HARLEY
v.
UNITED STATES.
No. 195.
Supreme Court of United States.
Argued April 6, 1905. Decided May 8, 1905. APPEAL FROM THE COURT OF CLAIMS.*231 Mr. W.W. Dodge and Mr. A.A. Hoehling, Jr., for appellant.
Mr. Special Attorney Charles C. Binney, with whom Mr. Assistant Attorney General Pradt was on the brief, for the United States.
*234 MR. JUSTICE McKENNA, after making the foregoing statement, delivered the opinion of the court.
The question in the case is whether, on these facts, a contract arose between the United States and the appellant, whereby the United States promised to pay him for the use of his device.
We held in Russell v. United States, 182 U.S. 516, 530, that in order to give the Court of Claims jurisdiction, under the act of March 3, 1887, 24 Stat. 505, c. 359, defining claims of which the Court of Claims had jurisdiction, the demand sued on must be founded on "a convention between the parties `a coming together of minds.'" And we excluded, as not meeting this condition, those contracts or obligations that the law is said to imply from a tort. Schillinger v. United States, 155 U.S. 163; United States v. Berdan Fire-Arms Mfg. Co., 156 U.S. 552.
In the case at bar the Court of Claims finds that the appellant "supposed and understood that he would be entitled to compensation, and that it would be allowed and paid by the Secretary of the Treasury;" but it also finds that "on the part of the Secretary and Chief of Bureau (Engraving and Printing) it was supposed and understood that the claimant (appellant) being an employe of the Treasury Department would neither expect nor demand remuneration." That there was "a coming together of minds" is therefore excluded by the findings. And the use of the device cannot give a right independent of the understanding under which it was used. The appellant should have been explicit in his demand. He contends *235 that he was, but manifestly he was not, or the curious opposition between his expectation and that of the Secretary of the Treasury and Chief of Bureau could not have occurred. And we cannot assent to the suggestion that he "was by coercion prevented" from making a demand "in terms" by his subordinate position. How long must we suppose such coercion lasted and that he could have permitted a misunderstanding of his purpose? Six years passed, and the Chief of Bureau with whom the negotiations were made went out of office; another succeeded. No demand was made of either for compensation. Further time passed, and other Chiefs of Bureau succeeded. There was a succession of Secretaries of the Treasury; no demand was made of any of them. His first demand was the petition in this case, over fourteen years from his first interview with the Secretary of the Treasury. This delay cannot be overlooked or interpreted favorably to appellant's contention. He sues for $102,600, and this does not include the royalties that he contends he was entitled to for the first six years the device was used. He claims a royalty of twenty-five cents a day on an average of two hundred machines that is, $50 a day. He was an employe of the Government at a modest salary, and we cannot conceive there was no inducement in $50 a day to an explicit demand of his rights, or that he was willing to wait, or felt himself coerced to wait, for their realization for fourteen years, and even to lose compensation for six years by the operation of the statute of limitations. The rights of the Government are obvious. The contention of the appellant forces on it a liability that it might not have taken. It was given no election of the terms upon which it would use the register, or whether it would use it at all. Of course, this argument is based on the fact that there was no coming together of the minds of the parties, or, as expressed by the findings of the Court of Claims, that "it was supposed and understood" by the officers of the Government that appellant "would neither expect nor demand remuneration." And this fact distinguishes the case from McKeever *236 v. United States, 14 C. Cl. 396, affirmed by this court; also from United States v. Lynah, 188 U.S. 445, and the other cases cited by appellant.
Judgment affirmed.
MR. JUSTICE PECKHAM dissents.