154 Ct. Cl.

CIVILIAN PAY-Continued

SUSPENSION WITHOUT PAY-Continued

Recovery-measure of.

Where a civilian Government employee who was improperly sus-
pended from her position without pay is later reinstated and sues to
recover the pay she would have earned had she been permitted to
work, and where it appears that she would not have been able to
do part of the work done during her absence, she is only entitled to
recover what she would probably have earned based on the average
number of hours per day actually worked by her during the six-
month period prior to her suspension. Zaverl, 448.
United States

39 (8)

CIVILIAN PAY CLAIMS. See Court of Claims.

CIVIL SERVICE COMMISSION. See Civilian Pay.
CLASSIFICATION ACT. See Civilian Pay.

CODEFENDANTS. See Judgments.

COMMON CARRIERS.

See Carriers.

COMMUNITY INCOME. See Income Tax.
COMMUNITY PROPERTY. See Income Tax.
COMPUTATION OF PAY. See Military Pay.

CONDUCT OF PARTIES. See Contracts.

CONTRACTS.

AUTHORITY TO CONTRACT.

Contract provision in violation of regulation.
Cargo (maritime) brokerage fee contract.

Where a contract is, by valid regulation of an executive department
or agency, made subject to the approval of the agency or one of its
divisions, that approval is a condition precedent to the formation of
a binding contract. Thus, a contract between the Indian Supply
Mission and a cargo broker subject to the approval of the National
Shipping Authority, which contract contained a provision for a
brokerage fee in excess of the maximum fee established by a regu-
lation of the NSA and not approved by the NSA, is to that extent
unenforceable. D. C. Andrews & Co., 460.

United States 64

BIDDERS.

Estimated quantities.

Substantial deviation from estimates.

Where a contract based on estimated quantities does not contain the
qualification "more or less", substantial deviations from the esti-
mate are permissible without imposing liability on the party who
made the estimates on which the other party bid. Brawley v.
United States, 96 U.S. 168. Rupley Bros. v. United States, 124 Ct.
Cl. 59, distinguished. Russell & Pugh Lumber Co., 122.
Contracts 148

154 Ct. Cl.

CONTRACTS-Continued

BIDDERS-Continued

Information to bidders.

Duty of Government to disclose.

Where all Government data bearing on the dewatering problem of
a project was available to the plaintiff-contractor, and the contract
required the contractor to carefully investigate the site to deter-
mine the problems involved in the contract work and the nature of
the work, and also provided that any failure of the contractor to
acquaint itself with all available information would not relieve it
from responsibility for properly estimating the difficulty or cost of
properly performing the work, plaintiff cannot hold the Government
liable for its failure to adopt a successful plan of dewatering simply
because the Government did not inform plaintiff of the conclusions
it drew from the data made available to the plaintiff. Ivy H. Smith
Co., 74.

United States 70 (30)

BREACH.

Prevention or hindrance of performance by other party.

Where the Government unnecessarily delays its inspection of plain-
tiff's facilities and thus delays the plaintiff in the performance of
its contract and causes plaintiff to incur extra expense (rent, etc.,
on idle facilities), the defendant has breached its obligation not to
hinder or impede the plaintiff in the performance of its contract and
is liable for damages representing the increased costs incurred.
Snyder-Lynch Motors, 476.

Where the Government withholds amounts representing reimburse-
ment payments for plaintiff's contract costs because it does not ap-
pear that plaintiff has actually made the payments for which it
seeks reimbursement, and where plaintiff's books were in such a
confused condition that it was difficult to determine plaintiff's cur-
rent status at any time, the withholding action was not arbitrary
and capricious under the contract or under Government Manual
of reimbursement policies. Snyder-Lynch Motors, 476.
United States

73 (22)

Where the Government knew, because of prior experience on another
contract, that the cost of the parts required by plaintiff in the con-
tract it was to perform for the Government would substantially
exceed an estimate suggested to the plaintiff by a Government con-
tract negotiator, the Government was under an obligation to make
this information available to the plaintiff, and its withholding of
the information so that plaintiff underestimated the cost of perform-
ing the contract amounted to a breach of the Government's obligation
not to do anything to hinder or impede plaintiff's performance. Rag-
onese v. United States, 128 Ct. Cl. 156; Bateson-Stolte, Inc. v. United
States, 145 Ct. Cl. 387. Snyder-Lynch Motors, 476.

United States 73 (22)

154 Ct. Cl.

CONTRACTS-Continued

CHANGED CONDITIONS.

What constitutes.

Where the conditions encountered at the jobsite by the contractor,
and relied on as representing "changed conditions" under the
changed conditions article of the contract, were conditions which
should have been anticipated from the data made available by the
Government to the contractor when it was bidding on the job, the
contractor has not encountered changed conditions which would
entitle it to an equitable adjustment in the contract price. Ivy H.
Smith Co., 74.

United States 70 (27)

DAMAGES.

Extra costs of work.

Actual rather than estimated costs.

In measuring damages to which a contractor is entitled because of
extra costs incurred in performing work not called for by the con-
tract, proven actual costs will be used rather than the hypothetical
estimate of costs contained in the contractor's bid estimate. Great
Lakes Dredge and Dock Co. v. United States, 119 Ct. Cl. 504, 558,
cert. denied 342 U.S. 953. Lilley-Ames Co., 544.
Contracts 232 (7)

Necessity for showing.

