izing orders at any time, for any quantity of wire, the deductions, except for $13.20 excess over 10 per cent as noted, would appear to have been authorized by the contract terms.

But did this contract contemplate or require that the contractor fill all orders, no matter how large nor when given it, within 30 days from date of receipt of such orders?

The Navy Department impliedly admits that such was not the meaning of the contract, for it has allowed more than 30 days for the completion of all orders given the contractor before the expiration of the 60 working days allowed by the contract terms for the delivery of one-third of the contract materials, and if the contractor was entitled to more than 30 days for the completion of those orders, why was it not entitled to more than 30 days for the completion of other similar orders for quantities as large or larger? The contract provided for the delivery of all orders within 30 days; why any exception in favor of orders given prior to May 9, 1912?

We do not have to seek far for the answer. The answer evidently is that the Navy Department recognized the fact that it had no legal right to give any orders at all until after the 60 working days allowed for the delivery of one-third of the contract quantities. The contractor had agreed to deliver one-third of the contract quantities, and no more, within said 60 working days, i. e., by May 9, 1912, and in placing orders before that time the Government placed orders that were unauthorized. It could not require delivery of quantities so ordered "within 30 days" because the contractor had not agreed to deliver more than one-third of the contract articles within 60 working days, nor any other quantity within 30 days thereafter.

The orders so placed being in excess of deliveries which might be required if the contract terms were to be applied to such orders, and the presumption being that the officers placing the orders within that period knew the terms of the contract, it must be assumed that they were placed, not for delivery within 30 days thereafter, but that they were to be regarded as placed at the end of the first 60-day period for delivery within 30 days thereafter. The method of assessing damages sustains this view. If this, the seemingly only reasonable theory, is correct, the contractor was then being required to deliver 169,000 feet of wire within 30 days after the expiration of the 60-day period on May 9.

In advertising for bids, the time for delivery of one-third of the contract articles (about 53,000 feet of wire) was fixed at "45 days," but bidders were notified in that connection that "if unable to make delivery within time specified (they should) state actual number of days required." This contractor, in submitting its bid, fixed "60 working days" as the actual number of days it would require for the manufacture and delivery of such quantity. That would be and

was, it seems to me, full, ample, and sufficient notice that for the filling of any order, whenever given, approximating one-third of the estimated contract quantity, or about 53,000 feet of wire, it would require 60 working days for the manufacture and delivery thereof. If it would and did require 60 working days for the delivery of the first one-third of each item, how could it be supposed that one-half of that time would be sufficient for the delivery of three times that quantity? All the items of wire enumerated were to be specially manufactured in accordance with special specifications and were not of a kind that this or any other dealer carries in stock; the contractor had no assurance whatever that it would be asked or permitted to deliver any certain quantity of any item of the wire over and above the one-third (53,000 feet).

If the placing of the orders in advance of the date from which the 30 days was computed was intended as advance notice for the benefit of the contractor, it could be of no practical value, for the presumption is that no more than the first one-third could be manufactured within the 60-day period.

And here it may well be said that the "rule of reason" must be applied in the interpretation of the contract. The aggregate quantities specified were "estimated only" for the information of bidders, and it was stipulated that the contractor must furnish whatever might be needed during the year, but this did not require the contractor to furnish an absolutely unlimited quantity. The estimate as to quantity could be of no value as information to bidders. unless it was at least reasonably approximate. And so, though the contract in terms would have permitted the ordering of an unlimited quantity for delivery in 30 days, that provision must be regarded as requiring the delivery within 30 days of such reasonable quantity as might be ordered.

If 60 working days were reasonably required for the manufacture and delivery of one-third of the estimated quantities (about 53,000 feet of wire)—and the only definite quantity and time fixed by the contract had to do with this one-third-then, I am of the opinion that the manufacture and delivery of three times that quantity could not reasonably be required in 30 days.

The contract properly and not literally interpreted did not mean that any and all orders, no matter when given or for what quantities, should be delivered within 30 days from receipt thereof, but only that reasonable orders, reasonably given, in the light of all the circumstances, would be so delivered (19 Comp. Dec., 525, 719; 62 MS. Comp. Dec., 390, July 22, 1912; 20 Comp. Dec., 509).

Considering the number, rapidity, and extent of the orders given this contractor, and measuring the reasonableness thereof by the

time allowed as admittedly reasonable for the delivery of one-third of the estimated quantity, I am not able to refute the contractor's contention that all the orders referred to were filled within a reasonable time. If not entirely so, the fact that the basis of the charge for nondelivery must be held to be unreasonable and that I have no right arbitrarily to create a different basis therefor must lead to the same result. I am obliged to conclude that no deductions whatever should have been made for any delays that occurred with respect to such delivery. It was properly charged with damages for a slight delay with respect to the delivery of the first one-third ($4.95) and for delays in the delivery of the bell wire ($30.77), aggregating $35.72. Except for such items, all sums deducted on account of alleged delays will now be allowed, a total allowance under this contract of $525.65.

CONTRACT NO. 16666, DATED MARCH 4, 1912.

About the same contentions, based on a quite similar situation as to facts, are advanced under this contract. Its terms, except as to the materials, prices therefor, and time for delivery of one-third of the estimated quantities, were identical with the earlier contract, both as to damages for delay and extent of orders that might be given. It covered 10 items of various sized wire, all except the first of which was to be delivered one-third in 90 working days (the first item was to be delivered, 50,000 feet in 90 working days), and the balance "as may be required, etc.," within 30 days from receipt of order.

