#### WILLIAM TOD WILCOX v. THE UNITED STATES.

[No. 34582.

Decided April 18, 1921.]

*On the Proofs.*

*Contract; supplemental agreement; extra services.*— Tlie plaintiff enters into a contract with the Government to act as agent in the purchase of certain lands for the United States, and to perform certain specified services in connection therewith *225lor tlie sum of $6,000. After the lands have been purchased by the Government and all the services have been rendered, a supplemental agreement is entered into between the same parties by which the compensation is increased to $10,000. *Held,*that the supplemental agreement is invalid, but that the value of the services not contemplated by the original contract may be recovered as for extra work upon an implied contract.

*The Reporter’s*statement of the case:

*Mr. Ralph O. Willguss*for the plaintiff. *Mr. Stuart G. Gibboney*was on the briefs.

*Mr. Fred K.*Dyar, with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendant.

The supplemental agreement between Col. Abbot and the claimant was without consideration to the Government; consequently claimant was not entitled to the extra compensation received thereunder for work done under the terms of the contract of September 30, 1916. The payment of the extra $4,000 was therefore unauthorized.

The claimant contends that the work which he did under the supplemental agreement of May 11, 1917, was neither expressly nor impliedly a part of the original contract, and cites cases which he claims are to the effect that doing or promising something which was not expressly or impliedly a part of the subsisting contract or not contemplated by the parties as falling within the provisions of the contract is good and sufficient consideration for a new agreement between the parties. The claimant asserts also that the question whether or not there was a good and sufficient consideration for the supplemental contract is not in point nor a determination thereof necessaiy. On the contrary, the justification for the action of the auditor and consequently the determination of this suit is based primarily upon this point. An examination of the contract of September 30,1916, shows that, in clear and unmistakable terms, the claimant bound himself to render all possible service towards the securing by the United States of title to the land at Rockaway Point.

If it is ever necessary to cite authorities in support of the principle that the promise to do or the actual doing of that which the promisor is already bound by law to do is not a sufficient consideration to support another contract in favor *226of the promisor, there is no such need here, for the contract' of September 30,1916, had been fully performed and the supplemental contract of May 11, 1917, was a promise to pay the claimant an additional amount for service *already rendered.*

If plaintiff had refused to continue and then a new contract had been entered into, the question before the court would have been different. But the contract which it is here alleged was valid was made *after performance*by claimant of the service for which the alleged contract provided additional compensation.

In that fact and also in the fact that under the contract of September 30, 1916, the claimant bound himself *to the fullest extent of his*ability, lies the distinction between the present case and those cited by claimant.

Claimant having been overpaid in the amount of $4,000 under his contract of September 30, 1916, that amount was properly withheld from his payment under the subsequent allowance for work later performed by the Government. The action of the auditor, upheld by the comptroller, was proper and legal and is sustained by the decisions of the courts. Claimant contends that the payment to him under the supplemental contract without fraud and under no mistake of fact, constituted a final settlement of all matters connected with that contract and no deduction on account of that contract can be made from the amount due to the claimant for his work done under the subsequent contract. It has already been shown that the payment was not authorized since the so-called supplemental contract was without consideration. With that in mind it will be seen that none of the cases cited by the claimant in support of his contention are in point. In all of the claimant’s cited cases payment under the first contract was *rightfully,*made and those cases merely hold that the amounts so paid can not be deducted from subsequent contracts wherein money was rightfully due. In the cited cases there was an un-liquidated amount due and it was held that settlement made in good faith by both parties could not later be questioned by the Government. Not one of these cases is in point with the instant case, which falls within the class of cases of which the follo.wing are representative: *McEnight*v. *United*
      *227
      *States,*13 C. Cls., 272 ; 98 U. S., 179; *Cosgrove*v. *United States,*31 C. Cls., 332; *United States*v. *Burchard,*125 TJ. S., 176; *United States*v. Saunders, 79 Fed., 407; *Bonnafon*v. *United States,*14 C. Cls., 484; *Gratiot*v. *United States,*40 'U. S., 336; *United States*v. *D'Olier Eng. Co.,*215 Fed., 209; *Wisconsin Centrad B. R.*v. *United States,*164 U. S., 190; *Sutton, Trustee*v. *United*States, 55 C. Cls., 193.

