
    HAROLD H. SINGER AND AMELIA HERR BICKHAM, THIRD PARTY PLAINTIFF, v. THE UNITED STATES
    No. 50146.
    Decided October 6, 1953.
    Plaintiff’s motion to alter and increase amount of judgment overruled December 1, 1953.
    
      
      Mr. Joseph W. Sharts for the plaintiff.
    
      Mr. Robert M. Brown for the third party plaintiff.
    
      Mr. Herbert Pittle, with whom was Mr. Acting Assistant Attorney General J. Edward 'Williams, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff brings this suit under the Tucker Act seeking to recover $10,000 which he claims by virtue of defendant’s alleged breach of a lease. Plaintiff’s grantor, Mrs. Amelia Herr Bickham, has intervened as third party plaintiff adopting'as her own plaintiff’s petition and evidence and asserting that if plaintiff cannot maintain this action, then she is entitled to judgment.for. the $10,000 claimed. By stipulation in open court the two plaintiffs ask that judgment be rendered for either or both of them jointly or severally.

The. lease arrangement giving rise to .this action was a part of the Government’s wartime Homes Conversion Program* which was designed to alleviate the critical shortage of housing in areas congested by .an influx of war and defense workers employed in various defense projects. Under that program the defendant,; through the National Housing Agency, leased large, old dwellings; remodeled, reconditioned, and converted them into apartments or multiple family units at its own expense; and agreed to return the properties to the owners in the modified condition at the termination of the lease.

It was under this program that defendant and the third party plaintiff (hereinafter Mrs. Bickham) executed a contract of lease on January 20, 1944, by the terms of which defendant leased the premises known as 226-228 North Robert Boulevard, Dayton, Ohio. This building, was erected in 1895. The record shows that the basement and first floor .were inundated by flood waters from the Miami River in 1913, and in 1936 a fire occurred in the premises, doing considerable.structural damage. Except for the repairs made necessary by flood and fire, no major alterations or. improvements were made prior to this lease. The term began on the date of the lease and expired January 19,1951. Under the agreement defendant paid $300.36 annual rent and assumed mortgage payments amounting to $1,008 per annum. Paragraph 4 of the lease reflects the arrangement summarized above, and pursuant thereto the defendant remodeled and reconditioned the premises, converting them from a single two-family dwelling consisting of 20 rooms into a multiple family apartment house containing ten apartments. The conversion cost $13,393 and included' new concrete work; new carpentry; new lathing, painting, and plastering; new linoleum; new heating, plumbing, and electrical work; and eight new kitchens and bathrooms completely equipped.

Following this conversion of the premises they were turned over to a private real estate broker, who acted as a contract management broker in managing the property for defendant. In this capacity it was the broker’s duty to rent the individual apartments, collect the rentals for the account of the United States, make certain repairs, and otherwise manage the property. The property was handled in this, manner until the lease was terminated on January 19, 1951.

On December 22, 1950, Mrs. Bickham conveyed both the fee simple title to the premises here involved and, by separate instrument, all her right, title, and interest in the above lease to plaintiff for a consideration of $23,500. Signed, notarized, and witnessed notices of the above transactions were sent to defendant by both Mrs. Bickham and plaintiff.

On January 19, 1951, the defendant vacated the premises and delivered possession to the plaintiff. After defendant’s refusal to make various repairs requested by plaintiff, this claim for $10,000 damages was filed, based on the alleged failure of defendant to take good care of the premises and to restore and repair them as provided in the lease. Details of the damages claimed are set out below. In addition to the questions of fact relating to the physical condition of these premises at various times, this case presents questions of law as to the extent of defendant’s duty to repair the property under the lease and, assuming that a breach is found, whether or not the antiassignment statute precludes recovery. We shall deal with these questions in the order of their enumeration.

It is plaintiff’s contention that the lease placed on the defendant an unqualified obligation to make any and all repairs necessary to keep the premises in good order and repair, and further that inasmuch as ordinary wear and tear was not explicitly excepted from the terms of the lease, any such depreciation is also the responsibility of the Government. The defendant takes the position that the lease merely prohibits the commission of waste.

