COMMUTATION OF QUARTERS, ETC.
I. An officer of the Navy is not on duty in the field
merely because he is stationed in the Philippine Islands, and where he was on shore duty at a permanent station therein he was not entitled to the benefits of the act of April 16, 1918, providing for commutation of quarters, heat, and light in right of wife and dependent child. Harte, 70.
II. The quarters available under section 6 of the act of May 31, 1924, must be such as are adequate for an officer's dependents as well as for himself, and where the quarters furnished him are not only inadequate for that purpose but for administrative reasons his de- pendents would not have been permitted to occupy them, he is entitled to commutation of quarters. Bell, administrator, 182.
I. Where Government contracts involving experimental work in the manufacture of airplane engines provide for deliveries on certain dates, and both parties down to the date of cancellation disregard the dates of deliv- ery and treat the contracts as continuing, the contrac- tor is entitled to the sum expended by it with the con- sent and approval of the Government in the construc- tion and production of the articles named. Kessler Motor Co., 1.
II. In pursuance of a proviso contained in the appropriation act of March 2, 1907, the company of which plaintiff is receiver agreed to perform the dredging work in the construction of a harbor suitable for commerce, of which 400 acres should have a depth of 30 feet. The inlet to the harbor was a Government channel with a permanent depth of 25 feet, which limited the avail- ability of the harbor. The company dredged 250 acres of the harbor and a channel from the harbor proper to the inlet, both to a depth of 30 feet, a large portion of the remainder of the harbor having a depth of from 20 to 30 feet, making the harbor suitable for commerce. Held, that in the absence of actual damage the Govern- ment can not recover on a counterclaim for failure to attain a 30-foot depth over the entire 400 acres. Schroth, receiver, 49.
III. In a contract for sale of milk to the Government, under which certain excess profits were to be refunded, the correct ascertainment of profit was upon the actual cost of filling the particular order, where only one order
was given, and not upon the average cost of that and all other orders given to the contractor in his year's business. Libby, McNeill & Libby, 64.
IV. In seeking recovery against a plaintiff in the Court of Claims by way of counterclaim, the Government must establish its right to recover by proper and sufficient evidence, and where a contract to furnish the Govern- ment coal required the same to be of certain standard, the test to be made from samples, collected and pre- pared, if the contractor so elected, in his presence, and the evidence is that the contractor was given no notice or opportunity to be present when the samples were taken, and was not notified that any samples had been taken until a year after the Government had accepted the coal and paid therefor the price payable for coal up to standard, the Government can not recover the difference in price provided for in the contract for coal below the standard fixed. Heid Bros., 87.
V. Purchase of packing-house products; contract with Quar- termaster Corps, U. S. Army; formality of execution; failure to fix price; allotment by Food Administrator; breach by Government; measure of damages. Libby, McNeill & Libby, 341; Oberndorfer, liquidator, 376. VI. Upon finding that plaintiff's contract was duly canceled and delay in delivery of articles was due to the Govern- ment's delay in delivering materials called for by the contract, liquidated damages for delay were remitted and judgment was entered for plaintiff in accordance with the provisions of the termination clause. Kissel Motor Car Co., 364.
VII. Where the sale of an article is conditioned upon delivery and satisfactory test, the article is delivered in such condition that it can not be tested, instead of being repaired by the contractor is returned at its request and resold, upon such request the Government declares the contract of sale revoked and returns the amount deposited as guaranty of performance, which is ac- cepted, and the contractor at no time makes an offer to replace the article, there is a mutual rescission of the contract, and the contractor can not recover for loss sustained in the transaction. Carroll et al., 400. VIII. Bond for performance; premium part of cost. Mason & Hanger Co., 424.
IX. Due to necessities of the war, work on a fixed-price contract for the construction of the battleship Idaho in excess of eight hours per day, the requirements of the eight-hour law having been suspended by the President, was urged upon the shipbuilder by the
Secretary of the Navy with a statement that the in- crease of cost occasioned thereby would be taken up later. In compliance with the Secretary's request the shipbuilder employed overtime and by agreement the Government was at all times kept informed of the amount thereof. Held, that this, in light of the policy of the Navy Department showing an intention to make reimbursement in such cases, was evidence of an agree- ment to reimburse the contractor the excess cost of such overtime. New York Shipbuilding Co., 457. X. Where a shipbuilder, having under construction in its yards ships for the Emergency Fleet Corporation under cost-plus contracts, on which it was required under an award of the Shipbuilding Labor Adjustment Board to pay increased wages, by reason thereof found it neces- sary to make corresponding increases in work on a fixed-price contract for the construction of a battleship, and was informed by the Secretary of the Navy that his department expected to pay unavoidable increases in cost due to adoption of the new wage scale, there was an agreement to reimburse the contractor such increases on the fixed-price contract. Id.
