662 Reporter's Statement of the Case The Reporter's statement of the case: Mr. Rees B. Gillespie for the plaintiff. Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. The court made special findings of fact as follows: 1. Plaintiff is a colonel in the United States Marine Corps, and was a second lieutenant and first lieutenant, respectively, while serving with the Marine Corps Expeditionary Forces in China for the period from July 16, 1929, to October 4, 1932. He served continuously in Shanghai, China, with the Fourth Marines. 2. Plaintiff was married in Shanghai, China, on July 16, 1929. This marriage was dissolved by divorce on March 28, 1932. 3. From July 16, 1929, to September 15, 1932, plaintiff lived in private quarters consisting of furnished apartments he rented in the French Concession and in the International Settlement of Shanghai. He paid 100 taels, or approximately $35 a month, for the rental of the apartment in the French Concession, and 140 taels, or $50 a month for the apartment in the International Settlement. He also used in these apartments furniture which he brought with him from the United States and other furniture which he purchased in China. 4. On September 15, 1932, plaintiff was furnished bachelor officer's quarters in the Officers' Club, consisting of one room. These quarters were rented by the quartermaster of the Fourth Marines for the use of Marine Corps officers, and were furnished to plaintiff by the commanding officer of that organization, or the post quartermaster. Plaintiff occupied these quarters with another officer from September 15 until October 4, 1932. These quarters did not have bathing or toilet facilities. Such facilities were provided in a common toilet and washroom located on another floor of the building. 5. From July 16, 1929, until March 27, 1932, plaintiff was paid rental allowances of $80 a month authorized for an officer with a dependent, and from October 1 to October 4, Opinion of the Court 107 C. Cls. 1932, inclusive, he was paid rental allowances of $60 a month authorized for an officer without dependents. 6. Plaintiff was not formally assigned Government quarters while on duty in China. 7. If plaintiff is entitled to recover rental allowances as an officer without dependents for the period of his claim, i. e., from April 1, 1932, to September 30, 1932, there would be due him the sum of $340 (Reply of General Accounting Office, filed September 24, 1938). The court decided that the plaintiff was not entitled to recover. WHALEY, Chief Justice, delivered the opinion of the court: The plaintiff, a colonel in the United States Marine Corps, sues to recover rental allowances as an officer without dependents for the period April 1, 1932, to September 30, 1932, amounting to $340. During this period he served as an officer of the Marine Corps Expeditionary Forces in China, specifically in Shanghai, and was without dependents. From April 1 to September 15, 1932 he occupied private apartments rented by him, and at least partly furnished by him. September 15, 1932 to the end of that month there was made available to him bachelor officer's quarters in an officers' club which he shared with another officer. He was not, however, formally assigned Government quarters. The inadequacy of the quarters he occupied for one of his rank is not questioned. Plaintiff is entitled to recover under Montague v. United States, 79 C. Cls. 624. It is conceded that in the event of recovery the amount thereof should be $340. The plaintiff is entitled to recover and judgment will be in his favor in the sum of $340. It is so ordered. MADDEN, Judge; JONES, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. 665 Reporter's Statement of the Case SQUARE CONSTRUCTION COMPANY, A CO-PARTNERSHIP COMPOSED OF FRANK P. RAGONESE AND JOSEPH V. SCARAVELLI, v. THE UNITED STATES [No. 46243. Decided March 3, 1947] On the Proofs Government contract for sewer construction; inapt specifications and overloading of pipe.-Plaintiff in 1942 entered into a contract with the Federal Works Agency for the construction of a sewer. The contract was completed in accordance with the specifications, but was found to be unsatisfactory and plaintiff's right to proceed was terminated by the defendant and final payment to plaintiff was withheld. Faults in the sewer were corrected by another contractor under a cost-plus contract and the new contractor was given greater freedom in his operations and was permitted to use some methods which plaintiff had sought to use but which defendant's representative would not then authorize. The court finds that inapt specifications and overloading of the pipe rather than careless or improper work by plaintiff was the cause of any failure in the line, and plaintiff is entitled to recover the amount covered by its estimate which defendant had agreed to pay if plaintiff would sign a full and complete release, which plaintiff declined to do. Same; extra expense disallowed; counterclaim dismissed.