We do not concur in either of these constructions. In construing and interpreting this instrument it should be borne in mind that leases, like other contracts, are to receive a reasonable interpretation that will effectuate the intention of the parties. National City Bank of Cleveland v. Citizens Building Co. of Cleveland et al. (Ohio App.), 74 N. E. 2d 273. In ascertaining this intent it is not improper to consider the situation of the parties, the subject matter involved, and the object the parties had in view and intended to accomplish. Burdick, Tire and Rubber Co. v. Heylmann et al. (Ind. App.), 138 N. E. 777. See, generally, 45 A. L. R. 12. These precepts would seem in point because of the ambiguity before us.

The controversy centers around the extent of repairs required of defendant by paragraph 9 of the lease quoted below. We italicize the only language which, as we construe the instrument, is mandatory.

Paragraph 9 of the lease provides:

The Government, during the term of this lease, shall take good care of the Premises, and may make any and all repairs, both interior and exterior, necessary to keep the Premises in good order, condition, and repair, without the consent or approval of-the-Lessor. Upon the sur- Tender -of the Premises ty the Government, it shall. redecorate a/nd/or repaint the vacant portion of the, interior thereof. [Emphasis added.] . .

The language on which the plaintiff-relies to hold the defend-ant responsible for any and all repairs is preceded by .the', word may and followed by the phrase without the consent or. approval of the Lessor. It would seem apparent that .this language is at best permissive, merely giving the defendant a right to repair without first attaining the consent of the-, owner.

That the -parties contemplated the necessity for making; some repairs as a part of the “good care” requirement of the-lease is evidenced by this provision permitting the lessee to repair without the consent of the lessor, otherwise the pro-. vision is meaningless. It does not necessarily follow, how.r, ever, that there was an intention to hold the lessee responsible for all deterioration, making it obligatory that the premises; be returned with the improvements in as good condition as; when they were first completed by the Government.' This is. what plaintiff’s construction Of the lease would require, and. we think it unreasonable. In view of the purpose' for which, this rather unusual leasing arrangement was entered into, and the language employed in the instrument, we conclude, that the undertaking to-take good care merely imposed- a duty to return the premises in a condition reflecting good; husbandry, having taken- such action as might be required-to offset any abnormal- deterioration of the premises, during' the term of the lease. The City of New York v. United States, 119 C. Cls. 769, 793, and cases there cited. In- determining the degree of deterioration to be regarded as normal-wear and tear.the.age and character of the building is-a factor to be considered. Kaplan et al. v. Flynn et al. (Mass.), 150 N. E. 872; Judkins v. Charette et al. (Mass.), 151 N. E. 81; Codman et al. v. Hygrade Food Products Corp. (Mass.), 3 N. E. 2d 759. On the basis of these criteria the commissioner has found that the following repairs were made necessary by defendant’s failure to take good care of the property:

Gutters and downspouts-$215.00
Repairs to rear porch-90.00
Repairs to interior stairs_ 40.00
Repairs to front porch_ 175.00
Repairs to basement doors_ 20.00
Repairs to hot water heaters_ 45.00
Repairs to plaster__ 75.00
Repairs to floor tile_ 10.00
Repainting exterior trim_,_ 200.00
Total____ 870.00

Plaintiff’s strenuous exceptions to tbis finding have been carefully considered, but we do not feel that . the. record justifies its rejection. There is conflict of testimony as to the cost for making various repairs to which plaintiff claims he is entitled under the lease, but the record does not show that the witnesses on which he relies for the figure claimed took into consideration the deductions for normal depreciation contemplated by the lease. The commissioner saw the witnesses at the trial, and his finding is supported by the record. We adopt that finding as correct. Williams et al. v. United States, 111 C. Cls. 356.

