V. Where contractor had no reason not to expect that it would encounter in the site which it contracted to excavate whatever foundations, footings, or pillars may have been used to support the former brick build- ing on said site; and where contractor, though having an unusual opportunity to do so, made no effort to ascertain what foundations the former building had; and where contractor had agreed to take the site as it found it and to remove such material as it might find there; it is held that plaintiff is not entitled to recover for loss on account of additional costs incurred by reason of encountering more difficult conditions than it had expected. James Stewart & Co., 95.
VI. The evidence does not sustain the claim that there was either misrepresentation or concealment on the part of defendant. Id.
VII. Where plaintiff agreed, under purchase agreements with the United States, to deliver top soil to several parks and parkways in New York State at stipulated prices for delivery at stated locations; and where the major portion of top soil contracted for delivery to one location was diverted to other more distant locations; and where such diversions were made on oral orders of unauthorized persons and without written authority from authorized agents of the defendant; it is held that plaintiff is not entitled to recover. Walter C. Reediger, Inc., 120.
VIII. The contract fixed the rights and obligations of the parties and vested in the Government the right to have performance in accordance with its terms; and no unauthorized officer of the Government could waive the terms of the contract. Id.
IX. Where the diversions were not shown by the evidence adduced to have been authorized and were made without the knowledge or approval of the duly author- ized official; and where no agreement, express or implied, was made to make payment at a rate in excess of that stipulated in the contract; it is held there is no basis for a recovery on the theory of quantum meruit. Id.
X. Where the Government purchased from vendor coal, at an agreed price, for use in heating a post office; and where said coal was delivered and used; and where said vendor borrowed money at a bank, promising to repay the bank from proceeds of the sale of said coal; and where thereupon the Government refused to pay for 421221-42-CC-vol. 94- 49
said coal on the ground that vendor had been "paid in full" by reason of said loan; it is held that plaintiff, executrix of vendor's estate, is entitled to recover. Belcher, 137.
XI. It is held that the evidence submitted, as a whole, shows that the defendant did not by any act, conduct or ruling of its agents, inspectors or engineers breach any provision of the contract with plaintiffs. Western Construction Co., 175.
XII. The evidence shows that the contracting officer acted reasonably and within the provisions of the contract in classifying the laborers obtained through the National Reemployment Service and employed by plaintiffs, and plaintiffs made no written protest or claim with respect thereto within the time required by the con- tract. Id.
XIII. Where on plaintiffs' claim for remission of liquidated damages the contracting officer denied all claims except a claim for 51 days' delay during high water and 1 day's delay on account of strikes; and where said decision of contracting officer was on appeal affirmed by the Sec- retary of the Interior; it is held that such decisions were in accord with the facts in the case and were not arbi- trary or grossly erroneous, and plaintiffs are entitled to recover only the sum allowed by said decisions. Id. XIV. Where plaintiff failed to complete the contract for con- struction of an extension to the then existing heating plant and installation of a new steam distribution system at the Naval Ammunition Depot, Fort Mifflin, Pa., and said contract was thereupon terminated by the Govern- ment, it is held that the evidence adduced fails to sustain plaintiff's claim that delay or dilatory action by defend- ant's officers in the disposition of plaintiff's plans and drawings resulted in damage to plaintiff. Continental
Contracting Company, 244.
XV. 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. XVI. Where certain amounts were withheld from plaintiff on account of an alleged underpayment by plaintiff of its employees, it is held that it was incumbent on plaintiff
to prove that it had complied with the provisions of the contract as to the rate of wages paid and that in the ab- sence of such proof plaintiff is not entitled to recover. Id.
XVII. Where no breach of the contract by defendant is shown by the evidence, it is held that plaintiff is not entitled to recover for an estimated loss on overhead and anticipated profits as the result of such alleged breach. Id.
XVIII. Where plaintiff and defendant entered into a contract December 27, 1933, for the construction of certain buildings at the military academy at West Point, said contract being expressly subject to the approval of the Quartermaster General, or his designee, and providing for the beginning of the work on or before January 5, 1934, and its completion on or before July 5, 1934; and where said contract was not approved by the Quartermaster General until February 8, 1934; it is held that the requirement that the work be com- pleted by a certain time was not nullified by the unrea- sonable 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 reason- able time, and plaintiff was granted an extension of time because of inclement weather during said period of delay. Jacob Schlesinger, Inc., 289.
