Imatges de pÓgina

SS3.19t!: Con.

Then the committee reported this section of the bill, and Same p 19. en 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 ceed 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, 1920, to the time said reporis 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 connittee on the day of

; 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 possession of the said slaves and personal property by the United States,

To carry into effect the provisions of the fourth section above Es, Doc. 1st cited, the Secretary of War, on the 2d of May, 1825, gave or

Doc. 104, p. 7. ders 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 succee led Captain Gadsden at Mobile Point, and io 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 Mr. Burch, and was represented by his agents in taking the testimony. The result of the in

Same, p. 8 vestigation 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, Same, p. 51. 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 benefits of the first parties hereto, but to be subject

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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 remain 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. Same, p. 28. Captain Gadsden and Captain De Russey were the officers in Same, p. 27. 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, 1920, until thc Ist 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 Captain Burch having satisfied the Secretary of War that the property mentioned in the deed of trust to Captain 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 session 19th Congress, vol. 1, rep. 69; and the report of Captain Burch, and the depositions he obtained, are contained in the Executive papers of the House, 1st session 19th Congress, vol. 5, rep. 104, to both of which the committee refer.

The 1st question is, are the petitioners entitled to any farther allowance? If they are, 2d on what 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.

ingress, contrary to its usual practice, yielded to the solicita- Petition, 1st 21, and has, in good faith, performed the award. An excep-Sess. 21st Con. tica is now taken to the appointment of the commissioner, and ne 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, Con. Rep. 69,

2d Sess. 18!h the petitioners asked that it should be referred either to some p. 17. 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 judi. cious, and to have been acquiesced in by the petititioners—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 show 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 al- Same, p. 17. lowed, by the principle governing the decision. The principle adopted by the commissioner was that for which the petitioners contended. In the 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 or of 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 specially 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 sums shows the amount of compensation to the complaining party.”

By referring to the report of the commissioner, it will be Same, p. 93 seen that he was governed by this rule.

It is now said that he erred in not computing the profits on the works, as intended by the estimate of the Board of Engineers. The United States bound themselves to construct thirty thousand cubical yards of masonry, and to excavate 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 atten

P. 92.

tion of the Commissioner was drawn to this particular question, Same, p. 92. and he proceeded to inquire whether the petitioners had incur

red 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 2d sess. 18th would have been, if the plan had not been variel. The terns Con. vol. 1, Rep. 69, p. 17.

of the contract, in substance, are, that the United States will employ the petitioners to construct at least 30,000 cubical vards of brick masonry, and will pay them 611 per yard, and will employ them to excavate and remove 100,000 cubical yards of earih, and will pay them $0 83% per yard; and, if they em

ploy them to do more, they will pay them at the same rate. Petition, 1st The petitioners say the commissioner erred in making no alsess 21st Con. lowance for the profits on the wood and iron work of the for2d sess. 18th tification. The reason assigned by the commissioner for makCon Rep. 69,

ing 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 Ex. Doc. 2d other materials in an unfinished state. It is to be borne in mind sess 20th Con. that the United States were to pay for all the materials as they vol. 5, Doc.

were delivered, and that, when the work was abandoned, they 21, p. 2.

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 3d, 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 2d sess. 18th Con. vol. 1, abandoned in the spring of 1921. On the 25th of April, 1821, Rep. 62, p. 76. a contract was entered into between Gilbert C. Russell and Tur

ner 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 commissioner when he made his award. The committee refer to it among the documents in the case of Gil

bert. C. Russell, 2 sess. 18 Con. rep. 62, p. 76. Petition, 1st The petitioners now state that the commissioner erred in not sess. 21st Con. carrying out his own principles, and they undertake very inge

cously to show that, according to his own data, “ a cubic yard d earth excavated and removed would cost but 44 cents, whereas the commissioner computed the expense at 56 cents, and that, therefore, he was not allowed enough for the profiton the excavation by 14 cents per yard, which, on 100,000 yards, the minimum amounts to $11,000, and over.” And they undertake further to show, that four hundred and fifty brick, the number (including wastage in removing and laying) requisite for a cubic yard of brick

masonry, will cost, on the data taken by the commissioner, only $3 15, whereas he computed their cost at $4 50, making a difference of $1 35 in each cubic yard, which, in 30,000 yards, amounts to $40,500. By examining the report of the commissioner, the fallacy of these calculations will appear to be most apparent; several of the witnesses, if not all of them, had stated, that, if the works had not been abandoned, the contractors would have made large profits. To arrive at this conclusion, they estimated the expenses necessary to be incurred, at a comparatively small sum, and the time within which the works would have been completed, they put at periods, varying from eight to eighteen months; one or more of the witnesses had stated that a brick maker, with two men and a boy, would make 100,000 brick in a year, and cut the wood necessary for burning them. In order to prove the incorrectness of the conclusion of the witdesses, both as to the expense of finishing the fortification and the time within which it might be completed, the commissioner, 2d sess. 18th for the purpose of argument, concedes that a brick maker, with Con. vol. 1,

Rep.69, p. 101 two men and a boy, would make 150,000 brick in a year, and cut the wood for burning them; and then he demonstrates, by an arithmetical calculation, that it would require fifty brick makers, with one hundred and fifty men and boys, three years, to make the brick, without including the labor of transporting them to Dauphin Island. The petitioners avail themselves of this concession in this way. They say that three men, at $175 a year, and a boy at half price, would cost. $ 612 50, and if they made 150,000 brick in a year, the cost of the brick on the yard would be $4 08, per thousand. The transportation of them they put down at $2 per thousand, and casualties at an amount sufficient to make the brick, when delivered, cost $7 per thousand; and as one cubic yard of brick masonry contains (with an allowance of wastage as mentioned before) 450 brick, the cost of them is only $3 15, instead of $4 50, as estimated by the commissioner; they say they are entitled, therefore, to $ 40,500 on this account.

This view of the case they think is corroborated by the testimony of Major Henry, and he is made to say, “ that, in 1821, Petition, 21st bricks were sold at Mobile for $5 62 per thousand.” Major Con. Henry stated in his deposition, that he did not know what the 18th Con. vol. price was in 1821. In 1824, he heard another man say they 19.

1, Rep. 62, p. were $5_62 per thousand. The contract made between Gilbert C. Russell and General Starke, establishes the price of brick, in 1821, to have been $14 per thousand.

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