
    E. W. BLISS COMPANY v. THE UNITED STATES
    [No. C-1032.
    Decided March 1, 1926]
    
      On the Proofs
    
    
      Contract; increase of wages; release.■ — Where at the request of the defendant the plaintiff increases the wages of its employees engaged in wort on a Government contract, which does not provide .additional compensation covering such increases, and no supplementary contract is entered into for such additional compensation, and the plaintiff accepts payment of the contract price and executes a release discharging the United States from all claims under the contract, the plaintiff can not recover the cost of the increased wages.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. Mr. Bynum E. Hinton and King & King were on the brief.
    
      
      Mr. Perry W. Howard, with whom was Mr. Assistant Attorney General Hemrian J. Galloway, for the defendant. Mr. Louis R. MeKlinger was on the brief.
    The court made special findings of fact, as follows:
    ,'L The E. W. Bliss Co., plaintiff herein, was at the time of the filing of this action, and is now, a corporation duly-organized under the laws of the State of West Virginia, and doing business in the city of Brooklyn in the State of New York.
    II. During the year 1918 and for some time prior and subsequent thereto plaintiff corporation was engaged in the manufacture of torpedoes under formal contracts with the United States as follows:
    Contract dated May 3, 1915, referred to as contract No. 500, by the terms of which plaintiff obligated itself to manufacture 120 torpedoes, gyros, etc., for a specified price each, totaling $705,444.12, deliveries to be in lots of 5 and to be completed within 24 months from the date of the contract.
    Contract dated November 9, 1915, referred to as contract No. 510, by the terms of which plaintiff obligated itself to manufacture 240 torpedoes, etc., for a specified price each, totaling $2,031,911.52, deliveries to be in lots of 5 and to be completed within 24 months from the date of the contract.
    Contract dated November 9, 1915, referred to as contract No. 513, by the terms of which plaintiff obligated itself to manufacture 228 torpedoes, etc., for a specified price each, totaling $1,320,314.59, deliveries to be in lots of 5 and to be completed within 24 months from the date of the contract.
    Contract dated April 9,1917, referred to as No. 576, by the terms of which plaintiff obligated itself to manufacture 344 torpedoes, etc., for a specified price each, totaling $2,112,160, deliveries to be in lots of 12 torpedoes, 6 lots, or 72 torpedoes, to be delivered on or before July 1, 1918, and to continue thereafter at the rate of 6 lots, or 72 torpedoes, per month until completion of the contract.
    Contract dated April 9, 1917, referred to as No. 577, by the terms of which plaintiff obligated itself to manufacture 952 torpedoes, etc., for a specified price each, totaling $7,541,744, deliveries in lots of 12 torpedoes, 6 lots, or 72 torpedoes, to be delivered on or before July 1, 1918 and deliveries to continue at the rate of 6 lots, or 72 torpedoes, per month for four months, then at the rate of 12 lots, or 144 torpedoes, per month until completion, final delivery to be made within 24 months of date of contract.
    Contract dated April 16, 1917, referred to as contract No. 597, by the terms of which plaintiff obligated itself to manufacture 876 torpedoes, etc., for a specified price each, totaling $6,989,672, deliveries to be in lots of 12 torpedoes, one lot to be delivered on or before June 1, 1918, and not less than three lots, 36 torpedoes per month thereafter until completion, final delivery to be within two years from date of contract.
    Contract dated January 5, 1918, referred to as contract 1223, by the terms of which plaintiff obligated itself to manufacture 1,608 torpedoes at specified prices each, totaling $14,545,968, deliveries to be as follows: 120 torpedoes in July, 1918; 120 torpedoes in August, 1918; and at a specified monthly rate of delivery thereafter until completion.
    Contract dated January 7, 1918, referred to as contract No. 1224, by the terms of which plaintiff obligated itself to manufacture 1,000 torpedoes at a specified price each, totaling $6,186,000, deliveries to be in lots of 12 as directed by the Bureau of Ordnance.
    The authority of the contracting officers to execute said contracts in behalf of the United States is not questioned in this action.
    True copies of all of the foregoing contracts are attached to and made a part of plaintiff’s petition marked “ Exhibits A, B, C, D, E, F, G, and H,” respectively, and are made a part of this finding by reference.
    III. The outbreak of the World War in April, 1917, created an abnormal condition with respect to labor and general economic conditions by reason of which it became necessary for the Government to establish an agency to effect a stabilization of wages of labor generally. For that purpose a board known as the Shipbuilding Labor Adjustment Board was created August 20, 1917, composed of three members, one member appointed jointly by the Emergency Fleet Corporation and the Navy Department, one representing the public appointed by the President of the United States, and one representing the labor unions appointed by the president of the American Federation of Labor. This board was established for the purpose of adjusting disputes that might arise concerning wages and working conditions of labor engaged in the construction or repair of shipbuilding plants or of hulls and vessels in private shipyards under contract with the Emergency Fleet Corporation or the Navy Department.
    On April 8, 1918, the President by proclamation created the National War Labor Board, the duty of which was to effect settlements of disputes and contentions arising between employers and employees in all branches of industry engaged in the production of ships or war supplies.
    IV. On June 18, 1918, the War and Navy Departments acting jointly entered into an agreement with certain employers and employees (not including the plaintiff or its employees) engaged in the manufacture of war supplies in the New York district, the purpose of which was to stabilize and make uniform wages paid employees in similar and like industries engaged in the production of war materials for the United States. This agreement termed “ a memorandum of award,” was as follows:
    34034 JuNE 18, 1918.
    Memorandum of award by the War and Navy Departments in the matter of the dispute relative to wages, hours, and conditions of labor for machinists in certain plants engaged in making war supplies for these two departments in Greater New York.
    Certain employers engaged on contracts with the War and Navy Departments having requested advice of the contracting officers of the Government in regard to wages that should be paid to meet demands submitted to them in behalf of their employees; and this matter having been investigated and hearings held by the Labor Adjustment Board of Army ordnance;
    And having in mind that the Government War Labor Policies Board has entered into negotiations with the representatives of labor and employers to establish standard wage rates throughout the country for the various trades and has by resolution required the War and Navy Departments to make no awards establishing new Government wage standards pending these negotiations:
    It is agreed by the War and Navy Departments that' this matter be adjusted on the following basis with those manufacturers whose contractual relations with the respective departments permit either department to exercise authority in connection with the wages, hours, and conditions of labor prevailing in their establishments, and where a dispute between the management and the employees exists:
    First. Adjustments will be made in the form of an order to each individual contractor establishing the scale of wages which he is authorized to pay to his employees.
    Second. The scale of wages established for and prevailing in the navy yards and ordnance arsenals on the east coast will be used as the standard for such awards.
    Third. The award will be made to take effect with.first pay period beginning on or after May 12th, 1918, for those contractors working under Army ordnance cost-plus contracts; and for all others on the date of the award for the individual contractor involved, or as may be otherwise agreed in each individual case.
    Fourth. In the event that any scale higher than that which is used as the standard for this adjustment be fixed by any proper Government agency with the approval of the War and Navy Departments, these departments will consider and act upon an application for the reconsideration of the awards made as herein provided.
    Fifth. Where the manufacturer has an agreement now existing, either verbal or written, with his employees by which all machinists are paid the same rate, such agreement shall be continued and the rate awarded shall be the same as that established for the first-class machinists at the navy yard, Brooklyn. In the same way when there is but one rate- existing by agreement for toolmakers the Navy rates for first-class toolmakers shall be the rates to be awarded.
    Sixth. That the awards in no case shall be used to reduce the wages being paid to any individual employee in his present employment.
    Seventh. That any dispute which may arise in regard to the application of the rates awarded shall be heard and decided by a committee of three men to be appointed by the-Secretary of the Navy and the Secretary of War, one to' represent the employees, one to represent the employers,, and one an Army or Naval officer, who shall be chairman of the committee.
    For the Navy:
    Louis MoH. Howe,
    
