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FARROW AND HARRIS.
MARCH 19, 1830.
Mr. WHITTLESEY, 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:
sess. 19th Con.
That the petitioner, (a) Richard Harris, on the 17th July, (a) Reports 20 1818, entered into a contract with the United States, to con
sess. 18th Con.
No. 69, p. 17. struct a fortification at Dauphin Ísland, and, on the (6) 14th of (6) Same,p.17. Augusi, 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 security, for the faithful and due execution of the work, which was to have been commenced on the 1st of December, 1918, and completed by the 1st of December, 1821. (c) On the 4th of November, 1818, Farrow and (c) Same, p.20 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 10 (d) Turner Starke, one equal moie- (d) Ex. Doc. 1st ty of the contract, and the profits to be made thereon, and a
vol.5, Doc. 104, 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. (e) On the 1st of August, 1822, (2) Same, p.53. 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 Seventeenth 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, (1) 2d session, presented a petition to Congress, praying that an allowance 18th Con. Rep.
69, p. 7. 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 prin(3) 7th volume ciples of judicature. (g) On the 3d of March, 1823, an act was Laws, p 7. passed, authorizing and requiring the Secretary of War to ascer
tain, by some suitable person or persons to be appointed by him, whether there had been any failure on the pari 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. Svann 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. (h) Reports, 2d (1) The commissioner decided that the United States had sess 18th Con. broken the contract, by withholding the appropriation, and invol. 1, Rep. 69, asmuch 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 sti
pulated in the contract, or not. (i) Same, p.92. (i) 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 crection of 20,000 cubical yards of brick masonry, and for the removal of 100,000 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
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 incurred by them, were such as were necessaTy, in the fulfilment of the written contract, and not beyond the necessity of that state of the case. He accordingly felt himself
band to adopt the written stipulation of the Government, as the casis upon which his estimate of damages was to be made, and, apon this principle, the earth and brick work of this contract, for which the Government was accountable, amounted to $+13,000.”
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 awarded 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 $ 8,000.
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 otj one-third in this expense. The engineers had supposed, that a common laboring man would excavate eight cubic yards of earth in a day. (2) The commissioner based his (k)Same p. 94. 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 excavations.
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 remove ing 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 dolJars 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 carth. In constructing thirty thousand cubic yards of brick masonry, and in excavating and removingl 00,000 cubic yards of earth, the contractors were entitled by the contract to the sum of four hundred and thirty 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:
Same p. 97.
United States lo Farrow and Harris.
To work done and materials furnished, up to the period of the aban. By cash received from the U. S. donment of the contract, $48,899 15 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 the
would have attended so work as the Government
much of the work as hail bound itself to per
the Government was form,
364,900 85 bound to perform, 139,800 85 To damages and injuries sustained by the sudden and unexpected a.
By balance due the bandonment of the work, 8,000 00 contractors,
73,747 78 To damag s arising from the failure of the Government tí 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, 1828.
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."