The compensation of employees of the Lighthouse Service indicated in paragraph 2 of circular letter no. 432 is fixed administratively with reference to wages paid to similar classes in commercial industry in the locality where employed; from which it was concluded that such employees are within the provisions of section 23 of the act of March 28, 1934. At two stations of the Lighthouse Service, viz, Staten Island, N. Y., and Portsmouth, Va., which are in close proximity to the New York and Norfolk Navy Yards, respectively, and employ a number of men at trades similar to those employed at the navy yards, it has long been the practice to pay the rates in effect at the navy yards, which are understood to be fixed by wage boards.

Section 713, title 33, U. S. Code, provides as follows:

Regulations for Lighthouse Service generally. The Commissioner of Lighthouses, under the direction and control of the Secretary of Commerce, shall, from time to time, prescribe and distribute such regulations as he may deem proper for securing an efficient, uniform, and economic administration of the Lighthouse Service. (June 17, 1910, c. 301 § 10, 36 Stat. 538; Mar. 4, 1913, c. 141 § 1, 37 Stat. 736.)

Paragraph 412 (d) of the Regulations for the Lighthouse Service effective July 1, 1927, provides in part as follows:

In case of employments for field construction work superintendents shall see that wages paid do not exceed the rates paid in the locality where work is performed. * *

*

In view of the basic law establishing the Lighthouse Service, the regulations issued pursuant thereto having the force and effect of law, and the established procedure as shown by the quoted statements by the Commissioner of Lighthouses, the administrative action in applying the 40-hour week statutory provision to the field force for construction and repair of lighthouses appears correct. 13 Comp. Gen. 265. It is to be understood, of course, that this decision is not to be regarded as approving without further specific examination in the audit every payment of compensation paid to the employees involved on the basis of 40 hours per week.

Section 23 of the act of March 28, 1934, 48 Stat. 522, establishing the 40-hour week is applicable only to employees of the Federal Government of the classes therein mentioned whose hours of labor and rates of compensation previously had been controlled by statute and/or regulations issued pursuant to statute and having the force and effect of law authorizing or requiring the fixing of rates of compensation by wage boards or pursuant to a procedure similar to that used by wage boards.

It does not appear that there was in force prior to March 28, 1934, any law, Executive order, or administrative regulation requiring the fixing of the rates of compensation and hours of labor of the employees of the United States Shipping Board Merchant Fleet Corporation under a procedure similar to that used by wage boards. Hence, the provisions of section 23 of the act of March 28, 1934, are not applicable to said employees and there is no authority of law for the adjustment of the wages of the employees of the corporation retroactively as of March 28, 1934, as proposed. Whether the cor

poration, under its inherent authority to fix hours of labor and rates of compensation of its employees, shall, with respect to any particular group or groups of such employees, adjust prospectively the hours and rates in accordance with the principle of said section 23 is a matter for administrative consideration.

Referring to question (b), reference is made to the following from decision of April 6, 1930, 13 Comp. Gen. 265, 268:

Evidently the words "trades and occupations" appearing in section 23 of the act of March 28, 1934, supra, were intended to embrace, not only all positions or employments in the recognized trades and crafts and occupations of a similar character, but also supervisory and administrative positions and employments, the duties of which are entirely connected with, and dependent upon, the duties performed by the personnel in the trades, crafts, and similar occupations, the compensation of which is subject to adjustment by wage boards or other wage-fixing authorities. See generally section 5 of the original Classification Act of March 4, 1923, 43 Stat. 1489, and 4 Comp. Gen. 900; id. 959.

The problem involved in question (c) is understood to be whether the statute saves to employees on a 40-hour week basis the scheduled rates as of June 1, 1932, for a trade or occupation, or the rates that may have been paid to an individual. In this connection the statute has reference to the schedule of rates paid as of June 1, 1932, for the trade or occupation properly within the law, and not to the rate in such schedule received on June 1, 1932, by a particular individual.

(A-57078)

CONTRACTS-PERSONAL SERVICES

Where a joint and several contract is for the rendition of personal services of a skilled character, such contract is terminated with the death of one of the obligees rendering his further performance thereof impossible.

