sioner of Internal Revenue issued to Manufac-
turers a certificate for overassessment for that
year and defendant conceded that it was not en-
titled to recover on its first counterclaim. Id.
United States 130.
XLVIII. The claim set forth in defendant's pleading en-
titled "set-off" is founded upon an alleged over-
payment by defendant to Manufacturers under
a Navy contract assigned to Manufacturers. In
proceedings in the United States District Court
in which Manufacturers was adjudicated a bank-
rupt (192 F.2d 327), the claim herein was dis-
allowed by the referee, whose order was affirmed
by the District Court and by the Court of
Appeals. It is held that under these decisions
the instant claim of defendant is res adjudicata.
Plaintiff's motion for summary judgment on
defendant's set-off is granted. Id.
XLIX. In defendant's second, third, fourth and fifth
counterclaims, defendant sets up the contention
that in the transactions therein involved, Manu-
facturers was the successor in interest to the
contractor rather than the assignee. No such
allegation is contained in the pleading entitled
set-off. Having had the opportunity to establish
the theory of successor in interest and having
failed to do so in the bankruptcy proceeding,
defendant is estopped from asserting such a
claim with respect to the same alleged over-
payments to Manufacturers involved in the
set-off. Id.
L. In the second, third, fourth and fifth counterclaims,
in each of which the defendant alleges that
Manufacturers was not the assignee of the
contractors involved but rather was the suc-
cessor in interest thereto, plaintiff's motions
for summary judgments are denied. The
counterclaims are referred to a commissioner
for such further proceedings as may be appro
priate and consistent with the opinion of the
court. Id.
LI. Plaintiff sues for a real estate commission based on
a sale by the Library of Congress Trust Fund
Board of the premises located at 1600 Eye Street,
N. W., Washington, D. C., which premises had
been donated to the Board. The Government
concedes liability for the payment of a com-
mission and has, in fact, paid a commission to
one of the contending parties, with an indemni-
fying agreement. In accordance with the
Board's resolution of October 10, 1946, and the
Board's action pursuant thereto, in paying a
commission of $19,000 to the Munsey Trust
Company upon condition that the Trust Com-
pany indemnify the Board against any claims
for a commission asserted by others, which
condition was accepted by the Trust Company;
it is held that plaintiff is entitled to recover
from the defendant the sum of $9,500, and the
defendant is entitled to recover from the third
party defendant, the Munsey Trust Company,
the sum of $9,500, in accordance with the indem-
nity agreement. Story, 265.
74, 75.
LII. Under the decisions, an authorized real estate
agent who is the procuring cause of the trans-
action which he was authorized to negotiate is
entitled to his commission irrespective of the
fact that the principal himself, or through
others, may have intervened and actually com-
pleted the final act of the negotiation. Id.
Brokers 55 (1), 56 (1).
LIII. In the instant case, the plaintiff was the first to
be employed as agent in connection with the
prospective sale of the property in question and
was the first to bring the property to the atten-
tion of the ultimate purchaser. The Munsey
Trust was the first to submit to the Library
Board a definite offer from the ultimate pur-
chaser. The sale was finally made by direct
negotiation. Id.
LIV. On all the evidence, the court reaches the con-
clusion that both claimants contributed mate-
rially to the final result and together were the
procuring cause of the sale and each was entitled
to one-half the commission. Id.
LV. In its motion for judgment on the pleadings,
defendant's first contention that plaintiff
failed to make a timely appeal to the Secretary
of the Navy, head of the department, from the
determination of the contracting officer denying
plaintiff's request for an extension of time and
that plaintiff is thereby estopped from bringing
suit in the Court of Claims, is not sustained;
where it is shown that there is a genuine issue
as to the timeliness of plaintiff's appeal to the
Secretary of the Navy. Defendant's motion is
denied so far as it rests upon this contention
but without prejudice to renewal of the conten-
tion if it later appears appropriate and con-
sistent with subsequent development of the
action. Cleveland Wrecking Co., 872.
Federal Civil Procedure 1061.
