In an opinion of the Solicitor of the Treasury concerning this claim,
dated November 30, 1883, I find a statement that on the 20th day of
October, 1876, a paper was filed by the attorneys of the claimant in
which his claim for extra work and material in performing his contract
was alleged to be $21,857.94. It is further stated that this claim was
hastily drawn by one of Willbur 's attorneys and without consultation
with him.
On or about the 20th day of March, 1877, Mr. Willbur himself filed a
statement of such extra work and material, in which he claimed for the
same the sum of $42,685.20.
Another statement made by Willbur, in February, 1878, presents a claim
on account of the same matters amounting to $47,159.62.
This claim, so variously stated, is based upon the allegation that
tiling and frames of greater thickness than were required by the
contract were put in the building. Although it is insisted by the
claimant that these thicker tiles and frames were directed to be put in,
or at least accepted by the person having charge of the construction of
the building for the Government, I hardly think it will be seriously
contended that the claimant has any legal claim against the United
States.
But, with a view of discovering whether, upon equitable grounds, the
claimant should be paid anything by the Government for glass and iron
of greater thickness than its contract with Bartlett, Robbins & Co.
required, and which had been put in its building by their subcontractor,
the Secretary of the Treasury in 1884 appointed a committee of three
persons to examine and report upon this claim of Willbur's, "with a view
of determining what portion, if any, it is proper for the Government
to pay."
On the 24th day of January, 1885, this committee made a report by which
they determined that there should be paid to the claimant on account of
the matters alleged the sum of $1,214.90.
This report was based upon the measurements, examinations, and estimates
of two experts, one selected by the claimant and the other by the
committee. The report was transmitted to the House of Representatives by
the Secretary of the Treasury and an appropriation asked to pay the
amount awarded.
But Mr. Willbur was not satisfied, and on the 6th day of January, 1885,
addressed a communication to the Secretary of the Treasury in which this
passage occurs:
I shall insist on a remeasurement of the entire work, as this is vital
to my claim. The excess which I furnished can only be ascertained by
weight instead of by measuring the thickness of the plates and frames.
At the second session of the Forty-ninth Congress, and early in 1886,
this claim was before the Senate Committee on Claims, and at the
instance of the committee this work was again examined by experts, who
came to the conclusion that the claimant was entitled to the sum of
$45,615.67 for the extra work which he had performed and materials
furnished.
It is only alleged that the glass tiling and frames actually put in the
building were slightly thicker than those required by the contract, and
this alleged increased thickness seems to be fairly represented in a
general way by the claim that some of the glass and frames which were
required to be 1 inch thick were actually put in 1 inch and a quarter
thick.
Upon this statement it must be admitted that the sum above stated as the
value of this extra thickness is somewhat startling. In the language of
the report upon this bill by the Supervising Architect, "a claim of
$47,159.02 for such slight excess on work the price of which was
$35,217.57 is hardly entitled to consideration."
The claim, as well as the award of the experts last named, reach their
astonishing proportions by the application of weights to the question
in the following manner: A certain area is measured. A square foot of
the tiling actually put in is weighed, and a square foot of the tiling
required by the contract is also weighed. Both these weights are
multiplied by the area. The lesser aggregate weight is deducted from the
greater, and the difference is divided by the weight of a square foot of
the lightest tiling, thus reducing it to square feet of such lightest
tile. These square feet are multiplied by the price agreed to be paid
by the contract for each superficial foot, and an item of extra work is
determined. Thus additional weight in constructed and finished tiling is
converted, as far as price and measurement are concerned, into finished
tile, which more than doubles the quantity actually laid down.
This can not be right. And yet the bill herewith returned directs the
Secretary of the Treasury to settle this claim for extra work upon
the basis of the report of the experts who have adopted this mode of
adjustment; or, if not satisfied with their report, he shall within
thirty days from the passage of the act cause a reweighing of said
material to be made by two sworn experts, one to be appointed by him and
one by the claimant, and a third to be appointed by these two in case
they can not agree. The bill further provides that he shall then pay
to said Willbur the difference of excess in weight and superficial
measurement as found by said experts between the illuminated tiling and
frames furnished and that contracted for at the contract prices for such
work and material.
There are features of this claim which suggest suspicion as to its
merit. In any view of the matter, I regard the claimant as seeking
equitable relief. He is not entitled to dictate the rule by which his
claim is to be adjusted, and he should be quite satisfied if the
officers of the Government charged with the settlement of such matters
are permitted by the Congress to afford equitable relief according to
such rules and methods as are best calculated to reach fair results.