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quested October 28, 1922, review of settlement No. W-810038, dated February 16, 1922, disallowing his claim for $45 as reimbursement of expenditures made by him during the period September 16 to 30, 1918, for medical services when he was ill at his home with influenza.
The claimant represents that he went to his home from Camp Devens, Mass., on September 16, 1918, at 12 o'clock noon, on a pass extending to 12 o'clock midnight, September 17, 1918, and became ill soon after reaching home. He telegraphed the military authori. ties at Camp Devens and received a reply to “see doctor and have him communicate with this office immediately regarding your condition.” A private physician was summoned, who diagnosed the illness as influenza, and claimant remained under his care from September 16 to 30, 1918, and it is claimed that the resulting expense of $15 should be assumed by the United States.
The act of July 9, 1918, 40 Stat., 866, which provided funds for the support of the Medical Department of the Army for the fiscal year in which the expenditures in the instant case were made, contained an inhibition against the use of the funds for the medical care and treatment of enlisted men of the Army by civilian physicians while on furlough. The question presented for decision resolves itself into whether claimant was on furlough at the time of his illness.
It is admitted that he was on a pass of over 24 hours' duration at the time of the illness. The pass was one for 48 hours' duration, and it has been held that such a pass is a furlough within the meaning of the law prohibiting the use of public funds for payment for medical service secured by a soldier while thereon and that he could not bring himself into a duty status for the purpose of escaping the application of the prohibition by telegraphing information of his condition to his commanding officer. 23 Comp. Dec., 543; 1 Comp. Gen., 137, 440.
Upon review of the matter no differences are found and the settlement is sustained.
JURORS-GOVERNMENT EMPLOYEES IN STATE COURTS. Civil employees of the United States who attend State courts as jurors are not
entitled to compensation for the time so absent from duty except so far as they may be entitled to leave of absence with pay and their absence
from duty is charged to such leave. Comptroller General McCarl to the Secretary of the Navy, January 22, 1923.
There was received your letter of January 9, 1923, as follows:
Mr. Harry Ewing, shipfitter helper, at the Philadelphia Navy Yard, has submitted a request for pay for twenty days, March 6th to 10th, inc.; March 13th to 17th, inc.; March 20th to 24th, inc.; and March 27th to 31st, inc., while serving as a member of the grand jury for the Court of Iyer and Terminer and Quarter Sessions for the county of Philadelphia.
Miss Anna M. Conran has also applied for pay during the time in which she served as a juror in the Court of Quarter Sessions of the peace of the
county of Philadelphia, for seven days, on March 6th, 8th, 9th, 13th, 14th, 15th, and 16th, 1922. During this time she was absent one day on this duty on leave with pay. On the remaining six days she was absent on leave without pay.
Your decision is requested as to whether these employees may be lawfully paid while absent from their employment under the circumstances mentioned.
It appears that Harry Ewing was absent from his place of employment without pay during the period he served as grand juror for the Court of Oyer and Terminer and Quarter Sessions for the county of Philadelphia, a county court of the State, and that Miss Conran was on leave with pay for one day of the time she served as a juror in the Court of Quarter Sessions of the peace of the county of Philadelphia, a county court of the State, and for the remaining six days she was absent on leave without pay.
The claimants attended a State court in obedience to a summons, the same as any other private citizens of the State are required to do under the circumstances, necessarily giving their time to the State and receiving therefrom the compensation provided by State law for such services. They performed no services for the Federal Government during this time and, the Federal Government not being an interested party, no payment may be made to said employ. ees except for the one day's time Miss Conran was absent on leave
CONTRACTS-UNCONSCIONABLE. The exception to the general rule requiring formal contracts to be performed
according to their terms which permits payment on a quantum meruit basis when the work to be performed is so grossly disproportionate to the estimate as to make the contract so inequitable and unfair that it is unconscionable can only be invoked when the contract taken as a whole comes within such exception, the fact that particular items of the contract are
grossly in excess of the estimates therefor being insufficient for the purpose. Comptroller General McCarl to the Secretary of War, January 23, 1923.
