#### NICHOLAS ITTNER v. THE UNITED STATES.

[No. 29642.

Decided April 13, 1908.]

*On the Proofs.*

The contract provides that the work shall be completed on or before a date named, and in case of failure that the contractor shall pay $20 a day as liquidated damages; also that the work shall commence on or before a day named. It appears that the defendants, by the negligence of their officers, prevented the contractor from beginning the work at the appointed time. The work is not finished at the date named in the contract and the defendants deduct a large amount for liquidated damages.

I.Where a contractor is prevented by the defendants from beginning work at the appointed time and thereby from executing his contract according to its terms, he is relieved from the time obligation of the contract and from the payment of liquidated damages.

II.It is well settled that where one of the parties demands strict performance as to time by the other he must himself comply with all of the conditions requisite to enable the other to perform his part. A failure to do so operates as a waiver of the time provision.

III. Allowing the contractor additional time in which to complete the contract does not restore provisions which have been waived. All that the contractor then has to do is to finish within a reasonable time.

IV. Where the'agent of the Government paid a contractor and the payment was disallowed by the accounting officers and the contractor refunded the money to the agent, it being agreed that the payment should not prejudice his rights, it was a transaction where the contractor acquired no benefit and the defendants acquired money without consideration, which, in equity and good conscience, they should not retain. It was not a case of voluntary payment.

*337
      *The Reporters'1*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant herein, a citizen of the United States and a resident of Georgia, entered into a contract with the United States in writing on the 4th day of April, 1903, for the construction of a hospital building at Chickamauga Park, Ga., wherein it was agreed that the claimant should be paid for the work the sum of $59,472.

The contract provided that the work shall commence on or before the 6th day of April, 1903, and shall be carried forward with reasonable dispatch and be completed on or before January 1, 1904. By the terms of said contract the same was subject to the approval of the Quartermaster-General of the Army.

Article 2 of said contract is as follows :

“Article 2. The time of the completion of the work being an essential element and consideration of this contract, it is further agreed that in case of the failure of the party of the second part to complete in all respects the work called for under this contract on or before the date stipulated for such completion, the loss resulting to the United States from such failure, as liquidated, ascertained and fixed damages is hereby fixed at twenty (20) dollars for each and every day that the work on the building remains uncompleted after such date, and it is hereby stipulated that the party of the first part may withhold such amount as liquidated damages from any money due the party of the second part from the United States, and should the amount due the said party of the second part be insufficient to cover the loss at the above rate, then the party of the second part shall pay the excess of such damages over the amount due; provided, that delays caused by quarantine restrictions, storms, floods, or other violence of the elements may, upon the recommendation of the proper officer and approval of the Quartermaster-General, be excluded in determining the amount of said damages.”

Said contract was not approved by the Quartermaster-General of the Army until April 28, 1903, twenty-two days after plaintiff had therein obligated himself to begin work.

II. Thereupon, under and in pursuance to said contract, claimant entered upon the construction of said building, and *338after considerable work had been done on same he addressed a letter to the officer in charge of the construction of the building as follows:

“Atlanta, Ga., *Dec. 9th, 1903.*

“ Captain H. W. French,

“ *Quartermaster, U. 8. Army, Chattanooga, Tenn.*

“Sir: I respectfully beg to inform you that I will be unable to complete the work covered by my contract with the United States for construction of hospital building at the New Military Post at Chickamauga Park, Ga., within the time limit agreed upon, viz, January 1st, 1904, and request, in lieu of annulment of said contract, that the time limit thereof, with the sanction of the Quartermaster-General, may be waived, and that I be permitted to proceed with the work with reasonable dispatch and finish the same in reasonable time, of which the officer in charge shall be the judge. I have been unable to push my work with such- dispatch as to insure completion within the time limit for the reason of not being able to secure material as bought and promised and lack of skilled workmen. In case this application for waiver of time limit be approved, I obligate myself to finish the work within ninety days after the expiration of such time limit. I further agree, in case of waiver of the time limit, that all other provisions of the contract shall remain in force, that I will be liable for any damages and additional costs arising from the delay, and if I fail to carry forward the work with reasonable dispatch, or complete the same within reasonable time, the work may be taken out of my hands and completed by the Government, as provided for in the contract. I inclose herewith written consent of my sureties to the requested waiver of time limit.

