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troversy to the determination of three judicious and impartial men. That, on the first of April, 1781, an award was made by the persons to whom the decision of the question had been submitted, finding, in favor of said Benjamin Goodwin, the sum of £ 237 10 in specie, for rent and damages, up to that date.
Ii is further alleged, by the petitioner, that possession of the property aforesaid was retained, for the uses above mentioned, until the first of March, 1784, when the said ship, in an unfinished state, was sold on the stocks, by Thomas Russell, Esq. as agent for and in behalf of the United States.
The petitioner declares that no part of the said claim has ever been allowed, either to the said Benjamin Goodwin in his life time, or to the petitioner as his executor, and prays Congress for relief.
On the 3d of June, 1784, Congress resolved “that the Commissioner for settling the marine accounts, be directed to proceed to Boston, to adjust those of the Navy Board, and all other marine accounts of the United States in the Eastern Department." And, on the 234 of July, 1787, Congress resolved “that all persons having unliquidated claims against the United States, pertaining to the late Commissary's, Quartermaster's, Hospital, Clothier's, or Marine Department, shall exhibit particular abstracts of such claims to the proper commissioner appointed to settle the accounts of those departments, within eight months from the date hereof; and all persons having other unliquidated claims against the United States, shall exhibit a particuular abstract thereof to the Comptroller of the Treasury of the United States, within one year from the date hereof; and, all accounts, not exhibited as aforesaid, shall be precluded from settlement or allowance.” . This claim is undoubtedly barred by the resolve or act of Congress of 230 July, 1787, and the accounting officers of the Treasury are precluded by that act from settling the account. But the present appeal is not to the accounting officers, whose powers are limited by law, but to the justice of the Congress of the United States, whose means of granting relief are not circumscribed by any acts of limitation. And although this claim has been before Congress, at different times, from the year 1795 down to the present session, (and was, before that time, presented at the office of the Auditor of the Treasury, where it was rejected on account of the intervention of the act of Congress before referred to,) without having received the favorable attention of any of the committees to which it has been referred, your committee are, nevertheless, of opinion, that the claim ought not, on that account, to be rejected, even at this late day, provided it can be shown that it is founded in justice, and ought long since to have been paid.
It appears, from the documents accompanying the petition, that Thomas Cushing, the agent of the United States for building the ship referred to, was instructed, by a letter from the Navy Board, dated the 29th January, 1781, to submit the question of rent and damages.to arbitration ; that an award was made on the first of April, 1781, in favor of Benjamin Goodwin, for £ 237 10 in specie. A certificate signed “ Thomas Cushing,” and dated the 9th of January, 1794, shows that Benjamin Goodwin had, at that time, received no compensation for the use of his wharf, &c., on which the seventy-four gun ship was built. Thomas Russell's certificate, dated 29th January, 1794, states, “ that the seventy-four gun ship, built on Benjamin Goodwin's wharf, was sold by him at public auction, on the 1st March, 1784, and that he did not pay Goodwin any thing for the use of his wharf,” &c. And
it appears, from the affidavit of Thomas Cushing, the son of Thomas Cushing the agent for building said ship, that, when he settled the accounts of his father as Continental agent, with Benjamin Walker, the Commissioner for the Marine Department, he mentioned to said Walker, that there was another account due to Goodwin, which he could not settle at that time, as the papers were mislaid, and he could not then ascertain the amount of the demand. It further appears, from a letter of William Simmons, Auditor of the Treasury, of the 4th February, 1795, that, from an examination of the settlements of Benjamin Walker, it does not appear that Benjamin Goodwin's claim was ever settled, nor that Cushing made any charge, in his account, for the sum awarded in favor of Benjamin Goodwin, and claimed by his executor. Mr. Simmons states, that the claim was presented to the Treasury Department, in March, 1794, and rejected, because barred by the Statute of Limitations.
From the foregoing facts, your committee are satisfied that the agent of the Government used and occupied the property of the testator, for the purposes mentioned in the petition ; that the said agent was duly authorized to submit the question of rent and damages, for the use and occupation aforesaid, to arbitration ; that an award was made in favor of the then claimant, which does not appear to have been objected to or disputed ; and that the sum awarded has never been paid. It would seem to your committee, that no objection to the payment of this claim appears to exist, other than that created by the limitation contained in the act of Congress of the 230 July, 1787; and believing, as they do, that the claim is, in itself, an honest and just one, they are of opinion it ought to be paid ; and accordingly report a bill for that purpose.
FARROW AND HARRIS.
