recovery might be had of the amount of such installment. Stubbs v. Hollywell, L. R., 2 Ex., 311.)

In America the decisions are to the effect that the contractor may recover for the value of the work done under an entire contract, although the reasons given for such recovery are not uniform. In several cases such recoveries have been allowed on the ground that from special circumstances of the particu lar cases the entirety of the contract had been severed by the parties themselves; as by acceptance of the work done under the contract (Lord v. Wheeler, 1 Gray, 282); or where the contractor was delayed by the owner of the building from prosecuting his work, and therefore the contract had been broken by the owner. (Gilbert, etc., Company v. Butler, 146 Mass., 82; Rawson v. Clark, 70 Ill., 656.)

Where no such special circumstances existed, the reasons for the recovery for the work performed have been differently stated. In New York the recovery is based upon the idea that the owner is under an implied warranty to keep a building upon which the contractor is to do the work, and for the failure to maintain the building by reason of the accidental fire or other casualty he is in default, and therefore the contractor may recover. (Niblo v. Binsse, 3 Abb. Ct. App., 375.) So also in Missouri (Haynes v. Second Baptist Church, 88 Mo., 285.) This view, however, has been disputed. In Appelby v. Meyers (L. R., 1 C. P., 615) the decision was placed upon this ground and a recovery allowed, but the case was reversed upon appeal in L. R., 2 C. P., 651, the idea of an implied warranty being specifically denied. And to the same effect, apparently, is Fildew v. Besley (42 Mich., 100).

In other States a recovery has been allowed upon the grouna that the contract, being one based upon mutual promises and having been terminated by the impossibility of performance, there is a failure of the entire consideration, and where there is no breach or fault on either side, the party is left to an implied assumpsit for what he has done. Butterfield v. Byron (153 Mass., 517), following the previous case of Cleary v. Sohier (120 Mass., 210), where in a per curiam a recovery was allowed without stating the reasons therefor. In Butterfield v. Byron a careful review of all the cases was made by Knowlton, J., who delivered the opinion of the court, and he reached the conclusion that the decision in that case was justified by 11268-VOL 2– -24

decisions of other courts for like reasons, viz: Cook v. McCabe (53 Wis., 250), Hollis v. Chapman (36 Tex., 1), Schwartz v. Saunders (46 Ill., 18), Rawson v. Clark (70 Ill., 656), and Clark v. Busse (82 Ill., 515), although some of these cases seem to have been decided upon the, peculiar law of those States in regard to the apportionment of an entire contract, as Hollis v. Chapman (36 Tex., 1); see Weis v. Derlin (67 Tex., 507). The view that such recovery may be had as upon an implied assumpsit is seemingly denied in the New York decision of Niblo v. Binsse (3 Abb. Ct. App., 375–381).

Apparently the only American case which holds that no recovery can be had after a partial performance of an entire contract to repair a building or to do the entire work upon a building the materials for which are furnished by the owner. where the contract has been rendered impossible of completion by the destruction of the building by a fire, for which neither party is responsible, is Brumby v. Smith (3 Ala., 123), the reasons given for the decision being substantially the same as those upon which the English cases are decided. That case has been cited in several other American decisions, and has not been considered law, although apparently it continues to be the law of Alabama. (Partridge v. Forsyth, 29 Ala., 200-205; Cutliff v. McAnally, 88 Ala., 507-512.) The case, however, was one for personal services only in the erection of a new building, payment for which was to be made in an entire sum on the completion of the building, and is therefore not directly in point.

A careful examination of the reports of the Supreme Court of the United States and of the inferior Federal courts fails to disclose any case directly in point or any case closely analo gous in principle. The principle of the decisions of American courts, that a recovery may be had upon an implied assumpsit, is substantially in agreement with the character of cases which hold such recovery authorized in cases of entire contracts for personal services, which can not be completed because of the death of the party; but no Federal authority can be found on that proposition.

In Vermont, the State in which the contract between the United States and Burrowes was to be performed, and which therefore would govern in the construction of the contract, it is well established law that under an entire contract for per sonal services, if the employee is prevented by sickness or death from completing the contract, he may recover for the

value of the services which he has rendered. (Fenton v. Clark, 11 Vt., 557; Seaver v. Morse, 20 Vt., 620; Hubbard v. Belden, 27 Vt., 645; Patrick v. Putnam, 27 Vt., 759.) The principle of these cases would seem to require a holding that where work was done under the circumstances which have arisen in the case now under consideration a recovery might be had for the value of the work actually completed. See Smith v. Foster (36 Vt., 705).