We turn now to the question of the applicability of the antiassignment statute. This statute . is broad in its prohibition of the transfer of claims, but judicial decisions have. recognized certain exceptions to its application and enunciated the controlling reasons for its enactment. Among these exceptions are assignments by operation of law, United States v. Aetna Casualty & Surety Co., 338 U. S. 366; Colton et al., Trustees, v. United States, 71 C. Cls. 138; transfers by will, Erwin v. United States, 97 U. S. 392; and general assignments for the benefit of creditors, Goodman v. Niblack, 102 U. S. 556. The primary reasons given for the statute’s enactment are to prevent trafficking in claims against the. Government, resulting in the exertion of improper influence in the departments, the courts, or the Congress; to relieve the Government from having to deal with a multiplicity of parties; and to prevent the introduction of a party who was a stranger to the original transaction. Seaboard Air Line Ry. v. United States, 256 U. S. 655.

We do not agree with the defendant’s contention that the statute is applicable. It should be noted at the outset that Mrs. Bickham did not purport to assign a claim as such. Only if the transfer of the lease was tantamount to the assignment of a claim was the statute violated. While it is true that all alleged injury to the property occurred prior to plaintiff’s purchase of it from Mrs. Bickham, under our construction of the lease agreement defendant’s dereliction of duty as to the condition of the premises did not become apparent and complete until the termination of the lease. Consequently, the claim accrued to plaintiff directly and not by way of assignment. Manifestly the antiassignment statute has no application under such circumstances. Viewing the lease in its entirety the conclusion that a cause of action ripened only at the termination of the leasing period is supported by both the language of the instrument and the practical construction thereof by the parties themselves.

It is clear from the entire scheme of this leasing arrangement that the prospect of acquiring the improvements placed on the property by the Government was an important incentive to property owners to participate in the Homes Conversion Program. That the defendant’s duty to take care extended to these additions as well as the original structure would seem beyond doubt. Paragraph 4 of the lease provides that these improvements, remodellings, fixtures, etc., added by the Government shall become the property of the lessor only at the termination of the lease. Defendant’s obligation was to have the property in the state of repair required by the lease at the time the premises were surrendered. While the permission granted defendant in paragraph 9 to repair without the consent of the lessor indicates that some repair was contemplated at the convenience of the lessee, it is evident that an accounting under the lease was to come only oii its' termination. The record reflects that the parties so construed it, and such practical construction prior to litigation is important in arriving at the meaning of the instrument. In re Deversey Bldg. Corp., 90 F. 2d 703; Waukegan Times Theatre Corp. v. Conrad et al., 59 N. E. 2d 308 (Ill. App.); J. E. Blank, Inc., v. Lennox Land Co., 174 S. W. 2d 862. There is convincing evidence that both the plaintiff and his grantor assumed that it was only necessary for defendant to make the required repairs before surrendering the premises. It was as the end of the term approached that defendant’s agents had the premises inspected and in answer to an inquiry wrote to plaintiff on January 2,1951, as follows:

Inspections were made [of the premises], and corrections for which the Government is obligated under the terms of its lease authorized and ordered to be completed before the expiration date. [Italics supplied.]

Under these circumstances we conclude that defendant’s obligation to make the repairs required by the lease was not finally violated until after the transfer of the lease. The right of action therefore accrued directly to plaintiff. Judkins v. Charette, supra; Hill v. Hayes (Mass.), 85 N. E. 434; Cawley v. Jean, 105 N. E. 1007.

While it is not the controlling element in this decision, we deem it not improper to point out that plaintiff’s grantor (Mrs. Bickham) voluntarily intervened in this suit, adopting most of plaintiff’s petition and evidence, and asking that she be allowed to recover only in the event that plaintiff is held to be precluded. We are convinced that the assignment of a claim against the United States was neither intended . nor accomplished.

Plaintiff is entitled to recover $870, and the petition of the third party plaintiff is dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.

EINDINGS OE EACT

The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Harold H. Singer, is a resident of Dayton, Ohio.

