My training was from mid 1977 to late 1980. These are examples of things learned during my 3 years of training for my competitive appointment to the office in November 1980. This CJS example was out of date at the time and just found by outside reading. The specific emphasis of my training was always on contracts and manufacturing. I know of nobody else completing the 3 years of training to learn how the manufacturing engineer worked and what the AFPRO and contractor did to complete the work performed under the contracts.

91 C.J.S. United States (1955)

§ 91. Construction and Operation

1. In General

In the absence of contrary statute, the general rules governing the construction and operation of contracts apply to contracts entered into by the United States; the rights, duties, and liabilities of the parties are governed by the terms of the contract, and their intention is controlling.

In the absence of some applicable federal statute to the contrary, when the United States contracts with its citizens, it is controlled by the same laws that govern the citizen, or individual, and has no greater rights than a private individual would have, and all obligations which would be implied against citizens under the same circumstances will be implied against it. When the United States enters into contract relations, its rights and duties are governed generally by the law applicable to contracts between private persons or individuals; and contracts between the United States and others, or between the government and one of its citizens, are construed, or governed by the same principles, as contracts between private parties or individuals, in the absence of pertinent federal decisions or statutory provisions to the contrary. However, it has been held that private persons or corporations, when contracting with the government, are held to stricter requirements than is usually the case with respect to private contracts. Nothing in the Constitution forbids the government to prescribe in advance, by statute, the effect of its contracts thereafter to be executed.

Where congress has not adopted a different standard, the rules governing the construction and operation of contracts generally, as discussed in Contracts §§ 294-372, apply to contracts entered into by the United States; and the construction of particular contracts is set out in the notes, where will also be found adjudications with respect to the construction of particular provisions and the construction of particular words and phrases as used in such contracts. Thus, the rights, duties, and obligations of the parties are governed by the terms of the contract, and, this principle has been applied to various rights, liabilities, and obligations. In the construction of such contracts, the expressed intention of the parties is controlling; or, at least, important and is to be derived from the contract as a whole, in the light of its purpose and the surrounding circumstances. Construction will not be indulged unless there is a patent ambiguity.

Effect should be given to all parts or provisions of the contract, and no provision should be construed as being in conflict with another unless no other reasonable interpretation is possible; the contract will be construed most strongly against the party preparing it; typewritten matter in a printed form prevails over the printed provisions, and specific provisions over general provisions; and contemporaneous or practical construction by the parties will be given effect.

The spirit, as well as the letter, of the contract is to be observed; the words should be given a contract reasonable meaning, rather than an unreasonable one; the court will endeavor to give a construction most equitable to the parties, and one which will not give one of them an unfair or unreasonable advantage over the other, or will adopt a construction in accordance with justice and fair dealing, instead of one which will entail loss to a party to the contract, and will construe the contract to obviate the necessity that performance under it will result in a violation of law; and the language of the contract will be given that construction which one party knew the other party placed on it, or had a right to place on it.

Applicable statutory provisions, or a general contract pursuant to which a special agreement is made, or a separate writing made part of the contract by reference, are to be regarded as a part of the contract; and ordinarily strangers to the contract can claim no benefit, and are subject to no liability thereunder. The court may not, in the guise of construction, make a new and different contract for the parties.

A recognized trade practice may not be refused recognition by one contracting with the United States without advance notice that it intends to do so.

Amounts and quantities. The provisions of the contract as to the number of articles, or as to quantities, to be furnished thereunder are binding, but not estimates or statements of approximate quantities. A contract to furnish quantities “required” is a contract for the amount needed by the government.

Interpretation as not question of fact. The interpretation of contract documents is not a question of fact within the meaning of the article of a standard contract relating to decisions on questions of fact.

Liberal construction; strict compliance. A provision of a government construction contract providing for reference to the Secretary of Labor for the determination of any dispute concerning the prevailing wage rate to be paid under the contract has been required to be liberally construed to effectuate its purpose.

Liability on a construction contract entered into by the United States may be established only by strict compliance with its conditions.

A renewal of a contract is a recognition of the existence of the original contract.

