That is, the United States, by Mills's failure and by letting the contract to other parties, had the work done for $440.57 less than the price they agreed to pay him.

If all the items aggregating the $374.96 mentioned in the communication of Lieutenant-Colonel Hoxie, supra, were charged to this work it would still cost the United States less to have it done than the price they had agreed to pay Mills.

The question presented is whether Mills is entitled, upon the facts stated and as understood, to the full amount, namely, $3,803.55, earned by him under his contract before it was annulled.

Conceding the authority to annul and terminate Mills's contract was lawfully exercised, the consequence was that when said contract was annulled and terminated and the uncompleted work was done by the Government or by other contractors at its instance, such work was done at the risk of loss to Mills, and if when completed and accepted it cost the United States more than it would if it had been done by him under his contract he was responsible for such loss.

It was expressly provided in the contract that-

"All money or reserved percentage due or to become due the said party or parties of the second part by reason of this contract shall be retained by the party of the first part until the final completion and acceptance of the work herein stipulated to be done."

As I interpret the contract, the said money was to be retained as security so that in the event the contract, for causes therein specified, should be annulled and taken from Mills and let to other parties under the clause therein authorizing the engineer to do so, the United States was to have the right to recover from him whatever sums it should expend in excess of the price it had agreed to pay him, and also all cost of inspection and superintendence which the United States should incur in excess of that payable by it during the period allowed Mills by his contract for the completion of the work, which sums the United States was authorized to deduct from the said money "due or to become due" Mills by reason of his contract.

In construing the contract the entire instrument should be considered, and it should receive such a construction as will, if possible, effectually carry out what appears to have been the intention of the parties making it.

The idea was in the minds of the parties, and it is in the contract, that in the event the contract should be annulled and let to other parties, the work should not cost the United States more than the price it had agreed to pay Mills, and if it should be required to pay to other parties more, or be put to greater expense to have the work completed than it had agreed to pay him, he was to be responsible for the excess.

The provisions of the contract under consideration were inserted by the parties for the evident purpose of securing to the Government the benefit of its contract with Mills and protecting it from any loss it might sustain by having to pay more to other parties or by being put to greater expense to have the work done than it had agreed to pay him.

If Mills had completed the contract according to its terms, the provisions thereof, under consideration, would have become thereby wholly inoperative.

The purpose of the parties by paragraph 4 of the contract was to fix the rights and liabilities of each in the event the contract should be annulled and let to other parties and the work on that account should cost the United States more, or it should be put to greater expense than it had agreed to pay Mills. In the event that the contract should be annulled and let to other parties it was provided that the United States should have the right to recover from Mills whatever sums might be expended by it in excess of the price it had agreed to pay him, and also all costs of inspection and superintendence incurred by it in excess of those payable by it during the period allowed for the completion of the contract by Mills, said sums to be deducted from the money due Mills by reason of his contract, which money was to be retained by the United States until the entire work was completed and accepted.

The right of the Government to recover whatever sums it might expend in excess of the price it had agreed to pay Mills, and its right to recover all cost of inspection and superintendence incurred by it in excess of that payable by it during the period allowed Mills by his contract for the completion of the work, both stand upon an equal footing. I do not think it was in the minds of the parties, or that they intended by the provision

"and also all costs of inspection and superintendence incurred by the United States, in excess of those payable by the United

States during the period herein allowed for the completion of the work by the party of the second part,"

to thereby bind Mills to pay costs of inspection and superintendence independent and regardless of whether the United States was damaged or benefited by his failure to complete the work and its having to have it done by other parties.

The words "and also" are conjunctive, and couple together "the excess of the price" and "all costs of inspection and superintendence," and whether Mills was to be responsible for either was dependent upon whether the United States should be injured or damaged in the event that he should fail to complete the work and it should be compelled to have it completed by others. When the contract with Mills was annulled, and the United States made a contract with other parties for the completion of the work, it acted for itself and not as the agent of Mills or for his benefit, and he can reap no profit from work which he had failed to do and which was done by the Government through others. But as to money earned by Mills under his contract before it was annulled, and which was retained and withheld from him by the United States for indemnity and security until the entire work was completed and accepted, he is interested in the question whether on account of his failure to complete his contract and the letting of it to other parties the United States sustained any loss or damage by the transaction.

