
    THEODORE YATES v. THE UNITED STATES.
    [No. 15442.
    Decided April 21, 1890]
    
      On the Proofs.
    
    A retired officer invents a device applicable to the old breech-loading cannon. The invention is approved by the War Department, and he is selected to supervise the construction of a gun. The appointment bays: ‘'You will be allowed a compensation of two hundred dollars a month for two months. ” The claimant continues his supervision nineteen months.
    X. Where the Ordnance Department employs an inventor to supervise an application of his own device, and it is mutually known that the work will occupy many months, and the contract for employment says, “ yon tvill be allowed a compensation of two hundred dollars a month for two months,” a period necessarily less than that required to complete the work, it will be construed to mean that §400 was the limit of compensation.
    II. A retired Army officer may be employed by the War Departm ent to supervise work where he could not have been assigned to that duty, notwithstanding the provisions of the Revised Statutes (§ 1763, 1764, 1765,) relating to double pay.
    
      The Reporter's statement of the case:
    The following are the facts as found by the court:
    I. In the year 1881 the claimant invented a device for breech-loading guns, now known as the “ Tates gun,” which device was susceptible of being applied to guns already in use as well as to new guns, and was selected by the Secretary of War in 1883, who authorized its application as hereinafter stated. This was done pursuant to an act of Congress approved March 3, 1883, chapter 96, known as the “ fortification bill,” which appropriated $400,000, among other things, to make and test breech-loading steel guns, breech-loading devices, etc., in accordance with the report to the Senate by its Select Committee on Heavy Ordnance and Projectiles.
    II. April 21,1883, the Chief of Ordnance, by authority of the Secretary of War, wrote to the plaintiff as follows :
    
      “Ordnance Office, War Department,
    “ Washington, April 21, 1883.
    “ Sir : At our interview this morning we. decided to apply your breech-loading device to a 10-inch Rodman S. B. gun. To carry .this out you will please submit to this office, at your convenience, detailed drawings of the device as it is to be applied to said gun. The gun will be lined with a wrought-iron coiled tube, reducing the caliber to 8 or 7 inches. As it may be deemed important to lengthen the bore, the drawings should give the details of the muzzle addition of about three calibers in length.
    “For supervising the above and the construction you will be allowed a compensation of $200 a month for two (2) months.
    “ Respectfully, your obedient servant,
    “ S. Y. Benét,
    
      “Brig. Gen., Chief of Ordnance.
    
    “Col. Theodore Yates, .
    
      “Ebbitt Rouse, Washington, D. G.”
    
    No conversation took place at any time between plaintiff and the Chief of Ordnance in relation to compensation, nor was plaintiff written to further upon this subject.
    III. Immediately after the receipt of this letter plaintiff' prepared detail drawings, specifications, and estimates of cost of material and labor involved and furnished the same to the Chief of Ordnance. September 10,1883, a contract was entered into between the United States and the South Boston Iron Company, by which the said company, under- the supervision and inspection of plaintiff and subject to his acceptance and approval, was to convert the said 10-inch smooth-bore Rodman gun into a 7-inch rifled gun and to apply to it the Yates breech-loading device.
    IY. Plaintiff left his home in Milwaukee, Wisconsin, went to the city of Boston, and engaged in supervising the work under said contract at the works of the Smith Boston Iron Company; he was so employed, and in communication with the Chief of Ordnance, reporting to and receiving instructions from him relative to the work, and in preparing the drawings, estimates, etc., from the 28th day of May, 1883, to thelGtb day of January, 1885, when the gun was finally completed and accepted. During this service it became necessary for claimant to visit steelworks in New Hampshire and in Pennsylvania, to examine and supervise the construction of parts of the material that were used in the said gun. The time he was employed as above stated was necessarily consumed in the work, and in part arose from the condemnation of parts of the material and their being supplied by others.
    Y. The usual price paid to inventors for superintending their works under the Ordnance Department is $10 per day.
    VI. The Chief of Ordnance allowed plaintiff $400, as shown in the following letter, but the accounting officers disallowed the claim upon the authority of sections • 1763, 1764, and 1765 of the Revised Statutes.
    “ Ordnance Oeeice, War Department,
    “Washington, D. G., Jany. 26, 1885.
    “ Sir : I transmit herewith an account in favor of Col. Theodore Yates, U. S. A., retired, being for two months’ services superintending the construction of a. breech-loading riñe of his device. This is in accordance with a letter written by me to him on April 21, 1883, after consultation with the Secretary of War, a copy of which is herewith. In this connection I invite attention to sections 1763, 1764, and .1765, Revised Statutes, and to the opinion of the Attorney-General dated June 11, 1877, a copy of which is also herewith.
    “ The account is approved for four hundred dollars ($400.00) and is chargeable to the appropriation “Armament of fortiiica-tions, 1884,” Yo. 1, provided it can properly be paid under the law.
    “It is customary to pay inventors a compensation not exceeding $10.00 per day for a limited period in superintending the construction of guns of their device by the United States. “ Respectfully, your obedient servant,
    “ S. Y. Beniét,
    “ Brig. Gen., Chief of Ordnance.
    
