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107 C. Cls.


successors would not claim rights inconsistent with
such provisions and hence when the United States, as
grantee's transferee, solely on the basis of the deed,
asserted title to and sold for money the interest in gas
which belonged to plaintiff, as grantor's successor; it
is held that the United States breached the contract
contained in the deed and was liable to plaintiff for

such breach. Id.
LII. Where the United States as grantee in deed which con-

veyed only an easement to use the land for the purpose
of widening a river breached the contract by entering
into compensatory royalty agreement with oil company
and received payments provided in agreement; it is
held that the amount of money received by the Govern-
ment was fair measure of damages owing to plaintiff,

as grantor's successor, for breach of contract. Id.
LIII. Plaintiff in 1942 entered into a contract with the Federal

Works Agency for the construction of a sewer. The
contract was completed in accordance with the speci-
fications, but was found to be unsatisfactory, and plain-
tiff's right to proceed was terminated by the defendant
and final payment to plaintiff was withheld. Faults
in the sewer were corrected by another contractor under
a cost-plus contract, and the new contractor was given
greater freedom in his operations and was permitted
to use some methods which plaintiff had sought to use
but which defendant's representative would not then
authorize. The court finds that inapt specifications
and overloading of the pipe rather than careless or
improper work by plaintiff was the cause of any fail-
ure in the line, and plaintiff is entitled to recover the
amount covered by its estimate which defendant had
agreed to pay if plaintiffs would sign a full and com-
plete release, which plaintiff declined to do. Square

Construction Company, 665.
LIV. Plaintiff is not entitled to recover the additional amount

claimed for extra work, replacements and changes,
which is offset against the cost of the necessary repair
'and replacement work which was done under the
second contract, and defendant's counterclaim for that

amount is dismissed. Id.

I. Plaintiff, then a lieutenant in the Army of the United

States, after being arrested a few days before, was
informed at 12:40 p. m. on September 3, 1943, that he
would be tried by court martial, 35 to 40 miles from

107 C. Cls.


the place where the charges had been served, at 2 p. m.
the same day, at which time the court martial was held
and plaintiff's motion for a continuance of seven days
on the ground that his counsel had not had sufficient
time to prepare his defense was denied; and the plain-
tiff was put to trial and convicted at 5:30 p. m. that after-
noon and sentenced to dismissal from the service. The
sentence was approved by the convening authority and
by the President, and plaintiff was dismissed by the
Secretary of War. It is held that the constitutional
rights of the plaintiff were violated and that the judg-
ment of the court martial was void, and the dismissal

based upon that judgment was illegal. Shapiro, 650.
II, The Fifth Amendment to the Constitution, which provides

that no person shall be deprived of life, liberty or prop-
erty without due process of law, and the Sixth Amend.
ment, which guarantees that the accused shall enjoy the
right to have the assistance of counsel, apply to military
tribunals of the United States as well as to civil ones.
Schita v. King, 133 Fed. (20) 283; United States ex

ex rel. Innes v. Hiatt et al., 141 Fed. (28) 664. Id.
III. The right afforded by the Sixth Amendment has been

denied when counsel has been refused an opportunity to
prepare his defense. Powell v. Alabama, 287 U. S. 45.

IV. The court martial had originally undoubted jurisdiction

of the case against an Army officer on charges that he
had violated the Articles of War and any verdict ren-
dered by the court martial, even if erroneous, would
ordinarily not be void, but the Supreme Court has held
(Johnson v. Zerbst, 304 U. S. 458), that while juris-
diction of a court may be complete in the beginning, it
may be lost in the course of the proceedings due to
failure to complete the court-as the Sixth Amendment
requires-by providing counsel for an accused who is
unable to obtain counsel, who has not intelligently
waived this constitutional guaranty and whose life or
* liberty is at stake. If this requirement of the Sixth
Amendment is not complied with, the court no longer
has jurisdiction to proceed. The judgment of convic-
tion by a court without jurisdiction is void. See also
Smith v. O'Grady, 312 U. S. 329; McCleary v. Huds-
peth, 124 Fed. (20) 445; Levine v. Hudspeth, 127 Fed.
(20) 982. Id.

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107. O. Cls.


V. The Court of Claims has no jurisdiction to review the

valid judgment of a court martial legally constituted
and conducted but where the verdict of the court mar-
tial was absolutely void, for denial of the accused's
constitutional rights, as in the instant case, the Court
of Claims has jurisdiction to hear and render Judgment
on plaintiff's claims for the pay of which he was ille-
gally deprived, and the defendant's demurrer is over-

ruled. Id.

I. Where it is shown that by an order of the United States

District Court the holding company of which plaintiff
is receiver was divested of all interest in the stock of
the First National Bank-Detroit and the beneficial
interest in the bank stock was transferred to the direct
ownership of the stockholders of the holding company;
. it is held that plaintiff, as receiver, has no power to sue
for the alleged wrongs complained of, and defendant's
demurrer is sustained and plaintiff's petition dismissed.
(See Lucking and Davis v. United States, 102 C. Cis.

