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CONTRACTS-Continued.
XVI. Where the United States charges against certain retained

percentages due the contractor a number of items of
expense alleged to have occurred in the completion of the
work, they must assume the burden of furnishing such
proof as will justify the conclusion that the charges

made were proper charges. Thomas, 430.
XVII. Where certain engines to be furnished under contract do not

comply with the specifications and the Government con-
tracts with other parties to remedy the defects, such
extra cost is a proper charge against the original con-

tractor. Id.
XVIII. Where the specifications make specific statements as to the

character of material to be dredged, upon which repre-
sentation the contractor had a right to rely, and it de
velops that the material actually dredged by the con-
tractor was in fact different, more difficult and expensive
to dredge, and that the defendants knew of the existence
of this more difficult material before the execution of
the contract, such representation amounts to a warranty in
a case where the contractor could not protect himself by
mere observation and the material dealt with was hidden
from view. Plaintiff had a right to rely upon the de-
scription of the materials shown on the maps furnished
as a guide to bidders, and to which their attention was
specifically called, notwithstanding it was stated that “no
guarantee is given as to the correctness of these borings."

Atlantic Dredging Co., 490.
XIX. Plaintiff having been induced to enter into a contract py

representations upon which it was entitled to rely, and
which turned out to be untrue, had the right to stop
work at any time and sue to recover for whatever amount
might be justly due it for the work already performed.

Id.
XX. A proper construction of the contract provisions relative to

delays and deductions for failure to complete authorized
suspension of the contract and assessment of liquidated
damages to the date of suspension. S. R. H. Robinson &

Son Con, Co., 536.
XXI. Where the Government completes the work of a defaulting

contractor the burden of proof is upon it to justify the
necessity for, as well as the reasonableness of, all charges
against the former for completion of the work, even
though the contractor's complaint is for a fraudulent

suspension. Id.
XXII. The Government is, of course, responsible in damages for

delaying a contractor's work and for noncompliance with

CONTRACTS—Continued.

contract provisions respecting the prompt delivery of ma-
terials undertaken to be furnished by it. U. S. Fid. &

Guar. Co., 561.
XXIII. The Government is not liable ex contractu for damages or

delays suffered by one of its contractors by virtue of the
actions of third parties merely because the latter are en-
gaged in furnishing materials for the Government as well

as for the public generally. Id.
XXIV. Where a contractor refuses to proceed with the work and

the engineer in charge telegraphs his superior that fact
and requests authority to suspend the contract in case
the contractor should not conclude to go on with the
work, and the Director of the Reclamation Service, in
communicating that telegram to the Secretary of the
Interior, recommends that the authority be granted in
order that the engineer may act promptly, as indicated
in the telegram, and the Secretary of the Interior grants
authority as recommended, and after such suspension
approves it, such suspension must be regarded as the act

of the Secretary. Pac. Coast Con. Co., 582.
XXV. Where the contract is properly suspended but the Govern-

ment materially departs from the contract terms in taking
over and completing the work, the contractor is entitled to
recover the value of his plant and equipment at the time
it was seized. And, under such circumstances, the Gov-
ernment is not entitled to recover on a counterclaim for the

excess of cost to complete over the contract price. Id.
· XXVI. It is not every mistake, however made, that will sustain or

justify a recovery of money paid by a plaintiff to a de-

fendant. Journal & Tribune Co., 612.
XXVII. The general rule is, where one party, at the request of an-

other, does work or labor or performs service for the bene-
fit of such other, that the law will imply a promise on the
part of the one receiving the benefit to pay the reasonable
value of the work or labor done or service performed,
where there is no express contract between them fixing
the terms upon which the service is to be performed.
“But the law never implies a promise to pay unless some
duty creates such an obligation, and more especially it
never implies a promise to do an act contrary to duty or

contrary to law." K. C. Mex. & Orient Ry. et al., 258.
XXVIII. Where a contract is entered into by a railroad with the

United States for transportation and the contract is ful-
filled in accordance with the contract provisions, the rail-
road is entitled to the full amount specified in the con-
tract without deduction by reason of any claim by au-
other railroad participating in the haul, and without re-

CONTRACTS—Continued.

gard to any amount the United States may have paid
the other railroad for so participating. Cin., N. 0. & Tex.

Pac. Ry., 25.

See PATENTS, I, II, III, IV, VII, VIII.
CORPORATION TAX.

See INCOME TAX.
CUSTOMS SERVICE, EMPLOYEE OF.

See CIVIL SERVICE, I, II, III.
DAMAGES.

See CONTRACTS, XV, XIX, XXV.

See OVERFLOWED LANDS, I, IV, V.
DELAYS.

See CONTRACTS, XV, XX, XXII, XXIII.
DEMURRAGE.

See ESTOPPEL, I.
DEPARTMENTAL CONSTRUCTION.
Departmental construction of a statute will be considered only

when the true construction is uncertain. Mo, Pac. Ry., 12.
DEPARTMENTAL REFERENCES.
1. The language of sections 148 and 149 of the Judicial Code

contemplate the reference by a head of a department of a
matter in which there is a claimant to which the United
States are defendants, and in which there is a money demand.

