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.
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
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.
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
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.
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 materials did not constitute a breach of the contract. Id. 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.
V. A warranty made by one not authorized would be
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
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 →→ 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.
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.
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
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.
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.
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.
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.
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.
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 a valuable consideration. Barling v. United States, ante, p. 34 distinguished. Id. United States 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
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