A-95804, DECEMBER 28, 1938, 18 COMP. GEN. 568

A-95804: Dec 28, 1938

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CAN BE CREATED BY DELIVERY OF GOODS OR RENDITION OF SERVICES AT HIS ORDER OR REQUEST EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE BEEN BENEFITED THEREBY. 1938: YOU HAVE REQUESTED A REVIEW OF SETTLEMENT OF APRIL 28. THE CIRCUMSTANCES ON WHICH YOU BASE YOUR CLAIM ARE STATED IN YOUR AFFIDAVIT OF JULY 2. TO WRITE AN ORIGINAL VEHICLE TO BE USED TO EMPLOY THE SERVICES OF SEVERAL ARTISTS THAT WERE AT THAT TIME AWAITING WORK ON THE FEDERAL THEATRE PROJECT OF THE W.P.A. THE PEOPLE AWAITING EMPLOYMENT WERE AS FOLLOWS: MAYER HENIGMAN. THESE PEOPLE WERE DRAWING A SALARY FROM THE GOVERNMENT WEEKLY WHILE FILLING CREATED JOBS UNTIL THE PROPER VEHICLE COULD BE OBTAINED FOR THEM. THESE PEOPLE AND THEIR INDIVIDUAL CAPABILITIES WERE OUTLINED TO ME THEREFORE THE VEHICLE WAS CAST BEFORE BEING WRITTEN.

A-95804, DECEMBER 28, 1938, 18 COMP. GEN. 568

OFFICERS AND EMPLOYEES - UNAUTHORIZED CONTRACTS - GOVERNMENT LIABILITY INDIVIDUALS IN DEALING WITH GOVERNMENT OFFICERS MUST TAKE NOTICE OF THE EXTENT OF AUTHORITY CONFERRED UPON THEM BY LAW, AND, WHERE THE GOVERNMENT OFFICER OR EMPLOYEE HAS NO AUTHORITY TO CONTRACT IN THE MATTER, NO CONTRACT, IMPLIED OR OTHERWISE, CAN BE CREATED BY DELIVERY OF GOODS OR RENDITION OF SERVICES AT HIS ORDER OR REQUEST EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE BEEN BENEFITED THEREBY, CONTRACTS TO PAY BEING IMPLIED ONLY WHERE THE QUESTION OF AUTHORITY TO ACT HAS BEEN ESTABLISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO CLYDE ESNARD MALLE, DECEMBER 28, 1938:

YOU HAVE REQUESTED A REVIEW OF SETTLEMENT OF APRIL 28, 1938, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR THE USE BY THE WORKS PROGRESS ADMINISTRATION FEDERAL THEATRE PROJECT IN PHILADELPHIA IN 1936 OF THE SCRIPT PREPARED BY YOU OF A PLAYLET OR VAUDEVILLE SKETCH ENTITLED ,SO WHAT.'

THE CIRCUMSTANCES ON WHICH YOU BASE YOUR CLAIM ARE STATED IN YOUR AFFIDAVIT OF JULY 2, 1936, AS FOLLOWS:

