
    ARTHUR E. GOVE v. THE UNITED STATES.
    [No. 30583.
    Decided January 9, 1914.]
    
      On the Proofs.
    
    The plaintiff was a civilian captain of a Navy collier serving under an express contract with the United States and instituted this suit to recover compensation for certain items disallowed by the accounting officers in the settlement of his accounts.
    I. There is no act of Congress or Navy regulation authorizing the payment of travel expenses of an officer while traveling for the interests of the service, unless by order of an officer having the authority to make such order.
    XI. Where a contract officer of the Navy is furloughed during the pendency of an investigation of his accounts, and he, of his own accord, removes himself from the station of his vessel, and without authority boarded a ship at Manila for his home in the United States, he is not entitled to pay and travel allowances after he was, by proper orders, relieved from official duty.
    III. Where a contract officer of the Navy abandoned his place of service without orders, it is conclusive that such contract officer considered his contract with the Government at an end, and he is entitled to no further remuneration from the Government.
    IV. Where from the record it appears that the accounting officers in the settlement of plaintiff’s account failed, by mistake, to pay him all that was due, judgment will be rendered in his favor for such sums as is shown to be due him under the terms of his contract of employment.
    
      The Reporter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. On June 14, 1902, claimant, Arthur E. Gove, and the United States entered into a contract, a true copy of which is annexed to the amended petition as Exhibit A, except that the words in brackets in paragraph 11 thereof and the addendum at the end thereof were not in the contract at the time it was executed, but were added thereto by mutual consent of the parties July 9, 1904. Said modification was further witnessed by a supplemental contract by and between claimant and defendants, executed on the date last mentioned, a true copy of which is annexed to the amended petition, marked “ Exhibit B.”
    II. In accordance with said contract, defendants directed claimant to assume command and he did assume command of the United States naval collier Alexander at the navy yard, Norfolk, Va., shortly after the execution of said contract, and continued in command thereof until January 9, 1907.
    III. Between August 1, 1904, and January 9, 1907, claimant, in accordance with the contract between the parties, from time to time employed on board said collier Alexander divers Asiatic cooks and stewards, engaged on the Asiatic Station, not in excess of the complement prescribed by the Bureau of Navigation, and furnished them subsistence. For said Asiatic cooks and stewards claimant was paid by the United States the wages he actually paid them and 25 cents per man per day. If entitled to be paid for said Asiatic cooks and stewards the wages he paid them and 50 cents per man per day, there is due claimant, in addition to what he has already received, the sum of $988, the difference between the subsistence of said cooks and stewards at 25 cents per day and 50 cents per day each.
    IY. On January 9, 1909, claimant was directed by Bear Admiral Willard H. Brownson, United States Navy, commander in chief United States Asiatic Fleet, to relinquish and did relinquish command of said vessel at Manila, P. I. At that time the following order was issued to claimant:
    “ U. S. Flagship £ West VirgiNia,’
    “Manila, P. /., January 9, 1907.
    
    
      “ Sir: You are hereby placed on furlough by direction of the Navy Department.
    “ Very respectfully,
    “ W. H. BrowNsoN,
    “ Bear Admired, United States Navy,
    “ Commander in Chief, United States Asiatic Fleet.
    
