
    ISAAC T. COOK, EXECUTOR OF THE ESTATE OF WILLIAM S. EAMES, DECEASED, AND THOMAS C. YOUNG v. THE UNITED STATES.
    
    [No. 33700.
    Decided March 15, 1920.]
    
      On the Proofs.
    
    
      Architects’ fees; actual cost of work. — Where architects’ contract provides for the payment to them of 5% “upon the actual cost of the work executed from the drawings and specifications and under their supervision,” and Congress, after'the completion of the work, makes an appropriation to reimburse them for the actual loss sustained in delays and increased cost of construction resulting from the earthquake and fire at San Francisco, the amount so appropriated is part of the construction cost of the work, and the architects are entitled .to their commission thereon.'
    Booth, Judge, specially concurring.
    DowNet, Judge, and Campbell, Chief Justice, dissenting.
    
      
      The Reporterstatement of the case:
    
      Mr. William R. Harr for the plaintiffs. Harr Ao Bates were on the briefs.
    
      Mr. Richard P. Whiteley% with whom was Mr. Assistant Attorney General Frank Davis, jr., for the defendants.
    The following are the facts of the case as found by the court:
    I. At all times mentioned herein and until March 5, 1915, William Sylvester Eames and Thomas Crane Young were members of a partnership known by the firm name of Eames & Young, with offices in the city of St. Louis, and State of Missouri, engaged in business as architects. Said William Sylvester Eames died on said 5th day of March, 1915, and ori March 8,1915, claimant Isaac T. Cook was by the probate court of the city of St. Louis and State of Missouri duly appointed as the executor of his last will and testament.
    II. On July 9, 1903, the United States, acting through its Treasury Department, by letter of the Acting Secretary of the Treasury of that date, submitted to the said firm of Eames & Young a certain program for a competition for the selection of an architect for the erection of a United States customhouse building at San Francisco, California, and invited said firm to submit to the Treasury Department, in conformity with said program and in competition with eleven other architects, a design for such United States customhouse. Pursuant to such invitation Eames & Young submitted to the Treasury Department plans, drawings, specifications, and estimates for the erection of the customhouse at San Francisco, which plans, drawings, specifications, and estimates were approved by the Treasury Department, and Eames & Young were duly selected on the 19th day of December, 1903, as architects for said building by letter of the Acting Secretary of the Treasury of said date.
    III. On the 6th day of February, 1904, the defendant, through its Treasury Department, entered into a contract with said firm of Eames & Young, a true copy of which contract and of the letters, Program of Competition and Eegulations of the Treasury Department, referred to therein and expressly made a part thereof, is attached to plaintiff’s petition, marked “ Exhibit B,” and is made a part hereof by reference.
    IV. Said firm of Eames & Young, in accordance with said contract, prepared detailed plans, working drawings, designs, specifications, and estimates for said customhouse at San Francisco, and locally supervised the erection thereof and otherwise fully complied with all of the terms and provisions of said contract.
    The contract for the erection of said building was let to Thomas Butler at the contract price of $1,194,000. The building was completed January 16,1911, except some “ odds and ends,” such as exterior carving of stone and statuary and buttresses for the main staircase. The architect’s services were finally terminated in February, 1913, and voucher in final settlement was paid on March 8, 1913.
    Y. In said program for competition, made a part of the contract between the parties as aforesaid, the Treasury Department required that provision be made by the architects for the location in said customhouse building of a subtreas-ury, by the following provision of said program:
    SUBTKEASTJRY.
    Assistant treasurer_ 400 sq. ft.
    Chief clerk_ 320 sq. ft.
    Business office with 60-ft. counter- 4, 000 sq. ft.
    Daily working vault in office- 360 sq. ft.
    Coin storage vaults_ 2, 000 sq. ft.
    
      “ These vaults, if not on the same floor with subtreasury, should have connection with same by private staircase and should be situated conveniently for receipt and shipment of coin by private entrance.”
    Pursuant to said requirement, said firm of Eames & Young, in their competitive design which was accepted and approved by the defendant, and in the detached plans, working drawings, designs, and specifications which they prepared for said customhouse subsequent to the execution of said contract and which were also accepted and approved by defendant provided for the space called for by said program and said contract to be used as such subtreasury.
    