Comptroller General McCarl to the Architect of the Capitol, September 12, 1934

There has been received your letter of August 7, 1934, as follows: Your attention is called to contract ACsc-2, dated May 15, 1930, between this office and Cass Gilbert, Cass Gilbert, Jr., and John R. Rockart, architects, for furnishing architectural and engineering services required to design the new Supreme Court Building at Washington, D. C. This contract provides in part as follows:

66

Therefore, this agreement made and entered into this 15th day of May 1930, by and between the United States of America, acting in this behalf by David Lynn, Architect of the Capitol, executive officer and member of the United States Supreme Court Building Commission, acting under his instructions from the said Commission, hereafter to be known as the party of the first part, and Cass Gilbert, Cass Gilbert, Jr., and John R. Rockart, practicing architects of 244 Madison Avenue, New York, hereafter to be designated as the parties of the second part, jointly and severally, their heirs, executors, administrators, successors, and assigns; witnesseth, that the parties hereunto have mutually covenanted and agreed and by these presents do covenant and agree with each other as follows:."

One of these architects, Cass Gilbert, to whom reference is made in the preceding paragraph, died on May 17, 1934. Your advice is therefore requested as to the procedure which should be followed by this office in the future in administering this contract and the form in which the vouchers should be drawn; also as to whether the contract should be continued in force without modification.

I am enclosing, herewith, copy of a requisition, dated June 26, 1934, which has been received in this office from the architects, in which payment is requested for services rendered from December 30, 1933, to June 26, 1934; the requisition being signed by Cass Gilbert, Jr., and John R. Rockart and also by the executor and the executrix of the estate of Cass Gilbert.

The original copy of this requisition has been retained in this office for the purpose of accompanying the payment voucher in favor of the architects, when the same is prepared, and your instructions are requested as to the manner in which this voucher should be prepared, as well as future payment vouchers covering services hereafter rendered under the contract.

Contract ACsc-2, dated May 15, 1930, was between the United States, represented by the Architect of the Capitol and "Cass Gilbert, Cass Gilbert, Jr., and John R. Rockart ", practicing architects of 244 Madison Avenue, New York, N. Y., "jointly and severally, their heirs, executors, administrators, successors, and assigns", and they agreed to furnish all architectural and engineering services required to design the Supreme Court Building and to maintain general supervision of the work while in progress. The architectural firm was known as Cass Gilbert, Inc., and Cass Gilbert, who you report as having recently died, was a very well-known architect, who had designed and possibly supervised the construction of a number of monumental buildings in various sections of the United States. His son, Cass Gilbert, Jr., and John R. Rockart, the other parties to the contract of May 15, 1930, were not so well known and had not the reputation as architects possessed by the late Cass Gilbert. It is a well-settled principle of law that in the case of obligees a contract may be so personal in its character as to preclude survivorship. The death of one such obligee discharges the obligor from further liability under the contract. See Griggs v. Swift, 5 L. R. A. 405; Brace v. Calder, 2 Q. B. 253; Tasker v. Shepherd, 6 H. & N. 575; and Cowasjee Nanavhoy v. Lalldhoy Vulhubhoy, L. R. 3 Ind. App. 200. Such a joint contract as the one in question is an agreement by all that the act promised shall be done, and unquestionably the contract in this case requires joint action of all the obligees, and that has been rendered impossible through the death of Cass Gilbert. It is stated in Williston on Contracts, section 344, p. 664, that a contract of a theatrical agent to employ three persons for performance in which they were all to take part could not be enforced by the survivors if one should die, and by the same authority in section 1940, p. 3296, that the death or long-continued illness of an employee in effect voids his promise. See also section 459, American Law Institute, Restatement of the Law of Contracts.

The promise or obligation of Cass Gilbert to design and supervise the construction of the monumental new Supreme Court Building is

as much personal in character as the illustrations cited by Williston on Contracts, including that of theatrical performers, a painter of portraits, or any other contract where the other party is to pay for the skill and experience wholly personal to the individual employed, and the rule of law is that such contracts, whether joint or several, are terminated with the death of a sole or joint obligee who is to render such personal and skilful services. That principle is appli- . cable in this case, and while the estate of Cass Gilbert and the surviving Cass Gilbert, Jr., and John R. Rockart are entitled to the contract compensation earned and unpaid at the date of death of Cass Gilbert, it does not follow that the estate of Cass Gilbert and the other two architects are entitled to the contract compensation to be earned after the date of death of Cass Gilbert unless the contract was in fact substantially completed at that time.

