#### BALTIMORE & OHIO RAILROAD COMPANY v. THE UNITED STATES.1

[No. 104-A.

Decided October 24, 1921.]

*On Defendant's Demurrer.*

*Dent Act; agreement, express or implied.*— Where the facts stated in a petition do not constitute a promise, express or implied, on the part of the United States to pay for work, there can be no recovery under the Dent Act for the performance of such work.

*378*The Reporter’s*statement of the case:

*Mr. J. Robert*Anderson, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the demurrer.

*Mr. John F. McOarron*opposed. *Mr. George E. Hamilton*was on the briefs.

The following are the material allegations of the petition, to which defendant demurs:

That on or about December 15,1917, petitioner entered into an informal or implied agreement with an officer or agent acting under the authority, direction, or instruction of the Secretary of War of the United States on behalf of the United States for the payment by the United States to petitioner for extraordinary expenses incurred by petitioner in connection with the construction of the Marley Neck Branch Railroad of petitioner situated in the State of Maryland, and for the payment of the construction of a special detour track, trestle, and turnout in connection with the construction of said Marley Neck Branch Railroad to the site of the United States Ordnance Depot, Curtis Bay, Maryland, for transportation purposes. There is due and owing petitioner by the United States for the aforesaid construction covering cost of facilities, including labor, material, and equipment rental, the sum of $85,474.06.

Previous to the summer of 1917, surveys had been made and adopted by petitioner for a railroad known as the Marley Neck Branch Railroad to extend along the west side of Curtis Creek in the State of Maryland from a point on petitioner’s Curtis Bay Branch Railroad in said State of Maryland, near the Standard Guano Company’s plant in the city of Baltimore, Maryland, to Thomas Point, Maryland; thence crossing Curtis Creek in the State of Maryland at the aforesaid Thomas Point, Maryland, on a bridge and from said bridge thence in a southwesterly direction to the Magothy River in the State of Maryland. The said Marley Neck Branch Railroad as described aforesaid was projected for the purpose of developing the territory in the valley of Curtis Creek, Maryland, and along the west shore of the Patapsco River in the State of Maryland.

*379During the late summer of 1917 the War Department decided to construct and did construct an ordnance depot between Curtis Creek and Back Creek in Maryland. The line location of the Marley Neck Branch Railroad as heretofore set forth passed directly through the location of the said ordnance depot and the United States on this account insisted that the line of the said Marley Neck Branch Railroad be changed in order that it would pass along one of the sides of the proposed ordnance depot location and not directly through the center of said location. In order to comply with the request of the United States, petitioner decided to locate the crossing of its said Marley Neck Branch Railroad over the said Curtis Creek at Stahl’s Point, Maryland, instead of Thomas Point, Maryland. The change of plans involved extensive surveys and a very radical relocation of the line of the, said Marley Neck Branch Railroad on both sides of Curtis Creek, Maryland. The said surveys were not completed until some time in November, 1917. On September 25, 1917, petitioner contracted with the McLean Contracting Company, of Baltimore, on a unit-price basis, for the construction of the portion of the new line of railroad of the said Marley Neck Branch Railroad from a point on petitioner’s Curtis Bay Branch Railroad near the Standard Guano Company’s plant in the city of Baltimore to a point adjacent to the site of the said proposed ordnance depot between Curtis Creek and Back Creek in the State of Maryland. The surveys heretofore set forth with respect to the relocation of the said line of the Marley Neck Branch Railroad were still being made at the time of the letting of the contract by petitioner to the McLean Contracting Company and that the final location of the Marley Neck Branch Railroad in the vicinity of Curtis Creek Crossing, Maryland, was not definitely determined until a later date, the contractor, the McLean Contracting Company, was unable to begin its operations on the said Marley Neck Branch Railroad south of Cabin Branch, Maryland, for the aforesaid reasons until November 16,1917. The McLean Contracting Company, by the terms of the said contract with petitioner, were required to complete said contract on or before December 25, 1917, but by reason of the delay here*380tofore explained, for which they were not responsible, petitioner would have extended the time of the said McLean Contracting Company for completing the said contract to at least February 25, 1918, and the said construction having to be done in the winter months, through no fault of the said contractor, the McLean Contracting Company, petitioner would no doubt have had to extend the time to even a much later date than February 25, 1918. Early in December of 1911 it had become apparent to the officers of the War Department that the construction of the said Marley Neck Branch Railroad would be delayed to such an extent that the War Department’s operations at the ordnance depot, Curtis Bay, Maryland, would be seriously delayed. On December 15, 1911, and subsequently thereto, the officers of the War Department at Washington, D. C., and those at the said Curtis Bay Ordnance Depot insisted that the said Marley Neck Branch Railroad be completed at the earliest possible date. Under date of December 15, 1911, F. M. Gunby, major, Quartermaster R. C. of the United States Army, then stationed at Washington, D. C., wrote a letter to petitioner for the attention of its general superintendent, M. H. Cahill, at Baltimore, Maryland, as follows:

