#### J. G. WHITE ENGINEERING CORPORATION v. THE UNITED STATES

[No. 34754.

Decided February 15, 1926]

*On the Proofs*

*Dent Act; substituted work.*— Where the plaintiff, suing under the Dent Act, had a written contract with the defendant, performed work substituted at the request of defendant’s officers for certain work specified in the contract, which if it had been required by the written contract would not have increased the plaintiff’s fee, and there was no contract, express or implied, entered into by an authorized officer of defendant to pay additional compensation for such substituted work, the plaintiff can not recover.

*The Reporter’s*statement of the case:

*Mr. Douglas Campbell*for the plaintiff.

*Mr. Charles F.*Jones, with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Mr. Dan M. JacTeson*was on the brief.

The court made special findings of fact, as follows:

I. The plaintiff is and was during the period involved a corporation incorporated under the laws of Connecticut, having its principal place of business in the city of New York and was and is engaged in the business of engineering and construction.

II. On June 20, 1917, a contract in writing was entered into between the plaintiff and Capt. C. G. Edgar on behalf of the United States for construction work at Langley Field, Ya. A copy of said contract is filed with the petition as Exhibit A and is made a part hereof by reference.

III. In May, 1917, before the contract was signed, a map prepared in the office of the Chief Signal Officer of the United States showing the outlines of Langley Field was furnished the plaintiff, and about a week prior to the signing of the contract it was given preliminary sketches made by the architect Kahn showing the general plan and character of the construction contemplated. The map of the proposed field included an outline of the buildings. The *586legend accompanying the map contained a list of the buildings contemplated. These buildings were set forth under the following classification:

List No. *1.*— Operations

A. Drainage.

B. Filling.

C. Dredging.

D. Permanent road.

E. Railroad.

F. Lighting and power system.

G. Water system.

H. Sewage disposal system.

I. Gearing and stumping.

K. Grading, growing, and seeding.

L. Permanent boundary fence.

M. Construction of walks.

N. Installation of gasoline supply system.

O. Truck scales.

List No. *2.*— Technical *structures*

1. Freight dock.

2. Boathouse dock.

3. Boathouse.

4. Power plant.

5. Gasoline storage.

6-11. Seaplane hangars.

12. Engine test building.

13. Dynamometer building.

14. Engine storage and machine shop.

15. Foundry.

16. Aircraft construction shop.

17. Enamel baking building.

18. Laboratory building.

19. Wind channel building.

20. Storehouses (technical, rough stock).

21. Lumber storehouse.

22. Truck shed.

23. Sewage disposal building.

24. Fire station.

25-32. Airplane hangars.

33. Airplane storehouse.

34. Gasoline storage.

35-37. Observation towers.

38. Storehouse freight.

*58739. Radio towers.

40. Water tower.

41. Producer gas plant.

List No. *3.*— Nontechnical *buildings*

51-52. Barracks.

53. Quartermaster storehouse.

54. Commissary storehouse.

55. Ordnance and Signal Corps storehouse.

56. Bakery.

57. Wood and coal shed.

58. Stable.

59. Lunch room.

60. Guardhouse.

61. Administration building.

62. Flag staff.

65-76-88. Commissioned officers’ quarters.

87. Garage.

98-108. Noncommissioned officers’ quarters.

111-112, 117-125, 129-162. Civilian employees’ quarters.'

163.Post exchange building.

List No. 4

164. Hospital.

165. Hospital stewards’ quarters.

The sketches made by the architects and «furnished the plaintiff by the Government showed that the buildings were to be of concrete, stone, brick, and steel. They included masonry buildings with slate roofs, many of them fireproof with steel roof trusses, some of reinforced concrete construction veneered with architectural brick, terra cotta, and stonework. They contemplated concrete roads and sidewalks through the field, and the construction of a power and central heating plant to furnish heat, power, and light to the various buildings of the field. It included civilian quarters for 1,400 to 1,500 persons, officers’ quarters for 12 officers, and two barracks for about 150 enlisted men.

IY. The plaintiff commenced work immediately following the signing of the contract, and proceeded to erect buildings of stone, steel, brick, and concrete in accordance with the sketches and plans of the architect Kahn. A *588list of the buildings for which plans of the architect were ¡given plaintiff follows:

Boathouse dock.