March 19, 1830.
Mr. WAITTLESEY, from the Committee of Claims, to which was referred
the case of Farrow and Harris, made the following
The Committee of Claims, to which was referred the petition of Nimrod
Farrow and Richard Harris, report:
That the petitioner, Richard Harris, on the 17th July, 1818, entered into a contract with the United States, to construct a fortification at Dauphin Island, and, on the 14th of August, 1818, he executed a bond to the United States, in the penal sum of one hundred thousand dollars, with the other petitioner, Nimrod Farrow, as his surety, for the faithful and due execution of the work, which was to have been commenced on the 1st of December, 1818, and completed by the 1st of December, 1821. On the 4th of November, 1818, Farrow and Harris entered into partnership, and filed their articles in the War Department, and, after this date, the business was carried on in their joint names, until the 10th of April, 1820, when they sold and transferred to Turner Starke, one equal moiety of the contract, and the profits to be made thereon, and a moiety of the property, real, personal, and mixed, situated at the Red Bluffs, on Mobile Bay, or on Dauphin Island, or that was connected with the works and operations then carrying on at either of those places. On the 1st of August, 1822, Richard Harris, for himself, and on behalf of his partner, Nimrod Farrow, sold and transferred to Turner Starke the residue of the property, and the contract mentioned above, including the slaves.
At the second session of the 17th Congress, (1821) no appropriation was made for carrying on the works commenced at Dauphin Island, and the necessary consequence was, that all future operations ceased. The petitioners conceiving themselves to have been greatly injured by the sudden and unexpected stoppage of the works, on the 13th of January, 1823, presented a petition to Congress, praying that an allowance might be made to them equal to the loss of the profits they might have realized, if they had been permitted to have completed their contract; and they prayed that the adjustment of their claim might be referred, either to some judicative tribunal, or to some of the Executive Departments, with full power to appoint commissioners or referees, to act on the genuine principles of judicature.” On the 3d of March, 1823, an act was passed, authorizing and requiring the Secretary of War to ascertain, by some suitable person or persons to be appointed by him, whether there had been any failure on the part of the United States, in the fulfilment of the contract for erecting fortifications on Dauphin Island; and if so, to ascertain and report to Congress at the then next session, the amount of damage thus sustained by Richard Harris and Nimrod Farrow, the contractors, by such failure; and also, to ascertain and report whether the said contractors had failed in fulfilling the contract on their part, and the cause of such failure. The Secretary of War appointed Thomas Swann, Esq. of Alexandria, well known as a gentleman of intelligence, and a lawyer of distinction, a commissioner to investigate and report on the points mentioned in the above mentioned act. The provisions of the law were as liberal as the petitioners had requested, or as could, with a due regard to the interests of the United States, have been enacted. Mr. Swann proceeded to collect such evidence as he thought necessary, on the part of the United States, and to examine and hear such evidence as was offered by the petitioners.
The commissioner decided that the United States had broken the contract, by withholding the appropriation, and inasmuch as this was during the existence of the contract, he did not determine whether, if the appropriation had been made, the contractors could have completed the works within the time stipulated in the contract, or not.
Having decided this point, he proceeded to inquire how far the Government had committed itself to the contractors, in their expenditures on this fortification. In the estimate made by the engineers, there was a mistake of 10,000 cubic yards of brick masonry, the actual quantity being, according to the plan, 29,999, and not 39,999 yards, as estimated, which made a difference in the amount the Government was bound to expend, of $ 110,000.
By the contract, the Government was obliged to pay for the erection of twenty thousand cubical yards of brick masonry, and for the removal of one hundred thousand cubical yards of earth, and it might increase the quantity at pleasure. The size of the fortification was enlarged, and the Commissioner proceeded to ascertain whether the contractors had been put to any additional expense, in consequence of the error committed by the engineers, or by the enlargement of the plan for the fortification; and he decided that no additional expense had been incurred on either account. “ It seemed to him that the preparations made by the contractors, and the expenses incur. red by them, were such as were necessary, in the fulfilment of the written contract, and not beyond the necessity of that state of the case. He accordingly felt himself bound to adopt the written stipulation of the Government, as the basis upon which his estimate of damages was to be made, and, upon this principle, the earth and brick work of this contract, for which the Government was accountable, amounted to $ 413,000.”
The wood work forming so inconsiderable an item in the account of damages sustained, no estimate of the profits, which would have resulted from this part of the work, was submitted by the contractors, nor estimated by the commissioner, farther than the same was included in the amount