#### PROGRESS LAUNDRY v. THE UNITED STATES

[No. D-826.

Decided January 17, 1927]

*On the Proofs*

*Contract; lau/ndry work; condensation- for increase in facilities.-*— • Where the Government awards a contract for laundry work with the understanding that the contractor will construct adequate facilities therefor, and the contract does not require the contractor to construct said facilities or obligate the Government to pay for them, the contractor can not recover their cost.

*Bame; quantity of work to*he *furnished.*— Where a contractor agreed to clean and repair clothing and equipment “to be furnished by the reclamation division at Oamp MacArthur, Texas,” and the contract did not specify the amount of such clothing and equipment, the contractor is entitled only to the contract price for the articles furnished.

*The Reporter’s*statement of the case:

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

*Mr. Heber H.*Rice, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Progress Laundry, is a duly created corporation under the laws of the State of Texas, and is authorized to engage in laundry business at Government camps and other points.

II. On May 15, 1918, the camp quartermaster at Camp MacArthur, Waco, Tex., advertised for bids for cleaning and renovating Government clothing and equipment at the camp and forwarded proposals for the work to prospective bidders, among whom was the plaintiff. The bids were received May 27, 1918, and that of plaintiff being the lowest and most satisfactory, the plaintiff was awarded the contract.

Accordingly, thereafter a contract was executed, to wit, on June 15, 1918, between the plaintiff, by its president, D. P. Wallace, and the defendant, by its contracting officer, E. H. Andres, lieutenant colonel, Quartermaster Corps, United States Army, a copy of which is attached to the *711petition as “■ Exhibit A” and is made a part hereof by reference. The said copy omits a double bar or cross rule which appears across the face of the original instrument after the line ending with the words “ Penalty of Bond $40,000.00,” and before the line beginning with *“*These Articles of Agreement.”

III. The contract provided that the contractor was to clean, dry-clean, press, resize, and repair articles of uniform clothing and equipment to be furnished by the reclamation division at Camp MacArthur, Tex., under certain specifications, and to deliver, when sufficient quantities were furnished by the Government, a minimum daily of 320 pairs of woolen O. D. breeches, 320 woolen O. D. coats, 416 flannel shirts, and 200 woolen overcoats, payment for all work to be made monthly at stipulated prices.

Under the terms of the proposal and bid the plaintiff was to furnish the required bond for faithful performance and sufficient fire insurance in favor of the Government to protect against any loss by fire. The plaintiff was required by the defendant to furnish, and it did furnish, a bond in the penal sum of $40,000 for faithful performance and fire insurance in a sum which is not disclosed by the evidence. The amounts of the bond and fire insurance were determined by the Quartermaster Corps by a process unknown to the plaintiff.

IY. Lieut. Col. E. H. Andres was the duly authorized contracting officer for the Government at Camp MacArthur. Certain of his subordinate officers, among whom were Capt. S. E. Levy and Lieut. H. L. Fist, assisted in advertising for the aforesaid services and in the preparation of the contract referred to. None of the said subordinate officers had authority to contract for or in behalf of the Government.

The commercial laundry facilities in the vicinity of the camp- were insufficient to care for its needs, and the camp had none of its own. It was therefore necessary to make special arrangements. In the negotiations preliminary to the contract Captain Levy showed the plaintiff’s president, D. P. Wallace, the clothing then on hand at the camp that would have to be cleaned and renovated under the proposed *712contract. At the same time he calculated the probable sum that plaintiff would receive under the contract, which he fixed in excess of $100,000, and so informed the said Wallace. •• Plaintiff’s cleaning plant was located at Waco, Tex., and was inadequate to take care of the business so estimated. Its president, the said D. P. Wallace, before the contract was executed, assured the defendant’s contracting officer that the plant would be enlarged by the erection of a new building and the installation of sufficient machinery to handle the work under the contract. With the understanding that the said plant would be so enlarged, the contract was signed by the parties thereto, and immediately thereafter the plaintiff proceeded to erect the new building and install the necessary machinery, and the said additional facilities were partially constructed or installed at the time of the armistice •on November 11, 1918. The new building and most of the machinery so installed are now being used by the plaintiff as its laundry and dry-cleaning establishment.

There is no evidence of a promise or agreement on the part of the defendant to pay for the said machinery or building or any part thereof, or to reimburse the plaintiff therefor.

V. Clothing and equipment were furnished at times prior to November 11, 1918, to the plaintiff by the Government under the contract in greater quantities than plaintiff could handle. Thereafter the work greatly decreased, for the reason that demobilization was rapidly taking place and troops were being discharged. The plaintiff during the contract period was given all the work which the camp had to be done under the contract. Deliveries by defendant to the plaintiff ceased in March, 1919.

