LANGFORD V. UNITED STATES.

933

There is no question as to what case was presented, nor as to the circumstances under which it was presented, to counsel for the defendant, and it is simply a question of law, upon admitted and undisputed facts, as to whether these facts are sufficient to show that the defendant acted with reasonable and probable cause; and, being of the opinion that they are sufficient and do so show, the motion of defendant will be sustained, and the jury will be instructed to return' a verdict in favor of the defendant.

LANGFORD v. UNITED STATES. (Circuit Court, D. Oregon.
DAMAGES-BREACH OF CONTRACT.

July 28, 1899.)

A contract for building a lighthouse, by which the United States agrees to furnish the metal work, in the absence of any specified time binds it to supply such material within a reasonable time, and, if it fails to do so, by reason of which the contractor is compelled to suspend work, and discharge his men, he is entitled to recover as damages the incre3iled cost of necessary labor by reason of a rise in wages, necessary expel1lles, and loss of materials resulting from stopping the work, and interest on the deferred payments under the contract, but not, where he subsequently completes the contract, for the value of his time dUring the delay, and during which time he performed no services.

This was an action against the United States to recover damages occasioned plaintiff, as a contractor for the building of a lighthouse, by reason of delay in furnishing certain materials required by the contract. O. F. Paxton, for plaintiff. · Tohn H. Hall, for the United States. BELLINGER, District Judge. The plaintiff had a contract with the United States for the construction of a lighthouse at the mouth of the Columbia river, the latter to supply the metal work used in building. Plaintiff moved his plant to the site of the lighthouse, and began work under his contract. There was delay on the part of the government in furnishing the metal work, and as a result the plaintiff was compelled to discharge his laborers, and wait several months before the metal work was supplied, so as to enable him to resume work. In the meantime there was an advance in the wages of laborers, and there was a further damage to the plaintiff caused by the loss of mortar mixed for use, and of lime, cement, and sand. For these losses the plaintiff claims damages, and he also claims damages on account of money necessarily spent in painting and protecting his plant during the dela.y, for traveling expenses for himself, and for interest on payments due under his contract. There is a further claim for the time of plaintiff and for the use of his plant, amounting to $2,500. In the contract no time was specified within which the metal work agreed to be furnished by the government was to be furnished. I am of the opinion, however, that it was its duty to furnish this metal work within a reasonable time, and that the government

all, resulting from the work, within such tinW' ", , ' As to the (jlllantum of damages, lam, Q! the opinion that}he tiff is entitled to on: acco,:y.nt of toe increased paid lapor· ers, bricklayex:s),i1pd carpenteJ,'B, a,nd of the expenses of such laborers ,of for, cemen,t, m,ortar, lime, and sand lost in travel, bythe delay, for extra traveling 'expenses of for money spent in painting and protecth,/.gplant from action of elements during delay, $100; for interest on delayed payments, $383.50. The claim for $2,500 as the value of plaintiff's services and the value ,of the use of his plant during the delay is supported by the case of Kelly v. U. S., 31 Ct.C1': 3'61., In ,this caSe it is held that where contractors lost their own,time in waiting for the defendant to procUi'c and prepare a site for a building,' contrary to the intent of the contract, they may recover the reasonable value of their services. This case;'Is upon the authority of D., S.v.Beh'an, 110 U. 338, 4 Sup. Ct. S1.;" In that case compensation is allowed, not for lost time, buttor services which were in fact performed. The defendant having voluntarily and wrongfully put an end to the contract, it was held that the plalntiffmight, at his election, recover for the loss of anticipated profits, Or rescind the contraGt, and recover for his outlay, and for the value of ,services actually, pedormed.. The case of Kelly v. U. S. was one upon its facts much like the case on trial, where the United States had failed to procure and prepare abuilding site, whereby the was delayed, with the result that he had to purchase his materialin the market at an enhanced' market where there was loss of his own time in waiting for the defendant to procure and prepare the site. The court held that the plaintiff was entitled to recover, in addition to the other items of damages;:for the loss of his own time and services. I am unable to agree in this view. of the law. There can be no recovery for time or for services except in cases Where swvices are performed. In this case there was testimony tending to show tbat the value of the plaintif'f;ll servicelil asa superintend-, ent,in the construction; of buildings,lllld in tlle carryiD,g onol otlIer of the value of $20 per d::tY, but the testimony does not show, that this was tbeplaintiff'sbusinel'ls. 'rhe plaintiff's business is that ·of ,a contractor, he testifieA.l; that by t4e in question he wa,sprevented .Qidding, :UPO# :andobtaining,other contracts, wlHwebyhemight have Wade Now,it:is obvious that the loss.of such profits iEl too uncertain to be made the basis ,for recovery. It cannot be known that the plaintiff would have that he would have made a profit OD. such This claim is coutingent, and highly contr.acts had he I'ecured .speculative, and is not susceptible of proof, It is a mere guess that the niight have secured contracts, and made a profit upon theIll, jf he had notheen subjected to the delay complained of. Th,erule is well flettleq,tha,t where the. contract isrender,ed impossible of performaJlce by the otherparty, or there is such failure as warrants the party cOIuplaining inrescil)4ing the contract, he has his election either tq 'liluefor the profits w1J.icb. he might have l;llade, or to recover for value of the serviceli\, actually performed as upon a

