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Opinion of the Court

145 C. Cls.

shown, the sod was to be placed both on the sides of the ditch and on the bottom. See paragraph 4–10 (c) (5).

Section 9-05, under the heading of "Seeding", provides: (a) Seed.

(1) Variety. K. R. Bluestem known as strain T-3487 will be seeded on all areas except the floor of drainageways exceeding .3 foot per 100 feet gradient, which will be broadcast sodded with Bermuda grass.

(c) Method of Seeding and Sodding.

(3) Broadcast Bermuda grass sod, including soil, to the depth of 4 inches on all drainageway floors exceeding .3 foot per 100 feet gradient.

It appears from the foregoing that broadcast Bermuda grass sod was to be used on some drainageway floors, but this paragraph of the specifications does not say where it was to be used.

Plaintiff says paragraph 9-05 (c) (3) says that broadcast Bermuda grass sod shall be used "on all drainageway floors exceeding .3 foot per 100 feet gradient," and that this means every drainageway floor throughout the project. But the quotation is from a section of the specifications that describes the "method" of seeding and sodding. It does not designate the places where it is to be done. What it means is, where there is to be "broadcast Bermuda grass sod", it must be put down according to the method specified. If it were to be construed as plaintiff contends, it would conflict with section 4-10, supra, which calls for Bermuda strip sodding "at locations shown on the plans."

Section 4-08 provides:

Where necessary, slopes shall be protected from washing or slipping by hand laid riprap consisting of stone or precast concrete blocks. These walls shall be constructed at places indicated,

*

Plaintiff admits that this requires the placing of riprap on the slopes of the drainage ditches, but it insists that it does not require the use of riprap in the bottom of the ditches. But, section 1-08 of the specifications, headed "Drawings, Accompanying Specifications," provides:

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The following changes shall be made on the drawings:

[blocks in formation]

On Plan and Profile Sheets the "W" dimension with Rip Rap Ditch Checks is the width of the ditch bottom. The specifications, therefore, recognize that riprap ditch checks are to be used in the bottom of some of the ditches.

We must conclude from the foregoing that the specifications do not show where Bermuda sod or grass is to be used, and where riprap is to be used. Resort must be had to the drawings to show where the one or the other is to be used. Reading the plans and specifications together, there is no doubt in our mind that riprap ditch checks were required in the places shown on the plans.

The contract, of which the drawings are a part, should be read as a harmonious whole, if it is reasonably possible to do so. It is not to be supposed that he who drew the specifications intended one thing at one time, and a contradictory thing at another.

If there was any doubt in the contractor's mind about this, it was his obligation to request the contracting officer's interpretation of the plans and specifications, because article 5(e) of the contract provides:

All questions regarding the figures, drawings, plans and specifications and the interpretation thereof and the resolving of conflicts and inconsistencies therein shall be determined by the Contracting Officer, and such determination shall be final, subject only to appeal under the provisions of Article 16.

Plaintiff did not request the contracting officer's interpretation; but, rock having been encountered in some areas where drainage ditches were to be constructed, the defendant's representative thought that certain changes in the plans and specifications should be made, which would eliminate some of the riprap ditch checks. Plaintiff was requested to attend a meeting to agree upon an amendment in the amount due under the contract incident to such changes, but he declined to do so on the ground that no riprap ditch checks were called for, and that, if any were required to be constructed, he would be entitled to extra compensation therefor. Whereupon, the officer in charge notified plaintiff that

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145 C. Cls.

riprap ditch checks were required at the places shown on the drawings.

Plaintiff filed a protest against this ruling with the Chief, Bureau of Yards and Docks; whereupon, the contracting officer ruled:

After a careful review, the Bureau finds that the riprap ditch checks as shown on the drawings are clearly a contract requirement, payment for which has been included in the lump sum contract price. ***

Accordingly, your claim for additional compensation is hereby denied. This is a final decision of the Contracting Officer.

An appeal was taken to the head of the department. It was heard before the Navy Contract Appeals Panel of the Armed Services Board of Contract Appeals, which sustained the decision of the contracting officer.

We think the decision of the contracting officer and the Board of Contract Appeals is clearly right. We see no conflict between the drawings and specifications, and the drawings very clearly call for the use of riprap at certain designated places.

It results that plaintiff's motion must be denied, and defendant's motion must be granted.

Plaintiff's petition will be dismissed.

It is so ordered.

BRYAN, District Judge, sitting by designation; LARAMORE, Judge; MADDEN, Judge, and JONES, Chief Judge, concur.