The disposition of Amer.can courts has been to grant relief from the hardships arising from the technicalities of the common law, which is more rigidly adhered to in England. In view of the entire unanimity of the decisions in this country (if Brumby v. Smith, 3 Ala., 123, which is rather a special case, be excepted), and in view of the careful consideration. of the question by the supreme judicial court of Massachusetts in the comparatively recent case of Butterfield v. Byron (153 Mass., 517), and particularly in view of the Vermont decisions above cited, while the matter may not be absolutely free from all doubt, I am decidedly of the opinion that if Mr. Burrowes should sue the United States a recovery would be allowed for the value of the labor performed and the materials actually put in place in the St. Albans building before the fire occurred, unless the clause in the contract which required him to be responsible for the proper care and protection of the materials delivered and the work performed until the final completion of the contract, notwithstanding the part payments made thereon, should preclude such recovery. As no payments were to be made for any materials delivered and not actually put in place, the clause clearly relates not only to the materials furnished and which were not affixed to the building, but also to the materials delivered and so affixed and to the work performed thereon. It is clear that if any damage had been done to the work actually affixed to the building, Burrowes would have been obliged to renew the same, and so also if his work only had been destroyed by fire so that he could have replaced it upon the original building where it was first put, and probably also if there had been only a slight destruction of the original building, rendering impossible the completion of a part only of the contract on the original building, and the part destroyed was promptly replaced for him to work upon; although, as his contract was to do the interior finish on the building then in existence, he

could hardly be required to do the work over again on anothe building should it be replaced.

But the clause did not obligate him to insure the building or to replace it so that he could complete his own work (see Rawsom v. Clark, 70 Ill., 656-659), and it is hardly to be inferred from the terms of the clause that it was intended as an insurance of the materials delivered and the work performed in the event which has happened, which, according to all the authorities, has put an end to the contract itself on account of the impossibility of performance. Such a clause even if broad enough in general terms to include an insurance of the material actually affixed to the building will not be construed to have reference to the particular contingency which happened and which could hardly have been in the contemplation of the parties when the contract was made. (Chicago, etc., Ry. Co. v. Hoyt, 149 U. S., 1–15.)

I am therefore of the opinion that that clause of the contract does not prevent a recovery upon the part of Burrowes for the work which he has already done. As payment was not, however, to be made for materials not placed upon the building, and as the clause clearly required him to care for and protect all materials delivered, he can not recover for so much of the materials as he had placed in the building but had not affixed to it or had in stock, and they are clearly at his own risk.

As the contract is at an end and the recovery, if any, would be for the value of the materials delivered, and the work done at the rate stipulated in the contract (Butterfield v. Byron, 153 Mass., 517-523), and the contract specifically provides a unit of value for calculating the amount due, I am clearly of the opinion that Burrowes is entitled to receive the full 100 per cent of the materials delivered and the work done by him, and not 90 per cent only. (See 20 Opin. A. G., 511.)

Burrowes's case is a peculiar one, for the proper determination of which no precedent has been found either in the decisions of the Treasury Department, the opinions of the Attorneys-General, or the decisions of any of the Federal courts. There may be some doubt as to the exact amount due to him under all the circumstances of the case. For the reasons above stated, I am of the opinion that he is entitled to receive the difference between the amount of the work completed by him, which is stated to be $11,100, and the amount already paid to him, $6,390, leaving a balance due of $4,710,

payment of which is authorized. But such payment should only be made upon the distinct agreement in writing by Burrowes, that the acceptance thereof is a complete settlement between himself and the Government for all the obligations arising under his contract or in any way connected with the work done and the materials furnished in consequence thereof. This opinion agrees substantially with the one given by the Solicitor of the Treasury in this case.

Respectfully, yours,

R. B. BOWLER,

The SECRETARY OF THE TREASURY.

Comptroller.

PAYMENT FOR WORK NOT DONE UNDER CONTRACT.

Where a contractor working under a formal contract entered into a written agreement with the proper officer of the United States for additional work, the necessity for which became apparent as the contract work progressed, he is entitled to payment for such additional work, notwithstanding the agreement was not made after previous advertising for proposals, as required in section 3709, Revised Statutes, the nature of the particular work being such that it could be performed only by the person doing the work under the contract.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

January 30, 1896.

SIR: I am in receipt of your letter of December 19, 1895, inclosing a voucher in the name of William E. Woodall & Co. for $5,095.25 for repairs to the schooner Matchless, belonging to the United States Coast and Geodetic Survey. The voucher is composed of several items, the largest of which is for work done under a contract executed after advertisements for proposals in the usual way under the provisions of section 3709, Revised Statutes, and amounts to $3,330. The other items are for additional work subsequently authorized by written agreements not entered into in pursuance of previous advertisements for proposals under section 3709, Revised Statutes. These agreements were three in number. The first, of July 20, 1895, for raising deck, $550; second, August 28, 1895, for sundry items of work, $137.75, and third, of October 8, 1895, for various different items of work, amounting to $1,077.50. As the extra work which was not done in pursuance of contracts