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certain and uncertain in their nature. The rule holding the sum to be a penalty in the latter case goes upon the injustice of allowing such a recovery for a less amount of actual damages ascertained or readily ascertainable. And we can not but think that there is like injustice in allowing equally, in case of damages, uncertain indeed, but manifestly and materially different in amount, equally for breach of part of the contract and for breach of the entire contract. Such a rule would not only put the same value on a small part as on a large part, but would put the same value on any part as on the whole."

See also Hale on Damages, pages 138 et seq.

A question similar to the one here presented was considered in 8 Comp. Dec., 487. In that case a contract was made for the erection of two buildings, each for a separate consideration. One building was to be completed January 1 and the other July 1, 1901. The former was completed on time, but the latter was not completed until twenty-one days after the time stipulated.

In the decision of that case it was said:

"Suppose the contract had been for the erection of ten buildings, each for a separate consideration and each to be completed on a different day, and provided that, if the contractor should neglect, fail, or refuse to complete the entire work within the time specified, there should be deducted $100 per day from the contract price stipulated to be paid for each day that the completion and delivery of the work should be delayed beyond the time specified in the contract, and suppose the contractor had completed nine of the houses on time, but failed to complete the tenth house (which may have been a very small part of his obligation) within the time fixed, in such a case I think he should be held responsible for the actual damages sustained because the tenth house was not completed on time, and not for the whole amount of $100 for each day the completion of the tenth house was delayed beyond the time fixed for the completion of the entire work. To hold otherwise would be to assess damages for a small failure the same as for a total failure, without regard to the unequal damages depending upon a partial or total failure."

In that case it was held that the contract provided for a penalty. See also 3 Parsons on Contracts, 161; Astley v. Weldon (2 Bos. and Pul., 346); Foley v. McKeegan (4 Iowa, 1); Carpenter v. Lockhart (1 Ind., 434); Lampman v. Cochran (16 N. Y., 275).

I am of the opinion that the contract now under consideration must be regarded and construed as providing for a penalty and not for liquidated damages.

In the settlement a charge should also be made against the contractor for $110, said amount having been paid by his direction to the firm of Harmer & Quinn for grading 550 cubic yards at 20 cents per yard.

On February 21, 1905, in a letter addressed to the Chief of Ordnance in connection with this case, I said:

"On November 25, 1903, Lieutenant-Colonel Heath, the commanding officer in charge of said work, in reporting on this case, said:

"Respectfully returned to the Chief of Ordnance, U. S. Army, with report that except the loss of the use of the buildings and the interest on the money invested in them, there was no actual damage sustained by the United States

* **


"The delay suffered by the Government in not being permitted to occupy these buildings on account of their not being finished would necessarily be an element of actual damage.

"These damages are measured by the fair rental value of these buildings during the time the Government was so deprived of their use.

"Will you please inform me of the fair rental value of these buildings for the time the Government was deprived of their use, if so deprived by the failure of the contractor to finish same for occupancy as agreed?"

Replying thereto, Lieutenant-Colonel Heath reports as follows, in his indorsement dated March 1, 1905:

"1. Respectfully returned to the Chief of Ordnance, U. S. Army.

2. In the case of the power-plant building there was no delay due to the noncompletion of the building, as the engine and boiler foundations were started as soon as the building was under cover.

"3. In the case of the boxing shop every day's delay was a source of inconvenience and positive loss, as the failure of the contractor to promptly carry on his work delayed other contractors, and resulted in a considerable quantity of machinery and supplies standing idle, and cramping the work for which the building was provided.

"4. It is therefore thought that the sum of $10 per day represents a very moderate rental value for this building. The period of time for which this rental should be computed is 209 days, from March 16, 1903, to November 13, 1903. The sum due the Government is therefore $2,090.

The principle of law governing the measure of damages in a case such as the one now under consideration, and as I have stated in my letter quoted supra, is too well settled to require discussion here. See Hale on Damages, pages 176-177; also Horton v. Cooley, 135 Mass., 589.

