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definitely describing the condition of shipment in accordance with the law and decisions as they are at the present time, should be used.

All decisions in conflict with the views herein expressed are hereby overruled.

This snipment under consideration, in accordance with the usage set forth above, should be paid for at the class A rate less proper deduction on account of land grant.

“OPEN-MARKET” PURCHASES FROM DELINQUENT CONTRACTOR AND FROM

OTHERS.

The excess cost of coal, whether bought from the delinquent contractor or from

others—that is, bought because of the contractor's failure to deliver coal as and when agreed-is the measure of damages caused by the contractor's failure to perform his contract.

Decision by Comptroller Downey, February 28, 1914:

The Cash Coal, Wood & Ice Co., W. T. Swain, proprietor, requested February 24, 1914, a revision of the action of the Auditor for the Treasury Department in disallowing, per certificate (M. S. and C.) No. 36697, dated January 31, 1914, its claim for $113.81, a balance alleged to be due it for coal delivered to the Life-Saving Service under proposal accepted August 14, 1912.

Under said contract the Cash Coal, Wood & Ice Co. has delivered coal to different stations of the Life-Saving Service worth $633, at contract rates, none of which, at the date of the auditor's settlement, had been paid for. By the settlement appealed from, the auditor allowed claimant $519.19 and disallowed claim for the balance alleged to be due, $113.81, for reasons stated as follows:

“ The difference represents the excess cost of coal purchased in open market on account of your failure to make deliveries of coal within the time stipulated under your contract dated August 6, 1912.

“Payments made for coal purchased in the open market are as follows: 10 tons for Muskeget Station : Paid Cash Coal, Wood & Ice Co., this set

tlement, at $10 per ton, or $100; paid Manuel Silvia for delivery of this coal, $40; total, $140; contract price, $10.25 per ton delivered, or $102.50. Excess.

$37. 50 tons for Maddakeet Station : Paid John Killen & Son, Feb. 5, 1913, for coal delivered Jan. 5, 1913, at $13.05 per ton, or $65.25; contract price, $9.25 delivered, or $46.25. Excess.

19.00 6 tons for Surfside Station : Paid John Killen & Son, Feb. 5, 1913, for

coal delivered Jan. 4, 1913, at $12.70 per ton, or $76.20; contract price, $9 delivered, or $54. Excess

22. 20 9 tons for Coskata Station : Paid Cash Coal, Wood & Ice Co., Apr. 29,

1913, for coal delivered Jan. 7, 1913, at $14 per ton, or $126; contract price, $10.25 delivered, or $92.25. Excess

33. 75 2,480 pounds for Coskata Station : Paid John Killen & Son, Feb. 10,

1913, for coal delivered Jan. 7, 1913, at $11.45 per ton, or $12.71; contract price, $10.25 delivered, or $11.35. Excess.

1. 36

Total excess.

113. 81

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“The difference, or $113.81, is hereby disallowed under decision of the Comptroller of the Treasury, dated March 21, 1913 (64 MS. Comp. Dec., 1402).”

The material facts of the case presented are as follows:

By circular dated August 5, 1912, the superintendent of the second life-saving district invited bids for the furnishing of certain designated quantities of coal to the several life-saving stations in said districts, the coal in each case to “be delivered in the bins at the stations, free of extra expense to the Government, by September 1, 1912, or as soon thereafter as may be required."

By proposal dated August 6, 1912, the Cash Coal, Wood & Ice Co. offered to furnish the Coskata, Surfside, Maddequet, and Muskeget stations, respectively, with 14, 12, 10, and 16 tons of white-ash anthracite, stove-size coal, at $10.25, $9, $9.25, and $10.25 per ton, respectively, delivered in accord with the specification requirements, and this proposal was duly accepted under date of August 14, 1912.

The coal thus contracted for was not delivered " by September 1, 1912," or, it appears, “as soon thereafter” as was required, and up to December 1, 1912, the contractor had not delivered the coal urgently needed by the different stations for winter supply. The contractor claims to have offered to deliver “ nut-size” coal, but as that was not the kind of coal wanted or contracted for, the several keepers declined to accept such coal.

On December 26, 1912, the superintendent having been authorized to make an “open-market” purchase of coal to meet immediate needs, found that the regular contractor had stove-size coal on hand, but was unable or unwilling immediately to deliver the same under his contract, and thereupon he bought, by “open-market purchase," 10 tons for the Muskeget station, at $10 per ton, delivery at Nantucket (home of contractor), and hired one Manuel Sylvia to deliver the same to Muskeget station at an additional cost of $4 per ton, thus making this coal cost $14 per ton, whereas the same should have cost but $10.25 per ton, delivered, under the contract in force and unperformed at the time.

At the same time 9 tons were bought from the same contractor for delivery to the Coskata station, at $14 per ton, delivered. This coal, too, could have been required to be delivered at $10.25 per ton, or for $3.75 less than was paid.

Other purchases, from another dealer, to supply immediate needs, were made later, as indicated in the auditor's statement, supra, in each case, a higher price being paid than called for by the contract for like delivery.

Then, from the contract price of other coal delivered in part before but mostly after the purchases noted were made, the auditor deducted and disallowed the excess cost of all coal bought, because

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of the failure of the contractor to deliver coal as and when agreed, as the damages occasioned the Government by the contractor's failure to deliver.

Quite evidently, the only occasion or necessity for the “openmarket” purchase of 19 tons of coal, at increased prices, from the regular contractor on December 26, 1912, was due to the fact that said contractor did not then want to comply with his contract. If said contractor, for an increased price, was able to furnish coal of the contract kind, he was able to furnish it under the contract as readily as under an open-market purchase.” The contractor claims to have been ready to deliver” at the time this coal was urgently needed, but the fact remains that, though long overdue, no attempt was made to do so, leaving it to the Government to get its coal, then urgently needed, delivered as best it could. Any increased costs or charges fairly incurred by reason of the failure of the contractor to deliver the coal agreed in the manner and time stipulated constitute the damages occasioned the Government by the contractor's failure to deliver the coal himself as and when agreed, and for the same the contractor is liable.