YI. As the work diminished plaintiff’s president approached Lieut. H. L. Fist, who at that time was the officer in charge of the work that was being done under the contract, and requested of him that the bond and the insurance be reduced accordingly, and that plaintiff be released from responsibility under the contract. The said officer in charge replied that he had no authority to grant the request, and on account of the uncertain situation then prevailing *713and the short duration of the contract he would make no attempt to have the request complied with by those in authority.

VII. In signing- the contract the contracting officer understood the words in the caption of the contract, *“Appropriation and Amount 8. 8. <& T. FY.*1919,” to refer to the congressional appropriation from which the payments under the contract were to be made, and the amount, “ $120,000.00,”. to be an estimate of the maximum likely to be expended, for the services called for, and not as obligating the United States to its expenditure. The representative of the plaintiff understood in signing the contract that the said words and figures were a part thereof, and that the figures, “$120,000.00,” represented the approximate value of the work which plaintiff was to receive thereunder.

VIII. For the aforesaid increased facilities the plaintiff expended the sum of $19,750.82. The items of $10,023 claimed by it as prospective profits and $7,500 for overhead and pay-roll expenses are not proved. The plaintiff has been paid on the contract by the defendant a total of $44,709.63, which it has accepted, the last payment being made May 3, 1919.

IX. The plaintiff submitted a claim under the Dent Act to the War Department Claims Board for the items here sued upon, which the board denied May 28, 1919. Plaintiff appealed to the Board of Contract-Adjustment, War Department, and the Board of Contract Adjustment denied the claim November 12, 1919, on the grounds that the contract, did not obligate the United States to furnish any particular-quantity of clothing, and that it was not the intention of both parties thereto that the United States should be so obligated. On an appeal therefrom the Secretary of War approved and affirmed this decision February 4, 1920.

The court decided that plaintiff was not entitled to recover.

Graham, Judge,

delivered the opinion of the court:

This case involves a contract for dry-cleaning, pressing* resizing, and repairing articles of uniform clothing and *714equipment. The contract, which is dated June 15,1918, contains, among other things, the following provision:

“ 1. That the contractor shall furnish the supplies and services, either or both, specified below, in the manner, at the rates or prices, at the place or places, and at the time or times during the period commencing with the first day of July, 1918, and ending with the 30th day of June, 1919, as follows:

* ££ That the contractor agrees to clean, dry-clean, press, re-size, and repair articles of uniform clothing and equipment to be furnished by the reclamation division at Camp MacArthur, Texas, * *

The period for performance was from July 1, 1918, to June 30, 1919. The contract was not to be approved until an appropriation adequate for its fulfillment had been made by Congress, and this appropriation was eventually made.

. It was the understanding between the parties before the contract was executed that the plaintiff should enlarge its plant so as to have sufficient capacity to do the work proposed. Without going into the details of the claim of the plaintiff, broadly it is based upon the contentions, first, that the defendant was obligated to reimburse the plaintiff for expenditures made in enlarging its plant; and, second, that the Government was under obligation to furnish a specific amount of work, namely, $120,000.

As to the first claim, it is only necessary to point out that there is nothing in the contract requiring the plaintiff to enlarge its plant on obligating the Government to pay for the cost of increased facilities. The understanding about the increase was had with the plaintiff before the contract was executed. If it intended to hold the Government responsible, it should have protected itself by a provision in the contract. This was not done, and there are no facts proven to justify the reformation of the contract on the ground of fraud, accident, or mutual mistake. The plaintiff can not recover for this portion of its claim.

As to the second contention, if it was the understanding of the parties before the contract was executed that the Government was to furnish plaintiff a specific amount of *715laundry work, i. e., $120,000, it was for plaintiff to have such a provision placed in the contract. There is no clause to that effect in the contract, nor is there anything to show that it was omitted through fraud, accident, or mutual mistake. The contract provides only for work to be done on “uniform clothing and equipment to be furnished by the reclamation division ” at the camp. No quantities are named. The plaintiff is therefore not entitled to recover for any losses it sustained by reason of the failure of the Government to give it the amount of work claimed. We must enforce the contract as we find it. If the plaintiff has suffered loss by reason of acts upon the part of the Government for which the contract does not make the latter liable, it has only itself to blame for not having provided in the contract against such loss.

This case is ruled in principle by *Cocke*v. *United*States, ante, p. 108.

The petition should be dismissed, and it is so ordered.

Moss, *Judge;*Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.