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93 C. Cls.

THE CREEK NATION v. THE UNITED STATES

[No. L-234]

[92 C. Cls. 269; 313 U. S. ]

Indian claims; reservation of riparian rights in allotments on river banks.

Decided November 12, 1940; petition dismissed. Plaintiff's motion for new trial overruled February 3, 1941.

Plaintiff's petition for writ of certiorari denied by the Supreme Court May 26, 1941.

THE UNITED STATES v. NUNNALLY INVEST

MENT COMPANY

[No. 42389]

[92 C. Cls. 358; 313 U. S. - ]

Income tax records and returns on a cash basis; suit on different issues not estopped by reason of prior case.

Decided January 6, 1941; judgment for the plaintiff.

Defendant's petition for writ of certiorari denied by the Supreme Court May 26, 1941.

THE FRANKLIN LIFE INSURANCE COMPANY v.

THE UNITED STATES

[No. 45045]

[Ante, p. 259; 313 U. S. --]

Transfer tax under Title VIII of the Revenue Act of 1926, as amended; life insurance policies registered under Illinois law.

Decided March 3, 1941; petition dismissed.

Plaintiff's petition for writ of certiorari denied by the Supreme Court May 26, 1941. .

INDEX DIGEST

ADVERTISING EXPENSES.

See Taxes L, LI, LII.
"ALLOWANCES."

See Pay and Allowances XV.
AMBIGUITY.

See Pay and Allowances XV.

See Taxes XLV.
"ANNUITIES."

See Indian Claims IV.
ATTORNEY'S FEES.

See Indian Claims I.
BOARD OF TAX APPEALS.

See Taxes LX, LXI, LXII.
BUTTER, TAX ON.

See Taxes LXVIII.
CASE “TRIED AND SUBMITTED."

See Indian Claims XVI.
CHARITABLE INSTITUTIONS.

See Taxes LIX.
CLAIM FOR REFUND.

See Taxes XXXV, XXXVI, XXXVII.
CONSOLIDATED RETURN.

See Taxes XXIV.
COMMISSIONER OF INTERNAL REVENUE.

See Taxes XLVI, XLVIII, XLIX, LX, LXXII, LXXIV.
CONGRESS, POWER OF.

See Taxes LXXIII.
CONSENSUAL CONTRACT.

See Rental of Property by Government I, III, IV.
CONSEQUENTIAL DAMAGES.

See Flood Control I, II.
CONSTITUTIONALITY.

See Taxes LXXX, LXXXI.
CONTEMPLATION OF DEATH.

See Taxes LXIII, LXIV, LXV, LXVI, LXVII.
CONTINUED OCCUPANCY.

See Rental of Property by Government III.
CONTINUED POSSESSION BY LESSEE.

See Indian Coal Lands II.
CONTRACTING OFFICER.
See Contracts XVIII, XXIII, XXV.

323387-41-vol. 93 51

93 C. Cls.

CONTRACTS.

1. Where plaintiff sold to a firm of contractors, on title-

retaining contract, one reconditioned dragline with
certain equipment; and where said contractors entered
into a contract with the Government to install sewer
and storm drainage systems at a naval air station, and
began work on said job, utilizing the said dragline
and equipment; and where later said contractors,
having previously defaulted on said purchase contract,
abandoned the work before completion, leaving the
said dragline and equipment on the site of the job,
and the work was thereafter completed by the Gov-
ernment, which used the said dragline and equipment
only for about 16 hours on October 4 and 5, 1932; and
where later verbally, and on October 20 and 21, 1932,
in writing, the Government was notified that title
to said dragline and equipment vested in plaintiff ;
and where said dragline and equipment were not used
by the Government after such notice of ownership; it
is held that there was no liability for use on the part
of the Government and the plaintiff is not entitled to

recover. Excavating Equipment Dealers, 82.
II. In order for the Government to be bound by a contract

for the use of such property it would be necessary
for the duly authorized public authority, the Bureau
of Yards and Docks, either to have made an express
contract for the use, or to have conducted itself in
such a way that there would be an implied contract
to retain for use and to pay the reasonable rental value
for such use or retention for use.