No claim or pretense is made that the purchases that were made by reason of the contractor's default were of any different grade of coal from that covered by the contract, or that due regard was not had throughout for the interests of the delinquent, and from the facts appearing it seems clear that the United States has actually expended $113.81 over and above what it would have expended on like account had this contractor kept its agreement. In other words, it was actually and unavoidably damaged to the extent of $113.81 by the delinquency of said contractor, and this sum was properly withheld from money otherwise due the contractor.

RESTRICTION ON PAYMENT OF JUDGMENTS.

A judgment can not be paid until the right of appeal shall have expired, and a

waiver by the parties of the right of appeal can not authorize the payment because of the express condition upon the appropriation.

Decision by Comptroller Downey, February 28, 1914:

The Auditor for the War Department has submitted for approval, disapproval, or modification a decision made by him February 21, 1914, relative to the prohibition in an appropriation for the payment of certain judgments, that none of such judgments shall be paid“ until the right of appeal shall have expired."

The auditor's decision is as follows: “There has been presented to this office a claim for the payment of a judgment rendered by the Court of Claims under date of Decem

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ber 2, 1912, in favor of Joseph Vernon Gearing, in the amount of $2,639.

In connection with this claim, the question is raised as to the right of this office to issue a certificate in payment of said judgment at this time. The amount of this judgment was reported by the Secretary of the Treasury to Congress in House Document No. 1378 (62d Cong., 3d sess.), and an appropriation made to pay the same in the deficiency act of March 4, 1913 (37 Stat., 933). This deficiency ect also provides (p. 934) as follows:

“None of the judgments contained in this act shall be paid until the right of appeal shall have expired.?

“The papers on file show that while the judgment of the Court of Claims was rendered in this case on December 2, 1912, during that term of the court a motion was made by the claimant for 'additional finding and for modification of findings of fact made; also for a new trial or additional allowance.'

“This motion for a new trial was finally decided by the Court of Claims on February 9, 1914, the motion of the claimant being overruled.

“ The Court of Claims, in the case of William C. Murdock v. The District of Columbia (23 C. Cls., 41), decided that a motion for a new trial suspended finality of a judgment, and consequently the right of appeal during the pendency of such motion.

* Paragraph 1 of the syllabus of that decision reads as follows:

"A motion for a new trial suspends the finality of a judgment, leaving it in the control of the court, and suspends the running of the time within which to file an appeal.'

“ The Solicitor of the Treasury, in an opinion addressed to the Secretary of the Treasury under date of June 2, 1913, having under consideration a similar case to that now presented to this office, held that the right of appeal existed for three months after the final determination by the Court of Claims of the claimant's motion for a new trial, and that the judgment of the Court of Claims could not be paid by the Secretary of the Treasury during the period in which the right of appeal existed.

“In the case now presented to this office, it appears that the Department of Justice have indicated that they have no intention of appealing this case to the Supreme Court, and the claimant is willing to waive any right of appeal which he may have. Therefore, the

. question which is raised is whether the act above quoted, limiting the time within which the payment may be made, is mandatory or only directory. The form in which the statement is made, that none of the judgments contained in this act shall be paid until the right of appeal shall have expired, appears to be mandatory; and hence the accounting officers would not be authorized to accept a waiver of the claimant or a statement from the Department of Justice as to what their present intention with regard to an appeal may be.

"The Attorney General would have the right at any time within three months from the date of final determination in this case to appeal to the Supreme Court, if such action should be considered necessary by him.

“In view of the foregoing, I am of the opinion, and so decide, that the limitation found in the deficiency act of March 4, 1913 (37 Stat., 934), prohibits the payment of judgments of this kind until three months after the date of final determination of the motion for a new trial by the Court of Claims."

The court rendered its judgment in favor of claimant for $2,639 on December 2, 1912. On December 13, 1912, his attorney notified the Secretary of the Treasury they had “waived the right to file motion for a new trial or appeal”; and on the same date the Attorney General also notified the Secretary “ that there will be no appeal taken in this case, and the judgment may be certified for appropriation.”

The appropriation for the judgment was made March 4, 1913, with the restriction on payment that the right of appeal should have expired.

Section 243 of the act of March 3, 1911 (36 Stat., 1157), and section 708 of the Revised Statutes provide that appeals from the Court of Claims shall be taken within 90 days after the judgment is rendered.

As to the judgment of December 2, 1912, the 90 days ended March 3, 1913, and when the appropriation was made, March 4, the right of appeal had expired. Under the rules of the court, however, a motion for a new trial may be made at the term in which the judgment was rendered, and the claimant did so in this case April 5, 1913. The effect was to suspend the finality of the judgment of December 2, 1912, and continue the case within the jurisdiction of the court. If the motion is allowed, it vacates the judgment, and if the motion is overruled it restores the judgment as the final order of the court. (McKay's case, 30 C. Cls., 1, citing Murdock's case, 23 Id., 43.)

It is apparent that no payment could have been made under the appropriation while the motion for a new trial was undisposed of, and thereafter, when the motion was overruled February 9, 1914, it was no longer a question of appeal from the judgment of December 2, 1912. The prior judgment and the overruling of the motion were merged with respect to an appeal so as to preclude payment until the right of appeal shall have expired within 90 days after February 9, 1914.

So, too, it being an express condition upon the appropriation that the payment shall not be made until the right of appeal shall have expired, a waiver by the parties of the right of appeal can not authorize the payment.

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