It follows, therefore, that the action of the Auditor must be disapproved. In the settlement the contractor should be charged with the following items:

$250. 15

Cost of superintendence during the delay period.
Claim of Harmer & Quinn, paid by his direction
Damages (rental value), as above stated...............


2,090. 00


2,450. 15

A certificate of difference will therefore issue in favor of said contractor and his trustee in bankruptcy for thirteen hundred and sixty-nine dollars and eighty-five cents ($1,369.85), said sum being the difference between the sum herein directed to be charged against the contractor and the sum ($3,820) charged by the Auditor in his settlement.


A deputy marshal who was directed by a district attorney to notify a defendant that "if he did not appear in court when his case was called he would be sent for" was not engaged on "official business" while delivering said message, and he is not, therefore, entitled to reimbursement of his expenses.

(Comptroller Tracewell to T. L. Matthews; marshal, March 10, 1905.)

I have received your letter of 15th ultimo, inclosing an account of Office Deputy James Allan for an item of expense incurred in delivering a message, at the instance of the United States attorney, to a defendant in a case then pending in court.

From the correspondence submitted by you it appears that the deputy had been engaged in the service of subpoenas in the case of the United States against said defendent, and

while so engaged was telephoned by the United States attorney

"to go out in the country ten or twelve miles and notify the defendant St. John that if he did not appear in court when his case was called he would be sent for. A team was hired for that purpose.




It does not appear that any process or order of the court was issued or that the deputy was acting under your instructions.

Under section 10 of the act of May 28, 1896 (29 Stat., 182), an office deputy is entitled to reimbursement of certain expenses incurred by him while engaged in the service of process, subpoena, or other order of the court, "or when necessarily absent from the place of his regular employment on official business."

The question thus presented for my consideration is as to whether the business in which the deputy was employed is official business within the meaning of the statute above cited.

This question has never been determined by any court, and only in a few instances have I been called on to give it any consideration.

As to the exercise of any, authority by a district attorney or the marshal to instruct a marshal or his deputy, where such instruction is in violation of law, the cases are numerous in which expenses incurred by office deputies are disallowed, either in part or in whole. See 4 Comp. Dec., 643; 5 Comp. Dec., 353.

The case in 7 Comp. Dec., 266, was where an office deputy was directed by an assistant United States attorney to attend an examination before a United States commissioner under unusual conditions, and because it is part of the duties of deputy marshals to attend on commissioners at preliminary examinations it was held that such deputy was necessarily absent on official business within the meaning of the act of 1896, supra, and entitled to reimbursement for actual expenses incurred, and the authority of the district attorney to make such direction was considered competent.

The question is raised by the Attorney-General as to the necessity for incurring the expense in question to notify a defendant in the suit pending against him where his presence

could be assured by legal process in case he failed to appear when called for trial.

The United States attorney, in the letter referred to by you, says that there had been previous delays in bringing the defendant to trial and it was in order to avoid the expense of having our witnesses come to Omaha should the case not be ready for trial owing to the absence of the defendant" that he directed the deputy to serve the notice on the defendant in the manner mentioned.


While it is true that some discretion is vested in the district attorney as regards the administration of the law," yet I can not conclude that he is authorized to direct a duty to be performed by a marshal or his deputy other than that defined by section 787 of the Revised Statutes, which is "to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States," * and therefore I conclude that the deputy was not on official business under the statute when delivering the message in question, since he was not legally required to do it. See MS. Dec., vol. 27, page 546.


Accordingly you are not authorized to pay Deputy Allan the amount paid for team hire to take the message of the district attorney out of the appropriation "Salaries, fees, and expenses, United States marshals."




Where a clerk in a post-office was promoted from a position at $800 per annum to one at $900 per annum on the sixteenth day of a 28-day month, he is entitled for his services during said month to fifteenthirtieths of a month's pay at $800 and thirteen-thirtieths at $900 per


(Comptroller Tracewell to George I. Allen, postmaster, March 11, 1905.)

I have received your communication of the 9th instant as follows:

"Your favor of the 8th instant at hand and noted. Now if I understand you correctly, i. e., that a clerk who has been in

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