#### UNION TWIST DRILL COMPANY v. THE UNITED STATES

[No. A-316.

Decided November 12, 1923;

motion for new trial overruled October 20, 1924]

*On the Proofs*

*Contract; signature Toy proxy.*— Where a contract is signed on behalf of the Government with the name of the contracting officer by another officer, duly authorized so to do, and pursuant to his direction, the contract was legally executed.

*The Reporter’s*statement of the case:

*Mr. George T. Farrell*for the plaintiff. *Messrs. T. T.*Ansberry, *Walter E.*Barton, and *Frank P. Ryam,*were on the brief.

*Mr. Howard J.*Bloomer, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

*910The following are the facts of the case as found by the court:

I. The plaintiff is a corporation, organized under the laws of the State of Massachusetts, and has at all times borne true allegiance to the Government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against said Government.

II. On October 3, 1917, plaintiff entered into a contract in writing Avith the United States, knoAvn as contract No. 2332, providing for the manufacture and delivery of certain Avar supplies consisting of tools, complete itemized list of which tools, with the prices to be paid therefor, is set forth in the contract, attached to the petition as Exhibit A thereof, and made a part hereof by reference. The total price to be paid plaintiff by the United States for said tools was $123,796.61.

III. Said contract Avas executed and delivered on behalf of the United States by Thos. H. Slavin, colonel, Quartermaster Corps, Avhose name Avas signed to said contract by John R. Holt, pursuant to his direction; and it thereafter appearing that a mutual mistake had been made with reference to the price to be paid for one item of said drills, to wit, the Morse Taper Twist Drill, No. 302, 40 doz. 1^, on the first day of June, 1918, the contract was changed and modified by the parties to correct.said mistake in this, to Avit, the price of the drills mentioned in said item Avas changed from $1.18, as written in the original contract, to $1.81, so as to make the Avritten contract conform to the actual agreement of the parties respecting the price to be paid for such drills. Copy of the supplemental contract is attached to the petition and marked “Exhibit B.” The supplemental contract Avas signed: “Alex. R. Piper, Col. Q. M. C. N. A., by John R. Holt, Q. M. R. CThe items listed in the supplemental contract do not enter into the controA^ersy in this case.

IV. Plaintiff claims the contract AAras made under act of Congress, approved May 12, 1907, entitled “An act making appropriations for the support of the Army for the fiscal year ending June 30, 1918, and for other purposes,” 40 Stat. L. 40, but defendant makes no admission as to this.

*911V. It was provided in said contract that the contractor should furnish and deliver the tools therein mentioned and described during the period beginning October 24, 1917, and ending June 30, 1918.

It was further provided in said contract that the United States should have the right and option to increase or decrease the separate quantity of articles to be furnished, not exceeding the percentages enumerated in the circular list to bidders, of which notice in writing would be given the contractor. No increase or decrease was made except by cancellation December 30, 1918.

In paragraph 6 of the contract it ivas provided:

“ That in case of the failure of the contractor to perform any part of this contract the contracting officer or his successor shall have the right to supply the deficiency by procurement in open market or otherwise purchasing any of the supplies so required at such place as he may elect with a view to obtaining the same promptly and at the same time endeavoring to secure fair and reasonable prices (the articles procured to be the kind herein specified as nearly as possible) at the expense of the contractor, and in case failure should occur prior to the time fixed for performance of all parts of the contract the right is hereby reserved to the United States to elect whether the contractor shall be permitted to continue performance as to such remaining part (deficiency by reason of any further failure to be supplied as above) or whether the entire unperformed part shall be procured at the expense of the contractor.”

VI. At the time of the execution of said contract the plaintiff had the capacity and ability to manufacture and deliver all the tools mentioned and described therein within the time provided, but was prevented from manufacturing all said tools by June 30, 1918, by circumstances beyond its control, to wit, by the orders of the War Department of the United States, as set forth in Finding VII hereof.

Plaintiff commenced manufacturing said tools within a few weeks after the date of the contract and continued to manufacture the same as speedily as possible up to the time the suspension order was issued by the Government, which was on December 30, 1918, or shortly thereafter.

rty June 30, plaintiff had manufactured ready for delivery approximately $77,000 worth of tools, and shipped *912the same on orders and bills of lading issued by the War Department from time to time, according to directions.

