
    MELLON, Secretary of the Treasury, v. UNITED STATES ex rel. CLAYTON et al.
    Court of Appeals of District of Columbia.
    Submitted April 2, 1928.
    Decided May 7, 1928.
    No. 4680.
    United States <§=74 — Contractor, completing post office in November, 1917, held entitled to reimbursement for increased costs, though contract required completion before April 6 (Act Aug. 25, 1919, as amended by Act March 6, 1920 [40 USCA §§ 271, 272]).
    Under Act Aug. 25, 1919, as amended by Act March 6, 1920 (40 USCA §§ 271, 272), providing for reimbursement to contractors constructing or repairing post offices and other buildings under supervision of Treasury Department for increased costs resulting from entrance of United States into war with Germany on April 6, 1917, contractor, constructing post office under contract requiring completion prior to April 6, but not actually completed until about the 1st of November, 1917, held entitled to reimbursement for losses resulting from increased costs, since the date of actual, and not of contractual, completion determines right to relief.
    Appeal from the Supreme Court of the District of Columbia.
    Application for a writ of mandamus by the United States, on the relation of Marcus McLean Clayton and others, against Andrew W. Mellon, Secretary of the Treasury. From an order granting the writ, respondent appeals.
    Affirmed.
    Peyton Gordon and L. A. Rover, both of Washington, D. C., for appellant.
    W. R. Harr and C. H. Bates, both of Washington, D. C., for appellees.
    Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.
   SMITH, Acting Associate Justice.

This is an appeal from an order directing a writ of mandamus to issue, commanding the respondent and appellant to- do the things required of him by law with respect to the claim arising out of a contract entered into by George A. Clayton with the United States.

The relators, on November 6, 1925, filed a petition praying that a writ of mandamus be issued, directing the Secretary of the Treasuiy to perform the duty imposed upon him by the following provisions of the Act of August 25,1919, as amended by the Act of March 6, 1920:

* * The Secretary of the Treasury is hereby authorized and directed, under such regulations as he may prescribe to receive fully itemized and verified claims and reimburse contractors for the construction, • improvement, special repair, equipment, or furnishing of post offices and other buildings or work under the supervision of the Treasury Department * * * whose contracts were awarded or whose bids as thereafter accepted were mailed or delivered to the proper governmental authority prior to the entrance of the United States into the war with Germany, to wit, April 6, 1917, and whose contracts have been or will be completed after said date, for loss due directly to increased costs thereafter arising, due either, first, to increased cost of labor or materials, or second, to delay on account of the action of the United States Priority Board or other ‘governmental activities, or third, to commandeering by the United States government of plants or materials shown to the Secretary of the Treasury to have been sustained by them in the fulfillment of such contracts by reason of war conditions alone. * * * ” See Act Aug. 25, 1919, 41 Stat. 281 (40 USCA § 271).

“Relief of contractors: Toward the amount necessary for the payment of claims of contractors * * * arising under the act * * * approved August 25, 1919, $500,000: Provided, that the Secretary of the Treasury is authorized to make partial payments of any claim payable under said act and to make payment for any and all loss and expense (exclusive of profits) incurred by a contractor or subcontractor in fulfilling his contract or subcontract with the Treasury Department in excess of the amount which such contractor or subcontractor may receive under the terms of his contract or subcontract, if such loss and expense were, in the opinion of the Secretary of the Treasury, due to war conditions.” See Act March 6, 1920, 41 Stat. 507 (40 USCA § 272).

The petition alleges that on the 4th of August, 1915, George A. Clayton entered into a contract with the United States for the construction of a post office and courthouse building at Opelika, in the state of Alabama; that said contract provided, among other things, that the work contemplated by it should be completed on or before the 4th of February, 1917, the contractor to pay a stipulated penalty for any delay chargeable to him, and to have an extension of time in case delay was caused by the government; that the government had the right to forfeit the contract in ease the contractor failed to perform the obligations imposed upon him thereby;' that prior to April 6, 1917, various causes operated to delay performance by the contractor, but that the government permitted him to proceed with the construction work until it was finally completed on or about the 1st of November, 1917; that in accordance with the said act, and the instructions and regulations of the Secretary of the Treasury as to the presentation of claims thereunder, George A. Clayton, the contractor, submitted to the Secretary of the Treasury a duly verified claim for the increased costs occasioned to him after April 6, 1917, by war conditions; that, notwithstanding the submission of said claims and the contractor’s proffer, prior to June, 1924, of evidence establishing the various items of loss sustained by him because of war conditions, the Secretary of the Treasury refused to consider the contractor’s claim or evidence; that the Secretary refused to entertain said claim on the ground that the acts hereinbefore referred to authorized him to consider claims arising on those contracts only which fixed a date for their performance subsequent to April 6, 1917, or which were performed after that date by reason of acts or omissions on the part of the government or by reason of extensions of time to the contractor provided for in the contract.