“ Confirming conversation with your chief clerk to-day, will state that we are exceedingly anxious for you to get your branch line now under construction extended to our Curtis Bay Ordnance Depot. Since the original plans were made, we have added to this layout two (2) very large warehouses, which will mean a great increase in the amount of freight to be handled through this terminal. It is very urgent that we have track facilities both for handling construction material and freight at the earliest possible moment. It seems to us from observation on the ground that our operations are going to be very seriously hampered by lack of track facilities unless your company is able to greatly increase progress being made on construction at this branch.

“ If you desire, I should be pleased to meet you on the ground and go over this matter at an early date.”

That the aforesaid letter of Major F. M. Gunby particularly emphasizes the construction of the said Marley Neck Branch Railroad for the urgent needs of the United States for the handling of construction material and freight *381to the ordnance depot at Curtis Bay, Maryland. This urgent communication of Major Gunby was referred by the said M. H. Cahill on December 20, 1917, to H. A. Lane, chief engineer of the Baltimore and Ohio Bailroad Company, and was by Mr. Lane referred for action on December 28,1917, to J. T. Wilson, district engineer of the Baltimore and Ohio B.ailroad Company at Baltimore, Maryland.

In order, therefore, to meet the urgent needs of the United States, as hereinbefore set forth, it became necessary for petitioner to cancel its said contract with the McLean Contracting Company for the construction of the said Marley Neck Branch Bailroad, as heretofore set forth, on the basis of unit price and contract with another contractor upon a cost-plus basis in order to expedite the construction of the said Marley Neck Branch Bailroad for the urgent needs of the United States.

Petitioner on January 5,1918, therefore determined to cancel the unit-price contract it had with the McLean Contracting Company for the construction of the said Marley Neck Branch Bailroad, and did cancel said contract. On January 5, 1918, a contract was entered into between petitioner and the Empire Engineering Company to complete the work of construction of the.said Marley Neck Branch Bailroad on a cost-plus basis and said Empire Engineering Company commenced work on said construction on January 6, 1918, and continuously pursued the work both day and night from the said January 6, 1918, until the completion of the said construction in the latter part of February, 1918. Petitioner, in order to abrogate its said contract for the construction of the said Marley Neck Branch Bailroad with the McLean Contracting Company, was required to pay the said McLean Contracting Company for all the construction work that had been done by the said McLean Contracting Company to January 6, 1918, on a cost-plus basis, and no payment was made to the said McLean Contracting Company on the unit price as set out in the original contract between petitioner and the said McLean Contracting Company heretofore referred to.

