
    Sallie H. Palmer v. The United States.
    
      On the Proofs.
    
    
      The Secretary of the Interim’ appoints the claimant a laborer in the Patent Office “to take effect when she shall ñle the oath of office and enter on duty.” The Commissioner of Patents, directs, on account of her husband’s illness, that■ her work be sent to her. The chief cleric, learning of the husband’s death, does not send her the work. She files the oath of office, and is ready and willing to perform work at home, but does not report at the Patent Office for duty. The chief'clerk directs, therefore, that she be not placed on’ the rolls.
    
    I. A person is in the employment of the government if she be appointed a laborer in the Patent Office by the Secretary of the Interior “to take effect luhen she shall file the oath of office and enter on duty,” and she flies the oath of office and the Commissioner of Patents directs that her work be sent to her at her residence.
    II. Where, in consideration of the sickness of her husband, an employ 6 in an executive department is excused from attendance and is to have her work sent to her residence, the position is exceptional; and if the work' be not sent she is bound to report at the dexiartment; and if she neglects to report, her tenure cannot be deemed to extend beyond the current month.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. At the time and in the manner hereinafter set forth in Finding III, the claimant was, by the Secretary of the Interior, appointed a laborer (first grade) in the Patent Office.
    Before and at the time of her receiving that appointment, she was in poor health, and her husband was in such ill health that she could not leave his bedside; and he died the day after the date of her appointment.
    II. Before she was appointed, a member of Congress called on the Secretary of the Interior to exert his influence toward securing an appointment for her, and had several conversations with the Secretary; in which, at some time, the point was made with the latter that the claimant could not and would not, to do duty in the department, leave her husband, and that it was very desirable, in the event of her appointment, that work should be given her that she could perform at home, as long as it was necessary for her to be in attendance upon him. It ■does not appear that when these representations were made to the Secretary he expressed any objections to her performing her work at her home.
    Soon after the claimant’s appointment, she had an interview with the Commissioner of Patents regarding her work, and its being done at her house; and that officer made no objection to sending the work there.
    III. On the 12th of February, 1878, the Secretary of the Interior made the following written appointment:
    “ DEPARTMENT OE THE INTERIOR,
    “ Washington, I). C., Feb. 12, 1878.
    “Mrs. Sallie H. Palmer, of Kentucky, is hereby appointed á laborer (first grade) in the Patent Office, at a salary of seven hundred and twenty dollars per annum, to take effect when she shall file the oath of office and enter on duty.
    “0. Schuez,
    “ Secretary.”
    
    On the 13th of February — the day of the death of claimant’s husband — the claimant took the oath of office prescribed by law.
    At the time of this appointment there existed, and had for .years before existed, a rule in the Patent Office that no work should be sent out of the office to be done; but some tracing work had been sent out some time before, and some partly by reason of lack of room in the Patent Office. In the claimant’s ■case, on account of the circumstances- of her husband’s sickness, it was understood by the Commissioner of Patents that ■ the work was to be temporarily sent to her; and he gave directions to that effect to the chief clerk of the Patent Office.
    Within a day or two after her husband’s death, a person whom the chief clerk of the Patent Office supposed to be her brother, called on the latter, and requested that work might be sent to her; which the chief clerk declined to do, giving as his reason that the work was intended to be sent to her only on account of her husband being ill, and requiring her presence at his bedside; that he had died, and consequently the contingency no longer existed, and that she would be required to do the work in the office.
    
      After that the chief clerk received no instructions to send her work of any character, and none was sent her; ■ nor does it appear that, after this interview, any official communication was made to her by any one connected with the Patent Office, on the subject of work being sent to her house for her to do under the above appointment.
    IV. The pay-rolls of the employés of the Patent Office were made up about a week before the end of the month. The officer whose duty it was to make up the rolls for the month of February, 1878, inquired of the chief clerk whether the claimant’s name should be placed on the rolls; and the chief clerk answered that it should not be, as she had never reported for duty.
    V. It does not appear that the claimant ever called in person at the Patent Office for work except as stated in Finding II, nor for pay under the aforesaid appointment, except as appears in the next succeeding finding.
    VI. On the 20th of May, 1878, the Secretary of the Interior addressed to the claimant the following letter:
    " DEPARTMENT OE THE INTEEIOE,
    “ Washington, D. O., May 20, 1878.
    “Mrs. Sallie A. Palmee, Washington:
    
