#### NEAL-BLUN COMPANY v. THE UNITED STATES

[No. A-327.

Decided January 28, 1924]

*On the Proofs*

*Dent Act; extra work and material.*— -Where work has been performed and material furnished for the War Department under an informal contract entered into by proper authority, and the compensation agreed upon has been paid to the contractor, the Government is not liable under the Dent Act for any extra work performed or material furnished by said contractor during the progress of the work under said agreement.

*The Reporter's*statement of the case:

*Mr. ’William B. King*for the plaintiff. *King & King*were on the briefs.

*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. The plaintiff is a corporation organized under the laws of the State of Georgia, and on June 11, 1918, its president entered into negotiations with Major O. F. Noss, Quartermaster Corps, United States Army, in charge of procurement of materials at the Construction Division of the United States Army in the War Department at Washington, D. C., for the purpose of procuring the contract for placing roofing on the sheds at the Charleston quartermaster terminal, Charleston, South Carolina. The result of these negotiations was that a written order was given to plaintiff whereby it was to place the roofing on the sheds at said terminal, the said Noss having authority from the Secretary of War to place said order. The said order was issued on June 12, 1918, and under its terms the plaintiff was authorized to proceed with the immediate production of 12,000 'squares of roofing for sheds at the aforesaid terminal; and on June 21, 1918, another order in writing was issued by said Noss, who had authority from the Secretary *183of War to issue the same, which, directed the plaintiff to proceed with the production of 6,000 squares of roofing for the same shed. The aforesaid orders are as follows:

CHARLESTON, S. C., /«« *W, 1918.*

File No. 411.2.

From: Officer in Charge Construction Division.

To: Neal-Blun Company, Savannah, Georgia.

Subject: Roofing.

You are hereby authorized to proceed with immediate production of the following materials as per attached specifications :

ROOKING FOR Q. M. SECTION WAREHOUSES AT CHARLESTON TERMINAL, CHARLESTON, S. C.

Approximately 12,000 squares 3-ply built-up pitch and slag roofing composed of one layer of rosin-sized sheathing paper, 5 pounds per square, and three layers of tarred felt, 13 pounds per layer and 40 pounds per square, mopped together and coated with about 100 pounds of straight-run coal-tar pitch per square, and a surfacing of first-quality roofing slag, to % inch in size, approximately 300 pounds per square, furnished (except freight on materials) and applied complete, with ten-year guarantee, for the sum of five and 30/100 dollars ($5.30) per square, total $63,600.00. The roofing contractor shall be prepared to lay any number of squares desired per day and the speed of work to be controlled by general contractor. All freight charges on materials composing this roofing are to be paid by the general contractor, at the Government rate. It is agreed shipments of pitch shall be made from Birmingham, Alabama, slag from nearest available crusher, and felt and sheathing paper from most advantageous points. The guarantee mentioned above is that the roofing shall remain water-tight for a period of ten years against ordinary wear and tear.

The Government reserves the right to increase the quantity of this order by 8,000 squares or thereabouts at price incl'icated above, with suitable allowance for any change in material costs between time of signing this contract and starting of additional buildings.

Felt *57.00,*pitch 15.00 slag 1.75 per ton.

Inspection: On job.

Shipping date: Begin work 6/15.

Ship by freight.

Marked: “ C. H. Section Warehouses.”

Consign: U. S. Construction Quartermaster, Charleston Terminal, Charleston, South Carolina, for account of Mason *184and Hangar Company, Charleston Terminal, Charleston, South Carolina.

Price quoted is f. o. b.-. Terms of payment net cash 30 days. Contractors have been instructed to place their confirming orders with you at once. Upon making shipment you will wire at once attention - date of shipment, car number, routing; or name of express company and mail one copy of invoice and bill of lading-marked attention Materials Branch, Construction Division. One copy of bill of lading to be sent to director of inland transportation, State, War, and Navy Building, Washington, D. C.

B. C. MARSHALL, Jr., *Colonel, Q. M. Corps, N. A., In Charge Construction Division.*By-,

*O apt. Q. M. C. N. A.*

To CONSTRUCTING QUARTERMASTER :

The above is an exact copy of authorization covering the materials indicated. Kindly have contractor forward confirming order promptly.

By authority of the Secretary of War:

B. C. Marshall, Jr.

*Colonel, Q. M. Corps, N. A.,*

*In Charge Construction Division.*

Order placed as per tabulation of bids on file owing to:

(1) Lowest price.

(2) Early delivery.

(3) Better quality.

(4) Better or required design.

(5) Only available source.

Office of Officer in Charge

CONSTRUCTION DIVISION,

*Washington, D. C.*

Beq. No. 74 (Charleston Q. M. Terminal). Date June 21, 1918.

File No. 411.2 (Charleston, S. C.).

From: Officer in charge Construction Division.

To: Neal-Blun Company, Savannah, Ga.

Subject: Boofing.

You are hereby authorized to proceed with immediate production of the following materials:

As per attached specifications.

Inspection: On job. Shipping date: Begin July 1st. Ship by freight. Marked “ Q. M. Terminal Sheds.”

Consign U. S. Constructing Quartermaster, Charleston Terminal, Charleston, S. C., for the account of Mason & *185Hanger Company, Charleston, Q. M. Terminal, Charleston, S. C.

Bill to: Same as above.

Price quoted is f. o. b., as above. Terms of payment, net cash, 30 days. Contractors have been instructed to place their confirming order with you at once. Upon making shipment, you will vrire at once, attention Nash; date of shipment, car number, routing; or name of express company and mail one copy of invoice and bill of lading-marked attention Materials Branch, Construction Division.

B. C. MARSHAL!,, Jr.,

*Colonel, Q. M. Corps, N. A.,*

*In Charge Const-motion Division.*

By C. M. Foster,

*Capt. Q. M. C., N. A.*To Constructing Quartermaster:

The above is an exact copy of authorization covering the materials indicated. Kindly have contractor forward confirming order promptly.

By authority of the Secretary of War.

B. C. Marshall, Jr.,

Colonel, *Q. M. Corps, N. A.,*

*In Charge Comtmction Division.*

By A. C. Everham,

*Major, Q. M.*C., *N. A.*

ROOKING EOR SHEDS AT CHARLESTON Q. M. TERMINAL, CHARLESTON, SOUTH CAROLINA

Approximately six thousand (6,000) squares 3-ply built-up pitch and slag roofing, composed of one layer of rosin sized sheathing paper, 5 pounds per square, and three layers of tarred felt, 13 pounds per layer, and 40 pounds per square, mopped together and coated with about 100 pounds of straight-run coal tar pitch per square, and a surfacing of first quality roofing slag, *4 to % inch in size, approximately 300 pounds per square, furnished (except freight on materials) and applied" complete, with ten-year guarantee, for the sum of five and 30/100 dollars ($5.30) per square. The roofing contractor shall be prepared to lay any number of squares desired per day and the speed of work to be controlled by the general contractor. All freight charges on materials composing this roofing are to be paid, by the general contractor at the Government rate.

It is agreed shipments of pitch shall be made from Birmingham, Alabama, slag from nearest available crusher, and felt and sheathing paper from most advantageous points.

The guarantee mentioned above is that the roofing shall remain water-tight for a period of ten years against orcli-*186nary wear and tear. Work was to begin as soon as possible, and the plaintiff was to be prepared to lay not less than 300 squares a day, and the work was to be done with the greatest dispatch.

The plaintiff proceeded to do the work required and completed it, and was paid in full the price set out in said orders, to wit, the sum of $105,012.61, which it received without protest September 5, 1919.

II. During the progress of the work the plaintiff incurred certain expenses upon which it bases its claim.

1. The plaintiff upon the receipt of the order at once organized a force of superintendents and foremen requisite for the work, and sent some of them to the site of the work, and was prepared to go on with the work. Upon arrival at the terminal it was discovered that the sheds were not ready for roofing, and no time could be fixed by the officer in charge as to when the sheds would be ready for roofing. The plaintiff proposed the removal of its superintending force until the work was ready and consulted the officer in charge with regard to it, who advised against it, but there was no agreement made or suggested that the United States should pay the plaintiff for any expense it might incur by keeping its men idle until the work was ready. Plaintiff upon its oAvn responsibility did keep the superintendent force until the work was ready, which was not until the first week in September, and the plaintiff paid its superintendents while idle the sum of $2,181.50.

2. The plaintiff also assembled a crew of roofers before the work was ready, but did not send them to the site of the work, but disbanded them. No demand was made by the plaintiff upon the United States for the expense incurred by it in assembling these roofers at the time, nor was there any agreement made by any officer or agent of the United States to pay the plaintiff for the expense so incurred. That expense ammmted to the sum of $386.58.

The plaintiff’s president went to the site of the work on June 25, 1918, and saw how far the work had advanced.

III. A part of the work of roofing was done in cold weather. If the buildings had been- ready for roofing earlier in the summer not so much of it would have been done in cold weather. More pitch was used in cold weather *187than was used in warm weather. How much more pitch it was necessary to use owing to the cold weather does not appear. It does appear that extra pitch to the value of $1,810.71 was used to complete the job. The written orders required the use of 100 pounds of pitch per square. There was no agreement made between the plaintiff and any officer or agent of the United States at the time the extra pitch was used that the plaintiff should be paid for it. During the warm weather less than 100 pounds of pitch per square was used. Work on the roofing was begun about the first of September, 1918, and completed in September, 1919. It does not appear that said extra pitch was used prior to November *12,*1918.

1Y. At the time the plaintiff entered into negotiations with Major Noss the plaintiff’s president was shown a diagram or map, from which it appeared that railroad tracks ran alongside the sheds which were to be roofed, but the plaintiff was not told that these tracks had been laid nor that they were then ready for use. Before any of plaintiff’s supplies were shipped plaintiff’s president was on the site of the work and saw that the tracks were not laid. When the material began to arrive the tracks had not been completed, nor were the buildings ready for roofing. Materials were dumped at points inconvenient to the sheds. After-wards tracks were laid alongside the various! buildings and the plaintiff was allowed to use them so far as practicable. At times the plaintiff was not allowed to unload cars in places convenient to the sheds, and in one or two instances the plaintiff’s materials were removed! from convenient places and had to be replaced.

The cost to the plaintiff of handling materials so removed or inconveniently placed was the sum of $588.04. No agreement was made by any officer or agent of the United States with the plaintiff at the time or later whereby the plaintiff was to be paid by the United States for handling the materials aforesaid.

Y. In one or two instances where the roofing had already been placed by plaintiff and was temporarily secured by nailing boards or strips thereon, either the employees of the United States or those of the general contractor removed such boards or strips, and the roofing already placed was blown off and had to be replaced. The total number of *188squares so blown off was sixty, and the cost of relaying-said squares was the sum of $243. No agreement was made by any officer or agent of the United States with the plaintiff at the time the roofing was replaced or later Whereby the plaintiff was to be paid by the United States for relaying said roofing, and it does not appear that the transaction occurred piior to November 12, 1918.

The total amount of the plaintiff’s claim made up of the irems set out in the findings above is the sum of $5,209.83.

VI. A claim for the amount above set forth was presented to the officer in charge of construction at said terminal prior to June 30, 1919, and was approved by him and forwarded to the Construction Division in the War Department, and was there approved by Major Noss, the officer who had given the orders for the work. Upon further consideration it was decided that the claim should be considered by the Board of Contract Adjustment, a tribunal created by the Secretary of War in accordance with the provisions of General 'Orders, No. 103, War Department, November 6, 1918, for the purpose of disposing of claims under contract presented to the department. Said Board of Contract Adjustment considered said claim and, acting on behalf of the Secretary of War., issued a final order denying relief on March 27, 1920.

Hay, Judge,

delivered the opinion of the court:

This is a claim against the United States for the sum of $5,209.83, and is alleged to be based upon the provisions of the Dent Act, 40 Stat., 1272, which in part reads as follows :

> “ That the Secretary of War be, and he is hereby, authorized to adjust, pay, or discharge any agreement, express or implied, upon a fair and equitable basis that has been entered into, in good faith during the present emergency and prior to November twelfth, nineteen hundred and eighteen, by any officer or agent acting under his authority, direction, or instruction, or that of the President, with any person, firm, or corporation for the acquisition of lands, or the use thereof, or for damages resulting from notice by the Government of its intention to acquire or use said lands, or for the production, manufacture, sale, acquisition or control of equipment, materials or supplies, or for services, or for facilities, or other purposes connected with the proseen*189tion of the war, when such agreement has been performed in whole or in part, or expenditures have been made or obligations incurred upon the faith of the same by any such person, firm, or corporation prior to November twelfth, nineteen hundred and eighteen, and such agreement has not been executed in the manner prescribed by law.”

It will be observed that the statute is specific in reciting for what the United States will pay when an agreement express or implied ” has been entered into by any officer or agent acting under the authority, direction, or instruction of the Secretary of War or of the President. The United States will pay *“*for the acquisition of land, or the use thereof, or for damages resulting from notice by the Government of its intention to acquire or use said lands, or for the production, manufacture, sale, acquisition or control of equipment, materials, or supplies, or for services, or for facilities, or other purposes connected with the prosecution of the war.”

The claim of the plaintiff is for none of these things.

The first item of the claim is that the United States should pay the plaintiff the amount, of money which it has paid to its employees while those employees were idle and were rendering no service to the Government. Those employees were hired by the plaintiff to carry out its contract with the United States, and if they were kept in idleness by the plaintiff, the plaintiff did it on its own responsibility and because it thought that it was to its interest to do so. No officer or agent of the Government authorized to clo so made any agreement with the plaintiff to reimburse it for money so expended, and no such officer or agent was authorized to make any such agreement. The president of plaintiff company was on the site of the work as early as June 25, 1918, and had every opportunity to find out when the sheds would be ready for roofing. If he kept his employees idle he did it with full knowledge of all the conditions, and can not reasonably ask that the United States pay for services which it did not receive and which were not performed.

The second item of the plaintiff’s claim is for money expended by it in assembling a roofing crew. This crew was not at the site of the work; was never there. It can not be said that the services of the agents of the plaintiff in assem*190bling the roofing crew were services performed for the benefit of the United States; they were distinctly services performed for the benefit of the plaintiff. No officer or agent of the United States entered into any agreement with the plaintiff with regard to these services, nor was any officer or agent of the United States authorized to make any such agreement.

The third item of the claim is for extra pitch used to complete the work. At the time the extra pitch was used there was no' agreement made between the plaintiff and any officer or agent of the United States authorized to make such agreement that the plaintiff should be paid for it. Nor does it appeal’ that this extra pitch was used prior to November 12, 1918. It further appears that while this claim was pending the plaintiff accepted in full payment the sum of $105,012.61 for 19,813.7 squares of roofing, which amount it received in settlement of the requisiton orders set out in the findings. Nor does it appear how much more pitch it was necessary to use owing to cold weather.

The fourth item of plaintiff’s claim is the cost of handling-materials which were not placed on the site of the work conveniently for plaintiff’s use. At the time the plaintiff entered into the negotiations which resulted in its being given a contract for the roofing of the sheds at the Charleston terminal it was shown a diagram or map from which it appeared that railroad’ tracks ran alongside the sheds which were to be roofed, but it was not told that these tracks had then been laid nor that they were ready for use, and when the president of the plaintiff company was at the site of the work on June 25,1918, he had the opportunity of finding out whether they were ready for use or not. When the tracks were laid the plaintiff was allowed to use them as far as practicable, though on some occasions plaintiff had to unload its materials at inconvenient places, and did have h> replace materials at some cost to itself, but that was one of the incidents to the performance of the work and not 'an expense which could properly be charged to the United States. Moreover, no demand for payment was made at the time and no agreement was made by any authorized officer or agent of the Government with the plaintiff whereby the plaintiff was to be paid by the United States for handling these materials.

*191The fifth item of the claim is for expense incurred by the plaintiff for replacing roofing which had been blown off by reason of some one removing strips and boards which secured temporarily roofing already placed; the roofing blown off had to be replaced, .and the cost of replacing it was $243. No agreement was made by any officer or agent authorized to make such agreement with the plaintiff at the time the roofing was replaced, or later, whereby the plaintiff was to be paid by the United States for replacing this roofing. It does not appear that this transaction occurred prior to November 12, 1918.

The above are the items which make up the plaintiff’s claim of $5,209.83. All these claims were pending and were being pressed by the plaintiff when on September 5, 1919, it accepted in full settlement the sum of $105,012.61.

The plaintiff, however, has elected to treat this claim as separate and distinct from its claim for the performance of the work under its contract. If it is distinct, then it can only be allowed if it meets the conditions which are specifically provided for in the Dent Act. It does not meet those conditions. No agreement “ express or implied ” was made with the plaintiff by any officer or agent of the Government authorized to make such agreement whereby the plaintiff was to be paid by the United States for the items which make up the claim sued on.

It seems to be assumed by the plaintiff that the relief afforded under the Dent Act includes all damages which may arise during the progress of the work contracted for, and that it is not necessary that there should be an agreement “express or implied” between the plaintiff and an officer or agent acting under the authority of the Secretary of War or of the President when the amount expended or the services rendered are incidental to and not a part of the expenditures or services contemplated by the original contract between the parties. As in the case at bar, the plaintiff contends that by virtue of the orders it received to perform this work a promise was implied that it should be paid for any extra work clone- or for any incidental expense it might incur by reason of delays to which it might be put by the action of the Government in the execution of *192another contract. We do not think that such principles can be invoked to render the Government liable under the Dent Act.

No implied agreement contemplated by this act as a basis for compensation can be inferred from the facts and circumstances which gave rise to the claim asserted here by the plaintiff. In order to have a recovery under the Dent Act, the implied agreement must be such an one as is defined by the Supreme Court of the United States in the case of *Baltimore & Ohio R. R. Co.*v. *United States,*261 U. S. 592, 597. See also *Baltimore & Ohio R. R. Co.*v. *United*States, 261 U. S. 385, 387.

The petition must be dismissed. It is so ordered.

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