A-2712, OCTOBER 24, 1924, 4 COMP. GEN. 404

A-2712: Oct 24, 1924

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THE TRANSACTION IS CLOSED IN SO FAR AS THE RIGHT OF THE CONTRACTOR TO MAKE FURTHER CLAIMS UNDER THE CONTRACT IS CONCERNED. AN EXTENSION WAS GRANTED TO THE CONTRACTOR FOR TIME OF ALLEGED DELAY BY THE UNITED STATES WITHOUT THE DEDUCTION OF LIQUIDATED DAMAGES THEREFOR. THE PAYMENT BY THE UNITED STATES OF DAMAGES FOR SAID DELAY IS UNAUTHORIZED. 985.05 AS DAMAGES ALLEGED TO HAVE RESULTED FROM THE DELAY OF THE UNITED STATES IN FURNISHING MATERIAL FOR THE ERECTION OF HANGARS AT MITCHEL FIELD. THERE IS FOR CONSIDERATION: (1) WHETHER THE GENERAL ACCOUNTING OFFICE HAS JURISDICTION TO SETTLE A CLAIM AGAINST THE UNITED STATES FOR UNLIQUIDATED DAMAGES. WHETHER UPON THE FACTS APPEARING THE UNITED STATES IS LEGALLY CHARGEABLE WITH DAMAGES HERE FOR FAILURE TO FURNISH MATERIAL ON TIME.

A-2712, OCTOBER 24, 1924, 4 COMP. GEN. 404

JURISDICTION OF THE GENERAL ACCOUNTING OFFICE - DAMAGES, CONTRACTS UNDER SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, THE GENERAL ACCOUNTING OFFICE HAS JURISDICTION TO SETTLE ALL CLAIMS AGAINST THE UNITED STATES, WHETHER LIQUIDATED OR UNLIQUIDATED, SAVE THOSE EXPRESSLY EXCEPTED BY STATUTE. WHERE, UNDER A CONTRACT PROVIDING FOR THE TAKING DOWN AND REERECTION OF CERTAIN STEEL HANGARS ON A GOVERNMENT RESERVATION, THE CONTRACTOR SUBMITTED ITS INVOICE TO THE DISBURSING OFFICER FOR A CERTAIN SUM IN "FINAL PAYMENT," CERTIFIED THE INVOICE AND VOUCHER AS "CORRECT," AND RECEIVED THE FINAL PAYMENT FROM THE DISBURSING OFFICER, THE TRANSACTION IS CLOSED IN SO FAR AS THE RIGHT OF THE CONTRACTOR TO MAKE FURTHER CLAIMS UNDER THE CONTRACT IS CONCERNED. WHERE A CONTRACT PROVIDED FOR THE PAYMENT BY THE CONTRACTOR OF LIQUIDATED DAMAGES FOR DELAYS BUT MADE NO PROVISION FOR THE PAYMENT BY THE UNITED STATES OF DAMAGES FOR DELAYS, AND AN EXTENSION WAS GRANTED TO THE CONTRACTOR FOR TIME OF ALLEGED DELAY BY THE UNITED STATES WITHOUT THE DEDUCTION OF LIQUIDATED DAMAGES THEREFOR, THE PAYMENT BY THE UNITED STATES OF DAMAGES FOR SAID DELAY IS UNAUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 24, 1924:

IN CONNECTION WITH THE SETTLEMENT OF THE CLAIM OF THE DONNELL-ZANE CO., INC., FOR $4,985.05 AS DAMAGES ALLEGED TO HAVE RESULTED FROM THE DELAY OF THE UNITED STATES IN FURNISHING MATERIAL FOR THE ERECTION OF HANGARS AT MITCHEL FIELD, LONG ISLAND, N.Y., UNDER CONTRACT DATED MAY 4, 1922, THERE IS FOR CONSIDERATION: (1) WHETHER THE GENERAL ACCOUNTING OFFICE HAS JURISDICTION TO SETTLE A CLAIM AGAINST THE UNITED STATES FOR UNLIQUIDATED DAMAGES; AND (2) IF SO, WHETHER UPON THE FACTS APPEARING THE UNITED STATES IS LEGALLY CHARGEABLE WITH DAMAGES HERE FOR FAILURE TO FURNISH MATERIAL ON TIME. THESE QUESTIONS WILL BE CONSIDERED IN THE ORDER STATED.

