owners thereof, and by them removed, it is held that the failure of the Government to deliver the buildings for demolition and removal was a breach of the contract and the contractor is entitled to recover for the fair salvage value of the structures. G. Schwartz & Co. v. U. S. (1939), 89 Ct. Cls.

82.

Where contractor, having complied with the terms of the contract and having carried the work to a point where it would have been possible to complete it within the time limit, was notified that the funds appropriated for the purpose were exhausted and work would have to be suspended, and work was accordingly suspended, it is held that this constituted a breach of the contract on the part of the Government. Where the Government fails to carry out its part of the contract, the contractor, having suffered damage as a result thereof, is entitled to recover the amount of damages proved. William T. Joplin et al. บ. U. S. (1939), 89 Ct. Cl. 345.

Where representative of the Government negotiated with the plaintiff for rental of space for a certain governmental agency and in pursuance of such negotiations plaintiff made extensive alterations to suit the needs of the agency, and where the agency before the time for acceptance of the space reserved for it in plaintiff's building refused to execute the proposed lease, to move into the building, or to use the space reserved by it, and has never occupied said space, it is held that a breach of contract occurred and plaintiff then had cause of action for the rent as it accrued. Brownstein-Louis Co., a corp., U. S. (1939), 90 Ct. Cl. 1; denied (1939). 310 U. S. 632.

v.

contract a

certiorari

denied. Held: There was no implied promise by the Government to use the equipment, and there was no breach by the Government in failing to use it. G. T. Fogle & Co. v. U. S. (C. C. A. 4, 1943), 135 F. (2d) 117.

con

Claim for damages by construction tractor. As a result of the failure of the Government promptly to terminate a related contract for the plumbing, claimant was delayed three and one half months. Although he was unable therefor to furnish his performance within the time he had planned, he was able to meet the completion date fixed in his contract. The Court of Claims found that reasonable inquiry by the Government would have disclosed the inability of the plumbing contractor to perform. The second part of the claim was based on extra labor and materials required by acts of agents of the Government. The Court of Claims found that their acts were unreasonable, arbitrary and capricious, and that the Government superintendent acted so unreasonably as to make it impossible for claimant to invoke the appeal procedure of the contract, covering all disputes "concerning question arising under the contract," without subjecting himself to punishment and reprisals. One item in the second part of the claim was on behalf of a subcontractor. This claim had been approved by the contracting officer, but claimnot reimbursed. Judgment of the

ant was

Court of Claims for all of above items.
Judgment
was reversed except as to the
last item. Held: The Government was not
obliged to aid respondent in completing his
contract prior to the stipulated completion date
and it was error for the Court of Claims to
award damages to claimant based upon
breach of this non-existent obligation. Assum-
ing without deciding that the acts complained
of in the second part of the claim were

a

Court cannot conclude that recovery of the resulting damages was proper in this case. The appellate provisions of the contract constituted a complete and reasonable means of correcting the abuses alleged to exist in this case, and must be exhausted before court relief is sought. Claimant is entitled to recover for the subcontractor's claim even though there was no finding that claimant was liable to the subcontractor for the acts of the Government upon which the claim was based. U. S. บ. Blair et al. (1944), 321 U. S. 730.

Where under between the plaintiff and the Government whereby plaintiff agreed to manufacture for the Govern-unauthorized, unreasonable and arbitrary, the ment a stated quantity of cartridge clips; and where the Government agreed to furnish to plaintiff certain material at a stated price; and where the material furnished by the Government was insufficient for the manufacture of said quantity of clips and plaintiff was accordingly obliged to buy additional material in the market at a price greater than the price at which such material was to be furnished by the Government; it is held that the plaintiff is entitled to recover the amount by which the cost of said material exceeded what would have been its cost if plaintiff had obtained it at the price which plaintiff was obligated to pay for the said material furnished by the Government. A. C. Messler Co., Arnold C. Messler v. U. S. (1941), 94 Ct. Cl. 649.