ON FRIDAY, MARCH 6TH, 1936--- YOUR MRS. GERTRUDE SHARKEY, OF THE FEDERAL THEATRE PROJECT, 1320 ARCH STREET, PHILADELPHIA, PA., INSTRUCTED AND REQUESTED ME (CLYDE ESNARD MALLE) THE UNDERSIGNED, TO WRITE AN ORIGINAL VEHICLE TO BE USED TO EMPLOY THE SERVICES OF SEVERAL ARTISTS THAT WERE AT THAT TIME AWAITING WORK ON THE FEDERAL THEATRE PROJECT OF THE W.P.A., I IMMEDIATELY SUPPLIED HER WITH A COMEDY DRAMATIC VEHICLE COMPLYING WITH HER REQUEST AND INSTRUCTIONS. THE PEOPLE AWAITING EMPLOYMENT WERE AS FOLLOWS: MAYER HENIGMAN, A VERY CLEVER ACTOR FROM THE JEWISH THEATRE, THEN ON THE PROJECT AS STAGE MANAGER OF ONE OF THE UNITS UNTIL A FITTING VEHICLE COULD BE FOUND FOR HIM. JAMES ROWLAND, AN IRISH CHARACTER MAN, THEN ON THE PROJECT WORKING IN A QUARTETTE UNTIL A VEHICLE OR SOMETHING BETTER COULD BE FOUND FOR HIM. HARRY CANTOR, THEN ON THE PROJECT, BUT IDLE. MISS PEGGY BOYLE (PROFESSIONALLY KNOWN AS PAGANA), THEN ON THE PROJECT DOING A VIOLIN SPECIALTY ON ONE OF THE UNITS. THESE PEOPLE WERE DRAWING A SALARY FROM THE GOVERNMENT WEEKLY WHILE FILLING CREATED JOBS UNTIL THE PROPER VEHICLE COULD BE OBTAINED FOR THEM. THESE PEOPLE AND THEIR INDIVIDUAL CAPABILITIES WERE OUTLINED TO ME THEREFORE THE VEHICLE WAS CAST BEFORE BEING WRITTEN, WHICH PROVIDED A VERY DIFFICULT ASSIGNMENT AS STAGE PLAYS ARE USUALLY WRITTEN AND THEN CAST * * *. HOWEVER A BRIEF OUTLINE WAS SUBMITTED TO MRS. GERTRUDE SHARKEY ON SATURDAY, MARCH 7TH, ENTITLED--- "SO WHAT" A COMEDY DRAMATIC PLAYLET IN THREE SCENES. IT WAS TENTATIVELY ACCEPTED AND INSTRUCTIONS WERE GIVEN BY MRS. SHARKEY TO COMPLETE IT. I THEN COMPLETED THE FIRST WRITING AND SUBMITTED IT ON MONDAY, MARCH 9TH, I RECEIVED AN O.K. ON IT AND THEN DELIVERED THE COMPLETED PLAYLET ON FRIDAY, MARCH 13TH, 1936. I WAS GIVEN A CONTRACT ON MARCH 16TH TO BEGIN ON MARCH 23RD, SIGNED BY MR. JASPER DEETER, REGIONAL DIRECTOR FOR THIS DISTRICT AT THAT TIME, I WAS GIVEN TO UNDERSTAND BY MRS. GERTRUDE SHARKEY THAT--- IF I WOULD SUPPLY THIS WANTED AND NEEDED MATERIAL IT WOULD BE USED AS LONG AS THE FEDERAL THEATRE PROJECT EXISTED. THAT I WOULD RECEIVE RENTAL FOR IT FOR EVERY WEEK THE W.P.A. USED IT WHETHER IN PHILADELPHIA AND VICINITY OR OTHER TERRITORY. IT WAS ORIGINALLY AGREED UPON THAT I SHOULD RECEIVE $15.00 AS A WEEKLY RENTAL FOR THE PLAYLET ALONE. THEN BEFORE CONTRACT WAS ISSUED TO ME WE (MRS. SHARKEY AND I) AGREED THAT I SHOULD ACCEPT $25.00 WEEKLY FOR THE PLAYLET AND ANY OTHER MATERIAL SHE SHOULD REQUEST ME TO WRITE FOR HER. THIS WAS GIVING HER THE BETTER OF THE DEAL BUT I ACCEPTED IT TO MEET HER CONVENIENCE AS SHE EXPLAINED IT WOULD SAVE HER THE TROUBLE OF PUTTING THROUGH A REQUISITION FOR EVERYTHING I SUPPLIED, INDIVIDUALLY. BESIDES THE PLAYLET "SO WHAT" I WROTE TWO ORIGINAL SONGS AT THE REQUEST OF MRS. GERTRUDE SHARKEY AND PAUL FRALEY, HER ASSISTANT AT THAT TIME. WROTE ONE SONG (WORDS AND MUSIC) FOR MISS MARGIE COATE, ENTITLED: HARD LUCK LIZZIE--- ANOTHER SONG FOR MISS BOYLE ENTITLED WHISTLE AND I-LL WAIT FOR YOU--- THESE SONGS, ESPECIALLY THE FORMER WERE NEVER USED AS THEY WERE WRITTEN FOR A PRODUCTION THAT NEVER WENT BEYOND THE REHEARSAL STAGE. THE PLAYLET "SO WHAT" WAS PRESENTED THE FIRST TIME ON THE FLOOD RELIEF PROGRAM AT THE FOX LOCUST THEATRE, BROAD AND LOCUST STS., PHILA., PA., MARCH 19 20 -21, INCLUSIVE. IT WAS ACCLAIMED A SUCCESS WITH ONLY THREE DAYS REHEARSALS * * * THE FIRST PRESENTATION WAS IN THREE ACTS AS IT HAD BEEN WRITTEN * * * DIRECTED BY PAUL FRALEY AND MYSELF * * * I DID NOT AGREE TO REHEARSE