    “ Master A. E. Gove,
    “Z7. S. Naval Auxiliary ‘Alexander
    
    Claimant was directed by Admiral Brownson to and did remain in Manila from the date of the above order until on or about January 18, 1907, to await the report of a board of investigation. On or about the last-mentioned date the board made its report, and claimant left Manila P. I., and returned to bis home, Brooklyn, N. Y., where he arrived about March 1, 1907. Claimant demanded of the commandant of the navy yard at Cavite, P. I., transportation to his home, but was refused. He paid for his transportation, subsistence, and traveling expenses on the foregoing journey the following sums:
    Steamship fare, Manila, P. I., to Seattle Wash., 250 pesos_$125
    Pare, Tacoma, Wash., to New York, N. Y., and Pullman fare,
    Tacoma, Wash., to Chicago, Ill_ 87
    Pullman fare, Chicago, Ill., to New York, N. Y_ 5
    Subsistence, Tacoma, Wash., to New York, N. Y- 6
    223
    Y. From his arrival at his home, Brooklyn, N. Y., on or about March 1, 1907, as stated in finding IY, until January 22, 1908, claimant remained at his home unoccupied, awaiting the orders of the Navy Department. On January 22, 1908, the Secretary of the Navy sent claimant the following letter:
    “ Navy DepartmeNT,
    “ Washington, January 88,1908.
    
    
      “ Sir : The contract entered into with you by the department under date of June 14, 1902, for the command of the naval collier is, in accordance with the recommendation of the Bureau of Navigation, hereby terminated.
    “ It is requested that you make prompt settlement of your accounts under said contract with the Auditor for the Navy Department.
    “ Yery respectfully,
    “Y. H. Metcalf,
    “ Secretary.
    
    “ Mr. AethuR E. Gove,
    “ No. klip Forty-ninth Street, Brooklyn, N. F.”
    For the period from January 9, 1907, to January 22, 1908, claimant received -no pay from defendants. During said period claimant’s time was reasonably worth $3,000 per annum. If entitled to judgment for the value of his time, for the period stated, there is due claimant $3,108.33. If entitled to be paid for the period stated at $150 per month, there is due claimant $1,865.
    