Action by Government contractor to recover additional costs allegedly resulting from the issuance of a stop order by the Government. It was conceded by the Government that the stop order was unjustified. The items of damage included a portion of the expense of maintaining plaintiff's main office and the rental value of equipment kept idle on the job by the order. Judgment for plaintiff. Held: The proportionate part of office overhead

Claim by lessor for rental of construction equipment and for damages incidental thereto. The rental agreement covered a stated period and provided that the Government should pay rent only for the time of actual use. The equipment was properly delivered but should be allowed. While such an element the Government did not use it. Recovery

of damage can never be proved with mathe

matical precision, the court will follow ac- signment of such claims is forbidden by R. S. counting practice and allow such item. The 3477. Severin v. U. S. (1943), 99 Ct. Cl. rental value of the equipment is allowed even 435. though plaintiff owned the equipment, was not in the business of renting machines, and apparently had no other job on which it could have used the equipment. The contrary view expressed in Phoenix Bridge Co., 85 Ct. Cl. 603, should not be followed. However, the rental value is discounted by one-half because the equipment did not suffer the wear and tear which it would have suffered if rented. Brand Investment Company v. U. S. (1944), 101 Ct. Cl. 665.

and 3rd paragraphs.)—Change citation to read: Whitbeck, Receiver v. U. S. (1933), April 4, and such action by the contracting officer operated to breach the contract. 77 Ct. CI. 309; certiorari denied (1933), 290 U. S. 671.

ment was arbitrary and capricious, and the delay of 82 days after the performance bond

ward E. Gillen Co., a Wisconsin Corp. v. U. S. (1939), 88 Ct. Cl. 347.

Failure on the part of the Government to make available to a contractor the site upon which the work is to be performed, if it occasions delay in performance and causes damages to the contractor, entitles him to recover his loss. Id.

or before January 5, 1934, and its comple- not under obligation to incur, it is held that tion on or before July 5, 1934; and where the contractor is entitled to recover. Edsaid contract was not approved by the Quartermaster General until February 8, 1934; it is held that the requirement that the work be completed by a certain time was not nullified by the unreasonable delay in approval since no more than was done by the contractor during said delay would have been done if such approval had been given within a reasonable time, and plaintiff was granted an extension of time because inclement weather during said period of delay. Jacob Schlesinger, Inc. v. U. S. (1941), 94 Ct. Cl. 289.

of

XI-13. Delays due to Government withholding facilities.-Where plaintiff under a contract to move certain office furniture, safes, records, and supplies from one building to another claims loss of time of its employees on account of inadequate elevator service furnished by defendant, it is held that plaintiff has failed to prove by the greater weight of the evidence that the elevator service was curtailed during the hours when the plaintiff was ready and willing to work. Fenton Storage Co. v. U. S. (1941), 92 Ct. Cl. 465.

was

Where completion of work on remodeling Veterans' Hospital was delayed due to the failure of Government to vacate building and make it available, and where the delay resulted in extra costs due to the weather, it is held that contractor not liable for liquidated damages and is entitled to recover for such extra costs. MacDonald Engineering Co. v. U. S. (1939), 88 Ct. Cl. 473. Failure on the part of the defendant to make available to the contractor the site on which work is to be performed is a breach of the contract. McCloskey v. United States, 66 C. Cls. 105, cited. Dewey Schmoll, Successor Assignee etc. V. U. S. (1940), 91 Ct. Cl. 1.

In statutory action by contractor's receiver to recover from the United States damages allegedly caused by the Government's failure to supply on time preliminary information called for under construction contract, the Government did not "waive" defense of contractor's failure to give written notice of delay in supplying information as required by contract by failure to plead that failure, where entire correspondence between the parties was without objection received in evidence, counsel for receiver admitted that no written notice had been given, counsel for the Government then moved for a directed finding with respect to issue of damages for delay, and the question was fully argued. Jud. Code sec. 24 (20), 28 U. S. C. 41 (20), Federal Rules of Civil Procedure, rule 15 (b), 28 U. S. C. following section 723c. U. S. v. Cunningham (App. D. C., 1941), 125 F. (2d) 28.

the
not

XI-14. Delays due to sovereign acts.-Suit by contractor for damages alleged to have been caused by delays in the performance of XI-18. Extra work outside contract.-Where a construction contract due to operation of priorities regulations of the War Production contract for repairing and resurfacing the of Board. Petition dismissed. Navy and Munitions BuildHeld: The Gov. roofs ings did provide specifically for the ernment is not liable for delays in the performance of contracts caused by its sovereign resoldering of all broken joints of the old acts (Horowitz v. U. S., 58 Ct. Cl. 189). The gutters on the building, and contractor was War Production Board is an agency created required by contracting officer to resolder all such broken joints, it is held that this was by the President and engaged in carrying out work and contractor is entitled to the sovereign powers conferred upon him by extra William F. Overly and Lyle L. Congress. Gothwaite v. U. S. (Ct. Cl. No. recover, 46080, 2 Oct. 1944),-Ct. Cl-. Jones, Receivers of W. F. Overly & Sons a Corp. v. U. S. (1938), 87 Ct. Cl. 231.

