Opinion of the Court.

Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public Health Service," thus materially enlarging the scope of the original bill.

In their statement to the House by the managers on the part of the House it was said: "This amendment in title is agreed to since it more aptly describes the scope of the legislation as amended and agreed to." Plainly it affected all branches of the military service. Section 11, providing for the Coast and Geodetic Survey, was section 5 of the Senate amendment (vol. 59, pt. 3, Cong. Rec., p. 2251). But the proviso in question was additional to that amendment and was inserted in conference. The section deals primarily with the Coast and Geodetic Survey, and gives them the pay and allowances prescribed for officers of the Navy " with whom they hold relative rank," as prescribed in the act of May 22, 1917, "including longevity." In explanation of this section the managers on the part of the House reported "it also contains a proviso placing all the service on an equality in the matter of computation of longevity or service pay." There was an inequality of longevity pay of officers whose appointments as cadets were prior to 1912 and those whose appointments were subsequent to 1912. The service of a cadet appointed in 1911 could be counted for the purpose of longevity, but the service of a cadet appointed after the act of 1912 could not be counted for any purpose in computing his length of service. Section 11 provides for pay for officers in the Coast and Geodetic Survey by prescribing the same pay and allowances that are prescribed for the officers of the Navy with whom they hold relative rank, and this same distinction in longevity pay required by the act of 1912 in the case of Army officers is also required in the case of naval officers by the act of 1913 above mentioned, which fact would ultimately lead to confusion and inequality in the pay of the officers in the Coast and Geodetic Survey holding relative rank.

The Supreme Court, in deciding the Hartigan case, supra, said it was not a question whether the cadet at West Point was an officer in the Army. It concedes that his service as a cadet was actual time of service in the Army, within the

Opinion of the Court.

meaning of the statute giving longevity pay to officers. However, in the Baker case, 125 U. S. 646, it is held that a midshipman at the Naval Academy is an officer of the Navy, and serving as such, though continuing to be a student in the Naval Academy, and that his service as midshipman entitled him to longevity pay. In the Cook case, 128 U. S. 254, where the same general question arose, it is said "that a midshipman is an officer has been understood ever since there was a Navy." But, as already stated, the question is not whether a cadet at West Point is an enlisted man within the meaning of the statutes, but whether his service as cadet is service in the Army, and this question has been resolved affirmatively by the case mentioned.

Our conclusion is that the plaintiff is entitled to recover, and judgment should be awarded in his favor. It is so ordered.

GRAHAM, Judge; DOWNEY, Judge, and BooтH, Judge,

concur.

On March 3, 1924, defendant's motion for new trial was overruled, HAY, Judge, dissenting.

CASES DECIDED

IN

THE SUPREME COURT

ON APPEAL FROM COURT OF CLAIMS.

OCTOBER TERM, 1922.

EUGENE A. FREUND AND ALFRED F. ROEMMICH v. THE UNITED STATES; and THE UNITED STATES v. EUGENE A. FREUND AND ALFRED F. ROEMMICH.

[56 C. Cls. 15; 260 U. S. 60.]

Judgment was rendered against the United States for a portion of the sum claimed in the court below. On appeal the judgment was reversed, and the Supreme Court decided:

Broad provisions in a Government contract, authorizing the Government to change the obligations imposed on the other party, should be interpreted, not as permitting Government officials to remold the contract at will, but as confined to what was fairly and reasonably within the contemplation of the parties when the contract was made.

Where a contractor undertook a circuit mail-carriage service from and back to a city post office site via scheduled stations, with stops en route to collect mail from letter carriers, to be paid for at so much for every mile traveled, a stipulation in the contract authorizing the Postmaster General to establish service to and from like offices, stations, etc., to those named in the schedules, to be paid for at the contract rate per mile of travel, did not authorize substitution of a much heavier service, in transporting all mail between railroad stations and another post office site, involving increased equipment and expense, and paid for at the same mileage rate but without counting trips on which no mail was carried.

Syllabus.

Contractors who were encouraged by agents of the Post Office Department to enter into a mail-carriage contract and give a heavy bond, without notice of the department's purpose to substitute a more onerous service under color of the contract but not within its terms, and who performed the new service, under protest, rather than incur the risk to themselves and their bondsmen of throwing up the contract, held not to have acquiesced in the change.

A mail-carriage contractor who, under duress of the Post Office Department, performs service not called for by his contract, is entitled to recover, in the Court of Claims, the reasonable value of such service, including a fair profit.

Mr. CHIEF JUSTICE TAFT delivered the opinion of the Supreme Court November 13, 1922.

THOMAS F. E. RYAN v. UNITED STATES.

[56 C. Cls. 103; 260 U. S. 90.]

Judgment was rendered in favor of the United States in the court below. On appeal the judgment was affirmed, and the Supreme Court decided:

Under sections 2733 and 2737, Rev. Stats., and the act of March 3, 1881, c. 132, 21 Stat. 429, the Secretary of the Treasury was authorized to appoint inspectors of customs, at New York, at $4 per day.

The act of December 16, 1902, c. 2, 32 Stat. 753, authorized the Secretary to increase the per diem of such inspectors $1 but did not require it; nor did the appropriation acts of June 30, 1906, c. 3912, 34 Stat. 636, and March 4, 1907, c. 2919, id. 1373, make such increase mandatory.

Mr. CHIEF JUSTICE TAFT delivered the opinion of the Supreme Court November 13, 1922.

Syllabus.

DUESENBERG MOTORS CORPORATION v. THE UNITED STATES.

[56 C. Cls. 96; 260 U. S. 115.]

Judgment was rendered in favor of the United States in the court below. On appeal the judgment was affirmed, and the Supreme Court decided:

A contractor who incurred expense under a contract to manufacture articles for the Government for use in the late war, but whose opportunity to perform and earn the contemplated profits was cut short by the sudden cessation of hostilities, the declaration of the armistice, and the consequent termination of the contract in accordance with its terms, took the chances of this contingency and can not recover damages.

Held, in this case, that delay of the Government in furnishing necessary specifications as contemplated by a contract for the manufacture of airplane motors of a foreign model, due to an honest but mistaken belief, shared by the contractor, that the model was perfected and adequate specifications in existence, was not an actionable breach of representation, in view of the conduct and dealings of the parties for the expedition of the work, the absence of any protest over the delay and the absence of averment that it prevented the contractor from being fully occupied with preparatory and other work under the contract.

Time was of the essence for the Government, but not for the contractor.

Mr. JUSTICE MCKENNA delivered the opinion of the Supreme Court, November 13, 1922.

KEOKUK & HAMILTON BRIDGE COMPANY v. THE UNITED STATES.

[55 C. Cls. 480; 260 U. S. 125.]

Judgment was rendered in favor of the United States in the court below. On appeal, the judgment was affirmed, and the Supreme Court decided:

The court will not reexamine the findings of fact made by the Court

of Claims upon evidence.