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128 C. Cls.

XIII. Although it is not easy to determine from the

evidence whether or not unusual conditions were
encountered which would entitle plaintiff to an
equitable adjustment under the contract, it is held
that it is nevertheless established by the evideoce
that the defendant did withhold from plaintiff
information in defendant's possession which would
have warned plaintiff that it was apt to encounter

large quantities of excess water. Id.

United States On 74 (11).
XIV. Had plaintiff been informed that the water level

in 5 of the 16 test borings was much above the depth
at which the sewer was to be laid, and had plaintiff
been advised that water was encountered in many of
the 11 other borings, but that the accurate water
level at these borings could not be takep because the
holes had caved in, the plaintiff would have been put
on notice that it probably would encounter large
quantities of water above, and in some cases con-
siderably above, the bottom of the sewer line. None
of this information was furnished to plaintiff,

although possessed by the defendant. Id.

United States Or 70 (22).
XV. Where it is shown by the evidence that informa-

tion which was material was withheld from plaintiff
and that the plaintiff was in fact misled thereby; it is
held that this was a breach of the contract by the
defendant, for which the plaintiff is entitled to

United States Own 70 (22).
XVI. Where it is shown that, after investigating the

situation, the consulting engineers and the construc-
tion engineer of the Federal Works Agency prepared
a change order providing for an additional payment
to plaintiff of $24,145.09, and this amount was agreed
to by plaintiff; it is held that the plaintiff, on all the
evidence, is entitled to recover this amount. Id.

United States On 74 (13).
XVII. It is held that while it may be assumed that the

findings of the contracting officer, affirmed on appeal,
are final on the question of plaintiff's right to an
equitable adjustment under Article 4 of the contract,
the decision of the contracting officer is not final on
the question of whether or not defendant breached


128 C. Cls.


the contract by withholding information and repre-
senting that the information furnished was the best

available. Id.

United States Om 73 (14).
XVIII. Plaintiff brings suit upon a contract of carriage by

motor vehicle, seeking to recover the difference
between the amount of freight charges paid to
plaintiff by the United States as shipper and the
amounts plaintiff asserts are due it either under the
applicable approved Kentucky intrastate tariff, as
required by Kentucky law and regulations, or,
in the alternative, under plaintiff's interpretation
of the terms of that portion of the contract of
carriage which specified the rates to be charged,
known as plaintiff's Quotation No. 29. It is held
that plaintiff is entitled to recover on the basis of the
Kentucky Intrastate Motor Tariff, applicable to
intrastate shipments. Defendant's counterclaim is

dismissed. Hughes Transportation, 221.

Automobiles Om 121.
XIX. Plaintiff, under permits granted by the Department of

Motor Transportation of the Commonwealth of
Kentucky, was authorized to transport the articles
involved in this claim over the highways of Kentucky,
and solely within that State, as a contract carrier
by motor vehicle. On March 13, 1950, plaintiff
issued Quotation No. 29, which was filed and main-
tained with the United States Department of the
Army. During the effective period of this quotation
plaintiff transported for the Department of the Army
numerous shipments of explosive ammunition for
cannon with explosive or smoke projectiles, between
Blue Grass Ordnance Depot, Richmond, Kentucky,
and Ft. Knox, Kentucky (135 miles), and also
between Richmond and Camp Breckenridge, at
Morganfield, Kentucky (272 miles). Quotation No.
29 was never filed with the Kentucky Department of
Transportation for approval by that Department
as required by the Kentucky statutes then in effect
and by the applicable regulations. Neither plaintiff
nor defendant appears to have been aware of the
requirements of Kentucky law throughout the

period in question and for some time thereafter. Id.
Automobiles Or 121.

128 C. Cls.


XX. All of the shipments in question were made under

Government bills of lading in the standard form and
from time to time as the transportation was com-
pleted plaintiff filed with appropriate officers its bills
for such transportation, claiming freight charges
in accordance with Quotation No. 29. It is held
that Quotation No. 29 and the rail tariff in effect
are not, under the facts and circumstances, applicable
in determining the proper and legal rates for the

transportation involved in this case. Id.

Automobiles Om 121.
XXI. In the instant case the contract of carriage involved

the transportation of property belonging to the
Federal Government as shipper-consignee by con-
tract carrier by motor vehicle licensed to do business
in the Commonwealth of Kentucky. The perform-
ance of the contract necessitated the use of State
highways between Federal enclaves located wholly
within Kentucky. Except for the pick-up and
unloading of the property being transported, it was
impossible for the plaintiff to perform its contract
without the use of the State highways. It is held
that since the contract was substantially and almost
entirely performed outside the confines of the
Federal enclaves it does not fall within the exclusive

jurisdiction of the Federal Government. Id.

