399 Findings of Fact (b) Paragraph 14 of the specifications follows: 14. Suspension of work. The Government may at any time suspend the whole or any portion of the work under this contract but this right to suspend the work shall not be construed as denying the contractor actual, reasonable, and necessary expenses due to delays, caused by such suspension, it being understood that expenses will not be allowed for such suspensions when ordered by the Government on account of weather conditions or on account of the failure of Congress to make the necessary appropriations for expenditures under this contract. (c) Paragraph 22 of the specifications follows: 22. Commencement, prosecution, and completion of work. The contractor shall begin work within twenty (20) calendar days after date of receipt of notice to proceed and shall complete all of the work within the following number of calendar days from the date of receipt of such notice: Schedule No. 1, three hundred and forty (340) days; and Schedule No. 2, four hundred (400) days: Provided, That, if award of contract for the work under Schedule No. 2 is made to a contractor other than the contractor awarded the contract for work under Schedule No. 1, notice to proceed for the work under Schedule No. 2 will be issued at the discretion of the contracting officer any time within two hundred and eighty (280) calendar days after date of award of the contract, and the contractor under Schedule No. 2 shall complete all work thereunder within one hundred and twenty (120) calendar days from the date of receipt by him of such notice. Delays due to the operation of the national priorities system becoming effective subsequent to the date of the bid will be considered to be delays due to unforeseeable causes and beyond the control of the contractor. All required priorities for the performance of the work under these specifications shall be obtained by the contractor. The capacity of the contractor's construction plant, sequence of operations, method of operation, and the forces employed shall, at all times during the continuance of the contract, be subject to the approval of the contracting officer and shall be such as to insure the completion of the work within the specified period of time. (d) Paragraph 24 of the specifications follows: 24. Construction program. Within thirty (30) calendar days after date of receipt of notice to proceed, the Syllabus 145 C. Cls. contractor shall furnish the contracting officer a complete construction program showing in detail his proposed program of operations, which construction program shall provide for orderly performance of the work. The construction program shall be in such form and in such detail as to properly show the sequence of operations and the period of time required for completion of the work under each item of each schedule. Revised construction programs shall be submitted at intervals of not more than 6 months, and, in addition thereto, the contractor shall immediately advise the contracting officer of any proposed changes in his construction program. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States fourteen thousand five hundred forty-seven dollars and forty-eight cents ($14,547.48). SOCIETE COTONNIERE DU TONKIN [No. 388-55. Decided April 8, 1959. Plaintiff's motion for rehearing overruled October 7, 1959] * ON THE PROOFS Contract; eminent domain; taking.-In an action by plaintiff, a French corporation engaged in the manufacture of cotton, and the purchaser of cotton through the United States Foreign Operations Administration, to recover either damages for alleged breach of contract or just compensation for an alleged taking of its cotton, it is held (1) that the evidence failed to establish that the plaintiff ever accepted the Government's offer to purchase plaintiff's cotton or to pay for the shipment and storage of the cotton to a safe place from which plaintiff would sell the cotton for its own account, and there was therefore lacking the element of mutual assent necessary to the formation of a contract; and (2) the evidence was insufficient to show that plaintiff's property was interfered with in such a way as to amount to a taking and, in addition, FOA had no *Plaintiff's petition for writ of certiorari denied by the Supreme Court February 23, 1960, 361 U.S. 965. 426 Opinion of the Court authority to requisition plaintiff's property or to require that the Government of Vietnam do so. United States 74(11) Petition dismissed. Contract; formation of contracts; assent; manifestation of mutual assent. The intention of the parties to form a contract cannot be determined from their undisclosed intentions, and where the evidence disclosed that the plaintiff treated the Government's offer to purchase the cotton as a basis for further negotiations leading to more favorable terms for plaintiff, there is no basis for concluding that plaintiff intended to accept the Government's offer when the negotiations failed and the Government withdrew its offer. Mutual assent is an essential prerequisite to the formation of a contract, and whether or not there has been mutual assent must be determined objectively. United States → 64 Eminent domain; taking-what constitutes; interference with use.It is not necessary to prove a physical taking of property but only such substantial interference with the owner's use as to amount to a taking. Eminent domain; taking; authority