
    THOMAS POYNTER v. THE UNITED STATES.
    [No. 22595.
    Decided May 28, 1906.]
    
      On the Proofs.
    
    A contract for the removal of a wrecked vessel from a ship’s channel provides that “all parts of the loreclc shall he entirely removed.’’ The contractor expends more than the contract price, and then abandons the work without obtaining the depth of water required by the contract
    I. A contractor can not recover for part performance of an entire contract unless full performance has been waived or ■ prevented.
    II. A contract is an entire one, which requires the contractor to remove all parts- of a wrecked vessel so as to secure a specified ■ depth of water, and provides that “upon the satisfactory completion of the same ” he shall be paid $1,100.
    III! A contractor who-is unable to complete the work prescribed .by his contract can not abandon it and bring an action in quantum meruit upon the theory that the defendants will acquire a benefit from the work done by him.
    
      The Reporters' statement of the case:
    The facts of this case are sufficiently set forth in the opinion of the court.
    
      Mr. William E. Richardson for the claimant. Messrs. Ral-ston <& Siddons were on the brief:
    The doctrine of the common law required complete performance of all conditions precedent to the promise of the defendant to be alleged in the declaration and proved. This rule defeated an action bn the contract where part perform; anee-only could be claimed and is still rigorously enforced in our courts.
    
      Another common law rule of pleading, forbade'the use of the action of general assumpsit where a special contract existed, which closed the only other means o-f -relief.. - At the present day this rule has. been almost uniformly abandoned in the class of-cases under consideration. Upon-just what terms relief will be alforded, however, the cases are divided.
    The class of cases in respect to which ■ the diversity of opinion exists are those in which the circumstances are such that repudiation or notice of rejection can not prevent the defendant from being benefited by the part performance of the plaintiff. Such cases are, first, contracts of employment (personal services) during a term, and, second, contracts for work in connection with realty and things affixed .to the freehold.
    It is field by the weight of authority that if the part performance does confer a benefit to the defendant, he must pay for it even though it be incomplete in material parts and he insists upon completion. In some of‘the States a condition is attached as to the animus of the .plaintiff in discontinuing the work. In others it is considered necessary that the defendant have accepted the benefit of the. part performance, but the facts from which such an acceptance will be deduced have again caused-a division of opinion. ■ • •
    The order of remand specifies a waiver of the right to full performance and an acceptance of the work. The first can never be considered as any part of the action for the quantum meruit, for if the defendant waived the provision as to complete performance the action would then be brought upon the contract itself and not in general assumpsit. And- with respect to acceptance of the work, if any acceptance be necessary, we take the rule to be that an acceptance of benefit from the work is all that may be required. (Bertrand v. Byrd, 5 Ark., 651-658.)
    The best known and most frequently cited cáse on this question is that of Britton v. Turner (6 N. H., 481), quoted on pages 7 and 8 of our original brief. In that case, decided iu 1834, it was directly held that although the' part of the work done was received by the defendant before the'breach and “ under such circumstances as precluded him from rejecting it afterward, that does riot alter trie case; it has still been received with his assent.” . This was- all of the acceptance shown in that case and is'all claimed in the many cases adopting it' as authority and in the present case — not an acceptance of the part for what it is worth with knowledge of the default in completion and not an acceptance as a complete performance of the contract, but, in a case where it is impossible to afterwards reject it, receiving the work as it is being performed' by the plaintiff before the breach of the special contract occurs.
    Commenting on the case of Britton v. Turner, the supreme court of Iowa, in a case decided in 1864 (MeGlay v. Hedge, 18 Iowa, 66), said:
    “.That celebrated case has been criticised, doubted, and dériied to be 'sound. It is frequently said to be.good equity, but had law. Yet its principles have been gradually winning théir way into professional and judicial favor. It is bottomed in justice and is right upon principle, however it may he upon the technical and more illiberal rules of .the common law as found in the older cases.”
    This rule was -followed in- many of the early cases, and is recognized by practically all of the courts at the present time. The decision in Britton v. Turner is stated .by Judge Wanty in the case of ■McDonough v. Evans Marbel Company (50 C. C. A., 405; 112 Fed. Hep., 634) to have been followed by the great weight of authority since and it is adopted as -a basis for the decision in that case.
    We-insert the following references to show more fully the- decisions upon the question of acceptance: Pixler v. Nichols' (8. Iowa, 106 (1859)). Follows directly rule laid clown in - Britton; w. Turner (6 N. H., 497). McClay v. Hedge {-18 Iowa, 66. (1865)); Eyser v. Weissgerber, (2 Iowa, 463, 483, and cases cited) ; Corwin-v. Wallace (17 id., 374) ¿Etna-Iron and^tgel Works v. Kossuth Co. (79 Iowa, 40 (1890))..'- .,
    . The two following Iowa cases not only involve this question, but have an important bearing upon this case on ac-corint of the: provisions of the special contracts: Jemmison v. Gray -(29 Iowa, 539 (1870)) ; Wolf v. Gerr (43 Iowa. 339 (.1876)). - -
    
