the auditor on July 20, 1913. It seems to have required the same length of time to settle an account covering a period of 16 days as one covering a full quarter of 91 days.

Article 4921 (2) of Naval Instructions, 1913, provides:

"Such accounts, with necessary vouchers, etc., shall be mailed or otherwise sent to the Auditor for the Navy Department within 20 days after the period to which they relate."

Article 4922 (3) provides:

"The time prescribed for the rendition of final returns and accounts begins from the date of arriving at their domiciles, provided there be no unnecessary delay in so arriving, a certificate of which date must be filed with returns and accounts.

These instructions limit the time allowed for settling final accounts to 20 days after the pay officer arrives at his domicile. It does not authorize him to take 20 days to make the settlement unless it is necessary.

It is a self-evident fact that if an account covering 91 days can be settled in 20 days that it should take less time to settle an account covering 16 days, and I am unable to see why a competent pay officer or clerk would require the full 20 days to make such settlement.

Under the orders of May 9, 1913, supra, the appellant's appointment as a pay clerk was to be revoked upon his arrival home, and he ceased to be a pay clerk on September 18, 1913, the date he arrived at his home. In order for him to assist the pay officer in the settlement of his accounts and receive compensation therefor proper orders must have been issued to him appointing him a paymaster's clerk for this duty. No such orders were issued. The order of November 11, 1913, intended to modify his orders of May 9, 1913, can not confer any rights on the appellant. It is retroactive, having been issued after the alleged service was completed. He could not thus be returned to the service after separation therefrom. He was neither a de jure nor a de facto officer at any time after September 18, 1913, and hence is not entitled to pay or other allowances after that date.

As a further reason why this claim should not be allowed it will be seen that the pay officer and clerk were not detached until July 28, 1913, while the transfers of funds and property were made on July 16, 1913. The intervening time between the 16th and 28th should have been used for the purpose of settling his accounts. Furthermore the appellant was delayed at Manila from August 3 to August 17, awaiting the sailing of a transport. The returns were in the possession of the clerk and not the pay officer, as he states be began settling same on September 19, 1913, while the pay officer did not reach his home until September 27, 1913.

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I can not approve the practice, evidenced by the facts of this case, of allowing navy pay officers and their clerks 20 days to settle final accounts, regardless of the work involved, the pay officer receiving commutation of quarters and the pay clerk receiving pay and commutation of quarters for the full 20 days. Only the time actually necessary, not exceeding 20 days, should be allowed, and the pay officer and his clerk should be required to show that they were actually engaged in settling accounts during the period for which pay and commutation of quarters is claimed. The certificate required at present only shows the date settlement was completed.

INTEREST ON UNITED STATES COURT JUDGMENTS.

Interest is not to be computed or allowed on the costs included in the amount of judgment rendered by a United States court under the act of March 3, 1887 (24 Stat., 505).

Comptroller Downey to the Secretary of the Treasury, February 11, 1914:

By reference of the Assistant Secretary of the Treasury, of February 4, 1914, I received on the 5th instant for reexamination certificate of the Auditor for the Treasury Department No. 21681, dated January 28, 1914, in which the auditor certified the sum of $622.52 to be due to Walter Penn Shipley, surviving executor of the estate of Thomas P. Cope.

In the auditor's said certificate, payment to be made is indicated as follows:

"Payable from the appropriation for Judgments United States courts, Treasury,' deficiency act of August 26, 1912 (see S. Doc. No. 926, 62d Cong., 2d sess.).”

Said act of August 26, 1912 (37 Stat., 295, 617), provides:

"For payment of the final judgments and decrees, including costs of suit, which have been rendered under the provisions of the act of March third, eighteen hundred and eighty-seven, entitled 'An act to provide for the bringing of suits against the Government of the United States' certified to Congress at its present session by the Attorney General in House Document numbered seven hundred and seventy-four and Senate Document numbered nine hundred and twenty-six, and which have not been appealed, namely: "Under Treasury Department, $972.35.

(6 * * *

together with such additional sum as may be necessary to pay interest on the respective judgments at the rate of four per centum per annum from the date thereof until the time this appropriation is made: Provided, That none of the judgments herein provided for shall be paid until the right of appeal shall have expired."

In said House Document No. 774 the Secretary of the Treasury, transmits to the Speaker of the House lists of judgments rendered against the United States under the act of March 3, 1887 (24 Stat., 505, usually called the Tucker Act), submitted by the Attorney General for appropriations as follows:

"Under Treasury Department, $393.12."

And in said Senate Document No. 926 the Secretary of the Treasury transmits lists in like manner to the President of the Senate as follows:

The $579.23, due Walter Penn Shipley, as submitted by the Attorney General to the Secretary of the Treasury, July 9, 1912 (S. Doc. 926), is divided as follows: Judgment $562.78, costs $16.45, and these figures agree with certified copy of the decree of the court, filed with the claim.

In the settlement the auditor treated the whole amount of the judgment, $579.23, as an entirety and computed and allowed interest thereon at 4 per cent per annum from October 13, 1910, date of judgment, to August 26, 1912, date of appropriation act.

Unless for some reason costs of suit are made chargeable with interest by specific provision of contract, law, or decree of court, they are not so chargeable. The Government is only chargeable with interest when so provided by contract or law.

