Subcontracting

“ In terms of these factors, a finding of some commitment, arrangement or understanding between the prime contractor and the subcontractor should be required when the contracting officer's adverse interest arises by way of a subcontract, since only where some such arrangement exists can the officer be taken to have known that any undue benefit he confers on the prime contractor will not eventually redound to the profit of some other competing subcontractor. ”

“ Such expectation, however reasonable, founded even upon the express promise of the employer that the funds shall be thus devoted, of itself avails nothing in favor of the contractor. Before there can arise any lien on the funds of the employer, there must be, in addition to such express promise, upon which the contractor relies, some act of appropriation on the part of the employer depriving himself of the control of the funds, and conferring upon the contractor the right to have them applied to his payment when the services are rendered or the materials are furnished. ”

“ But if valid we see no reason why a contract to bequeath a certain sum should not give rise to an action for damages if broken, as certainly as a contract to pay the same sum in the contractor's life, or at the moment of the contractor's death. ”

“ Everything is left to him. The man who signs that contract gives a mortgage on his life, liberty, and pursuit of happiness. He has no redress. I simply call your attention to this to show you the obligation that a contractor takes upon himself. We will show you that he is under obligation to discharge any carrier that the Government does not like; that he has no right to carry any package or any letter that can go by mail; that he is to forfeit a trip when it is not run, or not to exceed three times the pay of a trip ”

“ The act of 1917, on the other hand, instead of creating a right of lien against the owner, who is a stranger to the subcontract, requires that if a bidder for public works is to become the contractor therefor he must procure a bondsman for the payment of his subcontractors. The statute itself confers no contractual right on any subcontractor, nor does it by its own force confer upon him any new remedy for the enforcement as against the principal contractor of the obligation of any contract the two may make. A bondsman is invited to come forward and agree to indemnify the subcontractor. ”

“ So that when a man bids for more than one route, for instance, a hundred or a thousand, and gets them and carries them all absolutely according to his contract but one, he can be declared a failing contractor on all. What does that mean? It means not simply ruin to him, but ruin to every one of his sureties, unless they are in a condition to go on and carry the mail. I want you to understand something of the obligation of a contractor with the Government of the United States. ”

“ Two more enactments deal with the earnings of the workmen of contractors and sub-contractors, make them a first charge on all contract money, give workers employed on works of construction a lien thereon, and compel a contractor's employer to hold back at least one-fourth of the contract money for a month after the completion of a contract, unless he shall be satisfied that all workmen concerned have been paid in full. A Wages Attachment Act limits without entirely abolishing a creditor's right to obtain orders of court attaching forthcoming earnings. ”

“ A proviso then states:
'Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made * * *.'
The Miller Act, like the Heard Act, is highly remedial in nature. ”

“ That when any contractor or subcontractor entering into a formal contract with any person, firm or corporation, for the construction of any building or work or the doing of any repairs, shall enter into a bond with such person, firm or corporation guaranteeing the faithful performance of such contract and containing such provisions and penalties as the parties thereto may insert therein, such bond shall also be subject to the additional obligations that such contractor or subcontractor, shall promptly make payments to all persons furnishing labor or material under said contract ”

“ If we are to equate the subcontractor's interest with something it is not, it would be much more appropriate, in terms of similarity, to equate it with the usual mechanic's lien of a subcontractor on the owner's property being improved-which of course is not the general contractor's property, and which could not be taken by the United States under a lien against the general contractor. ”

“ Even in the domain of contract, we find the striking doctrine that an undisclosed principal has the rights as well as the obligations of a known contractor,—that he can be sued, and, more remarkable, can sue on his agent's contract. The first precedent cited for the proposition that a promise to an agent may be laid as a promise to the principal, is a case of master and servant. ”

“ If the contractor sees fit to let the work to a subcontractor, who employs labor and buys materials which are used to carry out and fulfil the engagement of the original contract to construct a public building, he is thereby supplied with the materials and lobor for the fulfilment of his engagement as effectually as he would have been had he directly hired the labor or bought the materials. ”

“ If I commission a work from a man, ordering a work specially for my purposes, and I pay for it, what difference does it make whether I put him under an employment contract or establish an independent contractor relationship? ”

“ In a broad, generic sense a subcontractor includes anyone who has a contract to furnish labor or material to the prime contractor. In that sense Miller was a subcontractor. But under the more technical meaning, as established by usage in the building trades, a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen. ”

“ In such circumstances, whether the contract is valid or not, the contractor is accountable to the contractee, up to the amount of his undertaking, for the proceeds coming to his hands from the contractee upon the inducement of the contract. ”

“ The above-mentioned act of August 13, 1894, contains no direction respecting where suit upon the bond of a contractor shall be brought by a subcontractor, or what courts shall take jurisdiction of the right of action it creates. ”

