The court prepared and submitted for oral argument tentative findings in this case. The issues of fact presented no wide difference of opinion and the cause of action is in most particulars conceded by the defendants. A question of law was alone raised as to the effect of the execution of the final release as set forth in Finding Y. We think this question concluded by the decision of this court in Noel Construction Co. v. United States, No. 29990, 50 C. Cls., —, and United States v. United Engineering c& Contracting Go., 234 U. S., 236. The release considered in connection with the contemporaneous correspondence in reference to its scope and intent brings the same clearly within the decision of the Supreme Court in Cramp c& Co. v. United States, 216 U. S., 494. The release executed by the claimant herein reserved in express language any right of action the claimant might have for claims not within the jurisdiction of the department, but in addition to this reservation the defendants by their conduct had waived the right to enforce the liquidated damage clause of the contract prior to the execution of the release by the contractor. The defendants were without legal authority to withhold any sum from the contractor in virtue of this particular clause of the contract. As said in the United Engineering c& Contracting Go. case, supra, “the rule of the original contract can not be insisted upon, and liquidated damages measured thereby are waived.” It is the same as if the whole provision in reference thereto had been effaced from the agreement, and in the absence of any proof of actual damages the whole consideration mentioned in the contract was due the contractor. The department was clearly without jurisdiction to consider the liquidated damage question, for it was no longer an issue under the contract and, as the findings show, could not be included in the release or intended by the parties in the execution of the same to conclude rights with respect thereto.
Judgment will therefore be entered for the claimant in the sum of $20,741.60. And it is so ordered.