Boathouse.

Power plant.

Gasoline storage.

Seaplane hangars.

Engine storage and machine shop.

Foundry.

Aircraft construction shop.

Laboratory building.

Wind channel building.

Storehouse (technical).

Truck shed.

Sewage-disposal building.

Airplane hangars.

Observation towers.

Barracks.

Guardhouse.

Administration building.

Commissioned officers’ quarters.

Noncommissioned officers’ quarters.

Civilian employees’ quarters.

Hospital.

* Noncommissioned officers’ houses.

* Commissioned officers’ houses.

* Oil-reclaiming station.

* Garbage incinerator.

The last four buildings to be purchased in Washington.

Y. As the war progressed the Government found it necessary to use the field for purposes which were not contemplated when the contract was signed. The defendant made use of the locality as a training ground for fliers and aerial observers and as a concentration camp for troops destined for overseas duty, such as aviation construction squadrons and labor battalions.

The advent of these troops necessitated the immediate construction of barracks, hangars, mess halls, officers’ quarters, latrines, and other structures to house the military post and to provide for its activities. Many of these structures were built by the construction troops concentrated at the station with the assistance of the plaintiff’s labor and materials. No part of this construction work was designed by *589the architect Kahn, or was in accordance with the sketches prepared by him. This temporary work was done by the plaintiff at the request and upon the authority of representatives of the defendant who had charge of the construction work at Langley Field.

VI. Construction work in accordance with the plans amounting to the sum of $5,209,710.72 had been done and the sum of $1,028,518.21 had been expended in the temporary and substituted work, making the sum spent by the plaintiff at Langley Field $6,238,228.78, when on August 15, 1919, all work by the plaintiff was terminated by the defendant under a clause of the contract which provided that the contracting officer could under certain conditions terminate the contract. If the contract had not been terminated, and if the Government had compelled the plaintiff to complete the work in accordance with the terms and specifications of the contract, at least $8,000,000 would have been spent in completing the contract, and under the terms of the contract the plaintiff could only have received a fee of $250,000. At the time the plaintiff entered into the contract the ultimate cost of the work had not been and could not be ascertained. The Chief Signal Officer estimated the cost at $3,283,500. The plaintiff was told by Lieut. Col. C. G. Edgar, in charge of aviation construction work, that the above estimate was far too low. At the time it entered into the contract the plaintiff knew the general character and nature of the buildings and the work to be done at Langley Field, and was in as good a position to estimate the cost of the work as were the agents of the Government.

VII. The plaintiff, on being requested to perform work which in its opinion was outside the provisions of the contract, asked that an additional written contract should be prepared whereby it might be assured that the plaintiff would receive an additional fee for the additional work, and while the contracting officer and others of the officers on the site of the work gave some assurances that this would be done, yet it never was done. Orders for this temporary, substituted, and additional work were given by officers of the Signal *590Corps and by the officers in charge of the work, and this work was carried on simultaneously by the plaintiff with the construction of the permanent work and with the same force and organization engaged in the permanent work, and the temporary and substituted work was executed by the plaintiff under all the terms and conditions contained in the written contract of June 20, 1917, and without protest on its part.

The contracting officer designated his assistant to determine the items which in his opinion fell without the contemplation of the contract of June 20, 1917; the said assistant gave it as his opinion that enough of the items fell outside the contract to make the additional fee which the plaintiff was claiming, amounting to the sum of $54,358, the amount for which the plaintiff is bringing this suit. The opinion given by this officer was never acted upon; no agreement either in writing or verbal was made with the plaintiff by any officer of the Government authorized to do so to pay the plaintiff the above amount or any amount.

VIII. Plaintiff presented a claim to the Secretary of War on May 8,1919, who failed to offer any adjustment, payment, or compensation and denied relief to the plaintiff. Plaintiff brought its action in the court. May 2, 1921.

IX. Exhibit B, attached to plaintiff’s petition, and which is made a part hereof by reference, is a statement of items which the plaintiff claims is work outside of the contract. Exhibit C attached to the plaintiff’s petition, and which is made a part hereof by reference, is a statement of what the plaintif claims is work outside of the contract, and which it claims was agreed upon by it and the officers of the defendant, and upon which it bases its right to recover in this action.

