61 Opinion of the Court 4. Since October 1, 1931, plaintiff has had two dependents, consisting of his wife, Pamelia Elizabeth Bayne Robertson, and a son, Robert Stanley Bayne Robertson, born January 16, 1926. His wife and son have resided with him continuously since October 1, 1931, and have been dependent on him for their entire support. 5. On October 1, 1931, plaintiff was credited with over 16 years' service for pay purposes. Pursuant to the Act of April 26, 1928, plaintiff received the retired pay of an officer of his grade and length of service, but received no allowances until October 1939, when he was again recalled to active duty, since which time he has received the activeduty pay and allowances of an officer of his grade and length of service. 6. Rental and subsistence allowances of an active officer, with dependents, of plaintiff's grade and length of service from October 1, 1931, to November 2, 1937 (the date of the latest available pay roll in the General Accounting Office), total $10,776.63. The claim is a continuing one. The court decided that the plaintiff was not entitled to recover. WHALEY, Chief Justice, delivered the opinion of the court: This case comes before the court under an act retiring the plaintiff in the grade of "lieutenant commander on the retired list of the Navy with pay and allowances of the fourth pay period, as now prescribed under existing laws, and with credit for all service which he is now entitled to count in the computation of his pay." Plaintiff relies on the cases of Sweeney v. United States, 82 C. Cls. 640, and Ralston v. United States, 91 C. Cls. 91, certiorari denied October 21, 1940. (311 U. S. 687.) These cases are not apposite. We are governed entirely by the terms of the special act and it is distinctly stated therein that he is to receive only the pay and allowances of the fourth pay period, as now prescribed by law. This means that he is to receive pay and allowances of a retired officer and be given credit for all service he is now entitled to count in the computation of his pay. That would include credit for his Syllabus 94 C. Cls. length of service but it would not include, and was not JONES, Judge; and LITTLETON, Judge, concur. WHITAKER, Judge, took no part in the decision of this case. THE CITY OF LONG BEACH v. THE UNITED STATES [No. 44106. Decided June 2, 1941] On the Proofs Public Works Administration loan and grant; payment of interest.— Where the defendant made an offer of a loan to be used in financing a public improvement and a grant of 45 percent of the cost of said project; and where part of the proposal was that defendant would purchase coupon bonds from the plaintiff, drawing interest at the rate of 4 percent, in the principal amount of $1,352,000, including bonds to the amount of $400,000 which were to be held by an agreed depositary, under the terms of a trust agreement thereafter to be executed, as security for the payment of the bonds issued for the loan made to plaintiff ; and where the interest on the bonds which were deposited in escrow, from the date thereof to the date of the trust agreement, amounted to $38,666.67; and where the plaintiff paid to the defendant the said amount of the matured coupons less two deductions, one of which was $6,177.76 interest which had accrued on the $400,000 of bonds when they were delivered to defendant, and the other deduction of $8,940.06 being 45 percent of the interest on said $400,000 during the construction period, which interest was treated as part of the construction cost; it is held that the remainder of said interest, $23,548.85, was not wrongfully collected by the defendant and the plaintiff is not entitled to recover. 61 Reporter's Statement of the Case Same; reformation of contract.-Where plaintiff concedes that the interest in said amount was paid in accordance with the terms of the bonds which plaintiff issued and delivered to defendant and that in order to obtain any relief plaintiff's contract with the defendant must be reformed; it is held that in the absence of a mutual mistake as shown by the evidence plaintiff is not entitled to the relief prayed for. The Reporter's statement of the case: Mr. Bernard H. Reich for the plaintiff. Mr. Grover C. Sherrod, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Messrs. C. H. McCarthy, Rawlings Ragland, and Elihu Schott, were on the briefs. The court made special findings of fact as follows: 1. The plaintiff is a municipal corporation of the State of New York. 2. On or about October 12, 1935, the defendant, upon apapplication of the plaintiff, made the following offer thereto : FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WASHINGTON, D. C., October 12, 1935. CITY OF LONG BEACH, P. W. A. Docket No. 7642. County of Nassau, New York. 1. Subject to the Rules and Regulations (PWA Form No. 166, July 22, 1935, as amended to