OR DIRECT IT BUT WILLINGLY DID EVERYTHING HUMANLY POSSIBLE TO PREPARE IT FOR PROPER PRESENTATION AT SUCH SHORT NOTICE. I FELT IT OBLIGATORY TO AID IN ANY WAS POSSIBLE IN CONSIDERATION OF THE PEOPLE CONCERNED. AT REHEARSAL MR. CANTOR WAS FOUND TO BE INCAPABLE OF PLAYING THE PART ASSIGNED TO HIM BY MRS. SHARKEY. AT THE LAST MINUTE ANOTHER MAN (NOT ON THE PROJECT) WAS SECURED BY MRS. SHARKEY TO PLAY THE PART FOR THE DURATION OF THE FLOOD RELIEF PROGRAM. HOWEVER, AFTER THIS SPECIFIC ENGAGEMENT HE WAS NOT USED AS HE WAS NOT ON THE PROJECT AND NOT ON RELIEF. I WAS NEVER INSTRUCTED TO CONFINE THE PLAYLET TO ONE SCENE * * * HOWEVER, AFTER THE ABOVE MENTIONED ENGAGEMENT, I WAS THEN INSTRUCTED TO RE -WRITE THE PLAYLET IN ONE SCENE. SO IT WOULD BE BETTER SUITED FOR PRESENTATION WHERE PRODUCTION FACILITIES WERE LACKING OR INADEQUATE FOR PROPER PRESENTATION. HAD THIS BEEN DONE WHEN THE ASSIGNMENT WAS GIVEN ME IT WOULD HAVE SAVED ME A LOT OF UNNECESSARY TROUBLE. I RE-WROTE THE PLAYLET IN ONE SCENE AND DELIVERED IT BETWEEN MARCH 30TH AND APRIL 3RD. IT WAS COMPLETE, TO BE PRESENTED AS REQUESTED, BUT THERE WAS A LAPSE OF TWO OR THREE WEEKS BEFORE IT WAS PRESENTED AGAIN, DUE TO THE FACT MISS SHARKEY HAD NO ONE ON THE PROJECT TO PLAY THE PART SHE ORIGINALLY ASSIGNED TO MR. CANTOR * * * AT THE REQUEST OF MRS. SHARKEY I SEARCHED HER FILES, CONTACTED SEVERAL SEEMING ELIGIBLES BY MAIL, AND HAD THEM CALL IN PERSON FOR AN INTERVIEW AND AUDITION, WITHOUT AVAIL, AS NONE OF THEM WERE ACCEPTABLE * * * ALL INTERVIEWED WERE LACKING IN DRAMATIC ABILITY. MISS SHARKEY FINALLY SECURED THE SERVICES OF MR. ERIC BAYNE (IN PRIVATE LIFE.-- - KLEIN) FOR THE PART. I REHEARSED AND DIRECTED MR. KLEIN IN THE PART UNTIL IT WAS READY FOR PRESENTATION. THE THREE OTHER ARTISTS IN THE CAST WERE IDLE--- WAITING TO WORK--- DURING THE PERIOD IT WAS IDLE THROUGH NO ONE'S FAULT, BUT DUE TO EXISTING CIRCUMSTANCES. EVERY MEMBER OF THE CAST ASSISTED AT THE REHEARSAL OF MR. KLEIN TO PREPARE HIM FOR PRESENTATION OF THE PLAYLET AS SOON AS POSSIBLE * * * IT WAS READY ABOUT FOUR DAYS AFTER REHEARSALS STARTED. IT WAS RETURNED TO THE UNIT TO WHICH IT WAS ORIGINALLY ASSIGNED, PREPARED TO BE PRESENTED IN ONE ACT. IT WAS PLAYED SEVERAL WEEKS--- THEN MR. RAY MIDGELEY CAME IN AS PRODUCER DIRECTOR * * * HE SAW AN AUDITION OF THE PLAYLET AND MRS. SHARKEY ADVISED HE LIKED IT VERY MUCH. MR. MIDGELEY IS AT THIS TIME RE ORGANIZING THE VAUDEVILLE UNITS INTO PRESENTATIONS. THIS EVIDENTLY ELIMINATES ALL THE VAUDEVILLE ACTS AS I RECEIVED NOTIFICATION FROM MRS. SHARKEY THAT THE PLAYLET "SO WHAT" WAS TO BE DISCONTINUED * * * THIS CLOSES MY CONTRACT ON JUNE 27TH, WHICH IS THE DATE OF TERMINATION OF MY PURCHASING ORDER 37381 * * * INCLUDING MY TWO WEEKS' NOTICE OF DISCONTINUANCE. THIS NOTICE OF DISCONTINUANCE IS THE FIRST NOTICE I HAVE RECEIVED SINCE THE DELIVERY OF THE PLAYLET ENTITLED "SO WHAT" * * * MY PURCHASE ORDER 37381 WAS DATED MAY 4TH, FOR A PERIOD OF EIGHT (8) WEEKS. TERMINATING JUNE 27TH * * * THIS STATEMENT OF FACTS COVER THE ENTIRE SITUATION AND CIRCUMSTANCES. I FEEL THAT I AM FAIRLY ENTITLED TO COMPENSATION FOR THE PERIOD OF SEVEN WEEKS AND TWO DAYS PRIOR TO THE ISSUANCE OF THE PURCHASE ORDER. IF THE P.O. 37381--- REQUISITION 5-2264 WAS DELAYED THAT IS NO FAULT OF MINE. I DID EVERYTHING I WAS INSTRUCTED TO DO AND TENDERED MY SERVICES, WITHOUT PAY, MUCH FURTHER THAN ANTICIPATED AS FAR AS REHEARSALS AND DIRECTION WAS CONCERNED. I DID IT WILLINGLY AND IN CONSIDERATION OF ALL CONCERNED.

