
    HENRY G. TYRRELL v. THE UNITED STATES
    [No. B-294.
    Decided May 11, 1925]
    
      On the Proofs
    
    
      Contract; lease; sale and removal of improvements. — The United States leased a tract of land witli tlie provision that improvements it erected thereon should be removed within thirty days after the premises were vacated. The improvements were not removed within the specified period, but some time thereafter were sold to plaintiff, who secured the approval of the owner of the land and entered into possession. The said owner unlawfully dispossessed plaintiff, and plaintiff seeks to recover upon a breach of the covenant obligating the Government to deliver possession of the improvements. Held, that the loss was due to the unlawful dispossession and not the failure to deliver possession, and the proper remedy is not against the United States.
    
      The Reporter's statement of the case:
    
      Mr. Alexander H. McCormick for the plaintiff. Messrs. Horace 8. Whitman and. II. Rosier Dulany, jr., were on the briefs.
    
      
      Mr. Dwight E. Borer, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff was a member of the H. G. Tyrrell Engineering Co., of Norfolk, Va., composed of H. G. Tyrrell (the plaintiff) and Thomas W. Carr, partners, and prior to the bringing of this suit the plaintiff purchased all right, title, and interest of said Thomas W. Carr in and to the claim which forms the basis of this action.
    II. On July 5, 1917, the Government, through the proper officers of the Quartermaster Corps, entered into an agreement with the Old Dominion Land Co., a Virginia corporation, of Newport News, by which it leased approximately 250 acres of land in Warwick County, Va.-, for use as an Army camp, on which it erected certain Government buildings more particularly described hereafter.
    Paragraph 3 of said contract provided:
    “That the said lessor shall keep the premises in good repair to the satisfaction of the Government officer in charge, but all buildings and other improvements fixed to or erected or placed in or upon the said premises by the lessee shall be and remain the exclusive property of the lessee: Provided, however, That the same, unless sold or otherwise disposed of, shall be removed by the lessee within thirty days after the said premises are vacated under this lease.”
    The said lease was to expire on June 30, 1918, with an option on the lessee to renew the same yearly, not to extend beyond the period of the European war and the return of troops and material from Europe.
    On July 1, 1918, another agreement was entered into between the Government by another authorized officer of the Quartermaster Corps and the Old Dominion Land Co., leasing the same land, to expire June 30, 1919. The terms of the lease differed slightly from the lease of- July 5, 1917, but contained the identical provisions as to ownership and removal of buildings within 30 days after vacating said premises. On July 1, 1919, the same parties renewed the lease of July 1, 1918, in “ all of its covenants and agreements,” to terminate on June 30, 1920. On July 1, 1920, the same parties entered into another agreement to renew the lease of July 1, 1918, “with all of its covenants and agreements,” to terminate on June 30, 1921.
    On July 1, 1921, the same parties entered into a supplemental agreement modifying the lease of July 1, 1918, by renewing the same as far as applicable and leasing sixteen and eleven one-hundredths (16.11) acres of the 250 acres leased by the lease agreement of July 1, 1918. The said 16.11 acres were occupied by the warehouses and switch tracks and other facilities used in connection therewith, the lease thereof to expire June 30, 1922; the balance of said 250 acres was returned to the Old Dominion Land Go. as of July 1, 1921.
    III. It appears from the evidence that a lease agreement was also made by the Quartermaster Corps with the Chesapeake & Ohio Eailroad Co. for a tract of land near Newport News, Ya., to be used as a camp in connection with the land leased from the Old Dominion Land Co., and that temporary Army buildings were erected thereon, subject to removal within 30 days from the termination of the lease. The parties have failed to file a copy of this lease, and the terms thereof do not otherwise appear. No claim is made by the plaintiff, however, in relation to the removal of the building from this tract.
    IY. The Secretary of War, September 15, 1921, through authorized agents, advertised and invited proposals for the purchase of certain temporary Army buildings belonging to the Government erected on the tracts of land leased from the Old Dominion Land Co. and the Chesapeake & Ohio Eailroad Co., mentioned in Finding Nos. II and III, described as (1) the veterinary hospital group, (2) the veterinary guard group, (3) the quarantine corrals, (4) the Camp Hill fire house, the proposal to be accompanied by a certified check for 20 per cent of the amount bid and the buildings to be removed within 90 days from the. signing of the agreement of sale, and bond to be furnished for 50 pel cent of the purchase price. . The Tyrrell Manufacturing Co. bid $505 for this property, which was accepted by the Government.
    