SPRAGUE STEAMSHIP COMPANY v. THE UNITED STATES

[No. 401-57. Decided May 6, 1959. Defendant's motion for reconsideration overruled July 13, 1959]

ON PLAINTIFF'S MOTION TO STRIKE DEFENSES AND FOR SUMMARY JUDGMENT, AND DEFENDANT'S CROSS-MOTION FOR SUMMARY

JUDGMENT

Contract; Merchant Ship Sales Act of 1946; estoppel.-In an action to recover an amount paid to the United States Maritime Commission for so-called "desirable features" on two ships pur

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chased under the Merchant Ship Sales Act of 1946, 60 Stat. 41, 50 U.S.C. App. §§ 1735-1746, where the first protest as to the legality of such payment was made several months after the payment and suit was not filed for five years thereafter, it is held (1) that the Government has not established an acquiescence in the overcharges on the part of the plaintiff which misled the Government since it did not show that it was prejudiced by the plaintiff's payment of the illegal charge for desirable features or by the plaintiff's five-year delay in filing suit, and (2) although payments made voluntarily under a mistake of law are usually not recoverable, this rule must give way where, as here, the court finds a strong congressional purpose in a statute which would be frustrated by the application of such general rule. Cf. United States v. Edmonston, 181 U.S. 500. Defendant's motion for summary judgment denied, plaintiff's motions to strike defenses and for summary judgment granted.

United States 74 (4, 8)

Estoppel; acquiescence; no prejudice shown.-Although the purchaser of a vessel from the United States Maritime Commission agreed to and did pay for certain "desirable features," which payment was not required of it and was illegal under the provisions of the Merchant Ship Sales Act of 1946, 60 Stat. 41, 50 U.S.C. App. §§ 1735-1746, the purchaser was not barred by acquiescence and estopped from recovering the amount of the overpayment where the defendant cannot show that it was prejudiced by the purchaser's payment of the illegal charge or by the purchaser's delay of five years in filing suit to recover such payment. United States 74 (6)

Payments; mistake of law; exception to general rule; congressional policy. While payments voluntarily made or received under a mistake of law are generally final, United States v. Edmonston, 181 U.S. 500, where the court finds a strong congressional purpose which would be frustrated by the application of such general rule, the rule will not be applied. The strong congressional policy involved herein is that the formula established by the Merchant Ship Sales Act of 1946, 60 Stat. 41, 50 U.S.C. App. §§ 1735-1746, shall be strictly adhered to.

United States 74(4)

Mr. J. Franklin Fort for the plaintiff. Messrs. Kominers & Fort and Mr. Robert S. Tancer were on the briefs.

Mr. Clare E. Walker, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.

Opinion of the Court

145 C. Cls.

MADDEN, Judge, delivered the opinion of the court: The plaintiff in November, 1946 purchased from the United States Maritime Commission two dry cargo ships of the C2S-B1 type, pursuant to the Merchant Ship Sales Act of 1946, 60 Stat. 41, 50 U.S.C. App. §§ 1735-1746. A considerable discussion of that statute may be found in this court's opinion in A. H. Bull Steamship Co. v. United States, 123 C. Cls. 520.

In the instant case, as in the Bull case, the Maritime Commission, in computing the price which the plaintiff should pay for the ships, computed depreciation on the ships down to the "floor price" and then added to the floor price the cost of "desirable features". We held in the Bull case that this order of computation violated the statute; that the value of the desirable features should have been included in the value of the ship before the depreciation computation began. The effect of our decision was that if there was sufficient depreciation to carry the price, including the value of the desirable features, down to the floor price, that would be the lawful sale price of the ship, and the presence of the desirable features would not add anything to the sale price.

When the plaintiff bought the ships in 1946, its contract of purchase provided that if the Commission should determine, upon an examination of the ships, that they contained desirable features, the plaintiff would pay extra for those features. In 1948 the Commission sent a bill to the plaintiff for $2,189.68, the value of certain described desirable features. The plaintiff returned the bill without payment, saying that the items described in it were standard features of such ships, and not desirable features for which an extra charge could be made. In 1949 the Commission wrote a letter persisting in its position that the items were desirable features and the plaintiff replied, repeating its contention that they were not. From August 25, 1949, the date of the plaintiff's letter, to October 12, 1951, the Commission made no effort to collect its desirable features charges from the plaintiff nor, apparently, from any purchasers of ships.

On October 12, 1951, the Maritime Administration as successor to the Commission reminded the plaintiff of the 1948 bill, and on November 1, 1951, wrote a letter insisting on its

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