Any seal may be used and adopted by a corporation as well as an
individual, and the same general principles respecting seals apply
to municipal as well as private corporations.
It was for the Commissioners of the District of Columbia to
determine whether the interests of the District required the
contract in this case to be sealed. And the contract having been
executed as and for the District, the seals of the Commissioners
are to be assumed to have been affixed as the seal of the
corporation.
Where work is to be completed within a specified number of days
from the date of the execution of a contract, parol evidence that
the contract was executed and delivered subsequent to its date is
admissible.
Page 181 U. S. 454
Covenant will lie on a contract under seal, though not fully
performed,
where absolute performance has been dispensed with.
Where strict performance by plaintiff is prevented or waived by
defendant, a claim by defendant of fines and penalties for delay or
failure cannot be sustained.
The matter of interest was properly left to the jury.
This was an action of covenant brought in the Supreme Court of
the District of Columbia by the Camden Iron Works, a corporation
created under the laws of the State of New Jersey, against the
District of Columbia, to recover the price of certain iron pipe
manufactured for and delivered to defendant by plaintiff in
pursuance of a contract under seal. Several pleas were interposed,
and among them the plea of
non est factum and the plea of
the statute of limitations of three years. To the latter plea a
demurrer was sustained, and issue was joined on the others. The
case went to trial and resulted in a verdict in favor of the
plaintiff below for $11,044.16, with interest from February 27,
1888. A motion for new trial having been overruled, judgment was
entered on the verdict, whereupon defendant carried the case to the
Court of Appeals of the District, where the judgment below was
affirmed. 15 App.D.C.198. This writ of error was then sued out.
The contract bore date June 29, 1887, and, by its terms,
purported to be made by the District of Columbia of the first part,
and the Camden Iron Works, by Walter Wood, president, of the second
part. It concluded as follows:
"In witness whereof, the undersigned, William B. Webb, Samuel E.
Wheatley, and William Ludlow, Commissioners of the District of
Columbia, appointed under the act of Congress entitled 'An Act
Providing a Permanent Form of government for the District of
Columbia,' approved June 11, 1878, and the party of the second part
to these presents have hereunto set their hands and seals the day
and year first above written."
"(Signed) William B. Webb [L. S.]"
"(Signed) S.E. Wheatley, [L. S.]"
"(Signed) William Ludlow, [L. S.]"
"
Commissioners of the District of Columbia"
"(Corporate seal Camden Iron Works)"
"(Signed) Walter Wood,
Pres't Camden Iron Works"
Page 181 U. S. 455
The contract was proved and offered in evidence, but its
admission was objected to by defendant on the ground that it was
not under the corporate seal of the District of Columbia. The
objection was overruled, and defendant excepted. The evidence
showed that no action was taken by the temporary board of
Commissioners appointed under the act of Congress approved June 20,
1874, looking to the adoption of a corporate seal for the District,
and none by the permanent board appointed under the Act of Congress
of June 11, 1878, until September 23, 1887, when the board passed
an order that the seal of the District of Columbia, as adopted by
an act of the legislative assembly of August 3, 1871, be placed in
the official charge and custody of the secretary of the board, and
it further appeared that this seal was not generally used until
after the contract had been entered into, but was affixed to deeds
conveying real estate, to bonds and securities, and, in some cases,
to tax deeds. Plaintiff further proved that the contract was not in
fact executed and delivered by the Commissioners before August 4,
1887. The evidence to this effect was objected to by defendant, the
objection overruled, and exception taken.
The opinion of the Court of Appeals further states the facts as
follows:
"The contract provided for the manufacture of certain designated
sizes of iron pipe by the plaintiff, and its complete delivery to
the defendant, 'within 136 days
after the date of the
execution of the contract, one-half of each size to be
delivered on or before September 25, 1887, and the remainder on or
before November 10, 1887.'"