2. The third party plaintiff, Amelia Herr Bickham, is a resident of Dayton, Ohio.

3. From the year 1929 until December 20, 1950, the third party plaintiff, Amelia Herr Bickham, was the owner of the premises known as 226-228 North Bobert Boulevard, Dayton, Ohio.

4. On January 20, 1944, Amelia Herr Bickham and the defendant executed a written contract' of lease under the terms of which the defendant leased from the third party plaintiff the premises known as 226-228 North Bobert Boulevard, Dayton, Ohio, for a term commencing January 20,1944, and expiring January 19,1951.

5. The premises were leased by the United States under the Homes Conversion Program. That program was designed to fill the need for housing accommodations for the influx of defense and war workers into areas where housing was not otherwise sufficient. Under that program the United States leased large old dwellings, remodeled, reconditioned, and converted them into apartments or multiple family dwellings at its own expense and agreed to return those properties to the owners at the termination of the lease in their remodeled conditions.

6. Paragraph 4 of the lease provided:

The Government, during the term of this lease, may build, rebuild, remodel, recondition, rehabilitate, convert, change, and alter the Premises, and install and maintain additions and structures thereto, including internal and external changes, and may change the number of living units in the Premises and attach fixtures thereto, and make any and all improvements thereto, including utilities and roads, at the expense of the Government : Provided, however, That these rights may be exercised in accordance with plans and specifications submitted to and approved in writing by the Lessor. The Government may make such reasonable variations from, and modifications in, such plans and specifications originally approved by the Lessor as the Government deems necessary in the course of carrying out such plans and specifications. All such building, rebuilding, remodeling, reconditioning, rehabilitating, converting, changing, and altering of the Premises, and all additions, structures, and fixtures added to the Premises by the Government, including utilities and roads, which are .remaining thereon at the termination of this lease, however accomplished, or when the Government begins reconversion of the Premises, shall then become the property of the Lessor; and the Government shall be under no obligation to restore or reconvert the Premises to their condition at the time of the execution of this lease: Provided, however, That in the event the Government determines to terminate this lease, except where such termination is in pursuance of an election made by the Government under the provisions of paragraph 10 hereof, and the conversion of the Premises has been actually commenced but has not been completed, the Government at its sole option, before such termination becomes effective, shall either complete the conversion or restore or reconvert said Premises to their condition at the time of the execution of this lease; and Provided further, That in the event this lease has been terminated, except where such termination is effected under the provisions of paragraph 10 hereof, the Government shall restore or reconvert said Premises whenever the changes and alterations therein have been of a temporary nature and have been designated as such in the plans and specifications approved by the Lessor. The Government agrees to hold the Lessor harmless of and from all liens by reason of any building, improvements, alterations, repairs, reconversion or restoration.

7. Paragraph 9 of the lease provided:

The Government, during the term of this lease, shall take good care of the Premises, and may make any and all repairs, both interior and exterior, necessary to keep the Premises in good order, condition, and repair, without the consent or approval of the Lessor. Upon the surrender of the Premises by-the Government, it shall redecorate and/or repaint the vacant portion of the interior thereof.

8. The premises were erected in 1895. At the time the premises were leased to the United States they consisted of one double, three-story and basement building containing 20 roo’ms, 10 on each side, with a fire wall between. The premises were designed as a two-family dwelling. They were’ constructed of brick, stone and stucco and were in fair condition when turned over to defendant by Amelia Herr Bickham.

At or about the time the property involved in this proceeding was leased to the defendant and before any remodeling, repairs or conversion was accomplished by the defendant, it was valued for tax purposes by Montgomery County, Ohio, at $12,500. It was also valued at or about the same time by the Gem City Building and Loan Association at $12,500. The evaluations were less than the then estimated market value of the property.

9. The premises are located close to the Miami River and in March 1913 water from that river flooded and inundated the adjoining area including these premises. The flood covered the basement and first floor of the premises. At the time of the flood the weather was cold and ice formed, from the water on the floor of the living room of the premises.