Respondent’s amended answer to the petition admits the presentation of the claim for losses incurred by the contractor in fulfilling his contract and allege^ in effect that the) evidence submitted to the respondent by the contractor established that losses and increased costs had been incurred by the contractor subsequent to April 6, 1917. The amended answer also avers that the contract required that the work therein provided for should be completed on or before the 4th of February, 1917; that such work was not completed until the 1st of November, 1917, and that no extension of time was granted for the performance thereof; that the failure to perform said contract within the time therein -prescribed was due to no fault of the government, but that the contractor was permitted by the government after April 6, 1917, to carry on his work and to complete his contract; that for the reason that the contract, without fault of the government, was not performed within the time agreed or any extension thereof, the respondent refused to allow the contractor’s claim for losses.

To that answer the petitioners demurred, on the ground that the facts admitted and averred therein entitled the relators to the relief for which they prayed. The court sustained the demurrer, and, the respondent electing to stand upon his amended answer, it was adjudged and ordered that a writ of mandamus issue, directing the Secretary of the Treasury to perform the duty imposed upon him by law with respect to the claim of the relators, without regard to the fact that the contract involved fixed a date prior to April 6, 1917, for its performance. From -that.order an appeal to this court was taken by the' Secretary of the Treasury.

The respondent contends that under the Act of August 25, 1919, as amended by the Act of March 6, 1920, no one who has contracted with the United States government to complete the erection of a post office or courthouse building prior to April 6, 1917, is entitled to the reimbursement provided by said acts, if, without fault of the government and without any extension of time for performance, the contract was not completed until after the declaration of war against Germany.

We cannot sustain that contention. The purpose of the Act of August 25, 1919, and of the amendment thereto in 1920, was to relieve certain contractors from losses occasioned by war conditions, which could not be anticipated at the time the contracts were executed. The ■ contractors entitled to that relief were those whose contracts were awarded prior to April 6,1917, and completed after that date. Clayton’s contract with the government for the erection of the post office and courthouse at Opelika was entered into prior to April 6, 1917, and was not completed until about the 1st of November, 1917. That contract was, therefore, subject to the provisions of the acts of Congress hereinbefore cited, unless it is excluded therefrom because of the date specified therein for per-formance thereof and the failure to secure' an extension of time for the completion of the work.

As the statute does not exclude from its operation contracts which required performance prior to April 6,1917, and which, without fault of the government, were performed after that date, the courts have no right to insert in the statute an exception which Congress did not choose to make. The date prescribed by the contract for the completion of the post office and courthouse, and the date upon which the buildings were actually completed are not identical conceptions, and the expression of one of them does not necessarily imply the other. The statute is operative as to all contracts which were entered into prior to the declaration of war against Germany, if they were completed after that declaration, and resulted in losses to the contractor because of war conditions. The law as worded by Congress takes no account of the date stipulated for the performance of the contract, or of the penalties which may be imposed under the contract for delaying completion of the work beyond the time prescribed by the agreement. The statute concerns itself only with the date of the execution of the contract, the date of the actual completion of the contract, and the nature of the losses incurred. The fact that the government may be entitled to the penalties provided for delay in the completion of work is not at all inconsistent with the right of the contractor to reimbursement for losses incurred arising out of war conditions. Under the contract, the government may, unless it waives them, exact the penalties which have accrued; and under the statute, the contractor may claim and recover the losses occasioned by war conditions in performing a contract entered into prior to April 6, 1917, and completed after that date.

The date of actual, and not of contractual, completion determines the contractor’s right to present his claim, and the Secretary of the Treasury was not warranted in declining to consider it on the ground that the contract provided for the completion of the work prior to April 6, 1917, and for the imposition of penalties in ease the contractor failed to comply with that obligation. The contractor completed his contract with the consent of the government, and was not a defaulting contractor in the sense that he failed or refused to complete the work contemplated by the agreement. Mellon v. United States ex rel. Chas. McCaul Co., 55 App. D. C. 204, 4 F.(2d) 170, upon which respondent relies is, therefore, not in point, and cannot be applied to the facts of this case.

The order from which the appeal was taken is affirmed, with costs.

Affirmed.  