#### CLEVELAND SKINKER AND WILBUR R. GARRETT, TRADING UNDER THE FIRM NAME AND STYLE OF SKINKER & GARRETT, v. THE UNITED STATES

[No. A-28.

Decided December 7, 1926]

*On the Proofs*

*Contract; acts of July 11, 1919, and August If,, 1919; breach.*See *Weller Construction Co. case, post, p. 261.*

*The Reporter's*statement of the case:

*Mr. Bolitha Laws*for the plaintiff. *Mr. William E. Leahy*and *Cromelin & Laws*were on the briefs.

*Mr. Dan M. Jackson,*with whom was *Mr. Assistant Attorney General Merman J. Galloway,*for the defendant. *Mr, Edward D. Mays*was on the briefs.

The court made special findings of fact, as follows:

I. On June 27, 1919, the plaintiffs, Cleveland Skinker and Wilbur R. Garrett, partners doing business under the firm name of Skinker and Garrett, Washington, D. C., entered into a written contract with the United States. The said contract was executed by Joseph M. Story, captain, Quartermaster Corps, United States Army, who had authority to execute and sign-said contract for and in behalf of the United States. The said contract provided for the construction of certain bungalows, 38 in all; road work; clearing and grading at Camp Humphreys, Va.; in accordance with plans and specifications attached to and made a part of such contract at the prices set forth in the proposal sheet of Skinker & Garrett, all for the lump sum price of $381,895.32, and in addition thereto to furnish labor and material for the construction at said Camp Humphreys of a gas filling station, two sections of concrete road, and for doing certain other work specified therein at the exact cost of the labor and material plus 7 per cent thereon for profit. A true copy of said written contract is attached to and *227made a part of plaintiffs’ petition herein and is made a part of this finding by reference.

Under the terms of the contract the work was to be completed as soon as possible.

II. On June 29, 1919, plaintiffs began work under the contract. They entered into subcontracts with Arthur Lowe, S. W. Rittenhouse, Henry James, the Hampton Construction Co., Barber & Ross, and James E. Hall. Subcontractor Arthur Lowe in turn relet a portion of his work to J. N. Landis. Material was placed on the grounds. Mechanics and laborers, timekeepers, superintendents, and office force were engaged and the buildings started.

On July 9, 1919, the constructing quartermaster handed the field representative of the plaintiffs a letter dated July 8, 1919, reading as follows:

War DEPARTMENT,

Office of the Constructing Quartermaster,

*(lamp A. A.*Humphreys, Virginia, *July 8, 1919.*From: Constructing quartermaster.

To: Skinker & Garrett, Camp A. A. Humphreys, Va... Subject: Suspension of contract.

1. In accordance with verbal instructions of July 7th, you are hereby notified that you will cease work on your contract as of the close of work July 7th.

2. The Government will assume no responsibilities for any work done after that date.

Jos. M. Stort,

*Gapt., Q. M.*G., *Constructing Quartermaster.*

III. Immediately following the receipt of the said letter, notifying them to cease work as of July 7, plaintiffs had a conference with Captain Story and Colonel Parks in reference to further performance of the contract. Both of said officers informed plaintiffs that the work was suspended only, and that they should keep their organization together and be ready to continue the work in the near future. Relying upon these representations plaintiffs kept their organization together and made all preparations to go ahead with the work at such time as orders should be received authorizing them to proceed.

*228On October 9, 1919, Maj. George F. Heustis sent plaintiffs a letter canceling the contract as follows:

WAR DEPARTMENT,

Ojtpioe oe the Constructing Quartermaster,

*Camp A. A.*Humphreys, Virginia, *October 9, 1919.*From: Constructing quartermaster.

To: Skinker & Garrett, 1416 F St. NW., Washington, D. C. Subject: Cancelling of contract.

1. You are advised that contract dated June 27th, 1919, between Captain Jos. M. Story, Q. M. C., and Skinker & Garrett, of Washington, D. C. for construction of bungalows, road work, clearing, and grading at Camp A. A. Humphreys, Va., is hereby cancelled.

George F. Heustis,

*Major, Q. M. C., Constructing Quartermaster.*

Copy to Chief of Construction Division, War Department, Washington, D. C.

Copy to Auditor for the War Department, Washington,

D. C.

The plaintiffs were read_y, willing, and able to complete the contract, and at the time of the cancellation of the same they were making good progress toward the completion of the same. Subsequent to the cancellation of the contract the 38 bungalows were built, and all other work called for under the contract was completed by other contractors.

