
    T. A. GILLESPIE CO. v. THE UNITED STATES
    [No. D-864.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Dent Act; cnoarct; review. — See Standard Steel Oar ease, ante, p. 726.
    
      ■Same; nonpayment; jurisdiction. — Suit brought to recover on an award by tbe Secretary of War under tbe Dent Act, accepted by plaintiff, tbe amount of wbicb was duly covered by vouebers issued to plaintiff but payment tbereon refused, is witbin tbe Jurisdiction of tbe Court of Claims.
    
      
      The Reporter's statement of the case:
    
      Mr. Camden R. McAtee for the plaintiff. Mr. Melvin D. Hildreth and Mason, Spalding & McAtee were on the brief.
    
      Mr. Berber H. Rice, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The following are the facts as found by the court:
    I. Plaintiff is a corporation duly organized and existing under the laws of the State of Delaware; its officers and stockholders are all citizens of and have always borne true allegiance to the United States; its principal office and place of business is in the city of New York, State of New York; its business being that of contracting engineers; plaintiff further is the owner of this claim, and no transfer or assignment thereof, or of any interest therein, in whole or in part, has ever been made.
    II. The parties hereto, the plaintiff by its attorney of record and the defendant by William J. Donovan, Assistant Attorney General, have stipulated the facts which it is said “ are true and may be adopted by the court as the basis for its findings of fact, exclusive of any set-offs or counterclaims defendant may present,” upon which facts it is further stipulated that “this action shall stand for trial,” and the following Findings III, IV, Y, VI, VII, and VIII are made in accordance with paragraphs 1, 2, 3, 4, 5, and 6 of said stipulation, respectively.
    III. The defendant heretofore, through a regularly constituted agency or branch of the United States, to wit, the War Department, and particularly the Ordnance Department thereof, on or about the 1st day of January, 1918, gave to the plaintiff a certain order or contract designated and known as War Order G 1926-1057A, during the emergency arising from the declaration of war with the Imperial German Government, and prior to November 12r 1918, for a purpose connected with the prosecution of the war; and subsequently, but prior to November 12, 1818, it ordered plaintiff to perform further work or services in connection with the subject matter of the original order in addition to those set out in the original contract and for which it promised and agreed to pay. The said agreements were partially performed and were suspended or discontinued by mutual consent on or about December 16, 1918.
    IY. The said original order and subsequent orders were not executed as required by law, and after the discontinuance of same the following steps were taken for the purpose of reaching a settlement between the parties hereto.
    Y. On or about February 26, 1919, a supplemental contract in proposed settlement of said contract G 1926-1057A was prepared and submitted to plaintiff, specifying the sum of $26,974.77 to be paid by defendant, whereupon the plaintiff, on March 5, 1919, signed said supplemental contract, which contained the following clause:
    “ Such settlement shall constitute a complete termination of every question or claim, legal or equitable, liquidated or unliquidated, pertaining to or growing out of said original contract.”
    The plaintiff on March 5, 1919, in signing said supplemental contract and submitting same to Maj. C. S. Need, contracting officer and member of the New York District Claims Board, wrote to Major Need with reference to the release clause therein, as follows:
    “ Which clause we understand will not in any way affect or prejudice several requests for procurement orders to cover extra work done at our plant in connection with this contract, and which requests were also understood to be made the subject of separate orders.” * * * (Enumerating items of extra services.)
    “ This supplemental contract is executed and returned with the understanding, as stated above, without correction or change, and this letter is sent as a matter of record.”
    Said separate orders for extra work were being prosecuted; by plaintiff toward payment separately from its negotiations for settlement of said original contract, by seeking to have procurement orders issued by the Procurement Division of the War Department covering, said items and payable by vouchers.
    YI. Between the time of the submission and signing of said supplemental contract the Dent Act was enacted on March 2, 1919, and in place of said supplemental contract a statutory award under the Dent Act in the same amount of $26,974.77 was prepared by the New York District Claims Board and was signed by plaintiff on May 6, 1919, and approved by the Secretary of War, and said amount was duly paid to plaintiff on June 6, 1919. The award contained the provision that “it shall be full adjustment, payment, and discharge of said agreement.”
    VII. On or about September 16, 1919, said New York Claims Board took up and considered plaintiff’s claim for said extra services and made a supplemental award subject to the approval of the Ordnance Department Claims Board, which award recited and included the items for $26,974.77 embraced in the aforesaid award of May 5, 1919, and also the items amounting to $15,683.77 for said extra services, and recommended payment of $15,683.77. A copy of said award is filed herewith and made a part hereof, marked as “ Exhibit X.” A copy of said award is as follows:
    ORDNANCE DEPARTMENT
    AAVARD — SUPPLEMENTAL AWARD
    Matter of settiement of claim of T. A. Gillespie Co., contractor
    New York District Claims Board,
    
      Dated Se2)tember 16, 1919.
    
    War-Ord-No. P 1926 — 1057A.
    On reading and considering the verified statement of claim and supporting accounts and papers of the above-named contractor submitted herein, dated 6/9/19; the verified staff report herein, dated 6/17/9; and on hearing and considering the testimony and arguments and examining the evidence submitted herein, it is
    Found, subject to the approval of the Ordnance Claims Board:
    1. The United States shall forthwith pay to the contractor the sum of $15,683.77, made up as follows:
    Allowances: Amount Amount
    (1) Unworked, direct materials_
    (2) Indirect materials_
    (3) Worked direct materials_
    (4) Direct labor and overhead expense_
    (5) Commitments for materials or serv-ices_:_
    (6) Claims for other compensation_
    