XI-15. Delays due to preparatory work or Where the Government's representative furnishing data.-Where contractor could not was well aware of the grounds of protest. meet the requirements of the specifications which had previously been made orally, it within the time limit fixed for performance is held that advantage cannot be taken of because the Government did not possess title ambiguous language of the written protest to sufficient lands to enable it to be done, to frustrate the intent and purpose of the causing the contractor to incur a loss it was letter of protest. Id.

Where there existed an admitted differ- "overtop" the cofferdam where built and ence between the specifications and the work maintained to the specified elevation of called for under the plans, involving the 530.0, which is 18 feet above the normal character of backfill over drains and the pool above Dam 27, Ohio River, an allowcontracting officer reached a conclusion by ance of $5,000 would be made to the conconstruing the specifications and drawing to tractor for every such overtopping of the exact a backfill of gravel by implication, and cofferdam, within certain limitations; and the contractor performed this extra work un- where the contractor of his own volition der protest, it is held that the contractor and without the request or direction either is entitled to recover for the added cost. orally or in writing, but with the knowledge John McShain, Inc. v. U. S. (1939), 88 Ct. and acquiescence of defendant's contracting Cl. 284; certiorari granted (1939), 307 U. S. officer, its officers and employees in charge, 619: reversed with instructions to enter added at contractor's own expense and with judgment in favor of the United States with its materials two feet to the height of the regard to this item (1939), 308 U. S. 512, cofferdam, thereby bringing the height of the 520. 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 Corp. v. U. S. (1941), 93 Ct. Cl. 270.

Where contractor was delayed in the completion of the work by the defendant, and put to extra expense, the rule is well settled that the Government is liable. G. Schwartz & Co. v. U. S. (1939), 89 Ct. Cls. 82.

Where an independent subcontractor threw out rock and soil, which defendant required the prime contractor to remove and do the necessary regrading in accordance with the specifications, it is held that the plaintiff is entitled to recover for extra work. Dewey · Schmoll, Successor Assignee etc. บ. U. S. (1940), 91 Ct. Cl. 1.

XI-21. Extra

work within contract.-(2d Change citation to read: Bausch & Lomb Optical Co. v. U. S. (1934), 78 Ct. Cl. 584; certiorari denied (1934), 292 U. S. 645.

Where contract provided that contractor should without additional charge furnish all paragraph.) — facilities, labor and material for tests required by the inspectors and that special full-size, and performance tests should be as described in the specifications, it is held that contractor is entitled to recover for a special and performance test not described in the specifications. Id.

Where the contract provided that any change in the work or in the time for performance which resulted in any increase of cost estimated to exceed $500 should be submitted to a board provided for in such contract, it is held that the change order issued to plaintiff, not exceeding $500, was not within the jurisdiction of said board, and plaintiff is not entitled to recover. Continental Contracting Co. Inc. v. U. S. (1941), 94 Ct. Cl. 244.

XI-19. Extra work outside contract not authorized. (7th paragraph.)-Change citation to read: Bausch & Lomb Optical Co. v. U. S. (1934), 78 Ct. Cl. 584; certiorari denied (1934); 292 U. S. 645.

The United States is not liable on either quantum meruit or building contract for extra work done and materials furnished by contractors, unless changes or extras were authorized by proper Government officials and approved as provided by contract. Yuhasz et al. น. U. S. (C. C. A. 7, 1940), 109 F. (2d) 467.

Where it was provided in a contract with the Government 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

Where plaintiff claims that increased costs incurred in construction of cofferdam resulted from refusal of the Government to open certain bear traps and drop wickets to lower the water level, it is held that nothing in the contract or specifications justified plaintiff's presumption that such action would be taken by the Government, and that defendant did not violate the contract when it declined plaintiff's request that the dam be opened and the upper pool lowered until construction of the cofferdam was completed. General Contracting Corp v. U. S. (1940), 92 Ct. Cl. 5.

Where plaintiff claims that in the construction and maintenance of a cofferdam interference with the work was caused, first, by the fact that a "Chanoine weir" was not in operating condition and, second, that the defendant operated bear traps and wickets of the dam in such a way as to cause plaintiff largely increased and unnecessary expenses; and where the invitation for bids required plaintiff to visit the site and acquaint itself with all available information concerning material to be removed and local conditions as to transportation, handling, and storing of material, and where representatives of plaintiff did visit the site and had the opportunity to observe said conditions, it is held that the defendant is not liable for such increased expenses resulting from said interference. Id.