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INDEX DIGEST

ACCRUAL ACCOUNTANCY.

See Taxes XIX, XX, XXI, XXII, XXIII.
ADMINISTRATIVE DECISION.

See Contracts XCII, XCIII, XCIV.
ADMINISTRATIVE PROCEDURE.

See Contracts LXX.
ALASKA RAILROAD EMPLOYEE.

See Overtime Pay I, II, III, IV.
ANTIASSIGNMENT STATUTE.

See Contracts LX, LXI, LXII, LXIII, LXIV, LXV, LXVI.
APPEAL.

See Contracts CXI, CXII, CXIII, CXIV, CXV, CXVI, CXVII,

CXVIII, CXIX, CXX.
ARMY POST EXCHANGE.

See Suit For Salary X, XI, XII.
ASSIGNMENT.

See Patents, I, II, III, IV, V, VI, VII, VIII, IX, X.
BATTLESHIP "OREGON.

See Requisition of Vessel I, II, III, IV, V, VI.
BREACH OF CONTRACT.

See Contracts I, II, III, IV, V, LXXXVII, LXXXVIII, LXXXIX,

XC, XCI, XCII, XCIII, XCIV.
BURDEN OF PROOF.

See Lucas Act XXI, XXII, XXIII.
CANCELLATION.

See Contracts CVI, CVII, CVIII, CIX, CX.
CAPITAL GAINS.

See Taxes VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV.
CEILING PRICE.

See Contracts XXVII, XXVIII, XXIX.
CIVIL SERVICE RETIREMENT.

I. An officer on the retired list of the Army, receiving

military retired pay based upon 30 years of
military service, under the applicable statutes, is
also entitled to retirement pay under the Civil
Service Retirement Act for the additional years
he served in the civilian establishment and the
additional years as a soldier not counted in the
computation of his military retired pay. Prior
opinion and judgment modified. See 123 C.

Cls. 225; 125 C. Cls. 67. Prentiss, 521.
United States from 39 (1).

126 C. Cis.

CLAIM OF RIGHT.

See Taxes XIX, XX, XXI, XXII, XXIII.
COAST GUARD OFFICER.

See Pay and Allowances IV, V, VI,
COMPTROLLER GENERAL, THE.

See Overtime Pay III, IV; Pay and Allowances IV, V, VI,
CONDITIONAL ACCEPTANCE.

See Contracts XXX, XXXI, XXXII.
CONTRACT SETTLEMENT ACT.

See Contracts XXXIII, XXXIV, XXXV, XXXVI, XXXVII,

XXXVIII, XXXIX, XL, XLI, XLII.
CONTRACTING OFFICER.

See Contracts LXXIII, LXXIV, LXXV, LXXVI, LXXVII,

LXXVIII, LXXIX, LXXX, LXXXI, LXXXVII, LXXXVIII,
LXXXIX, XC, XCI, XCII, XCIII, XCIV; Lucas Act

XII.
CONTRACTS.

I. In a suit to recover damages for the alleged breach

of a contract by the Government, where it is
shown by the evidence adduced that the Govern-
ment was without fault in the failure to deliver
the materials on time, as agreed, it is held that

the plaintiff is not entitled to recover. Barling, 34.
United States Or 74
II. Plaintiff on January 28, 1946, entered into a con-

tract with the Bureau of Reclamation to perform
the earthwork and erect reinforced concrete struc-
tures at the Riverton project in Wyoming.
Under the contract specifications the Govern-
ment agreed to furnish cement, reinforcing steel
and certain other materials for use in the contract
work. Failure to secure steel and cement caused
delay in performance and an extension of time
was granted. Plaintiff claims in the instant suit
that the failure of defendant to furnish the mate
rials as needed was a breach of contract or of
warranty, or both, for which plaintiff is entitled
to recover. The defendant contends that it
did not breach the contract for the reason that
it did not, either in the contract or by warranty,
agree to furnish the materials at any particular
time, and that it was not negligent in delivery
of materials to plaintiff. Defendant's contention

is sustained. Id.
United States or 73 (6)

