cised by that person alone, and in advance of the incurring of the obligation. 13 Comp. Gen. 305; 14 id. 601; id. 698; id. 755; 20 id. 27; id. 779; id. 797, and 21 id. 921. Such decisions have been in accord with the rule frequently announced by the courts that an agent cannot, without the principal's consent, delegate powers which involve judgment or discretion. 2 Corpus Juris 685; Swearingen v. Moore, 280 P. 295, 300; Griffin v. Rosenblum, 23 P. (2d) 348, 349; MacDougall v. Board of Land Com'rs, 49 P. (2d) 663, 666; Mobley v. Marlin, 144 S. E. 747; School District v. Callahan, 297 N. W. 407, 415; Rector v. H. K. Mulford Co., 185 S. W. 255, 257; and Sodekson v. Lynch, 9 N. E. (2d) 372. Also, see 21 Op. Atty. Gen. 355. The rule is stated in the case of In re Giles, 21 F. (2d) 536, 537, as follows:

A public officer is, in a large sense, an agent, and falls within the general rule that an agent in whom is imposed trust and confidence, or who is required to exercise discretion or judgment, may not intrust the performance of his duties to another without the consent of his principal 31 Cy. 1425, 1428. Specifically of public officers it is said: "In those cases in which the proper execution of the office requires on the part of the officer the exercise of discretion and judgment, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given him, he cannot delegate his duties to another." *

It necessarily follows, in view of the foregoing, that the Secretary of the Navy cannot delegate his discretionary authority with respect to the employment of engineers and architects at a rate of pay not exceeding $25 per diem. In other words, acting as an agent for the Government the Secretary of the Navy cannot exercise his discretionary authority by delegating a subagent to exercise it for him.

I appreciate that the foregoing now appears to be recognized by the Navy Department but a discussion of the principles involved appears pertinent to a determination of the effect of the purported approval of the contract and ratification of the action of the Purchasing Officer, Bureau of Supplies and Accounts.

A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. Clark's Executors v. Van Riemsdyk, 13 U. S. 153, 161; Supervisors v. Schenck, 5 Wall. 772, 783; Marsh v. Fulton County, 10 Wall. 676, 684; Cook v. Tullis, 85 U. S. 332, 338; and The Capitaine Faure, 10 F. (2d) 950, 964.

The general rule is that the ratification of a particular act or contract may be made by anyone in whose behalf such act or contract has been done or made only if he could have given authority to do the act or enter into the contract in the first instance, and if he still has power to do so at the time of the ratification. Taslich v. Industrial Commission, 262 P. 281; Riddle v. Ellis, 281 id. 286. It necessarily follows, then, that a contract may be ratified by one party only if it

was entered into on his behalf and if, in the first instance, he could have given authority to enter into the contract. Neither of those conditions is present in this case. The subject contract was entered into by the Purchasing Officer, Bureau of Supplies and Accounts, on behalf of the United States as principal, not the Secretary of the Navy as an agent of the United States; and because of the discretion required to be exercised by the Secretary of the Navy he could not, in the first instance, have authorized the said Purchasing Agent to exercise the discretion and enter into the contract. An agent who has no power to appoint a subagent cannot ratify the act of a subagent so as to bind his principal; that is to say, one who lacks authority to delegate the performance of acts which he himself has power to perform cannot ratify such acts when done by another who has no such authority. Thompson v. Michigan Mutual Life Ins. Co., 105 N. E. 780.

In view of the foregoing it must be held that since authority was lacking in the first instance to delegate power to the Purchasing Officer to exercise the discretion required by law in the present case, authority now is lacking to ratify the action of the said Purchasing Agent. This situation is to be distinguished from the situations existing in the cases of Neal, et al. v. United States, 14 C. Cls. 280, and Ford v. United States, 17 id. 60, 76, cited in the above-quoted letter, because in those cases it appeared the performance of the acts ratified could have been delegated by the ratifying agent in the first instance; their performance was not charged by law to the discretion of a particular agent.

By reason of the evident misunderstanding in the present case and since it appears that the contract has been completed and the Government has received the benefit thereof, I do not feel required to question further an otherwise proper payment made in good faith, pursuant to the contract, but the foregoing matters are called to your attention in order that hereafter there may be no doubt with respect to the duty of public officials to exercise their discretion in advance in those cases in which the making of a contract or the doing of an act is by law conditioned on the exercise of their discretion.

(B-34868)

CONTRACTS-EXCUSABLE PERFORMANCE DELAY AS TERMINATING CONTRACT

Where, because of the Government's wartime restrictions on deliveries of motor trucks, a Government contractor was excusably delayed for more than a year in fulfilling its obligation to deliver a motor truck, the frustration of contract performance for so long a period completely terminated the obligations of the parties under the contract.

