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
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. (2d) 283; United States ez ex rel. Innes v. Hiatt et al., 141 Fed. (2d) 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. (2d) 445; Levine v. Hudspeth, 127 Fed. (2d) 982. Id.
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. Cls. 233.) Klare, Receiver, 310.
II. Even if plaintiff, receiver, were a stockholder in the bank he would not be entitled to recover under the facts 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 Contracts XXXIX, XLVI, XLVII.
DEPOSIT IN TREASURY.
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.
"DOING BUSINESS."
See Taxes IX, X, XI, XIII, XIV.
See Contracts XIX.
EASEMENT.
See Contracts XLVIII, XLIX, L, LI, LII.
EMPLOYEES, CLASSIFICATION OF.
See Overtime Pay IX.
EMPLOYEE, DISCHARGE OF.
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, 313.
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. Norcutt v. United States, 103 C. Cls.758. Id.
EXTRA WORK.
See Contracts XVIII.
FAIR MARKET VALUE.
See Just Compensation I, II, III, IV.
FARM LOAN ACT OF 1916.
See Joint Stock Land Banks I, II, III.
FIFTH AMENDMENT, THE.
FIRST WAR POWERS ACT.
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. C. 279) and the Government's plea of fraud is dismissed. Hedin et al., 558.
GAIN OR LOSS.
See Taxes VI, VII, VIII.
GOVERNMENT OBLIGATIONS.
See Joint Stock Land Banks I, II, III.
HOLDING COMPANY.
See Damages I, II.
ILLEGAL AGREEMENT.
See Contracts XXII, XXIII.
INDIAN CLAIMS.
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
INDIAN CLAIMS-Continued
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 the 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.
INSOLVENT CONTRACTOR.
See Contracts I, II.
INTEREST, RATE OF.
See Just Compensation VIII, X.
IRRIGATION.
See Taking I, II, III, IV.
JOINT STOCK LAND BANKS.
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. Bankers Farm Mortgage Company, 540.
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