      Asst, to Asst. Secy. Navy.
    
      On July 28, 1918, this memorandum of award was transmitted to E. W. Bliss Co., plaintiff herein, by the following communication-:
    WAR DEPARTMENT,
    New York District Ordnance Oeeice, Production Division, Industrial Service Section,
    
      New York, July 23,1918.
    
    E. W. Bliss Company,
    
      Brooklyn, N. Y.
    
    (Attention of Mr. H. Seeman).
    Gentlemen : In accordance with telephone conversation of to-day I am sending you a copy of recent wage award made by War and Navy Departments for the New York districts.
    As stated to you over the phone, if I can be of any further service to you in this matter, I will be glad to come over and see you or have Captain Blatchly, who is attached to this office, do so.
    By order of the Chief of Ordnance.
    Alexander M. Bing,
    
      Industrial Service Section.
    
    V. At the time plaintiff received the memorandum of award it was employing a large number of men manufacturing torpedoes under its contracts with the United States, and there was no evidence of any labor trouble in its organization, nor had employees of plaintiff made any claims for increase in wages.
    Immediately following the transmission of the memorandum of award to plaintiff, Louis McH. Howe, assistant to the Assistant Secretary of the Navy, called the vice president and general manager of the E. W. Bliss Co. by long-distance telephone and informed him that he (Howe) was informed that there was to be a strike in the plant of E. W. Bliss Co. in the next couple of days. The vice president informed him that there was nothing to it; that there was no evidence of any strike in their plant; and that there would not be any strike if Mr. Howe and his associates in Washington would keep their hands off. The vice president of the E. W. Bliss Co. also informed Mr. Howe that he personally would guarantee the satisfactory production under contracts with the United States, and that it was. neither necessary or desirable to increase the wages of employees at that time.
    Thereafter a Mr. McEntee, a former labor leader in the International Association of Machinists and at that time a member of one of the labor boards in the New York district, under appointment from the Navy Department, and other representatives of the Navy Department visited plaintiff's plant and notified the officials of plaintiff’s company in reference to the proposed strike and the increase of wages for plaintiff’s employees. These representatives were informed by the officials in plaintiff’s organization that there was no danger of a strike in plaintiff’s plant and that it was unnecessary to increase the wages of plaintiff’s employees; also that an increase in wages would result in an increase in plaintiff’s cost above that which had been estimated in the bid submitted and that the E. W. Bliss Co. could not and would not put into effect any increase in wages until it was assured that it would receive compensation for the increased cost resulting therefrom.
    VI. Ón August 23, 1918, Bear Admiral Balph Earle, Chief of the Bureau of Ordnance, wrote a letter to plaintiff as follows:
    NaVT DEPARTMENT,
    Bureau of Ordnance,
    Washington, D. <7., August @3,1918.
    