Exhibit D attached to plaintiff’s petition, and which is made a part hereof by reference, is a memorandum addressed to the finance branch, supply section, by Lieut. Col. T. G. Gallagher and is dated February 4, 1919, several months after the termination of the contract of the plaintiff. Colonel Gallagher had no authority to contract with the plaintiff, nor to determine what items were or were not a *591part of the construction, provided for in the contract of June 20, 1917.

X. Fifty-four thousand three hundred and fifty-eight dollars is a reasonable fee for what the plaintiff claims to be work outside of the contract.

The court decided that plaintiff was not entitled to recover.

Hat, Judge,

delivered the opinion of the court:

The question, and the only question for our determination in this case, is whether the plaintiff is entitled to an additional fee based upon the cost of the substituted and temporary work apart from the fee of $250,000 which has been paid under the terms of the contract of June 20, 1917.

The contract of June 20, 1917, called for “ The construction of an aeronautical experiment station at Langley Field, near Hampton, Va., in accordance with the plans and specifications of Albert Kahn, of Detroit, Mich.”

Article I of the contract provides:

> “ The contracting officer may, from time to time, by written instructions or drawings issued to the contractor, make changes in said drawings and specifications, issue additional instructions, require additional work, or direct the omission of work previously ordered, and the provisions of this contract shall apply to all such changes, modifications, and additions with the same effect as if they were embodied in the original drawings and specifications. The contractor shall comply with all such written instructions or drawings.”

The only interest which the plaintiff had in the Langley Field construction was the fee which it was to receive, and which was based upon the sliding scale of percentages to be determined by the cost of the work, but said fee was in no event to exceed the sum of $250,000. The cost of the work, therefore, was the matter in which the plaintiff was interested. It entered into .the contract of June 20, 1917, and agreed to do the work contemplated under that contract, which would have cost the Government at least $8,000,000 had the work under the contract been completed, with the distinct understanding and agreement that at such a cost in labor, material, and overhead it would receive only the *592sum of $250,000 as a fee. It can *not be denied that the Government could have compelled the plaintiff to complete the work under the contract, no matter if the cost thereof had been more than $8,000,000, and this work it would have been compelled to perform for a total fee of $250,000. Therefore any changes in the plans and specifications or elimination or substitution of work which did not increase the cost beyond the amount which the Government could have called for under the contract, and which the plaintiff could have done and did do with the same force and organization, would not have placed upon the plaintiff any greater burden than was resting upon it under the terms of the written contract.

Under the terms of the contract the contracting officer had the right to require additional work or direct the omission of work previously ordered, as well as to make changes in the drawings and specifications. The substitution of the temporary work, which was less expensive than the permanent work, worked no hardship upon the plaintiff, and was done by it without protest. So long as the total cost of the work required of the plaintiff was less than the cost of Avork which the plaintiff could have been required to perform under the terms of the written contract the plaintiff could not complain. There was here a substitution of less expensive work than was contemplated by the contract. This was done by the plaintiff without protest and with its consent. The interest which the plaintiff had in the work was the fee, which depended upon the cost of the work. The cost of the temporary work which the plaintiff was called upon to perform, and which it did perform at the same time, and with the same force and organization with which it was doing the permanent work, was far less than that which could have been called for under the terms of the written contract. It follows that the substitution of temporary for permanent work could not obligate the Government to pay an additional fee in excess of the fee authorized by the written contract. The termination of the contract by the Government did not work a hardship upon the plaintiff. On the contrary it relieved the plaintiff of doing *593work for which it would have received no more than had already been paid for the work which it had performed when the contract was terminated. The plaintiff recognizing this made no complaint and no protest when the contract was terminated.

This is a suit brought under the Dent Act of March 2, 1919, 40 Stat. 1272, and in order to recover the plaintiff must bring itself within the provisions of that act. It does not appear in this case that any officer or agent acting under the authority of the Secretary of War or the President entered into a contract, express or implied, with the plaintiff to pay it for the services which it claims it rendered outside of the written contract of June 20, 1917. Therefore, if for no other reason, the plaintiff can not recover, and its petition must be dismissed.

It is so ordered.

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