THE RECORDS SHOW THAT YOU WERE PAID $150, OR AT THE RATE OF $25 A WEEK, FOR THE PERIOD MAY 4 TO JUNE 15, 1936, UNDER CONTRACT ER-TPS-23 13615, DATED MAY 1, 1936, MADE WITH YOU BY THE STATE PROCUREMENT OFFICER FOR RENTAL OF THE SKETCH. THIS CONTRACT EXPRESSLY RESERVED THE RIGHT IN THE GOVERNMENT "TO CANCEL THE RENTAL AT ANY TIME.' THE RENTAL WAS CANCELED JUNE 15, 1936, AND THE SCRIPT, WHICH WAS RETURNED TO YOU, WAS NOT USED AFTER THAT DATE. IT APPEARS THE SKETCH WAS ACTUALLY PERFORMED ONLY FIVE TIMES DURING THIS 6-WEEK PERIOD FOR WHICH YOU WERE PAID $150, BEING INCLUDED AS ONE OF THE ACTS IN A VAUDEVILLE SHOW GIVEN BY THE FEDERAL THEATRE PROJECT AT DIFFERENT CHARITABLE INSTITUTIONS IN PHILADELPHIA.

YOUR CLAIM FOR COMPENSATION FOR THE PERIOD PRIOR TO THE CONTRACT OF MAY 1, 1936, WAS DISALLOWED FOR THE REASON THAT REGIONAL DIRECTOR JASPER DEETER OF THE FEDERAL THEATRE PROJECT, WHO HAD SIGNED AN AGREEMENT WITH YOU DATED MARCH 16, 1936, HAD NO AUTHORITY OF LAW TO MAKE SUCH A CONTRACT ON BEHALF OF THE UNITED STATES OR TO OBLIGATE THE UNITED STATES IN THAT RESPECT. YOUR CLAIM FOR COMPENSATION AFTER JUNE 15, 1936, WAS DISALLOWED FOR THE REASON THAT THE CONTRACT OF MAY 1, 1936, WAS CANCELED AS OF THAT DATE PURSUANT TO THE TERMS OF THE CONTRACT AND OF THE PURCHASE ORDER OF MAY 4, 1936, ISSUED THEREUNDER, EXPRESSLY RESERVING THE RIGHT "TO CANCEL THE RENTAL AT ANY TIME.'

