
    MORAN BROTHERS COMPANY v. THE UNITED STATES.
    [No. 22943.
    Decided May 16, 1904.]
    
      On the Proofs.
    
    The Quartermaster-General'directs the purchase of a vessel partially constructed upon condition that the claimants complete it and that, when completed, it complies with certain tests and conditions. The quartermaster in charge orders changes and additions, which increase the cost. The Quartermaster-General ratifies and approves the additions. An exigency requires the immediate performance of the work.
    I. Where the Quartermaster-General, with full knowledge of the facts, ratifies and confirms the action of his subordinate in ordering additional work upon a vessel, the ratification is equivalent to express authority.
    II. An exigency requiring the immediate completion of a vessel for service in the Quartermaster’s Department takes the case out of the operation of Revised Statutes, section 3709, requiring advertisement for proposals; and where additional work was done by proper authority and the value thereof is established, the contractor can recover therefor, notwithstanding the provisions of Revised Statutes, section 3744, requiring contracts to be reduced to writing.
    
      The Reporters’ statement of the case:
    Tbe following are the facts of the case as found by the court:
    I. Prior to the times hereinafter referred to, the claimant, Moran Brothers Company, a corporation created under the laws of the State of Washington, was constructing a steamer then known as the George W. Dickinson, for E. E. Caine, of Seattle, Wash., under certain detailed specifications and additions which had been from time to time made thereto for which said E. E. Caine was to pay and did pay them.
    On the 11th day of April, 1900, said steamer being then nearly completed, the Quartermaster-General telegraphed as follows:
    “ Wasi-iiNgtoN, D. C., Apr. 11th, 1900.
    
    “ Robinson, Quartermaster,
    “ Seattle, Washington:
    
    “ Following instructions received by me from the Assistant Secretary of War (quote) — £ You are authorized to purchase the steamer G. W. Dickinson, now in process of construction at the shipyard of Messrs. Moran & Bros., Seattle, Washington, at the price at which she is offered for sale by Mr. E. E. Caine, viz, one hundred and forty-five thousand dollars, upon the conditions hereinafter contained. First, that said ship shall be in all respects completed in accordance with the original plans and specifications, for construction and changes and amendments thereto which have been or may hereafter .be made to. such plans and specifications, provided that in the event of any amendments to the specifications hereafter made which shall reduce the cost of construction of the vessel the amount of such cost shall be deducted from the purchase price of the vessel herein stated; second, that said ship shall, upon a trial trip, in the presence of the board of examiners hereinafter named, show a speed of the number of knots per hour provided for in the contract between E. E. Caine and the contractors; third, that the ship shall be inspected and examined by a board of examiners consisting of General George M. Randall, commanding the Department of Alaska, one representative of the Quartermaster’s Department, and an officer of the Navy Department, with a favorable report thereon to be approved bj^ the Secretary of War upon the recommendation of the Quartermaster-General ’ (end quote). You will act in accordance with these instructions, acknowledging receipt of this telegram and reporting your action in the matter. An official copy will be sent to General Randall and yourself by mail.
    “ Ludington, Quartermaster-General.
    
    In accordance with the authority contained in said telegram, Capt. W. W. Robinson, assistant quartermaster, U. S. Army, at Seattle, Wash., purchased said steamer from said E. E. Caine and paid him the price named in said telegram.
    The public exigency required the immediate purchase, completion, and alteration of said steamer in order that she might be ready for the service in the Army in Alaska immediately upon the opening of navigation in Bering Sea.
    Said steamer, after being purchased by the Government and taken into the service, was renamed the Seward.
    II. At the request of. said Capt. W. W. Robinson the claimant submitted the following estimate: ,
    “ Seattle, Wash., April 20,1900.
    
    
      “ Captain W. W. Robinson, Jr.,
    
      “Asst. Quartermaster, U. S. A., Gity.
    
    
      “ Dear Sir : As per your request, we have made estimate of the cost of the changes and additions to the G. W. Dickinson, as outlined by General Randall and yourself, consisting of the following:
    Taking off ten rooms on tlie saloon deck_ $291. 75
    Fitting up tlie general’s quarters, including taking out of partitions and refitting and remoulding, furnishing doors, bathroom complete, syphon closet, washstand, all with nickel-plated trimmings; finishing around mast, casing up doors and plumbing pipes, miscellaneous items in water service, etc--- 467. 00
    Bathroom on starboard side and triangular room, fitted complete - 125.00
    Social hall, taking out light-well, fitting and finishing around same; taking out bulkhead between social hall and smok- , ing room and finishing carlins and moulding; additional ! windows, blinds, and fitting same; changing sides of house for windows; additional seats around social hall, and additional hard wood finish stanchions, etc_ 213. 00
    Painting the hull white above the water line, equipment, etc., as per your directions, including ship’s name on boats, rafts, pilot house, etc., escutcheon on the bow in gold leaf, repainting smokestack red, white, and blue_ 595. 00
    Steam heating in vessel, complete_ 3, 600. 00
    Two 10" brass frame air ports, furnished and fitted on side of upper deck house- 40. 00
    Galvanized cable manrope, I-bolts, turnbuckles, fittings, ete_ 155. 00
    Two wooden lifeboats, complete with all fittings_ 500. 00
    One steam launch, complete with all fittings_^_ 3,200. 00
    One searchlight projector- 778. 00
    9, 964. 75
    “ We would be pleased to do any or all of the above work, and awaiting your reply, we remain,
    “ Very respectfully,
    “ Moran Bros. Company,
    . “ By Robert Moran.”
    The claimant performed all the work named in this estimate and received payment for the same in accordance with its terms.
    
