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123 C. Cls. Opinion of the Court relief from losses and the record before us contains no indication that either party considered such a request to have been made. On December 4, 1945, defendant issued Change Order No. G-29 extending the contract performance time 42 days specifically because of the delay caused by plaintiff's inability to secure the wallboard material. The order states that it is in response to plaintiff's letters of July 4, July 19, and July 21, 1945, all relied on by plaintiff herein, as well as four other letters bearing various dates beginning August 18, up to November 26, 1945, not submitted to the court by plaintiff and apparently not relied upon. The change order was accepted on December 17, 1945, by plaintiff with no change in contract price.
Another group of letters relied on by plaintiff refers to delays caused by a shortage of common labor. These letters are dated May 24, June 4, and June 15, 1945. The letter of May 24 is a summary of the general situation on the job at that time and mentions, among other things, delays due to a shortage of common labor. At the close of the letter plaintiff states that it is writing to acquaint the Government with the delays encountered and “to see whether or not you could give us any assistance in these matters." The letter of June 4 makes reference to the prior letter of May 24 and states that the labor situation has not improved and that to date there have been about 30 days' delay due to labor difficulties. The last sentence of the letter states :
Please give this matter your consideration and anything you can do to help us to obtain labor will certainly
be appreciated. The letter of June 15, 1945, reviews the labor situation again and states that the delays occasioned thereby are not the fault of the contractor; that the contractor has done everything in its power to bring the job up to schedule and “have spent money that we did not contemplate spending to do so." The letter closes as follows:
We are therefore asking an extension of time in the amount of 45 days due to lack of labor alone, and ask that you give this your serious consideration as we feel that you know the statements made in this letter are facts.
Opinion of the Court Although the last letter mentioned above does inform defendant that plaintiff's costs are exceeding the amount anticipated, the letters on the whole appear to do no more than to ask for an extension of the contract time and an extension was in fact granted by Change Order No. G-10, issued July 9, 1945. This change order gave a 17-day extension of time for such delays and states that it is in response to plaintiff's letters of June 15, June 26 and July 4. This change order was accepted by plaintiff on July 31, 1945, with no change in the contract price. It thus appears that both parties considered the letters now relied on as no more than requests for an extension of time.
Plaintiff also relies on two letters, dated July 10, 1945 and July 11, 1945, relative to a strike of engineers. The letter of July 10, 1945, merely reports to the contracting agency the fact of the strike and that the other building trades would not cross the picket line. The letter of July 11 advises the agency that on that day none of the trades were working because of the strike. Neither letter contained any sort of request for anything. On July 26, 1945, defendant issued Change Order No. G-11 granting plaintiff a four-day extension of time because of delay caused by the strike. The order states that it is issued in response to plaintiff's letter of July 16, which letter has not been submitted to the court. We are unable to see how this group of documents placed defendant on notice that it was being asked to grant extra-legal relief.
Plaintiff further relies on a group of letters dated April 12, April 28, May 9 and June 6, 1945, relative to steel sashes and frames for windows. The letter of April 12 merely advises defendant that certain suppliers do not carry in stock the steel sash and frames called for by the specifications, and plaintiff asks what alternate design or substitute materials can be used. The letter of April 28 refers to the prior letter of April 12 and defendant's reply of April 19 in which defendant requested certain information. Plaintiff enclosed the information requested by defendant and stated that since it was unable to obtain the specified materials and delay might ensue, “we would appreciate an early recommendation in this matter." The letter of May 9 referred to the two prior letters and stated that the sash and frames or some 123 C. Cls. Opinion of the Court substitute materials would soon be required and that in order to avoid delay “we again request your early decision in this matter." The letter of June 6 transmitted to defendant for its approval eight copies of shop drawings showing precast lintels, and asked for defendant's early approval.
These letters do no more than ask defendant to redesign the windows because of difficulty in securing the type of frames specified, and warn defendant that unless this is done, delays may result. On December 18, 1945, Change Order G-5 was issued authorizing a change in the design of the steel windows and granting a 14-day extension of time "in accordance with your revised proposal dated October 9, 1945.” The change order quotes a portion of plaintiff's letter of that date (which letter has not been relied on by plaintiff in this proceeding) in which plaintiff states that the delay will cost plaintiff considerable money but that plaintiff is not requesting additional payment but only a 14-day extension of time. Plaintiff accepted this change order on December 26, 1945, without change in the contract price. We do not think the documents relied on constitute a request for extra-legal relief.