      The Iowa cases are referred to and followed in several Kansas decisions — School District v. Ryan (46 Kans., 54 (1891)); Barnwell v. Kempton (22 Kans., 314); School District v. Land (53 Kans., 731 (1893)). The case of School District v. Ryan resembles the present case in that the suit was originally' filed on the special contract. During the trial the plaintiff was allowed to amend, substituting the common counts, which, being assigned as error on the appeal, was declared proper.
    In that case the contract-.called for $1,030 and the value of the work done was $739.95. The court held that the fact that the building was attached to the realty made it the property of the defendant and that as it was of real and substantial value the plaintiff should recover a quantum meruit. McLellan v. Oox (36 Me., 92 (1853)) holds that the defendant accepts work in taking possession of a house constructed on his own land. Jewett v. Weston (11 Me., 346 (1834)) follows Haywood v. Leonard (7 Pick., 181) and states that jffaintiff is entitled to recover “ esjaecially if the other party has accepted the labor or is in the enjoyment of its -fruits.” (Fildew v. Besley, 42 Mich., 100 (1879) ; Davis v. Badders, 95 Ala., 348 (1891).)
    The same doctrine has been reasserted -in the subsequent cases of Merriwether v. Oaylor (15 Ala., 735) ;' English v. Wilson (34 Ala., 201) ; Bell v. Teague (85 Ala., 211) ; Bertrand v. Byrd (5 Ark., 651 (658) (1843)) ; Bush v. Finn-cane (8 Col., 192 (1884)); Blahéslee v. Holt (42 Conn., 226 (1875)) ; Freeman v. Greenville Masonic Lodge (22 Ga., 184 (1857)) ; Ford v. Smith (25 Ga., 680 (1858)) ; McKinney v. Springer (3 Ind., 59 (1851)). This case'overruled two prior Indiana cases — Swift v. Williams (2 Carter’s Ind. Pep., 365), and Iioagland v. Moore (2 Blakcf., 167). Same case is reported in 54 Am. Dec., 470, with note.
    
