
    HELEN LUNDBORG, Administratrix, v. THE UNITED STATES.
    [No. 15592.
    Decided December 7, 1903.]
    
      On the Proofs.
    
    The Secretary of the Navy publicly invites engineers and mechanics to submit plans for certain vessels authorized by Congress, and promises “ that should any plan or design submitted pursuant to the advertisement be adopted or used a liberal compensation will be paid therefor.” The claimant submits plans and specifications, with a letter saying that in the event his offer is rejected “the return of the plans is requested as soon as possible without being copied.” A naval board rejects the plans, but for some reason not disclosed they are not returned to the claimant.
    I.Where the promise of the Secretary of the Navy to pay persons submitting designs for vessels -is dependent entirely upon the subse- . quent adoption of the plans submitted, the adoption or use of the plans must be established by the claimant.
    II.Where the plans submitted are not adopted, the right to recover for use depends upon whether they contained novel designs. If there was nothing novel in them, there was nothing which the defendants were not free to use.
    III.Where the claimant, when he transmitted his plans to the Navy Department, requested that if rejected they be returned as soon as possible, the officers of the Navy Department had no right to retain them; but to recover for such retention the claimant must prove damages.
    
      
      The Reporteri statement of the case:
    The following are the facts of the case as found by the' court:
    I. The claimant’s decedent was, at the time hereinafter mentioned, a citizen of the United States.
    II. On the 8th daj^ of May, 1885, the Secretary of the Navy published the following- advertisement and notice concerning the construction of new steel steam cruising vessels for the United States Navy:
    “ Navy Depaetment,
    “ Washington, May 8, 1885.
    
    
      . “Invitation is hereby extended to all engineers and mechanics of established reputation, and all reputable manufacturers of vessels, steam engines, boilers, or ordnance, having or controlling regular establishments, and being engaged in the business; all officers of the Navy; and especially all naval constructors, steam engineers, and ordnance officers of the Navy, having plans, models, or designs of any vessels, or of any part thereof, of the classes authorized by the naval appropriation, act of March 3, 1885, to submit such plans, models, and designs to the Secretary of the Navy.
    “The vessels authorized to be constructed are two cruisers of not less than 3,000 nor more than 5,000 tons displacement, costing, exclusive of armament, not more than $1,100,000 each; one heavily armed gunboat of about 1,600 tons displacement, costing, exclusive of armament, not more than $520,000; and one light gunboat of about 800 tons displacement, costing, exclusive of armament, not more than $275,000.
    “These vessels are to be constructed on the best and most modern design, having the highest attainable speed, and in the manner and conformity to the conditions and limitations provided for the construction of the new cruisers in the acts of August 5, 1882, and of March 3, 1883, except so far as said acts provide for and define the duties of Naval Advisory Board.
    “Said plans, models, and designs should be submitted within the period of sixty days after May 15, 1885, and should be transmitted to the Navy Department, Washington; D. C. Should any such plan, model, or design be adopted or used, a liberal compensation will be paid therefor.
    “The Department will, upon application, forward copies of so much of the naval appropriation acts as relates to said vessels, and will answer all letters of inquiry and furnish all desired information on the subject.
    “William C. Whitney,
    “ Secretary of the Navy.”
    
    
      III. Pursuant to the advertisement, Charles G. Lundborg' submitted desig-ns, with accompanying specifications, of a cruiser of about 5,000 tons displacement, with a statement that—
    “Having obtained patents in this country for the system of naval architecture upon which these designs are made, I beg-to say that in submitting them to the U. S. Government I do so upon the following conditions: If the Government should adopt them, or similar ones, for a vessel of larger displacement, which I would prepare if desired, I should require the Government to pay me a royalty of-dollars. In the event of this ofi'er being rejected, I respectfully request that the designs be returned to me as soon as possible without having-been copied.”
    IV. A board consisting of J. G. Walker, Chief of Bureau of Navigation: Herman Winter, constructing engineer; T. D. Wilson, chief constructor, U. S. Navy; W. T. Sampson, commander; C. F. Goodrich, commander, U. S. Navy; and Francis T. Bowles, assistant' naval constructor, U. S. Navy, was organized by the Secretary of the Navy, with instructions set forth in claimant’s Exhibit B, as follows: .
    “Navy DEPARTMENT,
    “ Wednesday, July 89th, 1885.
    
