sioner of Internal Revenue issued to Manufac- turers a certificate for overassessment for that year and defendant conceded that it was not en- titled to recover on its first counterclaim. Id. United States 130.
XLVIII. The claim set forth in defendant's pleading en- titled “set-off” is founded upon an alleged over- payment by defendant to Manufacturers under a Navy contract assigned to Manufacturers. In proceedings in the United States District Court in which Manufacturers was adjudicated a bank- rupt (192 F. 2d 327), the claim herein was dis- allowed by the referee, whose order was affirmed by the District Court and by the Court of Appeals. It is held that under these decisions the instant claim of defendant is res adjudicata. Plaintiff's motion for summary judgment on defendant's set-off is granted.
XLIX. In defendant's second, third, fourth and fifth counterclaims, defendant sets up the contention that in the transactions therein involved, Manu- facturers was the successor in interest to the contractor rather than the assignee. No such allegation is contained in the pleading entitled set-off. Having had the opportunity to establish the theory of successor in interest and having failed to do so in the bankruptcy proceeding, defendant is estopped from asserting such a claim with respect to the same alleged over- payments to Manufacturers involved in the set-off. Id.
L. In the second, third, fourth and fifth counterclaims, in each of which the defendant alleges that Manufacturers was not the assignee of the contractors involved but rather was the suc- cessor in interest thereto, plaintiff's motions for summary judgments are denied. The counterclaims are referred to a commissioner for such further proceedings as may be appro priate and consistent with the opinion of the court. Id.
LI. Plaintiff sues for a real estate commission based on a sale by the Library of Congress Trust Fund Board of the premises located at 1600 Eye Street, N. W., Washington, D. C., which premises had been donated to the Board. The Government concedes liability for the payment of a com- mission and has, in fact, paid a commission to one of the contending parties, with an indemni- fying agreement. In accordance with the Board's resolution of October 10, 1946, and the Board's action pursuant thereto, in paying a commission of $19,000 to the Munsey Trust Company upon condition that the Trust Com- pany indemnify the Board against any claims for a commission asserted by others, which condition was accepted by the Trust Company; it is held that plaintiff is entitled to recover from the defendant the sum of $9,500, and the defendant is entitled to recover from the third party defendant, the Munsey Trust Company, the sum of $9,500, in accordance with the indem- nity agreement. Story, 265.
LII. Under the decisions, an authorized real estate agent who is the procuring cause of the trans- action which he was authorized to negotiate is entitled to his commission irrespective of the fact that the principal himself, or through others, may have intervened and actually com- pleted the final act of the negotiation. Id. Brokers 55 (1), 56 (1).
LIII. In the instant case, the plaintiff was the first to be employed as agent in connection with the prospective sale of the property in question and was the first to bring the property to the atten- tion of the ultimate purchaser. The Munsey Trust was the first to submit to the Library Board a definite offer from the ultimate pur- chaser. The sale was finally made by direct negotiation. Id.
LIV. On all the evidence, the court reaches the con- clusion that both claimants contributed mate-
rially to the final result and together were the procuring cause of the sale and each was entitled to one-half the commission. Id.
LV. In its motion for judgment on the pleadings, defendant's first contention that plaintiff failed to make a timely appeal to the Secretary of the Navy, head of the department, from the determination of the contracting officer denying plaintiff's request for an extension of time and that plaintiff is thereby estopped from bringing suit in the Court of Claims, is not sustained; where it is shown that there is a genuine issue as to the timeliness of plaintiff's appeal to the Secretary of the Navy. Defendant's motion is denied so far as it rests upon this contention but without prejudice to renewal of the conten- tion if it later appears appropriate and con- sistent with subsequent development of the action. Cleveland Wrecking Co., 372.
Federal Civil Procedure 1061.
LVI. In its motion for judgment on the pleadings defendant's second contention that plaintiff has failed to allege fraud or conscious wrongdoing on the part of either the contracting officer or the Secretary of the Navy and that under the rule enunciated in United States v. Wunderlich, 342 U. S. 98, the decision of the contracting officer is final and binding upon the plaintiff in the absence of such fraud or conscious wrongdoing is not sus- tained, where it is alleged in the pleadings that plaintiff's appeal was never passed on by the Secretary as head of the department. Id. Federal Civil Procedure 1061.
LVII. In its amended petition plaintiff alleges that it not only made timely appeal to the head of the department, but that the Secretary referred the matter to the Navy Board of Contract Ap- peals for hearing and while the appeal was pend- ing, and before decision, the Board granted a motion to dismiss the appeal on the ground that the appeal had not been timely filed. Under plaintiff's allegation, there was no decision of
the department head upon which the fraud limitation of the Wunderlich decision would apply. Id.
United States 73 (15).
LVIII. Defendant's motion for judgment on the plead- ings having been denied, the case is referred to a commissioner of the court for such further proceedings as may be required. Id.
Federal Civil Procedure 1053.
LIX. In the instant case plaintiff's claims arise out of contracts with the Government for the construc- tion of ships calling for reimbursement to plain- tiffs for the cost of construction and for the pay- ment to plaintiffs of fixed fees. These costs and these fees have been paid but plaintiffs in their second cause of action claim that, in addition, they are entitled to a one percent discount which they received for paying cash for certain mate- rial. Defendant's motion to dismiss the second cause of action is granted. It is held that plain- tiff is not entitled to recover on the claims set out in the second cause of action. Puget Sound, 376.
LX. Under the decision in United States v. Moorman, 338 U. S. 457, the decision of the Chief of the Bureau of Ships, denying the claims in suit, is final under the disputes article of the contracts involved, provided that he had jurisdiction of the matter, and under the several provisions of the contracts it is held that the Chief of the Bu- reau of Ships did have jurisdiction. Id.
LXI. In the organization of the Navy Department the Bureau of Ships has charge of the construction of ships and the Bureau of Supplies and Ac- counts has charge of finances, but the contract- ing officer on the contracts in suit was the Chief of the Bureau of Ships, whose decisions on the claims involved were final under the provisions of the contract, which does not limit the finality of the contracting officer's decision to questions of fact. Id.
LXII. In their third cause of action plaintiffs claim that they are entitled to an increase in their fee because of increases in labor and material costs over the costs expected. In a contract calling for payment of costs plus a fixed fee, an increase in fee would be contrary to the pro- visions of the Act of June 28, 1940, 54 Stat. 676, 677, which prohibits the making of a contract for cost plus a percentage of the cost. The con- tracts in suit permit an increase in the fee only where changes are made in the contract, but no changes were made in the contracts in suit for which compensation has not been paid. Defend- ant's motion to strike plaintiffs' third cause of action is granted and the cause of action is dismissed. Id.
LXIII. Where the plaintiff, as the construction contractor on a Government project, computed its bid for fine grading a fill to be placed by another con- tractor on the site of the project in anticipation that sand would be used as the fill material; and where the fill that was actually placed consisted of a high content limestone material which be- came quite hard when it dried, resulting in costs to plaintiff in excess of the costs anticipated by plaintiff for fine grading a sand fill; and where it is shown by the evidence that the use as a fill of the limestone material, known as oolite, was within the specifications of the contract; it is held that plaintiff is not entitled to recover for the excess costs thus incurred. Chalker and Lund, 381.
LXIV. Where the invitation for bids on a Government con- struction project notified bidders that they would be expected to visit the site of the project and acquaint themselves with all available informa- tion concerning the nature of materials to be excavated from structure excavations and with the local conditions bearing on other phases of the work; and where plaintiff's superintend- ent did visit the site and with the assistance of the defendant's area engineer located the area where the buildings were to be constructed and
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