“Very respectfully, “Nicholas Ittner,

“ *Contractor*

[1st indorsement.]

“ Office of Constructing Quartermaster,

“ *Chattanooga, Tenn.,. Dec. 11, 1903.*

“ Respectfully forwarded to the Quartermaster-General, U. S. Army, Washington, D. C.

“ The work performed by Mr. Ittner, so far as material and labor is concerned, has been very satisfactory. The reasons for his delay, it is believed, are such as could not have been foreseen at the time of awarding of contract. It is believed he will be able to complete the work within the *339ninety days specified, and approval of his application is recommended.

“ H. W. FRENCH,

“ 698. *Captain and Quartermaster, Ü. 8. A.”*

*“*[Letter-head of the Fidelity and Deposit Co.]

“ Baltimore.

“ We, Fidelity and Deposit Company of Maryland, surety of Nicholas Ittner, of Atlanta, Ga., on contract with the United States for construction of hospital building at Chicka-mauga Park, Ga., hereby agree that the time limit of said contract may be waived by the Quartermaster-General, and the contractor permitted to proceed with his work with reasonable dispatch and finish the same within reasonable time; what constitutes reasonable dispatch and reasonable time to be decided by the officer in charge.

“We further agree in case of waiver of time limit that all other provisions of the contract shall remain in force; that Nicholas Ittner shall be liable for damages and additional cost arising from the delay, and that if he fails to carry forward his work with reasonable dispatch, or complete the same within reasonable time, the work may be taken out of his hands and completed by the Government, as provided for in the contract.

“ Fidelity and Deposit Company oe Maryland,

“ By Chas. B,. Miller, *Vice-President.*

*“*[Fidelity and Deposit Company of Maryland, incorporated 1890.]

“Attest: Thos. L. Berry,

*“Asst. Secretary.”*

III. After due consideration of said application the Quartermaster-General decided as follows:

“ War Department,

“ Office of the Quartermaster-General,

*“Washington, December 16,1903.*

“ Capt. H. W. French,

*“Constructing Quartermaster,*

*'■’■Custom-House Building, Chattanooga, Tenn.*

Captain : Referring to the application of Nicholas Ittner for waiver of the time limit on his contract dated April 4, 1903, for the construction, etc., of one hospital building at Chickamauga Park, Ga., which expires January 1, 1904, and to the consent thereto of the surety on the bond pertaining to *340said contract, papers being forwarded, recommended, with jour indorsement, ‘ 698,’ of the 11th instant, the time limit of said contract is hereby waived in accordance with office circulars of November 8, 1902, and August 6, 1903, the conditions of which you will communicate to the contractor.

“ Respectfully,

“ C. F. HUMPHREY,

“ 181857. Quartermaster-General, *U. S. Army.”*

“ WAR DEPARTMENT,

“ Quartermaster-General’s Opeice,

“ *Washington, November 8, 1902.*

“ Circular Letter :

“ The attention of officers of the Quartermaster’s Department is hereby called to the following instructions relative to application for the extension of time for the completion of work under contract:

“ Under the decision of the Comptroller of the Treasury, vol. 8, page 104, the time specified in a contract for completion of work covered therein can not be extended to a future *specified*date except by means of a new or supplemental contract, as required by section 3744, Revised Statutes. In general, requests for an extension of time will not be favorably considered by this office, but should an extension of time be deemed advisable or proper by the officer in charge, proper contract therefor, accompanied by written consent of sureties, should be entered into and forwarded in time for the approval or disapproval by this office before the expiration of the time limit of the original contract.

“ Should it appear that a contractor will not be able to complete the work within the time agreed upon, in lieu of annulment of contract the time limit thereof, with the sanction of the Quartermaster-General, may be waived and the contractor permitted to proceed with the work, to be carried forward with reasonable dispatch and finish in reasonable time. What constitutes reasonable dispatch or reasonable time will be determined by the officer in charge.

“ Should it be necessary and desirable that the time limit be waived, application therefor should be made *by the contractor in ample time*to enable action to be taken thereon in the office of the Quartermaster-General prior to the expiration of the time limit of the original contract.

“ The contractor’s application for waiver of time limit should be accompanied with the written consent of the sureties to such waiver. This application should be forwarded *341through the officer in charge of the work, and he should indorse thereon his recommendations as to whether or not it is to the interests of the United States to approve the application or take the work out of the hands of the contractor. In case of waiver of time limitation all other provisions of the contract remain in force. It is to be understood that should the original time limit be thus waived the contractor is liable for any damages and additional cost arising from the delay.