      Work on the construction of the building as so designed was begun the latter part of August, 1905.
    About one year later, to wit, on August 18,1906, the Treasury Department changed its intention with respect to providing space for a subtreasury in said customhouse building and determined to erect a separate building in 'San Francisco for such subtreasury, and the department thereupon in writing required the said firm of Eames & Young, as such architects, to so change the plans, drawings, specifications, etc., which it had theretofore approved for said customhouse building as to eliminate therefrom the said provisions for said subtreasury.
    Said changes involved additional and extra work not required for the completion of the building according to the plans, designs, specifications, and drawings accepted by the defendant and not required to insure its proper construction and completion within the limit of its cost as provided in said contract.
    Said firm of Eames & Young, complying with said requirement, did so change said plans, designs, specifications, etc., as to eliminate the space theretofore provided for such subtreasury, which changes were approved by the defendant. In so doing the said firm of Eames & Young performed extra work of the reasonable value of $1,200.
    YI. The regulations of the Treasury Department expressly made a part of the contract between the parties provided : t
    
    “22. The services of the architect will not be required or paid for in connection with the supply of furniture, gas, or electric fixtures, or electric-light plants, unless separately ordered by the department.
    “15. The architect to whom the commission is awarded shall revise his competitive drawings to meet the further requirements of the Secretary of the Treasury, and upon the basis of these revised preliminary drawings shall prepare full detailed working drawings and specifications for said building; and shall thereinafter, from time to time, make such changes in the plans, drawings, and specifications as may be directed by the Secretary of the Treasury, for which just compensation shall be allowed; but no changes in the plans, drawings, and specifications shall be made without written authority from the Secretary of the Treasury.”
    
      The Program of Competition stated the intention of the Government to put the heating apparatus in the adjoining appraiser’s warehouse building.
    The contract between the parties expressly excluded, among other things, “ furniture, electric plant, gas or electric fixtures” from consideration in computing the architect’s fee.
    Plaintiffs were required under their contract to provide for all the apparatus for heat and light situated in the customs building, exclusive of gas and electric fixtures, but were directed to stop their work at the alley separating the customhouse from the appraiser’s warehouse building.
    Plaintiffs had personal conversations with the Supervising Architect in Washington, in which he explained verbally that this building across the alley contained boilers and space that they expected to utilize for the purpose of heating the customs building, and the Treasury Department’s intention was to make its own electricity, and planned to connect up with the work of the customs building. But the Supervising Architect said that that was not a part of the architect’s contract, and he did not know whether they would be asked to do it or not; but that was in the future. All the architects had to do was to provide the necessary apparatus up to that point; that the Treasury Department would take care of the rest.
    After the execution of the said contract between the parties and subsequent to the approval of the architect’s plans, specifications, and drawings, and while the execution of the work was in progress plaintiffs received the following letter from the Supervising Architect of the Treasury:
    “ TREASURY DEPARTMENT,
    “ Oeeice Supervising Architect,
    
      “May 1,1908.
    
    “ Referred to the Messrs. Eames & Young, Archt’s, for his guidance and files. J. K. Taylor, Supervising Architect.
    
    “The Superintendent oe Construction,
    “ U. S. Customhouse, San Francisco, Cal.
    