      Y. On November 10, 1921, the United States, through an authorized contracting officer, entered into a formal contract with H. G. Tyrrell and Thomas W. Carr, partners, composing the firm of the Tyrrell Engineering Co., by which the Government agreed, in consideration of the sum of $505, to sell to the Tyrrell Engineering Co. “ the veterinary hospital, guard group, quarantine corrals, and Camp Hill fire house,” situated between the Chesapeake & Ohio Railroad track and the James River. The contract contained a stipulation that “for and in consideration of the payment to the Government of the sum of five hundred and five dollars ($505) at the signing hereof, and of the performance by the purchaser of all the covenants hereinafter set forth, the Government does hereby sell, convey, transfer, and deliver possession, upon the execution o'f this contract, all the right, title, and interest of the Government in and to the improvements hereinabove mentioned, as is on November 10, 1921, as described in this agreement and said specifications, and subject to the terms, exceptions, and conditions thereof.”
    The Tyrrell Engineering Co. agreed on its part to remove said buildings and other specified structures, fixtures, and fill up all excavations, etc., and remove other evidences of Government occupation prior to February 8, 1922.
    And further:
    “(a) To save the Government harmless of and free from any and all claims for damages resulting from injuries to persons or property caused by the purchaser’s operations in the execution of this agreement.
    “(b) To save the Government harmless from any or all claims for rental or otherwise arising out of the purchaser’s use of said lands after February 8, 1922.
    “(c) To assume all liability for all damage, destruction, or loss of the improvements contained in this sale by fire, theft, or other causes after the time this agreement is executed.”
    The purchaser also agreed to furnish bond in the sum of $252.50 for the full and faithful performance of all the terms, conditions, and provisions of the agreement and specifications.
    