FROM A PERIOD ANTERIOR TO THE ESTABLISHMENT OF THE GOVERNMENT ITSELF AND SINCE THE ORDINANCE OF SEPTEMBER 26, 1778, OF THE CONTINENTAL CONGRESS, THE ACCOUNTING OFFICERS HAVE BEEN AUTHORIZED TO ADJUST AND SETTLE PUBLIC CLAIMS AND ACCOUNTS. SINCE THE ACT OF MARCH 3, 1817, 3 STAT. 366, WHICH WAS CARRIED INTO THE REVISED STATUTES AS SECTION 236 AND REENACTED AS SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, IT HAS BEEN PROVIDED THAT THE ACCOUNTING OFFICERS SHALL SETTLE AND ADJUST---

ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, * * *.

A MORE COMPREHENSIVE PROVISION OF LAW IN THE MATTER OF JURISDICTION OF CLAIMS OR ACCOUNTS IN WHICH THE UNITED STATES IS CONCERNED COULD HARDLY BE DRAFTED. IT IS AN ELEMENTARY RULE OF STATUTORY CONSTRUCTION THAT IN DETERMINING THE LEGISLATIVE INTENT OF A STATUTE, THE WORDS OF THE STATUTE ARE TO BE CONSIDERED IN THEIR NATURAL AND ORDINARY SIGNIFICATION. WHEN SO CONSIDERED, THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT THAT THE CONGRESS, IN ENACTING SECTION 305 OF THE ACT OF JUNE 10, 1921, INTENDED TO CONFER ON THE GENERAL ACCOUNTING OFFICE JURISDICTION TO SETTLE AND ADJUST ALL CLAIMS AND DEMANDS, WHETHER LIQUIDATED OR UNLIQUIDATED, OF THE UNITED STATES OR AGAINST IT, EXCEPT WHERE IT HAS BEEN SPECIFICALLY PROVIDED OTHERWISE BY STATUTE WITH REFERENCE TO A PARTICULAR CLAIM OR CLASS OF CLAIMS.

A CLAIM HAS BEEN JUDICIALLY DEFINED AS THE ASSERTION OF LIABILITY TO THE PARTY MAKING IT TO PAY A SUM OF MONEY. CORNELL V. TRAVELERS INSURANCE CO., 175 N.Y., 239. IT INCLUDES AND EMBRACES EVERY SPECIES OF LEGAL DEMAND. TELEGRAPH CO. V. COBBS, 47 ARK., 344; KNUTSON V. KROOK, 111 INN., 352; VEEDER V. VEEDER, 1 DEN. (N.Y.), 257. THE WORD "DEMAND" INCLUDES EVERYTHING WHICH MAY BE RECOVERED BY SUIT. KELLY V. MADISON, 43 WIS., 638; ROSSER V. BROWN, 66 ALA., 89; HALLEN V. DAVIS, 59 IOWA, 444; MAYBERRY V. MCCLURY, 51 MO., 256. THE WORD "SETTLE" MEANS TO ASCERTAIN AND PAY WHILE "ADJUST" MEANS TO DETERMINE THE AMOUNT DUE, LYNCH V. NUGENT, 80 IOWA, 422; TOWNES V. BIRCHETT, 12 LEIGH (VA.), 173; STATE V. MOORE, 24 L.R.A., 774, AND CASES THERE COLLATED.

IT WOULD APPEAR TO BE CLEAR THAT SECTION 305 OF THE BUDGET AND ACCOUNTING ACT MAKES NO DISTINCTION BETWEEN LIQUIDATED AND UNLIQUIDATED CLAIMS, AND AS TO SECTION 236, REVISED STATUTES, THAT HAS BEEN THE VIEW OF FORMER COMPTROLLERS OF THE TREASURY. JUDGE DOWNEY, THEN COMPTROLLER OF THE TREASURY AND NOW AN ASSOCIATE JUSTICE OF THE UNITED STATES COURT OF CLAIMS, AFTER COLLECTING AND REFERRING TO DECISIONS OF HIS PREDECESSORS AND TO CERTAIN DECISIONS OF THE COURTS AND OPINIONS OF THE ATTORNEY GENERAL, SAID IN 21 COMP. DEC. 134, AT PAGE 138, THAT---