233.) Klare, Receiver, 310.
II. Even if plaintiff, receiver, were a stockholder in the

bank he would not be entitled to recover under the
tacts presented in the petition since under the National
Bank Act (12 U. S. C. 197), after the creditors of an
insolvent national bank have been paid, any assets
available shall next be used to repay any statutory
assessments that have been paid; and in the instant
case the assessment made and collected was paid by
the shareholders of the holding company, not by the

shareholders of the bank. Id.

See also Contracts LII.

See Contracts XXXIX, XLVI, XLVII.

Money has not been funded in the Treasury nor deposited in the

Treasury until a "covering" warrant has been issued by the
Secretary of the Treasury as required by the statute. (1 Stat.
65, 66). See Knote v. United States, 95 U, S. 149. Menominee

Tribe, 23.

See Taxes LX, X, XI, XIII, XIV.

See Contracts XIX.

See Contracts XLVIII, XLIX, L, LI, LII.

107 O. Cls.


See Overtime Pay IX.

I. Where plaintiff, in 1942, was an employee of a com-

pany which was performing a contract with the Gov-
ernment; and where it is alleged that plaintiff was
discharged “at the request of the U. S. Army Intelli-
gence"; it is held that the petition does not state a
sufficient cause of action against the defendant, and
the demurrer is sustained and the petition dismissed.
See United States v. Driscoll, 96 U. S. 421. Rumrich,

II. Since the plaintiff was not in the employ of the United

States, the acts asserted by plaintiff as Illegal and
wrongful are allegations in the nature of a tort rather
than based on a contract; and at the time the alleged
facts occurred (1942) the Court of Claims had no
jurisdiction to pass on claims of this character. See

Norcutt v. United States, 103 C. Ols.758. Id.

See Contracts XVIII.

See Just Compensation I, II, III, IV.

See Joint Stock Land Banks I, II, III.

See Taking II.

See Contracts XXVIII, XXIX, XXX,

While discrepancies and inconsistencies are apparent in the

evidence presented by the plaintiff, the Court holds that no
such lack of good faith in the presentation of evidence has been
shown as to amount to fraud within the meaning of section
172 of the Judicial Code (28 U, S. O. 279) and the Government's

plea of fraud is dismissed. Hedin et al., 658.

See Taxes VI, VII, VIII.

See Joint Stock Land Banks I, II, III.

See Damages I, II.

See Contracts XXII, XXIII.

I. Under the Act of June 12, 1890 (26 Stat. 146) and the

Act of March 28, 1908 (35 Stat. 51), the Government
was obligated to pay interest from the time the money

107 O. Cls.


was "covered" into the Treasury from the proceeds of
the timber cut from plaintiff's lands in accordance with

the provisions of the two Acts. Menominee Tribe, 23.
II. Money has not been funded in the Treasury nor deposited

in the Treasury until a "covering" warrant has been
issued by the Secretary of the Treasury as required by
the statute. (1 Stat. 65, 66). See Knote v. United

States, 95 U. S. 149. Id.
III. Under the provisions of the Act of 1890 and the Act of

1908, there was an implied agreement on the part of
the defendant to deposit promptly in the Treasury the
funds belonging to plaintiff so that interest would begin
to accrue without unnecessary delay; the defendant
having agreed to carry out the terms of these Acts with
that fidelity which a fiduciary owes his cestui. (Me
nominee Tribes of Indians v. United States, 101 C. Cls.
10, and Menominee Tribe of Indians v. United States,

102 C. Cls. 555.) Id.
IV. It is held that 30 days from the time the Indian agent

first received the money was ample time for the defend-
ant to go through th entire maze of administrative
red tape preliminary to "covering" the money into the
Treasury and that wherever it took a longer time plain-
tiff is entitled to recover interest for the interim period

of delay. Id.
V. Where the Government deposited in the Menominee Log

Fund, at 5 percent interest, four-fifths of the gross pro-
ceeds of the sale of the logs cut in accordance with the
provisions of the Act of June 12, 1890, whereas this Act
provided for the deposit in this fund of only four-fifths
of the net proceeds; it is held that the defendant is

entitled to recover on its counterclaim. Id.

See Contracts I, II.

See Just Compensation VIII, X.

See Taking I, II, III, IV.

I. The declaration by Congress in Section 26 of the Federal

Farm Loan Act of 1916 (39 Stat. 360) that first mort-
gages and farm loan bonds issued under the Act "shall
be deemed and held to be instrumentalities of the
Government of the United States" did not necessarily
make the bonds obligations of the United States.
Bankors Farm Mortgage Company, 540.

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