
    WILLIAM H. JACKSON, MINNIE L. JACKSON, EDWARD H. CRELLIN, AMY H. CRELLIN, AND GEORGE A. SMITH, INDIVIDUALLY AND AS CO-PARTNERS TRADING UNDER THE FIRM NAME AND STYLE OF PITTSBURGH - DES MOINES STEEL CO., v. THE UNITED STATES
    [No. C-1.
    Decided April 20, 1925]
    
      On the Proofs
    
    
      Contract; transportation at Government expense. — Where a written contract provided that the Government would bear the expense of transporting plaintiffs’ employees, if ten days’ notice of readiness to sail should he given, the Government was obligated to transport the men free if such notice was given, but was not obligated to furnish said transportation within ten days after receipt of the notice.
    
      Same. — Where in a contract to furnish electric power one party to do certain things and the other party certain other things, and something intervenes to forestall the continuance of the service dependent upon this joint obligation, it is indispensable for the complaining party to show that he is not at fault and the other party is.
    
      Same; payment in dollars; rate of exchange. — Where a contract provided that the consideration should be paid in dollars, the obligation is not met by the payment in francs in conformity to certain rules and regulations of the Treasury Department for the payment of our military forces abroad.
    
      
      The Reporter's statement of the case:
    
      Mr. Bynum E. Minton for the plaintiffs.
    
      Mr. Edw-. D. Hays, with whom was Mr. Assistant Attorney Generad William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiffs are citizens of the United States, and since some time prior to March, 1919, have been copartners trading under the firm name of Pittsburgh-Des Moines Steel Co.
    II. In March, 1919, the plaintiffs had an office in the city of Washington, District of Columbia, and on "March 27, 1919, entered into a contract with the United States, through the Chief of the Bureau of Yards and Docks, acting under the direction of the Secretary of the Navy, for the construction of eight 820-foot steel radio towers at the Lafayette Radio Station, Croix d’Hins, Gironde, France, in accordance with the provisions of certain plans and specifications forming a part of the contract. A copy of said contract is annexed to the plaintiffs’ petition as Exhibit A, and is by reference made a part of this finding.
    III. Paragraph 29 of the specifications of the contract provided as follows:
    
      “ Transportation of men. — The Government will transport contractor’s force from New York to Bordeaux, and from Bordeaux to New York, but will require at least 10 days’ notice of readiness to sail. The bureau will also assist the contractor in every way possible to procure the necessary passports for his men.”
    Due notice, as required by said paragraph 29, was given by the plaintiffs to the Government on October 27, 1919, of the number of plaintiffs’ employees and the time when they would be ready to sail from Brest, France, on their return to New York, after the close of their work in France, the dates of the readiness of different parties of them for sailing extending from November 8 to December 5, 1919.
    IV. Thirteen of plaintiffs’ said employees were delayed at Brest, awaiting transportation on their return to New York, beyond the time stated in the notice by the plaintiffs as to their readiness to sail, on account of which delay the plaintiffs had to pay additional wages to some of said employees, amounting to $957.92.
    The plaintiffs also sustained extra subsistence expenses for said employees on account of said delay.
    On April 20, 1920, the plaintiffs presented a claim to the Bureau of Yards and Docks, Navy Department, for the said extra expenses of wages and subsistence due to said delay, which bureau, by letter of June 1, 1920, informed the plaintiffs that as it was a claim for damages, its payment by the bureau was not authorized by law, but that it might be submitted to the Auditor for the Navy Department for settlement.
    On September 15,1921, the plaintiffs presented said claim, along with other items of claim, to the General Accounting Office, by which the item for subsistence expenses was allowed, and subsequently paid plaintiffs, but the item for the extra wages on account of delay was disallowed, and no part of it has been paid the plaintiffs.
    V. Paragraph 14 of the specifications of the contract provided, among other things, as follows:
    