What law governs. The construction of contracts through which the United States is exercising its constitutional functions, and their consequences on the rights and obligations of the parties, present questions of federal law not controlled by the law of any state so, a contract made with the government is, in contemplation of law, executed at the seat of government, and the lex loci contractus does not affect it. However, it has also been held that where a construction contract is made and performed in a particular state, the law of that state is to be applied in construing it.

2. Specifications; Drawings

The purpose of specifications and drawings is to supplement the formal contract, and they must be reasonably interpreted in the light thereof; but the standard form of contract is paramount to the specifications and governs in case of conflict.

The purpose of specifications and drawings is to supplement the formal contract by delineating the details of the work to be performed thereunder, and not to void an express provision written into the contract.

A provision of the specifications must be reasonably interpreted in the light of the known facts and reasonable knowledge possessed by the government as to conditions. Where the government draws specifications which are fairly susceptible of a certain construction and the contractor so construes them, justice and equity require that that construction be adopted; where the specifications are not explicit, the provisions of a contract must be interpreted in the light of the contractor’s experience.

A procedural provision of the specifications, intended to provide an orderly method for carrying out the provisions and purposes of an article of the standard formal contract, must, if possible, be read and interpreted in the light of, and consistently with, the provisions of the formal contract. The provisions of a standard form of contract, and the policies stated therein, are paramount to the specifications and will govern in case of inconsistency or conflict. So, a standard contract duly prepared and approved by the proper authority of the government is binding on the writer of specifications covering a specific project, and such contract provisions control unless they are modified or changed by a proper provision, inserted by proper authority, inserted in the article of the contract provided for that purpose. The fact that specifications which are intended to delineate the work to be done and the procedures to be followed are made a part of the contract by an article thereof does not warrant the conclusion that they override an express provision of the contract. Conflicts appearing in contract specifications with respect to an item obviously an essential element of the contract work are not to be determined in all instances on the question of punctuation.

Difference between drawings and specifications. Under a contract provision that in case of difference between drawings and specifications the specifications shall govern. In a particular case no such difference was found as to require the drawings to be discarded from the contract.

3. Bids

After advertisements, bids, and acceptances, the parties are controlled by the terms of the contract, which is to be construed in connection with the circular calling for bids, when referred to in the contract.

The common-law rule that prior understandings of contracting parties are merged in the final contract cannot be strictly applied to government contracts required by law to be made by advertisements, bids, and acceptances, the parties being controlled solely by the terms of the contract, which is to be construed in connection with the circular calling for bids when referred to in the contract. A bidder has a right to take into consideration the information and data disclosed in the specifications, and on the drawings, and to read and reasonably interpret such provisions in the light of other provisions of the contract.

4. Authority of Officer

A contractual provision empowering the contracting officer to settle disputes arising under the contract has been narrowly construed; his decision contrary to the mandate of the contract must be set aside.

A provision of a contract giving the contracting officer the right to settle disputes arising under the contract has been required to be narrowly construed; if he acts contrary to the mandate of the contract, his decision must be set aside. So, a provision making the contracting officer’s decision final in disputes as to questions of fact gives him no authority to determine the proper construction of the contract.

Where a contract provides for the decision of controverted questions by the contracting officer, the decision or judgment of another officer or authority may not be substituted by the government for the independent action of the contracting officer.

I should have taken the Contract Law class just to get the textbooks. I found this on the internet and is practically the same as the Contract Administration text for agency shown on my site as Commercial Agent.

3-3. The Concept of Authority. The role of the contracting officer, or agent, is important in forming contracts. Since the agent exercises certain powers, his actions are crucial to the legal relations between the principal and the third party.

3-4. What a person can do himself, he can appoint someone else to do for him, subject to certain exceptions. In many cases it is not only permissible for one to act for another, but absolutely necessary. This is true where the one purporting to act is a corporate or Governmental entity.

3-5. Principal-Agent Relationship. Our Government can act only through persons, called agents. An agent can be defined as one who represents another person, called a principal. The relationship created by the association of a principal and an agent is called agency. This relationship arises when the principal authorizes the agent to act for him, in negotiation with third persons, and the agent consents to so act.

1. Authority of the Agent. The link that binds third parties to the principal is the concept of authority. "Authority is the power of the agent to affect the legal relationships of the principal by acts done in accordance with the principal's manifestations of consent to him." (Restatement of Agency, Section 5.) Agencies are usually classified as (1) Real, Genuine, or Actual; or (2) Apparent. Real or Actual agency is further divided into Express, Implied, and by Operation of Law. Apparent authority is basically the legal situation of estoppel. It will be fruitful to discuss each of these agencies in moderate detail.