Even if the contract was not terminated with the death of Cass Gilbert, the two survivors, Cass Gilbert, Jr., and John R. Rockart, should not be paid compensation for the period subsequent to the death of Cass Gilbert, which was fixed because of the skill, experience, and reputation possessed by Cass Gilbert, and who used the other two parties to this contract more or less as his assistants in designing the new Supreme Court Building and in supervising its construction as required by the terms of the contract unless the contract was substantially completed at the time of Cass Gilbert's death; that is, that all of the drawings, etc., had been made and approved by him and nothing remained except to see that the construction contractor carried them out. If it is believed that Cass Gilbert, Jr., and John R. Rockart are qualified to continue the drafting of such necessary plans and specifications as may have been unfinished for the completion of the new Supreme Court Building and to supervise its completion; that is, to perform the service required in the contract of May 15, 1930, there should be a supplemental agreement therefor— in event there was any substantial amount of work uncompleted at the time of the death of Cass Gilbert-fixing such reduced compensation as may be deemed proper for their services in completing the building. If it is considered that they are not competent to carry out any substantial part of the work left unfinished by Cass Gilbert, the contract should be terminated as provided in article 3 thereof and the compensation adjusted as therein stated to the date of death of Cass Gilbert, with such additional reasonable allowance as may be fair and equitable for any services these two men may have rendered during the period intervening between the death of Cass Gilbert and the date of termination of the contract. The vouchers should be sent to this office for direct settlement as claims.

You are advised accordingly.

(A-57207)

CHECKS-FORGED ENDORSEMENTS-LIABILITY OF ENDORSING BANK

An endorsing bank which guarantees all prior endorsements on a check where the payee's endorsement thereon has been forged, is liable as a guarantor on an original undertaking, in addition to the liability arising under the implied warranties attendant upon a general endorsement, and the enforcement of the liability arising under such original undertaking is not contingent or dependent upon the ability of the guarantor to collect from any prior party on the check.

In reclamation proceedings instituted on a forged check an endorsing bank may not defend on the ground that the Government was guilty of lachesit being a well-settled principle of law that laches is not imputable to the Government in its sovereign capacity and that the Government is not liable for the nonfeasance, misfeasance, or negligence of its officers.

Comptroller General McCarl to the Secretary of the Treasury, September 12, 1934:

Consideration has been given to letter from your Department dated July 23, 1934, as follows:

Reference is made to your letter dated April 6, 1932 (CU: F-0361642-AVF), to the Treasury of the United States, relating to check no. 85,570, dated March 27, 1931, for $345.50, drawn on the Treasurer of the United States by John W. Reynar, special disbursing agent, Veterans' Administration, symbol 99-111, to the order of Riley Seller, in which you authorized reclamation of the amount of the check and the delivery of its proceeds to the payee.

On April 9, 1932, the Treasurer requested refund from the endorsers through the Baltimore branch of the Federal Reserve Bank of Richmond. In a letter dated May 14, 1932, the First National Bank, Baltimore, Maryland, the second endorsing bank, declined to make refund, stating that the banking department at Raleigh, North Carolina, had instructed the receiver of the United Bank & Trust Company, Greensboro, North Carolina, the cashing bank, to deny the claim. On May 23, 1932, the First National Bank, Baltimore, Maryland, further stated:

"We deny any liability on this item, owing to then length of time elapsed between the negotiation of the check and notification which was sent us. Should we have been notified promptly, we could have recovered the amount. We, therefore, decline to authorize you to charge our account.”

On June 15, 1932, the matter was referred to the Solicitor of the Treasury for the purpose of bringing suit, if necessary, to effect recovery, who, in turn, transferred the matter on August 14, 1933, to the Attorney General.

In a letter dated June 6, 1934, Assistant Attorney General Sweeney states, in part, "The Department is of the opinion that no recovery may be had in this case and is therefore treating the matter as closed."

In view of the opinion of Assistant Attorney General Sweeney, the check and the file pertaining thereto are returned for advice as to whether reclamation may be abandoned and the Treasurer relieved from further liability.

The subject check was issued by the Veterans' Administration on a valid application made by the veteran for a loan on the security of his adjusted-service certificate and while said check was actually mailed to the address shown in the application for the loan, it has been established conclusively that the check was intercepted and negotiated by a person, other than the rightful payee, but whose identity has not been established. There was thus no negligence on the part of the Government in the issuance and mailing of the check.