On Motion for a New Trial 92 C. Cls. of law in holding that plaintiff was entitled to any recovery based on the contracting officer's direction to plaintiff to use the proportion tabulated in Clause 403 (meaning Article 503) of the specifications of 1 unit by volume of cement to 612 units of aggregate. The first and second assignments of error will be considered together, as one is a corollary to the other. If the second assignment is valid, the first assignment would also fall into this classification. The second allegation is the material point to be considered. Plaintiff entered into a contract containing a provision known as Article 16 (d), which required, as a condition precedent to payment of any amount still due the contractor after completion and acceptance of the work, a release of all claims against the Government arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the contractor from the operation of the release in stated amounts to be set forth therein. Pursuant to this provision, on December 24, 1934, plaintiff executed a release, excepting, among other things, item five thereof as follows: a further claim in the amount of $48,534.53 on account of increased labor performed and material furnished in the mixing and placing of concrete because of the requirements of the contracting officer with respect thereto. This provision of the release specifically sets out the claim and the amount of the claim. In the taking of the evidence, no opposition was made to the introduction of testimony for a larger amount for item five and no exceptions were taken to the commissioner's report in which there was a finding that the plaintiff's costs on item five totalled to an increased amount. Defendant failed to make any point or defense of this item in its brief. The provision of the release in question was overlooked by the court in the consideration of the case owing to the fact that this clause in the release was not called to its attention by the defendant. It is an unusual provision and has not appeared in any other contract which the court has had to 280 construe. On Motion for a New Trial Under its terms the defendant had the express right to require the plaintiff to state the item of its reservation and the amount it claimed as extra costs. When the release was executed, reserving only this amount as the cost of the extra work, all other amounts over and above this amount were released. It follows that plaintiff is bound by this release in the amount specified and is limited in its reservation on this specific claim to the sum of $48,534.53. The above view on the second allegation makes unnecessary consideration of defendant's first assignment of error. In its third assignment of error defendant alleges that its order of May 8, 1934, did not require plaintiff to furnish cement in excess of that required by the contract but merely to furnish that called for in the express terms of the specifications, namely, "1 unit by volume of cement to 62 units of aggregate." It must be borne in mind that the work performed by the plaintiff in eradicating sand-streaking was not work within the terms of the specifications or the contract but excess work required by the contractor. It will be seen after an examination of the provisions of the specifications that the ratio of cement to aggregate mentioned by the defendant was not the only ratio provided for in the specifications. Under the terms of Article 503, the cement in Class B concrete could be decreased or increased by the contracting officer 15 percent from the proportion fixed in "1 unit by volume of cement to 62 units of aggregate." Plaintiff under the express directions of defendant on and prior to the order of May 8, 1934, used the minimum amount of cement fixed by the specifications. The express terms of Article 503 required all changes by defendant in the aggregate to be for the purpose of governing the workability or strength of the mix. The extra work required under the orders of the contracting officer for the elimination of sandstreaking had nothing to do with the workability or the strength of the mix but was solely for appearance. Therefore, the order of May 8, 1934, which required additional cement content over the minimum was outside of the contract for the reason that it only affected the elimination of the sandstreaking and not workability. There was no error of law in holding that plaintiff was entitled to the extra costs in Reporter's Statement of the Case 92 C. Cls. curred in the elimination of sand-streaking. This third ground for a new trial is overruled. The motion for a new trial is sustained as to the second allegation and is denied as to the other two allegations. The former judgment is vacated and withdrawn and judgment now entered for the plaintiff in the sum of $48,534.53 in accordance with this opinion. The former findings and opinion will stand. It is so ordered. LITTLETON, Judge; and GREEN, Judge, concur. WHITAKER, Judge, took no part in the decision of this motion. FRANCIS O'HARA v. THE UNITED STATES [No. 44261. Decided October 7, 1940. Defendant's motion for new trial overruled March 3, 1941] On the Proofs Pay and allowances: right of retirement of enlisted man, U. S. A.