Volume 51 — Court of Claims Reports

The Reporter's statement of the case: The following are the facts as found by the court: I. The original claimant herein, a partnership composed of James E. Simpson, James E. Simpson, jr., Alfred H. Simpson, and William E. Simpson, was doing business under the firm name of J. E. Simpson & Co. at the time of the contract and work thereunder hereinafter referred to.

<p> On the Proofs. </p> <p>Contract.—On September 11, 1906, plaintiff entered into a contract with the United States to furnish certain pumping apparatus for the Keclamation Service. The contract provided that a test should be made at the factory at Camden, N. J., under Government supervision and for delivery f. o. b. factory. Subsequently it was agreed between the parties, in lieu of the original contract, that the “ final acceptance test ” should be made at Garden City, Kans., the point of delivery; that the test should be made within 60 days after delivery; and that payment should be deferred until acceptance after such test. Upon the final settlement the defendants deducted a sum as liquidated damages under the contract.</p> <p>Liquidated damages.—Where from the evidence it is impossible to determine the date from which the plaintiff is shown to have been in default, inasmuch as the mutual changing of the place of delivery carried with it necessarily a change in the time and conditions of delivery, the court will not enforce the clause for liquidated damages.</p> <p>Same.—In a provision for liquidated damages in which the aggregate of damages is to be determined with a per diem rate as the basis of computation, a definite date from which the liquidated damage clause is to operate must be determined from the contract, and the court can not assume or otherwise fix a date from which the liquidated clause is to operate.</p>

The Reporter’s statement of the case: The facts in this case will be found reported in volume 48, at page 296.

<p> On the Proofs. </p> <p>Contract; ordnance.—Plaintiffs contracted with the United States to furnish certain wire-bound rapid-fire guns and the mounts for the same. The contract provided for certain tests to be made of a sample gun of each caliber and that the acceptance of the guns by the Government would depend upon such tests proving satisfactory. When submitted to the tests the gun passed some of the requirements satisfactorily, but in others did not, and certain material defects being apparent, the War Department requested plaintiffs to submit the guns to an additional test before approving the gun. Upon failure of plaintiffs to comply with this request, and before any guns were delivered, the contract was annulled by the defendants. Plaintiffs sue for the amount alleged to have been expended toward the performance of the contract before its annulment.</p> <p>Test; acceptance.—Where a contract provides that a sample gun shall be tested and the acceptance thereof “ will depend upon the type gun passing its test satisfactorily,” and where in the test certain defects were disclosed, it is held that the gun was not only to pass successfully through the ordeal to which it was to be subjected, but in addition its conduct during the test and its condition afterward must be such as to be satisfactory to the officers of the Government.</p> <p>Held, That the gun not having passed the test “ satisfactorily ” in the first instance, and the Chief of Ordnance not having thereupon rejected it, as he had a right to do under the contract, but instead granted the plaintiffs an opportunity for an additional test de hors the contract, this was a favor to the plaintiffs, and if they did not accept it the contract was properly annulled.</p>

<p> On the Proofs. </p> <p>Jurisdiction; seizure and sale; defense.—A special act granted jurisdiction to the court to hear and determine the claim of certain parties by reason of the alleged unlawful seizure and sale by revenue officers of the property of said parties, and reserved to the Government the right to any defense, legal or equitable, to the cause of action, except the defense of jurisdiction of the court under the statute of limitations.</p> <p>Held, (1) That the United States are not liable for the tortious acts of its agents or officers;</p> <p>(2) That Congress by said act intended that the liability of the Government should be determined by the settled principles of law.</p>

The Reporter’s statement of the case: The following are the facts as found by the court: I. On the 27th day of May, 1907, the claimant entered into a contract with the United States, through Jesse N. Baker, captain and quartermaster of the United States Army, whereby he contracted to furnish to the United States 223 Cavalry horses and 36 Artillery horses, which number, under an optional clause in said contract, was thereafter increased by 13 Cavalry horses.