    Subject: Increased compensation to employees:
    Inclosure: (A) Copy of award made on June 18th by the War and Navy Departments in the matter of dispute relative to wages, hours, and conditions of labor for machin- • ists in certain plants engaged in making war supplies for these two departments in Greater New York.
    (B) Copy of letter addressed by the Navy Department to Mr. H. J. Slocum, jr., secretary and treasurer of the Metropolitan Metal Manufacturers Association.
    Sirs: Following the recent conference between your firm and representative of the Navy Department, and by direction of the Secretary of the Navy, the bureau desires that you make as the basis of your wage scale, the scale approved by the Navy Department in accordance with the general agreement between the employers, employees, and the War and Navy Departments for New York City and vicinity, dated June 18th, a copy of which is forwarded herewith as inclosure (A).
    
      In the event that your firm desires to request remuneration for the additional cost imposed upon you by this award, you will address a letter directly to the Secretary of the Navy requesting an investigation and examination by the Navy cost inspector as to the justness of your claim. Upon a favorable report of this investigation, a supplementary contract may be entered into by the Navy Department with your firm to cover this additional cost.
    Respectfully,
    (s) Ralph Eakle,
    
      Bear Admiral, U. 8. N.,
    
    
      Chief of Bureau.
    
    E. W. Bliss Co.,
    
      Brooklyn, N. Y.
    
    VII. During the time that intervened between June 18, 1918, and September 10, 1918, numerous letters passed between the officials of the Navy Department in reference to the increase of wages at plaintiff’s plant. Numerous conferences were held between the officials of the Navy Department and the officials of plaintiff’s organization, both at New York and at Washington, in reference to the increase of wages at plaintiff’s plant, and at all of the conferences plaintiff’s officials insisted that there was no necessity for increasing the scale of wages and vigorously protested against the proposed increase on the ground that it was unnecessary. The officials of plaintiff absolutely refused to increase its scale of wages unless they were assured that they would receive additional compensation for the increased cost of production that would be occasioned by the proposed increase. This assurance was given them by the representatives of the Navy Department. Secretary Daniels* stated to the officials of plaintiff that their position was right and that the E. W. Bliss Co. could count on reimbursement of the increased cost and stated that he would appoint a Navy board to determine the increase in cost caused by the Navy orders and would have it covered by an additional contract.
    VIII. On August 21,1918, the Secretary of the Navy sent plaintiff the following telegram:
    August 27, 1918.
    The department desires to call your attention to the agreement entered into by the War and Navy Departments with the employers and employees in the district of New York, which includes your plant, in regard to wages for machinists.
    This agreement provides that first-class machinists shall receive 78c. and first-class toolmakers 79c. per hour. The department desires that you put these rates into effect at your plant.
    It is understood that in addition to this decision a 10 per cent increase in other trades will adjust certain labor differences in your works. To this the department is also agreeable.
    Definition of who shall be rated as first-class machinists and other adjustments and applications of the New York decision will be handled by the special board appointed by the Army and Navy for that purpose.
    Mr. Slocum will advise you or the letter sent him by the Navy Department as to the basis on which the Government will increase its payment to you under the award. Please post notice of your acceptance of the award immediately in your works to avoid possible labor disturbances. These rates are to begin September 2nd.
    (s) Josephus Daniels.
    On September 10, 1918, Bear Admiral Balph Earle, Chief of the Bureau of Ordnance, wrote plaintiff as follows:
    In reply refer to No. 34034 (A2)-0 ADW
    Navt Department,
    BuReau oe Ordnance,
    
      WasMngton, D. 0., Sept. 10, 1918.
    
    Subject: Labor settlements in New York district.
    Inclosure: (A) Copy of memorandum of award, etc., June 18, 1918. (B) Memorandum of agreed application, etc.
    June 18, 1918.
    Gentlemen: You are informed that on June 18th the Navy Department, in conjunction with the War Department, made an award covering labor wages and conditions for the New York district for all manufacturers engaged on war contracts. Inclosure (A) is a copy of this award. The New York district comprises Greater New York with its suburbs and adjoining towns.
    You are now engaged on war work under the following contracts with the Navy Department.
    
