of the assignor to the United States arising independently of such contract. Act of Oct. 9, 1940 (54 Stat. 1029). The original text of this section was amended by the above provision, which is cited as the "Assignment of Claims Act of 1940." For War Department regulations thereunder, see Federal Register of December 17, 1940, page 5121. 703. Equitable claims. For time limit on submission of claims under this section, see 1648a, post. 708. Set-off. Notes of Decisions Interest. (1st paragraph.)-Change citation to read: Whitbeck, Receiver v. U. S. (1933), 77 Ct. Cl. 309; certiorari denied (1933), 299 U. S. 671. (4th paragraph.)-Change citation to read: Chicago, I. & L. Ry. v. U. S. (1933), 78 Ct. Cl. 96; certiorari denied (1933), 290 U. S. 671. 709. Private property; damage by operations of the Army. The second paragraph of this section has been repeated in subsequent appropriation acts. 711. Private property; damage by operation of aircraft. This provision has been repeated in subsequent appropriation acts. * * * * * 714a. Private property; damage by field exercises.-* Provided, That this appropriation may be used for settlement of claims (not exceeding $500 in any one case) for damages to or loss of private property resulting from such exercises, heretofore or hereafter accrued, when payment thereof will be accepted by the owners of the property in full satisfaction of such damages, and when each claim is substantiated in such manner as the Secretary of War may prescribe by regulation and is approved by the Secretary of War, or by such officer as he may designate, such action thereon to be conclusive. Sec. 1, emergency supplemental appropriation act of Feb. 12, 1940 (54 Stat. 23). As repeated in section 1, emergency supplemental appropriation act of February 12, 1940 (54 Stat. 23), and subsequent appropriation acts, this section reads as above. 714b. Private property; damage by operation of camps of instruction, National Guard. This provision has been repeated in subsequent appropriation acts. 715. Property of Army personnel; loss or damage in military service. Notes of Decisions authorized military duties in connection with the catastrophe or event which caused his property to be lost, damaged, or destroyed. In the matter of the Reference of the Claim of Captain Jewell E. Morrison (1938), 87 Ct. Cl. 606. In general. The Act of March 4, 1921, | or destroyed; and where he is engaged in providing for recovery by Army officer for personal property lost, damaged, or destroyed in the military service, restricts recovery to three contingencies-where officer is saving human life; saving property, belonging to the Government, which is în jeopardy at the same time his own property is lost, damaged, Collection, 722. CLAIMS BY THE UNITED STATES 722. Collection. | Priority, 724. Notes of Decisions Contributory negligence.-In action in Federal court by United States for damages caused by automobile collision, United States impliedly consented to court's determining matters in accordance with rules applicable to like controversies arising between private litigants, and hence affirmative defense and supporting evidence of contributory negligence were properly allowed. Where United States institutes suit for redress, not based on any infringement of its sovereignty or violation of governmental prerogative, but submits claim wholly in 724. Priority. nature of private litigant, it waives any immunity as sovereign and adversary may put up any defense that would be available against another citizen. In action arising out of automobile collision, whether driver of government automobile was guilty of contributory negligence in entering highway after having stopped for preceding automobile to pass was fact question for jury (Rem. Rev. St. Wash. sec. 636240). United States v. Moscow-Idaho Seed Co. (C. C. A., 1937), 92 F. (2d) 170. Notes of Decisions In general.-Under Federal statute providing that whenever any person indebted to the United States is insolvent, the debt to the United States shall be first satisfied, priority extends to all classes of debts due the United States. 31 U. S. C. A., sec. 191. U. S. v. Dickson et al. (Wash., 1938), 84 P. (2d) 661. The priority given to the United States by the statute providing that whenever any person indebted to the United States is insolvent, the debt due the United States shall be first satisfied, cannot be impaired or superseded by State law. 31 U. S. C. A., sec. 191. Id. or estate, were required to be construed together. 31 U. S. C. A., secs. 191, 192. U. S. v. Giger et al. (D. C., 1939), 26 F. Supp. 624. The statute giving debts due the United States priority deals entirely with living insolvent persons and deceased debtors whose estates are insufficient to pay debts due from the deceased. 