In addition to the letter of Major Gunby, heretofore set forth, Major Balph F. Proctor, of the United States'Army, *382constructing quartermaster at Camp Meade, Maryland, and the United States Ordnance Depot at Curtis Bay, Maryland, stated to George S. Harlan, chief 'clerk to A. W. Thompson, vice president of the Baltimore and Ohio Railroad Company, on or about November 6, 1917, that the War Department desired to have the Marley Neck Branch Railroad constructed to the ordnance depot at Curtis Bay and, in addition to the said request, there were a number of conferences between the said Major Ralph F. Proctor and the said George S. Harlan relating to ways and means to have the said Marley Neck Branch Railroad constructed as quickly as possible, and the said George S. Harlan did urge the engineering department of petitioner to speed up the work of construction in every possible way so as to render every assistance to the United States during the emergency that then existed. That Major Fred A. Wood, of the United States Army, constructing quartermaster at the ordnance depot at Curtis Bay, Maryland, conferred a number of times with J. T. Wilson, consulting engineer of petitioner, in order to expedite the construction of the said Marley Neck Branch Railroad. That Smith,' Hauser, and Mclsaac, contractors for the United States at the ordnance depot, Curtis Bay, Maryland, acting through F. J. Mclsaac, of said firm, conferred and cooperated with officers of the War Department in assisting to find ways and means to expedite the construction of the said Marley Neck Branch Railroad in order to obtain material for the construction of the said ordnance depot at Curtis Bay, Maryland, as it was difficult to have the material brought to the said ordnance depot unless it was transported over the said Marley Neck Branch Railroad.

Petitioner contends that it should be compensated for the excess cost of the construction of the entire Marley Neck Branch Railroad, in excess of the cost of the said road at the original unit price as agreed to by petitioner with the McLean Contracting Company and that the extraordinary expenses incurred in the construction of hurrying the completion of said Marley Neck Branch Railroad were such from which petitioner derived no benefit and will not derive any benefit. The extraordinary expenses were made on urgent demand of the War Department and were solely for the benefit of said War Department.

*383Petitioner presented its claim in tbe amount of $9,058.55 on June 27, 1919, to the War Department under the provisions of the act of March 2, 1919, 40 Stat. L., 1272. Said claim was amended on April 2, 1920, and the amount increased to $85,474.06. On June 4, 1920, the Claims Board, Transportation Service, War Department, denied relief to petitioner. Appeal was taken from the said decision of the Claims Board, Transportation Service, to the Appeal Section, War Department, and a hearing was had before said Appeal Section on July 16, 1920. Under date of August 12, 1920, said Appeal Section denied relief to your petitioner, but in its decision said:

“ While the construction in question inured to the benefit of the War Department by enabling it to get certain of its materials into the ordnance supply depot at Curtis Bay, yet that was not the sole object of the construction of this track.”

Under date of August 20, 1920, petitioner appealed from the decision of the said Appeal Section to the Secretary of War, and under date of November 24, 1920, that official denied relief.

1

 Appealed.

Hat, Judge,

delivered the opinion of the court:

This is a petition brought by the Baltimore & Ohio Bail-road Company to recover from the United States the sum of $85,474.06. To this petition of the plaintiff the defendant has demurred.

The plaintiff alleges in its petition that prior to November 12, 1918, and on or about December 15, 1917, it entered into an informal or implied agreement with an officer acting under the authority, direction, or instruction of the Secretary of War on behalf of the United States for the payment by the United States to the petitioner for extraordinary expenses incurred by the petitioner in connection with the construction of the Marley Neck Branch Bailroad of the petitioner situated in the State of Maryland, and for the payment of the construction of a special detour track, trestle, and turnout in connection with said construction to the site of the United States Ordnance Depot, Curtis Bay, for transportation purposes, and that there is due and owing to the petitioner for the aforesaid construction the sum of $85,474.06.

*384Not relying on the aforesaid allegation, the petitioner proceeds to set out in its petition the facts from which it deduces that an informal or implied agreement was entered into by the United States for the payment of the sum of money which it demands.

It is not necessary to set out in this opinion these facts which are recited in full in the petition. Suffice it to say that after a careful examination of the facts relied upon by the petitioner, the court is of opinion that no agreement can be inferred from them which obligates the United States to pay the money claimed to be due. The facts alleged in the petition do not disclose any agreement, express or implied, between the petitioner and the United States, and therefore this court can not give relief either under the Dent or Tucker Acts. In order to recover in this court under either act there must be a promise to pay, or the implication of a promise to pay. The demurrer of the defendant is therefore sustained and the petition of the plaintiff is dismissed.

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