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1st. In not delivering all the articles fairly embraced in the contract, or
in due proportions of the heavy and light articles. 2d. In not delivering such articles as were delivered, as soon, nor in such
quantities, as they were preparedệto transport them; by which they sustained great losses, by the want of employment for their vessels, and by damages paid to sub-contractors, and by the closing of the canal navigation, before the whole transportation was completed,
which greatly increased the expense. 3d. In not making payment when the articles were transported.
It is said by the petitioners, they expected that all the armament and naval stores at Sackett's Harbor were embraced in the contract, amounting to about three thousand tons. The contract specifies no particular quantity, but this is left discretionary with the officer commanding at Sackett's Harbor. If the petitioners'wished to stipulate for the transportation of any particular quantity, they should have inserted a clause to this effect in the contract. The Navy Commissioners say, that many of the articles were not worth the expense of transportation, and that it was for the interest of the Government to sell them at Sackett's Harbor. The officer in command at Sackett's Harbor, acted under their orders in selecting the articles. The petitioners contend that the heavy articles were delivered to them to transport, when it was cheaper to transport those that were lighter, and that the proposals made by them, were in reference to the proportion that these articles bore to each other. The contract has no ambiguity on the face of it; and, in the opinion of the committee, its construction admits of no doubt. If the United States were obliged to transport all the articles composing the armament and naval stores at Sackett's Harbor, or if they were bound to deliver them in due proportions of light and heavy articles, it must be because such was the understanding of the petitioners, and this understanding is to be substituted for the written contract. The committee think the first point taken by the petitioners is untenable, and does not furnish a just cause for making any further allowance. It is proper to remark, that the Navy Commissioners stated, in a communication to the Secretary of the Navy, on the 28th of March, 1828, that seventy-three of the cannon were disposed of at Sackett's Harbor; and the committee is led to the conclusion, from that letter, that the petitioners are mistaken in point of fact, when they say that an undue proportion of the light articles were withheld.
2d. The committee entertain the opinion that, inasmuch as no time was fixed on in the contract, when the articles were to be delivered, that the United States were bound to commence the delivery of them within a reasonable time after the 25th of May, 1825, the day on which the contract was executed; and, that the delivery afterwards, should have been prosecuted with diligence, having a regard to the tonnage employed in the transportation, and the readiness and ability of the petitioners to perform the contract. The term “ season,” used in the contract, within which the articles were to be delivered, is somewhat loose and indefinite; but it was used, probably, with reference to the time when the water transportation would be closed by ice; and, according to the construction put on the contract by the committee, they had the whole or any part of this period to perform it, and that the United States ought to be held liable to respond any damages the petitioners may have sustained, by reason of any unreasonable neglect or delay in delivering the articles.
Captain Donchester, Captain Cheny, and Captain Read, applied for loading on the 25th of May, the day on which the contract was executed, and Captain Ingills on the 28th of May. The committee is of the opinion, that the United States were not obliged to have had the articles ready for delivery at either of those periods, as it would ordinarily require more time to make the necessary preparations. The first delivery was on the 10th of June, and without further evidence to the contrary, the committee is of the opinion that this was within a reasonable time. Captain Read testifies that he commanded the steamboat Martha Ogden, that run between Sackett's Harbor anu Genesee river; that, during the season, he transported 24 tons, 7 cwt. O qrs. 16 lbs.; that the boat was not calculated to convey the heavy articles, but might have conveyed the lighter articles, without much additional expense. George Tiebaut testifies that he was employed as clerk on board of the steamboat Ontario, which navigated Lake Ontario every week from Sackett's Harbor to Niagara, (except one) during the season; that she was capable of carrying 100 tons of cargo, and might, during that season, have transported at least 1,500 tons. He states she transported only 246 tons, 10 cwt. 2 qrs. 8 lbs. The testimony of this witness is contradictory; in one part of his deposition he states that the reason the boat did not transport more, was, because the agent could not deliver the articles, and in another part of his deposition he states that the boat could not stop at Genesee river long enough to discharge the heavy articles, without delaying her trip; and that, in some instances, she went to Niagara, and discharged her lading on her return, at Genesee river. He states that they were unable to obtain any of the articles between the 1st of July and the 1st of September. The committee obtained from the Navy Commissioners a statement, shewing the date of each delivery, by which it appears, that, between the 1st of July and the 1st of September, 621 tons, 5 cwt. O grs. 4 lbs. were delivered. The whole quantity delivered, was, 1,491 tons, 14 cwt. 3 qrs. 5 lbs.; so that nearly one-half of all the articles that were transported, was delivered within the period that this witness says the Ontario could not obtain any lading.
Robert Masters testifies, that he commanded the schooner Lady Washington; that she was ready to take a cargo on board, on the 28th of May; that he applied to the officer employed by the Government to superintend the shipping of the property, for a cargo, but he was not able to procure any of the property, in consequence of its not being in readiness to ship, or no convenience for loading the heavy cannon, until the 15th of June, when he obtained about 40 tons. He says that the cannonades were not ready to ship until some time in July, the agent of the Government not possessing facilities for weighing them. A part of this testimony is too equivocal. If the agent of the Government was not prepared to deliver any of the articles until the 15th of June, and vessels were detained by such neglect, it might lay the foundation of a claim against the United States; but the witness has put it in the alternative, that the property was not ready to ship, or the convenience for loading the heavy cannon was not completed. By the contract, the petitioners were to take the articles where they then lay, and to transport them, free of expense to the Government, other than the sum abovementioned; so that, if the delay arose from the want of suitable machinery to load the cannon, it is imputable to the petitioners themselves.