<p> On the Proofs. </p> <p>Contract.—Fowler entered into a contract with the United States for the delivery of certain bronze. Liquidated damages were deducted for delayed delivery, and Fowler, “for the use and benefit of the Exeter Machine Works, incorporated," sues therefor, alleging that he was the agent of said Exeter Machine Works.</p> <p>Allegations of petition; proof.—Allegations in a petition, even though not controverted, do not constitute proof of the facts alleged, and a suit can not be maintained in this form where proof of the real party in interest is lacking.</p> <p>Bid; time of delivery.—Where a contractor in submitting his bid states no other time of delivery than that specified in the circular to bidders and printed form of the bid, and where in said blank form it is stated that time should be considered as of the essence of the contract, he is considered to have assumed the imposed conditions.</p> <p>Delay; liability.—A period of nine days elapsing between the opening of bids and the notice sent to plaintiff constitutes no such unreasonable delay as to operate to relieve the contractor from liability for performance within the contract time. Liquidated damages; validity of provision for.—Parties having liquidated the damages for failure to deliver, it can not be held that the basis of liquidation was so unreasonable as to impair the validity of the provision, where no proof is submitted other than that the provision was burdensome. It must be assumed that the contractor regarded it as in his interest to and did therefore assume all the obligations of the contract with its attendant burdens.</p>

<p> On the Proofs. </p> <p>Inheritance tax.—This is a suit under the refunding act of June 27, 1902, 32 Stats., 406, to recover an inheritance tax collected under the provisions of sections 29 and 30 of the war-revenue act of June 13, 1898, 30 Stats., 448.</p> <p>Provisions of will.—The last will and testament of Margaret S. Pillsbury bequeathed, among other things, the sum of $10,000 to “ said Minnie A. Townsend, her heirs and assigns forever, the income from, which shall he paid hy said Minnie A. Townsend annually or semiannually to my cousin, Mrs. Augusta II. Worthen, as long as said Augusta H. Worthen shall live."</p> <p>Same; possession and enjoyment of fund.—The practical effect of such bequest was to give to Augusta H. Worthen a life estate in $10,000, the remainder to go to Minnie A. Townsend, the possession and enjoyment of this fund so provided taking effect at once upon the death of the decedent without any contingency whatever.</p> <p>Same.—By the terms of the act of June 27, 1902, supra, the question which determines whether a bequest is taxable or not is, Did its “ possession and enjoyment ” go to some one without any contingency or reservation?</p> <p>Held, That said bequest was properly taxable under the act of June 13, 1898, supra.</p>

<p> On the plaintiff's motion. </p> <p>Navy pay.—A paymaster’s clerk is not an “ officer of the Navy ” entitled to mileage pay, within the meaning of the statute, March 3, 1901, 31 Stats., 1029.</p> <p>Navy regulation.—A regulation of a department is not sufficient to change the plaintiff’s status, so as to bring him within the terms of the act of March 3, 1901, supra.</p> <p>Katser v. United States, 49 O. Ols., 294, reviewed and distinguished.</p>

The Reporter's statement of the case: The facts of the case and the grounds for defendants’ motion are sufficiently stated in the opinion of the court.

<p> On the proofs. </p> <p>Statutes; Navy.—Act of March lh 1913, 37 Stats., 892, providing for pay of officers of the' Navy advanced in grade or rank construed.</p> <p>Statutes; Revised Statutes, sec. 1505; Navy; Commission.—A naval officer who failed to qualify professionally for promotion is required by sec. 1505, as amended, to be suspended from promotion for six months and to lose certain numbers. The proper date of his eligibility to the higher rank when promoted is six months from the period when he first became eligible to such promotion.</p> <p>Words and Phrases; Ranh; Grade; Office.-—Rank is not an office. Commission; Navy; Statutes.-—-Where the commission issued to a naval officer shows that the date of rank is incorrect the officer can not recover pay from the date so stated in virtue of the act of March 4, 1913, supra.</p>

<p> On the plaintiff’s motion. </p> <p>Cleric of court; naturalization fees.—A clerk of the United States Circuit Court for the District of Massachusetts collects fees in naturalization proceedings for a period of six months, amounting to $6,151, and retains thereof the sum of $3,000 under section 13 of the act of June 29, 1906, 34 Stat., 600, which provides that “ clerics of courts exercising jurisdiction in naturalization proceedings shall he permitted to retain one-half of the fees in any fiscal year up to the sum of $3,000.” Plaintiff was required to refund the sum of $1,500 so collected, for which he now brings suit.</p> <p>Retention of fees; Statutes appUed.—Under section 2687 Revised Statutes and the act of June 29, 1906, supra, a clerk of a court is not entitled to the full maximum sum allowed for fees collected in naturalization proceedings in any one fiscal year received during six months of such year, but is only entitled to retain his pro rata share of said maximum sum for the period during which said fees were collected.</p>