    
      “ Sir : Referring to your letter of the 23rd ultimo relative to plan and specifications for mechanical equipment of the building for which you are superintendent, you are advised that an act of Congress making appropriations for sundry-civil expenses of the Government for the fiscal year ending June 30,-1907, and for other purposes, states:
    “ ‘ The appropriations heretofore made or which may hereafter be made for the construction of the customhouse building at San Francisco, Cal., are hereby made available for installing in the appraisers’ stores building adjacent thereto the necessary machinery, appliances, and fixtures for supplying heat, light, or power to the customhouse building, including all necessary incidental changes in the present heating and power plant, appliances, and fixtures in the appraisers’ stores building.’
    “ It is therefore the province of the architects, Messrs. Eames & Young, to prepare the drawings and specifications for that part of the mechanical equipment of the U. S. customhouse which is to be located in the basement of the U. S. appraisers’ stores, as well as for any modifications in the mechanical equipment of the latter building which are incident thereto.
    “ The matter of dampness in basement of U. S. appraisers’ stores referred to in your letter should be taken up with the architects, to whom a copy of this letter will be sent.
    “ Respectfully,
    “ SueervisiNG Architect.”
    Acting upon these instructions, plaintiffs employed an engineer at San Francisco, upon the recommendation of the Government, to draw up the necessary plans and specifications for the reconstruction of the boiler .plant on the old appraisers’ stores building so as to enable it to supply heat, light, and power to the new customhouse building. This work required a great many changes in the appraisers’ stores building itself besides in the actual power plant. In the instructions received by plaintiffs as to this work, there was no limitation placed upon the cost of the power plant. It was plaintiffs’ understanding that an independent appropriation was to be made for this work, and that the work had no thing, to do with the appropriation for the customhouse at thai time.
    Plaintiffs paid the 'San Francisco engineer $1,200 for drawing up said plans and specifications. Said plans and specifications were rejected by the Treasury Department as not complying with Government practices.
    Plaintiffs then prepared new plans and specifications themselves, in so doing complying with certain changes requested by the Government which increased the cost of the proposed power plant.
    Plaintiffs then submitted their completed plans and specifications for this power plant to the Treasury Department; whereupon the latter called for an estimate of cost, which plaintiffs gave, the same being fixed by them at $109,800. .
    Subsequent to the submission of said estimate of cost and about nine months thereafter, plaintiffs’ said new plans and specifications for the power plant were approved by the Treasury Department.
    After the approval of the plans and specifications plaintiffs took proposals for the work, the cost aggregate proposed being $109,941.
    Thereafter the Treasury Department decided to abandon the proposed power plant entirely and instructed plaintiffs to draw up new plans leaving out the power plant (which was intended to manufacture the electricity for the building), as the department had concluded to buy the electric current from the city company and thus reduce the cost of the building.
    This change of plan on the part of the Treasury Department rendered the plans and specifications prepared by plaintiffs for the installation of the power plant in the old appraisers’ stores building useless.
    The customary charge by architects and builders of the country for such drawings and specifications and the work necessary to the letting of the contracts, such as was done by claimants in this instance, is two and a half (2J) per cent of the cost of the work.
    It was not until the receipt of a letter from the Supervising Architect of the Treasury Department dated January 29, 1910, that plaintiffs were advised that the work in respect to the power plant would have to be brought within the limit of the appropriation for the new customhouse building.
    This was about a year after the plans had been approved and they had submitted their estimate of cost for such work.
    Under date of April 21, 1910, plaintiffs wrote the Supervising Architect of the Treasury requesting to be advised whether they would be allowed the usual commission of two and a half (2-J) per cent on the sum of $109,937 on account of the said rejected work in connection with the proposed power plant in the appraisers’ building, but their request was denied.
    The reasonable value of the work so performed is the sum of $2,725.
    VII. The architects’ fee, as finally calculated by the Treasury Department, was based upon the construction cost of the customs house as shown upon the boobs of the Supervising Architect’s Office, Treasury Department, exclusive of the sum of $101,907.66, also shown upon the books of the Supervising Architect’s Office. The books in the Supervising Architect’s Office contained an account with the building contractor in usual form in which the first item states the contract price. Following are items of additions because of authorized changes and of deductions and payments which are totaled and balanced at $1,222,206, the amount found to have accrued to the contractor under the contract. Following this account are further entries the first of which, under date of May 27, 1908, states the authorization under the act hereinafter quoted, with a reference to said act, $250,000, as against which there are entered the payments made to the contractor amounting to said sum of $101,907.66. Said last-named payments were made pursuant _ to the sundry civil appropriation act of Congress of May 27,1908, which provided:
    “San Francisco, California, customhouse: The Secretary of the Treasury is authorized, upon the completion of the customhouse in the city of San Francisco, California, to pay to Thomas Butler, the contractor for the construction of said building, in addition to the contract price therefor, such sum as may be equitable and just to reimburse said contractor for any loss actually sustained in consequence of the earthquake and great fire of April, nineteen hundred and six, not exceeding the sum of two hundred and fifty thousand dollars: Provided, That the amount allowed said Thomas Butler shall not be sufficient to enable him to make any profit out of the making and execution of said contract.”
    The report of the committee appointed by the Secretary of the Treasury to adjust said claim of Thomas Butler shows that said additional payment covered only the actual increase cost to the contractor of constructing said building due to the earthquake and fire of 1906, exclusive of any profits to the contractor. Said report also shows that said increased cost was due to the increased cost of labor and material caused by the earthquake and to the delay caused thereby in completing the building.
    Owing to said earthquake and fire at San Francisco in 1906, there was a delay of about three years in the completion of the customs house and it was necessary for the architects, under their contract, to keep a superintendent of construction on the building for that further length of time at a cost of about $6,700; also during this period and as a result of the delay the office and certain contingent expenses of the architect went on.
    The architects were paid 5 per cent on $1,366,215.37, amounting to $68,310.77, all of which except $39.88 had been paid before final settlement, that sum being paid March 8, 1913, upon a voucher certified by T.. E. Young, a member of the firm, for Eames & Young as correct and just. The above amount upon which they were paid commission was the amount found to have accrued to Contractor Butler under the contract, and certain other amounts paid to other contractors for parts of the work not included in Butler’s contract but did not include said sum of $101,907.66.
    Five per cent of $101,907.66 amounts to the sum of $5,095.38.
    VIII. At the instance of Eames and Young there was introduced in the House of Bepresentatives of the United States on the 5th day of July, 1913, H. It. 6654, entitled “A bill for the relief of William S. Eames and Thomas C. Young.” Said bill provided for the payment by the Secretary of the Treasury to said Eames and Young of the sum of $21,244.86—
    “ for the reimbursement of said William S. Eames and Thomas C. Young for preparing extra plans and specifications for a power plant and for money paid by them in salaries and office expenses and for personal services during the construction of said building, the same being an extraordinary expense occasioned by the earthquake and fire in San Francisco, Calif., in April, 1906, in that the earthquake and the additional work made necessary by it made necessary a much more protracted employment of said superintendents and office force and greater personal effort than would have been necessary if the work had proceeded to completion under normal conditions and without the intervention of the earthquake.”
    Said bill was referred to the Committee on Claims, a subcommittee was appointed to consider the same and a hearing was had by said subcommittee before which Thomas C. Young appeared and testified. Said Eames and Young also filed with said subcommittee a printed brief in which, among other things, they made claim for the amounts herein sued for and which brief concluded as follows:
    “ In conclusion, said architects contend that since the bulk of their' damages resulted from an act of God, for which they were in no way responsible, and which they could not foresee, Congress should, as a matter of equity and justice, relieve them. And that, inasmuch as Congress has relieved the said Thomas Butler for damages resulting from the same cause, it can not with fairness reject their claims.
    “ Said architects further contend that their claim for $18,700 on account of the delay occasioned by the earthquake and fire, their claim for $1,200 on account of the change in the intention of the Treasury Department regarding a sub-treasury, their claim for $2,544.86 on account of the money actually expended in the preparation of drawings and specifications for an electric or power plant which the Government rejected after bids had been received, and their claim for $5,095.38, constituting 5 per cent upon the additional sum paid to Thomas Butler, are just and reasonable claims and that Congress should give them relief in the total sum of $27,540.24.”
    On June 8, 1914, the Committee on Claims reported the bill with amendments, said amended bill providing for the payment to said Eames and Young of $2,544.86 “for the reimbursement of said William S. Eames and Thomas C. Young for actual expenses incurred by them in preparing extra plans and specifications for a power plant for said building.” Said amended bill was committed to the Committee of the Whole House; but no action had been had thereon when the1 Sixty-third Congress expired.
    On June 4, 1916, there was introduced in the House of Representatives of the United States H. R. 7155, entitled “A bill for the relief of William S. Eames and Thomas C. Young,” providing for the payment to them by the Secretary of the Treasury of the sum of $17,344.20 for the same assigned reasons as were stated in H. E. 6654, with the addition thereto of the following language:
    “And to cover a 5 per cent commission on the sum of $101,907.66, paid by the Secretary of the Treasury, under authority of law, to Thomas Butler, contractor for said building, on account of damages sustained by him on account of such earthquake and fire.”
    On May 11, 1916, there was introduced in the House of Eepresentatives a resolution referring said last-mentioned bill with the accompanying papers to the Court of Claims for the findings of fact and conclusions of law. Said resolution was pending on the calendar of the House when this action was commenced on the 12th day of January, 1917.
    