Automobiles emm 121.
XXII. It is held that the transportation in question involves

shipments moving in intrastate commerce and
involved the exclusive use of Kentucky highways
over which the Commonwealth of Kentucky and
not the Federal Government had jurisdiction.
Kentucky is not attempting to regulate activity at,

or a transaction within, the Federal enclaves. Id.
Automobiles w 121.

Commerce Cars 33 (1).
XXIII. Defendant's contention is not sustained that, assuming

the contract to be one for intrastate carriage of
freight subject to the regulatory laws of the Common-
wealth of Kentucky, recovery in the United States
Court of Claims on the basis of the State statutory
rate is precluded by the doctrine that suits against
the United States are not authorized on "implied-
in-law” contracts. A careful study of the cases
dealing with the contractual liability of the United

128 C. Cls.


States, and holding that the so-called “implied-in-
law" or quasi contracts are outside the jurisdiction
of the Court of Claims, impels the conclusion that
under the arrangements that were made, and the
other facts and circumstances, the instant case

involves no such quasi contract. Id.

Courts Com 449 (1).
XXIV. It is held that the contract in suit was an express

contract complete in every detail as to the service
to be rendered for carriage of specific freight between
fixed termini within the limits of Common-
wealth of Kentucky. The contract was fully
authorized, executed and performed and was valid

and enforceable under Kentucky law. Id.

Courts em 449 (1).
XXV. The courts have held that in the absence of some

applicable Federal statute to the contrary the
Government, when it contracts with its citizens,
subjects itself to the same rules of law that govern

private individuals. Id.

United States o 70 (2).
XXVI. In the field of transportation both the private shipper

and the carrier are charged with knowledge or notice
of the published rate and the statutory law and that
rate is a part of the transportation contract in the

same manner as if it were & statute. Id.

Carriers m 188.
XXVII. With respect to intrastate motor transportation con-

tracts to be performed in a State which has enacted
valid regulatory laws concerning the use of its high-
ways and the making of transportation contracts, it
is held that the United States, when it enters into such
a contract, is bound by the provisions of such State
laws unless there is some constitutional or statutory
impediment to State jurisdiction or unless the subject
matter of the contract is so essentially Federal in
character as to preclude State control thereof or the

application of State law thereto. Id.

Automobiles Om 121.
XXVIII. Under the regulatory laws of Kentucky the collection

by the carrier of the applicable and legally approved
published tariff rates is not a matter of right but
rather an obligation imposed by law as a part of the
contract, and the rate so published is established by

128 C. Cls.


law in the same way in which a rate is established for
interstate commerce under the Interstate Commerce

Act. Id.

Automobiles Om 121.
XXIX. It is held that under all the facts and circumstances of

this case the Kentucky law is applicable to the instant
contract and the carrier is entitled to recover on the

basis of the regularly published rates. Id.

Automobiles Om 121.
XXX. The plaintiff in 1945 entered into a contract with the

United States Bureau of Reclamation for the con-
struction of certain irrigation trenches and installa-
tions at the Deschụtes Project in Oregon. The
specifications called for submission of unit prices on
17 items of work. During the performance of work
disputes arose over the classification of material.
Plaintiff complained that the estimated quantities of
rock excavation were inadequate and that hardpan,
disintegrated rock and cemented gravel should be
paid for as rock excavation. There were also disputes
as to the total quantities involved in some of the
areas of excavation. After a personal examination
by the construction engineer, a reclassification was
made, resulting in a total payment under the contract
of $138,159.85 instead of the estimated amount,
$101,395. In final settlement the contractor exe-
cuted a release excepting nine claims amounting to
$236,374.24. It is on these excepted items that suit
is brought in the instant case. United Construc-

tion, 262.'

United States Emo 73 (14).
XXXI. The only claim in the instant case on which the plaintiff

has produced evidence related to the classification
and determination of quantities of materials exca-
vated. The decision of the construction engineer,
which was affirmed by the contracting officer, and on
appeal was affirmed by the duly authorized repre-
sentative of the head of the department, was adverse
to this claim. Under the provisions of the contract
all disputes concerning questions of fact should be
decided by the contracting officer, subject to appeal,
and such decision should be final and conclusive upon
the parties to the contract. Under the decision in
United States v. Wunderlich, et al., 342 U. S. 98, the
United States Court of Claims is without jurisdic-

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