<p> On Defendant's Demurrer. </p> <p>Cotton.—Decedents were the owners of certain cotton in the State of Louisiana on June 6, 1865, at which time it was taken into possession' of the purchasing agent of the United States, who refused to release it until the owners paid one-fourth the market value thereof. Thereafter said firm paid said amount under protest and the same was covered into the Treasury. Suit is instituted under section 162, Judicial Code, for the recovery of said amount. Defendants demur to plaintiff’s petition.</p> <p>Supreme Court decision.—It was settled by the decision of the Supreme Court of the United States in Cutler v. Komis, 110 U. S., 720, that the money sought to be recovered back was legally exacted from the firm and became the absolute property of the United States.</p> <p>Captured and abandoned property acts.—Section 8 of the act of July 2, 1864, 13 Stat., 375, was in reality supplementary to the captured and abandoned property act of March 3, 1863, 12 Stat., 820, and was for the purpose of enabling citizens in insurrectionary territory to dispose of their cotton to the Government and thus not be compelled to submit to its seizure.</p> <p>Cotton “ taken Judicial Code.—The taking possession of one-fourth value of said cotton by the purchasing agent was by authority of section 8 of the act of July 2, 1864, supra, and it was not “taken” as contemplated by the act of March 3, 1863, and does not come within either the letter or spirit of section 162 of the Judicial Code.</p>

<p> On the proofs. </p> <p>Contract.—Plaintiff enters into two contracts with the United States to manufacture and deliver certain rifles. Said contracts were completed, the rifles delivered, and the contract price paid in full to the plaintiff. In the contracts and the specifications accompanying them there was a provision that the United States would hold the plaintiff company “ harmless from any and all suits which may be brought against it for and on account of any alleged infringements of patents in the production of the rifles required.” Thereafter a suit was instituted in the United States Circuit Court at Hartford, Conn., against the plaintiff, claiming an infringement in the manufacture of the rifles so manufactured and delivered. Plaintiff sues for a reimbursement of sums expended as attorneys’ fees and expenses.</p> <p>Indemnifying contract; patent; suit for infringement.—Where in an indemnifying contract the defendants agree to hold “ harmless ” the maufacturers against suits for patent infringement, it is an express covenant upon their part to assume all expenses incident to an attack by alleged patentees, and plaintiff was entitled to the full consideration of the contract undiminished by the cost of defending suits for infringement of patent. Costs; liability of Government for.—While the circuit court is powerless to allow attorneys’ fees as part of the costs in patent litigation, said costs were included in the express and independent agreement between the parties to hold hariS8|jj§Ífrom suits for infringement of patent, and said agreemenf'contemplated the whole course of legal procedure from beginning to end.</p>

The Reporter's statement of the case: The following are the facts of the case as found by the court: I. The claimant, Clarence W. Turner… Held: and the result thereof declared as follows: “ Courthouse, Deep Fork Dist., M. N., “ October 11,1890. “ Election held this day above dated for a pasture, according to the application of Pussy, Tiger & Co., as follows, to wit: “ Fifty-nine for and thirty against, and the pasture elected by twenty-nine majority. “ Thereby the pasture…

The Reporter's statement of the case: The following are the facts as found by the court: I. On the 7th day of February, 1905, the claimant, George B. Spearin, entered into the contract with the United States, a copy of which, marked “ Exhibit A,” is annexed to the petition herein and a copy of the material parts of the plans and specifications mentioned in said contract is hereto attached, marked “Exhibit B,” and made a part hereof. II.

