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92 C. Cls. Opinion of the Court time before. His wife's condition caused him a great deal of anxiety. Her condition became worse and he deemed it advisable and necessary for him to ask for a transfer to the Fleet Marine Corps Reserve so as to be able to give her his personal care and attention.

The plaintiff had a long and honorable service with the Marine Corps, and the record in this case does not support a charge or a deduction that in making his request on December 21, 1928, to be transferred to the Reserve that he broke faith with any of his superior officers.

10. If the Court finds that plaintiff should have been transferred to the Fleet Marine Corps Reserve in the grade of paymaster sergeant, and that he is therefore entitled during the period from February 1, 1932, to February 28, 1938 (the date his petition was filed), to the pay applicable to such grade, there would be payable to him the sum of $2,857.27. This is a continuing claim.

The court decided that the plaintiff was not entitled to

recover.

GREEN, Judge, delivered the opinion of the court:

The plaintiff, Everett E. Wright, brings this action to recover the difference between the pay authorized for a paymaster sergeant after transfer to the Fleet Marine Corps Reserve with 20 years' service in the United States Marine Corps, and the pay received by him as staff sergeant after such transfer, for the period (not barred by the Statute of Limitations) from February 1, 1932, to September 30, 1937, the date on which he was retired, and for the difference between the retired pay authorized for a paymaster sergeant so transferred to the Fleet Marine Corps Reserve and the pay received by him as a staff sergeant on the retired list from October 1, 1937, to the date judgment is rendered in the case.

Plaintiff served continuously for more than 21 years in the United States Marine Corps. During this period of service he was promoted through successive grades and on June 1, 1928, received a probationary appointment as paymaster sergeant to fill a vacancy. This appointment was confirmed by the Major General Commandant on December 7, 1928.

459

Opinion of the Court On December 21, 1928, after having completed more than 20 years' active service in the United States Marine Corps and while serving in the grade of paymaster sergeant and receiving the pay and allowances of such grade, plaintiff requested in writing that he be transferred to Class II (d), Fleet Marine Corps Reserve, with the rank of paymaster sergeant. This request was refused.

On January 5, 1929, the plaintiff was advised by the Major General Commandant that he was reduced from the grade of paymaster sergeant to the grade of staff sergeant, effective January 7, 1929. Thereafter, the plaintiff was asked if he still desired transfer to the Fleet Marine Corps Reserve. He replied that he was desirous of such transfer at the earliest practicable date.

On January 22, 1929, plaintiff was transferred with the rank of staff sergeant to Class II (d), Fleet Marine Corps Reserve, in which status he continued until September 30, 1937, when he was placed on the retired list of the Fleet Marine Corps Reserve with the rank of staff sergeant.

The theory upon which plaintiff brings this suit is that under the law he was entitled to receive payment, when retired, upon the basis of his rank on the date of his application, which was December 21, 1928, when he had the grade of paymaster sergeant. The defendant on the contrary contends the plaintiff's status was fixed after his reduction in rank and when he was actually transferred on January 22, 1929, with the rank of staff sergeant.

Plaintiff's rights depend upon the act of February 28, 192 (43 Stat. 1080, 1087), which with reference to transfers to the Fleet Naval Reserve, provides that “when so transferred shall

be entitled to receive rate of one-half of the base pay they are receiving at the time of transfer *

[Italics supplied.) We think this statute is clear and definite. At the time of the transfer of the plaintiff he had been reduced to the rank of staff sergeant, and as he has received pay on that basis he is not entitled to recover anything further.

Our conclusion as above stated is strengthened by consideration of the act of May 23, 1930 (46 Stat. 375). This statute governs all transfers heretofore or hereafter made by

pay at the

*

92 C. Cls.

Opinion of the Court

the Navy Department. The plaintiff's claim begins with February 1, 1932, the earliest date not barred by the statute of limitations. The statute of 1930 provides that "all transfers of members of the Fleet Naval Reserve or Fleet Marine Corps Reserve to the retired list heretofore or hereafter made by the Navy Department shall be conclusive for all purposes," and further provides that all persons so transferred "shall from date of transfer be entitled to pay and allowances in accordance with their ranks or rating and length of service as determined by the Navy Department at time of transfer.” If there is any doubt as to the intention of Congress when it passed the act of 1925 it is made plain by the provisions of the act of 1930 which clarified the law. Our conclusion is that the defend. ant's officials have proceeded in accordance with the statutes applicable in cases like the one at bar and that plaintiff's rights have not in any way been infringed.

