
    JOHN B. GOODE v. THE UNITED STATES.
    [No. 16631.
    Decided March 31, 1890.]
    
      On the Proofs.
    
    The claimant is appointed paymaster’s yeoman in the Navy with the understanding that he shall render the service of a recorder in the Coast Survey without additional compensation. This additional duty relieves him from certain privations ordinarily incident to the-position of yeoman.
    I.The written appointment of a yeoman in the Navy may have the force of a written contract, yet will leave parol evidence admissible to show a concurrent understanding that he was not to receive extra pay for additional service.
    II.If an officer voluntarily renders additional service without demand for extra compensation and upon the implied condition that he will not charge for it, he is estopped from doing so.
    III.If a person renders a service without intending to charge for it, and this is so understood by the other party, no recovery can he had.
    
      The Reporters' statement of the case:
    This case not being appealable on the part of the claimant, no finding of the facts was filed. The testimony of the claimant alluded to in the opinion of the court as “ a most truthful statement of facts.” was as follows:
    Question. When you reported to Lieutenant Sullivan on board the Coast and Geodetic Survey steamer Endeavor, what services if any were you required to perform, in addition to paymaster’s yeoman’s duties, and what compensation did you receive for your performance of those services ?
    Answer. When I reported to Lieutenant Sullivan, the steamer Endeavor and the hydrographic party of which he was chief was at Philadelphia, having stopped there on their way North from South Carolina. The party had been engaged during the winter on a survey of Bull’s Bay and other localities in South Carolina, and when I reported! was put to work tp finish up the office work and records of that survey before transmitting them to the office at Washington. Por that work I have received no compensation. About the 1st of July, 1883, the Endeavor with the party on board started out to make a hydro-graphic survey in Long Island Sound. By direction of John T. Sullivan, lieutenant U. S. Navy, my commanding officer and 
      ex officio assistant Coast and Geodetic Survey, I acted as recorder 5 that is, recorded the soundings and time as they were taken and the angle measurements to locate the soundings. While engaged on this work I received an allowance from the Coast Survey of 70 cents per diem for subsistence on board, but nothing by way of compensation for my services to the Coast and Geodetic Survey. This continued up to the 1st of January, 1884. From January 1, 1884, up to July 1,1884, the Endeavor and party remained at ISTew York, during which time I was engaged on the office work j that is, working up the notes, making tidal computations, etc., of the Long Island Sound survey, and occasionally I did some work in the Ease River in search of some rocks. From the 1st of January, 1884, up to the 1st of July, 1884,1 received nothing from the Coast Survey whatever. On the 1st of July, 1884, Lieutenant Hanns succeeded Lieutenant Sullivan in charge of the party and in command of the Endeavor. During the summer and fall of 1884 we worked on the hydrographic survey in Delaware Bay, and in the winter we went on board the schooner Ready and proceeded to Charleston, S. C., where we took the steamer Arago and proceeded on a survey up the Stono River and other inland waters of South Carolina. After this we went to the St. John’s River, Florida, and worked there until spring, when we started back to New York. From the 1st of July, 1884, to May, 1885,1 continuously rendered services to the Coast and Geodetic Survey recording and making tidal computations, measurihg angles, locating signals and plotting, and never did I receive any compensation for the work. From the 1st of July, 1884, to May, 1885, they allowed me 46 cents per diem for board or subsistence, but nothing for my services.
    Question. Did not the fact that you rendered the extra services give you a position whereby you were enabled to mess with the commissioned officers and not with the petty officers ?
    Answer. I suppose, possibly, in my case it did; though I have known of paymasters’ yeomen on board Coast Survey vessels messing forward with the men. That is, I had no right to demand that I would mess in the ward room. If I had been put in the forward mess I would have had to stay there.
    Question. At the time these extra duties were assigned to you, was there any agreement as to the amount of extra pay you should receive ?
    Answer. No.
    Question. At the time these duties were assigned to you, was it intimated or promised by any one that you should receive extra compensation ?
    Answer. Nothing more than the subsistence.
    Question. That was promised at the time %
    
    Answer. Yes.
    Question. And that was paid f
    
      Answer. Yes; that is. part of the time it was paid and part of the time it was not, as I have stated in the direct examination.
    Question. Then, as I understand, while you, as paymaster’s yeoman, were not relieved from your duty or enlistment as such, you were called upon and did render extra service, as you deem it, not within the scope of the duties of a paymaster’s yeoman, without any promise of reward or without any demand on your part at the time for such reward or compensation. Is that true Í
    
    Answer. Yes, sir.
    