10. In 1936, a disastrous fire occurred in these premises which caused considerable damage to the structure. The fire damaged the first, second and third floors. The fire started on the second floor and moved into the third floor and down the stairway to the first floor. It completely gutted a room on the second floor, and blistered and burned the hallway on that floor. On the third floor there was practically one hundred percent loss to the furnishings. The varnish and paint on the stairways down to the first floor were burned.

11. Except for repairs which were made necessary by reason, of the flood and fire mentioned, and except for some painting, no major alterations, improvements or repairs were made from the time the building was constructed until the defendant’s conversion in 1944.

12. Pursuant to Paragraph 4 of the lease, plans and specifications for the remodeling and conversion of the premises were submitted to Amelia Herr Bickham and approved by her. The defendant remodeled and reconditioned the premises and converted them from a single two-family dwelling into a multiple family apartment house which contained ten apartments. This work was completed in accordance with the approved plans and specifications.

13. The reconditioning, remodeling and conversion of the premises were done by a private contractor pursuant to a contract with the United States. The work, which cost $13,393, included new concrete work, new carpentry, new lathing and plastering, painting, new linoleum, heating, plumbing, and electrical work, all as specified in the itemized specifications attached to Government contract No. W-33-B-335. In addition to the work mentioned above, the Government caused to be installed eight new kitchens and bathrooms, completely equipped.

14. Upon the completion of the reconditioning, remodeling and conversion of the premises, as outlined in Finding 13, they were in excellent condition.

15. After the premises were reconditioned and converted, the property was turned over to a private real estate broker, W. D. Johnson, of Dayton, Ohio, who acted as a contract management broker. As such, his duties required him to rent the individual apartments, collect the rentals for the account of the United States, make certain repairs, and otherwise manage the property for the United States.

16. Johnson found tenants for the individual apartments, executed leases with them, collected the rentals and submitted monthly reports of his activities, showing the amounts collected and the amount spent for repairs and maintenance.

17. During the seven years the defendant leased the premisés, Johnson reported making repairs at a total cost of $3,062;62.

18. The evidence fails to establish that all of the repair work, which Johnson reported as being done, was in fact accomplished. However, the evidence does establish that the following repairs were made during the defendant’s tenancy:

a. Repairs to plaster and renewing paper in one room.
b. Repairs to kitchen faucets.
c. Screens renewed or repaired.
d. Rear porch repaired and repainted,
e. Furnace repaired.
f. Brick or stucco repaired.
g. Repairs to plumbing.

19. Shortly prior to the expiration of the lease the defendant, pursuant to Paragraph 9 of the lease, caused the hallways to be repapered and the interior wood trim of the halls to be varnished. In addition, the defendant caused the fire escape to be repaired and in making, these repairs the fire» escape was practically rebuilt. It was also painted.

20. On December 22,1950, Amelia Herr Bickham conveyed the fee simple title to the premises involved in this action to the plaintiff, Harold H. Singer, and transferred all of her right, title and interest in the lease to him for the sum of $28,500.

21. Amelia Herr Bickham, by and through her lawyer and agent, Wm. F. Hyer, sent to defendant, by and through its National Housing Agency, a signed, notarized, and witnessed-notice of the proposed transfer and assignment prior to the transfer of title and the assignment of interest in the lease to Harold H. Singer.

22. The fair and reasonable value of the premises as of December 22,1950, was $23,500..

23. On December 28, 1950, plaintiff sent his signed, notarized, and witnessed notice of his purchase and proprietorship, of said leased premises to defendant’s National Housing Agency at Cincinnati, to its Detroit Field Office, and to Washington, D. C.

24. The purchase by plaintiff from Amelia Herr Bickham of the leased property was a bona fide business deal for market value with the expectation by both parties to it that lessee before surrendering the premises at the termination of its lease would repair the property according to its obligations under the lease.