LVI. In its motion for judgment on the pleadings
defendant's second contention that plaintiff has
failed to allege fraud or conscious wrongdoing
on the part of either the contracting officer or the
Secretary of the Navy and that under the rule
enunciated in United States v. Wunderlich, 342
U. S. 98, the decision of the contracting officer is
final and binding upon the plaintiff in the absence
of such fraud or conscious wrongdoing is not sus-
tained, where it is alleged in the pleadings that
plaintiff's appeal was never passed on by the
Secretary as head of the department. Id.
Federal Civil Procedure 1061.
LVII. In its amended petition plaintiff alleges that
it not only made timely appeal to the head of
the department, but that the Secretary referred
the matter to the Navy Board of Contract Ap-
peals for hearing and while the appeal was pend-
ing, and before decision, the Board granted a
motion to dismiss the appeal on the ground that
the appeal had not been timely filed. Under
plaintiff's allegation, there was no decision of
the department head upon which the fraud
limitation of the Wunderlich decision would
apply. Id.
United States ≈ 73 (15).
LVIII. Defendant's motion for judgment on the plead-
ings having been denied, the case is referred to
a commissioner of the court for such further
proceedings as may be required. Id.
LIX. In the instant case plaintiff's claims arise out of
contracts with the Government for the construc-
tion of ships calling for reimbursement to plain-
tiffs for the cost of construction and for the pay-
ment to plaintiffs of fixed fees. These costs and
these fees have been paid but plaintiffs in their
second cause of action claim that, in addition,
they are entitled to a one percent discount which
they received for paying cash for certain mate-
rial. Defendant's motion to dismiss the second
cause of action is granted. It is held that plain-
tiff is not entitled to recover on the claims set
out in the second cause of action. Puget
Sound, 376.
LX. Under the decision in United States v. Moorman,
338 U. S. 457, the decision of the Chief of the
Bureau of Ships, denying the claims in suit, is
final under the disputes article of the contracts
involved, provided that he had jurisdiction of
the matter, and under the several provisions of
the contracts it is held that the Chief of the Bu-
reau of Ships did have jurisdiction. Id.
LXI. In the organization of the Navy Department the
Bureau of Ships has charge of the construction
of ships and the Bureau of Supplies and Ac-
counts has charge of finances, but the contract-
ing officer on the contracts in suit was the Chief
of the Bureau of Ships, whose decisions on the
claims involved were final under the provisions
of the contract, which does not limit the finality
of the contracting officer's decision to questions
of fact. Id.
LXII. In their third cause of action plaintiffs claim
that they are entitled to an increase in their
fee because of increases in labor and material
costs over the costs expected. In a contract
calling for payment of costs plus a fixed fee,
an increase in fee would be contrary to the pro-
visions of the Act of June 28, 1940, 54 Stat. 676,
677, which prohibits the making of a contract for
cost plus a percentage of the cost. The con-
tracts in suit permit an increase in the fee only
where changes are made in the contract, but no
changes were made in the contracts in suit for
which compensation has not been paid. Defend-
ant's motion to strike plaintiffs' third cause of
action is granted and the cause of action is
dismissed. Id.
LXIII. Where the plaintiff, as the construction contractor
on a Government project, computed its bid for
fine grading a fill to be placed by another con-
tractor on the site of the project in anticipation
that sand would be used as the fill material; and
where the fill that was actually placed consisted
of a high content limestone material which be-
came quite hard when it dried, resulting in costs
to plaintiff in excess of the costs anticipated by
plaintiff for fine grading a sand fill; and where
it is shown by the evidence that the use as a fill
of the limestone material, known as oolite, was
within the specifications of the contract; it is
held that plaintiff is not entitled to recover for
the excess costs thus incurred. Chalker and
Lund, 381.
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LXIV. Where the invitation for bids on a Government con-
struction project notified bidders that they would
be expected to visit the site of the project and
acquaint themselves with all available informa-
tion concerning the nature of materials to be
excavated from structure excavations and with
the local conditions bearing on other phases
of the work; and where plaintiff's superintend-
ent did visit the site and with the assistance of
the defendant's area engineer located the area
where the buildings were to be constructed and
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