Special Findings of Fact 119 C. Cls. point indicating total lack of knowledge upon the part of the manufacturer concerning the standards of instrument manufacture. 4. From circumstances pertaining to delivery, quality of manufacture and general design arrangement, it is evident that Dr. Saxl will be unable to complete his contract. It is, therefore, recommended that action be taken to accomplish its cancellation. 5. In this connection there was by supplemental contract and arrangement dated May 16, 1941, advanced to Dr. Saxl $6,600 which amounted to 30% of the contract price of $22,000.00. It is therefore recommended that an audit be made at the earliest practicable date to determine the status of these funds and that appropriate action be taken to close the account on a basis equitable to Dr. Saxl and the Government. 15. On June 1, 1942, defendant's contracting officer sent the following letter to plaintiff: 1. Reference is made to the subject contract calling for a stabilizing platform, upon which complete_and satisfactory delivery has not been made to date. Upon investigation, it was found that the quality of workmanship on this article is inferior to the point indicating total lack of knowledge concerning the standards of instrument manufacture on your part. In view of the fact that you are unable to complete this contract you are declared in default. 2. An advance payment in the amount of $6,600.00 was paid to you, which must be refunded to the Government. You are requested to make your check payable to the Treasurer of the United States and forward same promptly to this office for settlement on this contract, 16. The instrument plaintiff delivered to Wright Field functioned in the way set out in the memorandum of Sergeant Dickson, quoted in finding 12. The forces of vibration and acceleration were not counteracted, and these forces rendered the instrument practically useless, especially the force of vibration. Plaintiff, however, constructed the instrument in good faith and undertook to counteract the forces of acceleration and vibration, but was not successful in doing so. Defendant benefited from the contract by learning definitely that a device constructed according to the ideas advanced by plaintiff was worthless for use in an airplane. 17. Plaintiff's basic costs for labor, material, and overhead 66 Opinion of the Court for the manufacture of the experimental unit were $11,264.28. Plaintiff has been advanced the sum of $6,600.00. The court decided that the plaintiff was not entitled to recover. Defendant's counterclaim was dismissed. WHITAKER, Judge, delivered the opinion of the court: On February 26, 1941, the Government entered into a contract with plaintiff for the purchase of a "stabilizing platform in accordance with Dr. Erwin J. Saxl specification dated 12-12-40" for the sum of $22,000.00. The platform was delivered to the defendant in February 1942, but was rejected on the ground that it did not comply with the specifications. The Government had advanced to plaintiff $6,600 to defray in part the cost of the construction of the platform. Plaintiff sues for the difference. The Government has filed a counterclaim for the $6,600 on the theory that plaintiff did not comply with his contract and, therefore, that the payment to him of the $6,600 was without consideration. In order to properly interpret the provisions of the contract, which are not clear, it is necessary to consider the events leading up to its execution. Normally, a bomb sight is mounted on a platform, which is kept absolutely stable by a gyroscope. In the manufacture of these gyroscopes, however, there are required materials and highly skilled labor, which in 1940 were becoming increasingly scarce. Therefore, the Air Force tried to develop some substitute for the gyroscope. It was also interested in the development of bomb sights. Some time in September 1940 Doctor Saxl went to Wright Field and talked with Colonel (then Major) Kilpatrick about the development of bomb sights and stabilizing platforms. Doctor Saxl, the only witness as to what took place at this conference, says that Colonel Kilpatrick said to him: "Well, Doc, how about using your inventive abilities towards licking this bottleneck on bomb sights and stabilizing platforms for us." He said, "It struck me like lightning there were ways of doing it. In the office of Kilpatrick I sketched out this page, with essential descriptions, the early concept 953606-51-7 Opinion of the Court 119 C. Cls. and the means of stabilizing later on incorporated in my construction." (Tr. 14.) This of course was a very rough sketch. It is plaintiff's exhibit 5. Colonel Kilpatrick was interested in the idea and took plaintiff to the legal department of the Air Force where some specifications and a letter were written by plaintiff offering to construct an instrument along the lines of the specifications. Defendant expressed interest in plaintiff's proposal, but it was neither accepted nor rejected. Plaintiff returned to his home in Providence, Rhode Island, and on his own initiative went to work on developing his idea. He constructed a model embodying the basic idea of his invention and asked representatives of the Air Force to come down and look it over. Two representatives finally came, a Mr. Goll and a Captain Murtha. These gentlemen spent two days at plaintiff's shop examining and testing his model and questioning plaintiff about his education, experience, finances, etc. At