1. Express Authority. Express agency, or authority, is created by explicit language, either in writing or orally. Ordinarily, where authority is given in writing, the element of proof necessary where a dispute arises is easily supplied by the writing itself. In those cases where the writing is ambiguous, parole or oral evidence may be used to prove the existence and limits of the authority, subject to the rule that oral evidence may not be used to contradict plain and clear meaning of a writing. Agency created by oral words is as binding as one created by a writing, but is sometimes more difficult to prove.
2. Implied Authority. The second type of actual agency (authority) is that which is implied. There have been various interpretations of implied authority. Sometimes it is intended to mean incidental authority. This authority is that which is impliedly, although not expressly, given to an agent so that he may accomplish the task assigned to him by the principal. It frequently happens that the agent is assigned a task to accomplish but the minute details of accomplishment are not spelled out in the oral or written authority given to him. It can be safely assumed that the agent has implied authority to do what must be done in order to accomplish the purpose of the agency. The limits of this incidental authority are usually defined in general terms such as "usual, customary, and necessary." On other occasions, implied authority is that which is supplied by conduct rather than by expression. It is likened to an implied in fact contract situation wherein the act of a person creates authority in an agent to act for him. One case, Moore v. Switzer, 78 Colo. 63, defined implied authority as follows: "Implied authority of an agent is actual authority evidenced by conduct; that is, the conduct of the principal has been such to justify the jury in finding that the agent had actual authority in what he did. This may be proved by evidence of acquiescence with knowledge of the agent's acts, and such knowledge and acquiescence may be shown by evidence of the agent's course of dealing for so long a time that knowledge and acquiescence may be presumed."

3. By Operation of Law. Agency by operation of law occurs where the principal has not actually given authority, but where he allows another to act as though the authority has been given.

4. Apparent Authority. Apparent authority is based upon equitable grounds, and is effective only between the principal and the third party. It is supplied after the fact, and it can be truly said that the only purpose in finding apparent authority is to prevent unjust consequences. The principal creates apparent authority by leading a third party to believe that it exists. The principal's conduct must be such that the third party was acting reasonably in relying on the authority (and did it to his detriment). There are numerous situations wherein agency by apparent authority can be found. One of the most frequent is where the principal puts someone in charge of property or of a business. Ordinarily, a person in such a position is in fact an agent. Thus, where a store owner asks a friend to "mind the store, but don't sell anything or take any orders," and a customer buys an article, the necessary authority for the sale will be found. Other cases arise where there really is an agency relationship between the principal and his agent, but the agent's authority falls short of the authority usually vested in agents in similar positions. Where a third party justifiably relies on the usual authority of such persons in similar positions, apparent authority will supply the missing authority.

2. Ratification. Events happening after the reliance by the third party are not material to the question of whether an agency actually or apparently existed. However, events which happen after the time when the third party purports to enter the contract with what he thinks is an agent, may create the agency or authority. The principle involved is called ratification. As a general rule, a principal may ratify an unauthorized act of his agent which the principal could have authorized the agent to perform at the time that the agent did in fact perform the act. If the agent actually acted for his own benefit, then the principal cannot ratify.

3. Burden of Proof. Agency is not presumed, but must be proved by he who asserts that there is an agency.

4. Ramifications of Principal-Agency Relationship. Many ramifications may flow from the relationship of principal and agent.

1. Fiduciary Relationship. It is generally stated that there exists between the principal and agent a fiduciary relationship which requires the utmost good faith and loyalty on the part of the agent. The agent must act solely for the principal, and must not work against the principal's best interests in any personal capacity.

2. Liability of Agent. An agent is liable to his principal for any wrongful use of the principal's property which is in the agent's charge. Of course, the agent is not liable in his personal capacity for any of the contracts that he enters in behalf of his principal, unless he is acting without authority and the principal does not ratify his unauthorized acts.