      
      
    
    The department desires that you adjust your wages and further increases are now being considered by 1918, as set forth in the inclosure (B).
    Should you desire to make claim for additional remuneration because of the increase in wages, you will write a letter to the Secretary of the Navy asking for this as an extra. The department will then send an accountant to go over the books and records, and if in the original bid no allowance has been made for any proposed increase of wages an extra will be allowed contracts for the additional wages imposed by the New York award.
    Very truly yours,
    Ralph Earle,
    
      Bear Admiral, TJ. S. Navy,
    
    
      Chief of Bureau.
    
    The E. W. Bliss Compaxy,
    
      17 Adams Street, Brooklyn, N. Y.
    
    “ IN closure B
    “ 31031. Memorandum of agreed- application of settlement of machinists’ wages under the general settlement effected by the War and Navy Departments for the district of New York of Ju/ne 18, 1918
    
    “ By a mutual agreement between representatives of the Army and Navy, the E. W. Bliss Co. and officials of District No. 15, International Association of Machinists, it is agreed that the following adjustment of wages shall immediately go into effect as of the date September 2, 1918, in the ordnance plant of the E. W. Bliss Company, Brooklyn.
    “All toolmakers now receiving 65 cents per hour shall receive the rate agreed upon in the adjustment of June 18th, 1918, previously made by the War and Navy Departments .for the district of New York.
    “All machinists employed in the ordnance plant of the E. W. Bliss Company,and receiving on September 1, 1918, 56% cents per hour or more are to receive 73 cents per .hour.
    “All men employed on machine work receiving less than ■56% cents per hour on September 1, 1918, are to receive an increase of 10 per cent on their earned rate.
    “ It is the understanding by all parties that it is the intention to adjust individual instances in the case of men receiving less than 56% cents per hour as speedily as proper regulations and the definitions can be worked out, and the Navy Department agrees that if it is legally possible such further adjustments will be made as of date of September :2, 1918.”
    IX. Upon receipt of the letter dated September 10, 1918, plaintiff decided to accept the orders of the Navy and to put into effect in its plant the schedule of wages provided for in the award of June 18, 1918, and posted in its shops the following notice to its employees:
    Notice
    
      To our employees :
    
    After negotiating with the Navy Department relative to the increased scale of wages which they desire us to put into effect in our plant, we have received from them a request to post in our shop a notice to the effect that we accept
    ■ their proposition to increase the wages on a basis to be definitely decided upon by a special board appointed by the Army and Navy for that purpose.
    We therefore give notice to our employees that this new : scale will be determined at as early a date as possible, but will be effective from September 2nd, 1918.
    E. W. Bliss Company.
    X. Immediately following the posting of the notice to the employees of the plaintiff company, as set out in Finding IX hereof, arrangements were made with the Navy Department whereby the department sent a Mr. Thayer, master mechanic of the Boston Navy Yard, with assistants to plaintiff’s plant.
    These representatives went through the shops and orally interviewed every employee as to his experience and qualifications and had each employee fill out a questionnaire or qualification sheet showing his qualifications and experience. On the basis of this examination and questionnaire they rated the employees as first, second, and third class mechanics, machinists, etc. Representatives of plaintiff company had no part or control of this examination and rerating of its employees. Plaintiff in all respects complied with and lived up to all the terms and conditions of the Navy Department’s orders and on October 31, 1918, the vice president of plaintiff company addressed and sent a communication to the Chief of the Bureau of Ordnance wherein plaintiff applied for increased compensation and asked advice as to how and in what manner it could be reimbursed the amounts expended by it for the increased labor cost resulting from the orders of the Navy Department. On December 16, 1918, Rear Admiral Ralph Earle, Chief of the Bureau of Ordnance, wrote plaintiff as follows:
    Navy Depaetment,
    Bureau on Obdinance,
    'Washington,, D. (7., Dec. 16,1918.
    
    Inclosure: (A) Letter from Assistant Secretary of Navy to Mr. H. J. Slocum, jr., Metropolitan Metal Manufacturers’ Association. (B) Schedules (A), (B), (C), and (D) of company’s proposed increased wages to machinists.
    GeNtlemeN : Shortly prior to September 2 your representatives met with the Navy Department and the officials of district No. 15, International Association of Machinists, and entered into a wage agreement increasing rates of pay for men employed in the machine industry in your plant. The Navy Department advises that this meeting was held at its request after an investigation by its agents of the labor conditions in your plant, which led to the belief that unless such action was taken your production of torpedoes would entirely cease, and therefore it was to the interests of the Government and the necessity of war to direct that such increases should be made. This agreement left open the question of adjustment of rates to machinists other than first class, and, in accordance with the spirit of this agreement and the approval of all parties concerned the Assistant Secretary of the Navy sent Master Mechanic Thayer with several assistants to visit your plant and examine such of your machinists who were receiving less than seventy-three cents per hour.
    This agreement of September 2d was part of the genera! New York agreement of June 16,1918, and the spirit of both awards was to standardize wages in the New York district in accordance with navy-yard rates then established for machinists. As a result of Mr. Thayer’s examination, and to carry out the intent of the Navy Department in the agreement, the bureau has prepared inclosure (B), which consists of schedules (A), (B), (C), (D).
    