Enos Stow testifies, that he was employed by Denison and Ely to go to Sackett's Harbor and hasten the delivery of the articles; that, on the 10th of June, about 30 tons were delivered, and being informed no more was ready
for delivery, he left Sackett's Harbor. He states that the petitioners had engaged the means of transporting the articles on the canal, and that they complained that the sub-contractors would refuse to perform their contracts, and that they were obliged to pay, afterwards, an increased price, in consequence of the delay. The Hon. Joseph Hawkins testifies that he owned a vessel of 454 tons, and contracted with Denison and Ely to transport a part of the articles; that his vessel called several times at Sackett's Harbor, when she could not get any lading, and was able to obtain, during the season, no more than one hundred and forty tons, or thereabouts.
P. Butterfield testifies that he was employed to weigh the articles; that the petitioners employed a number of vessels immediately after the proposals were accepted, and had them in readiness, together with their own steamboats, but that none of the articles were delivered until the 10th of June, when 30 tons were delivered; that the heavy cannon were not delivered before the 8th of July, because the agent had not the means of weighing them before that time; and that, owing to the delay in delivering the articles, the petitioners sent an agent from Rochester, to hasten the delivery, as their boats for transporting on the canal were detained. This witness, and several others, speak of the importance to the contractors of having the heavy cannon delivered before the fall of water in the Genesee river, as in low water the vessels could not pass with a full cargo. He further states that the anchors were not proven so as to be able to deliver them before the 1st of October. It is proven by the testimony of C. A. Van Slyck, that Denison and Ely had employed transportation on the canal, and that the articles were to have been delivered within a specified time, and that, in consequence of a failure, they were obliged to pay damages. He also mentions that they engaged transportation for a much larger quantity than was delivered, and to be of due proportions of heavy and light articles.
Rufus Meach testifies that he contracted to transport from Rochester to Brooklyn from five hundred to a thousand tons, of the articles that Denison and Ely had contracted with the United States to convey; that the property was not delivered at Rochester by the time specified in the contract; that his boats were afterwads otherwise engaged, and that he declined to take the articles, and that they were obliged to give a much higher price for transportation than they had agreed to pay him.
It is proven by Thomas Matthews and C. A. Van Slyck, that they agreed with Denison & Ely to transport five hundred tons of the armament and naval stores from Rochester to Brooklyn, at $8 per ton; that, not receiving the articles at Rochester as soon as they were to have been delivered, they refused to perform the contract. They state, that they paid to the State of New York $ 4 03), canal tolls, per ton, and that, for transporting from Rochester to Albany 783 tons 700 cwt. 2 qrs. 25 lbs. they charged them at the rate of $4 87 per ton, and have recovered a judgment against them at those rates. E. Griffith, of the firm of Griffith & Wellet, testifies, that the firm agreed to transport 1000 tons from Rochester to Brooklyn at $ 8 per ton, but the articles not being delivered in season they declined to transport them at that price, except about 22 tons that were delivered in July; that they transported about 120 tons, for which they charged $9 50 per ton. James Marvin testifies, that he was employed by Denison & Ely, as an agent, to forward the stores from Rochester to Albany; that the anchors and cannon did not arrive until quite 'late in the season; that he, with Mr. Ely and others, went to Utica to assist in taking the boats through; that the canal was frozen, and that, in some instances, they were obliged to attach sixteen horses to a boat; that they were obliged to unload the boats and transport the articles over land for some distance, in order to put them on board of the vessels at Albany, and that Mr. Ely incurred considerable additional expense.
It appears from the account of Griffith & Wellet, that the whole expense of transportation from Rochester to Brooklyn exceeded $10 per ton.
The Hon. Mr. Hawkins, a member of this House, agreed to transport the stores from Genesee river to Rochester, at $ 1 00 per ton, but in consequence of not receiving them in season, and in less quantities than was agreed on, he charged them $ 1 25 per ton, besides incidental expenses, amounting to $ 56 51.
A statement is presented to the committee, signed by many respectable gentlemen, who were intimately acquainted with the price of transportation from Sackett's Harbor to New York, in the year 1825, and they say, that the ordinary price was $15 per ton, and that it was worth twenty per cent more to transport heavy articles, such as cannon and anchors, than it was to transport the ordinary property generally passing between those places. .
The committee is not disposed to vary the terms of the contract, or to grant relief, because it was a hard bargain; but believing that a part of the articles were not delivered within a reasonable time after the 10th of June, thereby making it much more expensive to the petitioners to transport them than it would have been if they had been delivered in season, the committee think that this expense, whatever it may amount to, should be paid by the United States. All the testimony establishes the fact, that the petitioners had made the most ample arrangements for fulfilling the contract on their part, and that they prosecuted them with great zeal.
The amount of damages sustained, is not rendered sufficiently certain to report a specific sum. Their adjustment will be referred to one of the accounting officers.
As to the amount claimed for expenses incurred in obtaining their money, the committee think this is inadmissible.