463 Opinion of the Court The total amounts due plaintiffs to date of judgment, January 3, 1950, are as follows: Tribe Coquille------ $7, 375, 177. 44 4,707, 084. 00 2,584, 845. 12 2,717, 411. 71 From the above amounts determined to be due plaintiffs, the defendant is entitled to offset certain sums set forth in the findings and mentioned above, gratuitously expended by the Government for the benefit of plaintiff tribes. The deduction of these amounts from the amounts set forth above due plaintiffs, leaves the following amounts for which judgment will be entered in favor of plaintiffs: Tribe Coquille--- Too-too-to-ney $7, 008, 276. 19 2, 440, 400. 78 In addition, plaintiffs are entitled to an additional amount as part of just compensation measured by interest at the rate of 4% per annum from the date of judgment, January 3, 1950, to the date of payment, on the following principal sums: HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. Syllabus 115 C. Cls. CLIMATIC RAINWEAR COMPANY, INC. v. [No. 47888. Decided February 6, 1950] On the Proofs Government contract; settlement agreement under Contract Settlement Act; liquidated damages.-In a suit to recover a balance alleged to be due under a wartime contract for raincoats and ponchos for the Army where it is asserted by the defendant that the plaintiff released its claim for the sum admittedly due under one contract (No. 14952) and where, further, it is asserted by the defendant that it was entitled to withhold and set off against that amount an equivalent sum on account of excess costs and liquidated damages assessed against plaintiff under a previous contract (No. 20481); it is held that plaintiff is entitled to recover. United States 74 Same; exception of completed items in settlement agreement.-Defendant's defense of release, based upon the settlement agreement entered into by the parties under Contract No. 14952, on April 3, 1946, pursuant to the Contract Settlement Act of 1944, is overruled, where it is shown by the terms of the settlement agreement that exception was specifically made of all rights of the contractor to payment for completed items, if any, delivered and accepted pursuant to the contract, for which payment had not been previously made. Same; instructions in termination notice to exclude completed articles. Under the termination notice of August 14, 1945 (Contract No. 14952), instructions were specifically given by defendant to the contractor not to include in the settlement agreement claims for finished articles, payment for which had been sought only by way of invoices in accordance with the provisions of the termination agreement. United States 74 Same; no payment by amounts withheld as liquidated damages.-The Government's contention that plaintiff has been "previously paid" for completed items delivered and accepted pursuant to the contract, under the terms of the settlement agreement, by reason of the "set-off" made by the Comptroller General in withholding payments for completed items due under Contract No. 14952 for excess costs and liquidated damages alleged to be due the Government as a result of the cancellation of Contract No. 20481 is not sustained. 520 Syllabus Same; disputed claim for damages not an account stated.—A disputed claim for damages, for breach of contract, cannot be considered an account stated and such claim is not subject to the control and decision of the accounting officers of the United States. See Standard Dredging Co. v. United States, 71 C. Cls. 218, 240. Account Stated United States 1 112 Same. The power to withhold accords the Government advantage enough in disputes with those with whom it deals without converting the weapon into a device for expropriation. See Standard Surety & Casualty Company v. United States, 154 F. (2d) 335, 337. United States 73 (16) Same; assessment of liquidated damages unauthorized without findings of fact.-Where it is shown that plaintiff was denied both the determination to which it was entitled by the authorized contracting officer and its right of appeal to the Secretary of War or his authorized representative, under the provisions of the contract; it is held that the assessment of liquidated damages under Contract No. 20481 was unauthorized and plaintiff is entitled to recover. Damages 85 Same; duty of contracting officer designated in the contract to make independent findings of fact.-Under the terms of the contract (Article 26) it was the duty of the contracting officer named in the contract not only to give his personal and independent consideration to the termination of plaintiff's right to deliver but also to make findings of fact concerning the circumstances and extent of the claimed delay, upon timely written notice from plaintiff of the reasons therefor. The discharge of these functions could not be delegated nor assumed by any one not authorized by the terms fo the contract. United States 73 (9) Same; letter of termination did not meet requirements of contract provisions.-Where it is shown that the letter of termination, November 20, 1942, while the Government was holding in abeyance plaintiff's claim pending submission of additional information, was signed by the authorized contracting officer without having had his personal, independent consideration; and where it is further shown that the letter does not recite any findings of fact, as to the causes of plaintiff's delay, and the extent and foreseeability thereof; it is held that the letter of termination did not meet the requirements of Article 26 of Contract No. 20481. United States 73 (24) Syllabus 115 C. Cls. Same; appeal not required from invalid decision.-The letter of November 20, 1942, was not, for the reasons stated, such a determination or findings of fact from which an appeal was required within 30 days under the provisions of the contract. United States 73 (15) Same; invalidity of findings under provisions of First War Powers Act. Where under date of January 15, 1943, a letter was sent to the plaintiff purporting to contain findings of fact under Article 26 of the contract; and where it is found that this letter was signed by an Army officer not designated in the contract as the contracting officer who admitted, later, that he had given no independent consideration to the matter but had relied on a legal advisor; and where it is further found that the decision announced in the purported findings on which liquidated damages were assessed was in violation of the provisions of the Second War Powers Act and the regulations issued thereunder; it is held that the purported findings were of no effect. United States 73 (9) Same; timely appeal after letter of April 11, 1945.—Where, following a suggestion of the defendant's representative, plaintiff on January 25, 1943, filed a written request for reconsideration, which was acknowledged on February 24, 1943, in a letter stating that the "request for reconsideration" was under consideration; and where later plaintiff received an offer to enter into a supplemental agreement, which offer, after due consideration, was rejected; and where, after an interchange of letters in which plaintiff requested a disposition of the question, by letter of April 11, 1945, plaintiff was held liable for liquidated damages under Article 26 of Contract No. 20481; plaintiff on May 9, 1945, filed a timely appeal. United States 73 (15) Same; decision on appeal constituted denial of contractor's rights.After a hearing, the Board of Contract Appeals, on September 28, 1945, dismissed the appeal as having been filed out of time. This decision, on plaintiff's motion for reconsideration, was affirmed by the Secretary of War on October 30, 1945, on recommendation of the Board of Contract Appeals. The decision of the Board of Contract Appeals, after a hearing on the merits, in which it refused to entertain jurisdiction on the ground that the appeal was untimely because not taken within 30 days of the termination letter of November 20, 1942, constituted a denial of plaintiff's rights under Article 26 of its contract. See Livingston v. United States, 101 C. Cls. 625, 639; Thomas Earle ¿ Sons, Inc. v. United States, 100 C. Cls. 494. United States 73 (15) 520 Reporter's Statement of the Case Same; counterclaim not sustained.-Defendant, having failed to comply with the conditions to its right for excess costs and liquidated damages, is not entitled to relief on its counterclaim. Edgar Tobin v. United States, 103 C. Cls. 480, 492, cited. United States 75 Same; delay in delivery due to unforeseeable causes; recovery for liquidated damages wrongfully assessed.-Upon the evidence, it is held that the delay in deliveries under Contract No. 20481 was due to unforeseeable causes beyond the control and without the fault of plaintiff. Under these circumstances and the decisions of the Court of Claims, liquidated damages should not have been assessed against plaintiff. Judgment for the plaintiff is given for the stipulated amount. The Reporter's statement of the case: Mr. Paul A. Porter and Mr. Norman Diamond for the plaintiff. Messrs. Arnold, Fortas & Porter were on the brief. Mr. Kendall M. Barnes, 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 which was organized under the laws of the State of New York in about June 1942. 2. On or about April 16, 1945, plaintiff entered into a contract with defendant, acting through the Philadelphia Quartermaster Depot of the War Department, which contract bore the number W-36-030-qm-14952 (hereinafter referred to for convenience as No. 14952) and provided for the manufacture of raincoats by plaintiff. 3. Invoices covering deliveries made under that contract were paid by defendant in due course, except to the extent of $53,964.35, which amount was withheld by defendant on the ground that such action was necessary to protect the interests of the Government arising from plaintiff's default under an earlier contract with the defendant. The withholding was accomplished pursuant to a no-payment voucher, dated June 9, 1945, issued under contract No. 14952 in the amount of $33,009, and a partial payment voucher, dated June 23, 1945, issued thereunder in the amount of $20,955.35, totaling $53,964.35, being for eight shipments comprising |