YOUR LETTER REQUESTING A REVIEW OF THE SETTLEMENT IS IN PART AS FOLLOWS:

TAKING INTO CONSIDERATION AS YOU STATED JASPER DEETER OVERSTEPPED HIS AUTHORITY WHEN HE ISSUED ME A CONTRACT FOR THE SCRIPT OF "SO WHAT," AND TAKING INTO CONSIDERATION THAT HE WAS IGNORANT OF THAT OVER STEP THE SAME AS I, THAT DOES NOT OBLITERATE THE FACT THAT I WAS COMMISSIONED TO WRITE THE SKETCH FOR THE FEDERAL THEATRE BY MRS. GERTRUDE SHARKEY. DUE TO THE FACT THAT SHE HAD FOUR PEOPLE THAT WERE IDLE AND DRAWING A SALARY FROM THE GOVERNMENT FOR DOING NOTHING, HER DESIRE WAS TO GET THEM TO WORK AT ONCE, AND I WAS THE MEDIUM THROUGH WHICH THEY FOUND SOMETHING TO DO TO EARN THEIR SALARY.

I SUPPLIED THE VEHICLE, WRITTEN TO ORDER, TO FIT THE PEOPLE SHE DESIRED TO PUT TO WORK IN IT. WHETHER MR. DEETER WAS IN AUTHORITY OR NOT WHEN HE ISSUED ME A CONTRACT, THE SKETCH WAS DELIVERED TO MRS. SHARKEY ON THE DATE SHE REQUESTED DELIVERY, IN FACT A FEW DAYS AHEAD OF TIME, AND WAS IMMEDIATELY PUT IN REHEARSAL (I DIRECTED THE REHEARSAL TOTALLY WITHOUT COMPENSATION) AND USED A NUMBER OF WEEKS BEFORE THE CONTRACT WAS RECEIVED BY ME. I REFER TO THE GOVERNMENT'S CONTRACT. HOWEVER, EVEN THOUGH I HELD NO CONTRACT FROM THE GOVERNMENT WHEN THE SKETCH "SO WHAT" WAS REHEARSED, PRODUCED, AND USED, I ONLY HELD THE CONTRACT MR. JASPER DEETER GAVE ME, AND WE-LL CONSIDER IT WAS ISSUED TO ME WITHOUT AUTHORITY--- DO YOU THINK THE VEHICLE THAT I WROTE TO ORDER AND SUPPLIED TO THE FEDERAL THEATRE PROJECT SHOULD BE PRODUCED AND USED WITHOUT A COMPENSATION TO ME? EVEN THOUGH SOME ONE ERRED BY NOT HAVING THE GOVERNMENT'S CONTRACTS IN MY HANDS BEFORE THE SKETCH WAS EVEN PUT IN REHEARSAL. EVEN THOUGH THE GOVERNMENT CONTRACTS WERE DELAYED BY PROBABLE NEGLIGENCE ON THE PART OF SOME ONE OR THEIR FAILURE TO REQUEST THEM OR THE FAILURE OF THEM TO PUT THE REQUISITION THROUGH IN PROPER TIME, OR BY THE DELAY OF GETTING IT THROUGH? THE FACT STILL REMAINS--- I WAS COMMISSIONED TO WRITE IT--- IT WAS ACCEPTED, REHEARSED, AND USED SEVERAL WEEKS FOR WHICH I HAVE NEVER RECEIVED ANY COMPENSATION FOR--- DO YOU THINK THE GOVERNMENT IS TREATING ME FAIR UNDER THESE CIRCUMSTANCES AND IF YOU HAVE ALL THE EVIDENCE IN YOUR HANDS THOSE FACTS ARE PROVEN BY IT. THEREFORE, REGARDLESS OF THE CONTRACTS OR ANYTHING ELSE, I CONTEND THAT I SHOULD BE PAID FOR THE TIME, DURING WHICH TIME IT WAS USED FOR WHICH I HAVE RECEIVED ABSOLUTELY NO COMPENSATION WHATSOEVER. THIS I BELIEVE WOULD BE A FAIR AND WHOLLY IMPARTIAL SETTLEMENT TO MY GOVERNMENT AND MYSELF.

