Appeal from the District Court of the United States for the Northern Division of the District of Washington.

This is an action arising upon a contract entered into between the appellant and the appellee in May, 1900, in the city of Seattle, state of Washington, wherein the appellee agreed to enter the employment of the government of the United States, under the full and complete direction of the chief quartermaster, department of Alaska, for such time as might be required for the completion of the work in contemplation, and to receive therefor the sum of í?5 per working day, and transportation to and from the point of engagement. The agreement is as follows:

“This agreement, made this 6 day of June, A. D. 1900, between the government of the United States, represented by Major Gonzales S. Bingham as chief quartermaster, department of Alaska, as the party of the first part, and Ohesley C. Moses of the city of Seattle, county of King and state of Washington, as the party of the second part—

“Witnesseth, that the said Ohesley O. Moses, of the city, county, and state as aforesaid, does agree to enter the employment of the government of the United States, under the full and complete direction of the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as party of the first part, for such time as may be required for the completion of the work, the party of the second part to receive as compensation for such services as may be required of him and as hereinafter stipulated, the sum of five dollars per working day.

“That the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as the party of the first part, further agrees that the said Ohesley G. Moses as party of the second part, shall be furnished with the necessary transportation from the point at which he is engaged and these papers are executed to the point at which his services are required, without cost to him as the party of the second part, and when the stipulations of this agreement as hereinafter described are faithfully performed and his term of agreement shall have expired, or in case he becomes physically incapacitated through no fault of his own, the party of the first part further agrees that the party of the second part shall be furnished with return transportation from his post of duty to the point at which his contract of agreement was executed, free of expense to the party of the second part. The party of the second part further agrees that he will at all times cheerfully obey and respect the rules that may be made, and the orders that may be given, by the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as the party of the first part, or his official representative, or authorized successor; that all the business of the department of which he may have knowledge will be zealously guarded as confidential and of strictly secret nature; that he will at all times and under all circumstances guard the interests of the government of the United States to the full and complete extent of his ability; that he will not absent himself, during his period of engagement, from his post of duty, except by permission of the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, or his official representative, or. his lawful successor, or is prevented therefrom by sickness or other intervention of Providence.

“It is further agreed that, in consideration of the faithful performance of the terms of this agreement, the party of the second part is granted the privilege of purchasing such of the quartermaster’s and commissary supplies of the government of the United States for his own actual needs at the post at which he is assigned to duty, under such limitations as may be made by the department commander, at a cost not to exceed an advance of ten per centum over and above the cost to the United States government, to cover transportation; that quarters, as soon as available, will be furnished without expense to the said Ohesley 0. Moses, party of the second part.

“In case that the said Ohesley 0. Moses, party of the second part, is not, at the time of the execution of this agreement, on the classified and eligible list of the civil service commission, it is further agreed by the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, that the said Ohesley C. Moses, party of the second part, if he be a skilled laborer, shall be engaged for a temporary period, at the end of which, if his services have been satisfactory, he shall be privileged to undergo an examination for permanent appointment in the classified civil service, should such examination be provided for by the United States civil service commission, and authorized by proper authority.

“It is further agreed by the party of the second part that the violation of any or all of the stipulations of this agreement, by the party of the second part, shall give the right to the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, to withhold f.’I or any part of the pay or any other emoluments to which the said Chesley C. Moses party of the second part, may be entitled.”

It appears that the appellee proceeded from Seattle to Ft. Davis, Alaska, in pursuance of said agreement, and on or about the 1st day of July, 1900, commenced work as a carpenter upon certain buildings under construction for the quartermaster’s department at.that place, continuing at such work until July 1, 1901; that he worked 10 hours a day during the months of July, August, September, and October, except a few Sundays, when he worked but eight hours; that from November 1st to 21st he worked eight and one-half hours per day, and the remainder of the time but eight hours a day — making a total of 311 working days and nine Sundays. The appellee claims that eight hours constitutes a “working day,” under Act Cong. Aug. 1, 1892, c. 352, § 1, 27 Stat. 340 [U. S. Comp. St. 1901, p. 2521], and article 62, par. 812, of the United States army regulations, and asks that he be paid “time and a half” for all time worked in excess of eight hours on week days, and “double time” for Sundays and holidays, according to the custom prevailing at Ft. Davis during the period in question, and in the quartermaster’s department of the United States. He also asks for payment of $5 per day for 13 days after the completion of the work, during which the appellee was waiting for government transportation, and for $5 a day for 11 days occupied in making the return voyage to Seattle.