<p>The Reporter’s, statement of the case.</p> <p>The facts of the case are sufficiently set forth in the opinion of the court.</p>

<p> On the Proofs. </p> <p>Seizure of vessel.—This is a suit for the recovery of the value of the use of a steamer owned by plaintiff and seized by the military authorities of the United States in 1901 during the insurrection in the Philippine Islands, together with the value of the repairs necessarily made by the owner after recovering possession of the property from the United States.</p> <p>Enemy’s property; implied contract.—Where a steamer is seized by the proper military authorities during pendency of rebellion or insurrection upon the ground that it is the property of the enemy and was at the time being used in furtherance of the rebellion, and the vessel is subsequently used in the service , of the United States, there is no implied contract to pay for the use thereof.</p> <p>Jurisdiction; tort.—Where a vessel is seized under such circumstances, and where nothing is said or done by. the officers of the defendant from which the court can imply an obligation to pay for the property so taken, the transaction assumes the status of a tort and the court is without jurisdiction. Enemy’s property.—Where a vessel is seized to prevent its activities in the interest of the rebellion, the transaction is one involving the military arm of the Government and was so seized as enemy’s property.</p> <p>Jurisdiction; tort; assumpsit.—The act of March 3, 1887, known as the Tucker Act, 24 Stats., 359, precludes recovery in this jurisdiction in cases sounding in tort, and the transaction was not converted into one of implied contract because of the retention of the vessel. The plaintiff! can not waive the tort and sue in assumpsit.</p>

<p> On the Proofs. </p> <p>Contract; measure of damages.—Where a contract provides for the delivery of cement at stated intervals at two different places and the Government was in default in ordering or accepting the cement the contractor is entitled to the profits he would have made if the cement had been ordered and accepted. The measure of his damages is not at all times to be confined to proof of the difference between the contract price and the price at the time and place of delivery, and the rule may be accommodated to the exigencies of the particular case.</p> <p>Damages.—Where the contractor shows by satisfactory proof what it would have cost him to deliver the cement which the Government had agreed to accept, that cost deducted from the contract price may furnish the correct measure of his damages.</p> <p>Contract; deduction from price.—Where the Government upon rejection of a shipment of cement called upon the contractor to replace the same, which he did, the Government could not after accepting the second shipment deduct from the contract price an amount paid in the open market for a similar amount of cement upon the theory that it was purchased to supply the rejected cement.</p>

<p> On the Proofs. </p> <p>Contract.—Plaintiff enters into a contract with the Government to furnish certain quantities of suction hose to be delivered on the Canal Zone, and the specifications thereof require a specific friction test for quality. At various times the hose is delivered and inspected by the Government officials and successfully passes all the requirements of the contract, and no complaint is made in respect thereto until after the expiration of from three to eight months, when having been put to actual use on the Isthmus a certain amount of the hose is rejected as being defective. During the course of the contract the agreement in regard to furnishing of lengths for tests is modified, the plaintiff warranting, in view of a waiver of this requirement, that the hose furnished under the contract be the equal in all respects of the sample furnished for test.</p> <p>Same; plans and specifications.—Where “ suction hose ” is required by a contract and the specifications generally describe the article desired, the contractor is required only to furnish the hose in compliance therewith and not such suction hose as is generally understood among the trade.</p> <p>Delivery; test; inspection; acceptance.—Where merchandise is to be manufactured and delivered under certain specifications and subjected to prescribed inspections and tests,'meets such requirements, and no complaint is made within a reasonable time after its delivery, it is equivalent to a final acceptance and the transaction under the contract is closed. No belatedly applied test demonstrating an alleged defect can serve to reopen the matter.</p> <p>Breach of warranty; inspection; test.—The Government having failed to apply the prescribed test to the hose furnished, there was no breach of the express warranty on the part of plaintiff that the hose furnished under the contract be the equal of the sample' furnished for test. This warranty in itself did not serve to extend the time or manner of inspection and made no change in the contract in reference thereto.</p>