      (a) Schedule (A) is a list of men in your employ who upon examination qualified as 2d-class machinist but who are receiving less than seventy-three cents per hour. The Navy Department requests that you increase the pay of these men to seventy-three cents per hour, making said increase retroactive to September 2, 1918.
    (5) Schedule (B) is a list of men in your employ who upon examination qualified as 2d-class machinist but who are receiving less than sixty-seven cents per hour. The Navy Department requests that you increase the pay of those men, beginning with your next pay roll, to sixty-seven cents pe.r hour.
    
      (c) Schedule (C) is a list of men in your employ who upon examination qualified as 3d-class machinists but who .are receiving less than sixty-one cents per hour.
    The Navy Department requests that you increase the pay •of these men, beginning with your next pay roll, to sixty-one cents per hour.
    
      (d) Schedule (D) is a list of men in your employ who upon examination qualified as 1st, 2d, or 3d class machinists as shown, respectively, but who are now receiving more than the established rates for their respective class. The New York agreement of June 16th states that such men while in their present employ be not reduced. Should they leave, however, their reemployment should not be made at rates higher than those established for their respective class.
    Belative to reimbursement upon your contracts for additional labor cost by the above, the bureau refers you to Inclosure (A), which states fully the methods to be pursued and steps taken relative to same.
    Very truly yours,
    Balph EaRLb,
    
      Bear Admiral, U. S. N., Chief of Bv/reaw.
    
    E. W. Bliss CompaNY,
    BrooMyn, N. Y.
    
    Inclosure A to said letter is the letter of August 6, 1918, written by Louis McH. Howe, assistant to Assistant Secretary of the Navy, to H. J. Slocum, jr., secretary and treasurer of tbe Metropolitan Metal Manufacturers’ Association of New York City, outlining the position of the Navy Department in reference to the increase of wages in the New York district. Inclosure B in said letter consists of schedules (A) first-class machinists; (B) second-class machinists j (C) third-class machinists; and (D) miscellaneous.
    XI. On December 14, 1918, the Secretary of the Navy appointed a board of three naval officers consisting of N. E.. Mason, United States Navy, retired, Bureau of Ordnance,*; J. N. Jordan, Bureau of Supplies and Accounts; Lieut. Gr. EL Johnson, Bureau of Ordnance, and instructed said board to-consider and determine the increased compensation, if any, due the E. W. Bliss Co. under contracts Nos. 500, 510, 513,, 576, 577, 597, and departments Nos. 1223, 1224, and 1235 for torpedoes by reason of the increased wages paid employees in contractor’s plant under orders issued by the Navy Department. The board ivas informed that under instructions from the department Lieutenant Brick and Lieutenant; Main, accounting officers on duty in the Bureau of Supplies- and Accounts, were making an investigation to determine-the increased costs, if any, involved by reason of having-put into effect the wage scale authorized by the department,, and that the report of these accounting officers when completed would be furnished the board for its information.
    XII. The members of the board appointed to consider the changes under contracts with the E. W. Bliss Co. for torpedoes and to determine the increased compensation, if any, due E. W. Bliss Co. personally visited plaintiff’s plant,, investigated conditions, interviewed representatives of plaintiff company, including its comptroller, with respect to the question of the excess cost; caused by reason of the increased’ wages ordered by the Navy Department, and secured all-information deemed necessary by said board to make its findings and report; and on July 14, 1919, the board submitted its. report to the Secretary of the Navy through the Bureau of Ordnance, the material portions of which report-are as follows:
    “ 2. After due consideration of the information and claims-submitted by E. W. Bliss Company the board finds that the increases in wage schedules promulgated by the company in compliance with the direction contained in references (m), (n), and (q) have resulted in an increased cost of the contractor under contracts No's. 500, 510, 513, 577, 597, 1223, and 1224 of approximately $150 for each torpedo contracted for.
    “ 3. While increases in the pay roll effective on the date of the increase in the wage schedules were approximately 11.5 per cent of the pay roll and amounted to approximately $9,000 per week, the average increase over a period of twenty-five weeks was $6,716.60 per week, a total increase of $151,181.85, during which period 951 torpedoes were constructed.
    “ 5. The estimated cost of construction under the above contracts is approximately $25,000,000, and the estimated profit shown above is but 2.5 per cent of costs.
    “ 6. The board recommends that the contract price for the 4,768 torpedoes manufactured or to be manufactured under the above contracts be increased by the amount of $150 per torpedo under each contract, being the approximate amount of increased labor cost. The approval of this recommendation will result in an additional profit of $715,-200.00 to the E. W. Bliss Company, which will increase their rate of profit on the entire order to approximately 4.5 per cent on costs, which profit is considered to be of minimum equity to the contractor.”
    The report of the board was approved by Charles B. McVey, jr., Bear Admiral, United States Navy, Chief of the Bureau of Ordnance, and forwarded to the Secretary of the Navy. On June 30,1920, B. E. Coontz, Acting Chief Bureau of Ordnance, addressed a letter to plaintiff company stating that the Secretary of the Navy had advised the bureau that under the comptroller’s decisions there was no authority to pay plaintiff’s claim.
    On October 30,1920, the solicitor of the Navy Department wrote a letter to E. W. Bliss Co. stating: “ The Comptroller of the Treasury has held that compensation under a fixed-price contract may not be increased unless for a valuable consideration moving to the United States; that there is no warrant for the payment of increased wages under the contract even if the wages were increased under some Government agency.”
    Subsequent to this time letters passed between the plaintiff company and the Navy Department in reference to the claim, but plaintiff was informed by the Bureau of Ordnance that on account of the decision of the Comptroller of the Treasury payment of the increased cost found by the board to be due could not be paid.
    No part of said amount found due by the board has been paid to plaintiff.
    XIII. The several contracts under which the torpedoes were furnished were completed at different times and payments were made under each contract at the prices specified therein. At the time the contracts were completed and payments made, with the exception of contract No. 1223, plaintiff was requested to execute, and did execute, a form of release submitted to it by the Navy Department, which form of release contained the following provision:
    