-Plaintiff is not entitled to recover the additional amount claimed for extra work, replacements and changes, which is offset against the cost of the necessary repair and replacement work which was done under the second contract, and defendant's counterclaim for that amount is dismissed. The Reporter's statement of the case: Mr. Nathan Patz for the plaintiff. Mr. Horace G. Marshall, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. On consideration of plaintiff's motion for new trial, which was allowed in part and overruled in part, the former findings of fact, conclusion of law and opinion filed December 2, 1946, were vacated, set aside and withdrawn and new special Reporter's Statement of the Case 107 C. Cls. findings of fact, conclusion of law and opinion were filed March 3, 1947, as follows: 1. The Square Construction Company, hereinafter referred to as the plaintiff, is a partnership composed of Frank P. Ragonese and Joseph Scaravelli, having offices in the City of Baltimore, Maryland. 2. Under date of April 25, 1942, plaintiff and defendant, acting through William N. Carey, Chief Engineer, Federal Works Agency, entered into an agreement designated as WA-2003, Contract No. 1, for Section I, Docket Va. 44-240, by the terms of which plaintiff agreed to furnish the materials and perform the work for the construction of approximately 10,550 linear feet of vitrified sewer, part of which was to have a diameter of 33 inches and the balance a diameter of 30 inches, complete with manholes and manhole rings and covers. This distance formed a part of a gravity trunk sewer line which extended from Falls Church, Virginia, and vicinity to the Potomac River, having a total length of approximately twenty miles. The trunk sewer paralleled three streams known as Cameron, Tripps, and Holmes Runs. For purposes of construction, the line was divided into six sections, of which the plaintiff constructed the one designated as section one. The eastern extremity of this section began at station 60 and ran in a westerly direction to station 165+42.92, closely paralleling Cameron and Holmes Runs and crossing them or tributary streams at four points. The pipe was practically all installed below the flow line of the creek. In addition to carrying sewage coming from other portions of the line, section one was to carry the sewage from a quartermaster depot, then in process of construction. The sewage from the quartermaster depot reached the trunk line by means of two smaller sewer lines which connected with the trunk line at stations 121+26 and 124+29. Work upon section one was to be completed for an estimated consideration of $116,677.25, in accordance with unit prices set forth in the proposal, in strict accordance with the specifications, schedules, and drawings made a part of the contract. Among the items for which unit prices were invited and bids submitted were concrete cradle or foundation and gravel or broken stone cradle-Unit item No. 7 of bid. 665 Reporter's Statement of the Case 3. Plaintiff's section was laid with vitrified clay bell and spigot pipe, measuring three feet in length with the large or flared end, called the "bell," laid in an upstream direction of the trench into which was fitted the small end or spigot of the next piece. The 33-inch diameter pipe was to be used between stations 60 and 107+13.48 and the pipe of 30-inch diameter was to be used between stations 107+13.48 and 165+ 42.92. It was laid at depths varying from 5 to a little over 15 feet. 4. According to the terms of the contract, the work was to be completed within 90 calendar days after the time stated in the written notice to proceed, which was May 8, 1942, thereby fixing the completion date as August 5, 1942. 5. Construction work was commenced during the first week of May 1942. Pipe laying and backfilling of excavation was completed October 3, 1942. The pipe was inspected and approved by defendant's inspector immediately before being laid in the trench, and all pipe laid was approved by the defendant's inspector. 6. During the progress of its work, plaintff presented to the defendant monthly estimates for work performed and amounts due. Three of these estimates amounted to $98,000 and were approved and paid. The fourth estimate for $9,518.05 was presented and remains unpaid. A fifth and final estimate appears to be in dispute. Plaintiff contends that it completed the contract work according to the specifications and directions of the defendant. The defendant contends that plaintiff's work was defective and unsatisfactory, and that it was compelled to employ another contractor to replace some of plaintiff's work. The defendant has entered a counterclaim against plaintiff for the sum of $58,359.41. 7. The specifications provide: All PREPARATION OF FOUNDATION: The Contractor shall complete excavations in earth as nearly as practicable to the neat lines of the structure to be built therein. irregularities and cavities, either in earth or rock excavation, in the bottom of trenches or tunnels, shall be filled up to the required level with clean gravel or broken stone, firmly compacted, before pipe lines are laid therein, and without extra compensation unless said cavities have been |