delivered the opinion of the court:
The question for decision is whether from the facts there arises the implication- of a contract, by which the Government agreed to pay $5,000, the value of the shovel, as for a taking of the property of plaintiffs for public use.
The law upn the subject is well settled. In a late case the Supreme Court of the United States, in an opinion by Mr. Justice McKenna have said: “It is to be remembered that to bind the Government there must be implication of a contract to pay, but the circumstances may rebut that implication.” John Horstmann Co. case, 257 U., S. 138. And in the Tempel case, 248 U. S. 121, 129, the court, speaking through Mr. Justice Brandéis, say: “If the plaintiff can recover, it must be upon an implied contract. For, under the Tucker Act, the consent of the United States to be sued is (so far as here material) limited to claims founded upon any contract, express or implied; and a remedy for claims sounding in tort is expressly denied.” In Ball Engineering. Co. v. White & Co., 250 U. S. 46, 57, it was held that the facts rebutted the implication of a contract that the Government would pay, which, it is said in that case, must be the basis of its liability. What, then are the facts ? These have been stipulated by the parties, and from this
The contractor undertook to furnish the labor, materials, equipment, etc., necessary for the completion of certain work involving sewers, excavation, grading, and subsurface work, according to plans and specifications, and lie was to be paid for the cost of the work, as provided in Article II of the contract. Among other things, he was to be reimbursed for “ rentals actual]3? paid ” by him for “ steam shovels ” at rates not to exceed those mentioned in the schedule of rates, as well as for similar equipment the contractor “ may own and furnish,” at the named scheduled rental rates. Provision is made for the filing by the contractor with the contracting officer of a schedule setting forth the fair valuation of each part of the construction plant upon its arrival at the site, and this valuation was to be deemed final unless the contracting officer seasonably objected to the same. If the total rental paid to the contractor for any article should equal tire valuation thereof, no further rental was payable and title would vest in the United States, and at the completion of the work the contracting officer could, at his option, purchase for the United States any part of the plant then owned by the contractor by paying the difference between its valuation and the rentals that had been paid thereon. In May, 1918, following this contract, the contractor, Bates & Rogers Construction Company, entered into a written agreement — called a lease — with Klebe & Company, the plaintiffs, for the use of a steam shovel at $25.00 per day. This lease contemplated the use of the shovel on the Government’s work. .It stated that the plaintiffs had acquainted themselves with the terms of the contract between the contractor and the United States, and contained a provision to the effect that all of the rights which the Government had under its contract as against property of the contractor should “ apply to and be enforceable against ” the property leased by plaintiffs, “to the end that the United States Government may have and exercise as to and against the said equipment all
The stipulation says: “ The said steam shovel of the claimants was appropriated by the Government as its property under the purchase privilege clause of the contract between the claimants and the Bates & -Rogers Construction Company, and the facts pertaining to said appropriation arc as follows.” Then follows certain correspondence, from which it appears that on October 2, when the work was nearing completion, the contractor notified the contracting officer of the fact, and, stating that at that time about $3,825 in rentals had been paid upon the shovel, inquired whether it was “ the intention of the Government to exercise its purchase privilege.” This notice was forwarded to Washington with his recommendation, and later, on October 17, the contracting officer replied to the inquiry of October 2, that “ acting upon instructions from Washington, we hereby exercise the Government’s purchase privilege and take over said Erie steam shovel B-74 as the property of the United States.” The contractor notified the plaintiffs of this action, and on November 5 they replied to him that their contract did not provide that the Government could take the shovel at an agreed valuation, less rentals paid, and they would look to the contractor “ for the payment of the rental and return of the shovel, as provided for in the contract.” This letter of November 5 was brought to the contracting officer’s attention, and he wrote to plaintiffs, stating: “This is to advise you that the Government has taken over your shovel No. 74, as distinctly provided in the contract.” It should be observed that the facts clearly show that this officer’s “instructions from Washington” were to exercise the Government’s right to purchase the shovel, and that he neither had, nor attempted to exercise, any other right of appropriation by the Government. The record does
It is unquestionably settled that where the Government takes property for public use, conceding the ownership to be in an individual, it impliedly promises to make just compensation therefor. Great Falls Mfg. Co. case, 112 U. S. 645; Bigby case, 188 U. S. 400, 407; Ball Engineering Co. v. White & Co., 250 U. S. 46, 56; North American Co. case, 253 U. S. 330, 333.