— Decided upon the authority of Blackett v. United States, 81 C. Cls. 884 and Standerson v. United States, 83 C. Cls. 633. See also Holub v. United States, 85 C. Cls. 701 and Bale v. United States, 89 C. Cls. 532. The Reporter's statement of the case: King & King for the plaintiff. Mr. Fred W. Shields was on the brief. Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. On June 7, 1898, the plaintiff enlisted in the United States Army and on May 9, 1916, after various reenlistments, had credit of more than 30 years of service therein, counting foreign service as double time. 2. On May 9, 1916, he held the grade of first sergeant and on that date made application through his commanding officer to the War Department for retirement. This applica 306 Opinion of the Court tion, by order of the Secretary of War, was disapproved May 26, 1916, and he was refused a retired status. He was retained in the service and June 1, 1916, reduced to sergeant, on June 2, 1916, reduced to private, appointed corporal June 2, 1916, and sergeant August 18, 1916. Thereafter, September 10, 1916, he again applied for retirement, and on September 19, 1916, was by order of the Secretary of War placed upon the retired list and ordered to repair to his home, since which time he has received the pay and allowance of a retired sergeant. 3. For the period beginning November 1, 1932, and ending March 31, 1939, the date of the latest pay roll on file in the General Accounting Office at the time of response to the call of the court, the plaintiff has received $2,012.85, computed at monthly rates, less than he would have received had he been retired in the grade of first sergeant. The claim is a continuing one. The court decided that the plaintiff was entitled to recover. Opinion per curiam: There is no substantial contest as to the right of the plaintiff to recover. Having completed more than 30 years' service, he made application for retirement in the grade of first sergeant. It is not denied that at that time he had the grade of first sergeant, that he had been lawfully appointed to that grade and received the pay and allowances thereof, nor is it denied that he had at that time completed more than 30 years' service in the Army. The fact that the War Department had refused him retirement in that grade is immaterial, as the act of March 2, 1907, 34 Stat. 1217, plainly and specifically gave him the right to retirement in the grade that he then occupied and the refusal to pay him accordingly is clearly in violation of law. The precise question here involved was decided in this court in Blackett v. United States, 81 C. Cls. 884, and the court's decision in the Blackett case has been followed in Standerson v. United States, 83 C. Cls. 633; Holub v. United States, 85 C. Cls. 701; and Bale v. United States, 89 C. Cls. 532. 291825-41-CC-vol. 92- -22 Reporter's Statement of the Case 92 C. Cls. Plaintiff is entitled to judgment but as his claim is a continuing one the entry of judgment will be suspended pending the filing by the General Accounting Office of a statement showing the amount due him from November 1, 1932, to date of the judgment.* It is so ordered. CHARLES ANDERSON v. THE UNITED STATES [No. 44056. Decided October 7, 1940. Defendant's motion for new trial overruled March 3, 1941] On the Proofs Pay and allowances; right of retirement of enlisted man, U. S. A.~-~Following the decision in Francis O'Hara v. United States. ante p. 306. The Reporter's statement of the case: Ansell, Ansell & Marshall for the plaintiff. Mr. Mahlon C. Masterson was on the brief. Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. Plaintiff, Charles Anderson, enlisted in the United States Army on December 11, 1889. He served continuously in various grades until June 26, 1916. 2. On April 20, 1916, plaintiff was promoted to the grade of first sergeant to fill a then existing vacancy. Theretofore plaintiff had efficiently served in the grade of first sergeant, and in the grade of sergeant, in various organizations, at different times. 3. On April 22, 1916, plaintiff, after he had completed more than thirty years' service, and while serving in the grade of first sergeant and receiving the pay and allowances of that grade, made application in writing for retirement as first sergeant. 4. On May 20, 1916, plaintiff was, without his consent, ordered to be, and was, reduced to the grade of sergeant. *See post, p. 602. |