There was received December 8, 1922, by your authority, from the office of the Chief of Engineers, request for decision as to whether an additional payment of $856.34 was authorized to be made to the Johnson Iron Works Dry Dock & Shipbuilding Co. (Inc.) for electric welding on gate seats of the U. S. dredge Benyaurd under a statement of facts, as disclosed by the papers forwarded, as follows:
Under date of October 15, 1921, the third district engineer advertised for bids for overhauling, in certain particulars, the dredge Benyaurd. Among other things, prospective bidders were informed that:
All fastenings on dumping gates to be repaired where needed, gates to be refitted and made as near tight as possible, and all bent gate rods to be taken out, straightened, and replaced. and that:
The dredge Benyaurd is at the dry dock of the Johnson Iron Works and Shipbuilding Company, and all intending bidders are requested to thoroughly
examine the work to be done before submitting their bid. Award will be made to the lowest responsible bidder for the entire work. The dredge may be seen in the water on Monday, October 17th, 1921, and in the dock on Tuesday, Oct. 18, 1921. Any material which is removed from the dredge and replaced by new material will remain the property of the United States; and all material which is to be used must be furnished by the contractor, unless otherwise specified herein. Any material which is to replace the old material which is to be removed must be of the same make and grade or fully acceptable to the inspector. Any part of the dredge or machinery which it is necessary to disturb during repairs must be put back in like condition when the work is completed. No extra work will be allowed unless specifically authorized in writing by the inspector. If there is any work which might develop while the boat is under repairs a supplemental bid for such work must be submitted for approval.
The bid of the Johnson Iron Works Dry Dock & Shipbuilding Co. (Inc.), named a price of $734 for the item of repairing the lot of gates and the total of approximately $14,000 for all of the 37 items, which, being the lowest, was accepted. Prior to the opening of the bids a memorandum of the estimated work on the vessel, including work on the gates and gate seats, was given to the contractors showing 43 linear feet of electrical welding to be done on the seats. In carrying out the repairs 864 linear feet of welding was actually done, and the contractor claims an additional sum of $856.34 for the 434 feet of welding in excess of the number of feet stated in the memorandum.
The agreement was to make specified repairs, etc., to the Benyaurd for a certain total sum. As one of the 37 items, it agreed to repair all of the fastenings on the dumping gates and make the gates as nearly tight as possible. Prospective bidders were enjoined to thoroughly examine the work to be done before submitting their bid, and there was nothing in the accepted bid which limited the welding to be done to 43 or any other number of feet. The memorandum estimating the welding at 43 linear feet was not specifically referred to, or otherwise incorporated, in the agreement and is not necessarily a part thereof.
It is a general rule of law that where a contractor obligates himself to do certain work according to an estimate for a lump sum he is required to perform the same. The exception to the general rule is that where the work done is so grossly disproportionate to the estimate that it makes the contract so inequitable and unfair that it is unconscionable, the contractor is entitled to recover on a quantum meruit basis.
It is apparent that if all of the work done was 100 per cent more than the estimate the exception to the general rule would apply, but the exception to the general rule does not apply where the work in one particular item is 100 per cent more than what was estimated. Agreements must be considered as a whole. It may be that for the other 36 items the work was not as much as was estimated. If the rule of quantum meruit is applied, it must be applied to the whole
contract and not to one particular item in the contract. It is apparent that in this case the contractor relied upon the total price for 36 items, and is satisfied with the same, but seeks to set aside as to one item only and apply the rule of quantum meruit. This he can not do. The contractor is bound by the agreement and is entitled to receive the total price and no more.
Payment of the voucher is unauthorized.
ADVANCE PAYMENT FOR SUBSCRIPTIONS TO PERIODICALS. Subscriptions to periodicals for periods not exceeding one year, when neces
sarily ordered at a time during a fiscal year that will necessitate some deliveries in the succeeding fiscal year, may be charged under the appropriation current when the order was placed, but payments in advance for
subscriptions in excess of one year are not authorized. The restriction in the act of March 15, 1898, 30 Stat., 316, against the purchase
of law books, books of reference, and periodicals for executive departments or Government establishments at the seat of Government unless specifi
cally appropriated for is not applicable to purchases for field use. Decision by Comptroller General McCarl, January 24, 1923.