The basis for the enforcement of this liability in the Court of Claims is that the taking, under the circumstances stated, raises an implied contract to pay for the property. Great Falls Mfg. Co. case, 112 U. S. 645, 658; Tempel case, supra; Peabody case, 231 U. S. 530, 539. See also Russell case, 182 U. S. 516, 530; Harley case, 198 U. S. 229, 234; Court of Marion County, 53 C. Cls. 120, 149. As was held in United States v. North American Co., 253 U. S. 330, 335 : “ The right to bring this suit against the United States in the Court of Claims is not founded upon the fifth amendment (Schillinger case, 155 U. S. 163, 168; Basso case, 239 U. S. 602), but upon the existence of an implied contract entered into by the United States.”
It follows that where the circumstances in Avhich the appropriation occurs rebut the implication of a contract there can be no recovery. Ball Engineering Co. v. White & Co., 250 U. S. 46, 57, distinguishing Buffalo Pitts Co. case, 234 U. S. 228; Tempel case, supra; Natron Soda Co. case, 54 C. Cls. 169, affirmed 257 U. S. 138.
Stating some of these rules, it Avas further said in United States v. North American Co., 253 U. S. 330, 333, that in order that the Government shall be liable, it must appear
We are required to observe the settled distinction between actions ex contractu and those ex delicto, because in the latter the Government has not subjected itself -to suit. Langford case, 101 U. S. 341, 345; Jones case, 131 U. S. 1; Hill case, 149 U. S. 593, 598; Bigby case, 188 U. S. 400, 405.
The property was taken possession of because the Government officer asserted that an express contract gave it the right to purchase by paying the difference between what it had paid as rental, $4,225. and the stated valuation, $5,000. To claim that by the very act of exercising this asserted right- to purchase for $775 the Government made itself liable, upon an implied contract, to pay $5,000 involves a contradiction of terms. It ignores any distinction between express and implied agreements and confuses that class of contracts which grow out of the dealings of parties with the distinct class of implied contracts arising from the exercise of the sovereign right of eminent domain because of the fifth amendment. And this situation is not relieved by characterizing the contract right as an option, requiring actual payment, before the property could be taken in virtue of the contract. The appropriation was itself an exercise of this right of purchase, and the Government’s agents so stated. The contract contemplated that the Government might elect to appropriate the property before making the payment. It provided that the plaintiffs were to be entitled, as owners, to receive any purchase price payments, “ which upon appropriation of said equipment * * * may be coming from said Government.” And it is not to be conceded that under a cost-plus contract, such as was made between the parties, the Government can not avail itself of the right of purchase stipulated for except upon paying in advance for the property involved. It, of course, becomes liable under the terms of purchase.
Under the facts it can not be asserted that the Government’s claim was a mere subterfuge (and as to its interest and claim see Propeller Company case, 14 Wall. 670, 675),
The plaintiffs rely upon the Buffalo Pitts Co. case, 234 U. S. 228, but, plainly, the facts in that case are different from the facts in the instant case. The rule stated in Ball Engineering Co. v. White & Co., 250 U. S. 46, is applicable here. In the last-named case, Mr. Justice Day, who wrote the opinions in both cases, distinguishes the Buffalo Pitts Go. ease, and from his analysis of the latter (250 U. S. 56) it appears that the Government recognized the claim of the Buffalo Pitts Company as mortgagor to the property in question, and represented that if the property were left in its possession and use, its attorney would recommend payment therefor, and, further, that the company relied on these representations and consented to the Government retaining possession of its property in expectation of receiving compensation therefor. In Ball Engineering Co. v. White & Co., it appeared that the Government had a contract with Hubbard and Company for the construction of a lock and dam, which provided for annulment under certain
In the instant case the facts show that the Government officer took possession of the shovel under what was asserted to be a claim of right to take it, founded upon an express contract, and the circumstances clearly rebut the implication of a promise to pay its fixed valuation.
As already stated, taking the property under an express contract, which created a liability for $-775, is itself sufficient to rebut an implication that it was taken under an implied contract involving a liability for $5,000. See Bogert case, 2 C. Cls. 159, 165.
'Whilst, strictly speaking, the plaintiffs’ petition is framed on a theory that would preclude a recovery of any sum, it makes the contracts part of it, and may, therefore, be held to authorize a judgment for $775, especially in Anew of the stipulation to this effect. This course obviates the necessity for a new petition; but it may be added, however, that the court does not recognize a right' in the parties to stipulate the questions that shall be decided upon the facts when found. They can not by stipulation confer jurisdiction of an action sounding in tort.
Judgment will be rendered in favor of the plaintiff for the sum of $775.