For failure to deliver the pipes within the time thus fixed, the
contract provided that there should
"be deducted from the contract price, as in said contract
specified, one percent of the contract price for all delinquent
articles for each and every week day that they remained
delinquent."
There was a further provision that for failure to complete the
work at the time specified, there should be deducted from the money
to become due under the contract "the sum of ten dollars
per
diem for the same period estimated as liquidated and fixed
damages to the District."
"In the contract there was a provision made for inspecting
Page 181 U. S. 456
the iron pipes and 'to determine whether there was any reason
for rejection, prior to delivery.' Payments were to be made after
August 1, 1887, for all pipe 'received and accepted in proper order
and condition, less twenty percent of the amount found due, to be
reserved until the satisfactory completion of the contract.'"
"There appears to have been a suspension in the execution of the
contract, owing to misunderstandings as to the qualities of the
work and the inspection thereof, and consequently but a small
proportion of the pipe was delivered prior to November 30, 1887.
But after that date, pipe worth $11,404.09 at contract rates,
according to estimate made, was delivered to and accepted by the
District of Columbia, and used by the corporation. The total value
at contract rates of all the pipe delivered to and accepted by the
District of Columbia was $16,335.87, on which there was paid in
cash $5,291.71, by two checks, which did not indicate that they
were meant to be in full settlement of all moneys due under the
contract, and the balance, $11,044.16, was more than
counterbalanced by the fines and penalties charged up by the
defendant for nondelivery of the pipe within the time specified in
the contract. It was for this balance of $11,044.16 with interest
thereon from the 27th of February, 1888, that this action was
brought. There is no pretense that there was any demand made by the
defendant for any more or other quantity of pipe than that
delivered under the contract and which was refused to be delivered
by the plaintiff. On the contrary, on November 30, 1887, when
Captain Symons, the assistant engineer Commissioner of the
District, requested that no more pipe should be cast for delivery
under the contract, there remained to be cast about 340,000 pounds,
on which the profits to the plaintiff at contract prices, would
have been about $1,300. After the plaintiff's letter of November
30, 1887, assenting to the cancellation of the contract
as to
all pipe not then manufactured, provided all pipe then
manufactured should be taken and paid for at contract rates,
without deductions, and Captain Symons' reply thereto, directing
the sending on of the pipe then cast and accepted by Hoyt, the
value of the pipe at contract rates, actually shipped to the
defendant, was $11,404.16.
Page 181 U. S. 457
It was for this amount that the verdict was rendered, with
interest and without any allowance or deductions for forfeitures or
penalties for nondelivery of pipe within the time prescribed by the
terms of the contract."
Certain instructions to the jury were requested and given by the
court on plaintiff's behalf. Instructions were also asked on behalf
of defendant, and refused. To the rulings of the court in granting
the instructions given for plaintiff, and in refusing the
instructions asked for defendant, defendant duly excepted. The
court also charged the jury generally, to which charge or any part
thereof no exceptions were taken.
The errors assigned were to the effect that an action of
covenant would not lie on the contract because it was not under the
seal of the District of Columbia; that it was not competent for
plaintiff below to show by parol evidence that the contract was
finally executed and delivered by defendant at a date subsequent to
that mentioned in the contract itself, from which latter date the
time allowed for the manufacture and delivery of the pipe should be
computed; that the manufacture and delivery of the pipe within the
time mentioned constituted a condition precedent, and that no
recovery could be had on the contract for any pipe delivered to and
accepted by defendant after the time specified for delivery; that,
if plaintiff was entitled to recover for pipe delivered after the
times mentioned, defendant was entitled to offset the penalties
against the contract price as liquidated damages, and that no
interest ought to have been allowed in the recovery.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The first section of the act "to provide a government for the
District of Columbia," approved February 21, 1871, 16 Stat.
Page 181 U. S. 458
419, c. 62, provided:
"That all that part of the territory of the United States
included within the limits of the District of Columbia be, and the
same is hereby, created into a government by the name of the
District of Columbia, by which name it is hereby constituted a body
corporate for municipal purposes, and may contract and be
contracted with, sue and be sued, plead and be impleaded, have a
seal, and exercise all other powers of a municipal corporation not
inconsistent with the Constitution and laws of the United States
and the provisions of this act."