      
       Appealed.
    
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by Isaac T. Cook, executor of the estate of William S. Eames, deceased, and Thomas' C. Young, the said Eames and Young having been partners, who, at the time of the making of the contract hereinafter mentioned, were partners, engaged in business as architects in the city of St. Louis in the State of Missouri. On July 9, 1903, the United States submitted to Eames & Young a a certain program for a competition for the selection of an architect for the erection of a customhouse building at San Francisco, Calif., and invited said firm to submit a design and estimates for the erection of said building, which were approved by the Treasury Department, and tire said firm was selected on December 19, 1903, as architects for said building. On February 6, 1904, the defendants entered into a contract with said firm. The plaintiffs performed extra work in eliminating from the original plans and specifications prepared by the plaintiffs and approved by the Treasury Department space for a subtreasury in said customhouse which was called for in the original program for competition by the Government and made part of the contract. For this extra work the defendants refused to pay. It was reasonably worth the sum- of $1,200.

The said firm prepared plans and specifications for the. installation of the power plant in the old appraiser’s stores building, which was work not included under the contract, .and the architects were not required to do it; it was work separately ordered by the department, and the reasonable value of the work so performed is the sum of $2,725. The third item of the claim is for the unpaid commission on the sum of $101,907.66, paid to Thomas Butler, the contractor for the construction of the building, due to the great earthquake and fire in San Francisco on April 18, 1906.

As to the first two items of this claim the defendants concede that they should be paid. The defendants resist the payment of the commission on the sum of $101,907.66, which was paid to Thomas Butler under the authority of a provision in the sundry civil appropriation act approved May 27, 1908, 35 Stat., 318. This provision is as follows:

“ The Secretary of the Treasury is authorized, upon completion of the customhouse of San Francisco, California, to pay to Thomas Butler, the contractor for the construction of said building, in addition to the contract price thereof, such sum as may be equitable and just to reimburse said contractor for any loss actually sustained in consequence of the earthquake and great fire of April, 1906, not exceeding the sum of $250,000. Providing that the amount allowed said Thomas Butler shall not be sufficient to enable him to make any profit out of the making and executing of said contract.”

The report of the committee appointed by the Secretary of the Treasury to adjust the claim of the contractor under the provisions of the statute above quoted shows that the contractor was entitled to receive the sum of $101,907.66, and that this additional payment covered only the actual increased cost to the contractor of constructing said building due to the earthquake and fire of 1906, exclusive of any profits to the contractor.

The contract of the defendants with the architects provided :

