546 Reporter's Statement of the Case tirement age of sixty-four years. Subsequently, he was commissioned an Admiral on the retired list of the United States Navy, with rank from June 21, 1930, in accordance with the provisions of the act of June 21, 1930 (46 Stat. 793). 2. On October 8, 1937, plaintiff was orally ordered to report to the Assistant Secretary of the Navy, Navy Department, for active duty as a member of the Advisory Board on Battleship Plans. Subsequently his oral orders were confirmed by written orders, dated November 5, 1937, reading as follows: From: Secretary of the Navy. To: 5 Nov. 1937. Admiral Joseph Strauss, U. S. N. (Retired), Subject: Active duty assignment. 1. You will report to the Assistant Secretary of the Navy, Navy Department, for duty as member of the Advisory Board on Battleship Plans. 2. This employment on short duty is required by the public interests. 3. The above assignment is subject to your consent. WILLIAM D. LEAHY, Acting. (Confirming oral instructions of 8 October 1937.) 3. Pursuant to his verbal orders of October 8, 1937, plaintiff reported for active duty on said date and performed active duty until February 8, 1938, when he was detached from further active duty, pursuant to orders issued by the Chief of the Bureau of Navigation, dated February 10, 1938, which orders provided as follows: 10 FEB. 1938. From: The Chief of the Bureau of Navigation. To: Via: Admiral Joseph Strauss, U. S. N., Retired, Assistant Secretary of the Navy. Subject: Relieved, active duty. Reference (a): Orders of 5 November 1937. 1. Having completed the duty assigned in reference (a), when directed by the Assistant Secretary of the Navy, Navy Department, you will consider yourself as relieved from active duty. 291825-41-CC-vol. 92- -37 ADOLPHUS ANDREWS. Opinion of the Court 92 C. Cls. 4. During the period from October 8, 1937, to February 8, 1938, thirteen (13) officers on the retired list of the Navy, including plaintiff, were ordered to and did perform active duty other than as members of retiring and selection boards. Of these thirteen officers, one officer was ordered to active duty on the same day that plaintiff was ordered to active duty, and two others were ordered to active duty after plaintiff had been ordered to active duty. (See opinion, infra.) 5. During the period from October 8, 1937, to February 8, 1938, while performing active duty, plaintiff was paid only the retired pay of an Admiral on the retired list. During this period plaintiff had a dependent wife, and the difference between what he received as a retired Admiral and the active duty pay and allowances of a Lieutenant Commander with dependents, credited with over thirty years' service, as computed by the General Accounting Office, is $403.33. ON FIRST MOTION FOR NEW TRIAL WHALEY, Chief Justice, on June 3, 1940, delivered the opinion of the court: This case comes before the court on a motion for a new trial by the defendant on the ground that the decision in this case was based on the decision of the court in Dickerson v. United States, 89 C. Cls. 520, which was pending in the Supreme Court at the time of filing of said motion. In the Dickerson case, supra, this court held that where an Appropriation Act failed to provide for the salary of an officer, provided for in an Authorization Act, nevertheless the officer should recover. In the instant case the plaintiff on November 16, 1925, after having attained the statutory retirement age of sixty-four years, was placed on the list of the United States Navy as a Rear Admiral. Thereafter, on June 21, 1930, he was commissioned an Admiral on the retired list. On October 8, 1937, he was ordered to report to the Assistant Secretary of the Navy for active duty as a member of the Advisory Board on Battleship Plans. He served on this Board from October 8, 1937, to February 8, 1938, and during the aforesaid period he was an officer with a dependent wife. 546 Opinion of the Court Under the act of August 29, 1916, 39 Stat. 581, when a retired officer is called back to active duty he is entitled to active duty pay and allowances. The reason plaintiff was not paid was because of the Appropriation Act of April 27, 1937, 50 Stat. 96,105, which stated in part as follows: and no part of such sum shall be available to pay active duty pay and allowances to officers in excess of nine on the retired list except retired officers temporarily ordered to active duty as members of retiring and selection boards as authorized by law. There were nine officers called back to service ahead of plaintiff and plaintiff was not ordered to serve on "retiring or selection boards." Since rendering the first decision in this case, the Supreme Court has reversed this court in the Dickerson case holding that where an Appropriation Act prohibits the pay of an officer, which is provided for in the Authorization Act, the officer cannot recover (310 U. S. 554). Under the decision of the Supreme Court in the Dickerson cuse, supra, plaintiff is not entitled to recover. The defendant's motion is allowed; the former opinion of the court is withdrawn, the judgment vacated, and