XIX. Where the contracting officer, whose decision under the terms of the contract was final, submitted to his superior officer in the form of a recommendation his decision as to extension of time; and where plaintiff made no appeal from said decision to the head of the department as provided by the contract; it is held that such decision was the independent decision of the con- tracting officer, although it also had the approval of the superior. Id.
XX. The decision of the contracting officer was not grossly
XXI. Where the contracting officer, after consulting the Quar- termaster General, denied plaintiff's request to work plaintiff's men in excess of the maximum hours stipu- lated by the contract and the regulations of the Federal Emergency Administration; and where plaintiff took no appeal as provided by the contract; it is held that no abuse of discretion by an agent of defendant is shown, and plaintiff is not entitled to recover.
XXII. Under the decision in Rust Engineering Co. v. United States, 86 C. Cls. 461, it is held that plaintiff is entitled to recover extra costs necessarily incurred as a result of the discovery of extraordinary conditions not contem- plated by the parties to the contract. Bahen & Wright, Inc., 356.
XXIII. It is held, further, that on the evidence adduced plaintiff is entitled to recover for extra costs and expenses on account of delays for which plaintiff was not respon- sible. Id.
XXIV. Under the terms of the contract between the plaintiff, a corporation engaged in slaughtering livestock and pre- paring meat for market, and the Federal Surplus Relief Corporation, a Government corporation, in carrying out the cattle purchase and meat distributing relief program of the Government in 1934, it is held that the defendant was liable to the plaintiff for the yardage, feed, and incidental care of the cattle shipped to the packing plants of plaintiff for slaughtering and process- ing, where the cattle was owned by the Corporation and where the Government inspectors were authorized to incur necessary expenses in the handling of said cattle before slaughter and processing. John Morrell & Co., 490.
XXV. The fact that the cattle to be slaughtered and processed were physically present in plaintiff's yards did not constitute delivery. Id.
XXVI. The record shows that the Government inspectors had full authority to incur the expenses in question and were given discretion so to do as representatives of the Corporation. Id.
XXVII. Where the contract between the plaintiff and the Corpor- ation provided that the contractor was required to give 5 days' notice in writing before the canned meat became ready for loading into cars; and where said contract provided further that if the Corporation ad- vised the contractor before the expiration of the 5- day period to ship the quantities so reported, no storage charges should accrue against the Corporation; and where the plaintiff stored certain quantities of canned products from October 19, 1934, to July 2, 1935, and certain other quantities from October 19, 1934, to April 24, 1935, and where written notice as required under the contract was not given by plaintiff until March 11, 1935; it is held that the plaintiff is entitled
to recover for storage on said quantities, respectively, only for the period from March 16, 1935 (5 days after notice given), to April 24, 1935, and from March 16, 1935, to July 2, 1935. Id.
XXVIII. Where contractor had ample notice and was warned in the specifications to visit the site of the proposed building and inspect the conditions, and where con- tractor failed to make such visit and inspection before submitting bid; it is held that there was no misrepre- sentation on the part of the defendant and the plaintiff is not entitled to recover. Blauner Construction Co.,
XXIX. Where a contractor has miscalculated, and through its own negligence in not examining the site has failed to take into consideration conditions which had been called to its attention in the specifications by a warn- ing to visit the site, and sustains a loss, no claim arises. C. W. Blakeslee & Sons, Inc., v. United States, 89 C. Cls. 226, 250 cited. Id.
XXX. Where plaintiff and defendant entered into four separate contracts calling for erection and installation by plaintiff of a specified number of steel towers, electric airway beacons thereon, and intermediate landing- field equipment, as specified, on three of the sections of the Chicago-Atlanta Airway and on one of the sections of the Cincinnati-Chicago Airway; it is held that upon the essential evidentiary facts as established by the record and under the applicable principles of law the plaintiff is entitled to recover the excess labor costs and expenses and unpaid amounts due on the four contracts and the amounts withheld by the de- fendant as liquidated damages for delay under three of the contracts. Hirsch, 602.
XXXI. Where the contracting officer in passing upon the matters of delay and extensions of time after the contracts had been completed and the work accepted, while recognizing that the failure of the defendant in many particulars operated to delay plaintiff and to increase plaintiff's costs, did not relieve the plaintiff of these delays in the recommendations made by him for the assessment of liquidated damages; it is held that failure to do so was gross error. Id.
XXXII. The evidence does not sustain the contention that plain- tiff did not employ qualified laborers and efficient mechanics and foremen. Id.
« ПретходнаНастави » |