      The above contract is attached to the plaintiff’s petition as “ Exhibit A” and is made part of this finding by reference thereto.
    The Tyrrell Engineering Co. furnished the required bond in the sum of $252.50 with the Hartford Accident & Indemnity Co. as surety thereon, dated November 16, 1921, for the completion of said contract on January 10, 1922. On February 9, 1922, an extension was granted from January 10, 1922, to April 10, 1922, and on March 27, 1922, a further extension of 60 days from April 10, 1922, was granted.
    VI. The buildings sold under the above contract were partly built on the land leased from the Old Dominion Land Co. and partly on the land leased from the Chesapeake & Ohio Eailroad Co.: the evidence fails to show the division of said buildings between the two tracts. No claim is made in connection with the removal of the buildings on the tract leased from the railroad company.
    VII. A week or more before the sale agreement of November 10, 1921, the Tyrrell Engineering Co. was engaged in negotiations' with the Old Dominion Land Co. looking to the purchase and removal of the Government buildings on its lan'd, and on November 4, 1921, the president of that company sent by hand to plaintiff “ suggested essential points of agreement to protect interest of Old Dominion Land Co. and Tyrrell Engineering Co.,” dated November 3, 1921, which read:
    “ 1. Old Dominion Land Company claims ownership to buildings.
    “ 2. Old Dominion Land Company will retain three buildings needed by superintendent in connection with agricul•tural operations.
    “ 3. Tyrrell Engineering Company must recognize ownership of all buildings under discussion on lands of Old Dominion Land Company as being now vested in Old Dominion Land Company, but will specifically quitclaim to Old Dominion Land Company any interest it may have or claim to have in the three buildings referred to in item 2.
    “4. For a consideration of $10 the Old Dominion Land Company will quitclaim and convey to Tyrrell Engineering Company its interest in such other buildings and structures of the Veterinary Hospital, Guard Group and Quarantine Corrals, and Camp Hill Fire House as are located on Old Dominion Land Co. lands and covered by certain specifications of United States dated September 15, 1921, when it offered for sale and attempted to sell certain buildings which, as to Old Dominion Land Co. became the property of the landowner on July 31, 1921, thirty days after the property was returned to the Old Dominion Land Company by the United States by formal supplemental agreement dated July 1, 1921. All buildings not on land of Old Dominion Land Company, a part of same being on land owned or controlled by Chesapeake & Ohio ^Railway Company.
    “ In case of concluding a transfer of certain buildings from Old. Dominion Land Company to Tyrrell Engineering Company, the latter company must assume the same obligations and liabilities contained in said United States specifications as to removal of buildings, concrete, etc., prior to December 31, 1921, the same to be secured by security bond duly approved by Old Dominion Land Company and in the penal sum of $1,000.00.”
    VIII. On November 21, 1921, the Old Dominion Land Co. entered into an agreement with H. G. Tyrrell and Thomas W. Carr, partners, trading as the Tyrrell Engineering Co., which, after reciting, among other things, the lease of certain lands to the Government by the agreement of July 1,1918; the construction thereon of buildings and other structures to which it gave the name “Camp Hill”; the return by the Government of all of said land by the supplemental agreement of July 1,1921, “ except that portion occupied by warehouses and lying east of Virginia Avenue ”; the failure of the Government “to exercise its right contained in the original lease to sell, dispose of, or remove the buildings and structures on said land within thirty (30) days after the return of said land to the land company ”; the sale of certain designated buildings and structures on “ Camp. Hill ” to the Tyrrell Engineering Co., and the fact that the Tyrrell Engineering Co. recognized the title to said buildings and structures as in the Old Dominion Land Co.; the Old Dominion Land Co. then, in consideration of the sum of $10 and a bond to observe all the terms and conditions of the specifications dated September 15, 1921, by which the United States “ attempted to sell the aforesaid buildings and structures,” conveyed to the said Tyrrell Engineering Co. the same buildings and structures sold by the Government to said company, except three buildings which the Old Dominion Land Co. retained for its own use. A bond as required by said contract was taken out in the Fidelity & Deposit Co. of Maryland for $1,000 by the Tyrrell Engineering’ Co. on January 10, 1922, and the delay of the engineering company in furnishing said bond appears to have been one of the principal causes of the subsequent difficulties between the engineering company and the land company.
    • IX. The Tyrrell Engineering Co. took possession of the buildings and structures located on the land leased from the Old Dominion Land Co. by the United States on November 10,1921, the date of the contract of sale by the United States to the Tyrrell Engineering Co. Several days prior to the execution of the contract of sale the Government was informed by the Old Dominion Land Co. that no objection would be made by it to the removal of said buildings and structures by the engineering company, but the land, company insisted that the material be removed as soon as possible.
