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94 C. Cls.

CONTRACTS-Continued.
CONTRACTS

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
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94 C. Cls.

CONTRACTS—Continued.

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. Id.
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

94 C. Cls.

CONTRACTS—Continued.

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

erroneous. Id.
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 Federa)
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. Id.

94 C. Cls.

CONTRACTS-Continued.
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

94 C. Cis.

CONTRACTS—Continued.

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.,

503.
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
assess

ent of liquidated damages; it is held that failu
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.

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