his rank entitles him bears to the whole number of rooms actually occupied. For example, if a major occupies 10 rooms as quarters he would be entitled as his heat allowance to only one-half of the amount of fuel actually consumed, his authorized allowance of quarters being only 5 rooms.

The decision of this office of September 23, 1913 (66 MS. Comp. Dec., 1395), which was intended to remain in force only pending the investigation that has now been made, is superseded by this decision, except as to the holdings quoted with approval herein, and all former decisions of this office in conflict herewith are overruled.

DELIVERY OF CEMENT "F. 0. B. WHARVES."

Under a contract calling for the delivery of cement "f. o. b. wharves" the contractor was requested to and did deliver cement on barges instead, and some of the cement so delivered was, due to the improper disposal thereof, lost through the overturning of a barge: Held, That delivery “f. o. b. barge" was all that was required of the contractor, and that for cement lost after such delivery the Government was responsible.

Decision by Comptroller Downey, February 5, 1914:

Fritz Jancke (Inc.) requested, January 23, 1914, a revision of the action of the Auditor for the War Department in disallowing, April 24, 1913, its claim (No. 492560) for $2,759.36, the contract value of 5,871 sacks of Lehigh Portland cement alleged to have been furnished and delivered to the Engineer Department of the Army under contract of July 7, 1911, and extra cost of 1,467 barrels delivered under verbal agreement.

The auditor disallowed said claim for the reason that, as he understood and interpreted the facts of the case, the 5,871 sacks of cement in question were never delivered to and accepted by the Government, and that the agreed price was paid for all cement actually delivered. The claim presented grows out of the following facts:

By contract dated July 7, 1911, Fritz Jancke (Inc.), hereinafter referred to as "the contractor," undertook and agreed to furnish and deliver "f. o. b. wharf at New Orleans, La., or f. o. b. cars at St. Martinsville, La.," about 7,250 barrels of Lehigh Portland cement, at a price of $1.69 per barrel for the cement delivered at New Orleans and $2.29 per barrel for that delivered at St. Martinsville, less, in each case, "ten (10) cents for each and every empty sack in good condition" returned by the Government f. o. b. cars at St. Martinsville.

Under proper orders the contractor made the following deliveries at New Orleans: August 11, 1911, 1,000 barrels; August 15, 1911, 1,000 barrels; October 3, 1911, 1,000 barrels; and August 6, 1912, 1,653 barrels. No question arises as to any of the cement so delivered.

Owing (as stated by the engineer in charge) "to the inadequate railroad facilities, high freight rates and difficulty in getting materials from railroad to lock site," it was found economical and advantageous to the Government "to handle the greater part of the materials required for the work from New Orleans to the lock site by leased boat and barges" and "by mutual agreement between the United States, Fritz Jancke (Inc.), and the Southern Pacific Railroad & Steamship Co., it was agreed that the deliveries would be made direct from the ship to barge alongside," instead of "f. o. b. wharves at New Orleans."

No change in price or other terms and conditions of the contract was involved in this agreement.

By order dated September 12, 1912, Fritz Jancke (Inc.) was requested to deliver 2,500 additional barrels, this delivery, like most of the others, to be made at New Orleans, "f. o. b. barge alongside " instead of "f. o. b. wharves" as covered by the formal contract.

For use in receiving and transporting this cement the Government leased, at $10 per day, E. A. Pharr's barge," the Glenwild," a barge, it is stated, that was 32 by 135 by 6 feet in dimensions and capable of carrying upward of 300 tons cargo. The Glenwild had recently been overhauled and is stated to have been in good repair.

On October 12, 1912, the Pacific Steamship Co.'s steamer El Paso arrived at New Orleans with a cargo of 16,000 sacks of cement, 10,000 sacks (2,500 barrels, about) of which were intended for delivery under the contract above noted. Fritz Jancke (Inc.) notified the Engineer officer to this effect and requested that the barge Glenwild be placed alongside the El Paso for receiving the same, which was done at 9.30 o'clock a. m., on October 12, 1912.