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

I. The plaintiff is a citizen of the United States and has at all times borne true faith and allegiance to the Government of the United States and has in no way aided or abetted or given encouragement to rebellion against the said Government.

II. Pursuant to employment by the United States through duly constituted authority the plaintiff, in 1917, rendered certain services in procuring leases for certain camp sites and for parts of certain buildings for which services he duly filed his claim with the Auditor for the War Department, which the auditor allowed in the full amount of the claim, viz, $9,128.64, of which allowance the plaintiff was notified, in usual form, on August 14, 1918, but in the settlement certificate issued by the auditor for said sum of $9,128.64 was the following direction:

“To the Treasurer of the United States, four thousand dollars of the total amount allowed, to be deposited to the credit of the account of Brigadier General Frederic Y. Abbot, Engineers, National Army (24 Comp. 407) under the appropriation: Sites for Fortifications (Purchase of Land at Eockaway Beach, New York).”

The United States thereupon paid the plaintiff the sum of $5,128.64, and credited Brigadier General Abbot, on his account with the United States of accountable funds advanced to him, with the sum of $4,000, and plaintiff has not been paid on his account so allowed any sum other than said sum of $5,128.64.

III. In 1916 the United States desiring to acquire a tract of land of about 165 acres on Eockaway Point, New York, for fortification and other proper governmental purpose, *228employed the plaintiff by written contract, dated September 30, 1916, to render certain services in connection therewith and for a stated compensation, all as set out in said contract, which was as follows:

“These articles of agreement, entered into this 30th day of September, nineteen hundred sixteen, between Colonel Frederic V. Abbot, Corps of' Engineers, United States Army, representing the United States of America, of the first part, and William Tod Wilcox, of New York City, in the county of New York, State of New York, hereinafter designated as the party of the second part,

“ Witnesseth that the said parties do hereby convenant and agree, to and with each other, as follows:

“Article 1. The party of the second part, being commissioned by the party of tlie first part to act as agent in acquiring for the United States certain lands on Rockaway Point, adjacent to the United States Coast Guard Reservation, agrees and binds himself to the fullest extent of his ability to examine titles and to conduct negotiations that will enable the party of the first part to purchase such lands at the lowest possible, price.

“Article 2. The party of the second part further covenants and agrees that, in the event of his failing to negotiate the purchase of the said designated lands at a price deemed satisfactory by the party of the first part, or, in the event of the vendor’s failure to show to'the satisfaction of the party of the first part and of the party of the second part that the vendor holds clear title to all the lands in question, he (the party of the second part) will, in any condemnation proceedings that may be instituted, act as expert for the party of the first part, both personally and in obtaining for the party of the first part such other expert testimony as may be required to establish the true market value of the said designated lands.

“Article 3. Compensation for the services of such necessary additional experts will be paid by the United States, and will not be charged against the compensation, specified in article 5, to be paid to the party of the second part.

“Article 4. In connection with the acquiring of the above-designated lands by the United States, the party of the second part further covenants and agrees to refuse any compensation from the vendors, and to make clear to them that no such compensation will be accepted, even if offered.

“ Article 5. In full compensation for the services above set forth, the party of the first part agrees to pay, and the *229party of tbe second part agrees to accept, the sum of six thousand (6,000) dollars, to be paid as follows:

*“(a)*If the party of the second part succeeds in negotiating a price deemed satisfactory to the party of the first part, the full sum of six thousand (6,000) dollars will be paid to the party of the second part, on completion of his negotiations with the vendors; provided, however, that the vendors have shown clear title as indicated in article 2.

“(2>) If the party of the second part does not succeed in negotiating a price deemed satisfactory to the party of the first part; or, if the vendors do not show clear title as indicated in article 2; or, if condemnation proceedings are instituted to clear title or to determine the purchase price of the lands, three thousand (3,000) dollars will be paid to the party of the second part when condemnation proceedings are institutedj and the remaining three thousand (3,000) dollars will be paid him upon completion of the condemnation proceedings.

