#### W. B. MOSES & SONS, INC., v. THE UNITED STATES

[No. D-47.

Decided December 7, 1925]

*On the Proofs*

*Implied contract; solicitation; ~bid; requisition; acceptance of delivery.*— Where, at the solicitation oí an officer of defendant, the plaintiff submitted a bid to furnish the United States certain articles of furniture, delivered them to the United States upon a requisition thereunder issued by an authorized officer, and they were accepted, the plaintiff may recover their reasonable value as on an implied contract.

*The Reporter’s*statement of the case:

*Mr. Harold N. Marsh*for the plaintiff. *Mr. Charles C. Lancaster*was on the briefs.

*Mr. Ralph C.*Williamson, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Messrs. Dan M. Jackson*and *Charles M. Nash*were on the briefs.

The court made special findings'.of fact, as follows:

I. In June, 1920, the plaintiff company was solicited by an officer of the United States Navy, then on duty at the Navy mine depot at Yorktown, Va., to submit its prices on various designated articles of furniture, which it did, and on June 30, 1920, the supply officer at said Navy mine depot issued to said W. B. Moses & Sons a requisition directing it to deliver to the supply officer at said Navy mine depot certain *353articles of furniture, mostly chairs, with some porch rugs, mats, etc., all listed in said requisition with the unit price of each article stated, and amounting in the aggregate to $1,013. Said requisition recited that it was “ in conformity with your proposal * * * which is accepted ” and directed delivery “ immediately after receipt of this order.”

II. The plaintiff company complied with said order by shipping to said Navy mine depot at Yorktown, Va., where they were received by the supply officer on August 18, 1920, the articles listed in said requisition. Two chairs which were damaged in shipping were returned, for one of which a new one was substituted and the other repaired and sent to said Navy mine depot. There were public quarters at said Navy mine depot occupied by officers there on duty, and these various articles were used in five separate public quarters by officers assigned to their occupancy, and at the time of the taking of some of the testimony herein in May, 1924, all of said articles of furniture were yet in use in said public quarters.

TIT. Upon presentation of its claim therefor in the amount indicated in said order the Navy Department had some doubt about its authority to pay because no formal contract had been entered into, and referred the claim to the Auditor for the Navy Department. The auditor disallowed the claim on the ground that there had been no compliance with section 3109, R. S., requiring purchases to be made after advertising. It was thereafter ascertained by the Navy Department that there had been competition between bidders for the furnishing of these supplies, and an appeal was taken to the Comptroller of the Treasury, who disallowed the claim on the ground that, although there had been competition, there had been no compliance with section 3744, R. S., requiring contracts to be in writing, and no sufficient proof of the value of the goods sold and delivered. By reason of this decision and some time thereafter there was a contract in writing executed and the comptroller was asked to reconsider his former decision, which he declined to do, holding that the contract did not constitute such new and material evidence as would justify him in reopening a case settled by *354his predecessor, but holding also that the delivery and acceptance of the furniture gave rise to an implied contract,, on the basis of which there might have been allowance of the-claim by the accounting officers if there had been submitted proper evidence of the reasonable value of the furniture.

Thereafter this matter, together with other claims which were in substantially the. same situation, was referred to the Judge Advocate General,, who recommended legislation authorizing the payment of the bills, and on December 17,. 1921, the Navy Department forwarded them to the Speaker of the House of Representatives, together with a draft of a bill providing for their payment. The Committee on Claims of the House, to which the bill had been referred, reported (Report No. 1071, 67th Congress, 2d session) as follows:

“ These supplies were purchased during the fiscal year of' 1920 by the supply officer of the United States Navy Mine Depot, Yorktown, Va., for the use of that station.

“As the supplies called for by the orders of the naval authorities were accepted and used by the Government, this committee recommends the passage of the bill for the payment of the claims.”