    “The Hon. Secretary of the Navy addressed the board as follows:
    “He read the appropriation act, showing that Congress put upon him the responsibility of building four ships of the best and most modern design, .having the highest attainable speed, and upon plans determined upon after consideration of all designs heretofore adopted by the Department. He called attention to the act of 1882, by which the Secretary was called upon to advertise for the submission of models, .plans, and designs, and stated that one of the first duties of this board would be to go through these designs and make the decision which the statute refers to, namely, whether any of those plans are such, that they should be adopted. Assuming that they would find none of them entirely satisfactory, he then explained to the board precisely what function it ivas that he wished them to perforin. He said:
    “ ‘The law imposes the obligation to construct these ships upon the Secretary, but does not suppose that the Secretary can perform it except through other people. The preliminary question which has to be decided always is, in the first place, what- the type of the ship shall be — that is, what her characteristics should be. In the construction of the ship you have simply her displacement to use up between hull, machinery, armor, armament, coal, equipment, etc. That is your problem; and it is to decide what her displacement shall be and how this displacement shall be distributed between these different things that the board is called upon in the first place to advise about.’
    “The Secretary called attention to the fact that the Department is largely inexperienced as compared with any set of men undertaking a similar work in any country. The Department had not been authorized by Congress and given the money with which to construct a modern ship until these four vessels that are now in course of construction were authorized. Therefore the construction of modern ships up to the present state of the art was almost a new thing for the Department. It was not surprising that there had not been accumulated here in the same degree as is found in other countries the information, scientific knowledge, and skill which would have accumulated about the Department if it had been engaged for a number of years in this class of work. It has really been occupied in repairing the old wooden ships for a number of years, and has not had the authority nor the means to build new ones up to the present state of the art. Continuing, Secretary Whitney said:
    “‘It is therefore desirable to proceed with great caution in this matter, and to take no step without its being absolutely a sure one; and in order to do this it is necessary that the Department should be possessed of all the information possible to be gathered in regard to what other people have done. No private individual would set out to expend $3,000,000 in construction without first, for his own advisement, becoming acquainted with the best things that had been done by others in the same direction.
    “ ‘Therefore it should appear to you desirable, before making the decision which I ask of you, that further and more detailed information should be had of the doings of other countries. I consider that the Department has the power to expend money therefor, and I consider it very wise and judicious to expend it.
    “ ‘I have already, for the last three months, been expending money in that direction, and a good deal of evidence will be found to have been already accumulated. I think it possible for me to say these things without reflecting at all upon the Department. It is only with the greatest effort that any nation is able to keep up with the improvements in shipbuilding; and of course it has been impossible in a Department where no ships of modern design have been built until these recently undertaken. Therefore it is desirable that we should proceed modestly and deliberately, taking all necessary time to inform ourselves that the things which we adopt are the wisest and best, after we have examined thoroughly and with knowledge what others have done. Until that time comes I do not propose to take any step. The portion of the completed ship requiring the longest time is the armament, and that not having been appropriated for in this instance gives all necessary time to proceed deliberately and wisely. After the decision has been made what the ship shall be, what her size, horsepower, weight of engines, space for engines, what her armament and armor, and so on, shall be, then comes the second stage, which is putting this general design into the hands of technical men to prepare in detail the plans and specifications on which the work is to be done. That step I do not at present desire advice upon; it will be the second stage in the work. ’
    “The Secretary expressed the hope that the board would harmoniously cooperate together toward working out that which he considered the most important problem that the Department has to encounter, and the successful accomplishment of which would not only reflect credit to the naval service, but be a very great benefit to the entire industry of shipbuilding in this country.”
    Y. On September 18, 1885, this board, known as the board on additional unarmored vessels, submitted its report to the Secretar}7 of the Navy, in which appears classifications of plans, models, designs, and suggestions submitted under the Department’s notice of May 8, 1885.
    Charles G. Lundborg, of New York, appears in the class not recommended for adoption, a statement appearing to the effect that none of the class of a general nature or involving a design'of a vessel more or less complete were found in the majority of the cases to be not in accordance with the conditions of the act of March 3, 1885.
    Following are the classifications:
    “Appendix I. — CLASSIFICATIONS OF PLANS, MODELS, DESIGNS, AND SDGGESTIONS SUBMITTED UNDER THE DEPARTMENT’S NOTICE OF MAY 8, 1885.
    “First class. — Those of a general nature or involving a design of a vessel more or less complete.
    “ [None of this class are recommended for adoption, having been found in the majority of cases to be not in accordance with the conditions of the act of March 3, 1885.]
    
