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111 C. Cls.

CONTRACTS—Continued

and loose rock which was liable to fall into the canal
was not work for which the Government undertook
and agreed to pay applicable unit prices and plain-
tiff is not entitled to recover additional compensa-

tion therefor. Id.
XLIX. Where placing of concrete furnished by defendant be-

low neat lines of foundation subgrade in concrete
headworks became necessary because of the removal
by contractor of soft rock which was unsuitable as
foundation for concrete structures and such con-
crete was used in lieu of backfill; it is held that con-
tractor was not entitled to recover compensation
of $15 a cubic yard for placing concrete under the
provision of the contract permitting any thickness
of concrete shown on drawings to be changed by
order of the contracting officer and providing that
in such case the changed thickness should be used
as basis for measurement for payment, these pro-

visions not being applicable to plaintiff's claim. Id.
L. Where the plaintiffs entered into a contract with the

Federal Public Housing Authority for the construc-
tion of a war housing project in March 1943; and
where in the contract signed by the parties the ref-
erence to Executive Order No. 9301 of February 9,
1943, in the "Instructions to Bidders" was specifi-
cally deleted, as well as regulations and directions
issued under said Executive Order, and where, there-
after, the contracting officer notified plaintiffs that
they would have to work a 48-hour week, as required
by Executive Order No. 9301, instead of a 40-hour
week, as contemplated under the contract it is held
that the action of the contracting officer sufficiently
establishes the element of causation on the part of
the Government, as to additional costs incurred in
the performance of the contract, and defendant's

demurrer is overruled. Beuttas (No. 47866), 532.
LI. Where the requirements for compliance with Executive

Order No. 9301, prescribing 48-hour week on all
Government contracts, were deleted from the con-
tract in suit it is held that the stricken requirements
could be used in construing the contract to deter-
mine the liability of the Government for additional
costs consisting of overtime paid to employees after
plaintiffs were directed to comply with the pro-

visions of the Executive Order. Id.
LII. The United States can be bound by the act of an offi-

cial held out by the Government as having authority
to act for it. Id.

111 C. Cls.

CONTRACTS—Continued

LIII. The contract in suit is not silent as to existing laws and

sovereign powers but ole which in its expiess terms
says it is not subject to a certain Executive Order.
Home Building and Loan Association v. Blaisdell,

290 U. S. 398, and other cases, distinguished. Id.
LIV. Where plaintiff, a partnership, on September 17, 1941,

entered into a contract with the Government for the
manufacture of a stated quantity of canvas leggings,
the sizes and delivery dates being specifically set
forth in the contract and where the contract pro-
vided that the Government had the right, in the
event of failure or refusal to make delivery as speci-
fied, to terminate the contract with respect to all
or any portion of the undelivered leggings and pur-
chase similar leggings in the open market and charge
plaintiffs with any excess costs and liquidated dam-
ages; and where, upon failure of plaintiff to deliver
as specified, the Government canceled the contract
but purchased no more leggings from plaintiff or
any other contractor; it is hela that the Government,
under the terms of the contract, was not entitled to
liquidated damages with respect to the leggings
called for in that portion of the contract which was
not fulfilled on account of cancellation and plaintiff
is entitled to recover. Manart Textile Company,

540.
LV. The contract called for the assessment of liquidated

damages for delay in delivery, but where there was
no delivery by reason of defendant's cancellation of
the contract and defendant decided it would not
purchase or accept delivery of the quantity of leg-
gings called for by the balance of the contract, de-
fendant cannot claim liquidated damages for failure
to delivery leggings which it decided it did not want.

Id.
It has been repeatedly held in construing standard

construction contracts that when the defendant
exercises the privilege of cancellation, for failure to
perform or for delay, it may let the unfinished por-
tion to a new contractor and collect the excess
costs, but it may not also collect liquidated damages.
It has the choice of permitting the contractor to
finish the job and collect liquidated damages or of
cancelling the contract and letting it elsewhere and
collecting excess costs, but it cannot do both. See
United States v. American Surety Co., 322 U. S. 96,
and other cases cited. Id.

111 C. Cls.

CONTRACTS—Continued
LVII. Under a contract entered into on July 13, 1940, for

the construction of an equipment-repair building
at Fairfield Air Depot, Ohio, where it is shown by
the evidence that the Government changed plans
and then unreasonably delayed acting on the con-
tractor's proposal covering the change and then
wrongfully refused to grant an extension of time as
required by the contract; it is held that plaintiffs,
executors, are entitled to recover additional costs
caused by the delay, plus an allowance of 7 percent

for overhead. Kirk, 552.
LVIII. Where the contract provided that, if changes were

made which would cause an increase or decrease in
the amount due under the contract or in the time
required for its performance, an equitable adjust-
ment would be made and that the contract would
be modified, accordingly; and where the Govern-
ment changed the plans and then unreasonably
delayed in acting on the contractor's proposal
covering such change; it is held that denial of an

extension of time was a breach of the contract. Id.
LIX. An assignment of claim under Section 17 of the Con-

tract Settlement Act, for reimbursement of prepar-
atory expenditures in anticipation of a Government
contract, is held to be invalid under Section 3477

R. S. Hodes, 370.
LX. An assignment of claim is null and void under Section

3477 R. S. (31 U. S. Code 203) unless made with
certain formalities and after the claim has been
allowed, the amount due ascertained and a warrant

issued for its payment. Id.
LXI. In the completion of a contract for the installation of

runway lighting at a Government airfield, during
time of war (1943-1944), it is held that the defend-
ant is not liable for the delay in delivery of mate-
rials due to the proper operation of the priority
system. Froemming Bros., Inc. v. United States,
108 C. Cls. 193; Gothwaite v. United States, 102 C.
Cls. 400; Barbour v. United States, 104 C. Cls. 360.