When the work was completed by the Maryland Dredging and Contracting Company, Mills was entitled to have an account rendered showing all the costs and expenses, including all cost of advertising and reletting the contract, and cost of inspection and superintendence of the work, etc., to which the United States had been put, 'caused by his failure to complete his contract and its being compelled to have it completed by others; and if all said costs and expenses of the work which was done by others and which Mills had agreed to do were less than the United States had agreed to pay Mills for the same work, then and in that event Mills is entitled to be paid for the work he had done under his contract at the price specified in his contract; but if all said costs and expenses of work done by the Maryland Dredging and Contracting Company, including cost of advertising and reletting the contract and cost of inspection and superintendence, etc., amounted to

more than the price the United States had agreed to pay Mills for the work done by said company, then and in that event Mills is responsible to the United States for said excess and the same should be deducted from the amount earned by him under his contract.

PAYMENT OF A WARRANT WHICH HAD BEEN ISSUED BY MISTAKE AND WAS NEGOTIATED.

A bank is entitled to payment of a United States Treasury warrant which it had cashed in good faith and for a valuable consideration, notwithstanding the warrant had been issued by mistake to the person by whom it was presented to the bank.

(Comptroller Tracewell to the Secretary of the Treasury, December 7, 1904.)

By your reference dated November 29, 1904, of a communication from the Second National Bank of Allentown, Pa., dated October 19, 1904, you request my views as to the proper action to be taken in the case. The communication is as follows:

"Referring to yours of September 29, Harry A. Weaver has not yet made repayment to us of war warrant No. 2462. "He evidently has no intention of repaying the amount and we therefore respectfully request that the Department make settlement with us for the amount, as we paid the money to the proper person called for in the warrant."

The facts in the case are as follows:

There were two claims filed in the office of the Auditor for the War Department by ex-soldiers for extra pay, each having the name of Harry A. Weaver.

One of the claims was by Harry A. Weaver, who had served in Company D of the Fourth Regiment of Pennsylvania Volunteers, and his address was given as Allentown, Pa. His claim was settled by the Auditor for the War Department by certificate dated December 13, 1899, and nothing was found. due thereon. Under date of May 7, 1904, he renewed his claim.

The other claim was by Harry A. Weaver, who had served in Company A of the Twenty-eighth Regiment of United States Volunteers, and his address was given as Steelton, Pa. His claim was settled by the Auditor by certificate dated July

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16, 1904, and the sum of $26 found due thereon. But it was made payable as follows:

"Harry A. Weaver (soldier), 108 S. 7 st., Allentown, Pa.” Thereupon the Secretary of the Treasury drew his warrant, No. 2462, dated July 25, 1904, in favor of Harry A. Weaver, without other words of identification, and at the bottom of the warrant was written: "P. O. address, 108 S. 7th st., Allentown, Pa."

This warrant was transmitted by the Treasurer to Harry A. Weaver, 108 South Seventh street, Allentown, Pa., and a notice of settlement by the Auditor for the War Department, dated July 18, 1904, as follows, was inclosed therewith, viz:

"In the case of Harry A. Weaver, private, D, 4 Pa. Vols., and A, 28 U. S. Vols., a balance has been found due by this office, and a certificate, No. 420450, dated July 16 04, has been forwarded to the Secretary of the Treasury for payment, as follows: $26.00 to Harry A. Weaver, the soldier.

"The following is a statement of the account: "Extra pay to volunteers, $26.00.

"Claim for pay, clothing, and travel pay is disallowed, for reasons as follows: Paid in full 28 U. S. Vols.; pay, clothing, travel pay as private, D, 4, Pa. Vols., were disallowed by settlement No. 285503, Dec. 13, 1899; same paid in full. Člaim for extra pay also disallowed, soldier having been granted furlough under C. C. 130, A. G. O. of 1898."

On July 27, 1904, the Second National Bank of Allentown, Pa., paid the amount of this warrant to this Mr. Weaver.

Upon a subsequent request by the Mr. Weaver of Steelton, Pa., for payment of his claim, which had been allowed, he was informed that a warrant for the amount had been sent to him at Allentown, Pa. In reply he stated that he did not reside in Allentown, Pa., and never had, and that he did not receive the warrant.

Upon receipt by the Treasurer of the United States of this information, he requested the Second National Bank, of Allentown, Pa., to repay the amount of the warrant, which had been paid to that bank. Repayment was accordingly made by the bank to the assistant treasurer at Philadelphia, and the bank demanded repayment of Mr. Weaver, of Allentown, Pa., who at the date of the above communication from the bank had failed to do so.

The amount found due Henry A. Weaver, of Steelton, Pa.,