      
      “ C. G. Lundborg, New York (5205).— Plans and specifications for vessel of 5,000 tons; nineteen inelosures.
    -X- -X- -X- -X- -X- -X- X
    
    VI. After the refusal of the Secretar}^ of the Navy to adopt the Lundborg plans, no formal demand or written application for their return subsequent to the letter which accompanied their transmission to the Secretary was ever made. But some time after the report of the Board Charles G. Lundborg’ personally and by his attorney called at the office of the Secretary of the Navy for the plans previously submitted, but the said plans and specifications after a diligent search were not found. Subsequently the plans and specifications were found in the possession of the Chief Naval Constructor, by whom they were transmitted to one of the committees of Congress on the call of a committee. This was in February, 1886. after the introduction of a bill for the relief of Lundborg.
    VII. It does not appear that the United States at any time acted upon the suggestions contained in the Lundborg specifications, nor were the plans submitted by Lundborg ever formally adopted by the Secretary of the Navy.
    VIII. It appears that the Navy Department has, since 1885, invested large sums in the purchase of plans and specifications for use in the construction of cruisers and battle ships of the Navy, and that cruisers and battle ships have been constructed from the plans and specifications so purchased. The evidence does not establish to the satisfaction of the court that in the construction of any.of the cruisers and battle ships constructed by the Navy since May, 1885, that the Navy Department made use of any of the plans and specifications aside from those so purchased.
    IX. The evidence does not establish the quantum of damages sustained b}*- plaintiff’s intestate for the neglect and failure of the officers of the Government to return the plans and specifications to him, nor does it appear from the evidence that damages really existed by reason of the retention of the plans and specifications in the Navy Department.
    
      Mr. W. G. Donn for the claimant. Mr. Lorenzo Sample and Mr. Howard Thayer Kingsbury were on the brief:
    The facts in the case are sufficient to constitute an express contract.
    
      There was an express offer on the part of the Government of' “liberal compensation” for ¡ffans “adopted or used.” This offer vras' expressly accepted by the claimant, and his part of the contract performed. There was no specific statement as to what was to be deemed “use” of the plans. Any acts of ownership are sufficient to constitute use, so far as the claimant is concerned, so that the mere retention of the plans was the use of the plans.
    That such an express contract is binding on the Government, as it would be on a private individual, requires no authority, and it only remains to fix the compensation.
    Besides the express contract, there is an implied contract in the nature of a quantum meruit or quantum valebant.
    