    There are numerous other cases in the various reports relating -to this question, but the ■ principal doctrine, with the limitations imposed in some jurisdictions, is amply defined iu the cases above cited. In-a very few of the reported decisions- has judgment been refused the plaintiff, and the language employed in some of the opinions regarding acceptance is hardly to be considered a definite limitation of the rule. It is rather an application of the facts of the particular case, and we believe that if the acts indicating acceptance were less significant, or entirely absent, these same courts would afford relief. This is indicated by an analysis, of the several decisions of certain States, such as those of Iowa and Indiana.
    When we examine the present case two prominent facts appear: First, that Poynter has honestly endeavored to do the work he contracted to do. The correspondence with him contained in the War Department report shows that he is a man who has not had the advantages of education. When this contract was thrown on his hands ho went to work and beyond question performed the greater part of it. He spent; he testifies, more than the contract price in what work he 'has done. He employed a man to complete the work for him and paid him for his work. The report of the Government inspector in charge of this work at the time it discontinued shows the circumstances under which it was stopped, and there is nothing to indicate a Avillful or fraudulent breach of contract.
    The second fact adverted to is,that the defendants have derived and appropriated a benefit from this work. The officer of .the Government reports at the conclusion of the work that as it was not then considered a serious obstruction to navigation it might remain in statu quo until it could be entirely removed at little cost when dredging was being done in that vicinity. That was eight years ago, and the last report on the status of the case, received about three months ago, states that nothing further has been done.
    Under the circumstances there could be no doubt but what the Government has derived advantage from the claimant’s part performance. Whether this was done voluntarily and in the sense of an appropriation of the benefit would depend upon whether they have accepted their release from the doing of- acts they would otherwise be obliged to do by the noncom-mission of such acts. The record shows clearly that in its prior condition, a few feet from the surface of the water, this wreck was a serious menace to navigation and necessary to be promptly removed; that^in its present condition it is not a serious obstruction to navigation, and by delaying the work of removal and taking advantage of their present ability to wait until Government dredging operations are carried on in that ■ neighborhood the defendants have voluntarily accepted a material benefit from the claimant’s work.
    
      Mr. James A. Tanner (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Atkinson, J.,

delivered the opinion of the court :

This is a suit to recover $1,100 from the United States for removing the wreck of the schooner Lottie K. Friend from the Delaware River near Philadelphia. A petition was filed in this court on the 10th day of August, 1901, to recover $1,100 from the United States on contract. On the 18th day of May, 1903, an amended petition was filed changing the form of actioñ to that of indebitatus assumpsit for a quantum meruit for the value of the work performed.

The contract was made February 18, 1897, by and between Maj. C. W. Raymond, of the United States Army, Corps of Engineers, party of the first part, and Thomas Poynter and Elijah D. Register, parties of the second part, which among other things provides :

“ That said Thomas Poynter and Elijah D. Register shall entirely remove, so as to leave no obstruction to navigation, •the wreck and cargo of the schooner Lottie K. Friend, lying-in the Delaware River near the foot of the Bombay Hook Point Shoal. All parts of the wreck possessing valúe shall be landed where they can be taken charge of by the United States, and all other parts to be removed and so disposed of as not to form any further obstruction to navigation; all in accordance with and subject to all the provisions and requirements of the specifications hereto attached.”

The price to be paid for the work was $1,100 “ upon the satisfactory completion of the same,” and the work was to be completed “ on or before the 25th day of April, 1897.” The usual forfeiture clause for failure to do the work is embodied in the contract. The specifications, or “ special conditions,” attached to the contract provide that “All parts of the wreck shall be entirely removed; ” and it also provides that “ The decision of the engineer officer in charge as to quantity and quality shall be final.” This, however, applies only to the materials used in the prosecution of the work. These are the important and controlling points of the contract which demand consideration by the court. '

Five extensions of time were allowed the complainant to enable him to complete the work of removing the wreck; and finally the work was abandoned by the claimant, who admits that all of the wreck was not entirely removed, but claims that so much of it which was an obstruction to navigation was taken away; and he also shows by competent testimony that he had expended more than the contract price for the work which he had performed before he abandoned the undertaking.

The contract provided for a maximum depth of 30 feet of water where the wreck lay, and some fifty or more soundings were made by the Government inspector that showed only a maximum depth of 26 feet, which ranged downward as low as 20-J feet above some' portions of the wreck. It is perhaps true that the remaining portion of the wreck does not interfere with the navigation of the river by the smaller vessels which ply it, but the testimony clearly establishes the fact that it is dangerous to navigation by the larger ships which seek entrance to the port of Philadelphia. In consequence-of the failure of the claimant to furnish the 30-foot depth required by the contract, the engineer in charge refused to accept the work done by the contractor as a complete compliance with his contract. Hence this suit.