“And the party of the first part covenants and agrees to pay, or cause to be paid, unto the party of the second part, or to the heirs, executors, or administrators of the party of the second part, a fee computed at the rate of five per centum upon the actual cost of the work executed from the drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect’s Office, by the net amounts of contracts awarded and proposals accepted for additions and deductions, but not including the cost of the site, or furniture, electric plant, gas or electric fixtures, mural paintings, architects’ fee, or the contingent expenses incident to the construction of said building set apart by the party of the first part.
“And the party of the first part covenants and agrees that payments will be made in the following manner, viz: One-fifth of the fee when the preliminary drawings are completed and approved in the manner provided in said regulations; three-tenths of the fee when the general working drawings and specifications are completed and copies thereof delivered to the Supervising Architect; and the balance of the fee monthly upon the basis of payments for work performed and in place as of record upon the books of the Supervising Architect’s Office, or as ascertained to be due to the several contractors who execute such work: Provided, That until the actual cost of the work executed from the architect’s drawings and specifications and under their supervision can be determined, the monthly payments on account of the fee shall be computed upon the proposed cost of said building as estimated by the party of the second part, viz, one million two hundred seventy-seven thousand six hundred ($1,277,600) dollars, or as may be readjusted from time to time; and upon the completion of the building the entire fee shall be finally based upon and computed on the actual construction cost of the work executed from the architect’s drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect’s Office, exclusive of the cost of the items herein-before excepted.”

It will be observed that this contract provides “ upon the completion of the building the entire fee shall be finally based upon and computed on the actual construction cost of the work executed from the architect’s drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect’s Office, exclusive of the cost of the items hereinbefore excepted.” The $101,907.66 upon which the plaintiffs claim that they are entitled to commission is a part of the construction cost of the work executed' from the architect’s drawings and specifications, and the sum aforesaid was shown upon the books of the Supervising Architect’s Office. Under the contract they are entitled to be paid their commission on this sum.

Judgment will be entered for the plaintiffs in the sum of $9,020.38, as shown by Findings V, VI, and VII.

Graham, Judge, concurs.

Booth, Judge,

concurring:

The terms of the contract wherein provisions are made for the architects’ fees clearly indicate an intent to meet the circumstances of the architects’ employment and their relation to the contract work. It is first provided that the architects’ fees shall be five per cent, to be ascertained from the net amount of contracts awarded. This is followed directly by a provision for a preliminary payment of one-half of this fee upon the completion of the drawings and. specifications. There was a manifest purpose for making it so, for if the building was never completed the architects nevertheless were to be paid this preliminary sum. One-fifth of the fees was to be paid when the preliminary drawings were completed. At this time no contract for the building had been let. It could not be let until the preliminary plans and specifications had been first provided by the architects. Therefore, as a basis for determining how much the two and one-half per centum would amount to in gross, reference was provided for to the contracts for the building of the structure. If the building had never thereafter been built, this two and one-half per centum would have been paid. This was one contingency which had to be met, and was so met by these preliminary provisions in the contract. Again, the contract provides for another contingency — i. e., for monthly payments of the remaining two and one-half per centum upon the basis of the limit of cost, viz, $1,277,600, not the contract cost, and this shall continue to be the basis of monthly payments to be made to the architects “ until the actual cost of the work executed from the architects’ drawings can be determined.” Up to this point the contract is dealing with known and existent conditions, contingent because of the very nature of the services to be rendered by the plaintiffs and which must be provided for in justice to the architects. There comes a time, however, when all com tingencies and conditions respecting the payment for the services of the architects are merged into an absolute certainty, and that time is when the work is completed and the actual cost of the building capable of definite ascertainment. So it was provided in the contract that upon the completion of the building the entire fee should finally rest upon the actual construction cost of the building. No mention is made in the final paragraph of contract cost, and inasmuch as the terms of the contract expressly cover every stage of construction progress, it seems to be a contract to pay the architects in the end five per centum of the actual cost of the building as shown on the books of the Supervising Architect’s Office. This is the usual and customary fee paid to architects, and the provisions of the contract 'respecting the same accord with the general and long-continued practices respecting contracts for the payment of the same. Supposing that in this case the officers of the Government had concluded to do a vast amount of work by day labor, which might have been done if a sufficient margin obtained between the limit of cost and contract price. Would it then be said that the cost of such work was not to be included in the computation of actual cost of the building, so as to form a basis for the allowance of plaintiffs’ fees? No written contract would have existed, but surely the item would be actual cost. The sum allowed by act of Congress to Butler, the contractor, was not a gratuity; quite the contrary — it was based on precise estimates made after personal inspection and certified to as items of actual construction work. It was in legal effect an increase in the limit of cost, and in the end made the building actually cost $1,382,004.14, whereas originally it was designed to limit the cost to $1,211,600. Certainly the mere fact that Butler might not have recovered this amount in court does not convert the sum allowed as actual cost into a gratuity. Congress every session sends many controversies to this court by special jurisdictional acts where the claimants are barred from judicial proceedings otherwise. In this instance, instead of waiving legal defenses in a court of justice, Congress referred the matter to the proper department of the Government to investigate and determine the sum to be paid not in excess of the amount expressly limited in the bill. It did not give Butler any fixed sum.