The closing sentence of section 10, act of March 3, 1887, supra, provides:

"From the date of such final judgment or decree interest shall be computed thereon, at the rate of 4 per centum per annum, until the time when an appropriation is made for the payment of the judgment or decree."

The language of the appropriation act of August 26, 1912, supra: "For payment of the final judgments and decrees, including costs of suit which have been rendered, * * *together with such additional sum as may be necessary to pay interest on the respective judgments," etc.

Taken in connection with the provision quoted, supra, from section 10 of the act of March 3, 1887, would appear to give some sanction to the action of the auditor in allowing interest on the whole amount, $579.23, including costs adjudged and decreed to be due to Walter Penn Shipley, surviving executor, etc., and so appropriated.

I think, however, the restrictive words in the appropriation act, "certified by the Attorney General," defining the judgments and decrees appropriated for, are to be given their full force of limitation, and these words would appear to make the amount of judgment, $563.78, subject to interest, and the separate amount, $16.45, costs, not subject to interest, under the general rule that the amount of debt or claim sued for and allowed on judgment draws interest from date of judgment, but the costs, although fixed and determined by the decree of the court, are not subject to interest charge. (See 8 Comp. Dec., 774, 776; Appeal 21887.)

DELIVERY AND ACCEPTANCE OF COAL OF AN INFERIOR GRADE.

When a contractor, instead of delivering the kind of coal agreed, delivers coal which by the test of actual use is 5.2 per cent less efficient than the coal to be delivered, he is not entitled to pay at contract rates for such coal but is to be paid the agreed price, less the damages occasioned by his failure to deliver the kind of coal agreed.

Comptroller Downey to J. M. Griffin, disbursing agent, Coast and Geodetic Survey, February 12, 1914:

I am in receipt of your letter of the 9th instant requesting my decision as to whether you are authorized to pay the full contract price for 400 tons of coal furnished by the Alaska Coast Co., as per voucher submitted, or, if not, as to the proper deduction to make from said contract price because of the inferior quality of the coal delivered.

The facts which occasion your doubt as to the propriety of the payment proposed, as I gather them from the papers and correspondence submitted by you, are as follows:

In the winter of 1912-13, plans were made for sending the steamer Explorer to the Kuskokwim River, Alaska region, to make surveys, and tenders were invited from various firms for keeping said vessel supplied with the necessary coal for the surveying season, i. e., 400 tons of best grade steaming coal. Bids were received from different firms, and, after considerable verbal negotiations, award was finally made to the Alaska Coast Co., the final agreement of the parties evidenced by letter of the commanding officer of the Explorer, dated March 11, 1913, which, as to said coal, was as follows:

"1. The delivery of four hundred (400) tons of Wellington or Comax (best grade) coal in sacks of approximately 150 pounds; to be landed on beach at Goodnews Bay above the high water mark, at a price of twenty-one dollars ($21) per ton of 2,240 pounds; this sum to include both the cost of the coal and the freight on it."

This letter was indorsed as follows:

"Terms and conditions as per above accepted.

"ALASKA COAST CO., "R. M. SEMMES."

At the time this contract was made and for some time previous there was and had been a strike in the mine from which both "Wellington" and "Comax" coal is mined, and it now appears that the Alaska Coast Co. did not have in mind the furnishing of either of these brands of coal, but did intend to furnish coal from another British Columbia mine, the "Jinglepot," which was of but slightly inferior grade to those specified.

On the eve of the sailing of the Explorer, too late for other arrangements to be made and shortly after the making of the contract above indicated, there was also a strike of workmen in the "Jinglepot" mine, and the contractor advised the officers of the Explorer that it might be impossible to deliver British Columbia coal, best grade, as agreed. The Explorer sailed without any definite understanding being had as to what kind of coal would be delivered by the contractor, or at least there is a conflict of opinion as to what the understanding was, but it is agreed that the contractor expressed a willingness to accept a reduced price for any inferior coal it might deliver.

Thereafter, the contractor, instead of delivering either "Wellington" or "Comax" or "Jinglepot" coal (all good grades of British Columbia coal), delivered 400 tons of an inferior Washington-mined ("Carbonada") coal, which by actual test of use proved to be 5.2 per cent less efficient than "Wellington" coal, and still less as compared with "Comax" coal. Because of this lack of efficiency the Explorer required and used additional coal costing $406.20.

On such facts I am asked to decide as to what price should be allowed and paid for the 400 tons of coal actually delivered by the Alaska Coast Co.

It is manifest that the delivery of 400 tons of inferior "Carbonada" coal was not in accordance with the undertaking to deliver a like quantity of "Wellington" or "Comax" coal, best grade, and the fact that the nondelivery of the coal agreed to be furnished was due to a strike, if such be the fact, does not relieve the contractor from a liability for the damages, if any, caused by its breach of agreement. (Peabody v. United States, 45 C. Cls., 532.)

I do not think it very material whether the inferior coal actually delivered be considered as a delivery "under" or "outside" the contract as made by the parties, for, in either event, the difference in value between the coal actually delivered and the coal that should have been delivered is the measure of damages occasioned the Government by the contractor's failure to deliver the coal agreed.