A governor and legislature were created, also a board of public
works, to which was given the control and repair of the streets,
avenues, alleys, and sewers of the City of Washington, and all
other works which might be entrusted to their charge by either the
legislative assembly or Congress. They were empowered to disburse
the moneys received for the improvement of streets, avenues,
alleys, sewers, roads, and bridges, and to assess upon adjoining
property specially benefited thereby a reasonable proportion of the
cost, not exceeding one-third.
June 20, 1874, an act was passed entitled "An Act for the
government of the District of Columbia, and for Other Purposes." 18
Stat. 116, c. 337. By this act, the government established by the
act of 1871 was abolished and the President, by and with the advice
and consent of the Senate, was authorized to appoint a Commission,
consisting of three persons, to exercise the power and authority
vested in the governor and the board of public works, except as
afterwards limited by the act.
By a subsequent act approved June 11, 1878, 20 Stat. 102, c.
180, it was enacted that the District of Columbia should "remain
and continue a municipal corporation," as provided in section two
of the Revised Statutes relating to said District (brought forward
from the act of 1871), and the appointment of Commissioners was
provided for, to have and to exercise similar powers given to the
Commissioners appointed under the act of 1874.
This legislation is considered and set forth in
Metropolitan
Railroad v. District of Columbia, 132 U.
S. 6.
By section thirty-seven of the act of February 21, 1871 (which
is applicable to the present Commissioners),
District of
Columbia
Page 181 U. S. 459
v. Bailey, 171 U. S. 175,
it was provided that
"all contracts made by the said board of public works shall be
in writing, and shall be signed by the parties making the same, and
a copy thereof shall be filed in the office of the secretary of the
District, and said board of public works shall have no power to
make contracts to bind said District to the payment of any sums of
money except in pursuance of appropriations made by law, and not
until such appropriations shall have been made."
Section 5 of the act of June 11, 1878, provided:
"All contracts for the construction, improvement, alteration, or
repairs of the streets, avenues, highways, alleys, gutters, sewers,
and all work of like nature shall be made and entered into only by
and with the official unanimous consent of the Commissioners of the
District, and all contracts shall be copied in a book kept for that
purpose and be signed by the said Commissioners, and no contract
involving an expenditure of more than one hundred dollars shall be
valid until recorded and signed as aforesaid."
On March 3, 1887, an act of Congress was approved by which the
sum of $100,000 was appropriated for "repairing and laying new
mains," and "lowering mains," and for engineers and others under
the water department of the District government. 24 Stat. 580, c.
389.
The contract in this case was signed by all of the Commissioners
and recorded in a book kept for that purpose as required by the act
of Congress. Unquestionably the Commissioners, when they executed
the contract, were authorized to purchase iron pipe for the
extension of the water service, and as the municipal corporation
had the right to have a seal, which could be changed from time to
time, it had the right to execute contracts under seal. The
principal objection here is, however, that this was not the sealed
obligation of the District. It is conceded that the Commissioners,
who signed the contract officially, were not personally liable
thereon, and that the contract bound the District, but it is
insisted that the contract was not a specialty. The opinion of the
Court of Appeals by Chief Justice Alvey satisfactorily disposes of
this objection, and we concur with the views therein expressed.
Page 181 U. S. 460
The board of Commissioners was constituted by statute to carry
the powers of the municipal corporation called the District of
Columbia into effect. The Commissioners could adopt for the
corporation any seal they chose, whether intended to be permanently
used or adopted for the time being. When, acting officially, as in
this instance, they signed and sealed the instrument as for the
corporation, their signatures and seals bound the corporation as by
a specialty. As Judge Putnam said in
Mill Dam Foundry v.