Section 159 of the Judicial Code, providing for a statement in the petition of claimant “ of the action thereon in Congress,” is the continuation of an ancient provision appearing in the act of February 24, 1855, establishing this court. It was at the time an indispensable prerequisite, for the jurisdiction of the court embraced all claims “which may be referred to said court by either House of Congress.” We were at the time a commission, possessing no general jurisdiction. It was manifestly carried into the Judicial Code because of our jurisdiction under the Bowman and Tucker Acts, wherein congressional and departmental action upon the claim preferred is a vital and necessary prerequisite. It can have no possible relation to general jurisdictional cases, and can not be held to be even a necessary allegation in a petition filed under our general jurisdictional laws and should not be in the findings. It was never required in other cases. The right of petition to Congress for relief is constitutional, and the fact that Congress acted adversely upon a petition so made can not affect the rights of the plaintiffs in a subsequent legal proceeding to recover under the law what Congress in its legislative judgment saw fit to deny them. The plaintiffs’ case is not to be prejudiced because they in the first instance availed themselves of a constitutional right instead of resorting to the courts. Whatever argument they advanced, either in person or by attorney, in an effort to obtain congressional relief can not militate against them in the present suit, properly brought under an act giving this court jurisdiction of the subject matter. Previous statements as to matters of fact, of course, are available to impeach contrary ones on the cross-examination of witnesses, but whatever may have been the arguments advanced to persuade Congress to pass the bill and grant the relief requested have no place in this record, for this is not a congressional case. The plaintiffs may have been mistaken as to their legal rights or wrongly advised with respect thereto; they may have changed their minds, and whatever may have been the previous attitude in their course before Congress, save as to material statements of actual facts going to the truth or falsity of the actual situation as it existed, they are not to be prejudiced thereby.

I therefore concur in the opinion of the court.

DowNev, Judge,

dissenting:

I dissent from so much of the conclusion of the court as includes in the judgment the item of $5,095.38 as architect’s commission on the sum of $101,901.66 paid to the building contractor under authority of the act of May 27,1908, quoted in Finding "VTI. I am of the opinion that the last-named amount is not properly to be included in the “ actual construction cost of the work * * * as shown upon the books of the Supervising Architect’s Office,” and the determination of the questions necessarily involves a construction of the contract in that regard.

The view of the court as to this item is evidently found in the statement that “the $101,907.66 upon which the plaintiffs claim that they are entitled to commission is a part of the construction cost of the work executed from the architect’s drawings and specifications, and the sum aforesaid was shown upon the books of the Supervising Architect’s Office.”

It is first provided in the contract that the architects shall be paid “ a fee computed at the rate of 5 per cent upon the actual cost of the work executed from the drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect’s Office by the net amounts of contracts awrarded and proposals accepted for additions and deductions, but not including, etc.,” and after providing for partial payments on a stated basis it is finally provided that “upon completion of the building the entire fee shall be finally based upon and computed on the actual construction cost of the work * * * as shown upon the books of the Supervising Architect’s Office, exclusive, etc.”

In the first provision quoted are significant words with reference to the cost of the work as shown upon the Supervising Architect’s books and illuminating as a reason for the use of the books as a basis for determining the amount upon which the fee is to be computed. I refer to the words “additions or deductions” in the connection used.