      Mr. John Goode for the claimant.
    It is very evident from the appropriations that Congress authorized the employment of the necessary persons for a successful prosecution of these surveys.
    It is therefore submitted that this case is necessarily ruled by the decision in Collier v. The United States, and also by Converse v. The United States (21 How., 463); The United States v. Brindle (110 ü. S. E., 688), and The United States v. Saunders (120 id., 126).
    The case of The United States v. Brindle is considered particularly applicable to the case at bar, and very much in point. Brindle was employed to render a service in no way connected with tiie office he held. He was not appointed to any office known to the law, and in that connection Chief-Justice Waite, in delivering the opinion of the court, says: “ This clearly implied the payment of a reasonable compensation for the services of those employed. ”
    And it might be said just here that the acts of Congress authorizing the survey of the coasts and the general appropriations for “ party expenses, ” clearly implied the payment of a reasonable compensation for the services of those employed.”
    And it is contended that upon these principles the claimant in this case is not excluded from demanding a reasonable compensation for his services to the Coast and Geodetic Survey because of his being a paymaster’s yeoman in the United States fNavy.
    The questions raised in this case have been discussed frequently before in the cases of Meigs v. The United States■ (19 C. Cls. E.); Badeau v. The United States (S. 0., Oct. term, 1888); Hiero’s Case (5 Opin. Att’ys-Gen., 765).
    
      
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    Claimant is not within the provisions of Collier’s Case (22 C. Cls. R., 125). Collier was specially employed. His services did not interfere with the performance of his regular duties, but were outside of the hours of labor required from all em-ployés of his Department. There was a special agreement that he should be paid for extra services.
    In all the cases referred to by claimant, the claimants were acting under special appointments, and rendered service for which they demanded payment independent of the office which they hold. (See Converse Case, 21 How., 463; Bundle’s Case, 110 ü. S. R., 688; Saunders’ Case, 120 ü. S. E.., 126.)
    The other cases cited by claimant, namely, Meigs, 19 C. Cls. R.; Badeau, 130 U. S. II.; and Hiero, 5 Opin. Attys. Gen., in the principles decided have no application to the case at bar.
   Weldon, J.,

delivered the opinion of the court:

The claimant was on the 28th day of May, 1883, appointed a paymaster’s yeoman in the United States Navy as herein stated, and served continuously under said appointment from the 28th day of May 1883, to May, 1885. During said period, in addition to the performance of his duty as such yeoman, he also rendered service as a recorder in the United States Coast and Geodetic Survey.

The service in said Survey consisted in recording soundings and angles, making total computations, measuring angles, and plotting.

The order of his appointment is as follows:

“Naval Paymaster’s Ox vice,
“IT. S. Coast Survey Vessels,
Baltimore, Md., 23th May, 1883.
“John B. Goode,
“Coast Survey Steamer JEndeavor, Philadelphia, Penn’a:
“ Sir : In accordance with General Order No. 245 of the honorable Secretary of the Navy, you are hereby appointed a paymaster’s yeoman of the 3d class, in the-U. S. Navy. You will report at once to Lieutenant John T. Sullivan, U. S. N., com-man ding Coast Survey steamer JEndeavor, for duty ou board of that vessel.
“ Very respectfully,
“ John M. Thompson,
Paymaster, U. 8. N.
“Reported May 28th, 1883.
“Jno. T. Sullivan,
“Lieut. U. 8. N., Commanding.”

While in the performance of his duties, in connection with the Geodetic Survey on board said ship, he performed the duties of a paymaster’s yeoman, for which he has been paid.

This suit was brought to recover a reasonable compensation for his services in the Coast Survey.

It is contended by ihe defendants, that at the time the claimant became connected with the Navy, that it was understood and agreed, that no additional compensation than that allowed a paymaster’s yeoman, would be paid to the claimant, and that he attached himself to the surveying department, in order to relieve himself, from the privations ordinarily incident to the position of paymaster’s yeoman ; that whatever service he rendered the Coast Survey, was to be paid for, in his compensation as a yeoman in the Navy.

The following letter is admitted by claimant, as having the force of the writer’s deposition, subject to the competency of such testimony.