3. Imputation of Knowledge. Probably the most outstanding characteristics of the relationship, as it affects third parties, is the imputation of knowledge acquired by the agent to his principal. Any knowledge acquired by the agent, within the scope of his duties, must be relayed to his principal and if the agent either does not relay the information, or does so belatedly, the principal may suffer injury that may have been caused by such inaction. The rationale is that the agent is the principal for purposes falling within the scope of his agency. There are exceptions to this rule, however. Where the agent acquires knowledge from a source which requires that he keep it confidential, for example, such knowledge will not be imputed to the principal. Similarly, where the agent and the third party collude to cheat or injure the principal, the knowledge of the agent will not be imputed to the principal. Finally, where the agent acquired knowledge in some capacity other than his agency, such knowledge will not be imputed to his principal.

3-6. In previous paragraphs, reference was made to the authority given to Government by the Federal Constitution, and to the fact that re-delegation was necessary. Reference was also made to the Defense Acquisition Regulation, which is in reality a re-delegating authority designed to implement the responsibilities of the branches of Government. The Defense Acquisition Regulation vests responsibility for procurement in the heads of departments and agencies of the executive branch. Within the Act itself, the heads of agencies are given the authority to delegate any power under the Act that the head of the agency has authority to exercise, subject to certain exceptions. The Defense Acquisition Regulation unifies the implementation of authority by subordinate officers and agents, and it specifies the duties, responsibilities, and express authority of officers contracting for the benefit of the Government. Thus, the Constitution, legislative acts, and executive department regulations, provide a framework within which the concept of authority is defined.

This is almost the same as the text from my basic AFIT Contract Administration course. The new Contracts Disputes Act of 1978 was a big part of my training.

3. The Disputes Process in Historical Perspective.

3-1. An important part of understanding the disputes process is a study of the major historical events leading up to the CDA of 1978. These significant procedural events follow:

1. U.S. v. Wunderlich (342 U.S. 98, 1951). In this case, the contractor sued in the Court of Claims, following a disagreement with the contracting officer’s decisions on various disputes during performance of a contract to build a dam. The Court of Claims granted relief on the basis that the departmental decision was “arbitrary,” “capricious,” and “grossly erroneous.” Fraud was not alleged nor proved. The Supreme Court held that the finality of the department head’s decision must be upheld unless it were founded on fraud, alleged and proved. Citing cases upholding the finality of departmental decision-making (U.S. v. Moorman, 338 U.S. 457) and the necessity of proving fraud (U.S. v. Colorado Anthracite Co., 225 U.S. 219, 226) or at least gross mistake implying bad faith (Ripley v. U.S., 223 U.S. 695, 704) in order to gain relief, the only ameliorating factor of what otherwise could be considered a harsh anti-contractor position was the Court’s statement… “if the standard of fraud that we adhere to is too limited, that is a matter for Congress.”

2. The Administrative Disputes Act of 1954 (Anti-Wunderlich Act), 41 U.S.C. Sec 321 and 322, May 11, 1954. By this Act, Congress acted to ameliorate the impact of the decision in the Wunderlich case. Simply stated, four new grounds for relief from administrative decisions on questions of fact were added to the court-mandated standard of fraud: “capricious, or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.”

3. U.S. v. Carlo Bianchi & Co., Inc., 373 U.S. 709 (1963). In another construction contract involving the building of a diversionary tunnel, the Contractor sought relief under the Changed Conditions (now Differing Site Conditions) article of the contract. Following the denial of its appeal before Board of Claims and Appeals of the Corps of Engineers(1948), the Contractor appealed to the Court of Claims (1954) under the new Anti- Wunderlich standards. The Courts’s Commissioner (now Trial Judge) allowed the introduction of new evidence (de novo) despite the Government’s position that the review should be made on the administrative record. Citing Volentine and Littleton v. U.S., 136 Ct. Cl. 638, the Court held that trial in the Court of Claims should not be limited to the administrative record, but should be de novo. The Government appealed to the U.S. Supreme Court. That Court reversed, with well-reasoned dissents, the majority upholding the principle that appeals shall be made on the administrative record. The contractor, however, was ultimately victorious wherein by Private Law 91-234 (January 2, 1971) its case was reviewed by ENGBCA which decided some 27 years (August 30, 1973) after the contract was initiated that the contractor was entitled to its claim. Knowledgeable contracting personnel still refer to protracted, long-continuing, and still unresolved matters by the epitaph “Shades of Bianchi’s ghost!”

