2d Sess. 18th Congress, contrary to its usual practice, yielded to the solicita- Petition, 1st ton, and has, in good faith, performed the award. An excep- Sess. 21st Con. tion 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, Con. Rep. 69, 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 tion of the Commissioner was drawn to this particular question, in Same, p. 92. and he proceeded to inquire whether the petitioners had incur 2d sess. 18th Con. vol. 1, Petition, 1st sess 21st Con. 2d sess. 18th Con Rep. 69, p. 92. Ex. Doc. 2d sess 20th Con. vol. 5, Doc. 21, p. 2. red any additional expense, in consequence of the increased 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 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 abandoned in the spring of 1821. On the 25th of April, 1821, Rep. 62, p. 76. 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 un 2d sess. 18th Con. vol. 1, Petition, 1st sess. 21st Con. known to the commissioner when he made his award. The The petitioners now state that the commissioner erred in not ously to show that, according to his own data, " a cubic yard dearth 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 witnesses, 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. 1, Rep. 62, p. price was in 1821. In 1824, he heard another man say they 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. 79. No one, on reading the commissioner's report, could have anticipated that the hypothetical concession the commissioner made, to show the incorrectness of the witnesses, would have been turned against him to show the inaccuracy of his report in a particular not at all connected with the concession. The petitioners commence in error in averaging the wages of the laborers at $175 per year; that price is applicable to common laborers. The price of brick makers was fifty dollars per month, so that the wages of one brick maker was within $12 50 cents of the amount the petitioners allow in their estimate, for the brick maker, two other men, and a boy. The petitioners have availed themselves of the liberal and generous allowance made by the commissioner for excavations, to prove that he did not allow them enough. In making out his report on this part of their claim, he added one-third of the labor of a common workman, as estimated by the engineers, and then awarded to them the profit of $0 27% on each cubical yard of earth excavated and removed. The petititioners deduct 52 Sabbaths, and 53 days for casualties, which leaves 260 working days, which they multiply by twelve, the number of cubical yards of earth the commissioner thought a laborer might perform in a day, and the result is, that a laborer will excavate 3,120 cubical yards of earth in a year. Taking as a data that a laborer might be hired and sustained for $175 a year, they show, by an arithmetical calculation, that the cost of excavating and removing a cubic yard of earth is less, by 11 cents, than was estimated by the commissioner. The extravagance of this calculation is made manifest, by seeing what work was performed, the number of hands engaged, and the time 2d Sess. 18th they were employed. Operations commenced in January, Congress, 1819, with a force of sixty-five laborers, besides mechanics, 69, page 30. superintendents, &c. which was increased during the year, and to May, 1820, from one hundred and fifty to two hundred. After 10th of April, 1820, two hundred slaves, or more, were employed until the spring of 1821. Some of the witnesses say, that the first year was principally occupied in making preparations. Admit this to have been the case, there was nothing Ex. Doc. 2d to interrupt the works the second year; and with all the advanSess. 30th tages the petitioners possessed, there was but 7,250 yards of Cong. Rep. earth excavated when the work was abandoned, and the other 21, page 2. parts of the work had progressed with but little better prospect Vol. 1, Rep. Same, p 2. of being completed. The committee rely on the official statement as to the work done, and not on the general declaration of witnesses. The question of profits lies within a very narrow compass, and is easily solved, if resort is made to facts that are undisputed, instead of following the witnesses through their calculations, which have no foundation in truth. The official statement proves conclusively, and is not disputed by the petitioners, that, after prosecuting the works for two years and about three months, no more work was done, than by the contract price amounted to $22,052 41, and no more articles delivered than mounted to $31,252 94, making $53,305 35. This statement is made by the Treasury Department. Mr. Swann, in his report, put these items down at $48,899 15, which gave to the petitioners $4,406 20 more than they were entitled to by the principles of the award, and more than he would have awarded if the correct account had been obtained from the Treasury. The average number of hands employed during this period was at least one hundred and fifty, and for the last year they exceeded two hundred, and were almost exclusively slaves. The petitioners pretend during this period to have expended Statement of $339,321, making a difference between the amount they say petitioners. they expended, and the work done and the materials delivered, of $286,015 65. This sum must be considered, according to their own statement, as so much lost to them at the time the contract was abandoned; but still they contend that, if they had been permitted to complete the contract, they would not only have regained this loss, but have made large profits on the contract. And how was this to be accomplished? They say by the employment of slaves. A part of the laborers, from the commencement, were slaves, and we have seen that the whole forces for the last year were of this class. All the testimony goes to prove, that the brick yards, and other preparations, were made within the first year, so that the slave labor was applied immediately on the fortification, or towards procuring materials. With this amount of loss against them, it is not perceived that the business could have been otherwise than ruinous. The committee, however, do not admit that this amount was expended. The sum expended, as appears by the books kept by Ex. Doc. 2d the clerk, is It is stated that Turner Starke expended Deduct the amount received $100,849 82 70,000 00 Sess. 20th 50,000 00 220,849 82 53,305 35 $167,544 47 This sum is less than the amount of loss they say they sustained; and, when considering the profits they claim, is more favorable to them than their own statement. But the committee cannot see how it was possible for them to have regained this loss and made any profits, if the works had not been abandoned. It could not have been by substituting slave labor; for that had been substituted a year. It could not have been in the fall in the price of provisions; for they had fallen before. All the witnesses concur in saying that the business was judiciously conducted after General Starke took the management of it, on the 10th of April, 1820; and, notwithstanding the yards were then made, the necessary vessels obtained. |