XIV. Where the Government, in accordance with the terms
of a construction contract, because of delay and
default on the part of the contractor, terminated said
contract after the time provided for the completion
thereof, and took over and completed the work;
it is held that the Government may not collect both (1)
liquidated damages for the period that elapsed after
the time provided for completion and before the
Government exercised its option to terminate said
contract and (2) the excess costs which were incurred
by the Government in completing the work. Mary-
land Casualty Co., 247.
XV. The defendant, having exercised its right to terminate
a construction contract and to proceed with its com-
pletion, thereby waived its claim to liquidated
damages. Id.
XVI. Where the Government terminated a construction con-
tract because of delay and default on the part of
the contractor and completed the work, and where a
regularly employed architect remained on the job con-
tinuously during the time the Government was actually
engaged in completing the work; it is held that the
salary of said architect for said period was properly
included as a part of the excess costs of completing
said work. Id.
XVII. Where it was provided in a contract with the Govern-
ment for the construction of locks and appurtenant
works on the Ohio River that when and if, while the
work was in progress, a rise in the Ohio River should
"overtop" the cofferdam where built and maintained
to the specified elevation of 530.0, which is 18 feet
above the normal pool above Dam 27, Ohio River, an
allowance of $5,000 would be made to the contractor
for every such overtopping of the cofferdam, within
certain limitations; and where the contractor of his
own volition and without the request or direction
either orally or in writing, but with the knowledge and
acquiescence of defendant's contracting officer, its
officers and employees in charge, added at contractor's
own expense and with its materials two feet to the
height of the cofferdam, thereby bringing the height
of the cofferdam to elevation 532 feet; and where on
two occasions during the progress of said work the
Ohio River did rise to an elevation in excess of 530
feet at the place where the cofferdam was constructed
and maintained but did not on either occasion reach
or exceed elevation 532, and said cofferdam was not
overtopped or flooded; it is held that the petition of
plaintiff does not state a cause of action under the
proper interpretation of the contract and plaintiff is
not entitled to recover. Dravo Corporation, 270.
XVIII. Where contract with the Government provided that all
disputes concerning questions arising thereunder
should be submitted to and decided by the contracting
officer or his duly authorized representative, subject
to written appeal by the dissatisfied party to the head
of the department, whose decision should be final
and conclusive; and where plaintiff does not allege that
the decision of the contracting officer denying its claim
was arbitrary or so grossly erroneous as to imply
bad faith; and where the facts alleged in the peti-
tion are not sufficient to show that the decisions of
the contracting officer and the department head were
arbitrary or grossly erroneous; it is held that the
plaintiff cannot recover. Id.
XIX. Where plaintiff, under the provisions of a contract with
the Government for the remodeling of a post office
building and the demolition and construction of other
buildings, was obligated to furnish temporary heat to
portions of the existing building occupied during con-
struction; and where permission to begin work on the
heating plant of the old building was withheld by
the defendant during the heating season, and mean-
while heat was furnished by the defendant in the usual
way; and where in final settlement the cost of furnish-
ing such heat during said period was withheld by the
defendant, it is held that the plaintiff is entitled to
recover. Collins, Receiver, 369.
XX. Where, because of unsatisfactory progress, the contrac-
tor's right to proceed under a contract for construction
of Government buildings was terminated by the Gov-
ernment; and where the surety on the defaulting con-
tractor's bond did not elect to complete the work under
the contract, and a contract for completion was awarded
to another contractor; it is held that the evidence does
not establish that such changes as were made in the
completion contract increased the cost of the work or
the time required in any substantial degree, and de-
fendant is accordingly entitled to recover on its
counterclaim for the excess expense caused by the
failure of plaintiff to comply with the terms of the
contract. Id.
XXI. Where subcontractor completed its work in accordance
with its contract with plaintiff and was not responsible
for the failure of plaintiff to comply with plaintiff's
contract with defendant, and where defendant had no
contract with the subcontractor, it is held that the
subcontractor cannot recover from the defendant. Id.
XXII. Where plaintiffs' claim is based entirely upon the allega-
tion that the defendant breached the contract by failing
to furnish structural steel when requested, thereby
causing delay and damages to plaintiffs in completion
of the contract, and that for these reasons no amount
was deductible under the liquidated damage clauses of
the contract and that defendant should compensate
plaintiffs for damages resulting from alleged unneces-
sary expenses; it is held that upon the facts disclosed
by the record and upon a proper interpretation of the
contract the plaintiffs are not entitled to recover.
Greiling Brothers, 396.