the conclusion of their visit Mr. Goll dictated to plaintiff's secretary specifications for the manufacture of this platform, which specifications are referred to and made a part of the contract subsequently entered into. These specifications referred to two drawings of the instrument: one of a part of the instrument, and the other of the entire instrument, designated C-2 and C-3. These drawings were prepared by plaintiff. This was on December 12, 1940. On February 10, 1941, after intervening correspondence and telephone calls, defendant mailed to plaintiff its invitation for bid, which was accepted by plaintiff on February 17, and accepted by the Government on February 26. What the Government bought and what the plaintiff sold was a "stabilizing platform in accordance with Dr. Erwin J. Saxl specification dated 12-12-40." Plaintiff says the instrument he constructed and delivered to Wright Field was constructed in accordance with these drawings and specifications. The defendant says that it was not constructed in accordance with them, for the primary reason that plaintiff's device was an automatic leveler and not a stabilizing platform. It says that in plaintiff's instrument the platform upon which the bomb sight was supposed to rest did not re 66 Opinion of the Court main stable but veered from position with the change of direction or level or speed of the airplane, and, then, after an interval, returned to its former position, or within a degree or so of its former position. It says that such an instrument is an automatic leveling device, and not a stabilizing platform, which it wanted. The defendant's position may be summed up in the following paragraph from the memorandum prepared by Major Dickson, then Master Sergeant Dickson, following tests of the instrument made by him and Sergeant Hamilton in the bomb chamber at Wright Field. His first conclusion is: 1. That subject device does not comply with the specifications as drawn up for the contract as follows: a. Stabilization is not produced to within ±1°. This is evident since any displacement of the base produces an equal displacement of the platform. Stability is the strength to stand without being moved or overthrown. It is the state of maintaining a uniform level, both horizontal and vertical, so that no tipping or front or rear pitching occurs. The fact that the platform is caused to return approximately to the level position after an elapse of considerable time, and the fact that movement of the base is translated into an equal movement of the platform, remove this device from the stabilizer category and establish it as an automatic leveling device of questionable accuracy. This is the main defense relied upon by the defendant in its brief. Plaintiff, on the other hand, says that the drawings and specifications did not call for a platform that should remain in the same plane at all times, but, rather, one that should be returned, within a certain tolerance, to its former plane after displacement. This is the first issue to be determined. From a reading of the specifications, at first at least, one is inclined to say that the defendant is right. Under the heading of "General Description" the specifications provide in part: This specification covers a stabilized platform for use within airplanes. This platform may be used for the purpose of mounting a bomb sight, or an artificial horizon for navigation purposes. Opinion of the Court 119 C. Cls. Under the heading of "Operation", after providing for activating the relays in the instrument, it says: * ** The relays shall control the motion of such mechanical equipment so as to maintain the platform in a standard stabilized position. [Italics ours.] Then, under "Operation Requirements" it is provided: This device shall stabilize a mass of not to exceed 25 pounds put upon this platform. The accuracy to be accomplished by this means of stabilization shall be within two degrees. All of this would seem to indicate the parties had in mind a stabilizing device and not an automatic leveling device. We come naturally to this conclusion also when we recall that what the Army was after was an instrument to take the place of a gyroscope, which, as is well known, remains absolutely stable, independent of any motion of its base. However, under the heading of "General Description," a part of which we quoted above, after describing in a general way the instrument to be constructed, it is said: By its use the direction of the electric current is controlled in such a manner that suitable auxiliary equipment returns the stabilizing platform to the normal reference plane. This sentence negatives the idea of the platform remaining in its normal plane. It speaks of returning the platform to its normal plane. It could not return it to its normal plane unless the platform had deviated therefrom. Although the word "stabilized" is used throughout the specifications, this sentence would indicate that what the parties had in mind was not a stabilizer, but an automatic leveler. When we look at drawing C-3 attached to the specifications and referred to therein, and reproduced in Finding 7, we see that of necessity the parties did have in mind returning the platform to position rather than keeping it in position. In the first place, it will be noted that the piston in the cylinder "P" is pushed upward by the injection of a liquid into the cylinder. This raises the platform "T", upon which |