4. U.S. v. Utah Construction and Mining Co., 384 U.S. 394 and U.S. v. Anthony Grace & Sons Inc., 384 U.S. 424 (1966). These cases, both heard on the same day by the Supreme Court, reaffirmed the importance of the administrative remedy and the exhaustion of such remedy before seeking judicial relief. It was reiterated that the record made before the Board was the record upon which an appeal would be made. There would be no trial de novo except in certain exceptional situations. Once again, the Supreme Court resoundingly reaffirmed its support for the administrative process.

5. S & E Contractors, Inc. v. U.S., 406 U.S. 1, (1972). Here again, a construction contractor with the AEC was refused payment for certain claims upon which the parties in privity were agreed. However, the Comptroller General and, later, the Department of Justice refused to recognize the accord and took a position contra both the AEC and S&E. The Government, in fact, was appealing its own decision! Was this a “dispute” within the purview of the Disputes Clause? The matter was resolved when the Supreme Court, in one fell swoop, took the Comptroller General out of the contract appeals process and denied the Department of Justice’s claim of the right to represent the Government in appealing a decision of an administrative agency, other than in cases involving fraud. So we see that the attempts to interpret and clarify the provisions of the Administrative Disputes Act of 1954 (Anti-Wunderlich Act) continued, leading to the ultimate resolution in the CDA of 1978.

6. The Contract Disputes Act of 1978 (P.L. 95-563; 92 Stat 2383). The Act culminated the long process of interpretation of administrative resolution of contract disputes. We will analyze its provisions below.

4. The Contract Disputes Act of 1978.

• 4-1. The Act, following certain reforms proposed by the Commission on Government Procurement (1972) provides for significant changes in Government contract remedies. It in fact “judicializes” the disputes process to a high degree. It provides for procedures that shall be followed in all contracts entered into since 1 March 1979.

• 4-2. The CDA in its entirety can be found under Chapter 16 of Appendix G in this text. However, a brief summary of its most pertinent provisions is in order:

  (1) It confers jurisdiction in Boards of Contract Appeals on “all claims arising under (or related to) the contract.” The Boards thereafter have had authority to hear and decide not only the usual, historical disputed claims, (e.g., constructive changes; equitable adjustments), but also claims involving reformation, rescission or breach of contract.

  (2) The 30-day appeal period following a Contracting Officer’s final decision is now extended to 90 days.

  (3) A certification requirement has been added. The Contractor must now certify that its claim is accurate and complete to the best of the Contractor’s knowledge and belief and that the claim is made in good faith.

  (4) The Office of Federal Procurement Policy (OFPP) gains additional stature by becoming involved in the organization of Boards of Contract Appeals and in issuing rules of procedure in administrative adjudication by such boards.

  (5) The Contractor now has the option of choosing an administrative or judicial remedy. It may now appeal to a BCA or directly to the Court of Claims.

  (6) The Government now can seek judicial review of board decisions (contra S & E, supra).

  (7) Interest on Contractor claims now accrues from the date the claim is received rather than from the date of the Contracting Officer’s decision.

  (8) Stiff anti-fraud provisions on contractor claims are now operative.

  (9) Except for TVA cases, District Courts no longer have jurisdiction over Contractor appeals.

  (10) BCA personnel are subject to a careful selection process and board status and prestige is further enhanced.

• 4-3. As a result of the CDA, Boards of Contract Appeals now appear to have the status and jurisdictional authority of “administrative courts.” This is not surprising in that the entire history of the administrative process as reviewed in the significant procedural events in the historical perspective of the disputes process, above, has favored the establishment of such adjudicatory bodies.

• 4-4. In summary, we now have statutory authority supporting the process of settlement of disputes on Government contracts. With the enhancement of the status and jurisdictional authority of Boards of Contract Appeals under the CDA, we can expect continued growth in significant decisions affecting Government contract relationships.

5. The “New” Disputes Clause.

• 5-1. The CDA of 1978 was the “enabling” act. It remained for the regulation (DAR) to implement the Act by incorporating its provisions, in part, in the “new” Disputes Article.