XXIII. Where after final completion of the contract the con-
tracting officer and department head granted plaintiffs
a hearing upon their claim for remission of liquidated
damages and reimbursement for alleged unnecessary
expense, and decided that plaintiffs were not entitled
to payment; it is held that such decisions were not arbi-
trary or so erroneous as to imply bad faith but in the
opinion of the court said decisions were correct. Id.
XXIV. Where the record shows that the plaintiff was not delayed
by the defendant nor unreasonably delayed or inter-
fered with in the proper prosecution and performance
of the work called for by its contract with the heating
and plumbing contractor; it is held that plaintiff is not
entitled to recover. Schmoll, Assignee, 572.
XXV. It is held that the decision of the contracting officer and
the head of the department was correct with reference
to plaintiff's claims as to the expense of fastening pipe
sleeves to its concrete forms and plaintiff is not en-
titled to recover, upon the evidence of record and the
provisions of the specifications. Id.
XXVI. Where plaintiff made a written proposal to defendant that
certain painting be omitted and agreed to accept a
reduction on that account in its total contract price,
and where plaintiff's subcontractor refused to accept a
like reduction in his contract with plaintiff; it is held
that the defendant is not liable for the difference. Id.
COUNTERCLAIM.
See Contracts XX.
CURTIS ACT.
See Indian Claims XII, XIII.
DAMAGE BY DELAY.
See Contracts XXII.
DEBTS WORTHLESS.
See Taxes XXV.
See Contracts VI, VII, VIII, XXIV.
DEMOTION.
See Pay And Allowances III.
DEMURRER TO THE EVIDENCE.
See Motion To Dismiss.
DEPARTMENT HEAD.
See Contracts XXIII.
DEPRECIATION.
See Taxes XXI.
DILATORY CONDUCT.
See Taxes XVIII.
DISTILLED SPIRITS.
See Internal Revenue III, IV, V, VI, VII.
DIVIDEND IN LIQUIDATION.
See Taxes VII.
DIVIDENDS.
See Taxes I, XIV.
EFFECTIVE DATE OF TITLE.
See Indian Coal Lands I.
"EMOLUMENTS."
See Pay and Allowances XVI.
ERROR IN SURVEY.
See Indian Claims XX, XXI, XXII.
EXCESS COSTS.
See Contracts XIV, XVI.
EXCESS EXPENSE.
See Contracts XX.
EXCLUSIVE RIGHTS.
See Patents I, II.
EXEMPTION.
See Taxes LXXV, LXXVI, LXXVII, LXXVIII.
EXTRA COSTS.
See Contracts VI, VII, VIII.
EXTRA LABOR COSTS.
See National Industrial Recovery Act I, III.
FLOOD CONTROL.
I. Where in an action for damages to property by reason
of the Flood Control or Jadwin Plan, on the Mississippi
River, there is no allegation in the petition of a past or
consummated inundation or damage, and where the
damage alleged is prospective upon the "abandonment
FLOOD CONTROL-Continued.
or removal of the previous levees around said property,"
which plaintiff charges defendant "purposes to accom-
plish and obtain"; it is held that the plaintiff is not en-
titled to recover. Louisiana Delta Cattle Co., 662.
II. The mere fact that the value of property is injured or
affected by some act which the Government proposed
to do in the future does not establish a "taking" within
the meaning of the Fifth Amendment.
III. Danforth v. United States, 308 U. S. 271; United States v.
Sponenbarger et al., 308 U. S. 256;Bennington County
Savings Bank v. United States, 91 C. Cls. 160; Kirch v.
United States, 91 C. Cls. 196; Matthews, Trustee, v.
United States, 87 C. Cls. 662, cited. Id.
FRATERNAL BENEFICIAL ASSOCIATIONS.
See Taxes LIII, LIV.
GASOLINE.
See Taxes XXXIX, XLII.
GENERAL EXPENSES.
See Taxes III.
HYDROPLANE BOATS.
See Patents I, II, III, IV, VII, VIII, IX, X.
IMMUNITY OF STATE.
See Taxes LXXXII.
INCREASED COSTS.
See National Industrial Recovery Act IV, V, VI, VII, VIII, IX, X.
INDIAN CLAIMS.
I. Where payment was made by the duly authorized dele-
gates of the Creek Nation on a contract for attorney's
fees, which contract was not submitted to nor ap-
proved by the Secretary of the Interior, and where
said payment was made pursuant to an agreement
between the parties, ratified by both the National
Council of the Creek Nation and by the Congress of
the United States, and where said payment was made
in exact accord with the agreement and the said
acts of ratification and in compliance with the re-
quests of the plaintiff made pursuant thereto; it is
held that the defendant is not liable to the plaintiff
for any failure or neglect "to institute suit for the
benefit of said Nation to recover said sum *
in disregard of its duty as trustee." Creek Nation,
(L-206), 1.
|