126 C. Cls.

CONTRACTS—Continued

III. The case having been heard by the United States

Court of Claims on the issue of liability alone,
it is held on all the facts and circumstances as
disclosed by the evidence that the defendant used
due diligence to obtain both the steel and the
cement, as required, and in the circumstances
then existing in 1946 the defendant's failure to
furnish the matcrials did not constitute a breach

of the contract. Id.
United States On 74

IV. Plaintiff's contention is not sustained that defend-

ant warranted that it would furnish steel and
cement as needed, where it is shown that plain-
tiff's contention is based on statements made by
a representative of the Government who was not

the contracting officer. Id.
United States Can 60

V. A warranty made by one not authorized would be

ineffectual. Id.
United States 60

VI. Where plaintiff in June 1946 entered into a contract

with the War Department to manufacture and
deliver 30,000 overcoats at a unit price of $19.25
per unit; and where in November 1946, before
any labor was commenced and work performed
under the contract, the parties executed a supple-
mentary agreement reducing the unit price to $18.50
and where, thereafter, after submission of its cost
figures by plaintiff, a supplemental agreement
was executed reducing the unit price to $16.67, at
which price plaintiff received payment for the
30,000 overcoats; it is held that the plaintiff is
not entitled to recover on its claim that it is
entitled to the full contract price of $18.50 for
the 18,500 overcoats delivered by September 13,
1947, and to the difference between $16.67 and
$17.94 (approximately $1.27) on each of the
remaining 11,500 garments delivered under the

contract. Petition dismissed. Fruhauf, 51.
United States 72

126 C. Cls.

CONTRACTS—Continued

VII. Reviewing the negotiations with respect to the

price revisions under the contract, it is held upon
the evidence adduced that the efforts toward a
price revision began on June 4, 1947, when the
contracting officer first wrote to the plaintiff re
questing its cost data, and that the negotiations
for revision of price pursuant to the demand of
September 18, 1947, continued through to the

agreement entered into on December 31, 1947. Id.

United States om 74
VIII. Plaintiff's contention is not sustained that the sup-

plement agreement of December 31, 1947, which
established a revised unit price of $16.67 is not
binding on plaintiff because it was entered into

under economic duress. Id.

United States 72
IX. Under the decisions, duress involves a step beyond

mere illegality and implies that a person has been
unlawfully constrained or compelled by another to
perform an act under circumstances which pre-

vent the exercise of free will. Id.
Threats for 1 (1)
X. In the instant case where it is shown that, because

of its financial condition and the circumstances
under which plaintiff was operating its business,
plaintiff was reluctant to accept the price
revision in the supplemental agreement of
December 31, 1947, the evidence does not
sustain the contention that the actions of the
defendant's agents were coercive, where plaintiff
was granted a rehearing and reconsideration
without forcing the plaintiff to resort to an

appeal to a higher administrative authority. Id.

United States Com 74
XI. If the supplementary agreement was a mutual

agreement and without coercion, as the court
holds, then the plaintiff's right to appeal under

the contract was eliminated. Id.

United States or 73 (15)
XII. If the agreement was not mutual and was entered

into by plaintiff under coercion, then plaintiff's
avenue of relief was by an appeal to the Secretary

of War. Plaintiff did not appeal. Id.
United States On 73 (15)

126 C. Cls.

CONTRACTS-Continued

XIII. Under the decision in United States v. Blair, 321

U. S. 730 (101 C. Cls. 870), an appeal from the
decision of the contracting officer to the head of
department, where such appeal is provided for
under the contract, is a prerequisite to seeking
redress in the courts. See also United States v.
Holpuch Co., 328 U. S. 234. In the instant case
there is no showing that the appeal procedure

was inadequate or unavailable. Id.

United States On 73 (15)
XIV. In a suit for damages for breach of plaintiff's

contract with the Government for certain con-
struction at an Army base in Puerto Rico where
it is alleged that losses to plaintiff were caused
by delays for which the Government was re-
sponsible, it is held that the plaintiff is entitled
to recover only on the third claim set forth in
the petition for delay in furnishing material as

agreed. Torres, 76.

United States Con 74
XV. Where it is shown that the defendant had agreed

to furnish materials and had represented that
the materials would be available when needed;
and where this representation had induced
plaintiff to reduce his price to the amount agreed
upon; and where the defendant had failed in
doing the things it represented it would do; the
defendant is liable for the ensuing delays in

performance. Id.

United States C 73 (20)
XVI. Defendant's contention is not sustained that it is

excused because it used due diligence to fulfill
its promise, since the promise was unequivocable
and given for & valuable consideration. Barling

v. United States, ante, p. 34 distinguished. Id.

United States Or 73 (20)
XVII. Defendant's contention that it is excused from

performance because in the Government's
sovereign capacity it had determined that it
was to the best interest of the United States to
perform other contracts in preference to the

contract in suit, is not supported by the proof. Id.
United States 74

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