141 C. Cls.

CONTRACTS-Continued

XXXIV. Due to the extraordinary costs of shipbuilding during the
war it was necessary to offer ships for sale at drastically
reduced prices so that the post war merchant marine
could meet foreign competition. The 50 percent of
prewar domestic costs was believed to achieve this
result. It was the intent of Congress that American
enterprises should not be saddled with the very high
costs of wartime shipbuilding. Id.

United States 53(10)

XXXV. Shortly after passage of the Merchant Ship Sales Act
Congress set up a special subcommittee to observe the
administration and operation of the act. It is noted
that this committee considered, but did not question,
the fact that floor prices of 35 percent of wartime
domestic cost were set on several types of vessels, in-
cluding the type in the instant case, which exceeded
50 percent of the prewar domestic cost. Id.

XXXVI. The court, having previously decided that it has juris-
diction in the instant case (138 C. Cls. 86), considers
plaintiff's motion to strike portions of defendant's
answer and for partial summary judgment. Plaintiff's
suit is for rentals from a lease allegedly breached by
the Government on the ground that the lease was in
violation of the Economy Act of June 30, 1932. It is
held that the lease is valid and binding on both parties
and that plaintiff is entitled to recover, the amount of
recovery to be determined pursuant to Rule 38 (c).
Plaintiff's motion to strike defendant's second, third
and fourth defenses is granted, as is the motion for
partial summary judgment. Defendant's counterclaim
is dismissed. Meyer, as Trustee, 537.
66

United States

XXXVII. The making of an appraisal is not an exact science, but
where a Government appraiser places a value on a
building and the Government enters into a lease the
owner of the building has a right to rely upon the acts
of the Government's agent. There is no allegation of
fraud or mistake and the record indicates that the
standards for appraisal contained in the Manual of
Operations of the Public Buildings Administration of
the Federal Works Agency were adhered to. Id.
United States

489380-59-62

66

141 C. Cls.

CONTRACTS-Continued

XXXVIII. Defendant's second defense to the effect that plaintiff's
action should abate because of the pendency of another
action in a U.S. District Court in Illinois is held to be
the same issue which was before the court in its earlier
decision and decided adversely to defendant. Id.

XXXIX. Plaintiff's suit for a declaratory judgment in a U.S. District
Court did not involve the subject of the litigation in

the instant suit and defendant's third defense is therefore

XL. Plaintiff's beneficiaries under her trust are not necessary
parties to the instant suit since the trust agreement
permits her to to sue in her own name without joining
the beneficiaries. (Rule 20 of the Rules of this court).
Id.
Trusts

257

XLI. Plaintiff, assignee of a contract for purchase of Govern-
ment surplus property, subsequently assigned its interest
in the contract to the Belgian Office of Mutual Aid.
A claim for alleged shortages is the basis of the suit.
Although the contract was executed pursuant to the
law of the District of Columbia plaintiff contends that
the assignment was governed by the laws of Belgium,
since the assignment was made there. It is held that
plaintiff, having divested itself of its interest in the
contract, is not the real party in interest and under the
law of the District of Columbia is not entitled to recover.
The petition is dismissed. Overseas Trading Co., S. A.,
561.

Assignments 117

XLII. Although the assignment was executed in Belgium it was
the original intention of the parties that the contract
be governed by the law of the District of Columbia.
This covered not only construction of the contract but
any subsequent assignment or other legal develop-
ments. Id.

Assignments 2

XLIII. Belgian law recognizes recovery of payment made in error
as personal to the party making the payment and con-
stituting a claim in quasi-contract. However, the
provision that the contract was to be "governed by" the
law of the District of Columbia was broad enough to
include all phases of the contract, including a claim
under quasi-contract. A claim such as is asserted by

141 C. Cls.

CONTRACTS-Continued

plaintiff is not recognized in the District of Columbia.
See York Blouse Corp. v. Kaplowitz Bros., 97 A. 2d
465 (D.C. Mun. App.). Id.

Payment 80

XLIV. Plaintiff supplied the Air Force with aircraft cleaning
compound in a specified type of steel container. While
the contract was being processed plaintiff requested
permission to use a lighter and less expensive container,
claiming such container was acceptable under the speci-
fications. The contracting officer refused to permit the
substitution and plaintiff sues to recover the difference
in costs between the two types of container. It is held
that the contracting officer's ruling was not arbitrary
or capricious and that plaintiff was required to continue
with the original container. Defendant's motion for
summary judgment is granted and plaintiff's petition
is dismissed. Octagon Process, Inc., 599.

XLV. Under the contract the Government was purchasing not
only the compound but also the containers. The con-
tractor could not substitute a container of lesser quality
but was required to furnish what the specifications
called for. See Farwell Co., Inc. v. United States,
137 C. Cls. 832. Id.