XI. (1) An advertisement for bids, made part of a contract for dredging, provided that "the material to be removed is believed to be sand, clay, gravel, and boulders, but bidders are expected to examine the work and decide for themselves as to its character and to make their bids accordingly, as the United States does not guar- antee the accuracy of this description." The cost of a complete and thorough examination of the work be- tween advertisement and bidding was prohibitive and the successful bidder, believing the description given in the advertisement to be accurate, relied upon it and bid accordingly, but before entering into the contract in- quired of the Government's representative as to the nature of the material to be dredged and was given no information beyond that contained in the advertise- ment, although the said representative knew that hard- pan would be encountered, necessitating difficult and costly excavation. Held, that the contractor was en- titled to recover the additional cost of excavating the hardpan.
(2) During the course of the work above described the contractor requested additional compensation or relief from the contract, which requests were refused, and was also refused payment of the stipulated price unless certificates were furnished from time to time, limiting the description of the material dredged to "stiff clay"
and "hard clay." The contractor signed the required certificates and received the bid price. Held, that the Government could not benefit by reason of such coercion.
(3) In the above circumstances the contractor held not liable for the additional cost of delay in completing the work due to the difference in material as repre- sented and as actually excavated. Dunbar & Sullivan Dredging Co., 567.
XII. A contract with the Government for reconstruction of a ship provided for deduction of liquidated damages for delay only where the delay was not for the convenience of the Government or not due to acts of God. But for the failure of the Government to furnish materials and supplies when required and promptly approve the plans, and for its removal of the vessel to another pier, which was unnecessary, the contractor could have completed the work on contract time. Held, that deduction of liquidated damages was improper and the contractor could also recover the additional expense due to the Government's delay and interference with the work. Weehawken Dry Dock Co., 662, 672, 686.
XIII. Where a Government contract for coal provides for de- livery "as called for," and the entire tonnage specified in the contract is duly covered by calls, an order by the Government to cease deliveries and a refusal by it to accept the balance constitute a breach for which the contractor can recover damages. Sinclair Coal Co., 704; Kellogg et al., 717.
XIV. Where a contract for coal to be furnished the Govern- ment is with a sales agent, and it is agreed that the contract price is to be increased or decreased according to increase or decrease in wages, the contractor, in the ascertainment of damages for refusal to take the entire quantity contracted for, is entitled to the benefit of a wage increase in effect at time of breach. Id. XV. A contract whereby the Government was to furnish the materials therefor and the contractor was to manu- facture tents included the following provision: "Note: The contractor will be held liable for any loss of, or damage to, any of the materials furnished by the Quartermaster Corps, from any cause whatsoever, while in his possession." A number of the tents when com- pleted and ready for delivery were retained by the contractor at the Government's request and for its convenience, and after such request were, together with the materials not worked up, destroyed by fire through no fault of the contractor. Held, that the provision for liability was a valid contractual stipulation, not
a mere legal conclusion; but that the contractor was liable only for the value of the unworked material fur- nished by the Government and entitled to the contract price of the manufactured articles retained at the Government's request. Burkhart, receiver, 738. See also Dent Act; Eminent Domain, V, X, XI; Jurisdiction; Practice and Procedure; Sale of Supplies; Settlement Con- tracts; Taxes, IV, IX, XXVII.
COUNTERCLAIMS.
See Contracts, II, IV.
See Contracts, VI, XI (3), XII.
I. Jurisdiction; decision by Secretary of War prerequisite to suit under Dent Act. Everlastik, 171.
II. In order to keep the price of hay and forage during the war from rising beyond a reasonable figure, and at the same time secure prompt deliveries at training camps, the Government, at conferences between its representa- tives and representatives of hay and forage dealers gener- ally, including plaintiffs, agreed to discontinue advertise- ment and proposal, in lieu thereof follow commercial prac- tices, and to confirm all verbal purchases by formal orders. Circulars covering the various features of the agreement were mailed to plaintiffs and other dealers, and the plan was put into practice. Held, that the general agreement so entered into was an essential part of every order placed thereunder, and constituted a valid contract the breach of which was ground for recovery. Miller et al., 506; Dyer & Co., 612; Shofstall Hay & Grain Co., 653.
See also Contracts, V; Jurisdiction, II.
See Commutation of Quarters, etc.
DISCOVERY.
See Jurisdiction, I.
DIVIDENDS.
See Taxes, XI.
EMINENT DOMAIN.
I. Just compensation allowed for the taking of certain lands by the President's proclamation of December 2, 1918, issued under authority of the act of October 6, 1917, as amended by the act of July 1, 1918. Schroth, receiver, 49.
II. Federal control act; absence of actual taking. Nevada California-Oregon Ry., 75.
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