    The plans were prepared and submitted at the request of the Government. Irrespective of the express promise to pay “liberal compensation,” there was an implied obligation to pay their reasonable value if the Government retained them, as in fact it did. The nature and extent of the Government’s liability in actions on implied or quasi contracts, as recognized and enforced in this court, is exhaustively discussed in Ingram’s case (32 C. CIs. B., 147). And the distinction between the taking of tangible property and the mere invasion of intangible rights, such as patent rights, is clearly pointed out in Schillinger’s case (25 C. CIs. B., 278).
    In the case at bar tangible property — the plans and designs prepared by Captain Lundborg — were taken, and, in the language of the case just cited, “if the Government actually acquired the property * * * a contract to pay for it’ is implied.” No distinction can be drawn • between “taking” and “keeping.” It is 'as much a taking to keep what has been placed in another’s hands for a special and temporary purpose as if there had been a forcible change of possession.
    The extent to which the Navy Department has actively and consciously availed itself of Captain Lundborg’s plans in the practical construction of naval vessels is of importance chiefly in determining the amount of compensation.
    Captain Lundborg is entitled in any event to the actual Aralue of his plans as a marketable article; and so far as the Government has received further benefit therefrom, to whatever maj’ be determined, ex aequo et bono, to be the just and fair compensation for such benefit.
    
      
      Mr. George II. Walker (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

By authority of law, the Secretary of the Navy, on May 8, 1885, published an advertisement and notice relating to the construction of new steel cruising vessels, in which he extended an invitation to all engineers and mechanics of established reputation to submit plans, designs, and specifications to the Secretary for vessels, or any part thereof, of the classes authorized by the naval appropriation act of March 3, 1885. Plans were required to be submitted within the period of sixty days from May 15, 1885, with the promise that should any plan or design submitted pursuant to the advertisement be adopted or used, a liberal compensation would be paid therefor.

Pursuant to the advertisement a number of plans and specifications were submitted. Accompanying the plans and specifications submitted by Lundborg was a letter stating that if the Government should adopt them or similar ones for a vessel of larger displacement the payment of a royalty would be required, but in the event of his offer being rejected the return of the plans was requested as soon as possible without being-copied.

The Secretary convened a “board on additional unarmored vessels,” with power to examine all the plans and models offered and to report whether any of them were worthy of adoption.

On September 18, 1885, the board made an elaborate report to the Secretary, stating that the general plans submitted in response to the advertisement had in no case commanded unqualified approval. Accompanying the report was a classification of those plans, models, and designs of a general nature, or involving a design of a vessel more or less complete, with a note to the effect that none of this class was recommended for adoption, because in the majority of cases the plans were not in accordance with the conditions of the act under which the advertisement was made. The plans and .specifications of plaintiff’s intestate were enumerated within the classification.

For some reason not disclosed the Lundborg plans were not returned. There is no record of any formal demand or written application for their return subsequent to the .letter which accompanied their transmission to the Secretary. But it seems that some time after the report of the board the original claimant personally and by attorney called at the office of the Secretary of the Navy for the plans submitted by the constructor, and though a diligent search was made for them they were not found. Subsequently the plans and specifications were found in the possession of the Chief Naval Constructor, by whom they were transmitted, in February, 1886, to one of the committees of Congress on the call of the committee after the introduction of a bill for the relief of the owner of the plans. It does not appear that when the submitted papers were found in the office of the Chief Naval Constructor that any demand was made upon him to return them. Nothing was said to him about their return nor to the Secretary after the first call.

The gravamen of the action lies in the allegation that the Lundborg plans contained novel features which were adopted and used in the construction of cruisers and battle ships; that the Navy Department availed itself of the information supplied by his plans and specifications in this: That the ratio of the length of ships in our new Navy, as well as the breadth of sugIi ships, was changed in the construction of cruisers; that vertical engines instead of horizontal were adopted because all of the naval vessels of the United States were fitted with horizontal engines before 1885, but since that time vertical engines havebeen substituted; that subsequent to the time the alleged new plans were submitted all vessels of the Navy contained provisions for trimming tanks, whereas no vessels were fitted with trimming tanks before the Lundborg plans were offered; and finally, that the present plan of closing screw shafts in the extension of the hulls of vessels was substantially the same as that shown by the plan submitted bjr plaintiff’s intestate. Next, that the receipt of the plans and specifications of this constructor and the failure to return them to him constituted an acceptance of the proposition contained in the letter transmitting them, whereby it is obligatory upon the part of the Government to pay the value put upon the plans, and the details which explain their meaning. Injury to the constructor in not having the plans and specifications for use elsewhere is alleged with this part of the complaint.

