United States v. Lewis

Eighth Circuit

United States v. Lewis

237 F. 80, 150 C.C.A. 282, 1916 U.S. App. LEXIS 1939

CourtCourt of Appeals for the Eighth Circuit

DecidedOctober 16, 1916

DocketNo. 4469

StatusPublished

Cited by2 cases

This text of 237 F. 80 (United States v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Lewis, 237 F. 80, 150 C.C.A. 282, 1916 U.S. App. LEXIS 1939 (8th Cir. 1916).

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Opinion

HOOK, Circuit Judge.

In this action by the government upon a contract and bond for the construction of levee work on the lower Mississippi, the cpntractor and his sureties set up, as an excuse for a failure to restore a part of the work destroyed by flood, “that said flood was an act of God, beyond human foresight to guard against, and was not due to negligence or the default of defendants.” The government’s demurrer to the defense was overruled, it stood thereon, and judgment went for defendants.

[1, 2] The ruling upon the demurrer proceeded upon a misconception of the obligation of the contractor. It was, not that he would merely use due diligence and care, but was an absolute one to complete the work to the acceptance, by stages, of the officer in charge. The destroyed portion of the levee had not been accepted. Moreover, the contract and specifications contained the following provisions:

“It is to be understood that portions of the levee upon which payments have been made, but which have not been accepted as herein provided, shall, if damaged or destroyed, be repaired or replaced by the contractor at his own expense. * * * All damage or injury to work, resulting from floods or other causes before the work has been received by the contracting officer, shall be sustained by the contractor.”

The general rule is that, where one contracts absolutely and unconditionally to create and 'deliver a finished work to the acceptance of another, he is not relieved by casualties commonly denominated acts of God. See Berg v. Erickson, 234 Fed. 817, - C. C. A. -, and the cases cited. But the case here does not evert need this rule of construction, because there was an express agreement that the contractor should bear all damage by floods. Certainly he could not say that ordinary floods only were meant, for as against them the ordinary care and diligence which is impliedly required of every one in all activities would have sufficed.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

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HOOK, Circuit Judge.

In this action by the government upon a contract and bond for the construction of levee work on the lower Mississippi, the cpntractor and his sureties set up, as an excuse for a failure to restore a part of the work destroyed by flood, “that said flood was an act of God, beyond human foresight to guard against, and was not due to negligence or the default of defendants.” The government’s demurrer to the defense was overruled, it stood thereon, and judgment went for defendants.

[1, 2] The ruling upon the demurrer proceeded upon a misconception of the obligation of the contractor. It was, not that he would merely use due diligence and care, but was an absolute one to complete the work to the acceptance, by stages, of the officer in charge. The destroyed portion of the levee had not been accepted. Moreover, the contract and specifications contained the following provisions:

“It is to be understood that portions of the levee upon which payments have been made, but which have not been accepted as herein provided, shall, if damaged or destroyed, be repaired or replaced by the contractor at his own expense. * * * All damage or injury to work, resulting from floods or other causes before the work has been received by the contracting officer, shall be sustained by the contractor.”

The general rule is that, where one contracts absolutely and unconditionally to create and 'deliver a finished work to the acceptance of another, he is not relieved by casualties commonly denominated acts of God. See Berg v. Erickson, 234 Fed. 817, - C. C. A. -, and the cases cited. But the case here does not evert need this rule of construction, because there was an express agreement that the contractor should bear all damage by floods. Certainly he could not say that ordinary floods only were meant, for as against them the ordinary care and diligence which is impliedly required of every one in all activities would have sufficed.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

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Bluebook (online)

237 F. 80, 150 C.C.A. 282, 1916 U.S. App. LEXIS 1939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lewis-ca8-1916.

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