      “ Work to be done and material to be furnished by the Government. — The Government will provide * * * electric current for light and power.”
    By paragraph 24 of the specifications, it was further provided :
    “Electric power is delivered to the site over a 3-phase transmission line at about 11,500 volts. This power is transformed to 2,200 volts, 3-phase, by a bank of three single-phase transformers. The power for operating the electric hoists, air compressors, pumps for cooling water, and pumps for camp water supply is 220 volts direct current. There is a 500-kilowatt General Electric motor generator set installed and in running order. This set starts as an induction motor and runs as a synchronous motor. The pole lines and wiring for distribution of current to all eight towers and to the camp is in place and believed to be in proper operating condition; should it appear that any work is required to put the existing pole lines and wiring into operating condition when work is resumed, such work will constitute an ‘ extra,’ but maintenance and upkeep of poles and wiring and local connections to the electric hoists, compressors, and pump still to be erected at towers 5, 6, 7, and 8 does not constitute an ‘extra.’ All material necessary for these latter connections is believed to be on hand, and the purchase of any additional material found necessary constitutes an ‘ extra.’
    “ The contractor shall operate the motor generator set as well as the hoists, air compressors, and pumps for cooling-water, and will be responsible for any damage or delay resulting from careless or inefficient attendance or misuse or neglect of any sort. The contractor will be expected to use French laborers to the greatest extent possible without causing interference with the proper progress of the work.”
    At intervals during the performance of the contract work the electric current for use in the work was cut off, or failed, and certain of the plaintiffs’ employees were thereby rendered idle. Some of these employees, known as “hourly men,” were paid by the hour; while others, known as “ straight-time men,” were paid full time. When the “ hourly men ” were laid off or stopped working, their pay stopped until.they resumed work again; but the “straight-time men” had to be paid full time, which included the time lost by reason of said lack of electric current. It does not satisfactorily appear Avhat Avas the cause of the failure of the electric current or who Avas responsible for said failure.
    On account of idleness of their employees caused by said lack of electric current, the plaintiffs lost, in wages paid said employees, the sum of $1,706.87. A claim for said loss Avas presented by the plaintiffs to the Bureau of Yards and Docks by letter of April 20, 1920, Avhich bureau, by letter of June 1, 1920, informed plaintiffs that as it Avas a claim for damages, its payment by the bureau Avas not authorized by laAv, and that it should be submitted to the Auditor for the Navy Department for settlement.
    On September 15, 1921, the plaintiffs submitted this and other items claimed to the General Accounting Office, by which this item Avas disallowed, on or about February 4-, .1922, and no part of it has been reimbursed or paid to plaintiffs.
    YI. Paragraph 6 of the contract provided as follows:
    “ For and in consideration of the faithful performance of this contract the party of the first part shall be paid, upon vouchers prepared, certified, and approved, in the manner proAÚded in paragraph 46 of the specification aforesaid, the •sum of two hundred and forty-eight thousand eight hundred ■dollars ($248,800.00).”
    By paragraph 29 of the general provisions forming a part of the specifications of the contract it was provided:
    
      “Payments and reservation. — Vouchers will be prepared by the officer in charge of the work as soon as practicable after the end of each month, covering his estimate, according to the schedule of prices, of all material delivered, material worked into place, and work done to date. From such gross •estimate will be deducted the next previous gross estimate, if any, and 10 per cent of the difference unless otherwise specified. The contractor shall certify to the correctness, justness, and nonpayment of said vouchers, after which they will be forwarded to the Bureau of Yards and Docks for approval and for reference to the Paymaster General of the Navy for payment by check.”
    And by paragraph 46 of the specifications it was provided:
    