Plaintiff also relies on two letters dated July 9 and July 25, 1945, relative to a shortage of bricklayers. The letter of July 9 merely calls defendant's attention to the shortage of bricklayers and asks defendant to give any help it can as plaintiff is badly in need of more bricklayers. The letter of July 25 reviews in greater detail the bricklayer shortage situation and closes with the following comment:
We will appreciate anything you can do to help this situation, and it is causing every bid delay on this job. This delay will add to our cost as well as that of our
subcontractors on the job, in the future. On September 10, 1945, Change Order No. G-17 was issued granting plaintiff an 11-day extension of time of which nine days were given in response to plaintiff's requests of July 9, July 25, and August 20, 1945. Plaintiff does not rely on the last letter and has not produced it. The additional 2-day extension was granted because of the legal holiday declared by the President of the United States marking the end of the war with Japan. This change was accepted by plaintiff on
Opinion of tho Court September 17, 1945, without change in the contract price. Apparently the summary letter of August 20, 1945, made the request for the extension of time which was granted.
We cannot see how these letters put the defendant on notice that plaintiff was seeking extra-legal relief from losses. Plaintiff's only mention of possible loss is in the letter of July 25 in which it refers to the possibility of additional costs in the future.
Plaintiff also relies on a letter of June 16, 1945. This letter was in response to defendant's prior letter of June 9, which in turn was in response to plaintiff's letter of May 24 referred to hereinbefore. The letter merely reviews the various causes of delay up to that time and suggests that defendant does not appreciate plaintiff's difficulties, particularly those arising by virtue of the low priority rating assigned. The letter closes with thanks for any assistance already rendered or to be rendered. The specific matters referred to were mentioned in other letters already discussed and ultimately were the subject of change orders.
The bulk of the work on this project was performed after August 14, 1945, and while it is possible that the substantial losses suffered by plaintiff in the performance of this contract may have had their genesis in the delays and shortages about which plaintiff complained prior to August 14, 1945, we cannot find in this record a single request on file with the agency which was sufficient to put that agency on notice that it was being asked to grant extra-legal relief. We are unable, by the terms of the Lucas Act, to consider letters written after August 14, 1945, and the only losses which are pertinent are those suffered in the performance of work prior to that date.
On the basis of plaintiff's petition and the documents produced by the parties, we conclude that plaintiff did not file with the agency concerned prior to August 14, 1945, a written request for the type of relief contemplated by the Lucas Act and that there is therefore no genuine issue as to that material fact. Since the letters relied upon have been found to be inadequate, it becomes unnecessary to consider the other legal issues raised by the parties in their briefs. Plaintiff's motion for summary judgment is denied; defendant's motion for 123 C. Cls. Syllabus summary judgment is granted, and plaintiff's petition dismissed.
It is so ordered.
MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur.
JOHN C. DAY v. THE UNITED STATES
(No. 49939. Decided June 3, 1952. Defendant's motion for new trial
overruled October 7, 1952.)
On the Proofs
Pay and allowances; travel pay of Navy officer, temporary appoint
ment, on terminal leave.-Where plaintiff, an enlisted man in the Navy, with the permanent rating of Chief Electrician Mate, received a temporary appointment as an officer during World War II, and while serving as such officer was given terminal leave, and upon the expiration of this leave on August 3, 1947, plaintiff reverted to his permanent enlisted rating, was relieved from active duty and placed in the Fleet Reserve; it is held that plaintiff is entitled to recover the difference between the mileage at 8 cents per mile payable to officers upon relief from active duty and the travel allowance of 5 cents per mile paid to him as an enlisted man from his last duty station, San Francisco, California, to his home in Norfolk, Virginia. Judgment for
plaintiff for $96.51. Army and Navy On 13 (9) Same; travel pay under applicable statutes.—The court sustains
plaintiff's contention that, under the provisions of 37 U. S. C. 112, as well as 34 U. S. C. 350 (f) (1946 Ed.), a member of the military forces whose temporary appointment as an officer is terminated and who is transferred to the enlisted Fleet Reserve and placed on inactive duty, all in the same orders, is entitled to be paid for travel to his home at the rate of 8 cents per mile authorized for officers released from active duty, rather than
at the rate of 5 cents authorized for enlisted personnel. Army and Navy Om 13 (9) Same; plaintiff's travel was in connection with his release from active
duty as an officer.—Plaintiff was still serving as an officer under his temporary appointment on his last day of active duty, August 3, 1947. He did not revert to his permanent enlisted rating while on active duty. It was in connection with his release from active duty in the status of an officer, rather