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Starke, the remaining moiety of the property, not conveyed by them on the 10th of April.
The evidence procured and reported by Capt. Burch having satisfied the Secretary of War that the property mentioned in the deed of trust to Capt. 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 sesion 19th Congress, vol. 1, rep. 69; and the report of Capt. Burch, and the deposisitions he obtained, are contained in the Executive Papers of the House, Ist ses. 19th Congress, vol. 5, rep. 104, to both of which the committtee refer. * The 1st question is, are the petitioners entitled to any farther allowance? If they are, 2d. on whai 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. Congress, contrary to its usual practice, yielded to the solicitation, and has in good faith performed the award. An exception 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. 66 When the claim was first presented, the petitioners asked that it should be referred either to some existing judicative tribunal, or to some of the Executive Departments; with full power to appoint commissioners or reserees, 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 judicious, and to have been acquiesced in by the petitioners—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 shew 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 allowed, by the principle governing the decision. The principle adopted by the commissioner was that for which the petitioners contended. In their 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 specifically 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 zums shows the amount of compensation to the complaining party.”
Br referring to the report of the commissioner, it will be seen that he Fagoverned by this rule.
it is now said that he erred in not computing the profits on the works, as nieaded by the estimate of the Board of Engineers. The United States cand themselves to construct thirty thousand cubical yards of masonry, and a excavate and remove one hundred thousand cubical yards of earth They nad 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 yardsof earth. The attention of the Commissioner was drawn to this particular question, and he proceeded to inquire whether the petitioners had incurred 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 would have been, if the plan had not been varied. The terms of the contract, in substance, are, that the United States will employ the petitioners to construci at least 30,000 eubical yards of brick masonry, and will pay them $ 11 per yard, and will employ them to excavate and remove 100,000 cubical yards of earth, and will pay them SO 837per yard; and, if they employ them to do more, they will pay them at the same rate.
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 3rd. such materials as were not delivered, but in progress, remained with the petitioners, or their agent or partner, Genl. Starke, and have acerued to their or his benefit. The contract was abandoned in the Spring of 1821. On the 25th of April, 1821, 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 unknown to the
commissioner when he made his award. The committee refer to it among the documents in the case of Gilbert C. Russell, 2 sess. 18 Con. rep. 62, p. 76.
The petitioners now state that the commissioner erred in not carrying out his own principles, and they undertake very ingeniously to shew that, according to his own data, “a cubic yard of earth excavated and removed would cost but 44 cents, whereas the commissioner computed the expense at $0 56, and that, therefore, he was not allowed enough for the profit on the excavation by 15 cents per yard, which, on 100,000 yards, the minimum aniounts to $ 11,000, and over ” And they undertake further to show, thạt 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, for the purpose of argument, concedes that a brick maker, with 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 fisty 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 8, 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, bricks were sold at Mobile for $5 62 per thousand.” Major Henry stated in his deposition that he did not know what the 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, establisbes the price of brick in 1821, to have been $ 14 per thousand.
No one, on reading the commissioner's report, could have anticipated that the hypothetical concession the commissioner made, to shew the incorrectness of the witnesses, would have been turned against him, to shew 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
Seborers at $ 175 per year; that price is applicable to com,mon laborers. The price of brick makers was fifty dollars per month, so hat the wages core brick maker was within $ 12 50 of the amount the pe'itioners allow a 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 al. low 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 petitioners 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 shew, by an arithmetical calculation, that the cost of excavating and removing a cubie yard of earth is less by 11% eents, 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 they were employed. Operations commenced in January, 1819, with a force of sixty-five laborers, besides mechanics, 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 to interrupt the works the second year; and with all the advantages the petitioners possessed, there was but 7,250 yards of earth excavated when the work was abandoned, and the other parts of the work had progressed with but little better prospect 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 amounted to $31,252 94, making $53,305 35. This statement is made by the Treasury Department.
Mr. Swan, 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 $339,321, making a difference between the amount they say 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 the clerk, is
$ 100,849 82 It is stated that Turner Starke expended
70,000 00 Cargo shipped from Alexandria
Deduct the amount received
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, and slave labor substituted, still, that an expense was incurred during that year, of 8 70,000. It has already been mentioned, that it would have taken three years to have made the bricks; and the committee do not see how the expenses were to be reduced in the years subsequent to the Spring of 1821, below what they were, after the 10th of April, 1820. The amount of expenses by General Starke, disproves the correctness of the calculations of all the witnesses on this point. The commissioner having allowed profits equal to about one-third of the contract on the brick-masonry and on the excavation, and having allowed $ 8,000 for damages in abandoning the work, and $4,000 for delaying to lay out the fortification, the committee think, so far as profits and damages are concerned, that ample justice is done to the petitioners.
The petitioners viewing the case differently themselves, applied to the 1st session of the 19th Congress for further relief. A majority of the committee was inclined to vary the principle which had been contended for by the petitioners, and adopted by the commissioner, and instead of allowing the profits that might have been made, to appropriate a sum which should cover all the expenses incurred, after deducting the payments made. Mr. Naylor, the clerk, had estimated the expenses, to April 10th, 1820, at $ 241,839, and Mr. Clark, at $ 240,000, besides about $ 45,000 furnished by Mr. Farrow, which he thought was not carried to the books; and both of them stated that their knowledge was derived from the books, which one of them kept and to which the other had access. If the case was to be open again for investigation, and the amount expended was to be taken as the