      “Payments. — The monthly payments will be made in France, without reference of the vouchers to the Bureau of Yards and Docks. The final payment will, however, be made at Washington, after approval of the final vouchers by the Chief of the Bureau of Yards and Docks. Paragraph 29 of the general provisions aforesaid is modified accordingly.”
    The first four payments by the Government to the plaintiffs, covering monthly estimates, were made, respectively, June 11, July 9, August 8, and September 12, 1919, to plaintiffs’ superintendent on the work in France, in francs. The vouchers for these payments stated the. accounts for payment in dollars; but the Government disbursing officer converted the dollars into francs, at certain monthly rates of exchange established by the United States Treasury Department “ for accounting purposes and pay of officers and enlisted men and civilian employees whose salaries are fixed by law or by contract in dollars.”
    The said monthly rates of exchange so fixed by the Treasury, and upon the basis of which the said first four payments were made to the plaintiffs in francs, were: For the month of June, 6.51 francs per dollar; for the month of July, 6.45 francs per dollar; for the month of August, 7.10 francs per dollar; and for the month of September, 8.05 francs per dollar. The commercial rate of exchange fluctuated frequently during said months, and at the times when said four-payments were made to plaintiffs the commercial rates of' exchange were different from the said rates at which said payments were made to plaintiffs, the commercial rates being as follows: June 11, 6.43 francs per dollar; July 9, 6.85-francs per dollar; August 8, 7.76 francs per dollar; and September 12, 8.505 francs per dollar.
    VII. On July 8, 1919, just before the second of said payments, on July 9, the plaintiffs, through their superintendent on the work, wrote the Government’s commanding officer-in charge of the work requesting that payment be made on the basis of the commercial rates of exchange prevailing in New York at the time payiiients were made, and suggesting-that if these rates were not at hand when the pajunents were-made, payments be made at approximate rates, and adjustment to the commercial rates made in a subsequent estimate or in the final settlement. He also requested that such; adjustment be made to apply to the payments that had already been made. Said officer, on July 9, wrote plaintiffs' that his office could not make payment at the commercial rates of exchange, because of instructions of the Navy Department to use the monthly rate fixed by the Treasury Department; but that the plaintiffs’ request had been forwarded to the Navy Department.
    On August 15,1919, the plaintiffs wrote the Navy Department requesting that payments in francs be made on the basis of the prevailing commercial rates of exchange, instead of at the monthly Government rates, in order to obviate loss to them that would result from the use of the latter rate, and also requested that this change be made retroactive so as to' include payments that had already been made.
    On September 9, 1919, the said Government commanding officer in charge of the work wrote the plaintiffs that the Navy Department had requested the Treasury Department to provide for the making of payments to the plaintiffs in dollars instead of francs, but that this request was contrary to the policy of the Treasury, and probably would not be granted. He further»stated that the department offered the alternative of the payments being made direct to the plaintiffs’ home office in the United States, and also sug-.gestecl if plaintiffs were not in a position to accept permanently payments at the Government monthly rates of exchange that they accept such payments under protest, with the understanding that the matter would be finally adjusted by the Navy Department with plaintiffs’ home office at the time of the making of the final payment in Washington.
    On September 10, 1919, the plaintiffs’ representative on the work in France wrote the said Government commanding •officer that he was not in a position either to accept, as final, payments at the Government monthly rates of exchange or to agree to the suggestion that payments be made in the United States, but that he would agree to accept payment at the said Government rates of exchange provisionally and under protest, with the understanding that the entire matter would be reviewed by the Navy Department and anx^djustment made at or before the final payment in Washington.
    On September 10, 1919, the Navy Department cabled Admiral Sims, in London, with reference to payments to •plaintiffs under the contract, as follows:
    “ Kestrictions withdrawn. Treasury Department will place funds to credit of disbursing officers in France with Treasurer United States. Arrange to pay Pittsburgh-Des Moines contract in dollars if they desire.”
    Thereafter the remaining monthly estimates due under the •contract were paid to plaintiffs in dollars in France.
    VIII. As a result of the payment of the said first payments to the plaintiffs in francs at the said Government monthly rates of exchange, instead of in dollars or in francs at the prevailing commercial rates of exchange, the plaintiff sustained a loss of $1,334.70, for no part of which have the plaintiffs been reimbursed.
    The court decided that plaintiff was entitled to recover, in part.
   Booth, Judge,

delivered the opinion of the court:

The plaintiff, Pittsburgh-Des Moines Steel Co., is a co-partnership. On March 27, 1919, plaintiff and defendant •entered into a written contract by the terms of which the plaintiff agreed to construct eight 820-foot steel radio towers at the Lafayette Radio Station, Croix d’Hins, Gironde,. France. Paragraph 29 of the specifications (Finding III) contained a provision for the transportation of plaintiff’s, force of employees from New York to Bordeaux and from Bordeaux to New York at Government expense, reciting,, among other things, that 10 days’ notice of readiness to sail would be required. Thirteen employees of the plaintiff were' delayed in securing passage beyond the time stated in the notice given, and during the period of this delay plaintiff paid them their wages, amounting to $957.92. This amount, under this provision, the plaintiff insists he is entitled to' recover. We think not. The plaintiff’s construction of the paragraph would have it read as an agreement to transport the men within 10 days after receiving the notice. The defendant did not assume an obligation of this sort. What is clearly intended by the paragraph is the imposition of an obligation to transport the men free of expense to the plaintiff, but the obligation shall not arise unless 10 days’’ notice of readiness to sail is given the defendant. It is not an undertaking to transport within a limited time, but an obligation to transport free of charge after the requisite notice is given. The record does not show that the delay occurred through any fault on the part of the defendant or that immediate transportation was not furnished when tluv same was available. As a matter of caution the defendant required this notice. Means of transportation were not always at hand, and unless the defendant unreasonably and without just cause delayed their return the defendant’s obligation was observed when the costs of transportation were fully paid.

Paragraph 14 of the specifications (Finding Y) provided for the furnishing by the defendant of electric current for light and power. In the main this obligation was fulfilled. At times and on certain occasions the current intermittently failed, and when it did so the riveters and erectors employed by the plaintiff were temporarily idle. This class of employees were paid, some for straight time and others by the hour. Obviously the hourly wages could have been saved. The electric current was procured by the defendant from outside sources. No plant of its own generated it. It came over the wires at the rate of about 11,500 volts and necessarily had to be transformed before used. The power furnished the plaintiff was 220 volts direct current. A 500-kilowatt General Electric motor generator was installed at the site of the work, and the plaintiff was responsible for its operation and upkeep. The above details we have set forth as clearly disclosing the fact that where under a contract to furnish a necessary supply one party is to do certain things and the other party certain other things, and something intervenes to forestall the continuance of a service dependent upon this joint obligation, it is indispensable for the complaining party to show that he is not at fault and the other party is. This has not been done. It is not sufficient to merely establish the failure of the current at certain periods and leave the court to infer that the defendant had failed to meet its contract in this respect. So far as this record goes, the delay occasioned the contractor may have been unavoidable, and responsibilities for unavoidable delays were not assumed.

The last item of the suit is, indeed,'most singular. Why the contractor was not paid as the contract provides, and if not so paid, made whole according to the stipulations respecting payment, it is difficult to say. Paragraph 6 of the contract (Finding VI), reciting the consideration for the undertaking, says in reference thereto, “ shall be paid * * * the sum of two hundred and forty-eight thousand eight hundred dollars ($248,800.00).” By what process of reasoning the meaning, scope, and obligation clearly imposed by. this provision could be perverted and ignored presents a problem of no easy solution. Notwithstanding this plain and decidedly unambiguous clause, the officers of the defendant sought to discharge the obligation at a rate of exchange disproportionate to the current and commercial rates prevailing at the time payments were made. Not only that, but they insisted, over the protest of the contractor, in paying the same in francs, when he obviously had a right to demand and receive American dollars. Finally, after- protest and complaint, the clause was observed as worded and the plaintiff was paid the remaining payments in dollars, but not until after the fluctuating changes in the rate of exchange had caused this plaintiff a loss of $7,334.70. The defendant labors to justify the course pursued, and being unable to sustain the contention upon any of the stipulations of the contract, resort is had to extraneous rules and regulations adopted by the Treasury Department for the payment of our military forces abroad. It is, indeed, a novel contention. We are not impressed with an assertion that contractual obligations may be disposed of by rules and regulations of a department in the absence of any stipulation in the agreement to that effect. The contract provided that the contractor was to receive as payment for his undertaking so many dollars, and the payment of any less sum would not, and could not, by any lawful means, discharge the obligation or relieve the liability.

Judgment will be awarded the plaintiff in the sum of $7,334.70. It is so ordered.

Geaham, Judge; Hat, Judge; Downey, Judge; and Campbell, GMef Justice, concur.  