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tions to witnesses. Subpoenas may be issued by the court. It is further provided:

“The rules of the court shall provide for a finding and report of facts by a commissioner, and when directed by the court his recommendations for conclusions of law, to be filed in court with the testimony upon which the same is based, and for opportunity to file exceptions thereto, and a hearing thereon within such reasonable time as the court's rules or order may prescribe. This section shall not prevent the court from passing upon all questions and findings regardless of whether excep

tions were taken before a commissioner.” The Chief Judge and Judges of the court possess the same power and authority conferred by Congress upon the Commissioners, and each of them when duty permits takes testimony in various parts of the United States. In this way the court is brought to the citizen, leaving with him the choice of coming to Washington or hearing his case where most convenient for him.

The Commissioners make their reports to the court and under the rules each party may file exceptions thereto.

The arguments of cases, on the law and the evidence, are heard by the full bench of five judges. The court tries cases without a jury.


A case decided by the Court of Claims may be reviewed by the Supreme Court on writ of certiorari upon petition by either party.

Provision for such review is now found in 28 U. S. C. § 1255 as follows:

$ 1255. Court of Claims; certiorari; certified questions.

Cases in the Court of Claims may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted on petition of the United States or the claimant;

(2) By certification of any question of law by the Court of Claims in any case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions on such question.


There has recently been published by the West Publishing Company a complete Key Number Digest of the Court of Claims opinions, 1855 to date. The Digest, in 8 volumes, will be kept up to date by cumulative annual pocket parts.

The need for this Digest has been realized for some time and its publication should be of interest to the members of the bar, the Government Departments and others interested in the decisions of the Court of Claims.

For further information, write The West Publishing Company, St. Paul 2, Minnesota.

JAMES A. Hoyt,

Reporter of Decisions. APRIL 15. 1950.




December 1, 1949, to February 28, 1950, and other cases not heretofore




(No. 47742. Decided December 5, 1949]

On the Proofs

Government contract; suit under Contract Settlement Act; no con

tract established.-In a suit under the Contract Settlement Act of 1944 (41 U. S. C. 113, 114 and 117) based on plaintiff's proposal in 1941 to construct a pipe line about 76 miles long and to furnish gas to Fort Knox at a saving in price to the Government, where it is shown by the evidence adduced that no contract, either oral or written, was entered into by the responsible officers of the Government, and where it is shown that the proposed pipe line was never constructed and that plaintiff was not at any time in position to build the pipe line nor to supply the gas; it is held that plaintiff is not entitled to recover and its petition is dismissed. United States v. Penn

Foundry and Mfg. Co., 337 U. S. 198, cited. United States On 74 Same; damages; proof insufficient.--Even if plaintiff had established

its right to recover, the proof is wholly insufficient as to the damages which it may have suffered, and the method of proving

the damages alleged was likewise insufficient. United States O 74 Same; no counterclaim where there was no contract.-Where the

Government contends that there was no contract with the plaintiff; and where its contention is sustained by the Court, there is no basis for a counterclaim, since there can be no recovery on a contract which the Government alleged and proved

did not exist. The counterclaim is dismissed. United States C 130

*The findings of fact and opinion by Judge Madden in Silas Mason, et al., v. United States, No. 48906, filed on February 6, 1950, will be published in Volume 116. It may be cited as 116 C. Cls. 1. 878641-503


115 C. Cls. Reporter's Statement of the Case The Reporter's statement of the case : Mr. Thomas J. Tingley for the plaintiff.

Mr. Edward L. Metzler, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.

The court made special findings of fact as follows:

1. Plaintiff is a corporation organized in 1936 under the laws of the State of Indiana, with its principal office in the city of Indianapolis.

2. Early in September 1941 Mr. Albert A. Kalo, president of plaintiff corporation, called at the office of the Zone Constructing Quartermaster at Columbus, Ohio, with an attorney for the company, to present a plan for supplying gas to Fort Knox, Kentucky. Mr. Kalo, having learned of an expected expansion of the Post, had written to Fort Knox regarding the expected increase of gas consumption and had received a reply from the War Department suggesting that the matter of supplying gas to Fort Knox should be taken up with the Zone Constructing Quartermaster at Columbus. Mr. Kalo discussed the matter with Lt. Col. Ross E. Windom, who was in charge of the Repairs and Utilities Branch, which branch had to do with contracting for gas supply. At that time the Constructing Quartermaster was not considering any change in the method of the gas supply at Fort Knox and no study of the gas supply at Fort Knox had been made by Colonel Windom. Mr. Kalo outlined a plan to furnish gas at a price of 25 cents per thousand cubic feet, a price which was considerably lower than that then being paid for gas at Fort Knox. Mr. Kalo was told to present the plan in writing.

Some time previously, another company had presented to the Commanding Officer at Fort Knox a somewhat similar plan for furnishing gas to that Post. That proposal had been forwarded to The Quartermaster General's Office in Washington, which office, on July 25, 1941, determined after investigation that the supplier of gas at Fort Knox was able to supply all the demands for gas for all of the expected expansion at that Post. At the time of Mr. Kalo's visit to


Reporter's Statement of the Case Colonel Windom, the determination of The Quartermaster General on the other proposal was unknown to Colonel Windom.

3. On September 15, 1941, Mr. Kalo submitted plaintiff's proposal in writing. The proposal was to furnish and install gathering lines in central Kentucky, together with a main transmission line to the Fort Knox reservation, in all about 76 miles of pipe line, with a capacity of from 12 to 16 million cubic feet of gas daily. The estimated cost of the construclion was stated as $650,000, and construction was to be completed within 45 days after receipt of pipe. It was proposed to furnish gas to Fort Knox of 1,000 BTU content at 25 cents per thousand cubic feet, with the understanding that Fort Knox would take a minimum of 5 million cubic feet daily.

4. After the receipt of this written proposal, inasmuch as there would be a considerable saving to the War Department in the gas cost at Fort Knox, Colonel Windom was directed by his superior to take the proposal to Washington for discussion with the Office of The Quartermaster General. That office advised Colonel Windom to submit the proposal in the form of a contract. Upon his return from Washington, a proposed contract for supplying gas was prepared in the form of a bid by plaintiff, under date of September 22, 1941. The bid stated that the gas supply would commence November 15, 1941, and continue until further notice, with a provision that if the buyer canceled the contract within five years, it would pay to the plaintiff the sum of $100,000 as liquidated damages for the indebtedness incurred in the construction of the line. The proposed contract, signed by plaintiff as the bidder but not accepted by the defendant, was forwarded by Colonel Windom on September 22 to the Office of The Quartermaster General with a statement that information had been received from the Commanding Officer at Fort Knox that the present gas supply was inadequate for the demands of Fort Knox, considering the recently constructed defense housing. It was recommended by Colonel Windom that the proposed contract be given consideration and approval and returned at the earliest possible date.

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