of Government agent. In order to establish a right to just compensation it must appear that the Government official or office alleged to have taken the property had authority to do so. Mr. Richard J. Cronan for the plaintiff. Messrs. Francis Currie, Lawrence M. Powers and Burns, Currie, Maloney & Rice were on the brief. Mr. Kendall M. Barnes, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. JONES, Chief Judge, delivered the opinion of the court: This action involves certain bales of cotton presently stored in warehouses in Saigon, Republic of Vietnam. The plaintiff seeks recovery from the United States on alternative grounds: (1) the Government breached a contract with plaintiff for the purchase of the cotton, or (2) the plaintiff was so dealt with by the Government that a requisitioning of the cotton occurred, for which the Government must pay just compensation. The plaintiff corporation was formerly engaged in the manufacture of cotton in Vietnam. Its manufacturing ac Opinion of the Court 145 C. Cls. tivities were conducted in Haiphong and Nam Dinh, which, prior to the Communist invasion of that area, were important industrial centers located in northern Vietnam. Headquarters for the plaintiff's operations were located in southern Vietnam, in the capital city of Saigon. The genesis of this dispute lies in the purchase by Societe Cotonniere of cotton under this Government's Foreign Operations Administration program. A brief explanation of the program, its purposes and mechanics, is required in order to gain a clear understanding of this litigation. On April 3, 1948, Congress approved an act creating the Economic Cooperation Administration "for the purpose of assisting certain foreign countries to achieve economic stability and independence through the promotion of increased agricultural and industrial productivity, monetary stability, and the growth of international trade", 62 Stat. 137; Cong. Dir., 81st Cong., 2d sess., Jan. 1950, p. 670. Under this program, the Economic Cooperation Administration had established by 1951 a Mission in Saigon for the administration of aid to Cambodia, Laos, and Vietnam. During the year we are to be concerned with, 1954, the functions formerly exercised by the Economic Cooperation Administration were being conducted by the Foreign Operations Administration (FOA). The FOA program of economic aid was designed in part to assist in overcoming obstacles to foreign trade arising from the beneficiary countries' lack of credits convertible into dollars. For an example of how this objective was realized, consider the manner in which the cotton in suit was acquired by plaintiff, a Vietnamese manufacturer: The cotton was purchased from American suppliers. These suppliers were paid in dollars which came from congressional foreign aid appropriations. At all times the dollars remained in the United States. The plaintiff paid for the cotton in the local currency-piastres-at the prevailing rate of exchange. The piastres never left Vietnam. They were received by the Government of Vietnam as "counterpart funds" which were used to finance public works projects initiated by the Vietnamese Government and approved by FOA. 426 Opinion of the Court The transaction was carried out through normal commercial and banking channels. FOA's participation in the transaction was limited to the extent of assuring (1) competitive bidding by American suppliers; (2) dollar payments to the American banks which handled the sight drafts, invoices and bills of lading; and (3) transfer of the piastres paid by plaintiff into counterpart funds. Such was the extent of FOA's authority. It neither bought the cotton from the suppliers nor sold it to the purchaser. The economic aid agreement between the United States and Vietnam contained a provision for end-use checks by FOA of the commodities provided under the program. The end-use check was for the purpose of assuring that congressional appropriations were being used for the purposes intended; i.e., to verify that the property supplied under the aid program was being used to promote the economy of the beneficiary country. Where an end-use violation was discovered, the United States could only demand a refund by the beneficiary government to the United States of the dollar value of the commodities misused. The Societe Cotonniere began purchasing cotton under this program soon after the Mission was established in Saigon. The cotton we are concerned with consists of 4,351 bales, which were part of 6,450 bales purchased in January 1954. Deliveries were made shortly after the purchase. In May 1954, plaintiff also purchased through FOA some 3,250 additional bales of cotton. Events that followed were shaped by the nationalist upheaval against French authority which began in northern Vietnam in 1946, and reached a climax in July 1954, with the Viet Minh-Communist occupation of northern Vietnam. About the middle of June 1954, the plaintiff's general manager was notified by the French military commander that Nam Dinh, where plaintiff's mill was located, was soon to be evacuated by the French forces. Acting on this information the plaintiff decided to request the Mission to cancel the contracts for cotton purchased in May and not yet delivered. The request for cancellation was made on June 18, 1954. On the following day, June 19, it was agreed at a general meeting of the corporation, held in Saigon, that Nam Dinh was |