      ADDITIONAL CHANGES.
    III. Besides the changes referred to in the next preceding finding, said Capt. W. W. Robinson, the quartermaster at Seattle, acting under his general authority for the maintenance of the transport service at Seattle, ordered of the claimant additional changes desired for the purpose of making the vessel more suitable for use as a transport and dispatch boat for Government purposes, and promised to pay them the reasonable value of the additional work and materials.
    The materials and labor were furnished as ordered from day to day by authority of Captain Robinson, the quartermaster at Seattle, Capt. L. D. Greene, quartermaster, United States Army, acting as marine superintendent under Captain Robinson’s direction, and Mr. Robert A. Turner, supervising engineer for the United States, the two latter acting under Captain Robinson’s direction and authority and their orders being confirmed by him.
    All additions and changes so ordered were made by the claimant company. The claimant company.has in its shipyard a system by which all labor performed or material furnished is placed upon a card stating the character of work and time occupied, or in the case of material furnished, the nature and value of the articles, and these cards, after being properly approved bjr the foreman in charge, are sent to the main office and the value of the labor and materials charged to the work to which they are properly chargeable.
    The work done in accordance with the orders so given by or under the direction of Capt. W. W. Robinson was charged for in accordance with this system, and bills were rendered for the same by the claimant company. These bills were duly approved by the supervising engineer of the Government. They occupy fifteen closely printed pages, and enter into the greatest detail, a large proportion of the items being of sums less than one dollar. The aggregate amount of the charges made therein is $4,880. The work was performed as stated and the value of the labor and materials is reasonable and not in excess of the market price of such labor and materials at the time and place.
    
      APPROVAL BY QUARTERMASTER-GENERAL.
    IV. The accounts made out as aforesaid were, after receipt at the office of the Quartermaster-General of the Army, referred by him to Maj. (formerly Capt.) W. W. Robinson, quartermaster, United States Army, under whose direction the expenditures had been incurred.
    Said Major Robinson, after obtaining a full statement from Captain Greene, hereinbefore referred to, and adding remarks of his own as to the ciraunstances under which the alterations had been ordered and made, concluded with the following recommendation:
    “ Considering all of these circumstances carefully, I am of the opinion that these bills as rendered are just and proper, and should be paid with the least possible delay, and I so recommend.”
    The Quartermaster-General thereupon, March 14, 1902, forwarded the account to the Auditor of the Treasury for the War Department with the following recommendation:
    “ The army transport Seward was the G. W. Dickinson, and when purchased was not completed. The vessel was being fitted up to carry passengers and freight to Alaska, and to make her suitable for a dispatch boat for a commanding general, and with accommodations on her for transporting troops, many changes from the original designs in fitting the vessel were required.
    “ The work charged for in these bills is reported by Capt. L. D. Greene, U. S. Army, retired, who was marine superintendent at Seattle at the time, and by Maj. W. W. Robinson, quartermaster, under ivhose supervision the work was done, as properly payable by the Government, and that the prices charged are the same as those usually charged for similar work. Major Robinson recommends payment of the bills.
    “ It is therefore recommended that settlement of the bills be made accordingly.”
    Major Robinson in his report to the Quartermaster-General on this case dated February 14,1902, says:
    “ First. The extreme haste which it was necessary for us to exercise to get this ship ready for Alaskan service after authority was issued for her purchase and in order that she might be able to sail at the opening of navigation in Bering Sea. This involved the necessity for working on Sundays and engaging in overtime work, as the emergencies in Alaska were regarded by General Randall as so important that he was very impatient of any delay which would hold the vessel a day after the opening of navigation in Bering Sea.”
    DISALLOWANCE BY ACCOUNTING OFFICERS.
    Y. The Auditor for the War Department disallowed the claim, and his decision was, upon appeal to the Comptroller of the Treasury, affirmed.
    No part of the account, amounting to $4,880, has ever been paid.
    
