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CONTRACTS-Continued.

there to other parties. Held, that plaintiff was entitled
to damages, the measure thereof being the difference
between the market value in Cuba and the lesser market
value at the American port, of the lumber remaining
on the dock, deducting therefrom the agreed freight
rate to Cuba. Lindsay, 34.

III. (1) Where the Government enters into an agreement
whereby it is to be furnished coal in quantity "as will
be actually required for naval purposes during the pe-
riod" specified, "which may be greater or less than the
estimated quantity stated," and that the quantity specified
is "tentative only" and the "purchase of a definite quan-
tity is not guaranteed," it can not recover as upon a
breach because of contractor's failure to make deliveries
called for, and failure to prove that its requirements
extended beyond the amount delivered is a further bar
to recovery.

(2) To the extent that the agreement was performed it be-
came valid and binding, and the contractor was entitled to
the purchase price of the coal actually delivered. Up-
dike, trustee, 394.

IV. A "wish, want, or will" contract is not enforceable because
of lack of mutuality. Id.

V. Where work on a contract is suspended by the Govern-
ment pending determination of changes which under the
contract it had a right to make, and upon the furnishing
of revised plans the contractor resumes performance, by
so doing he waives any breach that might have been
caused by the delay. Carroll et al., 435.

VI. Where in a sale of lands and buildings thereon under the
act of July 9, 1918, comprising a plant for the manufac-
ture and storage of smokeless powder, the Government
reserves a certain portion thereof, over which it retains
exclusive control, including a large quantity of smoke-
less powder and other personal property, and in the sale
agrees to save the purchaser and its privies "harmless
against any and all loss or damage which may arise as
a result of the storage or removal of any property of the
vendor upon the premises," the purchaser may, for the
use of insurance companies that have, under standard
policies, giving the usual rights of subrogation, reim-
bursed it the actual loss resulting from destruction by fire
originating in the reserved premises, recover from the
United States the amount so reimbursed. Nashville In-
dustrial Corp., etc., 443.

CONTRACTS-Continued.

VII. When plaintiff had fully performed its contract, there be-
came due the sum which the contract provided should
be paid on performance, and performance having been
established, the burden was upon defendant to prove
payment. Converse et al., 670.

VIII. In a contract for dredging which provides that the con-
tractor shall receive so much per cubic yard of material
dredged, and that this price is "based on the assumption
that the Government will furnish to the contractor free
of charge, at the Navy fuel tanks, St. Helena, Norfolk,
Virginia, as and when required, 1.4 gallons of fuel oil
for each cubic yard of material dredged," the words as
and when required" construed to mean to demand, re-
quest, or ask of right, and not as synonymous with the
word "need." For shortage in delivery of the oil re-
quired the plaintiff is entitled to the market price, and
not merely to the "Government price." Id.

66

IX. Where coal is sold to the Government at a basic price sub-
ject to reduction if after delivery analysis of samples by
the Government shows them to be below a fixed standard,
and the method of taking the samples and making the
analysis is provided for by the contract, the contractor
is entitled to the basic price on a showing that the
method pursued was not according to the agreement.
Heid Bros., 704.

X. Where under the terms of a contract the contractor may
submit matters in dispute to the head of the department
concerned, whose decision thereon is to be final, and the
head of the department refuses to consider the con-
tractor's submission, the contractor is not precluded from
maintaining suit. Id.

XI. Where personal services were rendered the Shipping Board
at its direction and accepted with knowledge that the
person performing them understood he was to receive
compensation, and the Shipping Board was benefited
thereby, in the absence of an express contract there arose
an implied one on the part of the United States to pay
the fair and reasonable value of the services rendered.
Johnston, 728.

XII. Where a contract for work gave the head of a department
authority to grant an extension of time under specified
circumstances and provided that the extended date for
completion should be taken as the date originally agreed
upon, and in conformity with the terms of the contract
the Secretary granted an extension of time, and the work

CONTRACTS-Continued.

was thereupon completed by the new date, there was
no delay for which liquidated damages are deductible.
Rosamond et al., 739.

See also Eminent Domain, III; Leases; Reformation of Contract;
Sale of Supplies; Settlement Contracts; Statute of
Limitations, I, III; Taxes, XVI, XVII, XXXII (1).

DELAYS.

See Contracts, II, V, XII; Statute of Limitations, III.
DEPARTMENTAL FINDINGS.

See Contracts, X; Sale of Supplies, V; Taxes, LXIX (1).
DEPENDENTS.

See Rental and Subsistence Allowances.

DURESS.

See Settlement Contracts, I (1).

EMINENT DOMAIN.

I. In awarding just compensation for taking of part of a
tract of land under eminent domain, the court, under
the rule that the owner is entitled to receive the value
of what he has been deprived of, will take into con-
sideration the consequent damage to the remainder.
Jens Rasmussen, 406.

II. Plaintiff allowed recovery for damage to the remainder of
his farm caused by the taking of a part for a right of
way and the building of embankments thereon, just
compensation being measured by the difference in mar-
ket values before and after the taking and the construc-
tion of embankments. Albert Rasmussen, 418.

