Reporter's Statement of the Case

come in which had not been settled and approved before that time. The draft was unchanged in that regard when it was taken to Washington, and as returned to plaintiff for execution the contract omitted said provision. The statement was that no provision could be made in the termination contract for anything except definite and specific amounts. The contract was dated April 14th and was executed by plaintiff on April 29, 1919. A copy of this settlement contract is made Exhibit B to the petition and is made a part of this finding by reference. Several different drafts of proposed contract were made during the negotiations before the final one was adopted and executed. The item of reimbursement for special depreciation, $35,000, stated in Exhibit B, was less than plaintiff demanded, but was fixed by the Government's representatives.

XII. The items constituting the basis for the amounts stated in said Exhibit B were made up from the latest evidence or information plaintiff had. At the time of the execution of the contract, Exhibit B, Mr. Briggs, representing the plaintiff in the negotiations, was advised that Globe Company claimed $583.30 and had that amount inserted in the list of subcontractors' claims. The Globe Company had sent to plaintiff the telegram and letters mentioned in Finding IX. When the contract, Exhibit B, was signed for plaintiff by Mr. Wilson, its secretary and treasurer, he did not know of any unsettled claim with the Globe Company. Mr. Briggs had charge of the work on this Government contract, and the information which Mr. Wilson had came largely from Mr. Briggs. The Government's officer urged expedition in making the settlement contract and stated that unless it executed the contract, Exhibit B, the Bureau of Aircraft Production would make no payments to plaintiff, and the latter would have to sue in the Court of Claims.

XIII. After the contract, Exhibit B, was signed and payments had been made thereunder by the Government, plaintiff's officers learned that the Globe Company claimed $3,793.23 as due upon the three invoices under purchase orders 98, 107 and 261. The item for $583.30, it was claimed, was for amount due on undelivered material.

On

Opinion of the Court

May 16, 1919, the approval officer corrected and approved the bills for said invoices, changing them from $4,393.97 as rendered in December, 1918, and approving them for $3,793.23. After this fact came to the attention of Mr. Briggs, the plaintiff's said sales agent, he caused to be prepared a voucher for this amount, carried it to Captain White who was district approval officer, and stated the details to that officer. The latter wrote a letter detailing these facts, enclosing the said voucher, and sent same to Washington. The said voucher, prepared at the instance of Mr. Briggs as above stated, was on one of the regular forms, was duly signed by plaintiff, was dated June 9. 1919, and was certified by Captain White. It was never paid.

XIV. The Globe Company later brought suit against plaintiff for the said sum of $3,793.23 and interest in the circuit court of Wayne County, Michigan. In August, 1920. the plaintiff gave notice to the Bureau of Aircraft Production of said suit. The Globe Company obtained summary judgment for said sum against plaintiff, and on the 31st day of January, 1921, the Globe Company, by its attorneys, acknowledged payment of the judgment. Upon receipt of plaintiff's notice of August, 1920, the Chief of Air Service, under date of September 7, 1920, informed plaintiff that the Government did not recognize any liability for Globe Company commitment beyond said sum of $583.30.

XV. The plaintiff presented its claim to the Board of Contract Adjustment and in May, 1920, that board declined to allow the same.

CAMPBELL, Chief Justice, delivered the opinion of the

court.

The plaintiff made a contract with the Government to manufacture or supply certain airplane parts on a cost-plus basis. It purchased materials from others to meet the requirements. In November, 1918, the Government gave notice, as provided for in the contract, of its termination. Representatives of the two parties met to effect a settlement of the matters growing out of the contract and to ascertain the amount of the Government's liability. These were cov

Opinion of the Court

ered into a so-called settlement contract, which was duly executed. Before it was executed, however, on behalf of the Government, a draft of the proposed contract was sent to the Bureau of Aircraft Production and the several items entering into it were gone over.