* * * THE ACCOUNTING OFFICERS HAVE JURISDICTION TO SETTLE, EXCEPT WHERE OTHERWISE PROVIDED BY STATUTE, ANY AND ALL CLAIMS AGAINST THE GOVERNMENT, OF WHATEVER KIND OR DESCRIPTION THAT MAY BE PRESENTED TO THEM FOR SETTLEMENT, AND THEY HAVE THE POWER TO ALLOW ANY LEGAL CLAIM THAT IS SUPPORTED BY EVIDENCE FULLY SHOWING THE LIABILITY OF THE GOVERNMENT FOR THE AMOUNT CLAIMED OR ALLOWED. SOME CLAIMS, SUCH AS CLAIMS FOR LIQUIDATED DAMAGES RESULTING FROM BREACH OF CONTRACT, ARE OF A NATURE THAT MAY AND GENERALLY DO MAKE IT IMPRACTICABLE FOR THE ACCOUNTING OFFICERS TO DETERMINE WITH ACCURACY THEIR TRUE MERIT. SUCH CLAIMS OFTEN AND GENERALLY DO CALL FOR THE TAKING OF TESTIMONY, THE CROSS-EXAMINATION OF WITNESSES, THE WEIGHING OF CONFLICTING EVIDENCE, ETC., BEFORE ANY DETERMINATION AS TO THEIR JUSTNESS CAN BE REACHED. AND BECAUSE OF THIS--- I.E., BECAUSE THE ACCOUNTING OFFICERS HAVE NOT THE NECESSARY MACHINERY FOR DETERMINING THE MERITS OF SUCH CLAIMS, AND NOT BECAUSE OF ANY LACK OF JURISDICTION--- IT HAS BEEN A RULE, ADOPTED BY SUCCESSIVE COMPTROLLERS, NOT TO ALLOW THEM. THE REAL AND TRUE REASON FOR SUCH DISALLOWANCE SHOULD BE STATED, HOWEVER, AND NOT THE FICTITIOUS REASON GENERALLY ASSIGNED.

THEN AGAIN, THERE IS A CLASS OF CLAIMS WHICH INVOLVE NO ELEMENT OF DAMAGES FOR BREACH OF CONTRACT, BUT ARE CLAIMS SIMPLY FOR VALUE, ARISING UPON CONTRACT EXPRESS OR IMPLIED. THE CLAIM HERE CONSIDERED IS AN EXAMPLE OF THIS CLASS. THE ACCOUNTING OFFICERS CAN AND SHOULD SETTLE SUCH CLAIMS, AND SHOULD ALLOW THEM WHENEVER THE REASONABLENESS THEREOF AND THE OBLIGATION OF THE GOVERNMENT TO PAY ARE CLEARLY ESTABLISHED. WHEREVER, HOWEVER, SUCH CLAIMS RESOLVE THEMSELVES INTO DISPUTED QUESTIONS OF FACT--- I.E., WHERE THE PARTIES DIFFER AS TO THE VALUE OF THE THING IN QUESTION AND THE ACCOUNTING OFFICERS ARE UNABLE TO DETERMINE WITH ANY SUBSTANTIAL DEGREE OF ACCURACY THE CORRECTNESS OF THE CLAIM PRESENTED OR THE TRUE AMOUNT DUE--- THE CLAIM SHOULD BE DISALLOWED, LEAVING IT TO THE PARTIES TO ASSERT THEIR RIGHTS IN A COURT OF LAW. (19 COMP. DEC. 409.)

