#### JOHN M. DOZIER, LLOYD U. NOLAND, ALLIE G. TOLKER, AARON A. MEYERS, AND WILLIAM T. CHAPIN, TRADING AS ATLANTIC SALVAGE COMPANY, v. THE UNITED STATES

[No. B-3.

Decided February 15, 1926]

*On the Proofs*

*Interpretation of contract; finding T)y OMef of Construction Division, U. 8. Army.*— Where tlie specifications of a contract for tlie sale of a laundry building provide that tbe interpretation thereof by the Chief of the Construction Division of the Army shall be final, his finding as to what equipment in the building was included in the sale will not be disturbed by this court.

*The Reporter's*statement of the case:

*Mr. G-eorge R. Shields*for the plaintiff. *King and King*were on the briefs.

*Mr. John E.*Hoover, with whom was *Mr. Assistant Attorney General Hermam J.*Galloway, for the defendant. *Mr. Joseph Hewry Gohen*was on the brief.

The court made special findings of fact, as follows:

I. The plaintiffs, John M. Dozier, Lloyd N. Noland, Allie G. Tolker, Aaron A. Meyers, and William T. Chapin, during all the times herein involved were copartners trading under the firm name and style of Atlantic Salvage Co.

II. By advertisement dated October 6, 1919, the Chief of Construction Division of the War Department invited bids for the purchase of certain Government-owned improvements at or near Newport News, Va., including a group of buildings known as Camp Stuart. Among the buildings at Camp Stuart was a large structure, approximately 300 feet long by 162 feet in width, known and designated as the laundry building. At the time bids were invited, and at the time the contract of sale hereinafter mentioned was entered into, the laundry building was fully equipped with all the steam and water piping, boilers, valves, belting, electrical material, heating equipment, motors, and shafting necessary for the operation of a laundry, and all of this equipment was at the time used in connection with the operation of a laundry by *623the Government; but, with the exception of the laundry machinery proper, such as washing machines, flatwork irons, driers, starch machinery, etc., the equipment consisting of valves, steam and water piping, belting, electrical material, heating equipment, motors, shafting, etc., was suitable for and could have been utilized for other industrial purposes.

III. Before submitting their bid or entering into the formal contract of purchase hereinafter mentioned, plaintiffs carefully inspected the various buildings and equipment to be sold and made particular inquiry at the office of the camp utilities officer as to what equipment in the laundry building was to be included in the sale, and they were informed by one of the subordinates who represented the camp utilities officer that the. “ laundry equipment ” that would be reserved meant laundry machines that were used in washing and ironing clothes, such as ironers, washers, soap, tubs, etc., and that the piping, shafting, heating system, motors, boilers, etc., went with the building and passed to the purchaser.

IY. On November 10, 1919, plaintiffs submitted a bid for the purchase of the buildings advertised, including the laundry building, and proposed to pay therefor the sum of $253,620, which proposal was duly accepted by the War Department.

Y. By formal contract dated December 3, 1919, the United States, represented by Lieut. Col. William Couper, Quartermaster Corps, United States Army, sold and the plaintiffs bought and paid for at the lump-sum price of $253,620 all the Government-owned buildings at and near Newport News, Ya., included in the advertisement of October 6, 1919, including the group of buildings known as Camp Stuart, and including particularly the large building in that group known as the laundry building.

By the terms of said contract and the specifications forming a part thereof plaintiffs obligated themselves to dismantle all of said buildings and remove the same and tear up roadways and sewers located on rented lands on or prior to June 30, 1920, and the United States agreed to release all rights of possession to the property sold and deliver certain buildings to the plaintiffs on or before June 30, 1920. *624Certain other buildings, including the laundry building, were not to be delivered to plaintiffs until February 1, 1920, unless released to purchaser in writing prior to that date as a result of the Government having no further need for these buildings and utilities.

A copy of the contract, together with the specifications appended thereto and made a part of the contract, and a map showing the location of the various buildings and materials, are attached to and made a part of the original petition herein, marked “ Exhibits A, B, and C,” respectively, and are made a part of this finding by reference.

Exhibit B does not set out in full the specifications attached to and made a part of the contract; that part of the specifications left out of Exhibit B is as follows:

“ 1. *Location.*— All property for sale is located in and adjacent to Newport News, Virginia.

“2. *Property for sate.*— All Government-owned improvements as outlined in paragraph eight (8), clause *(e)*of this specification will be sold subject to the exceptions and reservations noted in paragraph three (3) of this specification.

“ 3. *Reservations and exemptions.*— (a) The following property is not included in this sale:

“ Buildings which were located on the various properties prior to Government occupancy.