Loading of said cement from the El Paso on to the Glenwild was commenced during the day, the engineer apparently not being present. The further facts are stated by the engineer in charge as follows:

"8. When I returned to the wharf about 11.30 p. m., I asked the stevedore in charge how the loading was progressing and he said. they were getting along fine and would complete the loading in about an hour and a half or two hours. I then passed through the ship to the barge. The bow was downstream and the forward end was loaded. The cement was being loaded near the after end, the only space left on the barge to be filled. The barge was listed toward the ship so that the water was coming in on the deck through one of the scupper holes. (There was a 6-inch by 8-inch combing around the barge.) The other side was out about two and one-half feet. I immediately sent for the stevedore and called his attention to the fact that the barge was badly listed and that the water was running under the cement and also asked him to send a man into the hold to see if the barge was leaking. He reported there was

only 2 inches of water in the barge. There was no strain on the hog chains. Men were placed immediately to trim the barge and the loading was continued aft, as it was thought as the bow was down that this would distribute the fore and aft load better and lessen the tendency to buckle the barge. I then went to the other barge lying just astern of the El Paso. One of the deckhands from the steamer J. N. Pharr returned shortly from the Glenwild and reported 6 to 8 inches of water. The Pharr was ordered to go and siphon the Glenwild. When the searchlight was thrown on the Glenwild the hog chains could be seen lying on the roof. When I reached the barge it was listed to the starboard as badly as it had been the other way and there was about 16 inches of water in the after hatch where the siphon was placed. The stevedore was aboard and sent for some oakum to stop the water running through the scupper holes on the starboard side. I stopped the loading and requested that the men be sent to distribute the load further out on each end to counteract the buckling. A man was stationed at the siphon and reported in the first five or ten minutes that the siphon gained 1 inches. There was about 30 inches in the bow and the timbers were cracking. On going aft I found the siphon was not gaining and asked the stevedore for a tug. The Pharr began blowing distress signals and the El Paso blew for the Southern Pacific tugs and also distress signals. The water in the hold began gaining rapidly on the siphon and the Pharr dropped back clear of the barge. The men distributing cement left the barge. As the Pharr backed away I passed through the port to the upperdeck of the ship and told the captain of the Pharr to come in on the bow and place. a siphon in the forward hatch. As the boat came to the barge and before they had lines out, the barge settled to the starboard and turned over away from the ship. Shortly afterwards the Southern Pacific tug came alongside and shoved the barge into the wharf just ahead of the steamship. This was the only tug that responded to the distress signals.

"9. There were 5,871 sacks reported to be on the barge when it turned over. The Southern Pacific were instructed to put on 6,000 sacks, and if not heavily loaded an additional 1,000 sacks would be divided between the two barges. This barge, if properly loaded, would have carried all of the 7,000 sacks, or 332 tons, with perfect safety.

"10. From the fact that when the water was on the deck there were only 2 inches of water in the hold it is evident the barge was in good condition and not even leaking in the upper seams. The hog chains were so badly buckled before she sank that they had torn the roof where the rods passed through, showing that the barge was heavily loaded in the middle. Under these conditions the bottom planks were strained until the butts opened up. This condition was verified by examination of the bottom after the barge turned over, as all the butts under the heavy load were open and the oakum out. It is believed that all the conditions before and after sinking show that the sinking was due entirely to carelessness on the part of the stevedore in charge of the loading, as even one not familiar with barges could have told from the condition of the hog chains that the load was not properly distributed."

All parties concerned appear to agree that the Glenwild was a good seaworthy barge, and that the sinking of said barge, with the consequent loss of the cement, etc., thereon, was due to improper placing of the cement loaded thereon, but it is a disputed question as to who was responsible for the manner in which said barge was loaded.

It appears to be a fact that all the work of loading said barge was done by stevedores in the employ of the steamship company, but they unite in asserting that the cement was placed as directed by the engineer in charge (the Government's representative), and that if said cement was improperly placed it was at his direction. This, the officer concerned denies, he asserting that the stevedores placed the cement without direction or supervision on his part, except that a short time before the barge sank he directed changes to be made in the stowing arrangements. After the Glenwild sank, 750 barrels of cement that had not been unloaded from the El Paso was delivered to and accepted by the Government.

