Pulaski Cab Company v. United States , 157 F. Supp. 955 ( 1958 )

WHITAKER, Judge

(concurring).

It is abhorrent to me that anyone should be able to breach a contract entered into with another and remain immune from liability for his wrongdoing. It is even more abhorrent, to me, for the sovereign to do a wrong and to refuse redress for it.

. Congress felt the same way when it passed the original Court of Claims Act in 1855, and when, in subsequent years, it has enlarged it and made it more effective. Those Acts made the United States liable on its contracts, express or implied, as in all good conscience it should be. It has made this court the “keeper of the nation’s conscience,” as an eminent lawyer once said many years ago, which was repeated only recently by an equally eminent lawyer.

There can be no doubt that a post exchange is an instrumentality of the Army of the United States. They are recognized by Army Regulations, and regulated by them. They are recognized by Congress, which from time to time has appropriated money in furtherance of their activities. They are administered by the Army. They are run for the benefit of the Army.

When one of them is disbanded, its surplus funds are paid into the Treasury of the United States, to be used for the benefit of other post exchanges.

These things being true, I am unable ¡to see why a contract executed by an authorized official of a post exchange is not a contract of the United States. If it is, the Congress has made the United States liable for a breach thereof.

If the United States is not liable, the other contracting party, who has been wronged, is without redress. A post exchange is not a legal entity, subject to suit. It is not incorporated. It cannot be said to be an association of individuals subject to suit. Who are the individuals that make up the association? Are they the enlisted men and officers stationed at the post? And, if the assets of the exchange are not sufficient to pay a judgment rendered against it, are these officers and enlisted men individually responsible? Are they responsible even though they had no part in setting up the exchange and had no control over its management?

If the United States is not liable and the exchange is not suable, then the party wronged has no redress. This offends my sense of justice. This is intolerable in an enlightened democratic society.

I went into this question in more detail in my dissenting opinion in Borden v. United States, 126 Ct.Cl. 902, 909, 116 F.Supp. 783. I respectfully refer any one interested to that opinion.

However, there is present in this case one element not present in the Borden case. It appeared in both cases that the Army Regulations said that contracts with the exchange were not contracts with the United States; but in the Borden case it did not appear that this was: called to the attention of the other contracting party; whereas in the case at bar the contract itself said: “This agreement is not a United States Government contract but is solely the obligation of the party of the first part,”' which was the exchange.

I suppose if an agent makes a contract for the benefit of his principal and expressly stipulates that only he, the agent, shall be liable thereon, and not the principal, and the other party agrees, to this stipulation, it is binding, and the principal is absolved from liability. Since that has been done in this case, I agree the United States is not liable. But, except for this agreement, I think the United States would be liable.