There are but two points in this cause upon which the court is asked to decide:

1. The contract was awarded to Thomas Poynter and Elijah D. ^Register, as joint contractors, and in. August, 1901, a suit was instituted against the United States by Thomas Poynter, one of the contractors, for the recovery of $1,100 under said contract. After the evidence was taken in the case the claimant (Poynter) filed an amended petition, changing the form of the action from a suit on the express contract to the general counts in 'assumpsit for the work done and labor and materials furnished by him, seeking to recover upon a quantum meruit on a contract not completed. In neither of the petitions does the name of Elijah D. Register appear as a party to the action, although he was a joint contractor with Poynter, the party suing; and the only reason assigned for this failure is the fact (which is not denied by the defendants) that Register rendered no service in the undertaking, which left the entire work to be done by Poyn-ter, and he (Register) therefore has no interest whatever in the claim against the Government, and for this reason alone he was not made a party plaintiff in either of the petitions.

2. The important question in the case before us is, Can recovery be allowed for part performance of an entire contract unless full performance has been waived or prevented? In cases where the work done in part performance of a contract is accepted by. the other party or full performance waived thereby recovery may be had. (Pullman v. Corning, 9 N. Y., 93, and Britton v. Turner, 6 N. H., 481, 495.) The claimant in this case undertook to “ entirely remove ” all of the ivrecked vessel from the Delaware River for the sum of $1,100, which amount ivas to be paid by the Government “ upon the satisfactory completion of the same; ” i. e., the removal of the sunken vessel and its cargo. Only a portion of the wreck was removed. The depth of the channel (30 feet) required by the contract was not afforded by the portion of the wreck which ivas removed. The claimant became bankrupt and abandoned his contract of his own volition. The Government, claiming to have received comparatively no benefit from the work which was done and not having waived full performance of the contract, refused to pay any part of the contract price for removing any portion of the wreck.

The law of contracts as laid down in the text-books is briefly this: If A enters into a contract with B to do a certain job of work, and does not do all that he has obligated himself to do, and B commits a breach which amounts to a discharge, A will be entitled to recover on quantum meruit for the value of so much as he has done, provided what is done by A is of a real value to B or can be estimated at a money value. But that is not the case before us. The contract in this case is a completed or entire one, and although the claimant in the suit before ns himself voided the contract before completing it, he brings a suit in indebitatus assumpsit for a quantum meruit for the value of the work performed, and this, too, notwithstanding the fact that he admits that he did not complete his contract.

On this feature of the case alone, it is not disputed that although claimant was financially wrecked in an apparent honest endeavor to complete his contract, he has no standing, in court, and his petition must therefore be dismissed. The evidence clearly shows that the purpose of the Government in removing the wreck was to benefit navigation for deep-draft steamers — those drawing in the neighborhood of 30 feet of water — and inasmuch as this depth of water was not secured by removing only part of. the wreck, the Government certainly received no real benefit or money value for the wreckage that was removed, and consequently should not be required to pay therefor.

The claimant’s counsel cites the following cases upon which he relies, but none of them, in any essential respect, changes the general rule of law of contracts, which is laid down in the test-books: McDonough v. Marble Co. (50 C. C. A., 405, 112 Fed., 634); DerMott v. Jones (23 Howard, 220); R. R. Co. v. Smith (21 Wallace, 255); Ingle v. Jones (3 Wallace, 1, 762); Ramsey v. Manor (70 Fed., 233); Beha v. Ottenberg (6 Mackey, 351). He also cites a number of State decisions along the line of his contention, none of which, however, apply with directness to the case at bar.

Counsel for claimant seems to have overlooked the important fact that the contract in this case is an entire one. No periodical inspections were required to be made. No acceptances of and payments for the work as it progressed were required to be made. It is, on the other hand, however, clearly set forth that the lump sum of $1,100 was to be paid on, and not before, the completion of the work.

Assuming that it may not be essential to make Kegister, one of the parties to the contract, a party plaintiff in this action, we hold that for the reasons set forth above, recovery can not be maintained against the United States. It is therefore ordered that the-petition be dismissed.  