This settlement contract, dated April 14, was not executed until April 29, 1919. The items included in it aggregated over two hundred and fifty thousand dollars. After providing for the payment by the Government of these various items it was also provided: "The contractor does hereby for itself, its successors and assigns, remise, release, and forever discharge the Government of and from all manner of debts, dues, sums of money, accounts, claims, and demands due or to become due, in law or in equity, under or by reason of, or arising out of, said original contract." The plaintiff seeks to recover on account of three invoices for goods sold to it by the Globe Machine & Stamping Company and used in the work plaintiff was doing under its contract. These goods were ordered and shipped and were received by plaintiff but the price was not fixed or agreed upon prior to the suspension notice. The invoices were returned to the Globe Company for correction and were in this condition when the details of the settlement referred to were being worked out. The plaintiff called upon the Globe Company to send in the amounts of its claims and made repeated efforts to get these amounts. After several letters and telegrams had passed between them the Globe Company, on April 17th, notified the plaintiff that its only claim arose out of the disputed invoices; that these had been adjusted to a satisfactory basis and the amount of them was $583.30. It now appears that this item of $583.30 had no connection with the disputed invoices, which were originally in the sum of about $4,300 and afterwards reduced to $3,793.23. It is the last named sum that plaintiff now seeks to recover. The item of $583.30 went into the settlement and appears in the settlement contract. It was for material or parts which were not completed or were not delivered when the suspension took place. The statement by the Globe Company to the plaintiff as to the amount of the unsettled invoices was in error, but

Opinion of the Court

neither the Government's representatives nor the plaintiff's agents engaged in the settlement knew of the error. The Government insisted that all items of claim be definite and specific and declined plaintiff's proposition to be allowed a certain sum to cover unsettled claims that might later appear. There was no such mistake as would authorize relief in this case. Indeed, as between the parties making the settlement, there was no mistake. If relief could be had in view of the release actually executed, it would seem useless to have a release. It is comprehensive in terms and was intended to make definite conclusion and end of matters or disputes growing out of the contract. See William Cramp & Sons Co. Case, 206 U. S. 118, 128. In this case it was said (p. 128): "Stipulations of this kind are not to be shorn of their efficiency by any narrow, technical, and close construction. The general language all and all manner of debts,' etc., indicates a purpose to make an ending of every matter arising under or by virtue of the contract. If parties intend to leave some things open and unsettled, their intent so to do should be made manifest."

The contention that the claim in question should be included in the class of claims referred to in Article IV of the settlement contract as calling for payment of claims that had already been "vouchered by the contractor and heretofore approved for payment by the Government" can not be sustained. Not only does the petition aver it, but the facts clearly establish that the claims in question were not approved by the approval officer until May 16, long after the release was finally executed. The voucher which the contractor prepared and asked the Government officer to transmit is dated June 9, 1919. It is impossible that these matters, happening long after, could have been included in the provision mentioned. The petition should be dismissed. And it is so ordered.

HAY, Judge; DOWNEY, Judge, and BOOTH, Judge, concur.

Reporter's Statement of the Case

STATE SAVINGS BANK OF ORTLEY, SOUTH DAKOTA, A CORPORATION, v. THE UNITED STATES.

[No. B-35. Decided April 28, 1924]

On the Proofs

Implied contract; exchange of bonds stolen from mails; tort.-Where Government bonds payable to bearer are stolen from the mails, and are afterwards in due course of business presented to and exchanged by the proper officials of the Treasury for other bonds, which are given to the holder of the stolen bonds and the stolen bonds canceled, there is no implied promise on the part of the Government to pay the value of said bonds to the owner, and an action to recover their value is one sounding in tort.

The Reporter's statement of the case:

Mr. M. C. Lasell for the plaintiff.

Mr. William F. Norris, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff is a banking corporation doing a general banking business at Ortley, S. Dak.

II. On December 2, 1920, the plaintiff was the owner of the following-described United States bonds, in coupon form, payable to bearer, and all unmatured, to wit: