#### BOSS P. BECKSTBOM COMPANY v. THE UNITED STATES

[No. C-1019]

*On the Proofs*

*Written contract; interpretation.-*— Where by written contract plaintiff agreed to a maximum fee of $15,000, “ anything in the contract to the contrary notwithstanding,” and an officer without authority construed the contract at the time of its execution to mean that for work ordered in excess of $200,000 value plaintiff would be paid more than the maximum fee specified, and the contract did not expressly so provide, plaintiff is not entitled to more than the maximum fee specified.

*The Reporter's*statement of the case:

*Mr. Raymond M. Hudson*for the plaintiff.

*Mr. Ralph O.*Williamson, with whom was *Mr. Assistant Attorney- General William J.*Donovan, for the defendant.

Decided June 1, 1925.

Motion for new trial overruled October 26, 1925.

The following are the facts as found by the court:

I. The plaintiff is a corporation existing under the laws, of the State of Illinois engaged in construction work, and it is the sole owner of this claim.

II. The plaintiff, Boss P. Beckstrom Company, entered into a contract with the defendant in writing on the 1st day of November, 1917, for the construction, alterations, additions, and repairs at Camp Grant, Ill. A copy of the contract marked “ Exhibit A” is attached to the petition and is made a part of this finding by reference. The contracting officer for the Government was Gen. I. W. Littell.

Under said contract the plaintiff was to furnish the labor, materials, tools, machinery, equipment, facilities, and supplies necessary for the construction and completion of the work within six months from the date of the contract.

III. Orders were given in writing by the contracting officer in charge to plaintiff for each separate piece of work to be done, and statements thereof and therefor are numbered and set out in detail in Exhibits B-l and B-2 of the peti*29tion, the total amount of Exhibit B-l being $204,284.18 and the total amount of Exhibit B-2 being $116,882.44. Said exhibits are made a part of this finding by reference.

Colonel Smith, the officer of the United States .who negotiated the contract with plaintiff, discussed with plaintiff’s president, Eoss P. Beckstrom, Article III of the contract, and the clause reading as follows:

“ The total fee of the contractor hereunder shall in no event exceed the sunn of $15,000, anything in the contract to the contrary notwithstanding,”

was called to his attention, and the entire contract gone over very fully.

Colonel Smith, the contracting officer in charge, informed plaintiff that the work would be at least $200,000, and stated that the plaintiff would be paid according to the contract for whatever amount of work was done. Eoss P. Beckstrom, president of plaintiff company, stated that he understood, and that Colonel Smith, the contracting officer in charge, also understood, that the contract did not contemplate more than $200,000 worth of work.

IV. No specific or definite amount of work to be performed or material to be furnished by the contractor is mentioned in the contract; all orders for work were given within the period of time prescribed in the contract.

* At the time of the execution of the contract Colonel W. O. Smith, the officer in charge of the work, construed the contract to mean that in the event the work was in excess of $200,000 the plaintiff would be paid the fee of $15,000 on $200,000 of work ordered and performed, and upon the amount of work in excess of $200,000 it would be paid upon a percentage basis. Colonel W. O. Smith had no authority to construe the contract; he was not the officer who executed the contract on behalf of the United States and could only give his opinion as an individual.

Y. During the progress of the work under the contract when the work had amounted to $200,000, and additional work had been ordered on written orders of the officer in charge, the plaintiff went to Washington D. C., and had an interview with one Colonel Philander Betts. Who Colonel *30Betts was or what authority he had does not appear. In that interview Colonel Betts informed the plaintiff that it was best for the plaintiff to carry on just as it was doing and to complete the work, and when the work was done' for it to submit a statement to the Government and the Government would give it the same attention it had given to similar bills. No assurance was given by Colonel Betts that the bill would be paid.

VI. Plaintiff was paid in full for all labor performed and material furnished, as shown in Exhibits B-l and B-2 attached to the petition, including the fee of $15,000 fixed in the contract. Plaintiff has not been paid the sum of $8,666.11,1 which it claims is due it, being *7y2*per cent of $1.16,882.24, the amount of work done and materials furnished in excess of $200,000.

The court decided that plaintiff was not entitled to recover.

1

 Correct amount $8,766.17.

MEMORANDUM BY THE COURT

The plaintiff claims that it is entitled to be paid the sum of $8,666.11,1 by the United States, which is *7y2*per cent on $116,882.24, the amount of work performed and materials furnished under a contract which it had with the United States.

A written contract was made between the plaintiff and the United States whereby the former agreed to furnish labor and materials and do work of construction and repair at Camp Grant, Rockford, Illinois, such as would be ordered from time to time in writing within six months from the date of the contract in accordance with the drawings and specifications to be furnished by the contracting officer and subject in every detail to his supervision, direction, and instruction. The contracting officer was authorized to make changes in the specifications, to issue additional instructions, require additional work, and direct omissions of work previously ordered. Provision was made for reimbursing the contractor for his actual net expenditures in the performance of the work. In addition to this reimbursement and as full compensation for its services it was to be paid a fee, *31to be determined from a graduated schedule set forth in the contract. There was, however, a provision that the total fee should in no event exceed the sum of $15,000, “ anything in this agreement to the contrary notwithstanding.”

While the contract mentions no definite amount of work to be performed or materials to be furnished, yet the plaintiff insists that only $200,000 worth of work was to have been done; but in this the evidence does not bear it out. The facts are that it was told at the time the contract was executed by it that the work would amount at least to $200,000, and not until the work had actually exceeded that amount did the plaintiff take any steps to have the contract corrected as to the compensation which it had agreed to accept under the contract. The plaintiff interpreted the contradt to mean that it was to receive $15,000 for work done up to the amount of $200,000, and that if work was done over •that amount it was to receive in addition a percentage on the work done in excess of that amount. The contract provided a method for the interpretation of the contract if “any doubts or disputes shall arise as to the meaning or interpretation of anything in this contract.” Article XIY of the contract provided that such doubts or disputes should be referred to the officer in charge of cantonment construction for determination. And if the contractor should feel aggrieved by the decision of such officer it had the right to submit the same to the Secretary of War, whose decision was to be final and binding upon both parties to the contract.

The plaintiff did not proceed under this article of the contract. It relied upon the opinion of the officer in charge of the work; that officer had no authority to interpret the contract, and his opinion was worth no more than that of any other individual, and certainly can not be held to bind the Government.

The contract itself is plain and unambiguous.^ It fixed a maximum fee to be paid for work or expenditures ordered within the period covered by it, and the plaintiff is bound by its contract.

Graham, Judge,

took no part in the decision of this case.