Opinion of the Court 105 C. Cls. an officer avails him nothing. We think that he does allege facts that show he was a clerk, not an officer, and that he was an officer is a mere conclusion on his part. The act approved February 23, 1931, 46 Stat. 1207, grades and classifies clerks in the Foreign Service with their basic compensation as follows: Senior clerks. Class 1, $4,000; class 2, $3,750; class 3, $3,500; class 4, $3,250; class 5, $3,000. Junior clerks. Class 1, $2,750; class 2, $2,500; class 3, all clerks whose compensation as fixed by the Secretary of State is less than $2,500 per annum. The foregoing is contained in Section 1 of the act. Sections 9 and 10 are at length as follows: SEC. 9. That the official designation "Foreign Service officers," as employed throughout this Act, shall be deemed to denote permanent officers in the Foreign Service below the grade of minister, all of whom are subject to promotion on merit and who may be appointed to either diplomatic or consular positions or assigned to serve in the Department of State subject to section. 21 of this Act, at the discretion of the President. SEC. 10. That the officers in the Foreign Service shall hereafter be graded and classified as follows with the salaries of each class herein affixed thereto, except as increases in salaries are authorized in section 33 of this Act, but not exceeding in number for each class a proportion of the total number of officers in the service represented in the following percentage limitations: Ambassadors and ministers as now or hereafter provided: Foreign Service officers as follows: Class 1, 6 per centum, $9,000 to $10,000; class 2, 7 per centum, $8,000 to $8,900; class 3, 8 per centum, $7,000 to $7,900; class 4, 9 per centum, $6,000 to $6,900; class 5, 10 per centum, $5,000 to $5,900; class 6, 14 per centum, $4,500 to $4,900; class 7, $4,000 to $4,400; class 8, $3,500 to $3,900; unclassified, $2,500 to $3,400: Provided, That as many Foreign Service officers above class 6 as may be required for the purpose of inspection may be detailed by the Secretary of State for that purpose. As plaintiff's basic salary was $2,250 and he was employed as a junior clerk, he was a clerk and not an officer. The proposition is so plain and simple that it needs no support. It follows that the plaintiff was not entitled to the statutory protection afforded officers of the Foreign Service. 280 Opinion of the Court The statutes cited and quoted in petition and briefs relating solely to those officers, do not affect the plaintiff and plaintiff may not take advantage of them. The plaintiff was charged with malfeasance in office. He alleges that he did not resign, and stresses that fact. In effect, he says that as to continuance of his employment the situation was within his own control and not within the control of the Ambassador. We cannot assent to such a theory, nor can we conceive how an Ambassador could carry out the important duties entrusted to him, and they were most important, and at the same time harbor and continue in employment a clerk engaged in encoding and decoding highly confidential messages, when the Ambassador had very good reason to suppose that the clerk had been thieving embassy documents. No statute has been cited that prohibited the Ambassador from summarily dismissing the plaintiff, and we are of the opinion that he acted with full authority. In his brief, counsel for the plaintiff says: Since the petition alleges a cause of action under the provisions of the Act of Feb. 23, 1931, and under R. S. 1740 and other statutes relating to Foreign Service officers, we are inclined to agree that it does not allege an action under the provisions of the Act of Aug. 24, 1912. The petition does predicate jurisdiction in part upon section 6 of the act of August 24, 1912, 37 Stat. 539, 555. Section 6 regulates the procedure for removal of persons in the classified civil service. It is not alleged that the plaintiff was in the classified civil service, nor are there any allegations from which such an inference may be drawn. The plaintiff therefore must be taken as not under the protection of the act of August 24, 1912. The opinion given herein disposes of the issue and it is unnecessary to go into other matters briefed by the parties. The demurrer is well taken and is sustained. The petition is dismissed, and it is so ordered. JONES, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. MADDEN, Judge, took no part in the decision of this case. 105 C. Cls. Syllabus JAMES STEWART & COMPANY, INC. v. [No. 45394. Decided January 7, 1946. Defendant's motion for new trial overruled April 1, 1946] On the Proofs Government contract; delay by defendant in furnishing models; extent of delay in completion of contract.-In a suit by the contractor for damages due to delay in completion of the contract for the erection of the United States courthouse in New York City, where the delays are admitted by the defendant who, however, denies that the period of delay was as long as the plaintiff asserts, and where there was also delay on account of a strike; it is held that plaintiff is entitled to recover for the period of delay found by the court to be due to the delay by defendant in furnishing models necessary for the completion of the work. Same; defendant's delay in furnishing models would have caused delay in completion whether or not there had been a strike.— Whether there would have been any delay due to the strike, if the models had been delivered on time, is not known but it is ascertained, from the evidence, that defendant's failure to deliver the models on time, as it was obligated to do, would have caused delay whether or not there had been a strike. Cf. William Cramp & Sons v. United States, 50 C. Cls. 179, 181-182. Same; defendant liable for delays which were not necessary; concurrent delays.