AS IT DOES NOT APPEAR THAT EITHER MRS. SHARKEY OR MR. DEETER HAD ANY AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES FOR YOUR SERVICES AS DESCRIBED, OR TO OBLIGATE THE UNITED STATES TO PAY FOR SUCH SERVICE, THERE APPEARS NO LEGAL BASIS FOR HOLDING THE UNITED STATES INDEBTED TO YOU FOR SUCH SERVICES AS YOU MAY HAVE RENDERED AT THEIR REQUEST. IN FILOR V. UNITED STATES, 9 WALL. 45, THE SUPREME COURT OF THE UNITED STATES HELD THAT THE OWNER OF LAND COULD NOT RECOVER COMPENSATION FOR THE OCCUPANCY OF HIS LAND AS A MILITARY STATION UNDER A LEASE MADE AT THE DIRECTION OF THE MILITARY COMMANDER AT THAT STATION BUT WHICH HAD NOT BEEN APPROVED BY THE QUARTERMASTER GENERAL. THE COURT SAID, AT PAGE 48:

* * * NO LEASE OF PREMISES FOR THE USE OF THE QUARTERMASTER'S DEPARTMENT, OR ANY BRANCH OF IT, COULD BE BINDING UPON THE GOVERNMENT UNTIL APPROVED BY THE QUARTERMASTER GENERAL. UNTIL SUCH APPROVAL THE ACTION OF THE OFFICERS AT KEY WEST WAS AS INEFFECTUAL TO FIX ANY LIABILITY UPON THE GOVERNMENT AS IF THEY HAD BEEN ENTIRELY DISCONNECTED FROM THE PUBLIC SERVICE. THE AGREEMENT OR LEASE WAS, SO FAR AS THE GOVERNMENT IS CONCERNED, THE WORK OF STRANGERS. * * *

IN WHITESIDE ET AL. V. UNITED STATES, 93 U.S. 247, THE SUPREME COURT HELD THERE WAS NO OBLIGATION ON THE GOVERNMENT TO REPAY THE EXPENSES OF TRANSPORTING, ETC., CERTAIN COTTON UPON THE PROMISE OR AGREEMENT OF AN ASSISTANT SPECIAL AGENT OF THE TREASURY DEPARTMENT WHO HAD NO AUTHORITY TO BIND THE UNITED STATES BY CONTRACT. THE COURT SAID, AT PAGE 257: ALTHOUGH A PRIVATE AGENT, ACTING IN VIOLATION OF SPECIFIC INSTRUCTIONS, YET WITHIN THE SCOPE OF HIS GENERAL AUTHORITY, MAY BIND HIS PRINCIPAL, THE RULE AS TO THE EFFECT OF THE LIKE ACT OF A PUBLIC AGENT IS OTHERWISE, FOR THE REASON THAT IT IS BETTER THAT AN INDIVIDUAL SHOULD OCCASIONALLY SUFFER FROM THE MISTAKES OF PUBLIC OFFICERS OR AGENTS, THAN TO ADOPT A RULE WHICH, THROUGH IMPROPER COMBINATIONS OR COLLUSION, MIGHT BE TURNED TO THE DETRIMENT AND INJURY OF THE PUBLIC. MAYOR V. ESCHBACK, 17 MD. 282.