    “Madam: The department has considered your verbal application for pay since the date of your appointment and oath of office as an employé of the Patent Office, but as your appointment by its own terms was not to take effect until you should file the oath of office and enter on duty,’ and as it does not appear that you have yet entered on duty, the department would not be justified in complying with your request.
    “Very respectfully,
    “0. Schuez,
    “ Secretary.”
    VII. On the 1st of July, 1878, the said Secretary addressed the following letter to the Commissioner of Patents:
    “Depaetment oe the Inteeioe,
    “Oeeice of the Seoeetaey,
    “ Washington, D. G., July 1st, 1878.
    “The COMMISSIONEE OE PATENTS:
    “ SlE: In compliance with your recommendation of May 27th, 1878, the appointment of Mrs. Sallie H. Palmer as a laborer in the Patent Office, dated Feb. 12, 1878, is hereby revoked (she having never availed herself thereof), and you are authorized to employ ber in the work of making file wrappers, which she may be permitted to do at home at a maximum condensation of thirty dollars per month.
    ‘.‘Very respectfully,
    “C. Schurz,
    “ Secretary.”
    
    YIII. On the 14th of August, 1878, the chief clerk; of the Patent Office addressed to the claimant the following letter:
    “ Department oe the Interior,
    “United States Patent Oeeice,' , ■
    “ Washington, I). C., Aug. 14, 1878.
    “ Madam : In response to your letter of to-day, the Commissioner desires me to send you the inclosed order of July 1st, from the Secretary, under which he was permitted to employ you in making file wrappers at thirty dollars a month.
    “Arrangements having been made whereby these wrappers are made in the office without extra cost, the Commissioner does not desire to avail himself of this permission, and cannot without incurring a needless expense.
    “ 'Very respectfully, your ob’d’t serv’t,
    “F. A. Seely,
    “ Ch’f Gl’h.”
    
    
      Mr. JSdioard A. Newman and Mr. V. B. JSdwards for the claimant:
    The claimant having received her appointment, taken and filed the oath of office, and made a demand for work, has a legal right to the compensation. (1 Cranch, S. 0., 168.)
    The claimant, after makingthe demand for work, holding herself continuously in readiness to perform the work, and the defendants refusing to furnish her work as agreed, the defendants are liable for the full salary to date they shall discharge her. (Ha/rdy’s Case, 9 O. 01s. R., 233; Terry’s Case, 9 C. 01s. It., 244.) That if the work was to be done at any other place than plaintiff’s home the defendants were bound to notify the claimant of the change. (5 O. 01s. It., 416.) That the only way in which the United States could terminate the contract so as not to be liable was by dismissal of claimant. (Sleigh’s Case, 9 O. Cls. R., 369.)
    That the rule of damages where the one party has prevented the other from performing the contract is such as would put the contractor in the same situation as he would have been if allowed to perform it according to his contract. (4 0.01s. R., 258.) A party cannot revoke a written order for services to be rendered, so as to release himself from,liability thereon, without bringing notice of such revocation home to the person to whom such order was given. (Hooper v. Taylor, 4 E. D. Smith, N. Y., 486.) The parties may by parol agree upon a place of performance of the written contract, and if tender is made at such place it is good. (Franehot v. Leach, 5 Cow., 506.) If the claimant tendered herself ready and willing to perform the work, she is entitled to recover. (Gostigan v. M. and IL B. B. Co., 2 Denio, 609; Crandall v. Pontigny, 1 Stark N. P., 82.) That the defendants never having discharged the plaintiff, she is entitled to the price agreed upon from the date of her appointment, taking the oath, up to and until she shall be notified of her dismissal.
    
      Mr. George C. Wing (with whom was the Assistant Attorney - General) for the defendants:
    The position of laborer in the Patent Office is an office. It is created by the general appropriation acts.
    The appointment is by the head of a department (Rev. Stat., §§ 169, 476), the compensation is fixed by law, and the duties are continuing and permanent. (United States v. Hartwell, 6 Wall., 393.) The record shows that a legal appointment was in fact issued, but the right to assume the office and receive its salary could accrue to claimant only upon her compliance with the conditions subsequent, which were lawfully attached. These were when she “shall file the oath of office and enter upon duty.” ¿ United States v. Le Baron, 19 How., 78.)
    She has never entered on duty. This is sought to be met by the vague “impression” which Mr. Finley received in a conversation with the Secretary (at which claimant was not present), that an arrangement would be made by which work would be given claimant at home.
    But the idea is intolerable that there is or can be any other place for official duty than what the law has provided and imports. The many public buildings can have no other use than as places in which officers are to acquit their obligations. They are to be kept open during stated hours for the transaction of public business (Rev, Stat., § 162), and the evidence is satisfactory that no one holding a defined office, upon an annual salary, has ever had another place of duty than in the government buildings, and that during the period of this controversy from February 12,1878, the rule of the Patent Office, and the actual practice, prohibited even contractors from executing their agreements at their own homes.
    Sleigh’s Case, and all others of kindred character, were where the officer had once been fully invested with the office, had discharged its functions, and had been actually under the control and had obeyed, not, as here, ignored, the lawful commands of a superior.
    No contract with claimant has been proven, not even an oral one. On the contrary, the Commissioner refused to contract with her upon any terms, as his letter of August 14,1878, evinces.
    Claimant never having performed any work, and no contract in writing having been made, it is difficult to see how she can press this point in view of section 3744 Revised Statutes, and of the decisions of this court thereon, in Henderson v. United States (4 O. Cls. R., 78), Dcmolds v. United States (5 C. Cls. R., 71), Travers v. United States (5 C. Cls. R., 336), Sanders’s Case (7 O. Cls. R., 530).
   Drake, Oh. J.,

delivered the opinion of the court:

If we were at liberty to allow our judgment to be swayed by sympathy, we should have no difficulty in giving the claimant a larger recovery than we feel justified in awarding her on principles of law. But, of course, it is not our province to reach results through the guidance of feeling, or to be turned aside from legal conclusions by the impulses of charity. This claimants case, like every other, must be determined by law.

The first question involved in it is, whether the claimant was in the employ of the government. We have no difficulty in answering this in the affirmative. She was, on the 12th of February, 1878, by the written act of the Secretary of the Interior, appointed “a laborer (first grade) in the Patent Office, at a salary of $720 per annum, to take effect when she should file the oath of office and enter on duty.”

There is no dispute that she took the oath of office on the 13th of February, 1878, and therefore no question of law is before us in connection with that matter.

The important point is, whether she complied with the terms of her appointment by entering on duty. Under ordinary circumstances we should regard it necessary, in order to answer this affirmatively, that she should have reported herself to the proper officer of the Patent Office for duty; but all the facts of the case tend to make it clear that she was, in consideration of her distressing circumstances, to be allowed to do at her house the work which appertained to her position. She applied for such work, and no objection was made by the Commissioner of Patents to its being sent to her. Under these circumstances we are of opinion that she may be considered as having entered on duty from the day that she was sworn in. That she did not perform duty was not her fault, so far as appears. She was ready and willing to work, but no work was given her, nor was she officially informed that she must do her work in the office. After all that took place in relation to her having work sent to her house, it would be unjust to say that she was in default because she did not come to the office, when she was not required to do so.

Of course, she could not occupy that exceptional position for an indefinite length of time. She was made an exception to a rule of the office, in consideration of the peculiarly afflicting circumstances of her case, but the exception was to endure only temporarily. This she must have known; and knowing it, she should have taken the earliest moment that she could to have her official relations with the office clearly defined. If she had applied therefor, she would have been definitely informed whether the arrangement granted in view of her husband’s illness was to continue after she, by his death, was relived from attendance at his bedside; and then, if she desired to work in the office, she would, doubtless, have been provided with work there. But evidently she wished the work to be sent to her house, and did not wish to go to the office. Here was her mistake. It was not for her, but for the Commissioner of Patents to say where she should do duty. And it was for her to ascertain officially and definitely how long the charitable arrangement first permitted was to continue, if she expécted to be borne on the pay-rolls, and to receive the salary without performing service.

The final question is, Was that arrangement discontinued, and if so, when and how? If at no previous time, it was certainly terminated by the letter of the Secretary of the Interior to her of the 20th May, 1878, in answer to her verbal application for pay since the date of her oath of office; wherein he refused the pay, on the ground that she had never yet entered on duty. This was full notice to her that she was not considered as having been in the employ of the department, or, at least, that she was not thenceforth to be so considered.

But there was a previous point of time when, in our judgment, the temporary arrangement in her favor must be considered to have come to an end, and that was when, at the close of the month in which she was appointed, the pay-rolls of the Patent Office employés were made up, and her name was not placed thereon. It was not only her urgent interest, in her painful circumstances, but it was every way incumbent on her, to find out whether her name was on the rolls.; for upon that depended her obtaining the pay she, doubtless, greatly needed. It is unreasonable to suppose that she failed to inquire into so important a matter as that. Every presumption is that she did inquire into it, and did know, at the close of February, that her name was not on the rolls. If she did know it, then was the time for her to have reported for duty in the office, if she wished to keep the place to which she had been appointed; for she was then fully advised that she could no longer stay at home doing no work, and yet receive pay as if she had done duty. So far as appears, she made no further movement to obtain either work or pay until nearly three months had elapsed; when she asked for pay, but not for work. Upon the principles laid down, at the present term, in Barbour’s Case (ante), we can do no otherwise than hold that from the time the first pay-roll after her appointment was made up without her name on it, and she took no notice of that fact, nor made any effort to keep the place which had been given her, she must be considered to have voluntarily abandoned the place as completely as if she had declared her resignation thereof in writing; and that after that date she is entitled to no pay.

For fifteen days in February she is entitled to be paid, and judgment will be entered in her favor for $30,  