Item 1 called for an estimated quantity of 350,000 feet of wire; item 2, 30,000 feet; item 3, 25,000 feet; item 4, 1,000 feet; item 5, 15,000 feet; item 6, 5,000 feet; item 7, 15,000 feet; item 8, 1,000 feet; item 9, 1,000 feet; and item 10, for 10,000 feet; or 453,000 feet in all. In addition to 50,000 feet of item 1 and one-third of the remaining items to be delivered in 90 working days, orders were placed March 3, 1912 (one item of this order was for 250,000 feet of item 1), March 20, 1912, May 15, 1912, June 13, 1912, November 6, 1912, and December 24, 1912, for materials which made the total of most of the items very greatly exceed the total estimated quantities. The contractor actually delivered, for instance, 449,845 feet of item 1 (100,000 feet of this was ordered December 24, 1912), 65,580 feet of item 2, and so on. It delivered 600,053 feet in all, on orders for somewhat larger quantities.

The "90 working days" expired June 18, 1912. There were some delays in the delivery of the materials due for delivery on that date, but the Government being responsible for most of such delays, only $18.70 in damages were charged or deducted on such account. Ad

ditional orders given prior to that date were considered as due for delivery "30 days from June 18, 1912," and damages for delay were computed and deducted on that basis. The total of damages deducted on such account amounted to $581.47.

I need not further recapitulate or recite the facts of this case. If the orders given this contractor under the contract first noted were unreasonable, must not the same conclusion be applied to the orders here in question? Of item 1, 50,000 feet was the quantity which it was agreed could reasonably be manufactured and delivered in 90 working days, and the contract was made accordingly. And yet, the first order called for 250,000 feet (to be delivered in 30 days). Further elaboration is unnecessary.

For the reasons stated in the consideration of the earlier contract, all sums deducted under this contract for delays, except for the delays in delivery of the first one-third ($18.70), will be allowed on this revision.

The auditor's action in disallowing $1,088.42 of the amount claimed is disaffirmed.

CLERKS' FEES FOR MAKING TRANSCRIPT ON APPEAL.

A clerk to a United States District Court is entitled under section 2 of the act of February 13, 1911 (36 Stat., 901), to his legal fee for making a typewritten transcript of a case appealed direct to the Supreme Court of the United States upon writ of error, where there was no printed record made of the case, or rule regulating the same, in the court below.

Decision by Comptroller Downey, April 3, 1914:

The Attorney General applied March 21, 1914, for a revision of the action of the Auditor for the State and Other Departments in allowing by settlement No. 25263, dated February 18, 1914, an item in the account of Richard Jones, clerk, United States District Court, Southern District of Alabama, which item had been deducted on the administrative examination of the account as follows:

Item 2, p. 10, case 4233: Charge for making transcript of record on appeal (to Supreme Court) (18 Comp. Dec., 333) –

$13.65

The transcript for which this charge is made is a typewritten transcript in a criminal case in the District Court of the United States for the Southern District of Alabama, and was appealed from said court direct to the Supreme Court of the United States upon writ of error sued out by the United States in accordance with the act of November 2, 1907 (34 Stat., 1246).

Section 2 of the act of February 13, 1911 (36 Stat., 901), entitled an act to diminish the expenses of proceedings on appeal and writ of error or of certiorari, provides:

"Sec. 2. That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to or by writ of

error or of certiorari from the Supreme Court of the United States, in which the record has been printed and used upon the hearing in the court below and which substantially conforms to the printed record in said Supreme Court, if there have been at the time of filing the record in the court below twenty-five copies of said printed record, in addition to those provided in the preceding section, lodged with the clerk of the court below, one copy thereof shall be used by the clerk of the court below in the preparation and as a part of the transcript of the record of the court below; and no fee shall be allowed the clerk of the court below in the preparation of the transcript for such part thereof as is included in said printed record so lodged with him. And the clerk of the court below in transmitting the transcript of record to the Supreme Court of the United States for review shall at the same time transmit the remaining uncertified copies of the printed record so lodged with him, which shall be used in the preparation and as a part of the printed record in the Supreme Court of the United States, and the clerk's fee for preparing the record for the printer, indexing the same, supervising the printing and binding and distributing the copies shall be at such rate per folio thereof, exclusive of the printed record so furnished by the clerk of the court below, as the Supreme Court of the United States may from time to time by rule prescribe; and no written or typewritten transcript of so much of the record as shall have been printed as herein provided shall be required."

The auditor allowed the item upon the explanation of the clerk to the suspensions.

The Attorney General disapproved the item, citing as his authority the Maynard case (18 Comp. Dec., 333), which is a construction of section 1 of the act of February 13, 1911, relative to appeals to United States circuit courts of appeals.

The present case does not come within the scope of section 1 of the act of February 1, 1913, hence the Maynard case is not applicable to the question now under consideration.

On March 25, 1914, this office directed a letter to the clerk asking him to state if the record, or any part thereof, was printed in the District Court of the United States for the Southern District of Alabama, and on March 30 reply was received to the effect that no part of the record was printed in that court, and that the entire record was typewritten.

Section 1, rule 8, of the Supreme Court, provides:

"The clerk of the court to which any writ of error may be directed shall make return of the same by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings with case, under his hand and the seal of the court."

There being no printed record in the court below, the clerk made a typewritten transcript, and is therefore entitled to his lawful fee for the same under section 2 and the rule.

The action of the auditor is affirmed.