APPEAL from a judgment of the Court of Claims rejecting a claim of the Railroad on account of transportation of men of the army and navy.

Mr. Benjamin Carter for the appellant.

Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

Appellant owns and operates a system of railroads among which are two land-grant aided lines. During the period from 1911 to 1917 there were transported for the Government over these lines upon transportation requests large numbers of officers and enlisted men of the United States army and navy. Individual passenger rates to the public during that time were in force, and in addition certain party rates open to the public by which ten or more passengers were entitled to reduced rates. Some of the rate tariffs provided for cash payments when tickets were issued and that there should be no land-grant deductions made from such party rates. In other tariffs no such provisions were made. As initial carrier, appellant presented its bills on proper forms to the disbursing officers of the Government. In some of the bills individual rates with land-grant deductions were charged where ten or more persons had been transported in troop movement; and in others party rates without land-grant deductions were charged, depending upon which was the lower rate. The accounting officers of the Government in all these cases applied party rates with land-grant deductions. To these rulings appellant filed protests, and this suit to recover the amounts involved followed.

The court below denied appellant's right of recovery. 59 C. Cls. 886.

Appellant's contentions are (1) that the Government in transporting troops has no right to avail itself of party rates but that these are restricted to passengers traveling on private account and (2) that if the Government avail itself of the party rates it must pay cash in advance in accordance with the tariff provisions.

It is not disputed that in virtue of valid acts of Congress (for example, see c. 115, 36 Stat. 243, 256) appellant's land-grant aided lines were bound to carry officers and men of the army and navy at a rate, in the words of the law, "not to exceed fifty per centum of the compensation for such government transportation as shall at that time be charged to and paid by private parties to any such company for like and similar transportation " and that such amounts must "be accepted as in full for all demands for such service." That the party rates, being open to private parties, were open to the Government with a deduction of 50% under this express provision of the statute, does not admit of doubt.

Nor is there any merit in the contention that the Government may avail itself of the rate only by paying cash in advance. Appellant issued the tickets and sent in its bills therefor without asking for cash payments. It thereby waived the requirement, if any existed, for payment in cash. Moreover, as the court below pointed out, the Government from the very nature of things cannot be required to deal for transportation on a cash basis. It is not to be supposed that station agents generally are familiar with the land-grant legislation or the limits of the various land-grant lines so as to be able readily to make the necessary computations. But, in any event, the well settled practice of the Government is to issue requisitions for transportation, and to require the rendition of bills therefor to be examined and audited by its

accounting officers. This method was recognized and accepted by appellant in the present case. See Louisville & Nashville R. R. Co. v. United States, 58 C. Cls. 622, 631. Judgment affirmed.

DAVIS SEWING MACHINE COMPANY v. UNITED

STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 82. Argued January 6, 1927-Decided February 21, 1927. A claim for profits anticipated from the performance of a contract with the Government cannot be based on delays caused by changes made by the Government, when under the contract itself the remedy for such delays was to be an extension of time to the contractor, and when the contract was terminated by a supplemental agreement expressly releasing all claims for such profits. P. 325. 60 Ct. Cls. 201, affirmed.

APPEAL from a judgment of the Court of Claims disallowing in part a claim under a contract to make Very pistols for the Government.

Mr. Raymond M. Hudson for the appellant.

Solicitor General Mitchell and Assistant Attorney General Galloway were on the brief for the United States.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

This suit was brought to recover upon a contract between appellant and the United States to manufacture a large number of Very pistols. It was stipulated in the contract that the Government might terminate it in whole or in part at any time and in that event certain enumerated payments were to be made, not including, however, prospective profits upon uncompleted articles. The contract provided that upon written notice the Government

might make changes in the specifications, increased cost, if any, to be paid, and, for any delay in consequence thereof, a corresponding extension of time for the performance of the contract to be allowed. After the Armistice appellant was requested to suspend work with a view to the negotiation of a supplemental contract providing for the cancellation, settlement and adjustment of the existing contract. Subsequently, appellant filed a claim; and a partial payment supplemental contract was executed, by which the Government agreed to make appellant an advance payment and speedily determine and pay certain specified items. Appellant agreed that it would not perform further work or services, or incur further expense in connection with the performance of the uncompleted part of its original contract, and expressly waived" all claim to the prospective profits which he [it] might have made from the performance of that portion of said original contract which under the terms of this supplemental agreement will not be performed." The advance payment was made, and the court below found that, after its deduction and the allowance of another credit, there was due appellant a balance of $14,192.25; and it refused to allow appellant anything for profits which appellant would have realized if the contract had been performed. Judgment was rendered accordingly. 60 C. Cls. 201. The appeal to this court was taken under the law as it stood prior to the Act of February 13, 1925, c. 229, 43 Stat. 936.

Appellant contends that changes made by the Government in the specifications, etc., occasioned such delay as to preclude full operations under its contract prior to the termination thereof, and that it should have judgment for the profits which it would otherwise have made. The conclusive answer to this contention is two-fold: (1) The contract itself specified the remedies, to which appellant would be entitled in the event of changes in or a complete or partial termination of the contract, among which pros

pective profits were not included; and (2) appellant by the terms of the supplemental contract expressly released all claims to such profits.

Judgment affirmed.

SACRAMENTO NAVIGATION COMPANY v. SALZ.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 51. Argued December 2, 3, 1926.-Decided February 21, 1927. 1. A contract for the transportation of cargo shipped on board a barge, with privilege to the carrier of reshipping, in whole or in part, on steamboats or barges and of towing with one steamer two or more barges at the same time, is a contract of affreightment, in which it is necessarily implied that the barge as a means of transportation will be used in conjunction with a steamer or tug, to be furnished by the carrier, the two constituting together the effective instrumentality. P. 328.

2. In such case, the barge and the tug together constitute the "vessel transporting merchandise or property " within § 3 of the Harter Act. P. 330.

3. The rule of strict construction is not violated by permitting the words of a statute to have their full meaning or the more extended of two meanings. P. 329.

3 F (2d) 759, reversed.

CERTIORARI (268 U. S. 683) to a decree of the Circuit Court of Appeals which affirmed a decree of the District Court in favor of Salz, the present respondent, in a suit in personam brought by him to recover for the loss of a cargo of barley while it was being towed by the petitioner under a contract of affreightment.

Mr. Louis T. Hengstler, with whom Messrs. H. H. Sanborn and Frederick W. Dorr were on the brief, for the petitioner.

Mr. Carroll Single, with whom Mr. S. Hasket Derby was on the brief, for the respondent.