BHOWN V. UNITED STATES CASTJALTY CO.

quantum meruit, and for any expenditures made by him on the faith of the contract. The various items of damages which the plaintiff is entitled to recover aggregate the sum of $1,142.04, and for this amount he is entitled to judgment.

BROWN v. UNITED STATES CASUALTY CO. (Circuit Court, N. D. California, August 7, 1899.)

No. 12,629.

ACCIDENT INSURANCE-DEATH FROM ACCIDENT-LJMITA'l'WN OF LJABILITi.

In a policy of accident insurance providing for the payment of a weekly indemnity to the insured for loss of time resulting from bodily injuries snstained through external, violent, and accidental means, a further provision for the payment to a beneficiary named of a specified sum "if death shall result from such injuries alone, and within ninety days of the event causing said injuries," is unambiguous, and the limitation is valid, and there can be no recovery thereunder where death resulted more than 90 days after the injuries ,,'ere received, though before the expiration of the term of the policy.

This was an action on two accident insurance policies to recover for the death of the insured. Harold Wheeler, for plaintiff. J. 'V. Dorsey, R. M. ]:'. Soto, and Platt & Eayne, for defendant. MORROW, Circuit Judge. This is an action on two policies of insurance issued to Arthur Page Brown, of this state, insuring him against bodily injuries or death resulting from accidental means. The plaintiff is the widow of the assured, and the beneficiary mentioned in the policies.. The suit was brought in the superior court of the state of California in and for the city and county of San Francisco, but upon petition of the defendant, alleging its citizenship of the state of Kew York, the cause was removed to this court. The material facts are not disputed by the parties interested, and are substantially the following: In 18!J5, Arthur Page Brown insured his life aga,inst accident with the defendant company for the term of one year, receiving from it two so-ealled "accident policies" in tbe sum of $5,000 each. These policies were extended in tbe usual manner until July 30, 1896. They were identical in foem and language, differing only in number and date, one being issued two days later than the otber. All premiums which became due from the assured upon the two policies were duly paid, and from the issuance of the policies up to the time of his death :Mr. Brown bad no other policies from, or insurance in, the defendant company. On October 7, 18fJ5, while the assured was driving a horse in a dogcart, near bis home, the animal became unmanageable, ran away, and rushed into a deep ravine, drawing the cart with it. The assured was thrown into the ravine, a distance of some 15 feet, snstaining serious bodily injuries. As the result of this accident, the assured was immediately and wholly disabled, and remained so continuously thereafter until his death, wbich occurred on January 21, 1896, and is admitted by the defendant to have resulted solely from tbe said injuries.