
    HINKLEY & POWERS v. THE UNITED STATES.
    [No. 30835.
    Decided December 1, 1913.]
    
      On the Proofs.
    
    On September 30, 1905, the plaintiff eritered into a contract with the Interior Department to construct a schoolhouse to be completed on or before April 1 following, which was not completed until April 20, 1906. The contract was not approved by the Secretary until November 3,1905, and after the plaintiff had commenced work under the contract. A settlement was made in 1906, and efforts to reopen it in 1911 failed. The petition was filed May 4,1911, and seeks to recover deductions made on account of the delay in completing the work.
    I.A settlement having been made in 1906, it was too late to reopen it for a revision by the Comptroller of the Treasury upon application made several years thereafter.
    II.Statement of officers made long after settlement and based upon their deductions from the records in the case are not to be accepted as admissions binding on the Government.
    III. Where the superintendent of construction states that the delay was due in part to one cause and in part to another cause, it is not sufficiently definite for the court to determine the delay which the one or the other cause occasioned, and the burden of proof ¿supon the plaintiff to establish the allegations of the petition..
    IV. The delay in approving a contract by the officer charged with that duty does not operate to extend the time of performance when it appears that the contractors have not been delayed thereby. Neither does it nullify the clause in the contract providing for liquidated damages.
    
      The Reporter’s statement of the case:
    Tte following are the facts of the case as found by the court:
    I. The claimant entered into the contract with defendants through the Interior Department for the building of a schoolhouse, referred to in the petition.
    II. The contract was dated September 30, 1905, and by its terms the work was to be completed on or before April 1 following, and the house so contracted to be built and completed was not completed until April 20, 1906.
    III. The contract was not approved by the Secretary of the Interior until November 3, 1905, but when signed by claimants they at once proceeded with the work under the terms of the contract and were not delayed by the fact that the contract was not approved by the Secretary for over 30 days after its date and after they commenced work.
    IV. P. T. Benton was designated by the Commissioner of Indian Affairs as superintendent of construction of said building, and in a report to the Commissioner of Indian Affairs, dated April 27, 1906, he stated that the delay in completion of the work was due in part to the installment of the heating plant and "was also due in part” to his direction that the outside painting should not be done until the danger from freezing had passed, and he recommended that "the penalty of $10 per day be not enforced.” The said com mis-1 sioner recommended that "the sum of $260 for 25 days' delay at $10 per day be withheld” from claimants, and that the payment of the balance due them be made, and this recommendation was concurred in by the Secretary of the Interior. The auditor allowed the entire claim, and it was referred to the Comptroller of the Treasury, who, on June 28, 1906, disallowed $180 of the claim, being a deduction for 18 days at $10 per day, and payment was accordingly made to claimants of the amount so allowed by the comptroller. The petition in this case was filed May 4, 1911, and seeks to recover the said sum of $180 which was deducted as aforesaid and not paid to the claimants under the comptroller’s decision.
    V. The claimants in support of their petition refer to three letters as follows:
    (1) A letter dated January 21, 1911, from the Assistant Commissioner of Indian Affairs to the Secretary of the Interior wherein he recommends “that the amount of $180 be waived.” This recommendation was referred to the auditor and disallowed by him, he taking the position that he was without jurisdiction to rehear, the matter. (2) Another letter in which on February 14, 1911, the same Assistant Commissioner of Indian Affairs recommended to the Comptroller of the Treasury that the latter direct a waiver of said sum; and (3) a letter dated March 22, 1911, from the Commissioner of Indian Affairs to the comptroller in which, referring to the claimants’ applications for a rehearing, the commissioner recommended that a rehearing be had and “ a waiver of said sum be directed.”
    In each of these letters the writer of the letter refers to correspondence on file and the record in the case.
    
      The defendants object to the introduction of these three letters as evidence upon the ground that they can not be used as admissions binding on the Government and that they do not constitute part of the transactions between the parties, having been written over four years after settlement was made.
    VI. On November 18, 1912, this case was remanded to the trial calendar of the court under the following order:
    “This case is remanded to the trial calendar for further argument and such other and further proceedings as the parties may see fit to take, including the taking of testimony as to the causes of delay in the construction of the building described in the petition.”
    No other or further testimony was taken. The claimants do not testify.
    CONCLUSIONS OP LAW.
    Upon the foregoing findings of fact the court decides as conclusions of law that—
    (1) The defendants’ objections to the said letters of date January 21, 1911, February 14, 1911, and March 22, 1911, respectively, be, and they are, sustained.
    (2) The claimants’ petition should be, and is hereby, dismissed.
    
      Mr. M. W. Hendry for the plaintiffs.
    
      Mr. George E. Boren, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Per Curiam:

Our conclusions in this case are based upon the following considerations:

(1) A settlement having been made in 1906, it was too late to reopen it for a revision by the Comptroller of the Treasury upon application made several years thereafter. Sec. 8, act of July 31, 1894; 28 Stat. L., 207.

(2) The statements of the officials made long after the settlement and based upon their deductions from the records and letters in the case are not to be accepted as admissions binding on the Government. Waters’s case, 4 C. Cls., 390; Gordon’s case, 6 C. Cls., 292; Brannen's case, 20 C. Cls., 219; Allen’s case, 28 C. Cls., 141.

(3) Tbe statement of tbe superintendent of construction of tbe building to tbe Commissioner of Indian Affairs, if admissible as evidence, does not sbow wbat caused tbe delay. His statement tbat it was due in part to one cause and in part to another cause is not sufficiently definite for tbe court to determine tbe length of tbe time of delay which tbe one or the other cause occasioned, and the burden of proof is upon tbe claimants to make tbe proof necessary to sustain their petition. It is not made to appear, by evidence, when tbe outside painting was done or tbat it could not have been done sooner.

(4) Tbat tbe claimants were not delayed in commencing work by tbe fact tbat tbe contract was not approved for over 30 days, and on tbe contrary proceeded with tbe work, being put in possession of tbe premises when they bad signed tbe contract, takes this case out of tbe operation of tbe doctrine contended for by claimants as to an extension of time of completion. This court is not committed to tbe doctrine tbat mere delay in approving a contract, by the official charged with that duty, when it appears tbat tbe contractors have not been delayed thereby, operates to extend tbe time of performance or nullifies tbe clause in tbe contract providing for liquidated damages. Little Falls Knitting Co. v. United States, 44 C. Cls., 1; Ittner v. United States, 43 C. Cls., 336; Callahan Const. Co. v. United States, 47 C. Cls., 229; Laidlaw-Dunn-Gordon Co.’s case, 47 C. Cls., 271.

It follows tbat tbe petition should be dismissed, and it is so ordered.  