“Aetigle 6. This contract shall be subject to the approval of the Chief of Engineers, U. S. Army; and such approval, when given, shall relate back to, and be operative from, the date of the execution of the contract.

“ IN witNbss wheeeoe the parties aforesaid have hereunto placed their signatures the date first hereinbefore written.

“ Witnesses:

“ E. D. Ardert as to Frederic V. Abbot,

“ Colonel, *Corps of Engineers.*

“ Milton L’Ecluse as to William Tod Wilcox.

“(Executed in triplicate.)

“Approved October 5, 1916.

“ W. M. Black,

*“Brig. Gen., Chief of*Engineers, 27. *8. Army?*

IY. Negotiations for the purchase of said land had theretofore been conducted by officers of the United States, but had not reached a satisfactory conclusion. Ownership of the lands which it was desired to acquire was claimed by the Rockaway Pacific Company, with which company the plaintiff negotiated an option to purchase at a satisfactory price, but complications arose by reason of the assertion by the city of New York of title to the portion of the lands between high and low water and it was deemed necessary, in order to convey a clear title, to procure an act of the Legislature of the State of New York, vesting, for a consideration to be paid to the city and the State, the title to the disputed *230lands in the owners of the uplands, the corporation named. At the request of officers of the United States in authority the plaintiff devoted himself for a considerable time to the procuring of the passage of this legislation, but controversies arose resulting in charges and countercharges as between the city administration and members of the legislature, during which the governor sent a special message urging the passage of the bill, but it finally, after more than three months of effort, failed.

i Thereupon the plaintiff, at all times acting at the request of defendant’s officers, took the matter up directly with the governor, who ordered the condemnation of the land, the United States agreeing to pay the sum agreed upon in the negotiations with the owners, upon conveyance by the State of New York to the United States, and upon the consummation of condemnation proceedings the deed was executed and the land vested in the United States. Plaintiff procured the deed from the State of New York, brought it to Washington for examination by the Attorney General, procured a Treasury check for $705,000.00, the purchase price, which he delivered to the State of New York upon proper execution of the deed, which he then, on May 3, 1917, had duly recorded.

The services rendered by the plaintiff in the consummation of the purchase were of a different character, more burdensome to him and more extended than anticipated by the parties when the contract was. made and the price finally paid by the United States for the land was approximately $150,000.00 less than any price previously obtained by United States officers. The attempted procurement of necessary legislation and the subsequent condemnation by direction of the governor were wholly unanticipated when the contract was made. The fee for service as agent in purchase of this real estate under the practice prevailing for many years in that locality and under the rules of the Board of Brokers would have been $35,250.00.

Y. Thereafter, on May 2, 1917, Colonel Abbot, the officer in charge, who was the same officer designated as Brigadier General, National Army, wrote the Chief of Engineers reporting the completion of the negotiations for the acquisition *231of this land, stating that the conditions were different from those anticipated when the contract was made, reciting the character of the services rendered by the plaintiff, his devotion thereto to the neglect of his other business, the acquisition of the property at a very considerably lower price than he himself had been able to secure, recommending that he should be paid $10,000.00, which sum he regarded as inadequate, and that to that end a supplemental contract be entered into. Thereafter, on May 11,1917, approved by the Chief of Engineers May 14th, and by the Assistant Secretary of War May 16th, the following contract was entered into:

“ Whereas on the 30th day of September, 1916, a contract was entered into between Colonel Frederic V. Abbot. Corps of Engineers, U. S. Army, who, as well as his legally appointed successor, is hereinafter designated as the contracting officer, representing the United States of America, of the first part, and William Tod Wilcox, of New York City, in the county of New York, State of New York, hereinafter designated as the party of the second part, for acting as agent in acquiring for the United States certain lands on Bocka-way Point, and whereas it was found advantageous and in the best interest of the United States to modify the said contract by a supplemental agreement dated March 6, 1917.