Hovey, 21 Pick. 428:
"A corporation as well as an individual person may use and adopt
any seal. They need not say that it is their common seal. This law
is as old as the books. Twenty may seal at one time with the same
seal."
The general rule is
"that, when a deed is executed, or a contract is made on behalf
of a state by a public officer duly authorized, and this fact
appears upon the face of the instrument, it is the deed or contract
of the state, notwithstanding that the officer may be described as
one of the parties, and may have affixed his individual name and
seal. In such cases, the state alone is bound by the deed or
contract, and can alone claim its benefits."
Sheets v.
Selden, 2 Wall. 187;
Hodgson v.
Dexter, 1 Cranch 345.
As to private corporations, where authority is shown to execute
a contract under seal, the fact that a seal is attached with intent
to seal on behalf of the corporation is enough though some other
seal than the ordinary common seal of the company should be used.
Jacksonville Railroad Co. v. Hooper, 160 U.
S. 514;
Stebbins v. Merritt, 10 Cush. 34;
Bank v. Railroad Company, 30 Vt. 159;
Tenney v. East
Warren Lumber Company, 43 N.H. 343;
Porter v. Railroad
Company, 37 Me. 349;
Phillips v. Coffee, 17 Ill. 154.
Many of these cases are cited by Judge Dillon in his work on
Municipal Corporations (4th ed.) § 190, where he says:
"Respecting seals, the same general principles apply to private
and to municipal corporations. Thus, a corporation of the latter
class would doubtless be bound equally with a private corporation
by any seal which has been authoritatively affixed to an instrument
requiring it, though it be not the seal regularly adopted. "
Page 181 U. S. 461
Under the former corporate organization of the District, a seal
had been adopted, but it was not until after this contract was
entered into that the board took official action in respect of it.
It is to be assumed on this record that the Commissioners affixed
their seals as the seal of the corporation. It was for them to
determine whether the interest of the District required the
contract to be sealed.
We agree with the Court of Appeals that this contract was not
only the contract of the District, as is conceded, but that it was
its deed, upon which an action of covenant could be maintained. It
was therefore properly admitted in evidence, and recovery could be
had thereon if otherwise justified. As such an action is not barred
in three years, the demurrer to the plea of the three years'
statute of limitations was necessarily sustained.
The next proposition of the District -- that it was not
competent for plaintiff below to show by parol that the contract
was finally executed and delivered by the District at a date
subsequent to the date of the contract -- is without merit. The
contract did not provide that the work was to be completed within
136 days from its date, but "after the date of the execution of the
contract." It is well settled that in such circumstances, it may be
averred and shown that a deed, bond, or other instrument was in
fact made, executed, and delivered at a date subsequent to that
stated on its face.
In
United States v. Le
Baron, 19 How. 73, it was ruled that a deed speaks
from the time of its delivery, not from its date, and Mr. Justice
Curtis, who gave the opinion, cited
Clayton's Case, 5
Coke, 1;
Oshey v. Hicks, Cro.Jac. 263, and
Steele v.
Mart, 4 B. & C. 272. To which the Court of Appeals added
Hall v. Cazenove, 4 East 477. These cases fully sustain
the doctrine that parties, situated as here, are not precluded from
proving by parol evidence when a deed or contract is actually made
and executed, from which time it takes effect.
In
Williams v.
Bank, 2 Pet. 102, it was laid down as a general
principle of law that
"If a party to a contract who is entitled to the benefit of a
condition upon the performance of which his responsibility is to
arise, dispense with, or by any act
Page 181 U. S. 462
of his own prevent the performance, the opposite party is
excused from proving a strict compliance with the condition. Thus,
if the precedent act is to be performed at a certain time or place,
and a strict performance of it is prevented by the absence of the
party who has a right to claim it, the law will not permit him to
set up the nonperformance of the condition as a bar to the
responsibility which his part of the contract had imposed upon
him."
In this case, the further performance of the contract was
determined by the consent of the parties, but the contract was not
rescinded except as to the future manufacture of pipe for
delivery.
