[220 U.S. 491, 492] Messrs. William H. Robeson, Benjamin Carter, and F. Carter Pope for ripley.
Assistant Attorney General John Q. Thompson and Philip M. Ashford for the United States.
Mr. Chief Justice White delivered the opinion of the court:
These are cross appeals from a judgment entered by the court of claims against the United States and in favor of Henry C. Ripley. The claim of Ripley was based upon a written contract between himself and the United States, executed on April 6, 1903, containing numerous stipulations, by which in substance Ripley agreed to furnish materials for and do certain jetty work at Aransas Pass, Texas, authorized by an act approved June 13, 1902 (32 Stat. at L. 340, chap. 1078).
In his amended petition Ripley set forth numerous items of damage, aggregating $45,930, which it was asserted resulted from violations by the United States of the terms of the contract. Judgment was entered against the United States for $14,732.05. 45 Ct. Cl. 621. Ripley prosecuted this appeal in order to obtain an increased allowance, [220 U.S. 491, 493] while the United States, by its cross appeal, seeks a reversal of the judgment.
Among other things it was provided in paragraph 61 of the specifications as follows:
A large sum was demanded by Ripley, upon the contention that the completion of the work was greatly delayed, owing to the fact that 'on the portion of the line where no foundation had previously been laid, and where petitioner therefore placed the foundation materials, said Captain Jadwin and the subordinate officers in charge forbade and restrained petitioner from imposing the cap blocks until long after the foundation, in their judgment and, in fact, had become sufficiently consolidated and they had caused the creast to be leveled.' On this branch of the case the court of claims found as follows:
In the brief of counsel for Ripley it is said:
We are of opinion, however, that while it may be open to conjecture that the word 'manifest' as used by the court in its finding is susceptible of the broad significance which the argument thus imputes to it, we do not think such meaning is so clear and free from doubt as to justify us in concluding that there was bad faith on the part of the government inspector in charge of the work. We say [220 U.S. 491, 496] this because it is certain that we may not draw the inference of bad faith unless the findings are so clear on the subject as to cause such inference to be plain beyond controversy. It follows, therefore, that the finding below on the subject of the knowledge and good faith of the inspector is so incomplete and inconclusive as to render it impossible for us to decide the cause without grave risk of doing wrong to the plaintiff or serious injury to the government. It was the clear duty of the court below, in dealing with the question of bad faith on the part of the government inspector, not to leave that subject dependent upon an ambiguous expression, susceptible of being construed one way or the other, but to explicitly find whether or not that which it states was manifest was or not known to the inspector, and whether that subordinate official acted in good or bad faith in the various refusals recited as having been made to the laying of the crest blocks and the reasons assigned for those refusals. Further, the court should have found as a fact whether or not complaint was made by the claimant, either to the engineer officer in charge or to the chief of engineers, as to the action of the subordinate inspector in refusing the requested permission, and, if complaint was made, when it was made, and what action was taken thereon.
Following the approved practice (United States v. Adams [United States v. Child] 9 Wall. 661, 19 L. ed. 808), the following order will be made:
Ordered: That the record in this case be remanded to the court of claims, and that said court be instructed to find and certify to this court, as matters of fact, in addition to the facts found and certified in said record:
First. Whether, when the claimant was laying the slope stones, and during the months of December, 1903, and January, February, March, and April, 1904, as recited in finding 7, the inspector in charge knew 'that large parts of the work done by the claimant had fully settled and consolidated.' [220 U.S. 491, 497] Second. Whether, in the various refusals to permit the laying of crest blocks, stated in finding 7, the inspector in charge acted in good faith.
Third. Whether at any time the claimant notified the engineer officer in charge or the chief of engineers that the inspector in charge wrongfully refused to permit the laying of the crest blocks, and if such notice was given, whether it was oral or written, when the notice or notices were given, and what action, if any, was taken by such superior officer.
And it is further ordered that the said record, with the said additional findings of fact, be returned to this court with all convenient speed.