“And whereas it is found advantageous and in the best interest of the United States to modify further the said contract as hereinafter specified for the following reasons:

“At the time of entering into the original agreement it was not anticipated that the negotiations would require the party of the second part to sacrifice so much of his private business in order to carry out the work contemplated under the contract. With the necessity for bringing together and harmonizing the interests of the city, the Bockaway Pacific Corporation, and the United States, the party of the second part’s work was considerably augmented and extended altogether beyond the scope of the kind and amount of services had in mind by both parties when the contract was drawn. When the State of New York entered into the already complex negotiations, with a resulting wrangle at Albany and newspaper notoriety and personal abuse in the debates, not only was the period of negotiations further extended, but situations very unpleasant to the party of the second part developed. The consideration first recommended by the contracting officer was $10,000, but as embodied in the contract this amount was reduced to $6,000. On a percentage basis in a commercial transaction the compensation *232that would have been due the party of the second part at the comercial rate under the regulations as to real estate commissions adopted Nov. 14, 1916, by the Real Estate Board of New York would have been $35,250. The conditions o'f his contract with the United States expressly precluded his accepting from the vendor any compensation at all, the amount received from the United States being his full compensation. The best price originally negotiated by the contracting officer without the assistance of the party of the second part was about $5,200 an acre for about 165 acres. The price actually paid by the United States was approximately $4,300 an acre, which price was based directly on figures obtained through the negotiations of the party of the second part. The saving to the United States is thus apparent.

“Now, therefore, the said contract is, by this supplemental agreement between Colonel Frederic V. Abbot, Corps of Engineers, U. S. Army, and the said party, on this 11 day .of May, 1917, hereby modified in the following particulars, but in no others:

“ In full compensation for services in connection with the negotiations and purchase of lands to constitute a military reservation at Rockaway Beach, the party of the first part agrees to pay, and the party of the second part agrees to accept, the sum of ten thousand ($10,000) dollars, to be paid when the deed to the land has been delivered to the party of the first part and has been recorded in the office of the Secretary of State of the State of New York and filed in the office of the county clerk, Queens County, New York.

“ The terms of this supplemental agreement shall in no wise invalidate the supplemental agreement of March 6,1917.

“ This supplemental agreement shall be subject to the appi’oval of the Chief of Engineers, U. S. Army, and the Secretary of War.

“ In witness whereof the parties aforesaid have hereunto placed their signatures at the time of execution of this agreement.

“ Witnesses:

“ E. D. Ardert as to Frederick Y. Abbot,

*“ Colonel, Corps of Engineers.*

“ E. D. Ardert as to William Tod Wilcox.

“ (Executed in triplicate.)

“Approved: May 14, 1917.

“ W. M. Black,

*“Brig. Gen., Chief of Engineers, U.-S. Army.*

“Approved: May 16, 1917.

“ Wm. M. INGRAHAM,

*“Assistant Secretary of War.”*

*233VI. Thereafter- Colonel (or Brigadier General) Abbot pursuant to the provisions of the contract in the next' preceding finding set out, and in his capacity as a disbursing officer of the Army, paid to the plaintiff the sum of $10,000.00.

VII. Upon submission of his disbursing accounts to the Auditor for the War Department for settlement, the item of $10,000.00 paid the plaintiff being included therein, supported by voucher in the usual form, which recited the service and referred both to the original and the supplemental contracts, the auditor allowed credit for $6,000.00 of the amount represented by said voucher and disallowed $4,000.00 thereof on the ground that the original contract covered all the services rendered by the plaintiff, and that the supplemental contract was illegal and void, from which decision of the auditor Brigadier General Abbot appealed to the Comptroller of the Treasury, who affirmed the decision of the auditor for reasons stated in his opinion found in 24th Comptroller’s Decisions at page 407.

This sum of $4,000.00 disallowed in the accounts of Brigadier General Abbot as an unauthorized payment to the plaintiff is the $4,000.00 which the auditor, in the certificate referred to in Finding II, directed should be withheld from the amount therein allowed plaintiff and deposited to the credit of Brigadier General Abbot.

VIII. On December 10, 1917, before the deduction and credit referred to in the last preceding finding, the Secretary of War transmitted to Congress a proposed provision to be inserted in a pending bill designed to relieve Brigadier General Abbot from the disallowance in his accounts of said $4,000.00, and in this letter, in which he referred to correspondence transmitted therewith for the detailed fact, he said after referring to the action of the accounting officers, “ It is the opinion of this office, however, that the work and responsibilities handled by Mr. Wilcox in the performance of this duty entitled him to the increased compensation provided for by the supplemental agreement.”

