CASES DECIDED IN THE COURT OF CLAIMS December 4, 1939 to March 31, 1940. BROWNSTEIN-LOUIS COMPANY, A CORPORATION, v. THE UNITED STATES [No. 44108. Decided1 October 2, 1939]* On Demurrer Rental of property by Government; breach of contract.-Where representative of the Government negotiated with the plaintiff for rental of space for certain governmental agencies and in pursuance of such negotiations plaintiff made extensive alterations to suit the needs of the respective agencies, 12 of the agencies entering into leases with plaintiff commencing on June 30, 1930, for 1 year, renewable from year to year at the option of the Government until and including the year 1935, and where one of the said agencies, the Internal Revenue Bureau, before the time for acceptance of the space reserved for it in plaintiff's building refused to execute the proposed lease, to move into the building, or to use the space reserved by it, and has never occupied said space, it is held that a breach of the contract occurred at that time, July 1, 1930, and plaintiff then had cause of action for the rent as it accrued. Same.-Plaintiff, it is held, also had an option to delay the commencement of a suit until a full year's rent had been earned and upon failure to make payment of rent a cause of action accrued. Same; commencement of suit within statutory period.—Plaintiff, having delayed to bring suit for more than 6 years, its petition having been filed on October 10, 1938, it is held that the cause of action is barred under the provisions of section 156 of the Judicial Code, which imposes a limitation of 6 years in which suit may be brought after a claim accrues. 1 [On October 23, 1939, the court entered an order allowing plaintiff an extension of 30 days, until December 2, 1939, within which to tender an amended petition, with motion for leave to file, and on November 29, 1939, such motion was filed; and on December 6, 1939, plaintiff's motion was overruled.] *Certiorari denied May 20, 1940. 1 Opinion of the Court Same; limitation on rental of property by Government.-Where plaintiff claims it had 6 years from the expiration of the 5-year period for which a lease had been made in which to bring suit, it is held that under sections 3732 and 3679 of the Revised Statutes no contract for the rental of property can be entered into by the Government for more than 1 year and where a contract is made for a longer term of years, an option has to be exercised before the beginning of the next fiscal year. Mr. Don Marlin for the plaintiff. Mr. John B. Miller, with whom was Mr. Assistant Attorney General Sam E. Whitaker, for the defendant. The facts sufficiently appear from the opinion of the court. WHALEY, Chief Justice, delivered the opinion of the court: The allegations of the complaint show that on September 15, 1929, Colonel Dennis P. Quinlan, allegedly representing the President of the United States in the matter of coordinating the activities of the Federal agencies in Los Angeles, California, negotiated with the plaintiff for the occupancy by the Federal Government of plaintiff's building in Los Angeles for a period of not less than five years for the purpose of housing thirteen agencies doing business in that city at an agreed rental, such occupancy to commence on July 1, 1930, by each of such agencies; that the agencies concerned, through their local representative, submitted plans for alterations for the said building to suit their particular needs; that Colonel Quinlan requested plaintiff to lease its building to the United States Government for the purposes mentioned and that plaintiff consented to do so; that plaintiff made extensive alterations, including that portion of the building to be occupied by the Internal Revenue Department; that twelve of the agencies entered into leases with plaintiff commencing on June 30, 1930, for a period of one year, renewable from year to year at the option of the United States Government until and including the year 1935; that eight days before the time for acceptance by the Internal Revenue Department of the space reserved for it in plaintiff's building, the Internal Revenue Department refused to execute the lease, to move into the building or use the space reserved by it and has not occupied such space but, on the other hand, obtained other quarters in Los Opinion of the Court Angeles; that by reason of the loss of rental which plaintiff expected to obtain from the Internal Revenue Department it was required to go into a receivership and lost its building and lands by foreclosure proceedings; and that it is damaged in the amount of $2,008,353.19. Plaintiff filed its petition on October 10, 1938, and on November 15, 1938, defendant interposed a demurrer alleging several grounds on which the complaint should be dismissed. We do not think it necessary to discuss the several grounds mentioned in the demurrer for the reason that there appears an insuperable bar for recovery on the face of the complaint. It will be seen that the contract on which plaintiff brings this action was for the rental of the space to be occupied by the Internal Revenue Department commencing on July 1, 1930. Before the first of July, the Internal Revenue Department notified plaintiff that it would not occupy the premises. A breach of the contract occurred at that time and plaintiff had a cause of action for the