The third objection of the District is that an action of
covenant on the contract would not lie to recover the price of the
pipe that was delivered, because there had not been full
performance; yet the pipe, to recover the price for which this
action was brought, was, as the Court of Appeals said,
manufactured, delivered, and accepted under the contract, in part
performance thereof, and with agreed upon as set forth in the
contract. The dispensation of complete performance did not make a
new contract, nor later the terms of the existing agreement. It was
a mere waiver of further performance.
It is said that the demurrer to the plea of limitations, the
ninth plea, ought to have been carried back to the declaration. The
hearing of that demurrer was reserved by stipulation to the trial
of the cause, no suggestion of this kind was then made, and the
declaration was good as against a general demurrer. The company
averred full performance "except insofar as it was prevented or
discharged from so doing by the defendant." That was not setting up
a modified or substituted contract, but a waiver of a condition
precedent to be performed by plaintiff.
In
McCombs v. McKennan, 2 W. & S. 216, it was held
that covenant may be sustained upon a contract under seal
notwithstanding, by subsequent consent of the parties, the place at
which the articles called for were to be delivered was changed.
In
Construction Company v. Seymour, 91 U. S.
646, it was held that defendant was liable on his
covenant for the contract
Page 181 U. S. 463
price of the work when completed, where absolute performance had
been waived. And in many cases of prevention by the defendant or of
tender and refusal, the plaintiff has been held to have the right
of action on a special contract, prevention or refusal being
equivalent for that purpose to performance.
Assuming that full performance was dispensed with, the court did
not err in ruling that the right to sue upon the contract
remained.
The court gave to the jury, on behalf of plaintiff, the
following instructions:
"If the jury believe from the evidence that the plaintiff
corporation was prevented from completing the delivery of pipe by
it stipulated to be manufactured and delivered under the contract
offered in evidence within the time or times therein limited by any
act or omission on the part of the defendant, then the defendant is
not entitled to charge against the plaintiff any fines or penalties
for such delay in delivering pipes as was occasioned by such act or
omission."
"If the jury believe from the evidence that the defendant, by
its silence or conduct, caused the plaintiff corporation to
believe, on or about the 1st day of December, A.D. 1887, that all
pipe thereafter delivered would be taken and paid for at contract
rates, without any deduction, and thereby induced the plaintiff to
act on that belief and thereafter deliver pipe to the defendant,
which the plaintiff would not have otherwise done, and the
defendant accepted such pipe, the defendant is estopped from
charging against the plaintiff any fines or penalties for not
delivering such pipe within the time or times specified by the
contract."
Defendant asked the following instruction, which the court
refused to give:
"If the jury believe from the evidence that the failure of
plaintiff to deliver the iron pipes mentioned in the contract given
in evidence at the times and in the quantities specified hindered
and delayed the defendant in extending the water service in 1887,
then the defendant had a right to charge against the price it
agreed to pay the plaintiff for the pipe it undertook to deliver as
liquidated damages the penalties provided in the contract. "
Page 181 U. S. 464
The fourth question is whether the court erred in these rulings.
Defendant's instruction was clearly wrong, and it seems to us that
plaintiff's instructions fairly submitted the contention as to
penalties and forfeitures to the jury. If strict performance by
plaintiff was prevented or waived by defendant as contended on the
facts, then the claim for fines or penalties for delay or failure
to deliver the pipe could not be sustained.
The court left the matter of interest to the jury, and refused
to give at defendant's request an instruction that no interest
should be allowed except from the time of the institution of the
suit. Exception was taken to this refusal, but, in view of the
evidence, the trial court committed no error in that regard.
Rev.Stat. D.C. § 829;
Washington & Georgetown Railroad
v. Harmon, 147 U. S. 585.
To the general charge of the court in respect of interest, no
exceptions were preserved.
Judgment affirmed.
MR. JUSTICE BROWN and MR. JUSTICE McKENNA dissented.