<p> On the Proofs. </p> <p>Contract; bond; surety; delay.—Plaintiff! Stannard bids for the erection of a power plant and arsenal at Watertown, Mass., which bid is accepted by the United States. Before submitting his proposal he had executed an undertaking with a surety company that if within 10 days after notice of acceptance of his bid he had failed to enter into contract with bond and surety for the construction of the plant, the said surety company would pay the United States the difference between the amount of said bid and the cost of said construction through another contractor. Upon Stannard’s promise to execute the contract he was permitted to begin the proposed work, which was prosecuted in a dilatory manner for several months. Stannard failed to furnish said bond until plaintiff Mackey, an agent of the surety company, suggested that if allowed to do so he would enter into partnership with said Stannard for the performance of said contract, sign the original proposal and contract and furnish the required bond, which offer was accepted by the Secretary of War, and the contract was approved by the latter 11 days before the time stipulated in the contract for the completion of the work. Upon the completion liquidated damages, as provided in the contract, were deducted on account of the delay in completion, for the recovery of which plaintiffs sue.</p> <p>Performance; liquidated damages; waiver.—While it was not expected or believed by any of the parties to the contract so perfected that it could be performed within the time prescribed by its terms, by said act the same was given life from its date with all of its conditions and obligations, including the payment of liquidated damages for the nonperformance within the time limit, and no waiver of the liquidated damage clause was thereby contemplated.</p>

<p> On defendants’ demwrrer. </p> <p>Appointment; discharge; salary.—Plaintiff, an employee of a United States mint, was discharged from the service on July 1, 1912, by order of the superintendent of the mint. On October 1, 1913, he was again employed by order of the Secretary of the . Treasury. He sues for salary of the office between the dates mentioned, alleging wrongful discharge on the part of the superintendent. Defendants demur to the petition.</p> <p>Appointment; removal; term of office.—Where an authority vested by law with the power of appointment removes an employee whose term of office is not for a fixed period, and the right to remove is not forbidden by the Constitution or statute, the court will not review the causes of removal.</p> <p>Removal; statutes applied.—The power of removal being vested in the superintendent at the time of the plaintiff’s discharge by the act of February 12, 1873, 17 Stat., 424, the lawful act of removal done prior to the passage of the act of August 23, 1912, 37 Stat., 360, 384, vesting the right of appointment in the Secretary of the Treasury, was not interfered with by said latter act, which took effect at the time of its passage,</p>

<p> On the Proofs. </p> <p>Corporation tax.—This is a suit to recover corporation taxes under the provisions of section 38 of the act of August 5, 1909, 36 Stat., 11-112.</p> <p>Incorporation, purpose o/.—Plaintiff corporation was organized for the sole purpose of building a junction railway, leasing the same, collecting rents therefrom, and distributing said amounts among its stockholders, and this business alone has been carried on since its incorporation, notwithstanding any power it may have had by its articles of incorporation.</p> <p>Same; statute applied.—Where a corporation is doing the business for which it was organized, the income derived from such business is taxable under the act of August 5, 1909, supra.</p>

<p> On the Proofs. </p> <p>Attorney’s fees; jurisdiction; Mississippi Choctaws; liens.—This suit is by various plaintiffs to recover for services rendered and expenses incurred in securing Mississippi Choctaw Indians the right of citizenship in the Choctaw Nation. The court’s jurisdiction is derived from the acts of April 26, 1906, 34 Stat., 140, and May 29, 1908, 35 Stat., 457, which directs judgment to be rendered in favor of the plaintiffs named, and their associates, “on the principle of quantum meruit in, such amount or amounts as may be equitably or justly due,’’ the lands allotted to the Mississippi Choctaws being declared subject to a lien to the extent of any judgment rendered in accordance therewith.</p> <p>Quantum meruit; judgment.—Congress having authority to charge the Indian lands involved with the payment for services rendered or expenses incurred in securing their rights, the court can render a judgment upon the principle quantum meruit if from the record there is found the existence of a legal relationship warranting it.</p> <p>Contracts, invalidation of; admissibility of evidence.—Where contracts secured by plaintiffs from individual Indians were invalidated by act of Congress, they can not be made the basis of a suit wherein a judgment rendered could become enforceable against the Indian property, but the contracts are admissible in evidence to establish knowledge upon the part of the defendants and as evidence of what might constitute a reasonable award for the work performed.</p> <p>Indians as a band; as individuals; jurisdiction.—The jurisdictional acts having directed adjudication of the claims of plaintiffs for services rendered in “ the claim, of the Mississippi Choctaws to citizenship in the Choctaw Nation," it was contemplated thereby that the services be to the Mississippi Choctaw Indians as a class and not to certain Indians as individuals. The absence of any provisions for individual defense and representation upon the part of the Indian in the cause, manifests an intention on the part of Congress to limit the jurisdiction of the court to the ascertainment of the value of services rendered accruing to the Indians as a band. Judgment; quantum, meruit; Indians as a band.—A judgment upon the principle quantum meruit presupposes a situation of the parties whereby the court may infer from the circumstances that the defendants as a whole knew of the efforts in their behalf, acquiesced therein, and accepted the benefits of such services, and thereby impliedly promised to pay therefor, but can not extend to a large number of persons who were innocent of any work or labor being done for them.</p> <p>Service in securing legislation; value of.—Where a claim is made for the value of services in securing legislation beneficial to Indians, the court can not segregate the services performed by attorneys and the influence exerted by the department in moving Congress to a recognition of the Indians’ rights in the absence of some specific showing of the value thereof. Jurisdiction; quantum meruit; individual Indians.—The term “associates ” in the jurisdictional acts must be read in connection with the principle upon which the court is directed to render judgment and can not be held to cover the services of those employed by the persons who had contracts with the individual Indians.</p>