VII. During the period covered by said contract, and up to the date of the signing of the armistice, plaintiff was engaged almost exclusively in the manufacture of war supplies on other contracts received from the Government and on subcontracts for such supplies.

Soon after plaintiff began to manufacture the tools mentioned in its contract with the Government, priority orders were issued by the War Industries Board of the Counsel of National Defense, giving precedence to the manufacture of Avar supplies provided for in the other contracts and subcontracts for Avar supplies above mentioned. No priority order Avas eArer issued with respect to the contract sued on, and, as a result, plaintiff Avas prevented from completing the manufacture and delivery of said tools Avithin the time provided in the contract, or sooner than the same were actually manufactured.

VIII. Neither the contracting officer nor his successor, nor any person representing the Government, supplied the deficiency of said tools, unmanufactured June 80, 1918, by purchasing the same in the open market or otherwise.

IX. No notice Avas given plaintiff by the United States, or the War Department thereof, that it should discontinue the manufacture of the uncompleted portion of said tools until December 30, 1918, or shortly thereafter, when a telegram or letter Avas sent to plaintiff to suspend the further manufacture of tools under said contract. After June 30, 1918, the Government received and accepted shipments of tools from time to time manufactured by plaintiff subsequent to said last-named date, amounting in value to approximately $28,000, and the United States elected to permit said contractor to continue performance of the uncompleted portion of the contract.

X. At the time said suspension, or cancellation, order was issued by the GoA^ernment, the plaintiff had on hand, ready for delivery, a large amount of completed tools, part of Avhich were thereafter delivered to the GoA^ernment, pursuant to shipping orders given by the War Department; *913and a part thereof plaintiff accepted cancellation on; the remainder of which completed tools the War Department refused to accept, although manufactured in all respects in conformity with the contract. An itemized list of said completed tools, so refused by the War Department, is set forth in Exhibit C to the petition, the aggregate contract price for said completed and undelivered tools being $4,371.96.

XI. When said suspension order was made and issued, the plaintiff was engaged in the manufacture of a portion of the tools mentioned in said contract; that is to say, they were in process of completion, and plaintiff was ready, able, and willing to complete the manufacture of said tools, an itemized list of which tools in process is set out in Exhibit D to the petition. The aggregate contract price for the tools in process, completed, was $1,543.08, and it would have cost the plaintiff $255.85 for labor and overhead charges to complete the same. Said tools were not completed, thus saving $255.85, which, deducted from the contract price, leaves a balance for the tools in process of $1,287.27.

XII. Plaintiff expended for materials, labor, and overhead charges in the manufacture of the tools completed, and undelivered, and the tools in process — a list of which is set forth in Exhibit E — the sum of $2.528.27. Twenty-two hundred and fifty dollars ($2,250.00) thereof was expended before November 12, 1918.

Said expenditures were made under and pursuant to said contract, and on the faith thereof, for supplies for the use of the War Department in the prosecution of the war.

The tools which were completed and not accepted by the Government, and the tools in process, were not salable to the trade, and wholly worthless to plaintiff, except for junk; and the junk value thereof was not to exceed $9.25. That said completed and uncompleted tools are still in the possession of plaintiff, and it now is, and always has been, ready and willing to deliver the same to the Government.

The claim was presented by plaintiff to the Board of Contract Adjustments, and from its decision appealed to the Secretary of War prior to June 30, 1919, and rejected.

*914MEMORANDUM BT THE COURT

The parties, the plaintiff by its attorney of record and the defendant by Robert H. Lovett, Assistant Attorney General, have stipulated the facts and the findings are in accordance with the stipulation. The defendant concedes a right of recovery in the plaintiff but questions its right to recover as for a breach of the contract on the ground, as stated in argument, that the contract was *“*prosy signed.”

The contracting officer was Thomas H. Slavin, colonel, Quartermaster Corps, and the contract bears his name at the end thereof with his official designation, followed by the words, “ John R. Holt, Captain, Q. M. R. C.”

Finding III, following the stipulation, states that “ Said contract was executed and delivered on behalf of the United States by Thomas H. Slavin, colonel, Quartermaster Corps, whose name was signed to said contract by John R. ITolt, pursuant to his direction.”

Under the facts stated the affixing of the signature of the contracting officer by another, duly authorized, creates no infirmity in the execution of the contract. Execution embraces more than mere signing. The conclusion from the facts stated must be that the contract was legally executed.

Judgment for plaintiff in the sum of $5,659.23.