    On November 23, 1921, the Tyrrell Engineering Co. wrote to the Government contracting officer named in the contract of sale, informing him that the Old Dominion Land Co. were that day preventing them from removing salvage from the quarantine corrals, had torn down over a hundred notices of the engineering company, and had posted notice of the land company on the buildings bearing the words “ Property of the Old Dominion Land Company,” and within the last 24 hours had broken open a building of the guard group used as an office by the engineering company and had removed their records, tools, stationery, signs, hardware, and many other articles of value, and that the engineering company was unable to proceed without them. On November 28, 1921, the engineering company wrote to the quartermaster supply officer at Norfolk stating that it was unable to proceed with the work on account of the interference of the land company; that at 8 o’clock that morning, while officials of the engineering company were peaceably transacting their business in one of the buildings purchased from the Government used as a temporary office, they were attacked by from 12 to 20 negroes, under the personal leadership of a representative of the land company, who smashed doors and windows, knocked down walls and partitions, drove them out, and took possession of their office equipment, and the engineering company understood the land company was tearing down the buildings and selling the materials.
    The letter of November 23, 1921, was the first information received by the Government that there had been any difficulty or unpleasantness between the Old Dominion Land Oo. and the Tyrrell Engineering Co. in relation to the removal of said buildings. There were several other later letters to Government officials complaining of interferences by said land company.
    The reason for the refusal of the Old Dominion Land Co. to allow the Tyrrell Engineering Co. to proceed appears to have been caused by the failure of the latter company to furnish the required bond of $1,000 for faithful performance. It appears that difficulties had also arisen between the partners and that Mr. Tyrrell was short of funds, and Mr. Carr, the responsible party, would not furnish sufficient funds to pay for the bond or to carry on the salvage work.
    X. On January 10,1922, the Old Dominion Land Co. and the Tyrrell Engineering Co. entered into another contract,' which recited the contract between the same parties of November 21,1921; a license by the land company to Henry G. Tyrrell, trading and doing business as the Tyrrell Engineering Co., dated also January 10, 1922, under which he was authorized to enter the lands leased to the United States by the agreement of July 1, 1918, known as “ Camp Hill,” together with his employees, and remove certain designated buildings and structures thereon April 10, 1922; a bond taken with the Fidelity & Deposit Co. of Maryland for $1,000 as surety for said H. G. Tyrrell, principal, by the Tyrrell Engineering Co.; the fact that between November 21, 1921, and January 10, 1922, the said land company had taken down certain structures sold to said engineering company at a cost of $447.50; the fact that the said land company desired to purchase from said engineering company a certain building sold to it by the said land company by the agreement of November 21, 1921. Then, in consideration of tlie difference between the agreed price of said building, $200, and the amount expended by the land company in taking down certain buildings, $447.50, the engineering company conveyed to said land company the said building.
    XI. On January 20, 1922, the Government contracting officer who executed the contract of November 10, 1921,. received a letter, dated January 12, 1922, from the Tyrrell Engineering Co. requesting an extension of the said contract. Having received the permission of his superiors to extend the bond of the engineering company under said contract, said officer was informed by said company that it would be* unnecessary to do so as it had furnished a bond to the Old Dominion Land Co.
    By an agreement dated February 2,1922, between Thomas W. Carr and H. G. Tyrrell, the said'Thomas W. Carr, in consideration of $800 cash and a note for $400, payable in 30 days by the said H. G. Tyrrell, and certain specified salvaged material, assigned all of his interest in the property sold to the Tyrrell Engineering Co. by the Government by the agreement of November 10, 1921, including his certified check for $252.50 held by the bonding company.’
    On March 22, 1922, H. G. Tyrrell, the plaintiff, requested the Government to grant an extension of two months from April 10, 1922, within which to complete its contract of November 10, 1921. To this the Government, consented, provided the plaintiff would sign a form of agreement that would save the Government harmless from any claim for rental arising out of the use of said buildings after February 8, 1922, or any claims arising from any provisions of the specifications of November 10, 1921. The plaintiff refused to sign this agreement and requested the Government to return the check for $505 given by the Tyrrell Engineering Co. On March 27, 1922, the Hartford Accident & Indemnity Co. consented to an extension of 60 days from April'10, 1922, within which to complete the agreement of November 10, 1921.
    XII. Between November 10, 1921, and April 19, 1922, the Tyrrell Engineering Co. fully performed its contract of November 10, 1921, with the Government. The amount of its losses occasioned by interferences with its work of salvaging and removing the buildings and structures purchased from the Government has not been satisfactorily shown by the evidence submitted.
    The court decided that plaintiff was not entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