    “The Second Auditor,
    
      “Treasury Department, Washington,!). G.”
    
    
      Mr. J. G. Fay for the claimant:
    The claimant submits that the question involved has been adjudicated in his favor both by this court and by the Supreme Court of the United States. Section 1259 of the Revised Statutes forbids the assignment of a retired officer to duty, so that it would not have been in the power of the Secretary of War to have directed Colonel Yates, as part of his duty under his Army commission, to supervise or inspect the construction of this gun by the South Boston Iron Works.
    That the services for which he now seeks compensation could have no affinity to the duties of the office that he held under his commission as colonel in the regular Army, and that seems, to be the test laid down by the Supreme Court in the case of the United States v. Brindle (110 U. S. R., 688), as to whether the sum claimed is additional compensation within the meaning of section 1764 df the Revised Statutes. The case of Meigs v. The United States (19 C. Cls. R., 497) seems to be decisive of his case.
    The only real question in the case seems to be how much the claimant is entitled to. The evidence shows that he was almost constantly employed from April, 1883, until January, 1885, and for that period he asks the sum of $200 per month, which was-the amount fixed by the Chief of Ordnance in his original employment. While his employment was limited by that letter to two months, it was continued over the whole period above-referred to; it grew out of the emergencies of the work that he was employed to superintend.
    
      Mr. F. F. Dewees (with whom was Mr. Assistant Attorney-Gen- ' eral Cotton) for defendants.
   Davis, J.,

delivered the opinion of the court:

Plaintiff, a retired officer of the Army, invented a device for breech-loading cannon; a device which was capable of application to old as well as to new guns. The invention was approved by the War Department, a contract was entered into with the South Boston Iron Company for the conversion of a smooth-bore gun to be fitted with the device, and plaintiff was selected to supervise the construction of the gun. In this duty he was occupied some nineteen and one-half months, and he asks compensation at the rate of $200 per month for this period.

The contract is made up of a letter addressed to plaintiff by the Chief of Ordnance and the performance of the service desired. The letter, after indicating the nature of the duties imposed, thus concludes:

“ For supervising the above and the construction you will be allowed a compensation of $200 a month for two months.”

Upon the authority of this letter plaintiff undertook the work. It should be remembered that no breech-loading cannon can be made in two months, whether it be a new gun or whether the problem be, as in this case, the conversion of an old iron smooth bore into a steel lined rifled breech-loading arm; also that as plaintiff was the inventor of the breech ■device, the subject of experiment, it was advantageous for him to be present at the manufacture with a view to future success in the trial, which might result in a general use of liis device and thus be to his profit.

The Chief of Ordnance knowing these facts, still thought some compensation proper, but was very specific and guarded in his statement that this compensation was to be $200 for a defined period, a period necessarily less than "that required to complete the gun, to wit, two months.

There can be no doubt as to what the Chief of Ordnance intended, and as the plaintiff acted upon this proposal, not objecting to it or criticising it, he must be held to have accepted it and to have agreed to perform the task, a task which was really advantageous to him, a task whose duration was known to be indefinite, for a sum not to exceed $400.

Sections 1763, 1764, and 1765, Revised Statutes, relating to double pay, do not apply to this case, as has been already well settled. Plaintiff' could not have beeu assigned to this duty by order of the Secretary of War, for the law forbids it (section 1259). The case therefore falls within the principle declared in Brindle v. The United States and other cases (110 U. S. R., 688; Meigs v. U. S., 19 C. Cls. R., 497).

Judgment for plaintiff in the sum of $400.  