Conclusion of Law 130 C. Cls. of the work within the required time. Since the labor involved was required for the performance of the subcontract work by Proctor, such delay of 20 days also applies to Proctor's work. 31. The subcontract between the plaintiff and his subcontractor, Proctor, contained the following provision, among others: SECTION 6. The contractor and subcontractor agree that any and all disputes that may arise between them shall be settled by arbitration, and the rights and obligations of each of them shall be as set forth in Specifications No. 1100 and in this contract. 32. The plaintiff's contract with Proctor did not exonerate him from liability to Proctor for the failure to furnish the steel, and plaintiff has agreed to reimburse him for any damages recovered in his behalf. 33. The delay occasioned by the negligent failure of defendant to provide reinforcement steel as required, and the delay occasioned by the inability of the defendant to furnish the necessary labor for the performance of the work under the contract in suit, caused both the prime contractor and the subcontractor to incur costs which would not otherwise have been necessary. In order to determine the amount of such costs, an exhaustive study of the accounting records in evidence will be required. In the preparation of this report such study has been deferred pending a determination by the court of the question of the liability, if any, of the defendant for such increased costs. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is entitled to recover damages resulting from delayed delivery of reinforcing steel, and the plaintiff is not entitled to recover damages resulting from unavailability of adequate labor or damages for decreased concrete quantities. The case is referred to a Commissioner of this court for stipulation or finding as to the amount of plaintiff's damages. Opinion of the Court DUNWALKE FARM, INC. v. THE UNITED STATES [No. 648-53. Decided November 2, 1954] On Plaintiff's Motion to Strike Defendant's Second Defense Rule 16 (f) of Court of Claims; motion to strike defense.-In a suit to recover taxes imposed on the undistributed profits of plaintiff, a personal holding company, plaintiff's motion to strike the second defense set up by the defendant in its answer is overruled. Courts 463 Same; insufficient defense.-A motion to strike defense on ground that it is insufficient may be allowed only when the defense is frivolous or plainly insufficient. Rule 16 (f), United States Court of Claims. Courts 463 Same; question to be decided when case is submitted.-Where plaintiff sues for refund of taxes on undistributed profits, the defense that action could not be maintained based on certain computation because no claim for refund was filed on that theory would, without explanation from taxpayer, be good. The time to decide this is when the case is submitted. Internal Revenue ➡ 2041 Same; purpose of Rule 16 (f).-Rule 16 (f) of the Court of Claims providing that the court may order stricken from any pleading any redundant, immaterial, impertinent or scandalous matter, or any insufficient defense, was designed to get rid of trash but was not designed to require the court to hear a case piece meal. Courts 463 Mr. Charles Goodwin, Jr., for plaintiff. Mr. Gilbert Andrews, with whom was Mr. Assistant Attorney General H. Brian Holland, for defendant. Messrs. Andrew D. Sharpe and Ellis N. Slack were on the brief. WHITAKER, Judge, delivered the opinion of the court: Plaintiff is a personal holding company. It sues to recover the taxes imposed on its undistributed profits for the year 1949. Opinion of the Court 130 C. Cls. In its first cause of action it asks for a refund based on a computation of the tax by including a deduction of surtax for the year 1948. In a separate cause of action it asks for a refund based on a computation of the tax by including a deduction of surtaxes for 1949, instead of for 1948. Defendant in its answer sets up as a second defense, that an action based on a computation which includes a deduction of surtaxes for 1949 cannot be maintained because no claim for refund was filed on that theory. Plaintiff moves to strike this defense under rule 16 (f). This rule provides for striking from a pleading before the opposite party is required to respond thereto, or within thirty days after service thereof, "any redundant, immaterial, impertinent, or scandalous matter, or any insufficient defense." Plaintiff does not claim that defendant's answer contains matter that is redundant, immaterial, impertinent, or scandalous, so its claim necessarily is that the defense is insufficient. Such a motion is allowed only when the defense is frivolous or plainly insufficient. North Counties HydroElectric Co. v. United States, 127 C. Cls. 467, 469, and authorities there cited. Defendant's defense may not be good, but it is not frivolous or plainly insufficient. It is quite true, as defendant says, that plaintiff did not file a claim for refund based on its right to deduct 1949 taxes. Without explanation this would be a good defense. Plaintiff offers an explanation that appears to have merit; but the time to decide this is when the whole case is submitted. Rule 16 (f) was designed to get rid of trash. It was not designed to require the Court to hear a case piece-meal, "to make three bites of a cherry." Plaintiff's motion will be overruled. It is so ordered. LARAMORE, Judge; MADDEN, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. Syllabus WILLIAM A. BERRY v. THE UNITED STATES [No. 50-52. Decided November 30, 1954]* On the Proofs Pay and allowances; date of ṛromotion fixes date of higher pay.— Plaintiff, an officer of the Naval Reserve, promoted following his release from a Japanese prisoner-of-war camp, sues for active duty pay and allowances in the grades to which he was promoted from the dates of rank stated in his commission rather than from dates on which his appointments were made by the President. Under the applicable statute it is held that plaintiff is not entitled to recover. Army and Navy 13 (2, 8) Same; statute of limitations jurisdictional.-In the United States Court of Claims the statute of limitations is jurisdictional. The defense is ever present whether pleaded or not. Limitation of Actions 182 (2) Same; petition timely filed.—In the instant case, it is held that the 6-year statute of limitations on plaintiff's claim did not commence until the conclusion of his active service, which was March 16, 1946. The petition which was filed in the Court of Claims on February 4, 1952, was timely filed. Limitation of Actions 58 (1) Same; Act of July 24, 1941.-The Act of July 24, 1941, under the provisions of which the plaintiff was promoted, was designed to provide a simple method of making temporary appointments in times of emergency and to replace the more cumbersome peacetime method of accomplishing the permanent promotion of officers by the selective process. Army and Navy →→ 7 Same; higher pay and allowances from date of appointments.-Plaintiff was promoted pursuant to the Act of July 24, 1941, 55 Stat. 603. Under the provisions of that Act plaintiff was entitled to pay and allowances of his higher ranks from the date of appointments, February 15, 1945, and October 5, 1945. Plaintiff having received pay and allowances from these dates, it is held that plaintiff is not entitled to more. Petition dismissed. Army and Navy — 13 (2,8) Mr. Charles R. Nesbitt for the plaintiff. Mr. Everett E. Cotter was on the brief. *Plaintiff's petition for writ of certiorari denied by the Supreme Court May 23, 1955. Opinion of the Court 130 C. Cls. Miss Frances L. Nunn, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant. Mr. Ernest C. Baynard was on the brief. LARAMORE, Judge, delivered the opinion of the court: This is a claim by an officer of the U. S. Naval Reserve, promoted following his release from a Japanese prisoner-ofwar camp, for active duty pay and allowances in the grades to which he was promoted from the dates of rank stated in his commission rather than from the dates on which his appointments were made by the President. Plaintiff was commissioned an Ensign in the U. S. Naval Reserve on September 2, 1941, and was immediately called to active duty. Thereafter, he was captured by the Japanese upon the surrender of Corregidor on May 6, 1942, and was liberated by American forces at Manila on February 4, 1945. Pursuant to the provisions of the Act of July 24, 1941, 55 Stat. 603, plaintiff, on February 15, 1945, was promoted to the temporary grade of Lieutenant, Junior Grade, to rank from October 1, 1942, and on October 5, 1945, was promoted to the temporary grade of Lieutenant, to rank from November 1, 1943, and on the same date, to the temporary grade of Lieutenant Commander to rank from October 3, 1945. By orders dated November 9, 1945, plaintiff was discharged from active service, effective at the end of his terminal leave on December 16, 1945. Plaintiff was paid as an Ensign at $150 per month for the period October 1, 1942, through September 1, 1944; as an Ensign with over three years of service at $157.50 per month for the period September 2, 1944, through February 14, 1945. Plaintiff was paid as a Lieutenant, Junior Grade, with over three years of service at $175 per month for the period February 15, 1945, through October 2, 1945, and as a Lieutenant Commander with over three years of service at $262.50 per month for the period October 3, 1945, to December 16, 1945. During the period from May 11, 1942, to October 9, 1945, plaintiff, as a single officer with no dependents, was credited with a subsistence allowance at the rate of $0.70 per day as authorized for single officers. During the aforesaid period |