31 U. S. C. A., sec. 191. Id. The statute relating to priority of debts owed to the United States does not create a lien, but merely gives priority to claims of the United States after legal title has passed from debtor. 31 U. S. C. A., sec. 191. Id. Taxes.-The claim of the United States for taxes, penalties, and interest due it from insolvent refining company was inferior to claim of the State of Texas for motor fuel taxes. Vernon's Ann. Civ. St. art. 7065a-7; 31 U. S. C. A. sec. 191. State et al. v. Nix (Tex., 1939), 133 S. W. (2d) 963. The statute giving debts of the United States priority, and statute providing for personal liability of an executor, administrator, or assignee who pays debt of person or estate for whom he acts before satisfying et al. debts due United States from such person 73 Authority and appropriations, 726. Advertising requirements: In general, 727. Exceptions, 727a. Contractors: Employment of aliens, 729a. Political activities, 729b. CONTRACTS Buy-American Act, 742. Cost-plus contracts for public works projects, 742a. Eight-hour law (civil), 743. Eight-hour law (penal), 744. Suspension of Eight-hour laws in emergency, 745. Extra expense; jurisdiction of Court of Vinson Act; aircraft and appurtenances, 745a." Claims, 733. Transfer of contract, 739. Bituminous Coal Act, 741. 726. Authority and appropriations. Bacon-Davis Act, 746. Walsh-Healey Act, 747. Notes of Decisions Liquidated damages; computation. (3d paragraph.)-Change citation to read: International Manufacturers' Sales Co. v. U. S. (1937), 85 Ct. Cl. 683; certiorari denied (1938), 303 U. S. 651. Liquidated damages; contract terminated.Where a contract has been terminated by mutual agreement in writing, and the work completed under the provisions of the terminating contract, liquidated damages alleged to have accrued under the terminated contract may not be withheld; liquidated damages cannot accrue until the work which the contractor was obligated to perform has been completed under the provisions of the contract providing for its completion. U. S. v. O'Brien, 220 U. S. 321, cited. Herman J. Sternberg, Trading as Sternberg Dredging Co. v. U. S. (1938), 87 Ct. Cl. 332. Where the defendant forestalls the completion of a contract on time by terminating it for a reason other than a default in performance upon the part of a contractor, and for its own benefit, liquidated damages may not be assessed against the contractor. Id. Liquidated damages; delays chargeable to Government.-A provision for liquidated damages for delay in furnishing the United States with machinery and equipment under a contract is waived if performance within stipulated period is prevented by the United States, though completion is delayed by fault of contractor, but provision is not affected if delay occasioned by the United States before completion date was insufficient to prevent performance within the stipulated period. American Engineering Co. v. U. S. (D. C., 1938), 24 F. Supp. 449. Modification or supplemental agreements; consideration. (4th paragraph.)-Change citation to read: Bausch & Lomb Optical Co. v. U. S. (1934), 78 Ct. Cl. 584; certiorari denied (1934), 292 U. S. 645. Modification or supplemental agreements; contract price.-Where blueprint, drawings and specifications on which contractor's bid for paving was based included 1,690 square yards that bad already been paved, and contractor did not in fact pave that particular area, and declined, when given the opportunity, to pave an equivalent area, it is held that deduction of the amount which would have been due for this portion of the work, in accordance with a proper change order, was justified. H. B. Nelson Constr. Co. v. U. S. (1938), 87 Ct. Cl. 375; certiorari denied (1939), 306 U. S. 661. Performance; authority to extend time. (1st and 2d paragraphs.)-Change citation to read: Pope v. U. S. (1932), 75 Ct. Cl. 436; certiorari denied (1933), 288 U. S. 610. Decision of Government officials, denying the contractor an extension of time due to the injury to materials while in transit, is held to have been grossly erroneous and arbitrary and as such is not final, and may be challenged in the courts. U. S. v. Gleason, 175 U. S. 588, cited. H. B. Nelson Constr. Co. v. U. S. (1938), 87 Ct. Cl. 375; certiorari denied (1939), 306 U. S. 661. Recovery by contractor; cancellation by Government. (6th and 9th paragraphs.)Change citation to read: American Propeller & Manufacturing Co. v. U. S. (1936), 83 Ct. Cl. 100; reversed as to counterclaim only (1937), 300 U. S. 475. 