THE JURISDICTION OF THE ACCOUNTING OFFICERS IS EMPHASIZED BY THE STATUTORY REQUIREMENT THAT JUDGMENTS OF THE COURTS, WITH A FEW SPECIFIC EXCEPTIONS, ARE TO BE REPORTED TO THE CONGRESS FOR APPROPRIATIONS. THE APPROPRIATIONS ORIGINALLY AVAILABLE FOR THE PARTICULAR SUBJECT MATTER ARE NOT ORDINARILY CHARGEABLE WITH SUCH JUDGMENTS. CLAIMS SETTLED AND ADJUSTED BY THE GENERAL ACCOUNTING OFFICE ARE PAYABLE FROM THE ORIGINAL APPROPRIATIONS AND ARE CERTIFIED TO CONGRESS FOR APPROPRIATION ONLY WHEN THE ORIGINAL APPROPRIATION HAS CEASED TO BE AVAILABLE. THE DIFFERENCE IN THE RESULT IN THE TWO FORUMS--- THE COURTS AND THE GENERAL ACCOUNTING OFFICE--- HERE CLEARLY APPEARS. A FAVORABLE DETERMINATION BY THE GENERAL ACCOUNTING OFFICE UPON A CLAIM MAKES IT IMMEDIATELY PAYABLE FROM SUCH MONEYS AS MAY REMAIN UNEXPENDED IN THE OBLIGATED APPROPRIATION AND THERE APPEARS NO INTENDMENT IN THE STATUTORY JURISDICTION CONFERRED TO SETTLE AND ADJUST ALL CLAIMS WHATEVER, THAT A CLAIMANT SHALL BE DENIED RELIEF AS TO LEGAL OBLIGATIONS AGAINST THE UNITED STATES AND SENT TO THE COURTS SIMPLY BECAUSE THE CLAIM MAY BE TECHNICALLY CLASSIFIED AS LIQUIDATED OR UNLIQUIDATED.

THERE BEING JURISDICTION IN THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS FOR UNLIQUIDATED DAMAGES BY REASON OF A BREACH OF A CONTRACT, THERE IS HERE FOR DECISION WHETHER THE INSTANT CLAIM, OR ANY PART THEREOF, IS A LEGAL CHARGE AGAINST THE UNITED STATES.

THE CONTRACT OF MAY 4, 1922, BETWEEN THE UNITED STATES AND THE DONNELL- ZANE CO. (INC.), REQUIRED THE CONTRACTOR TO TAKE DOWN AND REERECT CERTAIN STEEL HANGARS AT MITCHEL FIELD, LONG ISLAND, N.Y. THE UNITED STATES AGREED TO FURNISH CERTAIN MATERIAL AND TO PAY $22,619 FOR THE WORK. THE CONTRACT WAS MODIFIED BY A SUPPLEMENTAL AGREEMENT DATED FEBRUARY 7, 1923, TO PROVIDE FOR CERTAIN ADDITIONAL WORK AT A COST OF $664, MAKING A TOTAL OF $23,283 FOR THE COMPLETE JOB. THE CONTRACT DATE FOR COMPLETION WAS FIXED AT AUGUST 11, 1922. TIME WAS MADE THE ESSENCE OF THE CONTRACT AND FOR ANY DELAY IN COMPLETION OF THE WORK BEYOND THE AGREED DATE DAMAGES WERE LIQUIDATED IN ADVANCE AT $10 FOR EACH CALENDAR DAY OF DELAY, WITH THE STIPULATION THAT---

INTERRUPTION OF WORK RESULTING FROM FAILURE OF THE GOVERNMENT TO RENDER DECISIONS, OR CAUSED BY TORNADOES, FLOODS, LIGHTNING, OR OTHER SUCH ACTS OF GOD, SHALL BE CONSIDERED UNAVOIDABLE AND BEYOND THE CONTROL OF THE CONTRACTOR. SUCH DELAYS WILL NOT BE SUBJECT TO PAYMENT OF DAMAGES. WHERE, HOWEVER, DELAY IN EXECUTION OF WORK IS DUE TO NONDELIVERY, OR THE REJECTION OF MATERIALS, CHANGES IN MARKET CONDITIONS, FAILURE TO SUBMIT DRAWINGS FOR CORRECTION AND APPROVAL, SUCH DELAYS SHALL NOT BE CONSIDERED UNAVOIDABLE. PRELIMINARY CLAIM FOR EXTENSION OF TIME, INCLUDING STATEMENT OF CAUSE OR CAUSES UPON WHICH THE CLAIM IS PREDICATED, MUST BE FILED BY THE CONTRACTOR WITH THE CONSTRUCTING OFFICER WITHIN TEN (10) DAYS AFTER THE OCCURRENCE OF SUCH CAUSES OF ALLEGED DELAY; FAILURE TO DO SO WILL PRECLUDE SUCH CAUSE FROM BEING CONSIDERED IN CASE A FORMAL CLAIM FOR EXTENSION IS LATER PRESENTED. * * *

