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Opinion of the Court his hardships and his poverty. When in trouble, humanity finds consolation in his company.
Alcibiades had a handsome dog. Senator Vest described the dog as "man's best friend."
We meet him first in Homer's verse
The dog by the Aegean seas. Scott referred to him as the "companion of our pleasures and our toils,” and Mark Twain said the difference between a dog and a man is that "if you pick up a starving dog and make him prosperous, he will not bite you."
It was a dog that licked the wounds of Lazarus in his rags. Rin Tin Tin was a movie star. Neither poverty nor riches, success nor failure, affects his loyalty. It was the dog that served as a test for the army of Gideon. He also performed heroic services in the most modern and greatest of all wars. The poet said that high in the courts of Heaven the one sure welcome that awaited was a little dog angel that "sits alone at the gates," and would not play with the others until his master arrived.
The cat also has always been a favorite pet with many people.
But coming back to the practical, the testimony of the respective witnesses is no more alike than the dispositions of the "gingham dog and the calico cat." It is difficult to determine from the conflicting testimony just what per diem should be allowed. The State Department regulations make no provision for the transportation of animals at any time. Whether or not they can be taken along even in ordinary times depends wholly upon the attitude of the captain of the ship on which passage is booked.
These were not ordinary times. The dogs of war had been unleashed and were running like mad over the face of the earth. In an effort to track them down whole families were separated for years. Our every day wants, desires and whims were in most cases sacrificed to the common cause. Any one who couldn't willingly do this needed to kindle anew the altar fires. Any allowances must be measured in the light of these circumstances.
We must find from the evidence, if we can, the time necessarily spent at Cairo and Port Said awaiting sailing. The 115 C. Cls. Opinion of the Court plaintiff was not required to travel by air. He was privileged to await sailing accommodations. He could probably have secured transportation for himself and his wife, without the pets, within approximately thirty days; or, for himself alone by Army Transport, within about 15 days.
On May 9, 1945, the Vice Consul at Cairo informed plaintiff that he thought transportation by plane could be secured if plaintiff would consent to leave his wife in Cairo. This offer was accepted and plaintiff left by plane on May 14, 1945.
We find that plaintiff necessarily waited at Cairo for a period of 15 days. He is therefore entitled to a per diem allowance for 15 days.
It is more difficult to determine the allowance for Mrs. Pedersen. Because of wartime restrictions, she could not travel by plane. She was told by Mr. Miller, the American Consul at Cairo, that if she and Mr. Pedersen wished to travel together, without the animals, he would obtain transportation as soon as possible, though it would mean a delay of a few weeks; but that if she insisted on carrying her pets, there would be an indefinite delay. She declined to travel without her pets. In giving her reasons for so declining, she testified “I [have] traveled my whole life with dogs and cats.”
Mrs. Pedersen actually waited until July 6, 1945, before finally securing transportation that permitted her to take the dogs and the cat along. In the meantime she irritated the officials at both Cairo and Port Said. At the latter place the official stated the innkeeper wanted her to leave because she insisted upon bathing her two large dogs in the public bathrooms. She finally sailed on an American freighter. She had carried her point. The dogs and the cat went along.
The testimony does not disclose either the type or the names of the pets. For the record they must remain nameless. However, they must have been remarkable animals either in pedigree or disposition.
Mrs. Pedersen was certainly within her rights in refusing to travel without her pets. One can appreciate her unwillingness to leave them behind. On the other hand, she had no legal basis for charging the defendant $10 a day for the extra delay caused by her attitude, especially in a time of
Syllabus national peril, when family separations were the rule and not the exception, however appealing her sentiment may have been. We must apply the law as we find it.
Under the regulations Mrs. Pedersen was not justified in refusing to travel without the animals and charging the delay thus caused to the defendant.
The testimony is not quite clear as to the time Mrs. Pedersen would have been compelled to wait had she not refused to travel without her pets. From the record as a whole, we find that such period was 30 days.
Plaintiff sues for a total of $1,742, covering the entire period of delay for himself and his wife. He is entitled to recover for the 45 days which he and Mrs. Pedersen were necessarily delayed, or a total of $450.
It is so ordered.
HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur.
BRANCH BANKING & TRUST CO., AND MRS. EDWARD W. GRANNIS, COADMINISTRATORS OF THE ESTATE OF EDWARD WHITAKER GRANNIS, CHARLES KING GRANNIS, MARY GRANNIS McLEOD, AND KARL SLOAN, PARTNERS TRADING AS E. W. GRANNIS; VICTOR BARTON HIGGINS, FREDERICK NOLL THOMPSON AND McDEVITT & STREET COMPANY, COMPRISING A JOINT VENTURE KNOWN AS GRANNIS, HIGGINS, THOMPSON & McDEVITT COMPANY v. THE UNITED STATES.
[No. 47210. Decided January 3, 1950]*
On Plaintiff's Demurrer To Defendant's Special Plea
Government contract; fraud not alleged in prosecution of claim before
the Court; demurrer sustained.-In connection with a cost-plusa-fixed fee contract for the construction of an anti-aircraft firing center near Wilmington, North Carolina, where by deci. sion of the United States Circuit Court of Appeals for the Fourth Circuit (172 F. (20) 507; certiorari denied, 337 U. S.
* Defendant's petition for writ of certiorari pending.
115 C. Cis. Opinion of the Court 918) it was adjudged that the defendants in that action, E. W. Grannis, Karl Sloan and William R. Jones, were guilty of fraud with respect to ten reimbursement vouchers involved in that suit and judgment for damages was entered against the three defendants therein, under the applicable statute (R. S. 3490; 31 U. S. C. 231); and where the reimbursement vouchers which were the subject matter of that law suit are not involved in the instant suit in the Court of Claims, plaintiffs' demurrer to defendant's plea in fraud is sustained on the ground that defendant's plea does not state facts sufficient to constitute a cause of defense in that no fraud is alleged in the special plea with respect to that part of the petition before the court in the
instant case. The special plea in fraud is dismissed. United States Om 120
Same.--The authority of the Court of Claims (28 U. S. C. 2514) to
cause a claim against the United States to be forfeited on account of fraud is limited to a claim where fraud is practiced
or attempted in the prosecution of the claim before the Court. United States . 120
Mr. Ward E. Lattin for the plaintiff.
Mr. William A. Stern II, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.
The facts sufficiently appear from the opinion of the court. HOWELL, Judge, delivered the opinion of the court:
Plaintiffs sue to recover $242,170.85 alleged due under a cost-plus-a-fixed-fee contract.
Defendant by a special plea in fraud avers that the claim for the balance of the fixed fee in the sum of $61,111.50 should be forfeited to the United States.
In the month of December 1940, plaintiffs entered into a cost-plus-a-fixed-fee contract with the defendant, the United States of America, for the construction of an antiaircraft firing center near Wilmington, North Carolina. The contract provided that plaintiffs would be paid by defendant a fixed fee of $270,942.00. The contract further provided for reimbursement of plaintiffs by the defendant for the cost of labor, materials, rental of equipment, insurance, and, in general, all expenses except overhead and executive compensation in connection with the work to be done. Plaintiffs allege performance of their work under the contract and acceptance by defendant.
Opinion of the Court Plaintiffs claim $181,059.35 as reimbursement for expenditures under the contract and $61,111.50 as the unpaid balance of the fixed fee.
Plaintiffs were required under the contract to keep accurate records and books of account, to take all cash and trade discounts and rebates, and to account for and apply them in reducing the cost of the work. They also agreed at all times to use their best efforts in all acts under the contract and to protect and subserve the interest of the defendant.
Under the contract the rental for equipment owned by the plaintiff contractors was to be computed by taking the fair valuation of the equipment at the time of its arrival at the site of the work. When the total rental paid on this equipment equaled the fair valuation, plus 1% per month during the use of the equipment, no more rental was to be paid and title thereto was to vest in the Government. The defendant's rental schedule for equipment owned by plaintiffs allowed plaintiffs reimbursement for depreciation, taxes, insurance, storage, and interest on the investment but excluded profit. Under the contract, rental paid by plaintiffs for equipment owned by third parties was allowed as a cost to them but such rental was at a rate which included a profit to the third party owner. Although equipment rented from these third parties was subject to acquisition by defendant, there was no requirement to account to defendant for rebates received. The cost to the defendant for the rental of third party equipment would thus be greater than the costs to it for the use of plaintiffs' equipment.
In support of its plea in fraud, defendant alleges that in the performance of the contract plaintiffs caused to be entered on the rental rolls 130 automobiles, trucks, and cars in the name of William R. Jones. A rental agreement executed in the names of Jones and plaintiffs was approved by defendant's agent. A separate schedule for each of the cars' rental signed by Jones and a Government representative was attached to the agreement. The rentals on these schedules were third party rentals and consequently larger in amount than they would have been had the equipment been owned by plaintiffs. Defendant alleges that this equipment was at all times the actual property of “plaintiffs Grannis and/or Sloan" whereas plaintiffs represented that the vehicles were