If it could be known that the work could and would be completed at the contract price the amount of the fee could be accurately stated in the contract, but we know that in all building contracts there are provisions for additions and alterations. There were many of them in this case. Alterations sometimes involve additional compensation to the contractor and they sometimes involve deduction. Both are provided for in public building contracts. Hence the necessity for an account of “ additions or deductions.” The account first sets up, as shown by the findings in this case, the contract price. When the additions by reason of changes are added and the deductions subtracted the result is the net contract cost. The account also involves payments made, but that is a matter with which the building contractor is concerned and not the architects.

When the result stated is reached by a balancing of the books we have the “ actual cost of the work ” as it is stated in one place, or the “ actual construction cost of the work ” as stated in another place, under the contract, and in my judgment the language used in the architect’s contract with reference to actual cost must of necessity be construed to mean actual cost to the United States under the contract. I can not conceive of any other authorized construction. Cost to the contractor and cost to the United States under the contract were, of course, expected to be different. The difference expected in favor of the contractor represented his anticipated profits. If Congress had not seen fit to relieve this unfortunate building contractor no other construction of the architect’s contract than that stated would even have been suggested. It was made in contemplation of the erection of a building in the usual manner, taking into account the changes likely to be made during construction, and without anticipation of any special favors at the hands of Congress. The architects were, in fact, paid a percentage, as shown in the findings, on a sum considerably in excess of the amount shown to have accrued to Butler under his contract, but this was due to the fact that some lesser portions of the work were let to other contractors and the right of the architects to commission on the amount of such contracts was recognized.

It is to be inferred from what is said on the subject that this item would not have been included in the judgment authorized by the majority of the court had not the extra payment made to the contractor under the special act quoted been entered on the books of the Supervising Architect’s Office. But it appears that it was not entered as a contract item or as an addition or deduction. The account was closed in the usual way, the final footings showing the cost under the contract and the account of the authorization under the special act with the payments made thereunder followed. It was, of course, necessary and proper that there should be some record of the action taken for the relief of the contractor as directed by Congress. Even if this item had appeared in the regular account it could not, in my opinion, have entailed a liability against the United States unless within a proper construction of the contract, but in fact it did not so appear.

This suit was not commenced until almost four years after the final settlement with these architects. In the meantime there had been continued and rather persistent efforts to get an allowance at the hands of Congress including all the items herein sued for. The Judicial Code, section 159, requires petitions in this court to fully set forth, as to all claims, “the action thereon in Congress * * * if such action has been had.” In Finding VIII the action had in Congress in this matter is fully set out. The effect to be given to such a situation has never, so far as I know, been the subject of accurate determination by the courts, and I am not inclined to contend that the facts shown in this case can be construed to work anything in the nature of an estoppel, but they are certainly significant and for consideration upon the merits of the case. It is safe to say from the facts found that in the beginning these plaintiffs did not conceive that they were entitled as a contract right to any compensation because of this extra payment made the building contractor, but were then in the attitude of seeking the bounty of Congress. They very significantly urged in their brief submitted to the committee having under consideration the bill introduced for their relief the “equity and justice ” of their claim and that “ inasmuch as Congress has relieved the said Thomas Butler for damages resulting from the same cause it can not with fairness reject their claim,” and while there was no final action by Congress with reference to their claim it is for consideration that the committee directed by Congress to investigate the matter and having before it all the facts set up not only in their brief but presented personally by one of the plaintiffs, and being fully advised also as to the relief granted the building contractor, reported favorably upon only one of the items claimed and that item is included in the judgment rendered in this case. It is safe to say under all the facts shown that for nearly four years there was no conception by anybody concerned with the matter that there was contractual liability to these plaintiffs on account of this item and that that asserted view of the matter is an afterthought. And in tihis connection it is not improper to observe also that when this action was commenced there was then pending a resolution to refer the last introduced bill to this court under the Tucker Act for findings and conclusions. The bill which it was then proposed to refer had been introduced in Congress more than three years after the final settlement made with these plaintiffs.

For the reasons stated I dissent from the inclusion in the judgment of the claimed percentage on the sum paid the building contractor under the special act quoted.

I am authorized to state that Chief Justice Campbell concurs in this dissent.  