The Chief, Interior Department Division, this office, submitted January 13, 1922, the matter of payment in advance for periodicals, act of March 4, 1915, 38 Stat., 1049, holding, in substance, that the claim of the McGraw Hill Co. (Inc.), amount $8, for two years' subscription to Engineering News-Record, August 1, 1922, to July 31, 1924, is only chargeable under the appropriation sought to be charged, “Geological Survey, 1923 (gauging streams, etc.),” to the extent and in the amount of one year's subscription and that payment for more than one year's subscription is not authorized.
The facts appear that the periodical ordered was for field use, and was not, therefore, for use of any executive department, etc., at the seat of government, act of March 15, 1898, 30 Stat., 316; that the order was placed for a two-year subscription, payable in advance, because of a saving of 20 per cent in the cost by reason thereof; and that, but for such saving, the order could have and would have been placed for a one-year subscription, or for a subscription for a lesser period of time.
The appropriation sought to be charged, 42 Stat., 586–587, reads:
For every expenditure requisite for and incident to the authorized work of the Geological Survey
under the following heads:
For gauging streams and determining the water supply of the United States, the investigation of underground currents and artesian wells, and the preparation of reports upon the best methods of utilizing the water resources, $180,000, of which $25,000 may be used to test the existence of artesian and other underground water supplies suitable for irrigation in the arid and semiarid regions by boring wells;
The provision in the act of March 4, 1915, 38 Stat., 1049, as to payment for subscriptions in advance, reads:
SEC. 5. That hereafter subscriptions to periodicals, which have been certified la writing by the respective heads of the executive departments or other
Governını:nt establishments to be required for official use, may be paid in ad. vance frodas appropriations available therefor.
In construing section 5 of the act of March 4, 1915, 22 Comp. Dec., 586, it was said that “Said provision was enacted to overcome the prohibition contained in section 3648 of the Revised Statutes • and was not intended to authorize payments from appropriations not available therefor."
The appropriation sought to be charged appears otherwise arailable for subscriptions to periodicals, but not generally for services extending beyond the period for which the appropriation was provided, namely, the fiscal year ending June 30, 1923.
Where a subscription is for a period not exceeding a year, if the order is necessarily placed at a time during a fiscal year which will necessitate some deliveries in the succeeding fiscal year, and if the appropriation for such succeeding fiscal year was not available for obligation, etc., at the time such order was necessarily placed, the whole year's subscription may be charged under the appropriation thus current and available.
The conclusion of the auditing division is approved.
TRAVEL ALLOWANCE ON AND AFTER SEPTEMBER 22, 1922–
ENLISTED MEN OF THE ARMY.
Enlisted men of the Army discharged on or after September 22, 1922, are en
titled under the act of that date, 42 Stat., 1021, to travel allowance only to the place of enlistment, enrollment, or muster into the service for the expiring enlistment, and not to the place of original entry into the service in a prior enlistment, and if the place of discharge and place of enlistment
are one anıl the same no travel allowance is payable. Decision by Comptroller General McCarl, January 24, 1923.
Settlement No. W-155504, this office, dated November 23, 1922, allowed George F. Austin, first sergeant, Service Company, Twentythird Infantry, United States Army, $105 travel allowance on discharge. October 10, 1922, which represented 5 cents per mile for 2,100 miles from Camp Travis, Tex., place of discharge, to Worcester, Mass., bona fide home, under the act of February 28, 1919, 40 Stat., 1203.
The record shows that claimant originally enlisted in the Army March 22, 1899; that he served continuously through several enlistment periods until October 10, 1919, when discharged at Camp Travis, Tex., and reenlisted next day at same place for three years, from which enlistment he was discharged at Camp Travis, October 10, 1922, by reason of which he claimed travel allowance to his home.
The act of February 28, 1919, supra., which gave an option to enlisted men honorably discharged from the Army to receive travel allowance from place of discharge either to their actual bona tich