      
      Mr. Archibald King for the plaintiff. King db King were on the brief.
    This claim is directly sustained by the allowance of wages on the journey home from foreign employment in Davis v. United States, 47 C. Cls., 195; Lombard S. S. Go. v. Anderson, 134 Fed., 568; Oroucher v. Oalcman, 3 Allen (Mass.), 185; all discussed post, pages 58, 59, 62.
    In Butler v. United States, 47 C. Cls., 39, it was held that circular orders in the nature of regulations, issued after the beginning of the term of employment, could not alter the express terms of the employment set out in the letter of appointment.
    In Whittle v. Frankland, 2 Best & Smith, 49, Lord Cock-burn, C. J., on behalf of the Court of Queen’s Bench, spoke thus of a contract of employment as miner at piece wages:
    “The agreement by the appellant is to serve the company faithfully and exclusively as their servant, from the date of the agreement until the expiration of twenty-eight days’, notice, and obey their lawful commands; and on the part of the employers the agreement is, that they will pay him wages fortnightly, and not discharge him without twenty-eight days’ notice. There is no express agreement that they will find him work, but that arises by necessary implication from the above two stipulations. The agreement would be perfectly illusory on the part of the employers, if they can say that though they were obliged to keep him in their employ, they were yet not bound to supply work.”
    A soldier enters the service of the United States, as did this claimant, by contract; and the United States promises him, as they did Gove, pay and shelter. Of furloughs to soldiers, this court, speaking through Nott, C. J., has said, Hunt v. United States, 38 C. Cls:, 704, 710:
    “A leave of absence or a furlough is. a favor extended A soldier can not have a furlough forced upon him. So long as he remains in the service he is entitled to rations and a resting place and medical attendance. No officer of the Government can authoritatively say to him, ‘Be gone for a month or two and take care of yourself, and tail not to come back at the appointed time to resume your duty and get your pay, or you will be arrested as a deserter.’ Tbe only manner in which the Government can release itself from its obligations to the soldier, be he officer or enlisted man, is by setting him free — by discharging him from the service.”
    In Lombard 8. S. Go. Ltd. v. Anderson, 134 Fed. Rep., 5@8, the master of a merchant ship was employed at New York, which seems to have been his home, not for any particular time or voyage, and was discharged, as was this claimant, at Manila. The Circuit Court of Appeals for the Fourth Circuit held that the owners of a vessel had a right to remove a master with or without cause at any time or place, but that the libellant was entitled to recover of the owners his passage and traveling expenses home. The case is a direct authority.
    In Slocum v. Swift, 2 Lowell, 212, Fed., Case No. 12954, libellant was master of a whaling vessel of New Bedford, Mass., at which port he was employed. Said the court:
    “But I think it results from the whole correspondence, that whatever may have been thought to be the strict rights of either in the matter, which were in no sort made a question at that time, the contract was so far modified by consent of both, that a return to New Bedford was abandoned, and the voyage was ended at San Francisco. This being so, I think the libellant is fairly entitled to have-his passage home paid by the owners; because this is the general rule, and ought to be implied, where nothing is agreed to the contrary.”
    We only ask for the application of the general rule as stated by the court. Other cases not so directly parallel, but to the same general effect, are Groucher v. Oalcman, 3 Allen (Mass.), 185, and The Camilla, Swabey, 312, 6 Weekly Rep., 840. . .
    But besides being a master mariner, claimant was a Government employee. The policy and obligation of the TJnited. States with respect to returning' its employees to their homes upon discharge are stated by the court in Sherburne v. United States, 16 C. Cls., 491, 497.
    In Beaman v. United States, 19 C. Cls., 5, it was held that a person whose residence was at San Francisco, appointed assistant Treasury agent at the seal fisheries in Alaska, with a salary at $2,190 and necessary traveling expenses in going to and returning from Alaska, was entitled to be returned to bis home at Government expense, even after his office had ceased to exist through the failure of Congress to make an appropriation for its continuance.
    Also in Allderdice v. United States, 19 C. Cls., 511, where an officer resigned abroad and his resignation was accepted to take effect on his arrival in the United States, it was held in the opinion — •
    “Although the purpose of the claimant’s journey was to resign and leave the service, yet, nevertheless, it was the duty, as it was the intention, of the Secretary of the Navy to restore the officer to his residence before the resignation should take effect. Such has been the policy of the Government with regard to soldiers and sailors.”
    In the recent case of Dams v. United States, 47 C. Cls., 195, the position of claimant was paymaster’s clerk in the Navy, on duty at the naval station, Cavite, P. I. The number of pay clerks in the Navy is strictly limited, R. S., sec. 1386, and but one was authorized at Cavite. Claimant’s successor arrived and entered on duty, thereby making one more pay clerk than was expressly authorized by law. Claimant meanwhile was ordered to his home, upon arrival at which his appointment was to be deemed revoked. He was paid his traveling expenses but denied salary during the period of his return.
    
      Mr. George M. Anderson, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   AtkiNSON, Judge,

delivered the opinion of the court:

The plaintiff herein was a civilian captain of a Navy collier, serving under an express contract with the United States, who instituted this suit to recover the sum of $4,319.33, based upon the following items:

1. The difference between the amount paid for subsistence of certain Asiatic cooks and stewards at 25 cents per day and the amount stipulated by the contract, 50 cents per day each, stated at $988.

2. Traveling expenses from Manila, P. I., to Brooklyn, N. Y., after being relieved of the command of his vessel, $223.

3. Salary from the date when he was relieved of the command of his vessel, January 9,1907, to the date when he was dismissed from the service of the United States for irregularities in his accounts, January 22, 1908, $3,108.33.

Plaintiff, as above stated, entered into a contract with the Government on June 14, 1902, to serve as captain of a Navy collier under the conditions set forth in section 1 of the contract, which reads as follows:

“ 1. The party of the first part will assume and exercise command, as master, of a United States naval collier, and the responsibility for a careful navigation to and between such ports., and for such and all purposes as may be specified in orders issued to him from time to time by the Secretary of the Navy, or other naval authority designated by him; and the party of the first part further agrees that his command as such master shall cease and determine at the will and pleasure of the party of the second part.”