The contractor claims pay, at contract rates, for the 5,871 sacks (1,467 barrels) lost by the sinking of the barge. It is not denied that 1,467 barrels had in fact been placed on said barge before it sank, and if it is a fact that the delivery of cement on said barge ended the contractor's responsibility with reference thereto it is clear that the contractor is entitled to pay, at contract rates, for the cement so delivered. The only question, in this connection, to be decided is whether cement placed on the Government's barge was "delivered " within the meaning of the contract.

It is to be regretted that the verbal modification of the written. contract was not reduced to writing, as required by law, and it may be remarked that officers of the Government who sanction or permit variation from what the law requires always run the risk of subjecting the Government to claims which they may not approve; a verbal contract generally results in leaving to conjecture some matters that ought to be of record.

On all the facts of the case I am obliged to hold that the cement lost by the sinking of the barge was "delivered" to the Government. The written contract provided for delivery "f. o. b. wharves," and it seems to be agreed that the verbal modification of this contract went no further than to substitute "barge" for "wharves." One delivering "f. o. b. wharves" would not be expected to cart the consignment away from the wharves or do more than land it thereon. subject to the dominion of the consignee, and one delivering "f. o. b. barge alongside" likewise would be expected or could be required to do no more than place it on the barge, leaving it for the owner or person in charge of the barge to stow the materials thereon as he saw fit. When the steamship company, therefore, placed the cement

here in question on board the Glenwild its duties as agent of Jancke (Inc.) came to an end, and any services rendered by it, if any were rendered, in stowing the cement properly on said barge, were rendered to the Government and as the Government's agent, and not for the contractor or as his agent. The cement was delivered within the meaning and terms of the contract, when it was safely landed on the barge. The contractor will therefore be allowed pay, at contract rates, for the 1,4673 barrels of cement delivered to the Government and later lost by the sinking of said barge, to wit-1,4673 barrels at $1.69 per barrel, or $2,480.49.

The contractor, as indicated, had been ordered to deliver 2,500 barrels, and had he done so the contract would have been completed. He delivered 1,4673 barrels, that were lost, and 750 barrels additional after the sinking of the Glenwild, or 2,217 barrels in all, leaving 282 barrels due to complete the contract.

However, the Engineer officer did not recognize the 1,467 barrels above noted as having been "delivered," and he requested the contractor to deliver that quantity (plus the deficiency) to replace the cement lost. This the contractor declined to do unless allowed an additional price per barrel-19 cents. (See letter of Oct. 14, 1912.) What answer was made to this offer is not disclosed by the record, but the fact that the 1,4673 barrels was later delivered to and accepted by the Government indicates sufficiently, I think, that the offer was accepted subject only to a later determination as to whether such delivery was a delivery "under" or "outside" of the contract of July 7, 1911. That such are the facts of the case is also indicated by the report of the engineer, dated March 7, 1913, and it is conceded that if the 1,467 barrels lost by the sinking of the barge were delivered to the Government before being lost, then the later delivery of cement to replace the same was a delivery outside the contract, for which the contractor is entitled to be paid on a noncontract basis.

As already indicated, the 1,467 barrels were delivered, and such delivery, with the 750 barrels also delivered, lacked but 2821 barrels of completing the contract-i. e., of being the 2,500 barrels ordered to complete contract. On October 15, 1912, the contractor delivered 1,736 additional barrels, only 282 barrels of which were necessary to complete the contract, leaving the remainder, 1,4533 barrels, as a delivery "outside" the contract, for which the extra price of 19 cents per barrel was, contingent on the conclusions being made that are now made, to be paid. For this lot, 1,4533 barrels, the contractor is entitled to the extra price claimed, to wit, 1,4533 barrels at 19 cents per barrel, or $276.21.

On this revision claimant will be allowed $2,756.70 of the amount claimed.

42853° -VOL 20-14-35