The court then holds that to permit the clerk of the appellate court to continue to charge the fee in question would be subversive of the purposes of the statute and a continuance of the system which the act was designed to change.

This decision is conclusive against the right of clerks of circuit courts of appeals to charge and collect this fee. It may also be accepted as a final determination of the lawful and proper method of preparing the record to be sent up on appeal or writ of error. It does not follow, however, that in the case now before me the clerk must be denied his fees for this typewritten transcript made in good faith under a rule of court in force at the time it was made.

In Letcher's case I held that the clerk was protected by the rule, citing United States v. Van Duzee (140 U. S., 169, 176), in which the court says:

"When the clerk performs a service in obedience to an order of the court, he is as much entitled to compensation as if he were able to put his finger upon a particular clause of a statute authorizing compensation for such service."

When this clerk received the præcipe or stipulation calling for this typewritten transcript it was his duty under the rule to prepare it, and he is entitled to the statutory fee for this service. It was not for him to question the legality of this form of transcript. If error was made it was the error of the Government's attorney who filed the præcipe or stipulation. The Government can not now evade payment of the clerk's lawful fees for the transcript on the ground that the service which it itself requested was not in accordance with the statute.

The fees charged are in accordance with the clerk's fee bill. The auditor's allowance of the item was proper under the rule and is therefore affirmed on revision.

CLAIMS OF AN UNLIQUIDATED CHARACTER.

Executive officers of the Government are not authorized to adjust and settle claims for unliquidated damages.

Where supplies have been delivered to and used by the Government without agreement as to the price, a claim for the value thereof, though of an unliquidated character, may be liquidated by agreement of the parties as to what was the reasonable value of the article and when so liquidated may be allowed and paid.

Comptroller Downey to the Postmaster General, March 23, 1914:

I am in receipt of your letter of the 18th instant, requesting my decision of certain questions therein stated as follows:

"In 1910 the American Bank Note Co., of New York, N. Y., submitted to this department a proposal to furnish postal savings cer

tificates at stipulated prices on the understanding that at least 25,000,000 certificates (original) will be ordered in one year.' The department ordered only 11,000,000 certificates and the American Bank Note Co. has filed a claim of $11,000 for additional compensation on account of the failure of the department to order the 14,000,000 additional certificates. In an opinion dated March 18 the Assistant Attorney General for this department held that the claim is for unliquidated damages, and that neither the executive nor accounting officers of the United States have jurisdiction to settle the claim, and that therefore the American Bank Note Co. should resort to the Court of Claims.

"The American Bank Note Co. has also filed a claim for $2,428.45 for 12,000 certificates furnished to the department on a verbal order, a written order dated February 4, 1913, being given after the certificates had been received. The department was not aware of the price of such certificates until the receipt of the company's bill of March 20, 1913. In the opinion of the Assistant Attorney General for this department, heretofore referred to, it was held that while no express contract for these certificates existed inasmuch as the certificates had actually been furnished to the department and used in the postal service, if the department and the company can mutually agree upon the actual and fair value of the articles furnished to and used by the Government, the claim when so liquidated may be certified to the accounting officers for settlement, but that if such an agreement can not be reached payment should be refused and the company left to its recourse in the courts.

"The Assistant Attorney General suggested, however, that the inquiries come more properly within your jurisdiction, and I transmit herewith the opinion of that officer in which the facts are fully stated, with the request that you give me your opinion as to whether either or both of these claims should be allowed or disallowed."

By letter dated September 24, 1910, the American Bank Note Co. submitted a bid for furnishing certificates of the Postal Savings System, in accordance with certain specifications, at stated prices per 1,000 (varying according as different grades of paper should be required) but stating:

"The price quoted is on the understanding that at least 25,000,000 certificates (original) will be ordered in one year."

As far as appears, this bid was in response to private solicitation, and no other bids were invited or received. Said bid was not formally accepted and no formal contract was made with said company, but by letter of October 26, 1910, Mr. Weed, acting for the Postmaster General, "with reference to your letter of the 24th ultimo, in which you quote prices," wrote said company ordering 1,000,000 certificates at $4.30 per M, the lowest price named in its bid. Thereafter 10,000,000 additional (11,000,000 in all) certificates were ordered as needed, furnished by said company, and paid for by the Postmaster General at the prices named in said bid.

No more than 11,000,000 certificates having been ordered from said company" within one year," and considering itself damaged by having furnished that number of certificates at prices predicated on furnishing a minimum of 25,000,000 certificates, it presented, November 25, 1912, a claim for pay for the certificates actually furnished at a rate very largely in excess of any rate mentioned in its bid, which claim by successive reductions has been reduced to its present form, $11,000, of $1,000 bonus, or increased price, for each 1,000,000 certificates actually furnished.

The only basis or theory for such a claim is, I take it, that the Government breached its actual or implied contract to order 25,000,000 certificates or more within one year, for which breach of contract the bank note company is entitled to damages.

Without deciding whether there was any contract in the first instance, or whether the Government failed to live up to it if there was a contract, it is evident that there was nothing in the negotiations or correspondence of the parties that would or does fix any basis whatever for arriving at the damages sustained, if damages were sustained, through the Government's failure to order the full quantity expected, and whatever claim the bank note company has on such account, if any legal claim it has, is in its essence purely a claim for unliquidated damages. I concur entirely with views expressed by the Assistant Attorney General referred to by you in this connection, and you are advised that the claim is one you are not authorized to settle or allow. (Cramp & Sons Co. v. United States, 216 U. S., 494.)