It is argued that .under the instructions of the Secretary of the Navy the board appointed by him to consider all the plans was not permitted to consider those novel features suggested by Lundborg.

This, however, is not material to the inquiry. The cause of action is not that the intention of Congress was misconstrued by the Secretary of the Navy in the instructions given to those charged with the duty of examining, the models, but rather whether a contract existed by the terms of the advertisement and the subsequent action of the Government.

The promise to pay any of the persons submitting designs pursuant to the advertisement was dependent entirely upon the subsequent adoption or use by the Government of the plans submitted, and not upon anything in the nature of counter propositions from others or arising out of the instructions given by the Secretary of the Navy to his subordinates or those designated by him to examine the papers transmitted pursuant to the printed notice. The question here becomes narrowed, then, to the adoption by the Government, or the use which it has since made of the plans and specifications offered by Lundborg.

Necessarily there must have been something previously unknown to naval architecture contained in the designs offered by Lundborg to warrant the statement that the Government adopted them. Without novelty or suggestions peculiar to his plans, there was nothing to adopt and nothing which the Government did not already have the right to use. It neither appears that the models were ever formally adopted or that the suggestions contained in the specifications were used in the construction of any of the cruisers which since that time have become a part of the Navy. Upon the questions of actual adoption or subsequent use the findings of fact are adverse to the contentions of the plaintiff. These findings dispose of the claim of novelty in the designs. With this branch of the case out of the way there is nothing left to be considered but the question of liability growing out of the failure of the Government to return the plans.

There is no pretense that, had the plans and specifications been returned, an}*- actual use could certainly have been made of them. It is not claimed that there was any probability that private purchasers could at any time be found. Nations and not individuals wrere really the only customers which a constructor could possibly expect to use designs in the building of cruisers or battle ships of any kind. This being so, and there being no contention that the constructor was in communication or negotiation with any government in connection with the use of his designs, there is nothing tangible in the assertion that he was injured by the-retention of his suggestions. It is true that an effort has been made to show that if the plans and specifications had been in possession of their owner immediately after the board had passed upon them the constructor might have prosecuted his acquaintance with an influential subject of China, and through him might have induced the Government of that country to inspect his designs and possibly to use them. But here again there is nothing sufficient to enable us to say that the constructor was injured. It does not appear that this subject of the Chinese Empire had any authority to negotiate in the premises. It does not appear that, even if he had, an inspection of the designs would have resulted in anything profitable.

Captain Lundborg may have been subjected to some annoyance or even inconvenience in the neglect of those officials of the Navy Department who, coming into the possession of the plans and specifications, failed to return them to him. The constructor was rightfully entitled to be repossessed of his plans after it was determined neither to formally adopt them nor to use the suggestions which the specifications contained. We know of no rule which justified the retention of the plans by the subordinates of the Department without the knowledge of the Secretary of the Navy. The circumstances under which they were received would not have justified the Secretary himself to have refused to return them to the owner. But the claim for compensation is wholly speculative. There is no legal standard by which the damages claimed can be measured, because there is no evidence that damages were actually sustained. Where the principles and ideas upon which alleged damages are claimed can not be reduced to a money standard, or where they do not form the subject of legal calculation in dollars and cents, there can be no recovery. (City of Memphis v. Brown, 2 Wall., 289.) Here the proof of the element of value is too uncertain and inadequate to hold that the Government is pecuniaria liable for withholding the plans and specifications.

If the plans were wrongfully withheld- — no element of contract appearing — the act of the officers of the Government would be such a tort as would exclude the jurisdiction of the court.

We have decided the matter upon the theory that the minds of the parties sufficiently met to constitute an implied promise upon the part of the Government to return the plans if they were neither adopted nor used by the United States. And, tested by this consideration the petition must be dismissed.  