
    JAMES A. BAKER, RECEIVER OF THE INTERNATIONAL & GREAT NORTHERN RAILWAY CO., v. THE UNITED STATES
    [No. B-156.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Dent Act; implied contract; spur to aviation field; voluntary act.— Where plaintiff without a written contract voluntarily constructs a spur from its main line, on its own right of way to a Government aviation field, it can not recover compensation for the cost of such spur.
    
      The Reporter's statement of the case:
    
      Mr. Olmdian B. Northrup for the plaintiff. Mr. Samuel B. Dabney was on the briefs.
    
      Mr. Edwin 8. MeCrary, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The following are the facts as found by the court:
    I. At the times named in the petition the plaintiff, James A. Baker, was and still is receiver of the International & Great Northern Railway Company, duly appointed by the District Court of the United States for the Southern District of Texas, Houston Division, in the case of the Gentrad Trust Company of New York v. International and Great Northern Railway Company et al., and as such receiver operated a system of railroads engaged in interstate commerce, transporting freight and passengers over such system to and from South San Antonio, Texas, and other points.
    II. In February and March, 1917, Major Benjamin Fou-lois, of the United States Army, acting by authority and direction of the Secretary of War, was engaged in the selection of a site for and the preliminary construction details of an aviation field for the United States near South San Antonio, Texas, which became known as Kelly Field No. 1.
    The plot of ground selected was near two lines of railway, the I. & G. N. Railway, the right of way of which was contiguous thereto, and the Southern Pacific Railway. A spur track from one or more railways to said aviation field was necessary for the construction and operation of said field and to transport supplies and materials to and from said field.
    III. Upon receipt of information that the I. & G. N. Railway would be willing to put in a spur or switch track from their railway to Kelly Field No. 1, Major Foulois went to the proposed site of the field with J. Wylie King, an officer of the plaintiff, and pointed out to him the proposed location for storehouses and other buildings to be erected upon said field, and Mr. King suggested the approximate location of such a spur or switch track. Major Foulois made no objection to said designated location. This was in the latter part of February or the first of March, 191T.
    IV. The spur or switch track in question was mainly constructed during March, 1917, and completed April 23, 1917. It is 570 feet in length, is built entirely upon the right of way of the plaintiff, and is still there in use. It cost $936.25, which amount was a just and reasonable expenditure for the material, labor, and other construction expense required.
    Kelly Field No. 1 is’ a permahent aviation station of the 'Government and is in use as such at the present time-
    V.- No statement or promise was ever made by Major Foulois or anyone representing the United States that the Government would reimburse plaintiff for the cost of said construction. Major Foulois told Mr. King before the track was begun Mr. Fowler had advised him that plaintiff was willing to put in this track on its own right of way at its own expense, and Mr. King did not deny that statement.
    VI. The plaintiff voluntarily built and constructed said spur track, and it was used by the plaintiff for hauling supplies, materials, troops, airplanes, and airplane parts to and from Kelly Field No. 1. Said hauling was done by the plaintiff for the Government. No switching charges were made to the Government for the use of this spur track. Only regular rates applicable to and from San Antonio were charged.
    VII. On June 30, 1919, plaintiff filed with the claims board, Transportation Service, War Department, a claim for this construction cost. The claims board, under date of March 26, 1920, denied the claim on the ground that the “ claim is not one that may be adjusted and paid under the provisions of the act of March 2, 1919, for the reason that the obligation, if any, arose prior to the ‘ present emergency ’ mentioned in said act.”
    The court decided that plaintiff was not entitled to recover.
   MEMORANDUM BY THE COURT

It is not shown in this case that any officer or agent of the United States had authority to enter into a contract for the construction of this spur track, nor is it shown that any officer or agent of the United States promised to pay for said construction. On the contrary, it is shown that an agent of the plaintiff stated to the officer in charge of the selection of a site for an aviation field that it was the rule of the plaintiff to construct such tracks at its own expense when they were located upon its own right of way. No contract to pay can be implied from such facts. See the authorities cited in the case No. B-158, Baker, receiver, v. United States, decided this day post, p. 890. See also Atchison, Topeka & Santa Fe Ry. Co. v. United States, 59 C. Cls. 12.

Even if the circumstances of this case raised an implied promise to pay, it would not come under the provisions of the Dent Act, for the construction of this spur was not a war measure. It was undertaken and partly performed some weeks before war was declared. The Dent Act does not apply to transactions entered into before the war was declared. Such a contract as the one which the plaintiff undertakes to set up can not be enforced against the Government, as section 3744 of the Revised Statutes requires the Secretary of War to cover every contract made by him, or by officers under biin appointed to make contracts, “to be reduced to writing and signed by the contracting parties with their names at the end thereof.” As this alleged contract was made before the declaration of war the plaintiff can not invoke the aid of the Dent Act, and if there was no other reason for the dismissal of the plaintiff’s claim it must be held that because of failure to make and sign a written contract as required by said Section 3744 the United States is not bound.

Graham, Judge, took no part in the decision of this case.  