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theretofore organized and established, and then and there existing and in operation and doing business, under and by virtue of the laws of the said United States concerning national banks; and that the said Fritz Augustus Heinze then and there was lawfully authorized as such officer of the said banking association to certify checks drawn upon the same.
And the grand jurors aforesaid, upon their oath aforesaid, do further present, that the said Fritz Augustus Heinze, so being such officer of the said banking association and authorized to certify checks drawn upon the same as aforesaid, then and there, to wit, on the said fourteenth day of October, in the year nineteen hundred and seven, at and within the said Borough of Manhattan, City of New York, and Southern District of New York, unlawfully did willfully and knowingly, as such officer, certify a certain o her check which had on that day been drawn upon the said banking association by one of its depositors and dealers, to wit, the said firm of Otto Heinze & Co., then consisting of certain persons, to wit, Otto C. Heinze, Arthur P. Heinze and Max H. Schultze, for the payment, to the order of H. T. Carey & Co., a co-partnership then and there existing, composed of individuals whose names are to the said grand jurors unknown, of the sum of twenty-one thousand four hundred and sixty-nine dollars and six cents, that is to say, a check of the tenor following:
OTTO HEINZE & Co.
NEW YORK, October 14-1907.
OF THE CITY OF NEW YORK. Pay to the order of H. T. Carey & Co. Twenty-one thousand four hundred & sixty nine & 06/100 dollars $21469 06/100
OTTO HEINZE & Co.
before the amount of the check in this count of this indictment mentioned had been regularly entered to the credit of the said dealer upon the books of the said banking association, and when, as he the said Fritz Augustus Heinze, when so certifying the same as aforesaid, there well knew, the said dealer, at the time when the said check was so certified, did not have on deposit with the said banking association an amount of money equal to the amount specified in the said check; and, further, that the said check was thereupon immediately delivered to the said H. T. Carey & Co., and the amount thereof in moneys, funds and credits of the said association was drawn from the said association in due course of business upon the same check; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided.
FORM XXXIII.--APPEARANCE BOND ON WRIT OF ERROR IN
[Contained in the Rules of the Circuit Court of Appeals for the Fifth Circuit 150 Fed. lxxxv.]
Know all men by these presents:
as sureties, are held and firmly bound unto the United States of America in the full and just sum of
dollars, to be paid to the said United States of America, to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents.
Sealed with our seals and dated this day of in the year of our Lord one thousand nine hundred and
Whereas, lately at the term, A. D. 19-, of the district court of the United States for the district of in a suit pending in said court between the United States of America, plaintiff, and defendant, a judgment and sentence was rendered against the said and the said
has obtained a writ of error from the United States circuit court of appeals for the fifth circuit, to reverse the judg. ment and sentence in the aforesaid suit, and a citation directed to the said United States of America, citing and admonishing the United States of America to be and appear in the United States circuit court of appeals for the fifth circuit, at the city of New Orleans, Louisiana, thirty days from and after the date of said citation, which citation has been duly served. Now, the condition of the above obligation is such that if the said
shall appear in the United States circuit court of appeals for the fifth circuit on the first day of the next term thereof, to be held at the city of on the first Monday in --, A. D. 19—, and from day to day thereafter during said term, and from term to term, and from time to time, until finally discharged therefrom, and shall abide and obey all orders made by the said United States circuit court of appeals for the fifth circuit in said cause, and shall surrender himself in execution of the judgment and sentence appealed from as said court may direct, if the judgment and sentence of the said court against him shall be af. firmed by the said United States circuit court of appeals for the fifth circuit, then the above obligation to be void; else to remain in full forre, virtue and effect.
(SEAL.] Approved :
Judge of the 149
COURT OF CLAIMS FORMS
COURT OF CLAIMS FORM 1.-PETITION.
To the Honorable, the Court of Claims :
The claimant, Meyer Scale & Hardware Company, a corporation organized under the laws of the State of New Jersey, having its principal office and place of business at Newark, in said State, respectfully represents:
I. CONTRACT. On the 31st day of January, 1919, the claimant, by its vice-president duly authorized in that behalf, entered into a contract with the United States, acting through the Chief of the Bureau of Supplies and Accounts, the Paymaster-General of the Navy, whereby it undertook and · agreed to make and deliver, and the United States agreed to accept and pay for, eleven hundred eighty-five (1,185) suspension crane scales at a price of one hundred and fifty-five dollars ($155.00) per scale, delivered f. o. b. at specified navy yards and stations. A copy of said contract is annexed hereto as Exhibit “A.”
II. READINESS TO PERFORM. Immediately following the making of said contract the claimant, in order to insure performance thereof within the limited time agreed upon for such performance, placed necessary orders with various subcontractors and material men for the production and fabrication of the various parts for the full number of scales covered by the contract and also proceeded on its own account to purchase and install necessary jigs, fixtures and machinery and to make other necessary expendi. tures for labor and materials, all of which were reasonable, proper, and necessary in the performance of the contract in its entirety.