The contract further provided that plaintiff was to employ the crew of the vessel in accordance with the rules and customs of the merchant marine, and was authorized to pay them their wages and to furnish subsistence for them while under his command. He was to be allowed 50 cents per day for the subsistence of each member of the crew, except Asiatics, for whom he was to be allowed 25 cents per day. On July 9, 1904, the contract was modified in regard to subsistence, allowing 25 cents per day for each Asiatic, except cooks and stewards of the complement prescribed by the Bureau of Navigation. This modification leaves, as we understand it, the subsistence of Asiatic cooks and stewards at the same rate as that of all the crew before the supplemental contract was made, and provided 50 cents per day for the white members thereafter. The accounting officers, in the settlement of plaintiff’s accounts, only allowed the sum of 25 cents per day, which seems to have been an oversight or clerical mistake, because counsel for the United States says in his brief, “ It would therefore appear that he is entitled to credit for this item, if the same has been correctly computed from the triplicate pay rolls filed as exhibits to the deposition of the claimant.”

We accordingly render a judgment on said item for the sum of $988.

The second item in the petition is for traveling expenses of plaintiff from Manila, P. I., where he was relieved from duty as master of the Government collier Alexander, to his home at Brooklyn, N.' Y.

It appears that plaintiff was charged with irregularities in his accounts, and he was summoned by Admiral Brownson before a board of investigation at Manila, on January 9, 1907. He thereupon reliiiquished his command of said collier, and on that date he was placed on furlough by the Navy Department (finding IY), it is presumed, although it is not shown, for the purpose of allowing him to attend said board of investigation. On or about January .18, 1907, the investigation of his accounts was completed and a report thereon was made to the Navy Department by said board. On said last-mentioned date plaintiff applied to the proper officer at Manila for transportation to his home at Brooklyn, N. Y., which request was refused. Whereupon he, without receiving orders or permission so to do, left Manila and arrived at his home in the United States on or about March 1, 1907.

On December 26, 1907, the supervisor of naval auxiliaries informed the Secretary of the Navy that the board of investigation had reported that the irregularities for which the claimant was furloughed had been substantiated and he recommended the revocation of his contract and his dismissal from the service at as early a date as practicable. On January 22, 1908, in accordance with a recommendation of the Bureau of Navigation, his contract was terminated by the Secretary of the Navy and he was requested to make prompt settlement of his accounts with the Auditor for the Navy Department.

Thereafter, on May 9, 1908, the Auditor for the Navy Department found plaintiff to be indebted to the Government, on various items, in the sum of $8,408.73. Appeal thereon was taken from the auditor to the Comptroller of the Treasury, who affirmed the decision of the auditor, and suit was entered against plaintiff and the sureties on his bond in the District Court of the United States for the Southern District of New York to recover said amount.

Plaintiff had been in the service of the Government for about six years in Asiatic waters when he was relieved from duty by the furlough previously referred to; but it appears from the findings that immediately after the board of investigation into the state of his accounts was made known to him, without permission or orders from the commander of the Asiatic Fleet, he, of his own volition, departed for his home in the United States. We find no act of Congress and no regulation of either the Army or the Navy that authorizes the payment of traveling expenses of an officer, enlisted man, or other employee of the Government, or expenses while so traveling for the interests of the service, unless the traveling is done by order of an officer having the authority to make such order. It has been determined by a number of decisions of this court that traveling in the maimer above stated by an officer, soldier, or other representative of the Government from or to the continental limits of t]ie United States is entitled to both salary and expenses while so engaged, if such travel is under proper orders and for the good of the service. The court has gone even further by holding that one who enters the public service of the United States and is taken to foreign countries in such service and is there discharged, the Government, under all the rules of fairness, is bound to furnish him with transportation and other necessary expenses in his return to the place whence he started, provided such travel is done under proper orders. Sherburne v. United States, 16 Cl Cls., 491, 497; Beaman v. United States, 19 Ibid., 511; and Davis v. United States, 47 Ibid., 195.