“ It is also to be understood in case of such waiver that if contractor fails to carry forward his work with reasonable dispatch or complete same in reasonable time, the work may be taken out of his hands and completed by the Government, as provided for in the contract.

“ Respectfully,

*“*M. I. Ludington,

“Quartermaster-General, *JJ. S.*Army.”

“ WAR DEPARTMENT,

“ Quartermaster-General’s Office,

“ 'Washington, *August 6,1903.*

“ Circular Letter :

*“Extension of time on contracts with a time limit.*— Some of the provisions of circular letter of November 8,1902, from this office, containing instructions regarding the method of procedure upon applications from contractors for waiver or extension of time do not appear to have been fully understood in many recent cases brought to the attention of this office, hence the following explanations are offered:

“ 1. The application for the waiver or extension must originate with the contractor and must be accompanied by the consent of his bondsmen in writing, executed in proper form. It will be sent to this office through the officer in charge of the work, who will indorse thereon, or state in the letter transmitting it, his views and recommendations.

“ 2. Extension of the time limit in a contract for a definite period or to a fixed future date can only be made by entering into a new contract, as provided by section 3744, Revised Statutes, but the time limit on a contract may be waived by the Government under an agreement to that' effect, subject to conditions fully set forth in the last two paragraphs of circular letter of November 8, 1902.

“ 3. Neither an extension of the time limit nor waivers of the same can be granted after the time stated in the contract has expired. Hence the necessity of forwarding the applica*342tion so that it will reach this office for consideration and action before such expiration.

“ There is no authority of law by which an officer of the United States can extend a contract if such extension will operate to release the contractor or his sureties from liability for damages, or be otherwise detrimental to the interests of the Government. Where a contract contains a stipulation for liquidated damages for delay, or other similar provision, an extension or formal waiver of time limit will not be granted, but the work may be carried forward by the contractor as rapidly as possible under the terms and conditions of the original contract, if it is to the best interests of the Government to adopt that method of completing the contract.

“A copy of a blank form of agreement that may be used in cases arising under provisions or circular letter of November 8, 1902, will be furnished on application to this office. The remarks herein do not modify in any way provisions of circular letter of November 8, 1902, but are intended to make more clear the salient points of instructions contained therein.

“ C. F. HUMPHREY,

“ 187393. Quartermaster-General, *U.*¿S. *Army.”*

IV. Said building was completed by the claimant and accepted by the United States on the 31st day of August, 1904, and thereupon the officer in charge of the construction at said post, Capt. H. W. French, quartermaster, U. S. Army, paid said claimant, without deduction, the balance due him under said contract.

V. Thereafter a question was raised by the Auditor for the War Department in the settlement of Captain French’s accounts as to whether there should not have been a deduction of $20 a day from the contract price under article 2 of the contract, for the time elapsing from the 1st day of January, 1904, the time fixed for the completion of said building, to the date of actual completion, to wit, August 31, 1904, amounting to the sum of $4,860.

VI. Thereupon Captain French requested the claimant to return said $4,860, which was done upon the understanding that it was returned for the protection of Captain French pending settlement of claimant’s rights under the contract and should not prejudice his right to said amount if he was otherwise entitled thereto.

*343VIL The Quartermaster-General, upon a report of the constructing quartermaster at the post and after inquiry at the Office of the Auditor for the War Department, decided that said $4,860 was withheld as liquidated damages on account of delay under the terms of the contract, but that said damages were considered excessive and would be construed as a penalty and that said penalty be waived, provided that, if there has been any loss or damage by reason of the delay, deductions to cover same must be made, and thereupon authorized Capt. C. Nixon, constructing quartermaster at Fort Oglethorpe, Ga., to pay claimant any part of the original contract price which has not been paid, less any deductions for expenses or damages that may have been actually incurred or sustained.

It appears that the plaintiff completed the construction of said building within a reasonable time, and that the defendants incurred no expense and suffered no damages by reason of said waiver of time limit.

*Mr. George A. King*for the claimant. *Messrs. George A. & William B. King*were on the brief:

For the Government to retain the money without reference to the merits of the case, would be a gross breach of faith and would punish the claimant for acting in a highly honor-áble manner with the sole purpose of relieving the quartermaster from an awkward situation, and of putting himself, the claimant, in a position to prosecute his claim on its merits. *(United States*v. Mosby, 133 U. S., 273.)

See also *Lawson*v. *United States*and *Ellsworth*v. *Umted States*(14 C. Cls., 332, 382; 101 U. S., 164, 170); *Swift Go.*v. *United States*(111 U. S., 22).

This language is as applicable to the present case as it was to the one in which the decision was rendered. The action of the claimant in returning the money at the request of the quartermaster, so far from estopping him from claiming any of his rights, puts the matter in a peculiarly favorable position for their assertion.

The Comptroller conceded that there was no estoppel, and based his decision upon the provisions of the contract. He *344based his decision purely upon the ground that the time limit of the contract could not be waived by the Quartermaster-General.

The Quartermaster-General did all that was within his power to waive the time limit, and showed not only by his action at the time of the waiver, December 16, 1903, but subsequently, that he intended to waive it once for all. On the 20th of September, 1905, he instructed the quartermaster:

“ It is regarded, however, that the damages specified are excessive and hence will be construed as a penalty. The penalty has this day been waived, provided that if there has been any loss or damage by reason of the delay, deductions to cover same must be made. Instructions have been given to the constructing quartermaster at Fort Oglethorpe, Ga., to take action for payment accordingly.”

Payment of this amount was prevented only by the adverse decision of the Comptroller of the Treasury.

Piad the Quartermaster-General the power to waive the limit of time ? The circular of November 8, 1902, was probably known to the contractor when he entered into the contract on April 4, 1903. This authoritative statement of the construction placed upon such stipulations as these certainly entered into the contemplation of the officers of the Quartermaster’s Department and probably into that of the claimant in the making of the contract. It certainly entered into the contemplation of both parties in asking and granting the waiver of the time limit. It would be now both unreasonable and unjust to adopt a different construction. Circumstances frequently occur in which the Government is not only willing but desirous of deferring the construction of a building for some time. To say that its officers are without power to waive the stipulations as to time would be to deprive them of a power very essential to the proper administration of their offices.

It will be observed that all through this case both the local quartermaster and the Quartermaster-General have treated the claimant as free from all fault and have done their utmost to prevent the imposition of any time penalties upon him. It is a well-settled principle in the law of contract that the manner in which a contract has been contem*345poraneously construed by the parties themselves is one of the best tests of the real meaning of the contract. This was the rule employed by the circuit court of appeals for the eighth circuit in *Cook*v. *Foley*(152 Fed. Rep., 41).

It was not for the accounting officers of the Treasury to show themselves wiser than the Quartermaster-General by whom the contract was made and under whose direction it was carried out. When he clearly showed by his action that he did not regard the claimant as having incurred any time penalties, that action should have been followed by the accounting officers of the Treasury as the action of the executive officer who has the power to carry out the contract.

The decisions of this court and the Supreme Court lend no sanction to any such restriction on the powers of the head of a great executive office like the Quartermaster-General. In *Salomon*v. *United States*(9 C. Cls., 54), the Supreme Court said (p. 60) :

“ That Act 2d June, 1862 (12 Stat. L., p. 411), requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.”

See also *Moran*v. *United States*(39 C. Cls., 486).

If this is true as to a mere inferior quartermaster, how much more strongly does it sustain the power of the head of that great office to waive the limit of time and agree before the final date has been reached to accept supplies or work after the date fixed by the contract.

The exact point involved in this case arose in *District of Columbia*v. *Camden Iron Works*(181 U. S., 453), affirming 15 Appeals D. C., 198. The suit was on a contract for the price of iron pipe manufactured and delivered to the District of Columbia on a contract containing a provision for per diem liquidated damages for a delay in deliveries beyond the time limit fixed by the contract. Against the claim for the price the District set up a claim for liquidated damages. It was established, however, that the officers of the District had *346waived strict performance as to the time specified by the contract and the court held (syllabus, p. 454) :

“ Where strict performance by plaintiff is prevented or waived by defendant, a claim by defendant of fines and penalties for delay or failure can not be sustained.”

This decision is directly in point, as the laws governing contract with the District require, as strictly as do those regulating contracts with the United States that contracts must be in writing and signed by the officers making them. See the acts quoted, 181 U. S., 459.

