#### M. K. CATHELL ET AL. v. THE UNITED STATES.

[No. 30770.

Decided April 17, 1911.]

*On the Proofs.*

A contract for the repair of a vessel requires the approval of the Quartermaster General. It is not approved by him until some time after the period has begun in which the claimant was to be allowed to do the work. Consequently the work is not finished within the nominal contract period. The defendants’ officer chartered another vessel and charged the contractor with the cost of it during the period of delay.

I. It has been decided repeatedly that a contract providing for the approval of the superior officer is not a valid subsisting agreement until approved. Neither the contractor nor the defendants incur liabilities until it is approved.

II. In such a case where the delay has been caused by the defendants the contractor is bound only to perform within reasonable time and is not responsible for cost incurred by the defendants during the period of delay.

*The Reporters'*statement of the case:

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

I. M. K. Cathell, E. V. Cathell, and Edw. K. Stembridge, copartners, doing business under the firm name of Cathell Bros. & Co., at Baltimore, in the State of Maryland, are citizens of the United States.

II. The claimants executed with a district quartermaster, subject to the approval of the Quartermaster General, United States Army, a contract and two supplemental agreements, dated, respectively, August 20, September 26, and October 3, 1908, for certain, specified, repairs to the steamer *Sprigg*Carroll, as set forth in the petition.

III. On September 25 and October 2, 1908, the following telegrams were sent to the district quartermaster:

“ September 25, 1908.

“ Disteict Quartermaster,

*“ Port*Howard, *Md.:*

*“*Opinion this office extra work authorized steamer *Carroll*should be completed in five extra working days allowed. Extension to October sixth approved, if found absolutely neces*369sary. Keport by mail in what way work held up by Mr. Anthony.

“ Aleshire,

“ *Quartermaster General.”*

“ October 2, 1908.

“ Quartermaster,

*“Fort Howard, Md.:*

“Authority granted expenditure thirty-five dollars for installation new bolts around rudder post, steamer *Carroll,*as requested yours to-day.

“Aleshire,

“ *Quartermaster*General.”

On September 22,1908, a letter forwarded from the Quartermaster General’s Office notified the district quartermaster that the supplementary agreement covering extra work and an extension of time should be prepared at once and submitted to the Quartermaster General for approval.

On October 7, 1908, claimants were notified that the defendants had hired a substitute boat in place of the *8frigg OarroTl*at the rate of $45 per day, and that the total cost of such hire after October 6, 1908, would be deducted from the total amount due them for repairs, to which claimants duly protested.

IV. On October 10, 1908, prior to the approval of the Quartermaster General of the tentative supplemental agreement of September 26, the claimants duly communicated to the defendant the withdrawal of their assent to the provision therein limiting the period for the completion of the repairs to October 6, and requested an extension of time to October 17, 1908, but subsequently signed the agreement.

The first contract was approved by the Quartermaster General December 11, 1908, and the supplemental agreement December 12, 1908.

Y. The claimants completed the repairs in accordance with the specifications contained in the contract and two supplemental agreements above mentioned, and the steamer, so repaired, was accepted by the defendant on October 17, 1908, which was a reasonable time in which to perform the work contracted for. The vessel was not delivered to the claim*370ants until 10 days after the time fixed in the contract for the commencement of the work.

VI. The defendant in making payment therefor, December 23,1908, deducted from the total contract price of $2,380 the sum of $435 as damages sustained by the defendant through the failure of the claimants to complete the repairs on or before October 6, 1908, the date designated in the supplemental agreement of September 26, 1908, for their completion.

The claimants duly protested against this deduction.

*Mr. Samuel B. Oranddll*for the claimant. *Mr. Adrian Sizer*was on the brief.

*Mr.*J. *Harwood Graves*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendant.

Booth, J.,

delivered the opinion of the court:

The claimants contracted with a district quartermaster of the Army to make certain repairs to a steam vessel. Subsequent to the commencement of the work a supplemental contract was executed for additional repairs to the same vessel, and an extension of time allowed for the completion of the same. Another contract embracing slight additional repairs was executed, involving no extension of time. The contracts expressly provided that they were all made subject to the approval of the Quartermaster General of the Army. The time limit provided for the execution of the work extended from August 20, 1908, the date of the first contract, to October 6, 1908, fixed in the supplemental agreement. The defendants did not deliver the vessel to the claimants until ten days after the time specified in the contract for the commencement of the work. The contractors performed the work and turned over the vessel to the proper authorities on October 17, 1908, eleven days later than the time agreed upon. The first contract was not approved by the Quartermaster General until December 11, 1908, and the supplemental agreement on December 12, 1908. The defendants deducted from the consideration of the *371contracts $435, the amount expended by them in the employment of a similar vessel from October 6, 1908, until October 17, 1908, the date of the completion of the repairs. This suit is to recover the amount so deducted.

It has been decided repeatedly by this court that a contract providing for the approval of a superior officer is not a valid subsisting agreement until such approval is made according to the contract. *(Snare & Triest Co.*v. *United States,*43 C. Cls. R., 364; *Ittner*v. *United*States, 43 C. Cls. R., 336; *Little Falls Knitting Mill Co.*v. *United States,*44 C. Cls. R., 1.) The Supreme Court in *Camden Iron Works*v. *United States*(181 U. S., 453) and *Monroe*v. *United States*(184 U. S., 524) affirmed this doctrine. Neither the contractor nor the defendants incurred liabilities under the contract until it was approved. The defendants were in no position to assert rights under a contract which they neglected to execute. The contract having expressly held in abeyance the date of its validity and lodged in a supervising official the final word of assent or dissent, made the approval thereof a condition precedent to its binding character. The defendants having failed to perform this condition until a time subsequent to the date fixed in the agreement for the performance thereof, waived this clause of the contract and imposed upon the contractors an obligation to complete the work within a reasonable time. The record discloses that they did complete the work within a reasonable time.

The court is not called upon in this case to pass upon an alleged approval of a contract by correspondence, etc., for the record shows that all the letters relied upon are merely authoritative instructions to a subordinate officer, issued prior to the execution of the contract and more in the nature of negotiations. The Quartermaster General evidently assented to this view, for his express approval indorsed upon the contract bears the dates mentioned in the findings. The Quartermaster General’s office expressly notified the district quartermaster at Fort Howard that “A supplementary *372agreement covering this extra work ancb extension of time should be prepared at once and submitted to this office for approval.” For some reason this was not done until almost a month later. The correspondence was not addressed to claimants herein, and there is nothing in the record to show that the same was brought to their attention. The notification directed to claimants of an intention to deduct the amount here sued for was followed by protests from the claimants. The correspondence lacks definiteness in the matter of approval, if otherwise admissible.

Judgment awarded claimants for $435. It is so ordered.