the special findings of fact stand. Judgment is now rendered against the plaintiff in favor of the defendant. It is so ordered. LITTLETON, Judge; and GREEN, Judge, concur. WHITAKER, Judge, took no part in the decision of this case. ON PLAINTIFF'S SECOND MOTION FOR NEW TRIAL WHALEY, Chief Justice, on April 7, 1941, delivered the opinion of the court: Pursuant to a court order granting permission, plaintiff on October 31, 1940, filed a motion for a second new trial and to remand for the taking of additional testimony. The ground for the motion was newly discovered evidence to the effect that plaintiff was not the tenth officer on the retired list re Opinion of the Court 92 C. Cls. called to active duty during the fiscal year of 1938 but was in fact the ninth. Upon remand of the case to a commissioner, it has been found that from October 8, 1937, to October 31, 1937, plaintiff was the tenth officer on the retired list serving on active duty and that from November 1, 1937, to February 8, 1938, plaintiff was the ninth officer on said list. Recovery was denied plaintiff in our opinion on the first motion for a new trial because he came within the provision of the Appropriation Act of April 27, 1937, 50 Stat. 96, 105, that no part of the appropriation should be available to pay active duty pay and allowances to officers in excess of nine on the retired list. See Dickerson v. United States, 89 C. Cls. 520. It now appears that for a part of the period of plaintiff's claim he was in fact the ninth officer on said list. It follows from the above that plaintiff is entitled to recover for the period from November 1, 1937, to February 8, 1938, the difference between the amount actually paid him and the amount to which he is entitled under the Act of August 29, 1916 (39 Stat. 581), subject to the $7,200 limitation in the Act of June 10, 1922 (42 Stat. 628, 629). Finding 4 of the Special Findings of Fact will be withdrawn and in lieu thereof the court makes the following finding: From October 8, 1937, to October 31, 1937, plaintiff was the tenth officer on the retired list temporarily ordered to active duty and from November 1, 1937, to February 8, 1938, plaintiff was the ninth officer on said list. The plaintiff's motion for a second new trial is granted; the opinion of the court on defendant's motion for a new trial is modified to conform with the findings of fact as now amended; and the former judgment is vacated. Judgment is now rendered for the plaintiff, determination of the amount thereof to await the filing of a report by the General Accounting Office as to the sum due in accordance with the findings and this opinion. It is so ordered. MADDEN, Judge; JONES, Judge; and LITTLETON, Judge, concur. WHITAKER, Judge, took no part in the decision of this case. Reporter's Statement of the Case STAPLETON CONSTRUCTION CO., INC., TO THE USE OF THOS. G. SPERLING & CO., INC., v. THE UNITED STATES [No. 43527. Decided December 2, 1940. Defendant's motion for new trial overruled April 7, 1941] On the Proofs Government contract; extra costs by reason of faulty plans; delay.— Where in the construction and alteration of the Marine Hospital at Stapleton, Staten Island, it was found that the plans for the foundations were faulty, in that foundations prescribed by the contract would have been insufficient to sustain the weight to be put upon them; and where the contractor, plaintiff, having called such deficiency to the attention of defendant's officials, a new, supplemental contract was entered into by the parties under which new contract plaintiff performed the work and furnished the materials for the foundations in accordance with the said new contract, for which work and materials plaintiff was paid in accordance with the terms of said new contract; and where such change in the foundations caused a great amount of delay, during which the cost of labor and materials for the work under the original contract as a whole advanced very materially, to plaintiff's damage; and where plaintiff was given additional time in which to complete the job but was paid nothing for the said additional cost of labor and materials; it is held that the plaintiff is entitled to recover. Rust Engineering Co. v. United States, 86 C. Cls. 461, cited. Same; extra overhead.-Where plaintiff was delayed in completion of contract by failure of defendant to release in time an old laundry building, which under the contract was to be remodeled, and where plaintiff was allowed additional time on account of delay in connection with said failure to release the laundry building; it is held that plaintiff is entitled to recover for extra overhead incurred by reason of said delay. Same; plaintiff's duty and obligation.—It was plaintiff's moral duty, if not plaintiff's legal obligation, when the foundation plans were found to be insufficient for safe construction to advise the defendant of such insufficiency and request a change. The Reporter's statement of the case: Mr. Frederick Schwertner for the plaintiff. Mr. Joseph A. Gerardi was on the briefs. Mr. Henry Fischer, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. |