THE WORK WAS DELAYED UNTIL ON OR ABOUT FEBRUARY 19, 1923, BY REASON OF THE FAILURE OF THE UNITED STATES TO FURNISH CERTAIN MATERIAL. WHEN THE WORK WAS COMPLETED, AND ON FEBRUARY 19, 1923, THE CONTRACTOR SUBMITTED THE FOLLOWING:

TABLE

APPLICATION FOR FINAL PAYMENT TO CONTRACT FOR DISMANTLING AND REERECTING STEEL HANGARS AT

MITCHEL FIELD, L.I., N.Y., AS PER CONTRACT DATED MAY 4TH,

1922 ------------------------------------------------------- $22,619.00 TO SUPPLEMENTAL AGREEMENT DATED FEBRUARY 7TH, 1923, FOR TAKING

DOWN AND ERECTING STEEL HANGARS AT MITCHEL FIELD, L.I., N.Y. 664.00

23,283.00

LESS PREVIOUS PAYMENT ------------------------------------ 20,340.64

---------- BALANCE DUE -- ----------------------------------------------- 2,942.36

WE HEREBY CERTIFY THE ABOVE TO BE CORRECT AND JUST AND THAT PAYMENT THEREFOR HAS NOT BEEN RECEIVED.

DONNELL-ZANE COMPANY, INC.,

PER H. J. ZANE, JR., TREAS. AND ON APRIL 19, 1923, CAPT. M.T. LEGG, FINANCE DEPARTMENT, PAID THE CONTRACTOR THE $2,942.36 CLAIMED AS "BALANCE DUE.'

THEREAFTER, AND ON JUNE 28, 1923, THE CONTRACTOR ADDRESSED A LETTER TO THE QUARTERMASTER GENERAL OF THE ARMY, UNDER WHOSE JURISDICTION THE WORK WAS PERFORMED, ALLEGING THAT THE FAILURE OF THE UNITED STATES TO FURNISH MATERIAL AS REQUESTED HAD CAUSED IT TO EXPEND $4,985.05 MORE THAN WOULD HAVE BEEN EXPENDED HAD THE WORK BEEN COMPLETED ON AUGUST 11, 1922, AND NOT DELAYED UNTIL ON OR ABOUT FEBRUARY 19, 1923. THE CLAIM WAS INVESTIGATED BY AN ARMY OFFICER AND THE QUARTERMASTER GENERAL FORWARDED THE CLAIM TO THE GENERAL ACCOUNTING OFFICE WITH THE STATEMENT "THAT AS NEAR AS CAN BE DETERMINED THE CONTRACTOR INCURRED ADDITIONAL EXPENSES, AGGREGATING $3,059.25, DUE TO DELAYS BY THE GOVERNMENT IN FAILING TO FURNISH MATERIAL ON TIME.' THERE ARE AT LEAST TWO REASONS WHY THE UNITED STATES IS NOT LEGALLY CHARGEABLE WITH DAMAGES IN THE INSTANT CASE.

AS TO THE FIRST REASON: THE CONTRACTOR WAS GIVEN AN EXTENSION OF TIME FOR THE DELAY FROM AUGUST 11, 1922, TO FEBRUARY 19, 1923, AND NO LIQUIDATED DAMAGES WERE DEDUCTED FROM PAYMENTS BY REASON OF SUCH DELAYS. THE CONTRACT DID NOT STIPULATE FOR DAMAGES FOR DELAYS CAUSED BY THE UNITED STATES; AND IF TIME WAS A MATERIAL ELEMENT DUE THE CONTRACTOR, IT SIGNALLY FAILED TO HAVE MENTION THEREOF MADE IN THE CONTRACT. IT MUST BE ASSUMED THAT IN DETERMINING ITS PRICE FOR THE WORK CLAIMANT GAVE CONSIDERATION TO THE CONSEQUENCE OF POSSIBLE DELAYS CAUSED BY THE GOVERNMENT AND CONTRACTED ACCORDINGLY. BY STIPULATING IN THE CONTRACT THE RIGHTS RESERVED TO THE PARTIES SUCH RIGHTS ARE EXCLUSIVE. IN ACCORDANCE WITH THE MAXIM THAT EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS IT MUST THEREFORE BE CONCLUDED THAT THE UNITED STATES IS NOT LIABLE FOR DAMAGES DUE TO DELAY IN DELIVERY OF MATERIAL. SEE DECISIONS DATED MARCH 31, 1923, AND JULY 31, 1924, ON CLAIMS OF THE EDGEMOR IRON CO., AND LANGE AND BERGSTROM, RESPECTIVELY.