But the above cases are not this case. Plaintiff was not discharged at a foreign port. He was only furloughed until his accounts with the Government could be investigated by a military board appointed for that purpose. He was not on active duty during the pendency of the investigation of his accoimts at Manila, but it appears from the findings of fact that immediately after the result of the investigation was made known he, of his own accord, saw fit to remove himself from the station of his vessel, and without authority boarded a ship for his domicile in the United States. Had it been determined by the naval officials in command at Manila to reinstate him as master of the collier Alexander or to the mastership of some other Government collier, his return to Manila would have been essential, if he should decide to remain in Government service. Under such conditions it seems to us unreasonable to contend that he would be entitled to travel pay from Manila to Brooklyn and back again to Manila in order to resume such command. Furthermore, it does not appear that plaintiff at any time filed a claim for his traveling expenses from Manila to Brooklyn, N. Y., prior to bringing this suit. Consequently, we fail to find any just or proper reason, either in fact or in law, upon which to base an allowance on this item of the petition ; therefore the same is accordingly dismissed.

Plaintiff, in addition to asking the Government to refund his traveling expenses from Manila to his home in the United States, after abandoning his post of duty without departmental leave, demands pay, under item 8 of his petition, for salary from January 9, 1907, the date he was relieved from official duty under furlough, to January 22, 1908, when he was notified by the Bureau of Navigation that his contract with the Government was terminated. The contract with plaintiff, section 1, ante, provides, “ and the party of the first part further agrees that his command as such master shall cease and determine at the will and pleasure of the party of the second part.”

In the case of Frazier v. United States, 10 Comp. Dec., 462, it was held that “The master of a vessel is a seaman within the meaning of section 4612 of the Revised Statutes, and when discharged for cause he is not entitled to pay after the date of his discharge, or to transportation and subsistence back to the United States.” In the act of March 3, 1901, 31 Stats., 1029, appropriating funds for the Naval Establishment, it is provided that “Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America”; and we may add that in addition to these authorities it appears that on January 7, 1907, two days before plaintiff was relieved from official duty as master of the collier Alexander, the commander in chief of the United States forces on the Asiatic station directed the paymaster of the navy yard at Cavite, P. I., to settle the last pay roll and outstanding accounts of A. E. Gove, master U. S. naval collier Alexander, who has been placed under suspension by authority of the Navy Department”; and it further appears that his salary was paid in full to and including January 9, 1907, the date of his “furlough.” This fact, when considered in connection with the further fact that he abandoned his place of service without orders, is, to our minds, conclusive proof that he considered his contract with the Government as ended and was entitled to no further remuneration from the Government than that which he had already received.

Section 11 of the contract provides when and how plaintiff’s salary shall be paid in these words: “ The party of the first part is to be paid for carrying out this contract, as hereinbefore stipulated, and from the date of completing the same, $250, in lawful money of the United States, per calendar month, or proportionately for any part thereof * * thus implying that salary shall be paid only for actual service rendered. This, when considered in connection with section 1 of the contract, which, pro vides that the same may be terminated at the will and pleasure of the Government, coupled with payment of salary in full when suspended from duty, the provision of the appropriation act of Congress above quoted, the abandonment without orders of his field of operations, it is but reasonable to conclude that plaintiff considered his relations with the Government as finally terminated. Yet, in the face of all these facts, he brings this suit to recover pay for nearly 13 months’ service that he did not render, basing his claim therefor on the technical ground that he had not been officially notified that his services were no longer needed by the United States. Such contention, to our minds, seems not only unreasonable, but inconsistent and unjust as well; consequently there should be no allowance under this item.

Considering the whole case, the court decides that judgment should be entered against the United States on Finding III for the sum of $988 in favor of the plaintiff, and that the remaining claims contained in the petition should be dismissed as set forth in the conclusion of law, and judgment thereon should be awarded to the United States.

It is so ordered.  