*DowNeyJudge,*

delivered the opinion of the court:

The plaintiff sues for $4,000.00 of $9,128.64, the amount of a claim filed by him and allowed by the auditor, said sum of $4,000.00 having been withheld by direction of the auditor *234contained in his certificate of allowance and by said direction credited to the disbursing account of Brigadier General Frederic Y. Abbot to reimburse the latter on account of a disallowance in his accounts by reason of an alleged overpayment theretofore made to the plaintiff. There is no question made as to the fact that for the service involved in this claim the plaintiff was entitled to said sum of $9,128.64.

Previous to this transaction the plaintiff had been employed by the United States, through duly authorized officers and by a contract in writing, to purchase for the Government and procure title to a certain desired tract of land much needed for fortification and other purposes, and in this contract his compensation was fixed at $6,000.00. Just after the consummation of the purchase the officer in charge reported the facts with reference to the matter and upon the ground that the plaintiff had, by reason of complications arising, performed, at the request of Government officers in charge, unanticipated and additional services which were very laborious to him as well as valuable to the Government on account of which it was his opinion that the plaintiff should be paid additional compensation, recommended that a supplemental contract should be entered into fixing his compensation at $10,000.00 instead of $6,000.00 as provided in the original contract. This recommendation was approved, 'a supplemental contract so providing was executed, approved by the Chief of Engineers and the Assistant Secretary of War and thereupon General Abbot, in his capacity as a disbursing officer, paid the plaintiff $10,000. When his accounts were submitted in due course to the auditor for examination the "auditor refused to allow him credit for more than $6,000.00 of this amount on the ground that all services required were included in the original contract and that the supplemental contract was void, and this disallowance as to the $4,000.00 was, on appeal, affirmed by the comptroller. It was to reimburse General Abbot on. account of this disallowance that the sum of $4,000.00 was withheld from the account allowed the plaintiff on his subsequent claim. The two contracts and other material facts are to be found in the findings.

*235The petition upon its face is simply an action for $4,000.00 of an allowed account for services which was not paid. The other features of the case are to be regarded as the defense. In the submission of the case two questions are presented. First, the validity of the supplemental contract, and, second, the legality of the deduction from a subsequently allowed account, by direction of the auditor, of the $4,000.00 determined by him to have been illegally paid.

If, as to the first proposition, the transaction is to be strictly construed as presented and the supplemental contract relied upon as the authority for the payment on the ground that it created a legal liability, the conclusion, it would seem, must be adverse to the contention. Under the circumstances it is apparent that at an earlier stage of the matter a supplemental contract might well have been made restating the compensation in the light of the additional services then known to be required without which it might be assumed that the plaintiff would elect to abandon so laborious a task for inadequate compensation, but the supplemental contract was made after the consummation of the purchase and the completion of the service incident thereto and, as a contract, attempting by its terms to create a legal obligation, it must of necessity be held to be invalid.

But we do not find it necessary to rest the case and its determination on the two propositions thus presented. If, growing out of the facts which are before the court, both those averred in the petition and those presented by way of defense, there appears a substantial right on the part of the plaintiff to a recovery against the defendant it is entirely within the power of this court to adjudicate that right and express it conclusion by its judgment even though the conclusion be not predicated on the particular theory presented upon the trial of the case. The plaintiff, in form, seeks recovery of $4,000.00 conceded to be due and allowed to him but not paid. The defendant does not question the facts averred as to that particular account but says in substance that the plaintiff was overpaid on a former account and that upon both transactions there is nothing due him. The court not only has the power to determine whether upon these transactions as presented there is anything due the plaintiff, but it is its duty to determine it here rather than so to pro*236ceed as to possibly multiply actions. The plaintiff’s petition is board enough, when taken in connection with the matters alleged in defense, to present the whole transaction and justify the adjudication of any right involved, the defendant is fully informed as to the claim it is called upon to defend, and if, upon consideration of the whole transaction, upon any pertinent theory, any favorable result should accrue therefrom to the plaintiff, the defendant would be afforded protection under the rule of *res ad'judicata*against any attempt to reassert the claim on any other theory.