The petition in this case is predicated upon an alleged breach of contract. On July 5, 1917, the defendant leased from the Old Dominion Land Co., a Virginia corporation, a certain tract of land. The purpose of the lease was the erection thereon of certain buildings suitable for. use as a veterinary hospital during the war. The defendant reserved an option of annual renewal of the lease until after the war was over, and the same was extended by successive renewals until July 1, 1921. Thereafter it was again renewed as to sixteen and eleven one-hundredths acres of land to July 1, 1922. The defendant reserved title to all the buildings, the lease providing for their removal within 30 days after vacation of the premises, unless otherwise sold or disposed of. The Government did not remove, sell, or otherwise dispose of the buildings within the 30-day period. On the contrary, as late as September 15, 1921, the defendant advertised the buildings for sale, and the plaintiff’s bid of $505 was accepted and the buildings sold to him under a written contract of sale bearing date November 10, 1921. This contract of sale contained the following covenant:

“ The Government does hereby sell, convey, transfer, and deliver possession, upon execution of this contract, all the right, title, and interest of the Government in and to the improvements hereinafter mentioned, as is on November 10, 1921, as described in this agreement and said specifications, and subject to the terms, exemptions, and conditions thereof.”

The contractual obligations assumed under the foregoing covenant form the basis of this suit.

The Old Dominion Land Co., by conduct far from creditable, preferred claim to the buildings, notwithstanding its express assurance and approval given to the defendant on November 7, 1921, that it would offer no objection to the defendant selling the same to the plaintiff. For some unexplained reason, the land company repudiated its approval given November 7, 1921, and made claim of title to the improvements. The fact of this adverse claim in some manner reached the plaintiff at a time when he was contemplating the purchase of the buildings, and thereby induced him to enter into negotiations with the land company respecting the sale of the same. He did not, however, at the time enter into any contract with the land company. Subsequent to November 10, 1921, the plaintiff took possession of the lands under his contract with the defendant, notices were posted in the buildings, and at least one building was for a short space of time occupied as an office. Very soon thereafter the land company trespassed upon the plaintiff’s possession and by unwarranted force and violence effectually dispossessed the plaintiff, so much so that it wrung from the plaintiff an agreement to purchase certain buildings from the land company and certain others the land company retained. The plaintiff, after this episode, was allowed to salvage certain buildings, and he did eventually remove and sell certain other buildings, failing to prove what amount he received for the same.

The plaintiff’s contention is firmly predicated upon a breach of the covenant in the lease obligating the defendant to deliver possession of the buildings. The facts disprove a breach. What the plaintiff really proves is not a failure to deliver possession, but a loss due to an unlawful dispossession. The record substantiates the delivery of possession. The distressing state of affairs of which the plaintiff complains all took place subsequent to the delivery of possession by the defendant, and resulted in precluding the plaintiff from uninterrupted and continued peaceful possession which he was enjoying when the trespassers invaded the property and forcibly ejected him therefrom. The interference relied upon is in no wise imputable to the defendant. On the contrary, the defendant was not even ■ aware of any adverse claim of title upon the part of the land company until the plaintiff gave notice of what had occurred. The contract of sale between the plaintiff and defendant contained no obligation to protect him from marauders, trespassers, thieves, and vandals. The courts were open to him.

Finally, the plaintiff recognized by written contract the right of the land company and voluntarily entered into, a written contract with it, and thereafter removed certain of the buildings from the premises, so that in the end he did in fact receive from the rightful owner a substantial portion of what was sold him. Therefore he may not, in any event, granting the soundness of his contention, obtain more than loss occasioned by the interference, and that amount, under this record, would be entirely a conjecture. There is not sufficient proof to fix it. There is no doubt that the plaintiff was badly treated, but the misfortunes he endured emanated from the acts of the land company and not the defendant.

The petition will have to be dismissed. It is so ordered.

GRAham Judge; Hay, Judge; Downey, Judge, and Campbell, GJdef Justice, concur.  