III. WORK SUSPINDED. By letter of February 25, 1919, the Navy Department notified the contractor that owing to changes in equipment of all ships of the Navy, most of the scales called for by the contract of January 31, 1919, would not be desired, and asked, pending further investigation by it as to its requirements for scales, that the contractor not proceed further with the manufacture of the scales. The contractor suspended operations in accordance with such request pending further in. structions but had already made the necessary commitment and had incurred other and large expenses in the necessary preparation to perform the con. tract. The suspension of the work thus directed greatly damaged the contractor and added greatly to what would otherwise have been the cost of the scales that were later made.
IV. WORK PARTIALLY CANCELLED. Thereafter, on or about March 21, 1919, the Navy Department decided, and on that day so advised the contractor, that of the scales contracted for only four hundred ninety-seven (497) would be required and then and thereafter failed and refused to accept delivery of or pay for scales in excess of that number, though the contractor was at all times ready and willing to deliver the full contract quantity and at no time assented or agreed to the suspension of work or partial cancellation of the contract, but, to the contrary, made frequent and repeated demands to be permitted to complete the contract by the delivery of the full quantity of scales covered thereby.
V. MATTRIALS ON HAND. Prior to the receipt of directions that four hundred ninety-seven (497) scales only would be required claimant had, in addition to the materials and parts necessary for that number of scales, acquired or contracted to acquire in good faith the machinery, materials and parts necessary and required for the production of eleven hundred eighty-five (1,185) scales which said machinery, materials and parts, being of a special design and not suitable for use in claimant's regular business, and could not used except as required and used in making the four hundred and ninety-seven (497) scales that were made and delivered to the government and are of no use or value to the claimant except as scrap. The claimant had reasonably and necessarily laid out and expended in pursuance of binding commitments theretofore made on the accounts stated the sum of twelve thousand eight hundred eighty-seven dollars and twenty: eight cents ($12,887.28), including labor and handling, storage and interest charges, and the then and present worth to claimant of all materials and things so acquired and not used because of the breach of agreement by the government was about nine hundred ninety dollars and thirty-four cents ($990 34). Claimant therefore asks to be paid the actual loss on the account stated, amounting to eleven thousand eight hundred eight-six dollars and ninety-four cents ($11,886.94).
VI. PROFITS Lost. Claimant could and would, but for the failure of the government to accept delivery thereof, have completed and delivered the six hundred eighty-eight (688) scales covered by the contract, but not taken by the government, at a total cost of not to exceed twenty-eight thousand two hundred thirty-one dollars and fifty-four cents ($28,231.54), including the expenditures made before partial cancellation and would thus have earned and been paid a profit of seventy-eight thousand four hundred eight dollars and forty-six cents ($78,408.46) for the making and delivery of six hundred eighty-eight (688) scales that were not taken by the government. The failure of the government to accept and take the six hundred eighty. eight (688) scales, which by the contract it was obliged to take, deprived the claimant of earning profits in the full sum stated, and resulted in damage to the claimant in the full sum of seventy-eight: thousand four hundred eight dollars and forty-six cents ($78,408.46), for which sum claim is now made.
VII. DAMAG"S FOR DELAYS. The action taken by the government in suspending the work under the contract for a long period of time as set forth in Paragraph III resulted in compelling the claimant to retain skilled mechanics and other employees when no profitable work was available and also on adding greatly to the overhead and other expenses as well as increasing the cost of making the scales that were later authorized to be made. The damage caused the claimant by the unauthorized act of the government in thus suspending the work amounted to four thousand nine hundred sixty-six dollars and sixty-five cents ($4,966.65), for which sum claim is made.
VIII. SUMMARY. No other action has been had on said claim in Congress or by any of the departments; no person other than the claimant is the owner thereof or interested therein; no assignment or transfer of this claim, or of any part thereof or interest therein, has been made; the claimant is justly entitled to the amount herein claimed from the United States, after allowing all just credits and offsets; the claimant has at all times borne true allegiance to the Government of the United States and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government. The claimant is a citizen of the United States. And the claimant claims judgment as follows:
Loss on materials on hand, Par. V...
. $11,886.94 78,408.46 4,966.65
$95,262.05 KING & KING, Attorneys for Claimant,
COURT OF CLAIMS FORM II.-FINDINGS AND JUDGMENT.
MEYER SCALE & HARDWARE COMPANY
THE UNITED STATES.
This case having been heard by the Court of Claims, the court, upon the evidence, makes the following:
FINDINGS OF FACT.
I. On January 31, 1919, the plaintiff, a corporation with its principal office and place of business in Newark, in the State of New Jersey, entered into a contract with the United States represented by the Paymaster General of the Navy, whereby it undertook to make and deliver 1,185 suspension crane scales to various navy yards and stations at a price of $155 per scale, delivery to begin within 60 days and to be completed within 100 days from the date of said contract. Said scales were intended for use on ships of the Navy.