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 was 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. Where plaintiff entered into a contract, damages to the contractor, entitles him to with the Government, through the Civil recover his loss. Id. Works Administration, in response to invitation for bids, to supply and to make available certain quantities of clay, from which plaintiff at his expense removed the overburden of sand; and where the Government, after having called for, loaded, and hauled away from plaintiff's clay pit a portion of the total amount which the Government had agreed to take and pay for, canceled the contract, it is held that this constituted a breach of the contract for which the plaintiff is entitled to recover. Amos Tyree v. U. S. (1939), 88 Ct. Cl. 510. ment. Recovery by contractor; default by Govern(2d paragraph.)-Change citation to read: Boeing Air Transport v. Farley (App. D. C., 1935), 75 F. (2d) 765; certiorari denied (1935), 294 U. S. 728. Recovery by contractor; default in partial payments. (2d and 3d paragraphs.)— Change citation to read: Whitbeck, Receiver v. U. S. (1933), 77 Ct. Cl. 309; certiorari denied (1933), 290 U. S. 671. Recovery by contractor; delays by Government in general. (1st paragraph.)-Change citation to read: Pope v. U. S. (1932), 75 Ct. Cl. 436; certiorari denied (1933), 288 U. S. 610. Where it is shown by the evidence that the contractor had prosecuted the work with diligence so as to insure its completion within the time allowed by the contract and that the entire fault for the delay was due to the failure of the Government to comply with its part of the contract, it is held that cancellation of the contract by the Government was arbitrary and capricious, and the plaintiff is entitled to recover. Largura Construction Co. v. U. S. (1939), 88 Ct. Cl. 531. The Government can be required to make compensation to a contractor for damages which he has actually sustained by defendant's default in its performance of its undertaking to him. Id. Recovery by contractor; delays due to defective plans and specifications. (2d paragraph.)-Change citation to read: Whitbeck, Receiver v. U. S. (1933), 77 Ct. Cl. 309; certiorari denied (1933), 290 U. S. 671. Recovery by contractor; delays due to preparatory work.-Where contractor could not meet the requirements of the specifications within the time limit fixed for performance because the Government did not possess title to sufficient lands to enable it to be done, causing the contractor to incur a loss it was not under obligation to incur, it is held that the contractor is entitled to recover. Edward 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 Recovery by contractor; extra work outside contract.-Where contract for repairing and resurfacing the roofs of the Navy and Munitions Buildings did not provide specifically for the resoldering of all broken joints of the old gutters on the building, and contractor was required by contracting officer to resolder all such broken joints, it is held that this was extra work and contractor is entitled to recover. William F. Overly and Lyle L. Jones, Receivers of W. F. Overly & Sons, a Corp. v. U. S. (1938), 87 Ct. Cl. 231. Where the Government's representative was well aware of the grounds of protest, which had previously been made orally, it is held that advantage cannot be taken of ambiguous language of the written protest to frustrate the intent and purpose of the letter of protest. Id. Where there existed an admitted difference between the specifications and the work called for under the plans, involving the character of backfill over drains and the contracting officer reached a conclusion by construing the specifications and drawing to exact a backfill of gravel by implication, and the contractor performed this extra work under protest, it is held that the contractor is entitled to recover for the added cost. John McShain, Inc. v. U. S. (1939), 88 Ct. Cl. 284; certiorari granted (1939), 307 U. S. 619. Recovery by contractor; extra work 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. Recovery by contractor; extra work within contract. (2d paragraph.)-Change citation to read: Bausch & Lomb Optical Co. v. U. S. (1934), 78 Ct. Cl. 584; certiorari denied (1934), 292 U. S. 645. Recovery by contractor; latent or subsurface conditions. (7th paragraph.)-Change citation to read: Triest & Earle v. U. S. (1936), 84 Ct. Cl. 84; certiorari denied (1937), 302 U. S. 696. Where soil conditions, unknown when the contract was made, rendered it necessary to change the character of the foundation, which delayed the work, it is held that this was not such a change as was contemplated by the contract, and plaintiff is entitled to recover for incidental costs and damages resulting from the delay so occasioned, al |