The action taken by the accounting officers in this matter is not understood as reflecting in any manner on the good faith of all concerned, and there is no holding that $10,-000.00 was an excessive payment for the services rendered by the plaintiff. The two contracts were before the auditor as affording the basis for the payment, and, viewed as a claim predicated upon express contract, he simply held that all services necessary in the accomplishing of the desired result were covered by the original contract and that the supplemental contract was illegal and void. As to the latter holding we have already suggested a concurrence with the views of the auditor. As to the first proposition it may perhaps be admitted that upon a technical construction, predicated solely on the view that the original contract provided for the accomplishment of a certain result, which, in that view of it, was what the plaintiff did accomplish, he was again right, but there is a broader view of the matter, involving all the facts in the case, which justifies consideration.

While the plaintiff accomplished only that which he set out to accomplish under his original contract, there can be no doubt about the fact that in the accomplishment of that object he encountered conditions wholly unanticipated by either party, and because thereof rendered, at the request of officers of the United States in charge of the matter, and hence presumed to be duly authorized, valuable, laborious, and prolonged services which were clearly not within the contemplation of either party when the contract was made. It is said that whatever the difficulties, whether anticipated or not, they devolved upon him under his contract.

*237However, it appears that after the plaintiff bad negotiated an option for the purchase of the real estate complications arose by reason of claims asserted by the city of New York to lands between low and high water, that legislation, was deemed necessary, and that during the pendency thereof further unanticipated complications arose by reason of criminations and recriminations between city officials and certain members of the legislature during which the governor’s influence was sought and a special message sent urging the passage of the bill, but after efforts extending over a period of more than three months the bill failed. What the course of the plaintiff might have been when, after securing the option, this situation arose we are not informed. He might have abandoned the project as requiring a service for which the compensation provided was not adequate. He might have allowed the legislation to take its own course, satisfied to reap the result if it finally passed. He might, since he demonstrated during the pendency of this matter that he was a very faithful servant, have followed up the legislation of his own accord. But the fact is that the legislative situation was an entirely unanticipated one, and he went to Albany to look after it at the special request of those in authority for-the United States. He put in much time there presenting the importance of the situation to members of the legislature and to the governor, made many trips between Albany and New York in that^behalf, permitted his own business to suffer in consequence thereof, and when the legislation failed took up with the governor the condemnation plan, rendered service in connection therewith, and as a final result obtained title for the Government at the price stipulated in the option he had secured before these complications arose.

From all the facts of the case it seems to us that he was in the attitude of having performed additional service, “ extra work ” it would be called in some classes of cases, not within the contemplation of the parties when the contract was made, at the special instance and request of authorized representatives of the United States, and that out of all the facts grew an implied contract to pay whatever the extra services thus rendered were reasonably worth.

*238The officer in charge and his superiors thought this could be accomplished by making a supplemental contract, a procedure which, perhaps the plaintiff is entitled to have said was without his solicitation, and they proceeded by that method to accomplish what all in authority having to do with the matter, including the Secretary of War, approved as a mere "matter of justice, resulting even then, in the opinion of the contracting officer, in inadequate compensation. But while the method adopted can not be given approval, it seems to us that if those who, within their authority, first fixed his compensation, had no power to fix and pay the compensation to which they all regarded the plaintiff as entitled for the additional services requested of him, he had a right of action in this court for compensation for such additional services as upon an implied contract. That being the case, there is no reason, all the facts being before us, why we may not in this action award such relief as those facts justify without necessity for recourse to any different form of action. The facts are all with the plaintiff. No one having to do with the transaction has questioned the value of his services or the circumstances under which they were rendered. The objection raised was a matter of form.

This conclusion obviates the necessity for the consideration of any other question presented.

We therefore conclude that the plaintiff is entitled to recover and judgment is directed in his favor for $4,000.00.

Graham, *Judge;*Booth, Judge, and Campbell, *Chief*Justice, concur.

Hats, Judge, concurs in the result.