In a breach of contract claim where it appears that the Government
inspector took improper actions or improperly failed to act, plaintiff
must show that it incurred excess costs as a result of such improper
behaviour, otherwise it is not entitled to recover. Snyder-Lynch
Motors, 476.
United States

74 (10)

Liquidated damages.

Interpretation of provision.

Liquidated damage provisions of a contract should be strictly con-
strued inasmuch as they involve the imposition of a penalty. Tobin
v. United States, 103 Ct. Cl. 480, 492. Ivy H. Smith Co., 74.
Damages 76

DISPUTES.

Administrative decision.

Finality of on question of fact.

Where a dispute concerning a question of fact has been decided
adversely to the contractor by the head of the contracting depart-
ment or agency acting through his board of contract appeals, that
decision is final unless it can be shown to be arbitrary, capricious
or unsupported by substantial evidence. Volentine and Littleton v.
United States, 136 Ct. Cl. 638. Ivy H. Smith Co., 74.

United States 73 (14)

154 Ct. Cl.

CONTRACTS-Continued

DISPUTES-Continued

Appeal to head of department.

Right of assignee of contractor to intervene in appeal.

The assignee of a Government contractor does not have a right to
intervene in a proceeding on a dispute between the contractor and
the Government before the Armed Services Board of Contract Ap-
peals, inasmuch as the dispute is between the contractor and the
Government under the contract on a question of fact. The rights
of the assignee to receive money under the contract would not be
properly before the board, although the assignee could attack the
holding of the board on the dispute between the contractor and the
Government in the assignee's suit in this court. Wyoming National
Bank, 590.

United States 73 (9)

INTERPRETATION.

Ambiguity.

Where a contract is not susceptible of an intelligent meaning other
than the one intended by the drafting party, the court will not hold
that the apparent ambiguity must be construed against the party
drafing the instrument. Russell & Pugh Lumber Co., 122.

Where a contract specification contains an ambiguity, that am-
biguity will be construed against the drafter of the instrument and
in favor of the other party. Lilley-Ames Co., 544.

Where the contract requires Government approval of a particular
method of operation such as the dewatering method to be employed
in a flood control project, and also provides that approval of the
contractor's plan will not relieve the contractor of the responsi-
bility for the adequacy of the method used or obligate the Govern-
ment for loss or damage resulting from a failure of the plan, the
contractor cannot hold the Government liable for approving a plan
which was unsuccessful, particularly where the contractor had
persuaded a reluctant official of the Government to grant his ap-
proval of the plan. Ivy H. Smith Co., 74.

United States ~ 70 (25)

Conduct of parties as aid to.

Where by its conduct the plaintiff accepts the defendant's interpre-
tation of their contract, any ambiguity which might otherwise
appear on the face of the contract is of no importance. Crown Coat
Front Co., 613.

Contracts 170(1)

154 Ct. Cl.

CONTRACTS-Continued

INTERPRETATION-Continued

Reasonable interpretation.

Where a contract for the manufacture of canteen covers for the
Government calls for a mildew resistance test of the material and
also provides that the material shall contain a mildew-inhibitor
element, the defendant was justified in making a test to determine
whether or not the material used contained the mildew-inhibitor
element. It would have been meaningless for the contract to re-
quire a specific chemical element in the material and at the same
time preclude the making of tests to determine the presence of
such element. Crown Coat Front Co., 613.
United States

70(14)

MERCHANT SHIP SALES ACT.

Credit for charter hire for use.

Redelivery program.

Section 9 (b) (6) of the Merchant Ship Sales Act of 1946, 60 Stat.
41, 50 U.S.C. App. § 1742, provides that the United States shall
have a credit for all amounts paid by it to the applicant for the
purchase of a vessel as charter hire for the use of the vessel under
charter party made prior to March 8, 1946, but does not require
that the Government be given a credit for any settlement payments
made under the Redelivery Program even where the amount claimed
as a credit was supposed to represent charter hire for 15 days pre-
sumably required to restore the vessel. The 15 days was only an
approximation and in view of the nature of the compromise em-
bodied in the redelivery agreement, no definable part of the money
paid by the Government to the plaintiff under it can be said to
have been paid as charter hire for use within the meaning of
section 9(b) (6). Socony-Mobil Oil Co. v. United States, 150 Ct.
Cl. 283. Gulf Oil Corp., 652.

United States 58

MISTAKE.

Unilaterial mistake.

Where one party to a contract has mistakenly interpreted its purport,
and the mistake is not one which has been caused or induced in-
tentionally or knowingly by the other party and is not shared by
such other party, and where the mistake was avoidable by the
use of reasonable care, the court will not give judicial relief. Re-
statement, Contracts, § 503 (1932). Russell & Pugh Lumber Co., 122.
Contracts 93(1)

Unreasonable mistake.

Where an inconsistency is obviously the result of an oversight on
the part of the drafting party and is one which could have been
readily cleared up by a simple request for clarification by the other
party, the mistake, if any, on the part of such other party based
on the inconsistency, is an unreasonable one not induced by the
drafting party. Russell & Pugh Lumber Co., 122.
Contracts

93(1)