      (a) Waterproofing fuse sockets and' holders-,$5. 220. OR
    
      Allowance's — Continued. Amount Amount
    (6) Recovering eccentric and defectively lacquered Gray and Davis boosters_$10,131.59
    (e) Shipping and trucking charges_ 325.50
    
      id) Plant and equipment award of ,2/19/19_24,574.77
    (e) Experimental work award of 3/19/19- 2,400.00
    Total claims for other compensa-tion_ 42, 658. 54
    Total of contractor’s claim_$42, 658. 54
    Deductions:
    (1) Claims of the United States against the! contractor arising out of or incident to the prime contract or for loans in connection therewith. Payment of June 6, 1919_ 26, 974. 77
    (2) Amount due to the United States, being the fair value of property transferred to the contractor in this settlement_- None.
    (3) Scrap, if retained by contractor from worked materials_ None.
    (4) Allowance to the United States for fair value of property retained by contractor in this settlement (sometimes called salvage value)_ None.
    Total deductions_ 26, 974. 77'
    Balance due contractor_ 15, 683. 77
    2. Delays in delivery or performance under the contract to which this award relates have been carefully investigated, and it is found that such delays are not due to the fault of the contractor, have resulted in no damage to the United States, have not justified the cancellation of the contract in the interest of the United States, and no deduction should be made from the contractor’s compensation because-of such delays.
    3. No members of this district claims board have any interest in this contract.
    4. The settlement in accordance with the foregoing findings, subject, however, to the approval of the Ordnance Claims Board, shall be in full satisfaction of any and all claims or demands in law or in equity which the contractor, its successors, representatives, agents, and assigns has or may have growing out of or incident to the contract herein-above mentioned, and such settlement shall constitute a. complete termination of every question or claim, legal or equitable, liquidated or unliquidated, pertaining to or growing out of said contract, except that all articles of work, delivered and accepted heretofore under and in pursuance-of the original contract and not yet paid for shall be paid for in accordance with the provisions of said original contract.
    5. We, the New York District Ordnance Claims Board, have verified, and caused- to be verified to our satisfaction •on the contractor’s statement of fact as to expenditure made, commitments outstanding, materials on hand, or other items charged, and do hereby certify that, to the extent that the same were allowed by us in the settlement as hereinabove stated in detail, such items were verified to our satisfaction. There are no known claims of the United States against the contractor arising out of or incident to the original contract which are not covered in reaching the foregoing determination.
    New Yokic OedNANCe Disteict Claims Boaed,
    By C. S. Beed, Golonel, Ord. Dept., U. 8. A., Chairman-
    
    We will accept the conclusion and amount stated in the foregoing award. The contractor warrants that there are no liens, mortgages, or encumbrances of any kind, nature, or description now existing against any of the material referred to hereinabove.
    T. A. Gillespie Co.,
    
      Contractor.
    
    P. J. HOLDSWORTI-I.
    H. I. H.
    Thereafter, on October 23, 1920, the Ordnance Department Claims Board at Washington, pursuant to the action of said district board, made a supplemental award to plaintiff which embraced both the original item of $26,974.77 .and the additional item of $15,683.77, which award was approved by authority of the Secretary of War and is the same award attached to and made part of plaintiff’s petition herein as Exhibit A thereof and is made part hereof by reference.
    VIII. The plaintiff thereupon accepted the additional amount of $15,683.77 in settlement of its claim, which was satisfactory to plaintiff. For the purpose of paying said sum to plaintiff the Secretary of War caused to be issued to plaintiff two public vouchers, one for $5,226.68 and the other for $10,457.09, which plaintiff presented to the proper finance officer of the Government and made demand for payment thereof; and neither of the aforesaid vouchers has been paid to plaintiff.
    
      On November 22, 1924, plaintiff filed its suit in this court asking for a judgment against the defendant in the sum of $15,683.77.
    The court decided that plaintiff was entitled to recover.
   MEMORANDUM BV THE COURT

The findings show in detail an award made to the plaintiff by the Secretary of War under the Dent Act, acceptance by the plaintiff, issuance to the plaintiff of vouchers covering the amount of the award, and a refusal to pay the vouchers. Suit is on the award.

The defendant contends; first, that the award in question was, for reasons stated, unauthorized and illegal and, second, that this court is without jurisdiction.

As to the first contention, we do not find it sustained by the facts, but do not discuss that feature of the case because of our views, recently expressed, as to the conclusive and unreviewable character of the award, except when the Government has been defrauded, which is not here alleged. See opinion on demurrer to counterclaim in Standard Steel Car Co. v. United States, ante, p. 726.

As to the defendant’s contention that this court is without jurisdiction of this case, it is of course apparent from the views expressed in the case above referred to that we can assert no jurisdiction to review and confirm or otherwise the award sued on, but we must not be unmindful of the general jurisdiction of this court under section 145 of the Judicial Code.

The award of the Secretary of War under the Dent Act and its acceptance by the plaintiff fixed in the plaintiff the right to receive the amount of money awarded. If that right, pursuant to such determination by the Secretary, is founded upon the Dent Act, then this court has jurisdiction as of a claim founded upon a law of Congress.

If plaintiff’s right is founded upon the award of the Secretary and its acceptance, rather than upon the law itself, it would seem that this action is within this court’s jurisdiction of claims founded upon'“any contract, express or implied, with the Government of the United States.” And it may be said that the award and acceptance do not stand alone. The act authorized the Secretary not only to “ adjust,” an action indicated by his award and its acceptance, but also to “ pay.” This meant, of course, by the usual method; not from cash in the hands of the Secretary, but by the issuance of proper vouchers to be paid by those charged with that duty.

We need not consider whether the plaintiff might have sought a mandate to enforce the performance of a ministerial duty. That is an extraordinary remedy, and the plaintiff has seen fit to seek a legal remedy by way of judgment at the hands of this court. To this we think it entitled and have so ordered.

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