• 5-2. At least two “temporary” or “interim” disputes clauses were tried and discarded. Implementing the Act by regulatory provisions became no small task. The resulting 1980 DAR clause requires the same type of analysis which we afforded the “old” Disputes Clause earlier in this chapter. First, however, the clause in its entirety follows.

• 5-3. Disputes (1980 June)

1. ) This contract is subject to the Contract Disputes Act of 1978 (P.L. 95-563).

2. ) Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved in accordance with this clause.

3. )

1. As used herein, “claim” means a written demand or assertion by one of the parties seeking, as a matter of right, the payment of money, adjustment, or interpretation of contract terms, or other relief, arising under or relating to this contract. However, a written demand by the Contractor seeking the payment of money in excess of $50,000 is not a claim until certified in accordance with (d) below.

2. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim for the purposes of the Act. However, where such submission is subsequently disputed either as to liability or amount or not acted upon in a reasonable time, it may be converted to a claim pursuant to the Act by complying with the submission and certification requirements of this clause.

3. A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for decision. A claim by the Government against the Contractor shall be subject to a decision by the Contracting Officer.

4. ) For contractor claims of more than $50,000, the Contractor shall submit with the claim a certification that the claim is made in good faith, the supporting data are accurate and complete to the best of the contractor’s knowledge and belief and the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable. The certification shall be executed by a senior company official in charge at the Contractor’s plant or location involved, or by an officer or general partner of the Contractor having overall responsibility for the conduct of the Contractor’s affairs.

5. ) For contractor claims of $50,000 or less, the Contracting Officer must, if requested in writing by the contractor, render a decision within 60 days of the request. For contractor-certified claims in excess of $50,000, the Contracting Officer must decide the claim within 60 days or notify the Contractor of the date when the decision will made.

6. ) The Contracting Officer’s decisions shall be final unless the Contractor appeals or files a suit as provided in the Act.

7. ) Interest on the amount found due on a contractor claim shall be paid from the date the Contracting Officer receives the claim, or from the date payment otherwise would be due, if such date is later, until the date of payment.

8. ) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

I learned about legal entities in classes at AFIT.

67 Corpus Juris Secundum (1950)

§4 — Necessity of Legal Entity or Existence

In every action there must be a real plaintiff who is a person in law and is possessed of a legal entity or existence as a natural, artificial, or quasi-artificial person, and a suit brought in the name of that which is not a legal entity is a mere nullity.

In every action there must be a real plaintiff, and for a standing as party plaintiff it is necessary that plaintiff be a person in law. A civil action may be maintained only in the name of a person in law, an entity, which the law of the forum may recognize as capable of possessing and asserting a right of action. The rule is sometimes stated so as to comprehend only two forms of legal entity for the purpose of maintaining an action. Thus, the rule has been formulated to the effect that in all civil actions the prime requisite as to parties is that plaintiff must be either a natural or an artificial person, and that an action may not be maintained in the name of a plaintiff who is not a natural or an artificial person having legal entity to sue or be sued.

The generally accepted rule, on the other hand, includes a third form of legal entity, the quasi-artificial person, so that as to the requirement that a plaintiff be possessed of a legal entity or existence it may be stated that an action may be prosecuted only in the name of a plaintiff having a legal entity, either as a natural or as an artificial person, or as a quasi-artificial person, and, in applying this rule, it has been held that natural persons, artificial persons, and quasi-artificial persons may properly be plaintiffs in a suit. However, it has also been held that, in the absence of special statutory authority, an action may not be maintained in the name of a steamboat, and that an estate may not be the party plaintiff in an action.

Action in trade-name or in name of mere business interest. It has been held that an action may not be maintained with a mere trade-name or business interest possessing no legal personality as plaintiff, and that an action may not be maintained in the name of a property with the proprietor’s name affixed thereto. On the other hand, it has also been held that an individual who is doing business in a trade-name may maintain an action in such trade-name, especially where the suit relates to the business conducted in that name, provided the trade-name is not made a cover or means of fraud, and provided a judgment in the action would be binding on the real party suing in such business or trade-name.

Effect of lack of legal entity. A suit brought in a name which is not that of a natural person, a corporation, or of a partnership is a mere nullity; in such a case it has been held that the whole action fails. Moreover, where there is no legal entity in the name by which a plaintiff is designated, it has been held that there may be no cause of action, because a cause of action implies a person in existence qualified to institute process.