rent as it accrued. However, plaintiff also had an option to delay the commencement of a suit until a full year's rent had been earned and upon the failure to make payment a cause of action accrued. Under the provisions of Sec. 156 of the Judicial Code (36 Stat. 1139) there is a limitation of six years in which to bring a suit after the claim accrues. Plaintiff has delayed to bring suit for more than six years and therefore the cause of action is barred and no recovery can be had. Plaintiff claims that it had six years from the five-year period for which the lease had been made. Under Sec. 3732 and 3679 of the Revised Statutes, 34 Stat. 255; 34 Stat. 48, no contract for the rental of property can be entered into by the Government for more than one year and when a contract is made for a longer term of years, an option has to be exercised before the beginning of the next fiscal year. In Reed Smoot v. United States, 38 C. Cls. 418, 427, in construing the above sections of the Revised Statutes, the court held that The provisions of the sections clearly limit the liability of the Government by the appropriations made for each fiscal year, and the contract of the kind embraced in this proceeding is impressed with the limitations of those sections. Syllabus In Leiter v. United States, 271 U. S. 204, 207, the court held that A lease to the Government for a term of years, when entered into under an appropriation available for but one fiscal year, is binding on the Government only for that year. McCollum v. United States, 17 Ct. Cls. 92, 104; Smoot v. United States, 38 Ct. Cls. 418, 427. And it is plain that, to make it binding for any subsequent year, it is necessary, not only that an appropriation be made available for the payment of the rent, but that the Government, by its duly authorized officers, affirmatively continue the lease for such subsequent year; thereby, in effect, by the adoption of the original lease, making a new lease under the authority of such appropriation for the subsequent year. The demurrer is sustained and the petition is dismissed. It is so ordered. WILLIAMS, Judge; LITTLETON, Judge; and GREEN, Judge, concur. WHITAKER, Judge, took no part in the decision of this case. YOUNG-FEHLHABER PILE COMPANY, A CORPORATION v. THE UNITED STATES [No. 43841. Decided November 6, 1939. Defendant's motion for new trial overruled February 5, 1940] On the Proofs Government contract; implied provision to furnish labor.-Where contract between the plaintiff contractor and the Government provided that of the persons employed on the project preference should be given to persons referred for such work by the United States Employment Service and from the public relief rolls, and where the United States Employment Service was not able to furnish a sufficient number of men qualified to carry on the work and the necessary number of men could not be obtained in accordance with the terms of the contract, it is held that the contract carried an implied provision that the defendant would furnish the necessary workmen to complete the work within the required time, and its failure so to do was a breach of the contract. Reporter's Statement of the Case Same. Where the contract provided that the provision as to obtaining labor from the public relief rolls might be waived with the specific authorization of the Works Progress Administration, and where no request for such waiver was ever made by the plaintiff, it is held that the plaintiff violated no provision of the contract by not requesting such waiver, since there was nothing in the contract that required the Works Progress Administration to give such permission or consent; and, further, no such labor was available even if such request had been made. Same; delay by strike.-Where there was a further delay caused by a truck drivers' strike, it is held that since the defendant was in no way responsible for said strike, it is not liable for such further delay. Same; signing voucher for final payment not a bar to recovery.— Where plaintiff executed a voucher for final payment in accordance with the terms of the contract, but before such execution had notified the contracting officer, representing the defendant, that it would ask additional compensation on account of the delay, it is held in the circumstances of the case plaintiff was not barred from recovering damages by the signing of the voucher. The Reporter's statement of the case: Mr. Fred W. Shields for the plaintiff. Mr. George R. Shields and King & King were on the briefs. Mr. J. H. Reddy, with whom was Mr. Assistant Attorney General Sam E. Whitaker, for the defendant. The court made special findings of fact as follows: 1. Young-Fehlhaber Pile Company, plaintiff, is a corporation organized under the laws of the State of New York. Plaintiff has its principal place of business in the City of New York, New York; and is engaged in the contracting business. Mr. Fred R. Fehlhaber is the president of the corporation. 2. On November 10, 1936, plaintiff entered into a contract with the United States. Under the terms of the contract, plaintiff agreed to furnish all labor and materials, and perform all work required for reinforcing the south pier of Summit Bridge over the Inland Waterway from Delaware River to Chesapeake Bay, Delaware and Maryland, for the consideration of $41,783. Plaintiff agreed to complete the |