The appellant claims that the appellee is estopped from now urging a claim for compensation for extra services, by reason of the acceptance by him, without protest, of compensation at the rate of $5 per day for each day worked, regardless of the number of hours, and receipting for the same, acquitting and discharging the government of all liability to him; also that the necessity for completing the buildings before winter, in order that the soldiers might be sheltered, constituted an emergency, which is excepted by the army regulations from the eight-hour law.

The court below found as facts: “That by the terms of said contract said petitioner was to perform said services until the completion of said works, or until discharged with the consent of said quartermaster; that said petitioner was to receive the sum of five dollars per each working day; that said contract was silent as to the number of hours which under said agreement should constitute a working day; that the rules and regulations, of the army at that time in force providéd and provide that eight hours should constitute a day’s work in the quartermaster’s department, except in cases of emergency; that no emergency is shown to have existed at any time during the existence of said contract, or during the time said petitioner performed services; that said petitioner, pursuant to said contract, went to said Fort Davis,. Nome, Alaska, and rendered and performed services as such carpenter until he was discharged with the consent of said quartermaster, and in every way fully performed his part of said contract; that at the time said petitioner ceased to perform said services he received compensation therefor from said quartermaster at the rate of five dollars per day for each and every day he labored, without regard for, or consideration had, of the number of hours each day during which said petitioner labored; that said petitioner occupied two hundred and twenty-one and one-half hours in the performance of services as aforesaid over and in excess of the whole number of hours occupied at the rate of eight hours per day, and that in addition to the time-occupied by said petitioner in the performance of services at the rate of eight hours per day he occupied the full aggregate number of two hundred and twenty-one and one-half hours in the rendition of services as aforesaid, for which he has never received any compensation; that said number of two hundred and twenty-one and one-half hours amount to twenty-seven and 68/100 days, at the rate of eight hours per day; that at the rate of five dollars per day, being the contract price, said petitioner was and is entitled to further compensation from said defendant in the sum of one hundred and thirty-eight dollars and forty cents ($138.40); that said sum is due said petitioner, and remains unpaid.”

From the foregoing facts the court concluded, as matter of law, that at the time said petitioner had fully performed his said agreement he received compensation from said defendant for his said services at the rate of $5 per-day for each and every day which petitioner performed such services, without regard for or any consideration had of the number of hours which petitioner worked each day; that as a matter of law said contract should be construed to mean that said petitioner undertook to perform said services at the rate of $5 per day consisting of eight hours; that under the rules of the Department of War in force at that time said petitioner was and is entitled to compensation at the rate of $5 per day consisting of eight hours per day, and would be entitled to extra compensation at the rate of $5 per day for all time occupied by petitioner in the rendition and performance of said services over and in excess of eight hours per day; that said petitioner did actually perform services as aforesaid over and in excess of eight hours per day, amounting to 27ss/100 days, which, at the rate of $5 per day, amounts to the sum of $138.40; that said petitioner is not entitled to time and a half nor to double time, as prayed for in his petition herein, nor to any part thereof, nor is he entitled to any wages for the time occupied by him in making his return voyage to Seattle, nor to any other sum claimed by him in his said petition, except only compensation at the rate of $5 per day for said overtime of 27ss/100 days, as above herein set forth.

The judgment of the court was that the appellee do have and recover from the United States the full sum of $138.40. From this judgment and decree both parties have appealed.