<p> On the Proofs. </p> <p>Jurisdiction; Statutes.—The act of March 2, 1895, 28 Stats., 962, relating to certain losses by persons in the naval service does not authorize suit for such losses in the Court of Claims.</p> <p>Marine Corps; Statutes.—The Marine Corps is regarded as an adjunct of the Navy and not a part of the Army as to claims under the act of March 8, 1885, 23 Stats., 350.</p> <p>Statutes; Jurisdiction.—The act of March 2, 1895, supra, does not provide for the payment of claims arising after its enactment, but does provide for a report of losses as ascertained by the accounting officers to the “ Speaker of the House " and contemplates further action by Congress. The act does not confer jurisdiction on the Court of Claims; nor has it jurisdiction by virtue of that act under the general grant of jurisdiction of claims “ founded upon any law of Congress."</p>

<p> On the Proofs. </p> <p>Statutes.—Act of July 31, 1894, 28 Stats., 205, providing that an officer with a salary of $2,500 can not hold another office to which compensation is attached unless specially authorized, applied.</p> <p>Salary.—Where the compensation of an officer is fixed by statute it may not be diminished by regulation of a department or order of the President unless empowered thereto by Congress, but where appointment to two certain offices is claimed and to so hold would involve a construction that the appointment was invalid under the act of July 31, 1894, 28 Stats., 205, the court must adopt the view that a legal appointment was contemplated, and hence that the claimant was not appointed to two offices.</p>

<p> On the Proofs. </p> <p>Contracts.—This suit involved eleven different items, the result of contracts with the United States for work in connection with the excavating and construction of the approaches to the lock connecting the Mississippi River and Bayou Plaquemine at Plaquemine, La.</p> <p>Same; changes; agreement of parties.—Where a contract contains a provision that if it “ be found advantageous or necessary to make any change or modification in the project ” which would “increase or diminish the cost of the work," such change or modification “must be agreed upon in writing * * * and before taking effect must be approved by the Secretary of ’War,” there was no breach of the contract if at the time the change or modification was agreed to between the contractor and the engineer officer in charge it appeared that it would be advantageous by way of facilitating progress, and that it would not involve any increase in cost, although subsequently the cost was increased by reason of conditions wholly outside those reasonably to be anticipated. Deduction; breach of contract.—Where a sum of money was rightfully paid under one contract, there is no authority to deduct it from money due under another contract because of an alleged breach of the first contract.</p>

