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arded for the damages sustained, by putting an end to the contract. He estimated these damages, and the loss on the timber and such other materials as were in progress when the works were stopped, at eight thousand dollars.
The engineers did not lay out the fortification so that the contractors could commence operations by the 1st of December, 1818, but were delayed until some time in January following, for which he allowed four thousand dollars.
Having agreed on the principle, the commissioner proceeded to ascertain what it would have cost to complete the fortification, so as to give to the contractors the entire profits they would have enjoyed, if they had completed the works.
In making out the estimate of the expense of the fortification, the engineers had based their calculations on the supposition that a day's labor of a common laboring man would be worth one dollar and twenty-five cents per day. Labor, provisions, and clothing, having fallen in price during the existence of the contract, the commissioner, in making out his award, estimated the labor of a common laboring man to be one-third less than the price fixed on by the engineers, which gave a profit to the contractors of one-third in this expense. The engineers had supposed, that a common laboring man would excavate eight cubic yards of earth in a day. The commissioner based his award on the supposition that a laboring man would excavate twelve cubic yards of earth in a day. So that an advantage was given to the contractors by the commissioner, in his award of one-third in the reduction of the price of labor, and an advantage of one-third in the quantum of labor a man could perform, when that labor was directed towards excarations.
By the contract, eleven dollars was the estimated price of every cubic yard of brick masonry
Four hundred and nine brick, with the necessary mortar, would construct a cubic yard of wall; but the commissioner, in his estimate, made an allowance for the loss of brick in removing them from the kiln, and in laying them into the wall, and computed that, with such losses, four hundred and fifty would be consumed in each cubic yard of wall. He estimated that each cubic yard of brick masonry, including brick, mortar, and laying, would cost the contractors six dollars and nine cents, which, deducted from eleven dollars, gave a profit of four dollars and ninety-one cents on each cubic yard.
By the contract, the contractors were to receive eighty-three cents and eight tenths for each cubic yard of earth excavated, removed, and deposited. The commissioner estimated that this expense would be fifty-six cents per each cubic yard of earth so excavated, removed, and deposited: which gave a profit to the contractors of twenty-seven cents eight tenths per cubic yard of earth. In constructing thirty thousand cubic yards of brick masonry, and in excavating and removing 100,000 cubic yards of earth, the contractors were entitled by the contract to the sum of four hundred and thirteen thousand eight hundred dollars.
The contractors had performed work and delivered materials, at the time the United States put an end to the contract, to the value of $ 48,899 15, as he reported. Having established the principles of his award, and having made his calculations according to the data given, the commissioner opened an account between the United States and Farrow and Harris, as follows: DR. . United States to Farrow and Harris. To work done and materials furnisherl, up to the period of the aban. By cash received from the United di nment of the contract, $48,899 15 States at different times, $162,251.37
To balance which would be due the contractors upon the com
By the expense which pletion of so much of
would have attended so the work as the Govern
much of the work as ment had bound itself
the Government was to perform, . - 364,900 85 bound to perform, - 189,800 85
To damages and injuries sustained by the sudden and unexpected abandonment of the
By balance due the work, - - - 8,000 00 contractors, - - 73,747 78
To damages arising from the failure of the Government to designate the spot in due time upon which the works were to be erected, •
He awarded, that the suits depending against Farrow and Harris be dismissed, and that the sum of $73,747 78 be paid to them. An act passed for the payment of this money on the 3d of March, 1825.
The fourth section of that act is as follows: “ That an inventory be taken of such personal property as shall be returned to the said Farrow under the provisions of this act, and an estimate of its value be made, under such regulations as the Secretary of War may prescribe, and that there be paid unto the said Farrow such difference as exists between the value of the personal property, at the time the same was taken possession of by the Government, and its return, together with the value of the personal property destroyed or lost while the same was in the possession of the Government, except the same was destroyed by the act of God."
When the committee reported this section of the bill, and when the report was made that accompanied the bill, the committee entertained the opinion that a large number of slaves and personal property, of very considerable value, were in the possession of an officer of the United States by virtue of the trust deed executed by Farrow and Harris to Captain Gadsden, as Agent of the United States, and that said property had so been in the possession of the officers of the United States, and used for the benefit of the United States, from the 10th of April, 1820, to the time said reports were made. It is proper to remark, that the award of the Commissioner was not signed until the 27th of January, 1825; that the subject was referred to the Committee on the
; and that the report was made on the 16th of February, 1825. The committee expressly negative the idea that the evidence was closely scrutinized, and although mention is made that the sum awarded will not compensate the petitioners for the losses they sustained by the suspension of the work, yet it will be seen, that the principal losses, not compensated by the award, was on account of the supposed zossession of the said slaves and personal property by the United S'ates.