*Mr. F. W. Collins*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants:

The Auditor for the War Department, in passing upon this claim, held that when the contractor refunded the money to Captain French it was a voluntary payment, and therefore the claimant was precluded from recovering the amount so refunded.

The principle that money after voluntary payment can not be recovered is well defined and settled, and it is not necessary to consume time in presenting argument or citing authorities on this proposition.

As to what is or is not a voluntary payment is not so satisfactorily defined and settled, and each case necessarily rests upon the facts and circumstances attending the alleged payment. Many questions — as ignorance of fact, ignorance of law, protest, and what constitutes protest; mistake of the parties, duress, and coercion, and what constitutes duress and coercion — all enter into the question when seeking to determine what is a voluntary or involuntary payment.

Fortunately, in the case at bar, the facts are simple and readily understood. There are only three grounds on which an action for recovery of money paid can be maintained, namely, fraud, mistake, or duress. In this case fraud is not alleged, and the claimant does not base his action upon any allegation or claim of fraud.

Mistake in order to be a ground of recovery must be a mistake of fact and not of law. *(Lamborn*v. *County Commissioners,*97 Supreme Court R., 185.)

*347There certainly was no mistake of fact on the part of the claimant. The evidence shows that he knew exactly the grounds upon which the request was made for him to refund the money. There was no duress, no coercion, no threat. ' In fact the payment of the money by the claimant bears all of the evidences of a voluntary payment and a voluntary payment made without protest.

The Government for its second defense contends that under the wording of article 2 of the contract there is an absolute and unconditioned agreement whereby in case of the failure of the contractor to complete the work provided for under his contract on or before the date fixed therein that $20 for each and every day beyond the contract time is designated as liquidated damages. The time as prolonged two hundred and forty-three days, and under the terms of the contract the liquidated damages amount to said sum of $4,860.

It is not a question as to whether the Government was damaged or not by reason of the delay in the completion of the building; neither is it a question as to whether the Government would have used the building had it been completed within the contract time. The Comptroller, in passing upon this phase of the claim, states:

“ These damages are liquidated and fixed at the sum of $20 for each and every day the work remains uncompleted after January 1,1904. *(Brooks*v. *City of Wichita,*114 Fed. Rep., 297.) This being true, the parties are concluded by the rule fixed as to the measure of damages, and evidence, to show the amount of actual damages is not admissible. *(The Sun Printing and Publishing Go.*v. *Moore,*185 U. S., 642, 674; 10 Comp. Dec., 605 and cases cited therein.)

“ The damages being fixed and liquidated by the terms of the contract, the contractors became liable upon a breach of its terms to pay the sum fixed as liquidated damages. This obligation to pay the liquidated damages is as binding upon the contractor as would be an obligation to pay a promissory note executed on sufficient consideration, and can not be waived by the Quartermaster-General.” *(Brooks*v. *City of Wichita, supra,*p. 300; 9 Comp. Dec., 113; 12 Comp. Dec., 466.)

Since the foregoing opinion was rendered the Supreme Court has passed upon the case of *United States*v. *The*
      *348
      *Bethlehem Steel Co.,*decided March 11, 1907 (205 U. S. B,., 105-122). In the opinion delivered by Justice Peckham authorities are collated and cited which fully establish the Government’s contention in the case at bar.

In addition to the foregoing we cite the court to the concise and forceful opinion of the Comptroller under the head of “Liquidated damages” (12th Decs, of the Compt., p. 466).

We contend that the Quartermaster-General had not the power to waive the time limit for the completion of the building to the detriment of the United States collecting the amount provided for as liquidated damages.

It is probable that the Quartermaster-General could waive the time limit named in the contract to enable the contractors to complete the building instead of the Government itself taking control of the work. The Government contracted for the building to be completed at a certain time, and it further contracted that for every day the building was not completed beyond the time designated in the contract the Government should retain $20. No waiver of any kind made by the Quartermaster-General can operate to annul this feature of the contract.

Furthermore, there appears to have been no consideration for such waiver of the time limit by the Quartermaster-General. To hold that the Quartermaster-General, or any other official, has the power to waive the time limit in a contract providing for liquidated damages would be, in effect, a ruling that the Quartermaster-General, or other official, could annul and set aside the provision in a contract for liquidated damages and defeat one of the important features of the contract. We think the Quartermaster-General has no such power.

Atkinson, J.,

delivered the opinion of the court.