Where the obligation of the parties under a contract for the delivery of a motor truck to the Government was terminated by reason of a long period of excusable delay in performance, the original contract may not be modified to provide for an increase in price in the light of changed conditions, but, rather

there should be advertising, pursuant to section 3709, Revised Statutes, for competitive bids prior to awarding another contract for the purchase of a truck.

Comptroller General Warren to the Architect of the Capitol, June 10, 1943: I have your letter of May 29, 1943, as follows:

Under date of November 26, 1941, this office placed an order with the Trew Motor Company, 1526 14th Street, N. W., Washington, D. C., for a stake body motor truck for the Capitol Grounds for the sum of $1418.19, less $325.00 allowance for one used truck, subject to a discount of $10.83 for payment within 30 calendar days. Delivery was required to be made within 45 calendar days after receipt of order. The original contract is on file at the General Accounting Office. Because of the War Production Board's freezing order of January 2, 1942, the contractor was prohibited from making delivery. Application to acquire this vehicle was made to the War Production Board on February 9, 1942, and denied by that agency on March 20, 1942. A new application was made on May 4, 1943, and certificate of transfer was issued by the War Production Board on May 22, 1943. The contractor has been advised of the issuance of this authority but declines to make delivery under the contract because of the regulations of the Office of Price Administration establishing ceiling prices and making allowable charges for costs incurred by the supplier as a result of the "freezing" of the vehicle, and because of further depreciation in value of the used truck to be exchanged. The supplier asks a price of $1671.15 for the new vehicle and states that the maximum trade-in value which he can now allow on the old truck is only $50.00.

Your views are respectfully requested as to whether this office may modify the contract by increasing the price in such amount as may be determined proper under O. P. A. regulations, including a determination as to the trade-in value of the old truck, or whether the contractor may be relieved of his obligations under the existing contract and new bids taken for the truck. As the contractor has limited his new proposal for acceptance before June 16th, subject to prior sale, an early reply will be appreciated.

The "freezing order" referred to by you, Supplementary General Limitation Order L-1-c, dated January 1, 1942, section 976.10, 7 Fed. Reg. 116, as amended January 8, 1942, 7 Fed. Reg. 219, and extended to March 8, 1942 (7 Fed. Reg. 311; id. 699; id. 971; id. 1629), prohibited the delivery of trucks, except to certain specified agencies, among which your office was not included. On March 9, 1942, this limitation order was superseded by General Conservation Order M-100, 7 Fed. Reg. 1632, section 1111.1, which lifted the "freeze" and permitted sales provided a certificate was obtained from the War Production Board. It appears you were not able to precure such a certificate until May 22,

1943.

Performance of the subject contract on the due date of January 10, 1942, and until March 9, 1942, thus was prevented by the limitation order, and from March 9, 1942, to May 22, 1943, delivery of the truck could not be effected because of your inability to secure the necessary War Production Board certificate. During these periods, the contractor's failure to deliver the truck clearly was excusable.

The primary question involved, therefore, is whether, more than a year after the date fixed by the contract for performance, the lifting of the governmental bar to performance by the issuance of the War Production Board certificate, revived an obligation which had, in the interim, merely lain dormant, or whether the frustration of the con

tract performance for so long a period, had completely terminated the obligations of the parties thereunder. Reason and the weight of authority support the latter proposition.

In Mawhinney v. Millbrook Woolen Mills, Inc., 231 N. Y. 290, 132 N. E. 93, 96, the court said:

* It has also been held that, where the performance of a contract is suspended by government work for a material length of time, execution of the contract is entirely excused. Metropolitan Water Board v. Dick, Kerr & Co., Ltd., Law Reports [1918] Appeal Cases, p. 119 (House of Lords).

In the well considered case of Black & Yates, Inc. v. Negros-Philippine Lumber Co., 32 Wyo. 248, 231 Pac. 398, 401, cited with approval in Dant & Russell, Inc. v. Grays Harbor Exportation Co., 106 F. (2d) 911, it was held:

[8] It is held that when deliveries according to contract have been prevented by the operation of a casualty clause contained therein, such as that of fire, strike, or other unavoidable contingency, the promisor is relieved altogether, not only from liability for failure to make such deliveries, but also from the obligation to make them thereafter, unless, probably, only a delay of short duration is caused thereby, or unless the contrary appears from the contract. Normandie Shirt Co. v. J. H. & C. K. Eagle, Inc., 238 N. Y. 218, 144 N. E. 507, and cases cited; Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 F. 256, 51 C. C. A. 213; Edward Maurer Co. v. Tubeless Tire Co. (D. C.) 272 F. 990, affirmed in (C. C. A.) 285 F. 713, and cases there cited. Williston on Contracts, § 1968, and cases cited; Jackson v. Marine Ins. Co., 10 L. R. 125 (1874). And it is further held that if it be the intention of the parties that the operation of the casualty clause is merely to delay delivery, requiring such delivery to be made subsequent to the unavoidable casualty, or within a reasonable time thereafter, the contract must clearly so provide. Edicard Maurer Co. v. Tubeless Tire Co., supra; Normandie Shirt Co. v. J. H. & C. K. Eagle, Inc., supra. The reasons of these rules are illustrated in the case of Geipel v. Smith, 26 L. T. (N. S.) 361, decided in 1872. There the defendants agreed to carry a cargo of coal to Hamburg "restraints of princes and rules excepted." The coal was not deliverable to Hamburg on account of a blockade. Cockburn, C. J., in holding the contract ended, stated, among other things:

"But then Mr. Cohen says that the expression 'restraint of princes' applies to the whole contract, and that the contract must be read thus; that whereas the ship was to go to Hamburg when wind and weather permitted, subject to the restraint of princes, when that restraint, once existing, is removed, the vessel is to go when the wind and weather permits. If we are to construe the contract in that way, I think the consequence would be monstrous-to hold that if a blockade should last for an unusually long time. the defendants would be bound to keep their vessel idle all that time until the blockade should cease. It must be taken, if you are to construe the contract in that way, that the restraint of princes must have an end within a reasonable time. The defendants meet the plaintiffs' claim by saying, 'It was impossible in the present case that the contract should be performed within a reasonable time; granted that the restraint of princes must be for only a reasonable time, then I should be bound to start; but having lasted an unreasonable time, I am not so bound.' It may well be that if he failed to make out such a plea, he would have to answer for it; but, as the case now stands, I think the defence a good one."

And in the same case Blackburn, J., said:

"If whilst the blockade existed there was a 'restraint of princes' which excused the performance of the contracts, the moment the blockade was raised were not the defendants bound to carry out their contract? If the blockade had existed only for an hour or two, or for a very short time, I do not think it would put an end to the contract; but I cannot agree with Mr. Cohen's contention that, however long the blockade might have existed, even if it had lasted as long as the blockade of Toulon, some 8 or 9 years, I think, or as long as some of the blockades in the War of Independence between the United Provinces and Spain; that after that enormous time the owners of the ship and cargo should be obliged to have

them ready in order that the contract might then be carried out. It seems to me monstrous and inconvenient to hold such a position, the consequences being to frustrate the very object of the contract, which is one for the prompt transport of the shipper's goods, and the remunerative employment of the shipowner's vessels. Such a state of affairs, in my opinion, not only produces a delay in the fulfillment of the contract, but puts an end to it altogether."

In the case of Edward Maurer Co. v. Tubeless Tire Co., supra, the contract was made during war, subject to the rules and regulations of the United States government, and in contemplation thereof. It was contended there, as here, that temporary stoppage of performance simply postponed deliveries and did not end the contract. The court said in (C. C. A.) 285 F. 716:

"No sane business man would at that time have entered into a contract to buy, at war prices, material to supply the needs of his factory, to be delivered at specified periods in the immediate future, with the express agreement and understanding that if government regulations prevented the delivery of the material so purchased at the times named, or at any time during the continuance of the war, that the seller would have the right to deliver that material at one time and in one mass after the war had terminated, which event might be years in the future."

[9, 10] The cases above mentioned are not inapplicable to the case at bar, or they at least shed considerable light upon the subject before us. It is true that we nowhere find a specific clause in the contract in the case at bar that it is "subject to the ability of obtaining transportation," or that the shipment was to be made "ability to obtain transportation excepted." But it is conceded by plaintiff that the defendant was excused from the performance of the contract during a period of three years, while an impossibility to deliver the lumber existed. The effect, at least, of this would seem to be the same as though the contract in the case at bar had contained an express casualty clause, excusing defendant from performance, if transportation could not be obtained. The question of course still remains whether that excuse was intended to be permanent or temporary. But the same question arises in interpreting any casualty clause whatever, and in any event-and that is as far as we need to decide the rule that courts are not inclined to construe such clause as intended to give a temporary excuse only, unless that clearly appears, would seem to be applicable here, for the reasons upon which that rule is founded operate as strongly in the case at bar as in the cases cited.

The instant agreement was entered into after the enactment of the act of May 31, 1941, 55 Stat. 236, excusing nonperformance resulting from compliance with a priority or allocation order issued under authority thereof, and must be construed with reference thereto; moreover, paragraph 4 of the Conditions forming a part of the contract provides that the contractor shall not be liable for excess costs resulting from failure to perform if such failure is due to "acts of the Government." Hence, as in Black & Yates, Inc. v. Negros-Philippine Lumber Co., supra, the subject agreement is controlled by the rules which govern the interpretation of an express "casualty clause."

However, the contract may not be modified in the light of the changed conditions, for to do so would, in effect, be to make a new purchase agreement without advertising, in violation of the provisions of section 3709, Revised Statutes.

Accordingly, it must be held that there is no enforceable contract now extant between the parties, and since the original contract cannot lawfully be modified, there should be advertising for competitive ids prior to awarding another contract for the purchase of a truck, The papers are returned herewith.