To carry into effect the provisions of the fourth section above cited, the Secretary of War, on the 2d of May, 1825, gave orders to Captain Burch, Assistant Quartermaster, to proceed and collect testimony in relation to the property mentioned in the deed of trust to Captain Gadsden, as well on the part of Mr. Farrow as on the part of the United States; to make an inventory of the property in the possession of the United States by virtue of said deed of trust; to obtain the original deed of trust from Captain De Russey, who succeeded Captain Gadsden at Mobile Point, and to make a report to the Secretary of War of the evidence taken and the papers obtained: Mr. Farrow was notified of the directions given to Captain Burch, and was represented by his agents in taking the testimony. The result of the investigation was, that no officer or agent of the United States ever had possession of the slaves or other property mentioned in the deed of trust; that the deed was executed to Captain Gadsden to cover the property, and thereby, prevent the creditors of Farrow and Harris from levying their executions on it.
On the 10th of April, 1820, Farrow and Harris sold out one moiety of their contract, and one moiety of all their property, real, personal, and mixed, which was in any manner connected with the building of the said fortification, as mentioned above, to Turner Starke; the second article of which agreement is in the following words: • The said first parties agree hereby to put the said Starke in immediate possession and custody of all the property, tools, materials, buildings, machinery, and every thing whatsoever, that now are at either of the above mentioned places [Red Bluffs, or Dauphin Island) or which may have been at any time used in the operation aforesaid, one equal moiety whereof to be in his own right, and the other moiety in trust, for the benefit of the first parties hereto, but to be subject solely to the absolute control of the said Starke, until the contract first alluded to in this agreement (meaning the agreement to build the fort] is fully complied with.”
By a provision in the 3d article, the slaves were to be placed in the possession of Starke.
The 8th article is as follows: “ That all negroes, and all the other property transferred or delivered pursuant to this agreement, shall be and re. main with said Starke, and not to be sold or disposed of in any manner, or to be removed under any pretence, until the agreement with the Government is completed.”
Provision was made in the 9th article to convey the property to James Gadsden, in trust, to secure the Government in the performance of the original agreement, but nothing is said of delivering possession to him; and on the same day the deed of trust was executed.
Capt. Gadsden and Capt. De Russey were the officers in command on that station, and they both say they never had possession of any part of the property referred to in the deed of trust. J. T. Ross, administrator of said Starke, testifies, that “ Turner Starke did exercise ownership over the one half of the negroes named, from the aforesaid tenth day of April, 1820, until the 1st day of August, of the same year; subsequently, he and his representatives have exercised ownership on the whole.” The last date is the day on which Mr. Harris, for himself and for Mr. Farrow, sold and transferred to Mr. Starke, the remaining moiety of the property, not conveyed by them on the 10th of April.
The evidence procured and reported by Capt. Burch having satisfied the Secretary of War that the property mentioned in the deed of trust to Capt. Gadsden, had not been in the possession of the United States, or any of their officers, no allowance was made the petitioners under the 4th section of the act of March 3d, 1825, by the then Secretary of War.
The report of the commissioner, Thomas Swann, Esq. and the evidence on which he acted, are contained in the Reports of Committees, 2d sesion 19th Congress, vol. 1, rep. 69; and the report of Capt. Burch, and the deposisitions he obtained, are contained in the Executive Papers of the House, Ist ses. 19th Congress, vol. 5, rep. 104, to both of which the committtee refer. * The 1st question is, are the petitioners entitled to any farther allowance? If they are, 2d. on whai account? and 3d. To what amount?