“ Buildings erected by benevolent, charitable, and kindred organizations.

“ Telephone and telegraph systems, fire-fighting apparatus and equipment, surgical equipment, kitchen equipment, in embarkation hospital, refrigerating and ice-making machinery, laundry equipment, construction equipment, small tools, tents, rolling stock, livestock, bakery equipment, supplies, and surplus material or equipment.

“ The above-naméd items will be removed by the Government, but the buildings in which they are contained are not excluded from the sale.

“(5) At Camp Stuart the laundry, the bakery, the division storehouses, and adjacent buildings (located between 4th St., B St., West, 6th St. extended, and the camp boundary) together with all utilities serving them (such as water, sewer, electric, road, and track systems) will not be delivered until February 1, 1920, unless released to purchaser in writing prior to that date aS a result of the Government having no further need for these buildings and utilities.”

*625VI. The United States continued to operate a laundry in said building until on or about May 1, 1920, and delivered the possession of the same to plaintiffs on May 28, 1920.. Three warehouse buildings were delivered April 1, 1920; three warehouse buildings were delivered April 30, 1920; and two of the warehouse buildings were delivered May 15,. 1920.

VII. On or about May 1, 1920, the United States proceeded to dismantle, preparatory to removing from the laundry building, the permanent mechanical equipment of all kinds, including the washing machines, tubs, driers, and also the steam and water piping, valves, tees, ells, radiators, shafting, pulleys, couplings, belting, machines, motors, heating apparatus, and bolts. Plaintiffs protested against the removal of all equipment other than the laundry machinery proper, such as washers, driers, tubs, etc., that was used in the washing and ironing of clothes. Notwithstanding such protest all mechanical equipment except steam boilers were disconnected and dismantled, and, except for a very few small parts, removed altogether from the building and the camp and shipped elsewhere for utilization at other points.

VIII. A dispute arose as to the right of the United States to remove the mechanical equipment from the laundry. Plaintiffs contended that all of the equipment except the machinery that was actually used in the washing and ironing of clothes, such as washing machines, ironers, soap tubs, driers, etc., went with the building, while the representatives of the United States contended that all piping accessory to the boilers and injectors, pumpers, and other appurtenances, and all piping leading from the point of service to the laundry machinery was laundry equipment; also that all motors used to drive any individual piece of laundry machinery was a part of the laundry equipment and therefore belonged to the United States. The only part of the mechanical equipment that the representatives of the United States conceded to be permanent installation, and therefore the property of the purchaser, was the boiler in the laundry building.

*626Plaintiffs appealed to the chief of the construction division to stop the removal of the equipment and to restore that already removed, and on April 22, 1920, the chief of the construction division sent the following telegram, a copy of which was furnished plaintiffs:

[Telegram] 3-2752

191

‘RiftP.ftl ~ypp]

10NCD 29, Govt. WA/Washington, D. C., 10.08 A. M., Apr. 22, 1920.

COMMANDING OeEICER,

*Army Supply*Post, Norfolk, *Va.*

(Attention utilities officer).

Suspend operation on dismantling of Army equipment in laundry building until further advised by this office.

MARSHALL.

Utilities, Gonzer. 10.30 a. m.

IX. On May 11, 1S)20, the chief of the construction divi- , sion, after having duly considered the claim of the plaintiffs, rendered the following decision:

Mat 11, 1920.

633.3 CR-WD (Norfolk A. S. base).

From: Chief of Construction Division.

To: Commanding General, Eastern Department, Governors Island, N. Y.

1. It is requested that the utilities officer, Army supply base, Norfolk, Va., be advised that the following resolution was passed by the board of sales of this division relative to the claim of the Atlantic Salvage Company, purchasers of Camp Stuart, Va., pertaining to certain equipment in the laundry building.

2. The resolution is as follows:

“ Camp Stuart ”: The meeting was called for the purpose of giving consideration to the claim of the Atlantic Salvage Company in connection with equipment in the laundry building, Camp Stuart, Newport News, Va., purchased by the said company. Claimant contends that the boilers, piping, line shafting, transformers, and like apparatus were sold, with the building. The proposal, specifications, and contract, however, exempted laundry equipment from the sale. At this meeting Messrs. Nolan, Gauntlett, and Ferguson, in behalf of the Atlantic Salvage Company, appeared *627before the board and made statements in substantiation of tbeir claim. The plaintiff submitted letters from Major Thom, former port utilities officer, and the present port utilities officer, showing that they were informed that the said material was included in the sale. It was the consensus •of opinion of the board that where definite representations are made prior to the sale by any officer of the Government and there is nothing in the sale that is absolutely in conflict with it, the representations of the agent should govern. After discussion and due consideration the following motion was offered by Colonel Lamphere:

“ Whereas a dispute has arisen between the Atlantic Salvage Company and the United States in regard to the interpretation of the words ‘ laundry equipment ’ as set out in their contract for the purchase of Camp Stuart, sale No. 7293; and

“Whereas it appears from the statement of L. G. Thom, major, Q. M. C., former port utilities officer, Newport News, Va., that Major Thom had charge of the material in question and did prior to the sale thereof advise the Atlantic Salvage Company that the boilers, piping, line shafting, and .motors driving line shafting, and the transformers and line apparatus were sold with the building: Now, therefore, be it

“ *Resolved,*That the said sale is hereby construed to include, and to pass to the purchaser of said building, the •above enumerated equipment in said building, and that any of such material or equipment that has been removed from the building shall be returned to the purchaser at the site of the building at Government expense.”

The motion, upon being seconded by Major Gonzer, received the affirmative vote of all members present.

3. It is requested that delivery of materials in question be .made in accordance with the terms as outlined in the above resolution.

4. This supersedes all previous communications and'rulings in regard to what material was included under *“*laundry •equipment ” in connection with the disposal of Camp Stuart, and more particularly the machinery in the laundry build;ing.

By authority of the Chief of Construction Division G. J. Gonzer, major, Infantry, U. S. A., Acting Chief of Utilities [Division.

X. Following the receipt of the decision of the chief of the construction division, plaintiffs made demand for the return and reinstallation of the mechanical equipment that ?had been removed from the building, and were ready and *628willing to accept the return of such equipment and materials- or to accept similar equipment that could be reinstalled.. Promises were made from time to time that such equipment would be returned in kind, but no part of the' equipment removed has been returned or restored to the plaintiffs.

Plaintiffs waited for more than 12 months for the return of the equipment that had been removed, but the United! States never offered to reinstall the mechanical fixtures-removed or to reequip the building to conform to its condition when sold. On or about May 24, 1921, plaintiffs notified the United States that they would not then accept the-return of such material. On August 23, 1920, plaintiffs-filed a claim for the value of the equipment that had been removed in the sum of $-49,569.39. Attached to and made a. part of the claim was an itemized statement of all of the-material that had been removed, giving the value thereof,, aggregating the amount of the claim filed. On December 8,. 1920, Col. E. S. Walton, Quartermaster Corps, after having-checked the claim of plaintiffs submitted under date of’ August 23, 1920, sent a letter to the plaintiffs stating that there should be deducted from the amount of the claim submitted a net overcharge of $3,406.71, thus reducing the claim: to $46,162.68. The value of the equipment that the Government removed from the laundry building was, at the time-it was removed, $46,162.68.

XI. Subsequent to December 8, 1920, many letters passed between the representatives of the United States and plaintiffs in reference to a settlement of their claim. On December 8, 1920, Col. E. S. Walton, of the Quartermaster Corps,. U. S. A., wrote the plaintiffs and asked whether the amount of $40,786.89 would be accepted in full satisfaction of their claim. On December 11, 1920, plaintiffs wrote a letter to the-War Department and stated that they would accept in full satisfaction of their claim a lump sum of $40,786.89. On December 28, 1920, Col. E. S. Walton, Quartermaster Corps,, advised plaintiffs by letter that their claim had been referred to the claims board, construction service, for further action, by them before transmitting same to the Auditor for the Wax-Department. On March 11, 1921, F. B. Wheaton, major,. Quartermaster Corps, sent plaintiffs the following letter:

*629WAR DEPARTMENT,

Oeeice OF THE

Quartermaster General of the Army,

Washington, *March 11, 19M.*

No. 602.2, Camp Stuart.

From: Tbe Quartermaster General.

To: Atlantic Salvage Company, P. O. Box 828, Newport

News, Ya.

Subject: Claim of the Atlantic Salvage Co. for material removed from laundry building, Camp Stuart.

1. With reference to your claim of $46,162.68 for material removed by the Government from the laundry building at Camp Stuart after the sale thereof to you, you are advised that the salvage branch, supply service, office of the Quartermaster General, has been requested to substitute the material for the laundry building at Camp Lee, Ya.

2. Such material similar to that contained in your claim .as is now on the ground at Newport News, the quartermaster supply officer, Norfolk intermediate depot, Norfolk, Ya., has •been instructed to deliver to your company. The remainder •of the material will be furnished from Camp Lee, as above stated, and will be consigned to the quartermaster supply •officer, Newport News, Ya., for delivery to you upon its arrival at that place.