INDIVIDUALS AS WELL AS COURTS MUST TAKE NOTICE OF THE EXTENT OF AUTHORITY CONFERRED BY LAW UPON A PERSON ACTING IN AN OFFICIAL CAPACITY, AND THE RULE APPLIES IN SUCH A CASE THAT IGNORANCE OF THE LAW FURNISHES NO EXCUSE FOR ANY MISTAKE OR WRONGFUL ACT. STATE V. HAYES, 52 MO. 578; DELAFIELD V. STATE, 26 WEND. 238; PEOPLE V. BANK, 24 ID. 431; MAYOR V. REYNOLDS, 20 MD. 10.

WHERE GOODS ARE FURNISHED OR SERVICES ARE RENDERED ON THE REQUEST OR ORDER OF AN OFFICER WHO IS AUTHORIZED TO CONTRACT FOR THE UNITED STATES AND TO PROCURE SUCH GOODS OR SERVICES FOR THE USE OF THE UNITED STATES, THERE IS RECOGNIZED AN IMPLIED CONTRACT TO PAY THE REASONABLE VALUE OF SUCH GOODS AND SERVICES ACTUALLY FURNISHED WHEN THE CONTRACT ITSELF IS VOID BECAUSE NOT EXECUTED IN THE FORM REQUIRED BY LAW. SEE CLARK V. UNITED STATES, 95 U.S. 539; ST. LOUIS HAY AND GRAIN CO. V. UNITED STATES, 191 U.S. 159; DANOLD V. UNITED STATES, 5 CT.CLS. 65. BUT IF THE OFFICER OR EMPLOYEE WHO MAKES THE ARRANGEMENT HAS NO AUTHORITY TO CONTRACT FOR OR TO PROCURE SUCH GOODS AND SERVICES FOR THE GOVERNMENT, NO CONTRACT, IMPLIED OR OTHERWISE, CAN BE CREATED BY THE DELIVERY OF GOODS OR RENDITION OF SERVICES AT HIS REQUEST, EVEN THOUGH IT APPEARS THAT THE GOVERNMENT MAY HAVE BEEN BENEFITED THEREBY. IN STOLTS ASS-N V. UNITED STATES, 66 CT.CLS. 1, 8, THE COURT SAID:

* * * WHERE CONTRACTS TO PAY HAVE BEEN IMPLIED IN DEALINGS WITH THE GOVERNMENT THE QUESTION OF AUTHORITY TO ACT HAS BEEN ESTABLISHED. * * *

SEE, ALSO, HAWKINS V. UNITED STATES, 96 U.S. 689; PLUMLEY V. UNITED STATES, 226 U.S. 545; BALTIMORE AND OHIO RAILROAD CO. V. UNITED STATES, 261 U.S. 592; REED'S SONS V. UNITED STATES, 273 U.S. 200; DRISCOLL V. UNITED STATES, 34 CT.CLS. 508, 524; BARLOW V. UNITED STATES, 35 CT.CLS. 1HDR XXXXX00001-002 AFLITEDATA69160-000 514, 547; GOETZ, TRUSTEE V. UNITED STATES, 66 CT.CLS. 17.

THE GOVERNMENT CAN FUNCTION ONLY THROUGH THE ACTS OF ITS AGENTS ACTING WITHIN THE LIMITS OF THEIR LAWFUL AUTHORITY. FLOYD'S ACCEPTANCES, 7 WALL. 666. WERE THE RULE OTHERWISE THERE WOULD BE NO LIMIT TO THE OBLIGATIONS WHICH MIGHT BE IMPOSED ON THE GOVERNMENT BY-- OR TO THE CHAOS WHICH WOULD RESULT FROM--- THE UNAUTHORIZED ACTS OF OFFICERS AND EMPLOYEES PURPORTING TO ACT ACCORDING TO THEIR CONCEPTS OF WHAT MIGHT BE GENERALLY IN THE PUBLIC INTEREST, OR OTHERWISE.

MOREOVER, EVEN THOUGH AN IMPLIED CONTRACTUAL OBLIGATION TO PAY FOR THE SERVICES HERE INVOLVED WAS ESTABLISHED, SO AS TO SUPPORT A CLAIM ON A QUANTUM MERUIT BASIS, IT IS NOT CLEAR THAT YOU WOULD BE ENTITLED TO ANY AMOUNT IN ADDITION TO THAT ALREADY PAID. THERE IS NO EVIDENCE IN THE RECORD THAT YOU WERE A PROFESSIONAL, EXPERIENCED, OR RECOGNIZED PLAYWRIGHT. FROM THE LETTERHEAD ON YOUR INVOICES SUBMITTED UNDER THE CONTRACT OF MAY 1, 1936, IT WOULD APPEAR THAT YOUR BUSINESS WAS THAT OF A LEADER OF A DANCE ORCHESTRA,"MASTER OF CEREMONIES," AND PURVEYOR OF ENTERTAINMENT SPECIALTIES, UNDER THE STYLE OF "EDDIE MALLE AND HIS CANE BRAKE ORCHESTRA.' WHILE YOU STRESS THE DIFFICULTY OF WRITING THE SKETCH OR PLAYLET AS A VEHICLE FOR THE ABILITIES OF FOUR CERTAIN INDIVIDUALS, IT APPEARS FROM YOUR OWN STATEMENT THAT IT WAS OUTLINED OVERNIGHT BETWEEN FRIDAY, MARCH 6, AND SATURDAY, MARCH 7, 1936, AND WAS COMPLETED OVER THE SAME WEEK END AND SUBMITTED ON MONDAY, MARCH 9, 1936, A MATTER OF 3 DAYS IN ALL, AND THAT, LATER, YOU REWROTE THE PLAYLET IN ONE SCENE "BETWEEN" MARCH 30 AND APRIL 3, 1936, AT MOST A MATTER OF 3 OR 4 ADDITIONAL DAYS. IT IS ADMINISTRATIVELY REPORTED THAT THE SKETCH WAS ACTUALLY USED BY THE THEATRE PROJECT ON ONLY 11 OCCASIONS, THAT IS, ON THREE AFTERNOONS AND EVENINGS IN BENEFIT PERFORMANCES PRIOR TO BEING REWRITTEN IN ONE SCENE, AND FIVE TIMES AS A PART OF CHARITY VAUDEVILLE SHOWS THEREAFTER. ON THIS RECORD, IT IS NOT ESTABLISHED THAT THE SERVICES RENDERED--- EVEN IF IT COULD BE ESTABLISHED THAT THEY WERE LEGALLY ENGAGED--- WERE REASONABLY WORTH MORE THAN THE SUM OF $150 WHICH YOU WERE PAID. BUT HOWEVER THESE MATTERS MAY BE, IT IS NOT SHOWN THAT ANY SERVICES RENDERED PRIOR TO THE CONTRACT OF MAY 1, 1936, WERE FURNISHED ON THE ORDER OR REQUEST OF ANY PERSON AUTHORIZED TO PROCURE SUCH SERVICES ON BEHALF OF THE UNITED STATES SO AS TO PROVIDE A LEGAL BASIS FOR PAYMENT. THIS OFFICE HAS NO AUTHORITY TO ALLOW CLAIMS ON ANY OTHER BASIS.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE, AND IS, SUSTAINED.