#### FORREST P. TAYEOE v. THE UNITED STATES.1

[No. 309-A.

Decided July 2, 1923.]

*On the Proofs.*

*Contract; discretion of officer m charge.*— Where plaintiff enters into a contract with the United States, through a lieutenant commander in the Navy, to furnish teams for use on certain Government work, “ as may be required,” the times and the purposes for which said teams are to be employed rests in the discretion of the Government officer in charge of the work.

*The Reporter's*statement of the case:

*Mr. Harry Peyton*for the plaintiff.

*Mr. Barrett F. Brown,*with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant. '

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

I. On the 1st day of July, 1919, the plaintiff, who was then a citizen of the United States and a resident of Chatterton, King George County, Va., entered into a contract with the United States, represented by G. H. Douglas, a lieutenant commander of the Navy, for the furnishing during the fiscal

*471year beginning July 1, 1919, and ending June 30, 1920, of double teams for use at the lower station of the Naval Proving Ground, Dahlgren, Va., “ as may be required.” The applicable provisions of the contract are set out in plaintiff’s petition as a part thereof and are made a part hereof by reference. The plaintiff furnished bond as required for the faithful performance of the contract.

II. Previous to July 1, 1919, the plaintiff was furnishing four teams for use upon this work, and upon the execution of this contract he purchased an additional team, with necessary equipment, and on July 1, 1919, reported to the proper officer at the proving ground with five teams ready for service. The contract was - construed by the plaintiff and by the officer in charge of the work at the proving ground as requiring the furnishing by the plaintiff of five teams as might be required.

III. On the 1st day of July, 1919, the four of plaintiff’s teams which had been theretofore employed upon the work were assigned to duty, but the fifth team was never employed. The reason assigned therefor by the officer in charge of the work was that it was not needed.

Plaintiff protested against its nonemployment.

The four teams were kept employed upon the work until on or about the 1st of November, when two thereof were laid off and the remaining two were kept employed most of the time until the last of December. Thereafter none of plaintiff’s teams were employed upon the work.

Previous to the beginning of this contract the plaintiff had established a station for the care of his teams and drivers at a point near the proving ground and at the beginning of this contract all five teams were maintained at this station and were held ready for service. About the 1st of January, 1920, the plaintiff was notified by the officer in charge of the work that his teams would not be further needed thereon and they were removed to plaintiff’s farm some 12 miles distant.

At one time after the removal of the teams to plaintiff’s farm a small piece of emergency work required more teams than those then in service, and the officer in charge wrote the plaintiff to report with two teams, but plaintiff, by rea*472son of not receiving the notice until after the time fixed for the doing of this work, did not report with his teams, and other teams were employed for this service. It consisted of the use of two teams for three or four days, and when the plaintiff afterwards learned of the circumstances he expressed satisfaction that he had not been required to bring his teams such a distance for such a short period of employment.

IV. On the occasions above referred to when plaintiff’s teams were first in part and afterwards entirely laid off from work, plaintiff protested to the officer in charge and requested to be relieved from his contract, but he was informed by the officer in charge that he, the officer, had not made the contract and had no authority to relieve him therefrom, but plaintiff was informed as to what officer might act in that respect. The plaintiff if relieved from his contract might have employed his teams upon road work which was offered him, but which he at that time declined to accept on the ground that he was under contract with the United States and might at any time be called upon to furnish teams under that contract.

It is not shown whether the plaintiff made other use of his teams between the time they were laid off from the work at the proving ground and the expiration of his contract.

Teams belonging to the United States were employed upon this work at and before the time of the execution of plaintiff’s contract, and were continued upon the work as needed after the release of plaintiff’s teams thereform. The United States also during the period of plaintiff’s contract employed upon some portions of the work, particularly in road building, trucks owned by the United States. There were also contracts with other individuals for the furnishing of teams *to*be used upon this work and some of them were retained upon the work after plaintiff’s teams were released therefrom. In the' laying off of plaintiff’s teams and the retention of other teams on the work the officer in charge followed what he denominated the “ seniority ” rule, and laid off first the teams last employed.

V. The plan and extent of the work to be done at the proving ground upon which teams were used, and its natural *473sequence, does not appear from the record and the court can not determine whether the work to be done required the use of plaintiff’s teams during any or all of the period of the lay off. It appears from the record that work of this character was not completed at the end of the fiscal year covered by plaintiff’s contract. In the judgment of the officer in charge of the work the services of plaintiff’s teams when laid off were not required.

VI. In plaintiff’s petition there is set out as a part thereof a schedule showing the number of days in each month of the fiscal year of the contract on which a part or all of plaintiff’s teams were not employed, and said schedule is by reference made a part of this finding.

VII. The expense to plaintiff for drivers of teams was $2 per day and the cost of their board while in camp was $0.50 per day. It does not appear what portion of the time, if any, the plaintiff paid for the services of drivers when the teams were not in use. The cost to the plaintiff of feeding his teams was $1.50 per day per team. While his teams and drivers were kept in camp near the proving ground he paid a cook $1 a day and board, and paid $1 per week stable rent. The cost of feeding his teams and boarding his drivers while in camp was reduced by reason of the fact that supplies were furnished to the camp from his farm and his profit from the use of teams on this work was $2.50 per day.

1

 Appealed.

MEMORANDUM BT THE COURT.

To sustain the plaintiff’s theory in this case and adjudge a recovery it would be necessary for the court to consider in detail the work being done and to be done at the proving ground, and to determine from the extent and nature of this work itself that the use of plaintiff’s teams were “ required.”

It seems quite apparent that the court can not undertake to do this. It is true that there is testimony on behalf of the plaintiff to the effect that while plaintiff’s teams were laid off there was work to be done and that at the expiration of the year the work to be done was not completed, but it is equally true that the officer in charge testifies that at all *474times when plaintiff’s teams were laid off they were not needed.

The solution of the question must lie in a determination of the true meaning of the contract, particularly in the use of the words “ as may be required.” Is the true answer to be found in the mere fact that to the plaintiff and perhaps to others not charged with responsibility with reference thereto there appeared to be work to be done upon which plaintiff’s teams might have been employed, evidenced further by the fact that at the expiration of plaintiff’s contract there yet remained work to be done, or is it to be found in the judgment of the responsible officer in charge as to the requirements of the work?

To'assume the first proposition is to set aside the judgment of the officer in charge and substitute that of the plaintiff, his witnesses, and the court, while to assume the second proposition is but to recognize the plain necessities of the case and the evident intent of the contract.

We are informed in but the most general way of the nature of the work requiring the use of teams and not at all as to its extent, particular purpose, or natural sequence. But if we were so informed could we undertake to substitute our judgment for that of the officer in charge and say in effect that there was grading to be done on which plaintiff’s teams should have been employed, or that they should have been put at hauling brick or some other possible employment? The work was in charge of an officer, presumably competent,, assigned to that duty and no doubt carrying out a general plan of improvement involving progressive stages to a final purpose to be accomplished as and when his or a superior judgment dictated.

The contract and the circumstances, we think, justify the conclusion that the officer in charge of the work must of necessity determine when teams were required and only bad faith on his part could justify a conclusion as against his judgment.

It was but natural and proper that teams owned by the United States should be kept at work and if other contract teams were worked while plaintiff’s teams were laid off *475through the operation of a plan adopted by the officer in charge these facts could not amount to a breach of the contract. There was no obligation to apportion or pro rate the work when there was not need for all.

The result of this conclusion may seem to work a hard- - ship on the plaintiff but such must always be the case if damage has resulted without legal liability therefor on the part of the United States.

The petition is dismissed.