IV. On July 11, 1919, a law was passed by Congress which, in the opinion of the Chief of the Construction Division, United States Army, operated to withdraw the appropriation which, had been made for work at Camp Hum-phreys, and which in his opinion necessitated the cancellation of the contract entered into by the United States with the plaintiffs. On August 12, 1919, the following act of Congress was approved:

“Whereas by an act approved July 11, 1919 (Public Number 7, Sixty-sixth Congress, H. R. 5227), it is provided as follows:

“ That no part of any of the appropriations made herein nor anjr of the unexpended balances of appropriations heretofore made for the support and maintenance of the Army or the Military Establishment shall be expended for the purchase of real estate for the construction of Army camps or *229cantonments except in such cases at National Army or National Guard camps or cantonments which were in use prior to November 11, 1918, where it has been or may be found more economical to the Government for the purpose of salvaging such camps or cantonments fi> buy real estate than to continue to pay rentals or claims for damages thereon, and except where industrial plants have been constructed or taken over by the Government for war purposes and the purchase of land is necessary in order to protect the interest of the Government ’; and

“ Whereas doubt exists as to the proper interpretation of said provision and as to the intention of Congress in enacting the same: Therefore be it

“ *Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,*That the foregoing provision of said act shall not be construed to prevent the payment from the unexpended balances of said appropriations of bills lawfully incurred for construction work actually performed or construction material actually purchased and actually produced under the terms of the contract prior to the approval of said act.”

This act was also interpreted by the Chief of the Construction Division of the United States Army as operating not only to cancel the said contract but to prevent payment for work done, losses incurred, and profits.

V. Subsequent to October 9, when the contract was canceled, no construction work was done by plaintiffs, but the plaintiffs were required to keep, and did keep, some men on the job until on or about October 15 cleaning up around the works and also taking care of and protecting some Government property.

VI. The plaintiffs performed a part of the work required by the contract prior to July 9, 1919, and paid out on that account the sum of $1,491.85. The plaintiffs also earned the sum of $27.65, or 7 per cent on work actually performed under the cost-plus item of the contract ($394.93).

The cost of the work performed and money expended subsequent to July 9, 1919, and prior to October 9, 1919, including the services of the men who were kept on the field cleaning up the grounds and protecting the Government’s property until July 15, 1919 (all of which was done by direction and on request of the contracting officer), was the sum of $2,711.67. The total amount of money so ex*230pended in the performance of the contract, including the sum of $27.65, was the sum of $4,231.17.

VII. The plaintiffs obligated themselves to pay the sum of $5,728.32 premium on construction bond, which they were obliged to execute under the terms of the contract. This bond was for the entire period which the contract would have run if the same had been completed. The plaintiffs have not paid this amount; the bond has not been released and the surety company refuses to give any rebate for the unexpired portion of the term of the bond. Negotiations have been had by the plaintiffs with the surety company, and the company has agreed to put off the collection of the premium until after this suit has been decided; nor is it settled between the plaintiffs and the surety company how much of the premium will be exacted.

VIII. Subsequent to the cancellation of the contract claims were filed against plaintiffs by subcontractors and material men as follows:

Arthur Lowe, electrical contractor_|3, 628. 80

S. W. Eittenliouse, plumbing contractor_ 7, 769. 82

Henry James, brick contractor_ 1, 712. 50

Hampton Construction Co_ 11, 728.69

Barber & Eoss, millwork and glass_ 870.00

James E. Hall, painting contractor_ 164.40

The total amount of claims filed against the plaintiffs by the subcontractors was $25,874.21. None of these claims have been paid, but plaintiffs are financially responsible and liable for the same.

IX.If plaintiffs had been allowed to complete the contract they would have made a profit. The reasonable profit to which the plaintiffs are entitled under the evidence in the case is the sum of $34,681.82.

The court decided that plaintiffs were entitled to recover, in part.

Hay, *Judge,*

delivered the opinion of the court:

This is a suit brought by the plaintiffs to recover the sum of $70,515.52 by reason of a contract which they had with the United States and which they alleged was breached by the defendant.

*231We are of opinion that the contract was breached by the United States, and that the plaintiffs are entitled to recover the sum of $64,787.20.

In the case of *Weller Construction Company*v. *United States,*A-188, decided this day, *post,*p. 261, we have fully discussed the principles of law which govern the case at bar and deem it unnecessary to repeat that discussion here. See the *Weller Construction Company case, supra,*and cases therein cited.

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