Id.
III. If there was any unreasonable delay or negligence on

the part of the Government officials in releasing the
machine, it would be a matter of tort and not of con-
tract; and therefore not within the jurisdiction of
the Court of Claims at the time the cause of action

in the instant case arose. Id.
IV. Retention for use, including actual use, made of the

dragline prior to October 17, was pursuant to the
express provisions of article 9 of the contract between
the firm of contractors and the Government; and be-
fore anyone connected with the Government had any
notice or knowledge of any claim of interest by the

plaintiff. Id.
V. Where there was no meeting of the minds, either ex-

press or implied by circumstances, at a time when the
defendant had no knowledge of plaintiff's claim of

93 C. Cls.

CONTRACTS—Continued.

interest, and where plaintiff did not know the machine
was in the custody of the defendant, there could be no
priority of contract, and hence no liability on the part

of the defendant to the plaintiff. Id.
VI. Where on January 12, 1933, the plaintiffs entered into a

contract with the defendant, by the terms of which
plaintiffs agreed to furnish all labor and materials and
to perform all work required for wrecking and remov-
ing old buildings and constructing 17 new buildings
for the Veterans' Administration at San Francisco,
California, and for the reconditioning and rebuilding
of two other structures, including fences, gates, roads,
walks, grading, and drainage; and where plaintiffs per-
formed said work and completed said buildings and
other phases of the contract; and where delay was
caused and a revision of the plans was necessitated by
the discovery of unforeseen conditions in connection
with the foundations of Building No. 2; it is held that

the plaintiffs are entitled to recover. Baruch, 107.
VII. Where extra costs are incurred by contractor due to un-

foreseen or unknown conditions in construction or
excavating foundation of buildings, the changes thereby
required are not necessarily reasonable changes con-
templated in the contract, and contractor may recover
the actual costs thus incurred. Rust Engineering Co.

v. United States, 86 C. Cls 461, 475, cited. Id.
VIII. Where, in pursuance to the Government's economy pro-

gram, orders were given to the plaintiff by the defend-
ant to discontinue work on Building No. 1, with a view
to the possible elimination of said building from the
project, and work was accordingly stopped for 116 days,
at the expiration of which time, by order of the de-
fendant, work on said building was resumed and ulti-
mately completed; it is held that the delay so caused
was not the fault of the contractor and plaintiffs are
entitled to recover the actual and necessary costs

thereby incurred. Id.
IX. Where a contracting concern entered into a contract with

the Government to furnish all labor and material and
perform all work required for the complete installation
of an extension to the existing steam heating plant and
installing a new steam distribution system at the Naval
Ammunition Depot, Fort Mifflin, Pa., and the plaintiff
as surety executed a completion bond for the contract;
and where the defendant before completion terminated
the contractor's right to proceed and called upon plain-

93 C. Cls.

CONTRACTS—Continued.

tiff to complete the contract, and plaintiff did complete
said contract; and where in final settlement a voucher
for payment to the plaintiff was approved by the Navy
Department and forwarded to the General Accounting
Office, and where payment of said voucher was with-
held by said General Accounting Office pending settle
ment of a suit by the contractor in the Court of Claims
against the defendant for said amount; it is held
that plaintiff is entitled to recover. Fireman's Fund

Indemnity Co., 138.
X. Where the Government, before the time was up, termi.

nated the contractor's right to proceed and engaged
another party to complete the contract, it is held that
the defendant was not entitled to collect from surety
completing the contract liquidated damages for the

delay, and plaintiff is entitled to recover. Id.
XI. Where the statute specifically provided that a penalty

should be assessed against a contractor for working men
in excess of 8 hours per day, and where the amount of
said penalty was deducted from the payment made in
final settlement; it is held that the presumption is that
the public officials assessing said penalty acted in ac-
cordance with the statute in making such assessment
and it was for the plaintiff to show by evidence that

the deduction so made was not authorized. Id.
XII. Where the contract provided that all employees on the

work should be paid "just and reasonable wages," and
where it was further provided that the contracting
officer might withhold from the contractor so much of
accrued payments as might be necessary to pay to
laborers or mechanics so employed the difference be-
tween the rate of wages required by the contract and
the rate of wages actually paid to such laborers and
mechanics; it is held that in the absence of any proof
to show what amount was paid to the workmen so

employed plaintiff is not entitled to recover. Id.
XIII. Where plaintiff, under contract with the Government,

made and delivered to the Washington Navy Yard
six gun-tube forgings which were rejected by the
Government for defects discovered by the defendant
at various stages of manufacture, it is held that under
the provisions of the contract and in accordance with
established practice at the time the contract was
entered into there was no obligation on the part of
the defendant to make final inspection of said gun-
tube forgings at any particular stage of manufacture
into completed articles and the plaintiff is not entitled
to recover. National Forge and Ordnance Co., 170.

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