<p> On the Proofs. </p> <p>Contract; bonds.—Plaintiff entered into a written contract with the defendant for the delivery of certain armor plates for the use of battleships. Pursuant to the provisions of Article XV of the contract the plaintiff furnished a bond in the penal sum of $195,000, it being provided in such article that “ at the end of each calendar year the amount of such bond may be reduced to correspond to the estimated cost of armor then unfurnished under this contract.” All of the armor plate called for in the contract was delivered on or before May 2, 1911. No reduction of the bond was requested by plaintiff until January 27, 1912. A second bond was thereupon furnished by the plaintiff in the sum of $3,500 conditioned for the replacement of any armor plates of the fire-control tower that might prove defective, the defendants agreeing to consider the original bond as fulfilled but refused to cancel the same. On March 9,1912, the Secretary of the Navy offered to cancel the original bond if plantiff would furnish a third bond in the sum of $30,000 conditioned for the fulfillment of the plaintiff’s obligation to furnish replacing plates under the contract. This bond was furnished and the original bond of $195,000 was considered as superseded.</p> <p>Delivery, conditional; reservation.—The bond required by Article XV was only for the provisional delivery of the armor plate as required by the contract and had no reference to replacement of such armor as might prove defective, as the word “ delivery,” as used in other parts of the contract, had reference only to such conditional delivery. The defendant was secured from loss by the terms of section 3 of Article XIII providing that there shall be a reservation of 10 per cent from the price of each group of armor delivered to be retained until the group shall have been completed, and “ that the reservation on the last group * * * shall he retained until all the armor plate furnished for such vessel has heen in place for a period of six months.”</p> <p>Bond, reduction of.—It being elementary that where the language of an instrument requires construction it shall be taken most strongly against the party preparing the instrument, Meld that intermediate reduction of the bond was required by the contract and it was not intended that the bond should be in force until all defective plates had been delivered and accepted.</p> <p>Bond, expense of.—But the full conditions of the bond having been complied with on May 2, 1911, when the last armor was provisionally delivered and accepted, any further expense in carrying the bond after that date was a voluntary act on the part of the plaintiff and the expense incurred thereby is not a charge against the defendant.</p> <p>Same.—The expense of the bond of $30,000 to the plaintiff conditioned for the replacement of defective plates was unnecessary, as it does not appear that plaintiff was threatened with the deprivation of any right by the defendant or with the annulment of his contract, and that such expense was incurred voluntarily and without protest, and the arrangement being entirely satisfactory to plaintiff, there can be no recovery therefor.</p>

The Reporter's statement of the case: The following are the additional facts as found by the court on the mandate of the Supreme Court: I. On the record now before the court it appears that the Mille Lac Indian Reservation was surveyed as public lands in 1865 and 1870. According to said survey the reservation contained 61,028.14 acres of land. II.

<p> On the Proofs. </p> <p>Statutes; Army.—The act of March 8, 1885, 23 Stats., 350, relating to loss of private property by officers or enlisted men of Army construed.</p> <p>Jurisdiction.—The Court of Claims by virtue of its general jurisdiction of claims “ founded upon any law of Congress ” has jurisdiction of claims arising under the act of March 3, 1885, supra, where (1) the facts are undisputed and the accounting officers misapply the law, or (2) they refuse to act on claims properly presented, or (3) payment by the Treasury of their award is refused.</p> <p>Jurisdiction; Statutes.—To authorize suit upon a claim arising under the act of March 3, 1885, supra, it must first be presented to the accounting officers within two years from the date of the alleged loss.</p> <p>Time of War; Statutes.—A loss occurring May 16, 1899, of private property aboard a transport bound from Porto Rico to New York which was wrecked, though the troops aboard were destined for service in the Philippines after refitting in New York, was not “in time of war” within the meaning of the act of March 3, 1885, supra.</p>

<p> On the Proofs. </p> <p>Contract; transportation of mails.—A distance circular, plaintiffs indorsement thereon, and the orders and notices of the Postmaster General stating the compensation, and plaintiff’s action thereafter, constitute a contract to carry the mails for a period of four years from July 1, 1905,’ said contract containing a reservation that the compensation to be paid should be subject to future readjustment. Under the act of March 2, 1907, 34 Stat., 1205, 1212, the Postmaster General readjusts the compensation to be paid plaintiff by deducting 5 per cent from the rates then being paid, said readjusted compensation being made effective from and after July 1, 1907, for which deducted compensation plaintiff sues.</p> <p>Compensation, readjustment of.—Where plaintiff acted under the rates stated in the contract of 1905, the rights of the parties became fixed, subject to the terms of the offer itself, which were that the compensation would be subject to readjustment. Compensation; protest.—The act of March 2,1907, supra, was designed to make a reduction in the compensation then being paid to railroads, and plaintiff had the option of declining the readjusted terms and refusing to further transport the mails, but a protest on the part of plaintiff would not have the effect of restoring the old rates or reserving to it compensation at such rates.</p>