XLVI. The fact that plaintiff made six separate deliveries in the
better quality drums before requesting permission to
substitute is indicative that it felt that the specified
drums were a requirement of the contract. Id.

XLVII. Plaintiff was granted a permit under Title V of the General
Bridge Act of 1946 to construct a bridge over the Gulf
Intracoastal Waterway near Houma, Louisiana. After
work had commenced the Government changed the
type and location of the bridge and issued a second
permit. Plaintiff, as a result, was compelled to secure
new rights of way for bridge approaches, move power
lines and incur other expenses in addition to increased
costs created by the new type of bridge specified. It is
held that the issuance of the permit was not in the
nature of a contract and that the Government was
acting within its authority in directing the change.
Plaintiff's petition is dismissed. Department of High-
ways, 715.

Eminent Domain 2(10)

141 C. Cls.

CONTRACTS-Continued

XLVIII. Congress has authority to legislate concerning the con-
struction of bridges across navigable waters under its
power to regulate interstate commerce. It has been
held that orders of the Secretary of War requiring altera-
tion of bridges do not constitute a taking of the bridge
owners' property and that the United States is not
obliged to compensate such owner for the cost of altera-
tion or removal. See Hannibal Bridge Co. v. United
States, 221 U.S. 194; Monongahela Bridge Co. v. United
States, 216 U.S. 177; Union Bridge Co. v. United States,
204 U.S. 364. Id.

XLIX. Title V of the General Bridge Act of 1946 was intended to
eliminate the necessity of special acts of Congress
authorizing the construction of bridges over navigable
waters. The act gave general consent for the erection
of all bridges, the locations and plans of which had been
approved by the Chief of Engineers and the Secretary
of War. Id.

L. It is held that the statutory requirements as to notice
and hearing were fully complied with by the defendant
in the issuance of the new permit. Id.

Navigable Waters ← 20(2)

LI. Plaintiff's contract to supply 1,175,400 brass buckles to
the Philadelphia Quartermaster Depot was terminated
by the Government when plaintiff's subcontractor
proved unable to manufacture the items. The Govern-
ment went into the open market and purchased the
buckles at a higher price than that originally contracted
for. The final cost to the Government was $98,366.86
as against $74,473.34 which it would have had to pay
under plaintiff's contract. Plaintiff is obligated for the
difference and the defendant is entitled to recover on
its counterclaim, with plaintiff being allowed offsets for
amounts withheld from other contracts. Whitlock
Corp., 758.

LII. Insolvency of a subcontractor is not listed in the contract
as one of the enumerated excuses for nonperformance,
nor is it shown in the instant case that such insolvency
was without its fault or negligence or beyond its control.
Id.

United States 73(1)

141 C. Cls.

CONTRACTS-Continued

LIII. Where contracts are dependent upon a sole source of supply
or upon services of a peculiarly personal nature per-
formance may be excused where there is a failure of
such source or services beyond the control of the con-
tractor. In the instant case, however, the contract
items were available from a number of other sources
and procurement elsewhere would have been satisfactory
to the Government so long as it was charged no addi-
tional cost. The difficulty was that plaintiff did not
wish to perform the contract at a loss. Id.
United States

73(1)

LIV. Plaintiff's contention that the contracting officer's finding
of fault or negligence was not one of fact but a matter
of law is not sustained. Such a determination is a
finding of fact and under Public Law 356 of the 83rd
Congress is final and conclusive on the parties absent
a showing that the decision was arbitrary, capricious,
fraudulent or not based on substantial evidence. See
Volentine and Littleton v. United States, 136 C. Cls.
638. Id.

LV. The practice of waiting until argument to seek the admis-
sion of additional evidence is not favored, particularly
when such evidence is not claimed to be "newly dis-
covered." The documents offered by defendant are
admitted only because failure to consider them would
deny relief to defendant on what is otherwise a meritorious
counterclaim. Id.

LVI. Plaintiff, which claims to have been misled by a sub-
contractor's estimate, made what it describes as an
erroneous bid for construction of outside utilities
electrical work at O'Hare Field, near Chicago, Illinois.
The contract was awarded to plaintiff, but within a
few days after its execution a change order was issued
calling for less expensive construction and providing
that an equitable adjustment would be made at a
later date. Plaintiff accepted the change order and
performed the work but objected to the subsequent
equitable adjustment which reduced the contract price
by $41,510. Figures suggested by plaintiff indicated
that it planned to use the equitable adjustment as a
means to correct its alleged mistake in bid. Plaintiff
does not seek reformation of the contract. Plaintiff is