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Reporter's Statement of the Case deliver the caskets under the first contract on barges rather than on Government trucks at the factory door was made voluntarily by the plaintiff and for its own convenience without any promise on the part of any duly authorized Government officer to be compensated therefor.
III. On November 22, 1919, the plaintiff submitted to the United States its proposal upon which the contract No. 1343-N of December 10, 1919, was awarded. The proposal was on Q. M. C. Form Nos. 119 and 119-B, captioned Circular-Proposal. The first part contained the advertisement of the United States for sealed proposals and included the following provision: “ Bidders for supplies must state the time when and the place where they propose to make deliveries. Bids are invited for delivery as indicated below, but proposals for delivery at other points will be entertained.” The bidder was required to state in Q. M. C. Form No. 119-B, which was a part of the proposal, the name and the location of mills from which the goods would be shipped, the terms upon which the goods would be sold, the manner of shipment, etc. The printed wording of the line upon which the manner of shipment was to be designated was as follows: “ f. o. b. cars In making its proposal the plaintiff drew a line through the word “cars" and wrote above the stricken word, the word “factory” and followed the word “ factory” by the words “New York, N. Y.” At the bottom of the form the plaintiff added the following provision: "If the Government desires us to make deliveries to Brooklyn, N. Y., New York City, or Hoboken, New Jersey Pier, there will be an additional charge of $1.00 per casket.” The formal contract No. 1343-N of December 10, 1919, adopted the phraseology of the bidder and provided that delivery should be “f. o. b. factory, New York City, N. Y.” These contracts are in the record and made a part of this finding by reference thereto.
IV. After the award of the first contract was made the plaintiff largely increased its personnel and arranged to devote practically all of its facilities to Government work. After a certain number of caskets had been completed by the plaintiff and had been inspected and accepted for the
Reporter's Statement of the Case defendant by one of the defendant's inspectors, the defendant was notified and soon thereafter began moving the caskets from the plaintiff's factory to its Brooklyn base by trucks for loading upon transports for foreign shipment. The caskets were of extra size and weight and were not easy to handle. Including its outside packing case each casket measured nearly 10 feet in length, 3 feet in width, and weighed approximately 500 pounds.
A crew of four or five men was required for the handling of a casket. The trucks used by the defendant were of sixcasket capacity and were able to make but two trips a day from the plaintiff's factory to the Brooklyn base. The plaintiff's warehouse had a storage capacity for about 350 completed caskets, and inasmuch as the plaintiff was completing caskets at the rate of about 1,500 per month, while the defendant was taking delivery of but about 12 caskets per day, the plaintiff's plant was rapidly becoming so overcrowded with finished caskets that its operating facilities were becoming impaired.
V. After the plaintiff had been complaining for some time to the defendant's inspectors and to Major Harrie D. W. Riley (who was then production and inspection officer at the New York general intermediate depot, and who was the Government officer responsible for the deliveries under the contract) of the congested situation which was resulting from the inadequate means being used by the defendant in taking deliveries from the plaintiff's factory the plan of trucking the caskets to the Brooklyn base was by mutual agreement abandoned. The defendant agreed to place barges or lighters at the foot of 106th Street, New York City, which was a distance of a few hundred feet from the plaintiff's factory, and the plaintiff was to move the caskets from its factory to the dock and to load them upon the barges. Each barge would accommodate approximately 300 caskets, and when loaded the barges were moved by tugs to New York Harbor, where the caskets were placed on board the waiting transports.
VI. 352 of the 6,000 caskets sold by the plaintiff to the defendant under contract No. 1343-N were taken by GovReporter's Statement of the Case ernment trucks, as per terms of the contracts, at the door of the plaintiff's factory by the defendant. The remaining 5,648 caskets were moved from the plaintiff's factory to the dock and loaded on the barges by the plaintiff between March 10, 1920, and July 27, 1920. The plaintiff is suing in D-800 to recover the actual expenditures made by it in the delivery of the said 5,648 caskets from the factory to the dock and for the loading of the caskets onto the barges and the lighters. In performing its contracts the plaintiff employed a force of laborers, boat hands, and a supervisor to supervise their work. The plaintiff also hired certain trucks and purchased one for $1,000, which was later sold for $50.00. The trucks and the laborers were when needed employed in making deliveries of caskets to the wharf and loading the same on barges; when not so engaged they were employed in and about plaintiff's factory. When engaged in loading the barges the boat hands were responsible for properly doing the work.