April 4, 1903, a contract was executed between the United States and plaintiff for the construction of a hospital building at Chickamauga Park, Ga., in accordance with plans and specifications attached, wherein it was stipulated that plaintiff should be paid the sum of $59,472 for said work. The contract contained a provision that work on the building should begin April 6, 1903, and be completed on or *349before January 1, 1904. The contract, however, was not approved by the Quartermaster-General until April 28, 1903, twenty-two days subsequent to the time specified for the beginning of the work under the contract.

Articles 2 and 3 of the contract, which are material in the issue before us, are in the language following:

> “Article 2. The time of the completion of the work being an essential element and consideration of this contract, it is further agreed that in case of the failure of the party of the second part to complete in all respects the work called for under this contract on or before the date stipulated for such completion, the loss resulting to the United States from such failure, as liquidated, ascertained and fixed damages is hereby fixed at twenty (20) dollars for each and every day that the work on the building remains uncompleted after such date, and it is hereby stipulated that the party of the first part may withhold such amount as liquidated damages from any money due the party of the second part from the United States, and should the amount due the said party of the second part be insufficient to cover the loss at the above rate, then the party of the second part shall pay the excess of such damages over the amount due; provided, that delays caused by quarantine restrictions, storms, floods, or other violence of the elements may, upon the recommendation of the proper officer and approval by the Quartermaster-General, be excluded in determining the amount of said damages.

> “Article 3. That work on this contract shall commence on or before the sixth day of April, nineteen hundred and three, shall be carried forward with reasonable dispatch, and be completed on or before the first day of January, nineteen hundred and four.”

After considerable work had been done it became manifest to plaintiff, as shown by the findings, that he could not complete the work within the time required by the contract, and on December 9, 1903, he requested an extension of time, and in this request he obligated himself in case his request was granted to complete the work within a reasonable time, naming ninety days thereafter, and agreeing to become liable for any damages which might arise should he fail to carry out his obligation under such waiver, and agreeing further that all other provisions of the original contract should remain in full force and effect.

*350The surety company on plaintiff’s bond agreed to the waiver of the time limit, but said nothing about any other limitation for completion, simply requesting that the contractor be “ permitted to proceed with his work with reasonable dispatch and finish the same within reasonable time; what constitutes reasonable dispatch and reasonable time to be decided by the officer in charge.”

The officer- in charge of the construction of the building favorably recommended plaintiff’s application for an extension of time in which to complete his contract. The Quartermaster-General, after due consideration, decided that *“*The time limit of said [this] contract is hereby waived in accordance with office circulars of November 8, 1902, and August 6, 1903, the conditions of which you will communicate to the contractor,” which was accordingly done by the officer in charge of the work.

The circular letters to Avhich reference was made by the Quartermaster-General authorized the agents of the United States in his department to waive the time limits of contracts, provided applications therefor are made in writing, and the consent of their sureties are appended to their requests for waivers, instead of annulling the original contracts, and stating also that *reasonable time*may be allowed for the completion of the work under their contracts.

The defendants contend, however, that the Quartermaster-General did not possess the power to waive the provisions of a contract which stipulated liquidated damages for breach thereof, and they, therefore, insist that the terms of section 2 of the contract, supra, should be literally carried out. The findings show that the defendants’ agent who was superintending the construction of the building and the Quartermaster-General both treated plaintiff as free from fault, and not only waived the time limit, but advised that no damages should be assessed against him.

We do not deem it necessary to consider the waiver respecting the damages assessed against the plaintiff, since he was prevented by the defendants from executing his contract in accordance with its terms (Finding I). It stated that time is an essential feature of the contract, but it also provides that it must be approved by the Quartermaster-General *351before it becomes binding. It was not so approved until twenty-two days after the time fixed for beginning the work by plaintiff. It is well settled that where one of the parties to a contract demands strict performance as to time by the other party, he must comply with all of the conditions requisite to enable the other party to perform his part, and a failure on the part of the one demanding performance to do all the preliminary work required by him to enable the other party to complete the work within the time limit, operates as a waiver of the time provision in the contract.

It appears that the plaintiff completed the construction of the building in this case, within a reasonable time, and that the defendants incurred no expense and suffered no loss in consequence of such delay.