In ordinary cases, when a matter of claim is left to the arbitrament of a third person, his award is conclusive, unless the party wishing to annul it can prove fraud or corruption, or that it was obtained by undue means. Congress has not very frequently granted relief when the question has been adjudicated in one of her courts, and been decided on its merits. The petitioners were unwilling that Congress should investigate and decide their claim when it was first presented, and asked, that some person or persons should be appointed for that purpose. Congress, contrary to its usual practice, yielded to the solicitation, and has in good faith performed the award. An exception is now taken to the appointment of the commissioner, and the petitioners say he was not mutually chosen by the parties, but an Agent of the Government, to examine into the claim, and report the result of his examination to Congress, and that his report is therefore open to correction, if he erred either on one side or the other. " When the claim was first presented, the petitioners asked that it should be referred either to some existing judicative tribunal, or to some of the Executive Departments; with full power to appoint commissioners or referees, to act on the general principles of judicature.” If they made any objections to the appointment of Mr. Swann, they are unknown to the members of the committee, or have escaped their recollection. The appointment is believed to have been judicious, and to have been acquiesced in by the petitioners—at least they submitted their evidence to the commissioner, and received the money he awarded. Waiving all right to conclude the petitioners by the award, the committee think they should shew clearly, that injustice has been done them, either by the adoption of an incorrect principle in deciding their claim, or by the exclusion of a part of it, which should have been allowed, by the principle governing the decision. The principle adopted by the commissioner was that for which the petitioners contended. In their first memorial they said, “neither party having any privilege to alter or modify his contract, the true rule, which has been sanctioned by the experience of ages, and by the moral sense of mankind, and which prevails equally in either forum of common law orof equity, is, that the party failing shall compensate the party complying, by placing him in as good a condition, in point of advantage and profit, as if the contract had been specifically performed. This result is to be ascertained, the whole cost and charge that the contractor would have incurred, if he had been permitted to go on with the works: then the sum of compensation which he would have been entitled by the contract to demand for the whole work. The difference between these two aums shows the amount of compensation to the complaining party."
Brreferring to the report of the commissioner, it will be seen that he te governed by this rule.
It is now said that he erred in not computing the profits on the works, as niended by the estimate of the Board of Engineers. The United States band themselves to construct thirty thousand cubical yards of masonry, and sexcavate and remove one hundred thousand cubical yards of earth They had reserved to themselves the right of varying the plans as they thought proper, without diminishing the minimums mentioned.
The estimate of the Board of Engineers was based on a work which, if completed on the plan then adopted, would have required the construction of more than thirty thousand cubical yards of brick masonry, and the excavation and the removal of more than one hundred thousand yards of earth. The attention of the Commissioner was drawn to this particular question, and he proceeded to inquire whether the petitioners had incurred any additional expense, in consequence of the increased estimate of the Board of Engineers; and the result was, that they had not. And he took the written contract as the basis upon which his estimate of damages was to be made; and the committee think in this, that he decided correctly, and that the party cannot claim an ideal profit on the enlargement of the plan, when his preparations and expenses were no greater than they would have been, if the plan had not been varied. The terms of the contract, in substance, are, that the United States will employ the petitioners to construct at least 30,000 cubical yards of brick masonry, and will pay them $ 11 per yard, and will employ them to excavate and remove 100,000 cubical yards of earth, and will pay them 50 83 per yard; and, if they employ them to do more, they will pay them at the same rate.
The petitioners say the commissioner erred in making no allowance for the profits on the wood and iron work of the fortification. The reason assigned by the commissioner for making no specific allowance in these particulars is, that there was no proof before him to satisfy him what the profits would have been. By examining his report, it will be seen that he allowed eight thousand dollars for bricks on the yards, and timber and other materials in an unfinished state. It is to be borne in mind that the United States were to pay for all the materials as they were delivered, and that, when the work was abandoned, they had paid $3,657 30 for boards, $ 1,191 96 for timber, and $260 30 for nails, iron, and smithing. If there were any materials in progress, but unfinished, as there undoubtedly were, the petitioners have been paid, 1st, for the profits of the whole work as if it was completed; 2d, eight thousand dollars for damages for abandoning the work by the United States, and for materials in an unfinished state, and not delivered, and 3rd. such materials as were not delivered, but in progress, remained with the petitioners, or their agent or partner, Genl. Starke, and have accrued to their or his benefit. The contract was abandoned in the Spring of 1821. On the 25th of April, 1821, a contract was entered into between Gilbert C. Russell and Turner Starke, whereby Starke agreed to deliver one million of brick at Mobile Point, to Mr. Russell, between that date and the 1st of November following, for which Mr. Russell agreed to pay him at the rate of fourteen dollars a thousand. If there were bricks upon the yards at the time the contract was abandoned, the supposed damages have been compensated, and the bricks were sold at the price the engineers estimated them to be worth when the contract was made with the petitioners. This agreement between Mr. Russell and General Starke was unknown to the