District of Columbia v. Camden Iron Works, 181 U.S. 453 (1901)

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District of Columbia v. Camden Iron Works

No. 172

Submitted March 7, 1901
Decided May 13, 1901
181 U.S. 453

ERROR TO THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

Syllabus

Any seal may be used and adopted by a corporation as well as an individual, and the same general principles respecting seals apply to municipal as well as private corporations.

It was for the Commissioners of the District of Columbia to determine whether the interests of the District required the contract in this case to be sealed. And the contract having been executed as and for the District, the seals of the Commissioners are to be assumed to have been affixed as the seal of the corporation.

Where work is to be completed within a specified number of days from the date of the execution of a contract, parol evidence that the contract was executed and delivered subsequent to its date is admissible.

Covenant will lie on a contract under seal, though not fully performed,

where absolute performance has been dispensed with.

Where strict performance by plaintiff is prevented or waived by defendant, a claim by defendant of fines and penalties for delay or failure cannot be sustained.

The matter of interest was properly left to the jury.

This was an action of covenant brought in the Supreme Court of the District of Columbia by the Camden Iron Works, a corporation created under the laws of the State of New Jersey, against the District of Columbia, to recover the price of certain iron pipe manufactured for and delivered to defendant by plaintiff in pursuance of a contract under seal. Several pleas were interposed, and among them the plea of non est factum and the plea of the statute of limitations of three years. To the latter plea a demurrer was sustained, and issue was joined on the others. The case went to trial and resulted in a verdict in favor of the plaintiff below for $11,044.16, with interest from February 27, 1888. A motion for new trial having been overruled, judgment was entered on the verdict, whereupon defendant carried the case to the Court of Appeals of the District, where the judgment below was affirmed. 15 App.D.C.198. This writ of error was then sued out.

The contract bore date June 29, 1887, and, by its terms, purported to be made by the District of Columbia of the first part, and the Camden Iron Works, by Walter Wood, president, of the second part. It concluded as follows:

In witness whereof, the undersigned, William B. Webb, Samuel E. Wheatley, and William Ludlow, Commissioners of the District of Columbia, appointed under the act of Congress entitled "An Act Providing a Permanent Form of government for the District of Columbia," approved June 11, 1878, and the party of the second part to these presents have hereunto set their hands and seals the day and year first above written.

(Signed) William B. Webb [L. S.]

(Signed) S.E. Wheatley, [L. S.]

(Signed) William Ludlow, [L. S.]

Commissioners of the District of Columbia

(Corporate seal Camden Iron Works)

(Signed) Walter Wood, Pres’t Camden Iron Works

The contract was proved and offered in evidence, but its admission was objected to by defendant on the ground that it was not under the corporate seal of the District of Columbia. The objection was overruled, and defendant excepted. The evidence showed that no action was taken by the temporary board of Commissioners appointed under the act of Congress approved June 20, 1874, looking to the adoption of a corporate seal for the District, and none by the permanent board appointed under the Act of Congress of June 11, 1878, until September 23, 1887, when the board passed an order that the seal of the District of Columbia, as adopted by an act of the legislative assembly of August 3, 1871, be placed in the official charge and custody of the secretary of the board, and it further appeared that this seal was not generally used until after the contract had been entered into, but was affixed to deeds conveying real estate, to bonds and securities, and, in some cases, to tax deeds. Plaintiff further proved that the contract was not in fact executed and delivered by the Commissioners before August 4, 1887. The evidence to this effect was objected to by defendant, the objection overruled, and exception taken.

The opinion of the Court of Appeals further states the facts as follows:

The contract provided for the manufacture of certain designated sizes of iron pipe by the plaintiff, and its complete delivery to the defendant, "within 136 days after the date of the execution of the contract, one-half of each size to be delivered on or before September 25, 1887, and the remainder on or before November 10, 1887."

For failure to deliver the pipes within the time thus fixed, the contract provided that there should

be deducted from the contract price, as in said contract specified, one percent of the contract price for all delinquent articles for each and every week day that they remained delinquent.

There was a further provision that for failure to complete the work at the time specified, there should be deducted from the money to become due under the contract "the sum of ten dollars per diem for the same period estimated as liquidated and fixed damages to the District."

In the contract there was a provision made for inspecting the iron pipes and "to determine whether there was any reason for rejection, prior to delivery." Payments were to be made after August 1, 1887, for all pipe "received and accepted in proper order and condition, less twenty percent of the amount found due, to be reserved until the satisfactory completion of the contract."

There appears to have been a suspension in the execution of the contract, owing to misunderstandings as to the qualities of the work and the inspection thereof, and consequently but a small proportion of the pipe was delivered prior to November 30, 1887. But after that date, pipe worth $11,404.09 at contract rates, according to estimate made, was delivered to and accepted by the District of Columbia, and used by the corporation. The total value at contract rates of all the pipe delivered to and accepted by the District of Columbia was $16,335.87, on which there was paid in cash $5,291.71, by two checks, which did not indicate that they were meant to be in full settlement of all moneys due under the contract, and the balance, $11,044.16, was more than counterbalanced by the fines and penalties charged up by the defendant for nondelivery of the pipe within the time specified in the contract. It was for this balance of $11,044.16 with interest thereon from the 27th of February, 1888, that this action was brought. There is no pretense that there was any demand made by the defendant for any more or other quantity of pipe than that delivered under the contract and which was refused to be delivered by the plaintiff. On the contrary, on November 30, 1887, when Captain Symons, the assistant engineer Commissioner of the District, requested that no more pipe should be cast for delivery under the contract, there remained to be cast about 340,000 pounds, on which the profits to the plaintiff at contract prices, would have been about $1,300. After the plaintiff’s letter of November 30, 1887, assenting to the cancellation of the contract as to all pipe not then manufactured, provided all pipe then manufactured should be taken and paid for at contract rates, without deductions, and Captain Symons’ reply thereto, directing the sending on of the pipe then cast and accepted by Hoyt, the value of the pipe at contract rates, actually shipped to the defendant, was $11,404.16. It was for this amount that the verdict was rendered, with interest and without any allowance or deductions for forfeitures or penalties for nondelivery of pipe within the time prescribed by the terms of the contract.

Certain instructions to the jury were requested and given by the court on plaintiff’s behalf. Instructions were also asked on behalf of defendant, and refused. To the rulings of the court in granting the instructions given for plaintiff, and in refusing the instructions asked for defendant, defendant duly excepted. The court also charged the jury generally, to which charge or any part thereof no exceptions were taken.

The errors assigned were to the effect that an action of covenant would not lie on the contract because it was not under the seal of the District of Columbia; that it was not competent for plaintiff below to show by parol evidence that the contract was finally executed and delivered by defendant at a date subsequent to that mentioned in the contract itself, from which latter date the time allowed for the manufacture and delivery of the pipe should be computed; that the manufacture and delivery of the pipe within the time mentioned constituted a condition precedent, and that no recovery could be had on the contract for any pipe delivered to and accepted by defendant after the time specified for delivery; that, if plaintiff was entitled to recover for pipe delivered after the times mentioned, defendant was entitled to offset the penalties against the contract price as liquidated damages, and that no interest ought to have been allowed in the recovery.