AN AGREEMENT THAT THE UNITED STATES WILL NOT BE SUBJECT TO PAYMENT OF DAMAGES BY REASON OF CERTAIN DELAYS IS BINDING ON THE CONTRACTOR. SEE ROBINSON V. UNITED STATES, 261 U.S. 486.

AS TO THE SECOND REASON: THE CONTRACTOR SUBMITTED ITS INVOICES FOR $2,942.36 "FOR FINAL PAYMENT," AND CERTIFIED THE ACCOUNT "TO BE CORRECT AND JUST.' THE CONTRACTOR ALSO CERTIFIED A VOUCHER STATED FOR $2,942.36 AS "8TH AND FINAL PAYMENT ON ACCOUNT" OF THE CONTRACT AND SUPPLEMENT AS "CORRECT," AND A DISBURSING OFFICER PAID SAID VOUCHER. IN CONSIDERING A CASE WHERE THERE WAS PROTEST AGAINST THE AMOUNT PAID ON THE VOUCHER BUT WHERE THE AMOUNT WAS ACCEPTED AND AN ADDITIONAL AMOUNT CLAIMED, AS HERE, THE COURT OF CLAIMS IN DECISION DATED JANUARY 14, 1924, IN NORTHERN PACIFIC RAILWAY COMPANY V. UNITED STATES, SAID:

* * * WE ARE UNWILLING TO CONCEDE THAT THE LARGE NUMBER OF DISBURSING OFFICERS OR PAYMASTERS CHARGED WITH THE MINISTERIAL DUTY OF DISBURSING GOVERNMENT FUNDS, WHOSE LIMITED AUTHORITY IS WELL KNOWN, MAY BY THE RECEIPT OF SUCH STATEMENTS (PROTESTS) AS ACCOMPANIED THE VOUCHERS IN THIS CASE PAY PARTS OF THE BILLS AND LEAVE THE BALANCE FOR SETTLEMENT IN THE COURTS, THUS SETTING AT NAUGHT THE CAREFULLY FRAMED SYSTEM OF GOVERNMENT ACCOUNTING. * * * WE REPEAT, THEREFORE, THAT THE ONLY PROPER RULE IS ONE THAT WILL RECOGNIZE THE DISBURSING OFFICERS' LIMITED AUTHORITY AND THAT WILL REQUIRE A CREDITOR OF THE GOVERNMENT WHO IS UNWILLING TO ACCEPT THE PAYMENT BY THE DISBURSING OFFICER AS CONCLUSIVE TO FOLLOW THE COURSE PROVIDED BY THE STATUTE (ACT JULY 31, 1894, 28 STAT., 207, AS AMENDED BY THE ACT OF JUNE 10, 1921, 42 STAT., 24) OR BRING SUIT IN A COURT OF COMPETENT JURISDICTION. * * * ITS ACTION IN STATING ITS BILL ON THE FORM USED AND THEN ACCEPTING PAYMENT FROM THE DISBURSING OFFICER IS INCONSISTENT WITH THE CLAIM NOW ASSERTED. NOT HAVING PURSUED SUCH A COURSE AS COULD CONSISTENTLY, WITH THE ACCOUNTING SYSTEM HAVE PROVIDED A REMEDY, IT MUST BE HELD THAT BY ACCEPTING PAYMENT IN THE CIRCUMSTANCES STATED IT WAIVED ANY LEGAL EFFECT WHICH COULD OTHERWISE BE ACCORDED THE SO -CALLED PROTEST. (SEE SAVAGE CASE, 92 U.S., 382; SWEENEY CASE, 14 WALL. 75.)

A FORTIORI THE TRANSACTION WAS CLOSED IN SO FAR AS THE RIGHT OF THE CONTRACTOR TO ASSERT ADDITIONAL CLAIMS IS CONCERNED WHEN IT STATED ITS CLAIM FOR "FINAL PAYMENT" ON COMPLETION OF THE CONTRACT AND MADE NO PROTEST.