      “ Now, therefore, in consideration of the premises and of the sum of * * * dollars lawful money of the United States, being the amount preserved as aforesaid, to it in hand paid by the United States, represented by the Chief of the Bureau of Ordnance, the receipt wherefor is hereby acknowledged, the E. W. Bliss Co. does for itself, its successors and assigns, and legal representatives, remise, release, and forever discharge the United States of and from all manner of debt, dues, sum, and sums of money, accounts, reckonings, claims, and demands whatsoever, in law and in equity, for or by reason of or on account of the said contract and supplemental agreements thereto dated * * *, and of the manufacture and delivery of material thereunder.”
    At the time that said contracts were in course of completion, and at the time payments for the torpedoes delivered thereunder were made and the releases executed, negotiations for the payment of the excess cost incurred by plaintiff by reason of the increase in wages were pending. Subsequent to the date of the execution of the releases numerous letters passed between the officials of plaintiff’s organization and the officials of the Navy Department in reference to payment of the amount awarded by the board appointed to determine the increased compensation, if any, due the plaintiff company by reason of the increased wages paid employees under orders issued by the Navy Department.
    Contract No. 1223, dated January 5, 1918, for 1,608 torpedoes was the last contract to be completed. The question then, for the first time, arose as to the advisability of inserting a qualifying clause in the release to the effect that the payment of the money due under the contract at the specified prices mentioned therein would not include the increased compensation promised by the Secretary of the Navy and recommended by the board on account of the increased labor costs on all the contracts audited and approved by the board. The question as to the advisability of executing a qualified release was presented to Admiral McVey, of the Navy Department, and he consulted with a Mr. Walker, in the Judge Advocate General’s Office, who advised that a qualifying clause be inserted in the release executed under contract No. 1223. At that time all of the other releases had been executed and delivered, and there was no opportunity to insert a qualifying clause in either of them. The Navy Department prepared a release under contract No. 1223 and forwarded it to the plaintiff for signature. The release prepared by the Navy Department and signed and executed by the plaintiff was in the same form and of the same tenor as the releases executed under the other contracts except that it contained the following:
    “ Provided, That this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.”
    XIV. The extra cost to plaintiff in the manufacture of 1,608 torpedoes under contract No. 1223, based upon the finding of the board recommending that the contracts be increased by the amount of $150 per torpedo, was $241,200. Under all of the other contracts included in this action, the extra cost to claimant in the manufacture of the torpedoes based upon the finding of the board recommending that the contracts be increased by the amount of $150 per torpedo under each contract, amounts to the sum of $474,000.
    If plaintiff is entitled to recover under all of the contracts sued on in this action there is due plaintiff the sum of $715,200. If plaintiff is entitled to recover under contract No. 1223 only, there is due plaintiff the sum of $241,200.
    The court decided that plaintiff was not entitled to recover.
   Hay, Judge,

delivered the opinion of the court:

The findings made by Commissioner Lewis, to whom this case was referred, have not been excepted to by either party, and the court therefore has adopted them as its own findings.

The essential facts in this case are that during the years 1915, 1917, and 1918 the plaintiff entered into eight separate written contracts with the United States whereby it agreed to manufacture and deliver a certain number of torpedoes at a fixed price per torpedo to the United States. Torpedoes manufactured in accordance with the terms of the contract were delivered by the plaintiff from time to time to the United States, and the plaintiff was paid the contract price therefor. At the time the contracts were completed and the payments made the plaintiff executed a form of release, which is set out in full in Finding XIII. This release was executed as to all the contracts except contract No. 1223, which differed from the other releases in this, that at the end of said release there was added the following proviso : “Provided, That this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.”

On August 20, 1917, there was created a board known as the Shipbuilding Labor Adjustment Board, which had for its purpose the adjustment of disputes which might arise concerning wages and working conditions of labor engaged in the construction or repair of shipbuilding plants or of hulls and vessels in private shipyards with the Emergency Fleet Corporation or the Navy Department. And on April 8, 1918, the President created the National War Labor Board. The duty of this board was to effect settlements of disputes and contentions arising between employers and employees in all branches of industry engaged in the production of ships or war supplies.