The same company also submits a claim for $2,428.45 for printing and delivering 12,000 special certificates, for experimental purposes, which early in 1913 were, without advertising as required by law except in case of exigency, and without any understanding as to the price, verbally ordered of said company-the first knowledge of the department as to the price that would be asked being obtained from said company's bill or invoice received March 20, 1913, after the certificates had been delivered and used.

The price claimed for said 12,000 certificates ($2,428.45, or more than 20 cents each) is considered highly excessive, and you ask as to what price should be allowed therefor, if any, or whether settlement therefor on any basis is authorized.

There was no contract fixing a basis of payment for the certificates in question, but the certificates having been furnished by the bank note company upon the request of an officer of the Government with prima facie authority to order them, and the same having been accepted and used by the Government, said company is entitled to be paid therefor, not necessarily in accordance with its claim, but in

accord with what is found to be reasonable and proper. In accepting and using the certificates in question, the Government impliedly agreed to pay the fair and reasonable value thereof, and it is bound to pay no more.

What is to be considered as the fair and reasonable value of the certificates in question, I, of course, am in no position to determine. That is a question the answer to which depends on a number of things, such as the quantity and quality of materials used, value of labor employed, etc., in the making of said certificates. As the matter now stands, the claim is purely an unliquidated claim, not for damages but for value. If you can mutually agree upon the value of the certificates in question, such agreement will constitute a liquidation of the claim, and the sum agreed upon by the parties in interest as the fair and reasonable value of said certificates may properly be allowed and paid. Unless the price to be allowed can be agreed upon as indicated, claimant should be left to assert whatever rights it may have before the courts. (6 Comp. Dec., 648; 12 id., 366, 45 MS. Comp. Dec., 2635, June 30, 1908; United States v. Corliss Steam Engr. Co., 91 U. S., 321.)

COMMUTATION OF QUARTERS IN ARMY TRANSPORT SERVICE.

The allowances of an officer of the Army should be determined by the actual duty performed, and where it is apparent that an order has been so worded as to give an officer an allowance to which he would not otherwise have been entitled the accounting officers are not required to accept the order as the best evidence as to the duty performed.

Decision by Comptroller Downey, March 23, 1914:

Eli E. Bennett, first lieutenant, Coast Artillery Corps, filed on March 12, 1914, application for revision of the action of the Auditor for the War Department in his certificate dated February 10, 1914, disallowing claim No. 520932 for $7.20, refunded by Lieut. Bennett as commutation for quarters paid him from February 25 to 28, 1913, disallowed by the auditor for reason stated as follows:

"Having been detailed in the Army transport service and assigned to duty on the transport Meade, on which he received quarters in kind, he was not entitled to commutation therefor; hence the deduction was a proper one."

By paragraph 31, Special Orders of the War Department, No. 43, dated February 20, 1913, Lieut. Bennett was relieved from assignment to the One hundred and sixty-second Company, Coast Artillery Corps, placed on the unassigned list, and directed to proceed to Galveston, Tex., for duty on the transport Meade.

In his application for revision, Lieut. Bennett shows that he arrived at Galveston February 25, but that the transport Meade did

not arrive there until March 5, 1913. He could not, therefore, have "received quarters in kind" on that transport within the period in question, as alleged by the auditor as reason for disallowance. While the facts disclosed nullify the reason for disallowance given by the auditor, I do not think they are material to the issue or decision in the case.

In said paragraph 31, Special Orders No. 43, there is nothing indicating the purpose, intent, or contemplation that Lieut. Bennett should take station at Galveston, but only that he should proceed there for duty on the transport Meade, to which he was assigned.

So far as indicated in the said order or any evidence presented, Galveston was merely a convenient port for boarding the transport Meade for duty thereon.

Although by paragraph 6, Special Orders No. 69, dated March 25, 1913, said paragraph 31, Special Orders No. 43, of February 20, 1913, supra, was so amended as to require Lieut. Bennett, detailed in the Army transport service, to proceed to Galveston, Tex., “take station at that place, and report in person to the depot quartermaster in charge of the Army transport service at that place for assignment to duty accordingly," there is nothing in such amendment, or in any evidence presented in the case to indicate any change in the character or nature of Lieut. Bennett's duties, or to indicate that the purposes of the transport service would be subserved by the officer's "taking station " at Galveston or any other sea port.

But whatever the effect of the amendment subsequent to its date it can not properly be construed to have a retroactive force to affect the status of the officers named therein prior to its date, March 25,

1913.

This case is similar to that of Capt. Basil O. Lenoir, who was assigned to duty in the Army transport service as quartermaster and commissary of the cableship Burnside, "with station at Seattle," by Special Orders No. 239, of October 10, 1911.

In decision of January 24, 1914 (MS. Comp. Dec., vol. 68, 529, 530), it was held:

"Capt. Lenoir was nominally given station at Seattle, Wash., but he was not assigned to duty at that place. His actual station was on the cableship Burnside, wherever it may have happened to be. He was furnished such quarters on the cableship as were suitable and

"Having been furnished with quarters on the cableship which were heated and lighted at the expense of the United States, I conclude that Capt. Lenoir is not entitled to any further allowance for commutation of quarters or for heat and light during the period in question

* ***

I think a similar rule should be applied in the case of Lieut. Bennett while in the transport service on duty on the transport Meade.