III. Where the plaintiff had a contract with a shipbuilding
company for the construction of certain ships, and while
they were being built the Government requisitioned
them and upon their completion returned them to the
plaintiff under an agreement by which the Government
chartered and took possession and control of them,
plaintiff operating them at fixed rates, a provision in
the charter that the owner (plaintiff) accepts the
same "in full satisfaction of any and all claims he has
or may have against the United States arising out of
the requisition, and accepts the compensation [therein]
provided for as the just compensation required by law,"
precludes recovery of interest as upon an implied
promise to pay just compensation. Atlantio Refining Co,
713.

ESTOPPEL.

See Taxes, XXXII, LIV.

EVICTION.

See Leases, III, IV; Taxes, XLVIII.

EXPERT TESTIMONY.

The court is not concluded by the opinion of expert witnesses
but may use its own judgment. Converse et al., 670.

FARM LOAN ACT.

See Statutory Construction, II, III, IV; Taxes, XXXV, XXXVI.
FEES AND COMMISSIONS.

See Patents, VI.

FRAUD.

See Settlement Contracts, I (1).

GIFTS.

See Taxes, XXIV, XXV, XLIX, L, LI, LVII.

GOOD WILL.

See Taxes, XXXI.

INSURANCE.

See Contracts, VI; Rental and Subsistence Allowances, III.
INTEREST.

See Eminent Domain, III; Patents, VI; Reformation of Con-
tract; Statutory Construction, IV; Taxes, VI, VII, IX,
XXX, XXXV, XLII, XLIV, XLVII, LV, LVI. LVIII,
LXVI.

JURISDICTION.

I. The determination by the Commissioner of Internal Reve-
nue of a deficiency and the institution by the taxpayer
of a proceeding before the Board of Tax Appeals, both
occurring after a suit in relation to the same matters
has been properly commenced in the Court of Claims,
does not under the provisions of the revenue act of 1926
render such suit premature nor deprive the court of
jurisdiction to entertain it. Ohio Steel Foundry Co., 158.
II. If a taxpayer files a claim for refund of internal-revenue
taxes which, after February 26, 1926 (revenue act
of 1926), is rejected by the Commissioner of Internal
Revenue, and the commissioner at the same time, or
before notice of rejection or the institution of suit de-
termines and notifies the taxpayer of a deficiency for
the taxable year, the taxpayer has the privilege either
to pay the additional tax and proceed under section
3226, Revised Statutes, by suit in court, or to take the
deficiency and all questions relating to his tax liability
for such year to the Board of Tax Appeals. The latter
remedy, once invoked, is exclusive. Nor is concurrent
suit available merely because of lack of right to en-
force collection of an overpayment found by the Board
of Tax Appeals, as the statute is sufficiently broad to
authorize suit to enforce such payment. A. C. James,
215; James et al., executors, 230.

JURISDICTION-Continued.

See also Postal Savings; Settlement Contracts, I (2); Taxes,
XIV, LXIX (1).

LEASES.

I. (1) Where a lease of premises in the State of Pennsyl-
vania provides that at the expiration thereof the lessee
shall return the premises and property "in like good
order and condition as the same now are, reasonable use
and wear thereof and damage by fire or other casualty
excepted," and reimburse the lessor "for any and all
damages that may result to the said property or prem-
ises from vandalism or undue carelessness on the part"
of the occupants, and a fire destroys certain buildings
thereon, the burden is upon the lessee, in suit to re-
cover damages for failure to return the property "in
like good order and condition," the lessor having estab-
lished such failure, to prove that the failure to perform
comes within the clauses exempting it from liability.
(2) Where the lease further provides that where the
premises or part thereof are destroyed by fire not the
fault of the lessee the lessor shall rebuild them, if re-
quired to do so, the rent to be proportionately reduced
in the meantime, the lessor, under the provisions and
circumstances recited, is entitled to recover the entire
rental.

(3) The measure of damages recoverable, aside from the
unpaid rental, and in the absence of other proof of loss,
is the replacement cost of the property destroyed, less
reasonable wear and tear. Pocono Pines Assembly
Hotels Co., 91.

II. Section 17 of the act of February 25, 1920, is a remedial
clause of a statute and did not limit reduction of royal-
ties on oil leases to the period following the grant of
such reduction. The Secretary of the Interior was
authorized to grant reduction effective as of the date
petition therefor was filed by the lessee. Ohio Oil
Co., 137.

III. The War Department leased premises in the West Point
Military Reservation under terms requiring the lessee to
erect thereon a hotel and after the hotel was erected and
in operation, diverted through traffic from the road in
front of the hotel because of interference with the activ-
ities of the military academy, but permitted traffic to
and from the hotel itself. The hotel continued in opera-
tion, but by reason of the diversion sustained some loss
in patronage, the amount whereof is undetermined. Suit
was brought to recover damages in the amount of the
cost of the hotel on the ground that there had been a
constructive eviction. Held, (1) that the agents of the

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