VII. The plaintiff expended from about March 10, 1920, to July 27, 1920, $3,956.53 for boat hands, $3,187.89 for laborers, $499.38 for a supervisor, $7,873.50 for truck hire, and $492.83 for a chauffeur. Just what proportion of this expense is chargeable to the moving and loading on the barges of the caskets moved and loaded is not known. The total sum charged was not all expended in the performance of this particular service. Some of the laborers performing this service were used in the plaintiff's factory for moving the finished caskets down to the shipping room for convenient loading on the trucks, and some others were employed in other work.
VIII. The parties in interest in D-800 and D-801 are identical. By stipulation of counsel the testimony of several of the witnesses was taken at one time to apply to the two cases. In D-800 the J. & J. W. Stolts Association brought suit against the United States to recover its costs of delivery of 5,648 caskets sold by the plaintiff to the United States under a contract, No. 1343-N, which provided for deliveries to be made “f. o. b. factory, New York City.” The plaintiff in that action has included its costs for moving the caskets
Opinion of the Court
from its factory to a dock designated by the defendant and for then loading the caskets from the dock onto barges and lighters.
The plaintiff is seeking in D-801 to recover its costs of the loading of 10,000 additional caskets from the dock to barges and lighters upon which the caskets were carried to transports in New York Harbor for foreign shipment. Those caskets were the ones purchased by the United States under contract No. 1389-N, which provided for “deliveries f. o. b. New York."
10,000 caskets purchased by the United States under contract No. 1389-N were actually loaded by the plaintiff from the dock designated by the United States onto the barges. It appears that the plaintiff expended for this and other purposes in connection with the performance of its contracts $3,627.06 in handling the caskets and performing the contracts. It also appears that barges were not always available at the dock and that the plaintiff was during the periods of delay required to keep its force of boat hands waiting and ready to make deliveries when the barges arrived. The Government furnished only a captain on each barge, and all labor employed in the loading of the barges was supplied by the plaintiff.
The court decided that plaintiff was not entitled to recover.
BOOTH, Judge, delivered the opinion of the court:
The plaintiff, a New York corporation, states a cause of action resting upon an alleged right to recover on the basis of quantum meruit for extra work performed and labor furnished over and above that required by the stipulations of two certain contracts with the Government. On December 10, 1919, written contract #1343N was executed by the parties. The plaintiff under the terms of the agreement was to manufacture and deliver f. o. b. factory, New York City, N. Y., 6,000 caskets at a unit price of $62.50 each. On April 16, 1920, written contract #1389N was executed by the parties. This contract is similar to the above, covers the Opinion of the Court same subject matter, and differs only with respect to number and price of caskets to be furnished and stated point of delivery. Instead of employing the words “f. o. b. factory," as in contract #1343N, the words “ deliveries f. o. b. New York” appear.
The plaintiff filed two petitions, one involving contract #1343N and the other contract #1389N. The facts upon which the right of recovery is based are the same in each case, the parties stipulating that the findings in one, except as to amount involved, may be taken as the findings in both.
During the course of contract performance the defendant at first provided trucks for the transportation of the caskets from the door of plaintiff's factory to a point where they were to be transported by the defendant overseas; 352 of the 6,000 caskets under contract #1343N were handled by the defendant in this manner. It soon developed that the method employed was embarrassing to both the plaintiff and defendant. The plantiff under the method, necessarily slow, was confronted with an overstocking of its storage capacity and the defendant with an increasing delay in supplying the wants of an urgent necessity. To relieve the situation the defendant agreed to place barges or lighters at the foot of 106th Street, New York City, a distance of some 200 feet from plaintiff's factory, and the plaintiff was instructed and consented to move the caskets from its factory and load them upon the barges. The plaintiff performed this service. In doing so the allegation is made that under contract #1343N it incurred an additional expense, found by the commissioner to be $16,010.13, and a like expense under contract #1389N of $3,627.06. It is for the recovery of the total of these sums that the suits are brought.
Obviously, it is essential for the plaintiff to establish that the services and expense incurred, for which judgment is sought, were rendered and incurred under such circumstances as to warrant the court in implying an agreement to pay their reasonable worth by the defendant. The contractual liability of the Government under a proper state of facts is manifestly to be conceded; but one dealing with the Gov