      Messrs. George A. and William B. King for the claimants.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The substance of the findings, stated briefly, is as follows: The claimant, a corporation created by the laws of the State of Washington, in the year 1900 was, by contract, building a steamer known as the George W. Dickinson, for Capt. E. E. Caine, of Seattle; and on the 11th day of April, 1900, Capt. W. W. Robinson, assistant quartermaster at the- city of Seattle, received instructions from the Quartermaster-General in Washington to purchase said vessel of Captain Caine at the price of $145,000, upon the condition that claimant should proceed with the construction of the same under the contract with Caine, and upon the further condition that the rate of speed should be at so many knots per hour, and upon the further condition that in the future construction of the vessel if any changes were made diminishing the cost of such vessel the diminished price was to be deducted from the contract price of $145,000, as stated.

The ship, upon its completion, was to be inspected by a board of officers appointed by the Secretary of War. The ship, upon its completion, was duly inspected and accepted as fully complying with the requirements of the contract of construction.

In the course of construction, after the purchase by the United States, various changes and additions were made by the claimant and the officers in charge of the immediate work, which increased the cost of the vessel above the contract price nearly $15,000. Nine thousand nine hundred and sixty-four dollars and seventy-five cents was the amount of the first changes, which amount has been paid and about Avhich there is no controversy.

Besides the changes embraced in said sum, Captain Robinson ordered additional changes to the amount of $4,880, which has not been paid, and for the recovery of that sum this suit'was brought.

The findings show that the last changes and additions were made by the order of Captain Robinson, the officer in charge of the work, and that the expense to the claimant and the value of the work amounted to said sum.

There is no controversy in this case as to amount and value of the work which was performed by the claimant under the direction of the officer in charge. The contention is that he had no authority to employ the claimant in adding to the original cost of the vessel; that no contract can arise binding the Government, although it has received the value of the claimant’s work in the increased value of the vessel.

After the. performance of the work and after a failure of the defendants to pay the claim, to. wit, in March, 1902, the matter was the subject of investigation in the Quartermaster-General’s Office, and upon that investigation it was determined by the Quartermaster-General that the bill was properly payable by the Government and that the prices charged are those usually charged for similar work. Conceding that at the time Captain Robinson ordered .and directed these changes in the construction of the vessel, his authority was not sufficiently broad to include the right of making a contract increasing the expenses of the construction of the vessel (not having derived such specific power from the Quartermaster-General) , yet, if upon a full knowledge of the facts, the superior officer ratifies and confirms the action of his subordinate, is not that in' law equivalent to an express authority in the subordinate at the time he ordered the performance of the labor? Both parties acted in good faith, one ordering and the other performing the labor. The defendants have obtained and are in the enjoyment of the result of tbe acts of the parties having control of the subject-matter of the controversju “An Executive Department undoubtedly has the right to make or ratify an implied contract not forbidden by law, and represents, and, in an executive sense, is the Government.” (Waters v. United States, 4 C. Cls. R., 394.)

The transaction in this proceeding was under the Bevised Statutes, section 3709, which obviates the necessity of reducing the contract to writing. The condition needed celerity of movement and comes within the law which ju-ovides for exigencies of' situations.

The vessel was being fitted out as a transport for immediate use. Major Bobinson says in his report to the Quartermaster-General :

“ The extreme haste which it was necessary for us to exercise to get this ship ready for Alaskan service after authority was issued for her purchase and in order that she might be able to sail at the opening of navigation in Bering Sea. This involved the necessity for working on Sundays and engaging in overtime work, as the emergencies in Alaska were regarded by General Bandall as so important that he was very impatient of any delay which would hold the vessel a day after the opening of navigation in Bering Sea.”

It comes within the principle of law announced in the case of Pacific Steam Whaling Co. v. The United States (36 C. Cls. R., 108).

Upon the question of the claimant’s right to recover where the defendants have obtained the benefit of labor or- the delivery of property may be cited the case of Baker v. United States (28 C. Cls. R., 370), in which it was held that:

“ Where cattle intended for the subsistence of Indians were seized by them Avhile in the contractor’s possession, and the agent treated the seizure as an issue to them and gave a voucher which was approved by the Secretary of the Interior and charged by him to the appropriation for the support of Indians at that agency, the Government acquired a benefit from the transaction, and a contract must be implied under the rule in Salomon's case (19 Wall., R., 17).”

The immediate completion of the vessel being required by the exigency of the situation takes the matter out of the operation of the Bevised Statutes, section 3709, requiring adver.-tisement for proposals, and the additional work having been done by proper authority the contractor can recover therefor notwithstanding the provision of the Revised Statutes, sec-' tion 3744, requiring contracts to be reduced to writing. This claim comes within the law as announced in the case of Clark v. The United States (95 U. S., 539), in which it was held that the claimant could recover upon a quantum meruit.

The claimant acted in good faith in doing the work, relying upon the agency of the assistant quartermaster; it had been paid by the United States for work done on the vessel beyond what was within the contract which it had made with Caine, the original owner; the court therefore determines from the facts and the law that the claimant is entitled to recover a judgment against the defendants for the sum of four thousand eight hundred and eighty dollars ($4,880), as shown in the conclusion of law.  