On June 18, 1918, the War and Navy Department entered into an agreement with certain employers and employees engaged in the manufacture of war supplies in the New York district. The plaintiff and its employees were not parties to this agreement. This agreement is set ont in full in Finding IY.

On July 23, 1918, this memorandum of award was.sent to the plaintiff by one Alexander M. Bing, industrial service section. At the time the plaintiff received this memorandum it was employing a large number of men manufacturing torpedoes under the aforesaid contracts, and was not having any labor trouble in its organization, nor had its employees made any request for an increase of wages. Immediately after this the plaintiff was informed by an assistant to the Assistant Secretary of the Navy that there was to be a strike in the plant of the plaintiff in the next two days. The plaintiff then stated that there was nothing in the rumor and that there would be no strike, and that it was neither necessary or desirable to increase the wages ■of its employees at that time. Thereafter a Mr. McEntee. under appointment from the Navy Department as a member of one of the labor boards in the New York district visited "the plant of the plaintiff and notified its officials that a strike was impending. This the plaintiff denied, and stated that an increase of wages would result in an increase in plaintiff’s cost above that which had been estimated in the bids submitted by the plaintiff, and that the plaintiff would not increase the wages of its employees until it was assured that it would receive compensation for the increased cost which would result from said increase.

On August 23, 1918, the plaintiff was informed by letter from Bear Admiral Balph Earle, Chief of the Bureau of •Ordnance of the Navy Department, that the bureau desired it to make as the basis of its wage scale the schedule approved by the Navy Department in accordance with the general agreement between the employers and employees ■and the War and Navy Departments for New York City ■and vicinity, and in the same letter it was stated that if the plaintiff desired to request remuneration for the additional cost imposed upon it it could address a letter to the Secretary of the Navy requesting an investigation and examination by the Navy cost inspector as to the justness of its claim, and that upon a favorable report of this investigation a supplementary contract might be entered into by the Navy Department with the plaintiff to cover the additional cost.

On August 27,1918, the Secretary of the Navy sent plaintiff the following telegram:

“August 27, 1918.

“ The department desires to call your attention to the agreement entered into by the War and Navy Departments with the employers and employees in the district of New York, which includes your plant, in regard to wages for machinists.
“ This agreement provides that first-class machinists shall receive 73c. and first-class toolmakers 79c. per hour. The department desires that you put these rates into effect at
your plant.
“ It is understood that in addition to this decision a 10 per cent increase in other trades will adjust certain labor differences in your works. To this the department is also agreeable.
“ Definition of who shall be rated as first-class machinists and other adjustments and applications of the New York decision will be handled by the special board appointed by the Army and Navy for that purpose.
“ Mr. Slocum will advise you of the letter sent him by the Navy Department as to the basis on which the Government will increase its payment to you under the award. Please post notice of your acceptance of the award immediately in your works to avoid possible labor disturbances. These rates are to begin September 2.
“(s) Josephus DaNiels.”

On September 10, 1918, the Chief of the Bureau of Ordnance of the Navy Department wrote to the plaintiff that the department desired it to adjust its wages in accordance with the agreement of June 18, 1918, and stated further that should it desire to make claim for additional remuneration because of the increase in wages it should write to the Secretary of the Navy asking for this as an extra. “ The department will then send an accountant to go over the books and records; and, if in the original bid no allowance has been made for any proposed increase of wages, an extra will be allowed contracts for the additional wages imposed by the New York award.”

Upon receipt of this letter the plaintiff decided to put into effect in its plant the schedule of wages provided for in the ■award of June 18, 1918, and did put the said schedule of wages into effect as of September 2,1918.

On October 81, 1918, the plaintiff wrote to the Chief of ■the Bureau of Ordnance of the Navy Department, applying for increased compensation, and asking how it could be reimbursed the amounts expended for the increased labor. On December 16, 1918, the Chief of Ordnance wrote plain-biff a letter, which appears in full in Finding X.

On December 14, 1918, the Secretary of the Navy appointed a board of three naval officers to consider and determine the increased compensation, if any, due the plaintiff under the contracts here in suit by reason of the increased wages paid their employees under the schedule aforesaid. On July 14, 1919, this board submitted its report, the material portions of which are set out in Finding XII. The hoard recommended that the contract price for the 4,768 torpedoes, which was the whole number of torpedoes contracted for, be increased by the amount of $150 per torpedo, which would amount to an additional profit of $715,200 to the plaintiff; this report was approved by .the Chief of Ordnance of the Navy Department. On June 30, 1920, the Secretary of the Navy advised the plaintiff that under the decisions of the Comptroller of the Treasury there was no authority to pay the plaintiff, and the Secretary of the Navy did not approve the findings of the board. The plaintiff has not received this amount or any part thereof.