The plaintiff relies on the cases of Blackett v. United States, 81 C. Cls. 884, and Standerson v. United States, 83 C. Cls. 633. Both of these cases involved retirement pay under the act of March 2, 1907, which gave the plaintiffs the absolute right to be retired in the grade occupied at the time of application to the President. The statutes which control the instant case are so different in provisions that the holding in the two cases last cited has no application.

There is some discussion in argument with reference to the reason or cause of the demotion of plaintiff from paymaster sergeant to staff sergeant but this is entirely immaterial to the decision of the case which must be controlled by the applicable statutes.

It follows from what has been said above that plaintiff's petition must be dismissed and it is so ordered.

LITTLETON, Judge; and WHALEY, Chief Justice, concur.

WHITAKER, Judge, took no part in the decision of this case.

1 The act of March 2, 1907, 34 Stat. 1217, provides : "That when an enlisted man shall have served thirty years either in the Army, Navy, or Marine Corps, or in all, he shall, upon making application to the President, be placed upon the retired list, with seventy-five percentum of the pay and allowances he may then be in receipt of

Reporter's Statement of the Case

FENTON STORAGE COMPANY v. THE UNITED

STATES

[No. 43581. Decided February 3, 1941]

On the Proofs

Government contract; moving of office furniture, records, and supplies.

Where plaintiff under a contract to move certain office furniture, safes, records, and supplies from one building to another claims loss of time of its employees on account of inadequate elevator service furnished by defendant, it is held that plaintiff has failed to prove by the greater weight of the evidence that the elevator service was curtailed during the hours when the plaintiff was

ready and willing to work. Same.-Where two typewriters were lost during moving, it is held that

said loss was due to lack of exercise by the plaintiff of due care

and reasonable protection. Same.- Where deduction was made by defendant for damage to ele

vators during moving, it is held that the evidence is convincing that the employees of plaintiff exercised due care in loading the elevators, and plaintiff is entitled to recover.

The Reporter's statement of the case :

Mr. Robert F. Klepinger for the plaintiff. Messrs. Fred B. Rhodes and Cooper B. Rhodes were on the brief.

Mr. William A. Stern, II, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows:

1. Plaintiff, the Fenton Storage Company, is a corporation organized under the laws of the State of Pennsylvania, with its principal place of business at Philadelphia, Pennsylvania.

2. On June 25, 1934, plaintiff entered into a contract with defendant through the Procurement Division of the Treasury Department, by which plaintiff agreed in consideration of $3,733 to move certain furniture and safes, including contents, and miscellaneous office records, equipment and supplies used by thirteen branches or activities of the Government to the new Custom House and Appraisers' Stores Building at Second and Chestnut Streets in Philadelphia, Pennsylvania. The specifications and documents which, by 92 C. Cls. Reporter's Statement of the Case agreement of counsel, set forth the contract between plaintiff and defendant are attached to plaintiff's petition as “Exhibit A” and are made a part hereof by reference.

3. After performance of the contract, defendant deducted from the contract price paid plaintiff the sum of $57, cost to defendant of repairing elevators in the new Custom House building damaged during moving operations, and the further sum of $52.50 for two typewriters lost in the transfer of supplies and equipment owned by the Veterans' Administration.

Included among the thirteen activities moved by plaintiff were the Veterans' Administration, the United States Army Engineers' Office and the Alcohol Tax Unit of the Bureau of Internal Revenue.

4. Pursuant to instructions by defendant's proper representatives, plaintiff commenced the moving of the Veterans' Administration from 33rd and Arch Streets to the new Custom House on or about November 1, 1934, continued the moving November 5 and 6, 1934, and performed the major part of and completed the work on November 7 and 8, 1934. Neither on November 7 or 8 nor at any other time during the moving of the Veterans' Administration was plaintiff, when ready and willing to continue work, prevented from carrying out its moving operations by reason of defendant's dismissal of elevator operators.

5. Pursuant to instructions by the Custodian of the Custom House, plaintiff commenced the moving of the United States Army Engineers' Office from the Gimbel Building to the new Custom House about six o'clock, p. m. November 23, 1934, and worked continuously until the moving was completed about four o'clock a. m. November 24, 1934. At no time during the moving of the United States Army Engineers’ Office was plaintiff, when ready and willing to continue work, prevented from carrying out its moving operations by reason of defendant's dismissal of elevator operators.

6. Pursuant to instructions by defendant's proper representatives, plaintiff commenced the moving of the Alcohol Tax Unit of the Bureau of Internal Revenue from the Gimbel Building to the new Custom House on November 16, 1934, about six o'clock p. m, and continued until about

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