“ Then there are the contractor and sub-contractor; the man who failed to get the contract he wanted, and the man who is planning to get the next contract. There is the ex-agent, who corresponds with the employés and Indians, and criticises his successor, and the man who wants to be agent, and watches for a lever to oust the incumbent. (There are always twenty of them!) There is the dissatisfied employé, who corresponds with outsiders about agency affairs, and the meddlesome clerk at Washington, who gives him private assistance. ”

“ Modern Steel Structural Co. v. English Constr. Co. 129 Wis. 31, 40, 41, 108 N. W. 70.
In the present case, not only was the reference to the drawings and specifications for a limited purpose, but the subcontract, by the express terms of its 11th paragraph, placed upon the general contractor (defendant) the obligation to 'provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work.' Applying this to the facts of the case, defendant agreed to furnish the foundation in such manner that plaintiff might build upon it without delay. ”

“ In the case before us, the contract of the surety is not in the alternative, but consists of two terms: one, that the principals shall perform their engagement, not merely by the delivery of some machinery, but of such machinery as the contract includes; the other, that if there be a non-performance, whether excusable or not, the money advanced on the contract shall be secured to the plaintiffs to the extent for which their principals are liable. ”

“ The contractor, under the circumstances, could acquire no greater interest in the road than was held by the company. He did not exact any formal conveyance, but if he had, and one had been executed and delivered, the rule would be the same. ”

“ The term 'excessive profits' means any amount of a contract or subcontract price which is found as a result of renegotiation to represent excessive profits.
' (5) The term 'subcontract' means any purchase order or agreement to perform all or any part of the work, or to make or furnish any article, required for the performance of another contract or subcontract. The term 'article' includes any material, part, assembly, machinery, equipment, or other personal property. ”

“ The contract having been fully performed, evidence of the actual value of the work and materials was irrelevant, and in this view of the case the master did not err in ruling it out, and holding the receivers to the contract. 'The true value of the work done and materials furnished' may be, with entire appropriateness, said to be the value which the parties have deliberately and knowingly put upon them, and 'the amount justly and equitably due' the contractor under such circumstances is the amount which the receiver has promised to pay him. ”

“ Whenever, in the opinion of the Secretary of a Department, the profits realized or likely to be realized from any contract with such Department, or from any subcontract thereunder whether or not made by the contractor, may be excessive, the Secretary is authorized and directed to require the contractor or subcontractor to renegotiate the contract price. ”

“ In implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. But a Quasi-Contract is not a contract at all. The commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. ”

“ If the law be, that no person shall take more than six per centurn per annum for the use of money, and that, if more be reserved, the contract shall be void, a contract made thereafter, reserving seven per cent., would have no obligation, in its commencement; but if a law should declare that contracts already entered into, and reserving the legal interest, should be usurious and void, either in the whole or in part, it would impair the obligation of the contract, and would be clearly unconstitutional. ”

“ The Court requires this contractor to pay out of his own pocket the wage increase which he was directed to make. Whatever support that conclusion may have in a literal reading of the contract, it is so harsh and unfair as to be avoided if the contract does not compel the result. ”

“ It is unnecessary to hold that the contractor might not be personally bound upon his promise made before the performance of the contract to transfer a portion of his profits to any third party. Whatever liabilities he might assume by such a promise, it would be an independent promise on his part, and would not let the promisee into an interest in the contract. ”

“ A contract that on its face requires an illegal act, either of the contractor or a third person, no more imposes a liability to damages for nonperformance than it creates an equity to compel the contractor to perform. A contract that invokes prohibited conduct makes the contractor a contributor to such conduct. ”

“ One of these clauses is the so-called 'changes' clause which permits the contracting officer to make changes within the scope of the contract, provides that if any change causes an increase or decrease in the cost of, or the time required for the performance of, the work, 'an equitable adjustment shall be made in the contract price or delivery schedule,' and states that failure to agree upon an adjustment shall be a question of fact within the meaning of the disputes clause. ”

“ Intention of the parties in the contract of affreightment, as in other commercial contracts, must be ascertained from the language employed, the subject-matter, and the surrounding circumstances, and it is clear that the question of construction cannot be affected in the smallest degree by the subsequent solvency or insolvency of one of the contracting parties. ”

“ A principal who has authorized his agent to make a contract for him may revoke or restrict the agency before any contract is made, but he is bound by a contract made during the continuance of the agent's powers, if those powers were not transgressed in making it. ”

“ The circuit court was clearly right in upholding its jurisdiction. As already stated, the contract between the United States and the original contractor, the bond of the surety company, and the contract with the use plaintiff, were all executed prior to the passage of the amendatory act. ”