The plaintiff claims that paragraph second in all of the •contracts provides that changes may be made in the contracts, the cost of such changes to be determined by a board -of not less than three naval officers; and contends that the increased labor costs come under that provision of the contracts, and that the board was appointed in strict accordance with that provision, and that its findings were approved by the Chief of Ordnance. But a careful reading •of that provision shows that the changes contemplated were •changes in the composition and manufacture of the torpedoes, and did not relate to the increased or extra cost which might he incurred by reason of increased wages, iand the contract expressly provided, “ and all claims for extra compensation by reason of or on account of such extra performance are hereby, and, in consideration of the premises, expressly waived.”' It is also to be observed that the board was not created with reference to this provision in the contract, but as a result of the controversy between the plaintiff and the Navy Department with regard to the schedule of wages which the department desired the plaintiff to enforce in its plant. The plaintiff in its demand for increased compensation at no time invoked this clause in the contract, and it was not until this suit was brought that this claim was set up.

The plaintiff contends that under the act of June 15, 1917, 40 Stat. 182, as amended by the act of July 1, 1918, 40 Stat. 720, the Secretary of the Navy had a right to modify the contracts of the plaintiff in furtherance of the public interest. It is not necessary to pass on this contention, for, as a matter of fact, the Secretary of the Navy did not modify the contracts.

The plaintiff in its contracts with the United States contracted to do .the work at a fixed price, with no reservations as to increase of wages. But it now claims that it was ordered by the Government to increase the wages of its employees, and that therefore the United States is bound for the increased cost which it incurred by its obedience of these orders. The record does not disclose that any such orders were issued. The communications addressed to the plaintiff by the Chief of Ordnance of the Navy were not orders, they ivere requests; the.plaintiff was requested to put into effect in its plant the schedule of wages which had been agreed upon by the Navy Department and the employers and employees engaged in manufacturing war supplies in the New York district. The plaintiff was not a party to this agreement, and was not bound to comply with the requests made to it. The plaintiff voluntarily complied with these requests; no liability was thereby assumed by the United States to pay these increased wages, and no officer of the Government had authority to create such a liability. The plaintiff must have known that there was no authority vested by law in the Secretary of the Navy to control it or. to compel it to pay any given rate of wages to its employees! Tlie plaintiff paid these wages of its own volition; it took the risk of being paid for the increase in some way. The plaintiff asked the officials how it was to be paid, and it was told that it might be given a supplementary contract, thereby admitting that it could not be paid under the terms of the contract, but no such supplemental contract was ever entered into. The plaintiff was also told that if it desired “ to make claim for additional renumeration because of the increase of wages ” it could write a letter to the Secretary of the Navy asking for this as “ an extra.” This course was not taken by the plaintiff, though the plaintiff must have been familiar with that clause in the contracts which provided that all claims for extra compensation were expressly waived. The court can not do other-than enforce the terms of the contract; if what the plaintiff is claiming is extra compensation it can not be allowed. It was not within the power of the Secretary of the Navy to change or alter the terms of the contract to the detriment of either party.

If the United States imposed upon the plaintiff conditions not warranted by the contract or in other words breached •the contract, the plaintiff had its remedy — could have stopped work and sought damages for the breach. But the plaintiff as each of its contracts was completed accepted the contract price and executed releases which provided that the plaintiff released and forever discharged the United States of and from all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever in law and in equity, for or by reason or on account of the said contract. These releases were executed by the plaintiff after its alleged claim for the increased cost of its work on the contracts on account of the increase of wages had arisen and while negotiations for the payment of the excess cost increased by the plaintiff by reason of the increase in wages were pending. The release executed with regard to contract No. 3223, dated January 5, 1918,' differed from all the other releases in that it contained a proviso: “ That this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.”

The very execution of the releases of the seven contracts at the time when the plaintiff was asking for payment of its excess cost, was an admission on its part that it had no claim under the contracts. The provisions of contract No. 1223 were in totidem verbis the provisions of the other contracts; if there was no claim under them there was none under No. 1223. The mere reservation of a claim does not of itself create the claim, and if there was no valid claim which could be asserted under the provisions of the contract the reservation of such a claim could not breathe life into it. In view of these releases it must be held that the plaintiff has no claim for its alleged excess cost which it can assert in this court under the provisions of its contracts.

There is no claim made that the plaintiff is entitled to recover under an express or implied promise to pay the excess cost incurred by the plaintiff by reason of the increase of wages. No person had authority to make such a promise or to bind the Government.

Moreover it appears that this increase of wages was not put into effect until September 2, 1918. It does not appear how many torpedoes had been completed before this date, nor how many were completed after this date. It is therefore impossible for the court to arrive at what the excess cost incurred by the plaintiff was, and manifestly it can not fix the amount of the compensation.

This court can not go outside of the contracts, can not ignore the terms of contracts, and grant relief, although it may appear that there has been some wrong done, and some hardship suffered by individuals in their dealings with the Government. In such cases if a remedy is to be had it must be sought in Congress and not here. Claims of this character arising under similar circumstances have been acted upon by Congress, and some of them have been allowed, and to that forum the plaintiff must look for relief.

The petition of the plaintiff must be dismissed. It is so ordered.

Graham, Judge; DowNey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  