Ross Electric, 644.
LXII.

The priority orders were made a public record and

there is no evidence that defendant failed to furnish
to plaintiff all the information which defendant pos-
sessed, and no evidence that it deviated in any way
from the regular operations of the priority system.
Id.

111 C. Cls.

CONTRACTS—Continued
LXIII. Where during the period January to March 1941,

plaintiff, a Connecticut corporation, entered into
several contracts for the manufacture and sale of
shirts to the Government, and where, following the
completion of the contract (1941), plaintiff filed a
claim to recover liquidated damages which had
been assessed against it and to recover damages re-
sulting from an alleged breach of contract by the
defendant which claim was denied by the War De-
partment, and where, thereafter, on October 11,
1943, plaintiff corporation's application for a cer-
tificate of final dissolution was filed and approved
under the applicable statutes of the State of Con-
necticut; it is held that under the statutes plaintiff
is empowered to institute and maintain the instant
suit and defendant's plea of nul tiel corporation is

dismissed. Lesnow Brothers, Inc., 788.
LXIV. The question of corporate survivorship must be de-

termined by the law of the state of incorporation.
Oklahoma Natural Gas Co. v. State of Oklahoma, 273

U. S. 257. Id.
LXV. Survivorship statutes have been adopted by many

states, and since they have been held to be remedial
in nature, they should be given the liberal construc-

tion generally applied to remedial enactments. Id.
LXVI. The Connecticut statute (Section 3373, General

Statutes of 1930) in plain, unambiguous provisions
provides for survivorship of dissolved corporations
to enable them to close up their affairs, dispose of
their property and distribute their assets, and by
express provision “to prosecute and defend suits by

or against them.Id.
LXVII. The voluntary dissolution of the corporation by the

director-trustees of the corporation at a time when
the plaintiff had full knowledge of its rights under
the contract in suit did not in any way constitute

an abandonment of such rights. Id.
CONTRACTUAL RIGHT.

See Federal Judge, Rights of, I, II, III, IV, V, VI, VII.
CORPORATE STRUCTURE, CHANGES OF.

See Contracts XVII.
CORPORATION DISSOLVED.

See Contracts LXIII, LXIV, LXV, LXVI, LXVII.
CUSTOM AND IMMIGRATION SERVICES.

See Rental of Space I, II, III, IV, V, VI.

801932—48- 54

111 C. Cis.

DELAY.

See Contracts XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX,

XX, XXI, XXII, XXIII, XXIV, XXV, XXVI, XXVII,

XXVIII, XXIX, XXX.
EMINENT DOMAIN.

I. In a suit to recover just compensation for the taking

of water rights which plaintiffs claim they had as
the owners of land riparian to the San Joaquin
River or one of its sloughs, where such rights were
taken by the construction of the Friant Dam on the
San Joaquin River upstream from plaintiffs' lands,
for the purpose of diversion of the waters of the San
Joaquin River; and where it is shown that when the
project is completed the lands of plaintiffs will be
wholly deprived of the water of the river which
they now enjoy to a limited extent; and where it is
shown by the proof that the purpose of the project
was to irrigate certain nonriparian lands and was
not in aid of navigation; it is held the defendant is
not immune, by reason of the river's navigability,
from liability for property taken in carrying out
the project and plaintiffs in cases Nos. 46009,
46245 and 46244 are entitled to recover. Cf.
Kansas v. Colorado, 206 U. S. 46, 85 et seq.; Horst-
man Co. v. United States, 257 U. S. 138. Gerlach

Live Stock Company, etc., 1.
II. Where it is shown by the evidence that the lands of

plaintiffs were riparian to the San Joaquin River
or some one or more of its sloughs, subject, how.
ever, to prior appropriative and prescriptive rights
of Miller & Lux, Inc., and its subsidiaries; and where
it is further shown that by overflows and by seepage
the lands of plaintiffs, except for a small portion of
the lands of the Gerlach Live Stock Company,
were moistened in times of high water and made
more productive; it is held that the erection of the
Friant Dam took these rights from plaintiffs.
Plaintiffs' right to compensation is limited to their
rights to have their lands moistened and enriched

in times of high water. Id.
III. Where Miller & Lux, Inc., conveyed, or agreed to

convey, to plaintiffs, respectively, the parcels of
land involved in the instant suit by conveyances or
agreements which excepted or reserved certain
water rights; and where, thereafter Miller & Lux,
Inc., and its subsidiaries conveyed to the United
States all of the water rights so excepted or reserved;

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