date) with the exceptions of Sections 9 and 10 of the title thereof known as General Conditions and which, with such exception are made a part hereof, the United States of America hereby offers to aid in financing the construction of a project consisting of beach reclamation, including 2 miles of boardwalk, 15 stone jetties 600 feet long, 340,000 cubic yards of sand fill, ramps from street to boardwalk, and 4 comfort stations (herein called the "Project") by making a grant to the City of Long Beach (herein called the "Applicant") in the amount of 45 percent of the cost of the Project upon completion, as determined by the Federal Emergency Administrator of Public Works, but not to exceed, in any event, the sum of $778,500, and by purchasing, at the principal amount thereof plus accrued interest thereon, from the applicant, obligations of the description set forth be Reporter's Statement of the Case 94 C. Cls low (or such other description as shall be mutually satisfactory) in the aggregate principal amount of $1,352,000 (including that amount of such obligations, estimated at $400,000, which, to effect payment of any part of the aforesaid 45% grant, may be purchased and held for ultimate cancellation) less such amount of such obligations, if any, as the Applicant may, with the consent of the said Administrator, sell to purchasers other than the United States of America: (a) Obligator: City of Long Beach; (b) Type: Negotiable, special assessment, coupon bond; designated "Beach Improvement Bond"; (c) Denominations: $1,000; (d) Date: November 1, 1935; (e) Interest rate and interest payment dates: Four per centum (4%) per annum, payable semi-annually on May 1 and November 1; (f) Place of payment: At the office of the Treasurer of the City of Long Beach, N. Y., or, at the option of the holder, at a bank or trust company in the Borough of Manhattan, City and State of New York; (g) Registration of privileges; Registerable, at the option of the holder, as to principal and interest; (h) Maturities: November 1— (i) Payable as to both principal and interest solely from special assessments which shall be levied in an amount sufficient to pay such principal and interest when due and payable upon all the property benefited by the construction of the Project and contained in a special assessment district established within the City of Long Beach; the establishment of said district, the levy, collection and application of said assessments and the payment of the bonds all to be subject to the terms and in accordance with the provisions of Chapter 373 of the Laws of 1934 of the State of New York. 2. This offer is conditioned upon (a) The issuance by the Applicant of obligations in the aggregate principal amount of at least 78% of the estimated total cost of the Project (exclusive of cost of land) and 64 Reporter's Statement of the Case (b) The execution by the Applicant of a Trust Agreement which shall provide for the rights and priorities of the several owners of such obligations. UNITED STATES OF AMERICA, FEDERAL EMERGENCY ADMINISTRATOR OF By E. W. CLARK, For the Assistant Administrator. This offer was accepted by the plaintiff October 19, 1935, by resolution of its council. 3. October 12, 1935, Special Review Counsel Knight G. Aulsbrook, for the Administrator, Federal Emergency Administration of Public Works, informed plaintiff's City Clerk, George Xanthapy, by letter as follows: I am working upon a trust agreement whereby the bonds to be purchased by the Government for the grant account will be trusteed as well as the amounts of principal and interest to be paid on them. As we discussed in our last telephone conversation it is neither our desire nor intention that bondholders have any direct right under this trust agreement or that it be referred to in the bond authorizing resolution. I will send you a draft of the agreement as soon as it has been prepared. On February 18, 1936, Acting State Director (New York) for the administrator transmitted the following letter to the City Clerk: The bond requisition is ready for transmittal to Washington. We are simply awaiting the drafts of the approving opinion of Messrs. Reed, Hoyt and Washburn. We have discussed the nature of the opinion with them and they are now considering some features which we have suggested. We expect to receive the opinion by tomorrow. We do not believe that the honoring of the requisition will be delayed pending the execution of the Trust Agreement. That Agreement may be executed after we have purchased all of the bonds. It will merely provide for the deposit of $400,000 of bonds in a bank suitable to the City and to the Government. These bonds will ultimately be canceled for grant purposes. In the meantime, however, the interest accruing on these bonds will be transferred to the Beach Improvement Bond Fund to provide a reserve for the bonds being |