On January 2, 1951, defendant’s agent wrote to plaintiff Singer relative to the subject premises, stating in part .the following:

This acknowledges receipt of your letter dated December 28, Í.950, relative to the lease on the above-captioned property.
* * * Inspections were made, and corrections for which the Government is obligated under the terms of its lease authorized and ordered to be completed before the .expiration date.- .

25. On January 19,1951, the defendant vacated the premises and delivered possession .to the plaintiff, subject to the leases-or tenancies óf individual occupants.

26. The plaintiff claims damages of $10,000 and bases his claim upon the failure of the defendant to take good care of the property and to restore and repair the premises as pro-, vided for in the lease. Specifically the plaintiff contends that the following defects resulted from the defendant’s failure to take care of the property:

(1) The heating system was worn out, the two furnaces needing to be replaced by new; the hot water tanks worn out and obsolete, the smoke-stack bent out of shape. Laundry tubs cracked and leaky. The plumbing throughout rusty, rotted, and leaky.
(2) The plaster in kitchen cracked in many places and fallen out.
Sink-cabinets in Apartments # 2, 6 and 9 leaky. Wiring in Apartment # 3 short-circuited and inadequate, blowing a fuse whenever used. Paint in interior hall worn off. Interior stairs and banisters loose, rungs missing, decayed, paint off,
(3) Exterior stucco cracked and patches fallen out. Screen doors, window-screens, torn and rusty. Fire-escape tied to building next door. Window sills rotted away. Porch-railing loose and cracked. Spouting worn out and loose. Exterior brick and wood work, especially the trim, in need of paint, the old paint worn off. Hear porches were broken down and needing paint. Basement doors warped, glass broken out, needing paint.
(4) The premises were overrun by red ants and other vermin, needing an exterminator.
(5) Violated Dayton Building Code in that the communicating opening in the brick wall on second floor is not and was not adequately protected resulting in a fire prevention order # 120 dated February 6, 1950, to be filed against said property.
(6) Violated Dayton Building Code in that tread on stairs were defective resulting in a fire prevention order # 120, to be filed against said property.

27. On January 19, 1951, the date on which the defendant’s tenancy expired, the premises were in reasonably good-condition, considering the age, nature of the structure and its damage by fire and flood water before being leased to defendant. However, certain repairs were needed, many of which were made necessary because of the age and history of the premises, or by ordinary wear and tear, and not by reason of the defendant’s failure to take good care of the property. All of the repairs needed and the fair and reasonable cost of each item on January 19,1951, are as follows:

130 L. F. of leaders and 84 L. F. of downspouts-$215. 00
Kepairs to rear porch_ 90.00
Pointing brick and stone work_ 400.00
Repairs to windows screens, doors and sills- 125.00
Repairs to interior stairs, banisters and rails_ 40. 00
Repairs to stucco_ 60.00
Repairs to front porch- 175.00
Repairs to rear basement doors_ 20.00
Repairs to hot water heaters_ 45.00
Repairs to furnaces_ 200. 00
Repairs'to fire door_ 100.00
Repairs to plaster- 75. 00
Repairs to electrical wiring_ 100. 00
Repairs to floor tile_ 10.00
Repainting exterior trim_ 200.00
Repairs to plumbing_ 100.00
Scaffolding as necessary for repairs- 250.00
Total_$2,205. 00
Less 5% labor cost differential_ 110.25
Net total_$2,094.75

28. The premises were 49 years old when they were leased to the defendant and were 56 years old at the termination of the lease. The evidence establishes that many repairs were made necessary by reason of the age of the property, its original construction, and fire and flood prior to January 20,1944, or by ordinary wear and tear. For example, repairs were made to stucco; screens, doors and sills; front porch; plumbing; and to electrical wiring.

Athough tenants complained about fuses blowing there is no evidence of defective electrical wiring. The condition complained of could have been caused by overloading of circuits.

The evidence does not establish that the third party plaintiff, who owned the premises from 1929 to 1950, ever caused the brick or stone work to be repointed. In addition, the evidence establishes that the flood and freezing in 1913, and tbie fire in 1936, damaged the structure and hastened the deterioration of the mortar in the joints of the brick and stone.

