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and mutual mistake" and "in the interest of the United States," the "United * * * for States will pay to said contractor packing boxes, the sum of $1.117 each." In view of the unambiguous and quite unmistakable meaning of the original contract and in the absence of a clear showing that the mistake recited in the supplemental contract was really and in fact made, such supplemental contract does not bind the United States. 158, July 31, 1919.

SPECIFIC PERFORMANCE

952. The specific performance of a contract to purchase surplus brass cartridge shells from the Government can not be enforced. Specific performance of contracts can only be obtained by proceedings in equity, and equity will not invoke jurisdiction where there is a plain and adequate remedy at law. In the present case the United States has a plain and adequate remedy at law by selling the material and bringing an action for the difference between the contract price and the selling price as damages sustained because of the refusal of the contractor to carry out the contract of purchase. 164, Mar. 5, 1919.

TRADE CUSTOMS

953. Where a contract was silent as to which party should bear the expense of furnishing winchmen, the Government is not bound to furnish such winchmen free of charge to the contractor or compensate the contractor therefor in addition to the schedule of charges set forth in the contract; nor can the contract be now modified so as to provide for such winchmen, unless such modification would be in the interest of the Government. A trade custom of the port can not vary the contract where its terms are unambiguous. 486.1, Jan. 17, 1919.

The War Department sold flour to the Food Administration Grain Corporation, delivery to be made free alongside the ship (f. a. s.) in New York Harbor. The vendor placed the flour on lighters and towed them alongside the vessel within reach of the ship's tackles but furnished no labor to assemble the packages on the lighter's decks, and to place them at the slings at the end of the ship's tackles. The term "f. a. s." means free alongside, within reach of the ship's tackles-that the seller pays the transportation charges to the ship's side and within reach of her tackles. The manner in which goods are to be shipped is ascertained, so far as not expressly agreed upon, by the customs and usages of the place where they are shipped and having regard to the regulations and laws there prevailing. The War Department is presumed, in law, to have known any custom prevailing in New York Harbor as to the manner of loading cargo upon vessels therein. The custom in New York is, as this office believes, in cases of sale f. a. s., that the goods are transported to the ship's side by the seller within reach of the ship's tackles, and the ship pays for the labor or assembling the cargo placed alongside within reach of her tackles, at the slings at the end of her tackles. Claim of the White Star Line for furnishing labor necessary to assemble and place the flour, which the vendor had placed alongside within reach of the vessel's tackles, at the slings at the end of the ship's tackles, should not be paid by the War Department. 486.1, Oct. 3, 1919.

VARIABLE QUANTITY

954. The amount appropriated for a public work not being sufficient for its completion, it was proposed to insert in the specifications a provision reserving 72746 32 -30

to the United States the right to increase the quantities used as a basis for canvassing the bids to an amount sufficient to complete the entire work should Congress make provision therefor. Held, That this would not bind the Government to increase the amount, and the insertion of the provision contemplated would not be a violation of R. S. 3679, 3732, and 3733, which prohibit the entering into a contract beyond the amount appropriated by law for its fulfillment, and that the original advertisement would be sufficient to cover the contract as extended by the option. 76-101, Nov. 7, 1912.

Secs.

CHAPTER 8

DECEASED PERSONS

955-961. BURIAL EXPENSE.

962-964. DEATH.

965. DISPOSITION OF REMAINS.

966-975. EFFECTS OF ARMY PERSONNEL. 976. EFFECTS OF PRISONERS OF WAR. 977. JURISDICTION.

978. MILITARY HONORS.

979. PAY DUE FROM UNITED STATES.
980. REMOVAL OF REMAINS.

981. WILLS.

BURIAL EXPENSE

Secs.

955. ARMY PERSONNEL.

956. CIVILIAN EMPLOYEES.

957. CIVILIANS.

958. DESERTERS.

959. DISCHARGED SOLDIERS.

960. PRISONERS.

961. TRAINING-CAMP ATTENDANTS.

ARMY PERSONNEL

955. A soldier absent without leave became ill and died while away from his home. The burial expense provided by regulations should be paid from public funds. With respect to the shipment home and burial of the remains of a deceased soldier at public expense, the Sundry Civil Appropriation Act (40 Stat. 634, 656) refers to "enlisted men in active service," and section 301 of the War Risk Insurance Act (40 Stat. 398, 405) refers to death occurring “before discharge or resignation from the service." The term "active service" denotes the active status as distinguished from the reserve status or retired status; and a soldier absent without leave, but not a deserter, is within its meaning (See par. 1a, AR 5-280.) 293.3, Dec. 2, 1918.

A deceased soldier left a will providing for the burial of a body in " a Christianlike manner," burial expenses to be paid out of his estate. All efforts to locate relatives of the deceased thus far have proved unsuccessful. The will provided for all property of the deceased to go to his fiancee. It is the duty of the executor to provide the burial in accordance with the will. (Weld v. Walker, 130 Mass. 422.) It will be proper for the War Department at the request of the executor to ship the remains for disposal by the fiancee. 293.9, May 1, 1919.

WILLIAN EMPLOYEES

engine of the mostmodic fire aged a the wick of *surig the Tanet with Government Explosives Flat C." Nitro, W. T2 #LA DE & Tee of the Army in the empiry of the War Departin day the felt or at a diary post with the meaning of the am of fug 2 228 9 Sat 54 66), relating to the position of the nuses 112.1. Feb. 1, 1919.

