrong be done to a contractor. That in making their recent contract with Mr. Blana for press bricks, his proposition was for §18 50 per thousand, delivered at the Basin, and §20 per thousand, delivered at the customhouse; that as Gronan's price, according to the contract, for hauling was about $2 25 per thousand, it was obviously the interest of the Government to accept the latter price delivered at the building, and it was accepted, but that Cronan considered it to be an evasion of the contract with him, and with some apparent reason. They express in this letter the desire to avoid any act that may have the semblance of an attempt to evade the contract with the plaintiff, and say that if, in the opinion of the Secretary, Mr. Blanc's first proposition should have been accepted, there would be no difficulty in altering the contract with him. To this letter no answer from the Secretary is exhibited.

On this state of facts we will first enquire whether the contract with the plaintiff was violated. He had bound himself, under a stipulated penalty, to do all the hauling at certain fixed rates, and was consequently under the obligation of being always ready with the requisite teams and laborers. This obligation produced a co-relative right on his part to have the benefit to be derived from the employment of his teams in doing all the hauling, and as it is evident that the hauling, subject to the qualification in said article stated, which he complains was given to others, not from necessity but for the advantage of the Government in procuring the hauling to be done at cheaper rates than they would have had to pay him, we think it was a clear violation of the contract, for which the Government is responsible in damages to the plaintiff. As to what would be the measure of those damages, if the Government could be sued, and was a party to the record, the rule is furnished in Art. 1928 of the Civil Code. It would be the amount of the loss the plaintiff has sustained and the profit of which he has been deprived. It was one of those obligations, which, from its nature, resolves itself into a claim for damages on the inexecution of the contract by either party, and the prices which the plaintiff would have been entitled to charge, if he had done the hauling, would not be a standard by which those damages could be estimated without other proof in connection, showing either an actual loss or privation of gain. But the defendant is charged with a violation of his duty as a public officer, from which, loss, it is said, resulted to the plaintiff, and that he has therefore rendered himself liable for damages as for a tort, and that in such a case proof of the specific damages is not requisite.

The appellee’s counsel do not appear to have considered the case as an action for damages, arising ex eonPractu, which, it is clear, could not be maintained without any personal promise or undertaking on the part of the defendant, and the question to be decided is, whether an agent or officer of the Government can be held liable for damages ex delicto, by his failing to execute a contract which his principal had made, in accordance with the just rights of the party contracting with his principal, although the principal ratifies and adopts his acts.

If the plaintiff had actually done the hauling, and the defendant, as disbursing agent, had received the money to which the plaintiff was entitled under his contract, the refusal of the defendant to pay it over to him, might have been a violation of his duty as a public officer, rendering him personally liable; but as the hauling was not done, and the claim is one for damages, depending on the proper construction to be given to the contract, the true and proper character of the action would seem to be one for the breach of a covenant. The defendant, if personally liable, could only be condemned on proof of actual breach of the contract, according to its true legal interpretation, and of actual loss and damage sustained by the plaintiff; and those two questions could only be properly determined in an action to which the principal himself was a party. The difficulty that the Government cannot be sued, furnishes no ground for holding the defendant personally liable in such an action, which, from its nature, we can view in no other light than one involving a question of damages for an alleged breach of contract The contract was a public one; the defendant had no personal interest in it, and as the contract itself was not obligatory upon him, he could not be held liable for the consequences of a violation of it, by the erroneous interpretation of it, which the Government ratified. The ratification was equivalent to an original authority on the principle, “onmis rati hdbitio man-dato aquiparator.” Livermore on Agency, vol. 1, 44. The duty which the defendant had to perform in superintending the execution of contracts made by previous agents of the Government, and making such new contracts as might become necessary, was not merely ministerial but required the exercise of discretion and judgment, and in such a case an officer cannot be held person.'iHy liable. Stokes v. Kendall, 8 Howard R., 88.

The qase of Elliot v. Swartwout, 10 Peters, 136, has been relied on in support of this action. In that case the Collector of Customs was hold liable for damages for his wrongful act in seizing the goods of certain importing merchants for duties which by law he had no right to exact. The principle there settled was, that where money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal, when he has had notice not to pay it over. If the plaintiff had performed the services, for which, under his contract, he was entitled to be paid, the case cited would go far to sustain an action against the defendant; but the principle involved in the pi-esent action is altogether different.

We find nothing decided in the case of Osborne v. the Bank of the United States, 9 Wheat. 738, which can by analogy sustain the present action. In that case the Treasurer of the State of Ohio was held personally liable, not because the State was exempt from being sued, but on the ground that he was in possession of, and kept as a separate and distinct fund, money which had been taken from the vaults of the United States Bank, in levying a tax on the Bank under a law of the State of Ohio, which was held to be repugnant to the Constitution of the United States and therefore void.

We have not been referred to any authority which we think can support the plaintiff’s action, and agree with the conclusion of the court below that the case ought to be dismissed.

Judgment of the court below is therefore affirmed, with costs,