The evidence discloses that the furnaces used during the defendant’s tenancy were coal-fired gravity furnaces and were non-automatic. They were in operation at the termination of the lease although they sometimes smoked and at times the tenants complained of insufficient heat. The reason for lack of sufficient heat is not definitely established by the evidence. It may have resulted from quota limits on coal during the war period.

29.The repairs necessary at the termination of the defendant’s tenancy, not caused by reason of the age or past history of the premises or by ordinary wear and tear and the reasonable cost of such repairs on January 19, 1951, were as follows:

Gutters and downspouts-$215.00
Repairs to rear porch_ 90.00
Repairs to interior stairs_ 40.00
Repairs to front porch_^_ 175.00
Repairs to basement doors_ 20. 00
Repairs to hot water heaters__ 45.00
Repairs to plaster_ 75.00
Repairs to floor tile_ 10. 00
Repainting exterior trim_ 200. 00
Total_$870.00

30. The defects enumerated in Finding 27 all existed prior to the date on which the plaintiff became the owner of the premises and prior to the date on which he obtained an assignment of the lease.

31. The defects enumerated in Finding 29 all existed and were made necessary by the failure of the defendant to take good care of the premises at a time prior to the date on which the plaintiff became the owner of the premises and prior to the date on which he obtained an assignment of the lease.

The record does not establish that any damage to the property occurred between the date on which plaintiff acquired the property and the expiration of defendant’s lease (less than thirty days). Furthermore, the plaintiff is not claiming any damages based on this brief interval of time.

CONCLUSION OE LAW

Upon tbe foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, and it is therefore adjudged and ordered that he recover of and from the United States eight hundred seventy dollars ($870).

And the court further concludes that as a matter of law the third party plaintiff is not entitled to recover and her petition is therefore dismissed. 
      
       The Government, during the term oí this lease, may build, rebuild, remodel, recondition, rehabilitate, convert, change, and alter the Premises, and install and maintain additions and structures thereto, including internal and external changes, and may change the number of living units in the Premises and attach fixtures thereto, and make any and all improvements thereto, including utilities and roads, at the expense of the Government: Provided, however, That these rights may be exercised in accordance with plans and specifications submitted to and approved in writing by the Lessor.' The Government may make such reasonable variations from, and modifications in, such plans and specifications originally approved by the Lessor as the Government deems necessary in the course of carrying out such plans and specifications. All such building, rebuilding, remodeling, reconditioning, rehabilitating, converting, changing, and altering of the Premises, and all additions, structures, and fixtures added to the Premises, by the Government, including utilities and roads, which are remaining thereon at the termination of this lease, however accomplished, or when the Government begins reconversion of the Premises, shall then become the property of the Lessor; and the Government shall be under no obligation to restore or reconvert the Premises to their condition at the time of the execution of'this lease: Provided, however, That in the event the Government determines to terminate this lease, except where such termination is in pursuance of an election made by the Government under the provisions of paragraph 10 hereof, and the conversion of the Premises has been actually commenced but has not been completed, the Government at its sole option, before such termination becomes effective, shall either complete the conversion or restore or reconvert said Premises to their condition at the time of the execution of this lease; and Provided further, That in the event this lease has been terminated, except where such termination is effected under the provisions of paragraph 10 hereof, the Government shall restore or reconvert said Premises whenever the changes and alterations therein have been of a temporary nature and have been designated as such in the plans and specifications approved by the Lessor. The Government agrees to hold the Lessor harmless of and from all liens by reason of any building, improvements, alterations, repairs, reconversion or restoration.
     
      
       See finding 26.
     
      
       The statute provides:
      “All transfers and assignments made of any claim upon the united States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim or of any part or share thereof, shall be absolutely null and void, * * 10 Stat. 170, as amended, 31 U. S. C. (1946 Ed.) 203^
     