#### FREDERICK SNARE CORPORATION v. THE UNITED STATES

[No. B-199.

Decided March 10, 1924]

*On the Proofs*

*Contract; prime and sub-contractors.*— See *Snare & Triest Co.*v. *United States,*57 C. Cls. 151.

*The Reporter's*statement of the case:

*Mr. Horace S. Whitman,*for the plaintiff. *Mr. II. Rozier Dulany, Jr.,*was on the brief.'

Mr. *Dwight E. Rorer,*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. The Frederick Snare Corporation is a corporaton duly organized and existing under the laws of the State of New *351York, and lias its principal office in the city of New York in that State.

II. The name of the Frederick Snare Corporation was formerly the Snare and Triest Company, and the name was duly changed by amendment of its corporate charter under the laws of the State of New York on or about the first day of July, 1921, but otherwise remains and is the same corporation.

III. On the 22cl day of July, 1918, the Snare & Triest Company entered into a written contract with the United States, acting by and through Brig. Gen. E. C. Marshall, jr., Q. M. C., who had been specifically authorized and designated by the Secretary of War as a contracting officer to execute such contracts in defendant’s behalf.. Under this contract, which is attached to the plaintiff’s petition herein as Exhibit A and made a part hereof by reference, plaintiff agreed to construct and complete a quartermaster terminal at Philadelphia, Pa., in consideration of which the defendant agreed to reimburse plaintiff for all labor, material, subcontracts made in accordance with the provision of this agreement, machinery, and other specified costs of the work, and further agreed to pay plaintiff a fee to be determined at the time of completion of the work from specified schedules: Provided, *however,*That the total fee should in no event exceed the sum of $250,000.

IV. During the progress of the work under the Snare and Triest Company contract, referred to: hereafter as the prime contract, Lieut. Col. E. B. Morden, Q. M. C., who was in charge of the work as construction quartermaster, and was the duly appointed and authorized representative of the contracting officer, negotiated with E. S. Downs Company, a corporation of the State of New Jersey, with main office in Newark, N. J., to furnish and install permanent and temporally electric lighting and power, as subcontractor, and directed the preparation of the subcontract to be executed by the Snare and Triest Company and this subcontractor. The subcontract is attached to the petition and marked “ Exhibit B,” and is made a part hereof by reference.

V. There were printed forms of contract, both for the prime contract and for the subcontract, and these forms were *352exhibited to E. S. Downs Company during negotiations for* the subcontract, and E. S. Downs Company examined and was familiar with the provisions thereof. The forms were so prepared as to operate together, and references from the subcontract form to the prime contract form were necessary to determine certain of the terms thereof. In the preparation of the subcontract Colonel Morden, and prior to execution, struck out of Article VI of the printed form certain language immediately following the word “ be ” preceding “ fixed according to,” which language referred to Article III of the prime contract as fixing the schedule of fees, and inserted in lieu thereof “ fixed according to the following schedule, except as hereinafter otherwise provided.” “ The following schedule ” is the schedule appearing under Article VI of the subcontract. The contract thus modified was submitted to E. S. Downs Company, and that company before signing inquired of, and was told by, Colonel Morden that in the event of cancellation of the prime contract, a contingency considered extremely remote at that time, the rights of the subcontractors to compensation would be governed by the schedule of fees in Article III of the prime contract and not by the schedule of progress payments in Article VI of the subcontract. Upon these assurances and with this mutual understanding on the part of Colonel Morden, the Snare & Triest Company, and the E. S. Downs Company, the subcontract was executed by the parties thereto and was formally approved in writing by Colonel Morden as the representative of the contracting officer.

VI. The subcontractor duly began performance of its subcontract, and the cost of the work as it progressed, including monthly fee payments, was reported to and paid by the defendant to the plaintiff, who in turn paid .said monthly fee payments to the subcontractor. Thereafter the work covered by the subcontract was terminated by defendant before completion through no fault of plaintiff or said subcontractor.

VII. At the time said work was terminated as aforesaid by the defendant the subcontractor had actually expended *353and made commitments for $287,189.12, for which plaintiff Ayas paid and for which plaintiff in turn paid the subcontractor the total fee. of $11,487.57, or 4 per cent of the total amount, in accordance with the schedule contained in article VI of the subcontract. The above amount Aras in turn paid the subcontractor by the plaintiff.

VIII. Thereafter the Snare & Triest Company, on behalf of the E. S. Doayias Company, filed a claim Avitli the Construction DNision of the War Department on April 7, 1920, for $3,800, the alleged difference between the amount actually paid under Schedule VI of the subcontract and the maximum 'amount of $15,000 as payment under the schedule of fees contained in Article III of the prime contract. The claim Avas disalloAved by the Construction Division on April 9, 1920, and an appeal taken to the Appeal Section of the War Department Claims Board, which in turn denied the claim on January 25, 1921. No appeal Avas taken to the Secretary of War and no submission was made to the Secretary of War under Article XIV of the prime contract. The correct difference between the amount paid to the subcontractor through the plaintiff, i. e., $11,487.57, and the maximum amount of $15,000 provided by the subcontract is $3,512.43.

IX. The subcontractor duly began performance of its subcontract and Avitli the plaintiff and the other contractors Avorked on day and night shifts until the armistice terminating hostilities Avas signed on the 11th day of November, 1918. Thereafter, at the direction of the defendant, the work upon the Quartermaster Terminal as a whole was slowed up, and because of delays due to the orders of defendant, which Avere in no Avay the fault of the plaintiff or the subcontractor, it took the subcontractor eighteen months to complete the Avork recpiired by the subcontract, or ten months in excess of the time Colonel Morden stated it- would be required to complete the Avork. The evidence does not disclose Avitli any certainty what damages, if any, were incurred by the subcontractor as a result of the delay in completing the work.

*354MEMORANDUM BY THE COURT

Judgment for $3,512.43 is awarded in this case in pursuance of the decision of this court in the case of *Snare & Triest Co.*v. *United*States, 57 C. Cls. 151.

As to the other items set out in the petition there is no evidence in the record to sustain them.