-There were many changes made by the defendant in plans for the courthouse, with respect to some of which the defendant, according to the evidence, procrastinated greatly; and while certain of these delays were concurrent, they all contributed more or less to the delay in the final completion of the building; and while some delay was necessarily caused by making changes, for which the defendant was not liable (United States v. Rice, et al., 317 U. S. 61), the defendant is liable for any unnecessary delay. (Magoba Construction Co. v. United States, 99 C. Cls. 662, 690; Silberblatt & Lasker, Inc. v. United States, 101 C. Cls. 54, 80. Cf. B-W Construction Co. v. United States, 97 C. Cls. 92, 114. Same; defendant bound by finding of its own representative as to extent of delay in completion.-As to the extent of the delay in completing the contract, the defendant is bound by the finding of the contracting officer, who was the defendant's representative selected by it to make such a finding as a basis for an extension of time; and the defendant cannot complain if 284 Reporter's Statement of the Case this finding is accepted as correct as a basis for determining its liability for damages for delay with an allowance of a reasonable time for the defendant to decide upon the changes involved. Irwin & Leighton v. United States, 101 C. Cls. 455. Same; recovery for proportionate part of home office overhead.— Plaintiff is entitled to recover for a proportionate part of its home office overhead, for the allowed period of delay, calculated in accordance with the method of computation agreed upon by the parties. Same; defendant not liable to contractor where contractor is not liable to subcontractor.-Where the plaintiff is not liable, according to the evidence, to its subcontractor for damages for delay, the defendant is not liable to plaintiff therefor. Severin v. United States, 99 C. Cls. 435, 442. The Reporter's statement of the case: Mr. John W. Gaskins for plaintiff. Messrs. King & King were on the briefs. Mr. William A. Stern, II, with whom was Mr. Assistant Attorney General Francis M. Shea, were on the brief. The court made special findings of fact as follows: 1. Plaintiff, James Stewart & Company, Inc., is a New York corporation having its principal place of business in New York City. It has been long established, is experienced in the construction of large buildings, and has a large volume of business. 2. On January 19, 1933, plaintiff entered into contract No. Tlsa-3955 with the defendant, represented by Ferry K. Heath, Assistant Secretary of the Treasury, as contracting officer, whereby it agreed to construct the superstructure of the United States Court House at Foley Square, New York City, for a consideration of $5,996,000. This was subsequently increased to $6,202,019.21 by change orders as hereinafter noted. 3. This building borders on Foley Square, Pearl Street, and Duane Street, in the lower part of Manhattan. The main entrance is on Foley Square and consists of a portico which extends across nearly the entire frontage. This portico is approached by a flight of granite steps and has ten large granite columns, each about four stories high, sur Reporter's Statement of the Case 105 C. Cls. mounted by Ionic capitals. These columns are flanked by several pilasters of the same size, which continue down the Duane Street side and around a return bordering on a church property in the rear, also part way down the Pearl Street side. The pilasters have capitals of similar design. The lower portion of the building occupies substantially the entire site, except for three interior courtyards, and is six stories high above the main floor, below which is a ground floor and a basement, portions of which extend beyond the limits of the main structure. Superimposed on the lower structure is a tower of about one-third the area of the former. The roof of the lower structure, at the level of the seventh floor, is flat, with penthouses rising above it. The tower is twenty-five stories high and is capped by a pyramid five stories high, which is surmounted by a small ornamental structure. The foundations of the building were not in this contract. The exterior walls of the lower portion of the building, above the ground level are of granite, except on the interior courts, where they are of brick. The tower walls are also of granite. The pyramidal tower is covered with ornamental tile roofing on precast concrete slabs, and the small structure on the top is of terra cotta. All granite walls are backed up with brick. Portions of the tower walls continue down to the foundations and form part of the exterior walls of the lower section of the building. The remainder are supported on the roof of the lower section. The building is of steel frame construction. The steel is covered with concrete ("fireproofing") and the floors are structural slabs ("arches") of concrete, in which cinder aggregate was used to reduce the dead weight of the structure. 4. The contract required completion of all work within 720 days after the date of receipt by plaintiff of notice to proceed, except that the time might be extended by the contracting officer, under provisions of the contract. When the contract was awarded the construction of the foundations of the building, which was performed under another contract, had not been completed. The specifications represented that the construction of the foundation would be completed on or about March 3, 1933, but on March 27, 1933 plaintiff was advised that its completion would be delayed |