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omgration for *Duprence of remains of frers, sollers, and drilli empingen" a suerte vi af Marà 9 1918.45 Stat 2014, in pari materia with BATITA st

A telephone gerator in the employ of the Signal Corps died in the United fate vie dergling training in telgbicy, preparatory to going overseas. The relation permining payment of burial expenses of deceased civilian ar AR. 1913, as amended. C. A. R. par ie, AR 5-280) expenditure in enserica therewith to employees who e abroai, in Alaa 2 the Canal Zone, on Army transports, or while on day in the felt or at may posts in the United States. The death in this case having comme la a dy the United States is not within the provision of this gation and to burial expenses can be allowed. 157. Not. 14, 1318.

The as of 117 1 15184) Stat. 634 6361, provides certain burial expenses for 21 era of the Army who die abroad, in Alaska, in the Canal Tote, or a Army tragorts, or while on duty in the field or at military posts mit of the United States. Paragraph 87. A. R. 1913 (par. le. AR a fosted on this statute. It does not apply to civilian employees of the Kar Deparment in the cfce of the Director of Military Aeronautics. 7 28 are included within the terms of the statute are enSites to ita tenetta. It does not apply to employees of the War Department in as exeunte department in the District of Columbia. 518, Jam. 14, 1919.

CIVILIANS

FIT. A rez, tered nurse volunteered her services when the influenza epidemic wa at de height in a students' Army training camp. There was a “life and Charz terparity" of getting nurses. The nurse was on duty constantly until she was stricken with the disease and taken to a hospital for care. where she Ced. The character of the emergency which called forth the services in question comes within R. S. 3679, as amended by the act of March 3, 1905 (33 Stat. 1214, 1257). The medical and hospital care extended during the last sickness of the nurse may be paid under paragraph 1476. A. R., 1913 (par. 3. AR 40–505). The expense of preparing the remains for shipment and the cost of transporting them to her home for interment may be paid by the Quartermaster Corps to the extent provided in paragraph 87, A. R., 1913, as amended by C. A. R. No. 77, Az.at 3, 191% (par. 3, AR 5-250). 157, Mar. 15, 1919.

Reimbursement of burial expenses incurred for the interment of civilian, k...ed in an airplane accident while proceeding to Taliaferro Field for the purpose of enlistment, is sought by deceased's father. The deceased signed an unlimited release in favor of the Government, and, since there is no fund from which reimbursement may be made, the claim must be disallowed. 157, Aug. 25. 1919.

DESERTERS

958. A soldier on duty at Tientsin, China, as legation guard, deserted in 1912, and about two years thereafter was arrested by the marshal of the United States consular court at Shanghai, China, on the charge of desertion. While attempting to escape from such custody, he was shot and killed by the prison keeper, and was buried at Shanghai. Request was made by the soldier's mother to have the remains removed to this country for burial at the expense of the United States. The usual provision contained in the current Sundry Civil Appropriation Act (38 Stat. 631) authorized the removal to their homes or to a national cemetery at public expense "of the remains of officers

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and enlisted men on the Army active list." On the question whether the soldier could be considered as having been on the active list at the time of his death within the meaning of this legislation, in view of the fact that at such time he was borne on the rolls as a deserter, but had not been convicted by a court-martial, Held, That for certain purposes the fact of desertion may be determined administratively (Dig. Op. J. A. G., 1912, p. 416; 12 Comp. Dec. 328); that when the charge of desertion is entered, following the unauthorized absence of the soldier, he is dropped from the rolls of the Army as a deserter, and that this effectively removes him from the "active list," to which he is not again restored until he is returned to military control and at least taken up as a returned deserter; that in the instant case, as the party had not been returned to the military authorities and taken up as a returned deserter, he could not properly be regarded as being on the active list at the time of his death, within the meaning of the statute in question. 5-244.1, Apr. 2, 1915. See act of March 9, 1928 (45 Stat. 251), in pari materia with statute cited.

DISCHARGED SOLDIERS

959. An ex-Union soldier died in the District of Columbia in April, 1914, leaving no property. His widow received $1,933.77 from a policy of insurance on his life made payable to her. She paid the expenses of his burial in Arlington National Cemetery, amounting to $113, and afterwards made application for reimbursement of $45 from the appropriation for Burial of Indigent Soldiers (Sundry Civil Act of June 23, 1913, 38 Stat. 31), which provided for the payment, not to exceed $45 in each case, of the expenses for the burial in Arlington National Cemetery, or in the cemeteries of the District of Columbia, of indigent ex-Union soldiers, sailors, or marines dying in the District of Columbia.

Held, That life insurance not payable to the estate of the deceased is not a part thereof, and that the question as to whether the ex-Union soldier died indigent within the meaning of the act of June 23, 1913, was not affected by the receipt of his life insurance by his widow. 5-244.1, Dec. 9, 1914.

Under the act of July 1, 1918 (40 Stat. 634, 656), an indigent person is one destitute of property or means of comfortable subsistence; needy; poor. All the surrounding circumstances of each case should be considered. The fact that the United States may be indebted to said deceased at the time of his death in a sum in excess of $45 should not be the sole determining factor in the case. If the withholding of the statutory allowance of $45 for burial expenses would reduce the deceased soldier's legal dependents practically to a