<p> On the Proofs. </p> <p>Contract.—Plaintiff contracts with the United States to furnish certain lumber, the specifications providing that “ all lumber shall shoio heart on two sides and not less than one-half heart on the other two sides.” Plaintiff alleges that he was compelled by the interpretation placed upon this specification by the engineer officer in charge to furnish a superior quality of lumber, for the additional price of which he brings this action. Specifications.—In ascertaining the meaning to be ascribed to a certain phrase of the specifications, the court will consider the entire contract, its purpose, the surrounding circumstances, the facts known to the parties with reference to which they contracted, and the specifications in regard to other material under the contract.</p> <p>Payment; protest.—Where a contractor made no protest when the several payments were made under the contract, and when the final payment, which purported to be in full of the amount stated in the voucher, was made, it is assumed that he acquiesced in the interpretation put upon the contract by the defendants’ officer.</p>

<p> On the Proofs. </p> <p>Contract.—This suit was upon a contract for the construction of an underground system of electric lighting at Columbus Barracks, Ohio. Plaintiff completed the work under the contract and was paid the stipulated price therefor without deduction. Action is brought for the recovery of certain amounts alleged to be due on account of changes made in portions of the system entailing upon the contractor alleged additional expense for labor and materials.</p> <p>Specifications, interpretation of.—Where in a contract it is given to the officer in charge to determine the true intent and meaning of the specifications where the same are ambiguous and difficult of interpretation, their interpretation by him is conclusive in the absence of any showing of an abuse of such discretion.</p> <p>Contract; changes; extra work.—Where slight changes were made in the location of trenches and manholes, the right to make such changes being specifically given in the contract to the officer in charge, no claim for extra work can be predicated thereon when it appears that the changes were advantageous to the contractor both in the amount of work required and in the avoidance of unduly expensive conditions, or where it does not appear that the changes in the aggregate entailed additional expense.</p>

<p> On the Proofs. </p>

<p> On the Proofs. </p> <p>Appointment; compensation; statutes.—Plaintiff, inspector of customs at the port of New York, received as compensation for his services |5 per diem from date of appointment as such to July 1, 1910, at which time, pursuant to a reclassification of the inspectors under the act of March 4, 1909, 35 Stat., 1065, upon the recommendation of the collector of the port of New York and by order of the Secretary of the Treasury, he was appointed inspector at $4 per diem, at which rate he continued to be paid. Plaintiff claims the difference between the sum of $4 per diem paid him from July 1, 1910, and the maximum amount stated in the act of March 4, 1909, supra, for inspectors at the port of New York, i. e., $6 per diem.</p> <p>Compensation, readjustment of; classification of employees.—The act of March 4, 1909, vests in the Secretary the authority to readjust or change the compensation of inspectors at the port of New York and does not require that all inspectors be paid the same or the maximum compensation. When under this act the collector of the port properly classified the inspectors, which was approved by the Secretary, the administrative action will not be interfered with unless plainly violative of official discretion.</p>

<p> On the Proofs. </p> <p>Contract.—This is a suit upon a contract for the construction of concrete walls for a ship lock in Black Bock Harbor, Buffalo, N. Y.</p> <p>Specifications; extra work.—The specifications, paragraph 52, provide that “if any leaks develop through the bed rode or through the cofferdam below the clay filling, when the inclosure is being pumped out, the contractor shall stop them under plans and agreements for payment therefor, to be made with the engineer, based upon the actual cost of labor and materials at current wages and prices, plus not exceeding 15 per cent for profit.” It was intended by this specification to provide for all labor in connection with the stoppage of leaks, including the pumping process. As the engineer agreed to and acquiesced in the work done as being necessary to accomplish the designed purpose, this is a sufficient compliance with the specification to allow plaintiff to recover the additional sums specified.</p> <p>Specifications; additional compensation,—Although another paragraph of the specifications requires pumping to be done in the ordinary course of the work to keep the inclosure drained to bed rock, without additional compensation, the extra pumping was the method adopted by consent of the parties for stopping the leaks in accordance with the provisions of paragraph 52.</p>