In the case of *Dannat et al.*v *Fuller*(120 N. Y. R., 550), in passing upon a contract very similar to the one at bar, the court decided: “ It consequently appears to us that the failure of the plaintiffs to perform on their part operated as a waiver of the performance of the contract as to time, and the defendant consequently had the right to perform his part of the contract within a reasonable time after the plaintiffs had completed their part. The allowing of the defendant thirty days additional time in which to complete the contract, as was done in this case by the referee, does not restore the provisions of the contract which had been waived. It was, in effect, the making of a new contract for the parties by the referee. The defendant having contracted to do this work within a specified time, was bound to have his servants and employees on hand ready to perform within that time. He had the right to assume that the plaintiffs would perform on their part, and therefore could properly contract with other parties for the time of himself and employees for any future time not covered by his contract with the plaintiffs. They could not prevent his performance by delays on their part for even a greater period than that specified in the contract in which he was to perform, and then require him to proceed immediately, for this would require him to do the work at another time than that named in the contract, and when he might be under obligations to other- parties.”

*352The same doctrine is laid down in the case of *Standard Gas Light Co.*v. *Wood*(61 Fed. R., 74), wherein the court held that “ the promise to complete on November 15, and to pay $100 for each day’s default thereafter, expressly hinged upon the gas company’s completion of its part of the work by June 15. When the condition upon which the promise depended was unperformed through the default of the gas company, the promise to complete by a certain day was no longer obligatory; but if the contractors entered upon the work, they were under an obligation to finish within a reasonable time. The gas company had, by its default, waived or abandoned the right to call upon the contractors for strict performance as to time, who, if they entered forthwith upon the work, had the right to a reasonable time for performance.” *(District of Columbia*v. *Camden Iron*Works, 181 U. S. R., 453; *Holme*v. *Guppy,*3 Meeson *&*Welsby, 386; *Russell*v. *Da*Bandeira, 13 Com. Bench (new series), *149; Dodd*v. *Churton*(1897), 1 *Q.*B., 562; 1 *Hudson Building and Engineering Contracts*(3d edition), 525, 554).

The officer in charge of the construction of the work for the defendants, after taking into consideration the “ reasonable time ” necessary under existing conditions to complete the construction of the hospital building, paid the plaintiff in full, after the same was completed and received by him under the terms of the original contract and the extension of time granted by the Quartermaster-General in which to construct the same. Subsequently the sum of $4,860 was charged back to him by the Auditor of the Treasury for the War Department under a decision of the Comptroller of the Treasury as liquidated damages from January 1 to August 31,1904, a period of 243 days, at $20 per day, as provided by the original contract. Upon the request of the defendants’ representative in charge of the construction of the building, under the contract, plaintiff promptly refunded to said representative $4,860, and to recover the same he brings this suit.

It is true, as shown by the findings, the plaintiff refunded to the defendants said sum of money, so that said officer might be enabled to adjust his accounts with the Auditor of *353the Treasury for the War Department, it being agreed between them, however, that the payment of the money should not prejudice his right to recover the same from the defendants. He therefore maintains that by so doing he surrendered none of his rights to recover the money so paid. On the other hand, defendants insist that, irrespective of the merits or equities of the controversy, there can be no recovery of said sum by the plaintiff, because said payment was voluntarily made by plaintiff, and inasmuch as neither mistake of law, fact, nor duress is alleged by him, such payment must be regarded as final and conclusive.

It seems from the findings of fact, that the refunding of the $4,860 by plaintiff was simply an intent to restore the *status quo*ante, and to leave the matter open for future adjustment by the officials of the Treasury Department, or by the courts should it be necessary to appeal to them for relief. The refunding was done at the request of the agent of the defendants; the plaintiff acquired no benefit from the transaction ; the defendants acquired the money without consideration and have in their treasury a fund which in equity and good conscience they should not retain. *(Carter*v. Riggs, 112 Iowa, 245; *Lyman*v. *Lauderbaugh,*75 Iowa, 481; *Juneau*v. *Stunkle,*40 Kans., 756; *Guynn*v. Guynn, 31 S. C., 482; *Putnam*v. *Dungan,*89 Cal., 231; *Stipp*v. *Johnston,*68 Ill., 176; and *Ellis*v. *Jacob,*17 N. Y. App. Div., 471.) The elements essential to a voluntary payment are clearly wanting.

For the reasons above set forth judgment is awarded for the plaintiff against the defendants for the sum of $4,860.