The report of said committee also incorporated a communication received from the Acting Secretary of the Navy,, addressed to the Speaker of the House of Representatives, in which, after setting out the names of the five claimants,, of which the plaintiff was one, and the amount of their respective claims, of which the plaintiff’s was the least, he-said:

“ The above claims represent awards which were placed,, after competition, with the lowest bidders on the individual items, which is an evidence of the reasonable value of the material furnished and the services rendered at the time purchases were made. Furthermore, these transactions were handled strictly in accordance with the requirements of' the law and the Navy Regulations, excepting, as stated above,, the requirement of section 3744 relative to entering into» contracts having been overlooked by the contracting officer.

“As the supplies called for by these orders were accepted and used by the Government, the department requests that legislation be enacted by Congress which will authorize the-payment of these claims, and incloses a draft of a bill for that purpose.”

*355Congress adjourned without action on the bill.

IY. The reasonable value oí the articles furnished as aforesaid by the plaintiff and received and used by the United States in its public quarters at the Navy Mine Depot at Yorktown, Va., was as stated in said requisition order, namely, in the aggregate, $1,013, and no part thereof has been paid.

The court decided that plaintiff was entitled to recover.

DowNev, Judge,

delivered the opinion of the court:

In this action the plaintiff seeks to recover $1,013, which was the price at which it bid to furnish to the United States certain articles of furniture and which were furnished upon a requisition issued by the supply officer of the United States mine depot at Yorktown, Va., in which the unit prices were stated, aggregating said sum, and which articles were received at said Navy mine depot and used in 5 sets of public quarters, which were occupied by officers there and then on duty and their successors.

The findings set out in detail the procedure with reference to this claim and the reasons why at various stages it was disallowed. In this connection it might be suggested, however, that although the claim with others of similar nature had been disallowed, all of the official reports which are found in the record indicate the view that it was a just claim and should have been paid. Rather strangely under the circumstances it is now contended by the defendant, in the brief of its counsel, not only that the officer who issued this requisition upon which these goods were furnished had no authority to do so, but it is said that this property “ was not in fact delivered to the United States and the United States has received no benefit therefrom,” and again it is said that “ the Government is not shown to have been benefited by its purchase in any way.” In May of 1924, nearly four years after this property had been purchased, the Department of Justice, by its attorney then in charge, sent a gentleman formerly in the furniture business to Yorktown to examine this furniture and testify as to its value. This witness, whose testimony was taken a few days thereafter, *356testifies that after having made known his business to the commanding officer of the Navy mine depot he was taken by said commanding officer into 5 separate houses occupied as public quarters, in each of which he found the wife of an officer and in which houses he found all of the furniture here in question, except that the small porch rugs and mats were not there because they had been worn out. Aside from this we find in the files a stipulation signed by the then Assistant Attorney General and by the attorney for the plaintiff in which, for the purpose of making the testimony of said witness competent, presumably by the identification of the articles of furniture about which he testified, it is stipulated that the articles referred to by said witness were the articles delivered by the plaintiff to the defendant.

In a further attempted defense of this case we are cited to some statutes wholly inapplicable, among them statutes with reference to commutation of quarters for officers on shore not occupying public quarters. We are at a loss to comprehend why the time of the court and an attorney representing the Government should be taken in the citation of commutation statutes when commutation is in no manner involved in this case and can never be involved when, as in this case, officers were in occupancy of public quarters.

And this furniture is referred to as “ private furniture ” of an officer, followed by assumed illustrations quite entertaining in the reading because of their absurdity. Perhaps we may place ourselves in the same category by even suggesting that furniture for the private use of an officer and his family while occupying public quarters may nevertheless be and remain the property of the United States.

But there seems no justification for further discussion of the case. The only infirmity in the claim when before the Comptroller of the Treasury was the absence of a contract in writing as then construed and of evidence as to the value justifying an allowance as upon an implied contract. The deficiency as to the contract in writing was supplied, but if that had not been done, or if it was done too late to be effective for any purpose, the fact remains that the goods *357were supplied upon a written order accepting a bid made by the plaintiff, both of which instruments supplied the price and after performance of the contract it became immaterial whether there had or had not been a strict compliance with section 3744.

In awarding a judgment, to which the plaintiff is unquestionably entitled, it is only to be regretted that the long and inexcusable delay can not be at least partially compensated for by the awarding of interest, but this we can not do.

We have directed judgment in favor of the plaintiff for the full amount of its claim.

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