By authority of the Quartermaster General.

'On June 15, 1921, plaintiffs wrote the War Department •stating that they did not desire the replacement of material removed from the laundry building at Camp Stuart, and insisted upon the payment of their claim. On June 25, 1921, the Quartermaster General wrote the plaintiffs stating that .there was no appropriation from which claims of the nature :.in question could be paid, and that the War Department considered the letter of June 15, 1921, refusing replacement of ■material, as final and the case was therefore closed on the records of the War Department.

XII. A fair rental value of the laundry building for that ;period beginning February 1,1920, when it should have been •delivered to plaintiffs, to May 28, 1920, when the same was •delivered, was $400 per month. Plaintiffs never at any time •objected to the Government’s using the laundry building ■.subsequent to February 1, 1920, and the same was used by the Government with their knowledge and consent. They never .made .any .demand for the payment of rent for the *630laundry building for that period of time subsequent to February 1, 1920. A fair rental value for the warehouse buildings was $150 per month for each of said buildings. However, plaintiffs never demanded that the Government surrender the possession of said buildings, or any of them, and never protested the use of the same by the Government; nor did they at any time demand any rent for the use of the warehouses subsequent to February 1, 1920.

The court decided that plaintiffs were entitled to recover.

Hay, Judge,

delivered the opinion of the court:

The plaintiffs entered into a written contract to purchase from the United States Government-owned improvements near Newport News, Va., which included a group of buildings known as Camp Stuart, for which they agreed to pay the sum of $253,620, which sum was paid by them to the United States. Among the buildings at Camp Stuart was one known as the laundry building, a structure 300 feet long by 162 feet wide, which contained laundry equipment and machinery. Before making their bid or entering into the written contract the plaintiffs inspected the laundry building, as they were requested by the Government to do, and made inquiry at the office of the0camp utilities officer as to what equipment in the laundry building was to be included in the sale, and were told by the officer whose duty it was to give information, and who had been designated for that purpose by the officer with authority to give definite information to bidders, that the laundry equipment which would be reserved meant laundry machines that were used in washing and ironing clothes, such as ironers, washers, soap, tubs, etc., and that the piping, shafting, heating system, motors, boilers, etc., went with the building and passed to the purchaser. With this understanding the plaintiffs executed, the written contract.

The specifications, which were made a part of the contract, provided as follows:

> “3. *Reservations and*exemptions.— *(a)*The following property is not included in this sale:

> *631“ Telephone and telegraph systems, fire-fighting apparatus and equipment, surgical equipment, kitchen equipment in embarkation hospital, refrigerating and ice-making machinery, *laundry*equipment, construction equipment, small tools, tents, rolling stock, livestock, bakery equipment, supplies, and surplus material or equipment. * * * ”

The Government, after the contract was signed and before the laundry building was delivered to the plaintiff, removed from the building, claiming to act under the provisions of the aforesaid specification, washing machines, flatwork iron-ers, starch machinery, shafting, pulleys, belting, steam pipes, and other things claimed by its employees to be laundry equipment. While this property was being removed the plaintiffs protested against the removal of any property except the machinery that was actually used in the washing and ironing of clothes.

The specifications, which were a part of the contract, provided as follows:

> “(c) Any doubt as to the meaning of this specification or of the map accompanying the same, or any obscuritjr in the wording thereof, shall be interpreted by the Chief of the Construction Division of the Army, and his decision and instructions-necessary to complete the provisions of specification and consummate the sale shall be final.”

When the dispute arose between the plaintiffs and the representatives of the Government the plaintiffs carried their protest to the Chief of the Construction Division of the Army, who upon the protest being presented to him telegraphed to the commanding officer Army supply post, Norfolk, Va., as follows: “ Suspend operation on dismantling of Army equipment in laundry building until further advised by this office.” On May 11, 1920, the Chief of the Construction Division of the Army after having considered the claim of the plaintiffs rendered a decision in favor of the plaintiffs, which decision is set out in Findng IX. This decision is final, and will not be disturbed by this court. This doctrine is so well established that it is unnecessary to refer to the many decisions which the Supreme Court of the United States and this court have made upon this subject.

*632The decision above set out was never carried into effect by the United States. The equipment was never returned to -the plaintiffs.

The plaintiffs have proved the value of the equipment removed by the United States, and a judgment must be awarded them for the value of the equipment removed. That value amounts to the sum of $46,162.68, and judgment for that amount will be entered in favor of the plaintiffs. And :it is so ordered.

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