In re Prop. Ref., 370.
II. Where a claim has been finally disposed of by this court

under its general jurisdiction the same can not be reopened
upon the application of the claimant nor indirectly presented
again for consideration upon the application of some one else ;

the matter is res adjudicata. Id.
III. A claim or matter pending in a department which involves

any controverted questions of fact or law in order to be
transmitted to this court under the provisions of section 148,
Judicial Code, must be one for the “guidance and action"
of said department, and not one that is to be merely ad-

visory. Id.
DEPARTMENTAL REGULATIONS.
Since such rules and regulations as the Commissioner General of

Immigration was authorized to establish under section 22
of the act of February 20, 1907, 34 Stat., 898, 903, must be
consistent with the act itself, they could only have the force
and effect of law when not in contravention of law. Holland-

America-Line, 522.
See ESTOPPEL, I.
ESTOPPEL.
I. Plaintiff's cars loaded with cement having been detained by

order of the Reclamation Service in excess of the 48 hours
allowed by the tariffs approved by the Interstate Commerce

ESTOPPEL-Continued.

Commission and demurrage having been refused therefor
under said rules, the defendants are now estopped from mak-
ing a defense based upon the theory that the railroad com-
pany should have refused to hold the cars whether the Recla-
mation Service wished it do so or not. Denver & Rio

Grande R. R., 155.
II. Plaintiff having continued to carry the mails with the in-

creased weights occasioned by the institution of the parcel.
post service under the act of August 12, 1912, 37 Stat., 539,
557, and by its failure to avail itself of the privilege of re-
fusing to perform its contract thus further reaffirmed its
contract and can not now claim an additional allowance for

such service. N. Y., N. H. & H. R. R., 222.
III. Where the treaty makers on behalf of the Government were

well acquainted with the country, the claim of the Indians,
the other party to the treaty, the nature of the latter's pos-
session and occupation of the land, and their right to exclusive
enjoyment, they can not subsequent to the making of thy
treaty be heard to say the Indians did not own the land and

had no right to make a cession of it. Omaha Indians, 549.
IV. The distance.circular proposed no terms and the readjustment

notice did. It was the acceptance and transportation of the
mail and the repeated acceptance of the monthly or periodi-
cal pay after the Postmaster General had replied to the pro-
tests, all without protest or objection, that consummated the
contract, the terms of which were evidenced by the notice
itself. While the carrier had protested it would not consent,
it yet consented. A party will not be heard to deny the
natural and reasonable effect of his action as regards his
contractual relation or to take a position inconsistent there-
with when to do so would involve a breach of official duty by
the other contracting agent. K. C. Mex. & Orient Ry. et al.,

258.
See LAND GRANTS, II.
EVIDENCE.
I. In an action for an alleged Indian depredation the evidence

will not be considered separately from related depredations
where it is shown to be so intimately identified with other
depredation claims as to render proof of ownership uncertain.

Otero, 168.
II. A judgment against Indian funds will not be awarded on un-

corroborated statements in ex parte affidavits. Albright, 247.
III. The rules of evidence deduced from the common law govern

in this court, and as the evidence here adduced is merely
comparative, there is no rule of common law under which it
can be regarded as competent or of any probative value at all.
Globe Works, 532.

EVIDENCE-Continued.
IV. Money judgments against the United States will not be entered

on estimated damages. (See 52 C. Cls., 201; Id., 288.)

Md. Cas. Co., 81.
FIFTH AMENDMENT.

See CONSTITUTIONAL LAW.
FRAUD.

See CONTRACTS, II.
IMMIGRATION SERVICE.
See STATUTES, X; PAYMENTS, INVOLUNTARY ; DEPARTMENTAL REGU-

LATIONS.
INCOME TAX.
What constitutes taxable income under the act of August 5, 1909,

36 Stat., 112. Chicago & Alton R. R., 41.
INDIAN DEPREDATIONS.

See EVIDENCE, I, II; STATUTES, IX.
INDIAN LANDS.

See JURISDICTION; ESTOPPEL, III.
INTERIOR DEPARTMENT.

See CONTRACTS, III; STATUTES, IV.
INTERSTATE COMMERCE COMMISSION.

See ESTOPPEL, I.
JURSIDICTION.
The jurisdictional act of April 4, 1910, 36 Stat., 269, 294, requires

this court to report a “finding of fact” as between the United
States and the plaintiff as to the interest, title, ownership, and
right of possession of such tribe of Indians in and to certain
described lands. The question of title, etc., in and to these
lands being entirely a question of law to be determined from
the facts as found, the court is without jurisdiction to report
on that question, and the report must be limited to the facts

as they appear. Yankton Sious, 67.
See PATENTS, I.
LAND GRANTS.
I. It definitely appears that the Port Huron & Lake Michigan

Railroad Co. applied for lands, asserted its right to them,
accepted the grant, and proceeded to exercise ownership
and control of them, and the court therefore holds its succes-
sor in title, plaintiff herein, to be a land-aided road from

Port Huron to Flint. Grand Trunk West. Ry., 473.
II. There was a postal route from Port Huron to Flint as early as

1872. When the plaintiff acquired that portion of road in
1900, it had never been treated as land aided, and not until
after the plaintiff had carried the mails for 12 years and
been paid therefor the rates fixed in the Postmaster General's
readjustment orders was the question raised that the mails
must be transported from Port Huron to Flint at 80 per
cent of the compensation awarded roads which were not land

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