“153 States Avenue, Atlantic City, N. J.,
“August 5th, 1889.
“ Lieut. Comdr. C. M. Thomas, U, S. Navy,
“Hydrographic Inspector C. and 0: Survey,
“ Washington, V. C.:
“Sib: In reply to your communication asking for information relating to the understanding I had with Mr. Goode, when employing him as pay. yeo. on board of the Endeavor, I have to state that before engaging him I was particular to describe the subordinate and monotonous duties of a recorder in order to remove any false impressions he might have entertained, and told him the rate of compensation per month. This was the only understanding I had with him. ELe very gladly accepted these conditions and was appointed.
“I am unable to recall any claim on me for extra pay, or an expressed unwillingness to perform the duties assigned him without extra compensation.
“Very respectfully,
“Jno. T. Sullivan,
“Lieutenant, U. 8. N., retired

It does not appear that at the time the claimant was assigned to the performance of the duty for which he sued, or during the time of its performance, that he refused to perform the service, or that any compensation beyond that of a paymaster’s yeoman (except a small increase of allowance, which was paid him for most of the time), was agreed to be paid. During the time, the claimant was employed in the service, he never demanded payment, or notified any of the officers of the United States that he intended to charge the Government, anything beyond the pay of a yeoman, except when his subsistence in some particular was curtailed. He made application to the Coast Survey Office to be paid for the deduction, but it was not paid.

As a result, of the performance of the duties incident to his relations to the surveying party, he had on board the ship, a standing which as a mere yeoman, he was not entitled to hold, and which relieved him from many of the annoying features of that position. The claimant it is conceded performed responsible duties disconnected with his position as a paymaster’s yeoman, for which he has received no pay, but it is contended that it was the implied agreement that he was not to receive pay beyond his compensation as paymaster’s yeoman.

It is insisted by claimant, that his appointment as yeoman in the Navy, has the force of a contract, and the terms of that contract are, that he is to perform the duties of that position, and receive the pay allowed by law; and to permit those terms to be changed, would be a violatiou of that long-established rule of law, that written contracts can not be varied by parol evidence.

There is no doubt as to the correctness and necessity of that princip e; but does its application in this case, prevent the defendants, from showing that the claimant was to receive no pay, beyond what he has already received in the extra allowance, and the emoluments incident to the position of a yoeman in the Havy. Conceding that the appointment of claimant had the legal effect of a contract, and that the duties prescribed bylaw measured the responsibility and obligation of the claimant, it is sufficient to say that he is not suing on that contract, but upon the implied contract of an obligation to pay for other services.

It is contended that this case is governed by the law determined in the case of Collier v. The United States (22 C. Cls. R. 130); in that case it is said :

“ The court is of the opinion that the service which the claimant rendered having been one which could not have been legally required of him either by the Secretary of the Treasury or the Commissioner of Agriculture, and having been rendered with the knowledge and consent qf his superior officer, and for a Department having no official control of him, and to which he owed no service whatever, and employment, moreover, being within the legal discretion of the Secretary of the Treasury and for the benefit of the Government the case is necessarily ruled by the decisions of the Supreme Court in the cases of Converse v. The United States (21 How., 463); The United States v. Brindle (110 U. S. R., 688), and The United States v. Saunders (120 id., 126).”

The distinction between the case at bar, and the case cited is, that in this case, the services were rendered under circumstances indicating that they were not to be paid for, were performed during the time claimant is presumed by law to be engaged in other duties, for which he has been paid, and in consideration of the fact, that as connected with the Geodetic Survey, he was relieved from the hardships incident to his real position. While as paymaster’s yeoman, he was not compelled to render the services to the Survey, if he performed them without objection, and upon'the implied condition, that he'was not to charge for them, then .he is estopped by his own act, and can not recover in this proceeding.

There is no evidence that there was an express agreement as to the compensation, and the claim is founded upon an implied obligation of payment. We are unable to find from the evidence that there was an implied, or express contract, to pay for the services what they were reasonably worth, and without such a finding there can be no right of recovery.

It is a well settled principle of the law, if a person renders a service without intending to charge for the same, and this is so understood by the other party, no recovery can be had for such service. It is not necessary to discuss any other view, which might be taken, as to the law applicable to this transaction, it is sufficient for the purpose of our conclusion to rely upon what has been said. The testimony of the claimant is, as we can see, a most truthful statement of the facts, and upon those facts we determine as a legal conclusion, that the petition be dismissed.  