tract as a war measure after such completion and
settlement; it is held that plaintiff is not entitled to
recover. Centaur Construction, 498.
XXIX. Without deciding whether, under the special provisions
of Article 9 of the contract in suit, it was essential
that the plaintiff file an appeal to the head of the
department within 30 days after final rejection of its
claims, or whether in the absence of an appeal, the
contracting officer might have a reasonable time beyond
this period within which to reconsider the merits of
the claims; it is held that under the peculiar cir-
cumstances of the instant case and the state of the
record and the evidence, such a reasonable period, even
if allowed, could not be extended as much as 16 months
under the provisions of Article 9. King & Co. v. United
States, 80 C. Cls. 325, and Rollins and Presbrey v. United
States, 23 C. Cls. 106, are distinguished. Id.
'XXX. Under the broad powers of the First War Powers Act of
1941 (55 Stat. 838) and the Executive Order issued
pursuant thereto, the contracting officer and the De-
partment head had no authority to amend or modify
a contract under which the work had been completed
and final settlement effected. The First War Powers
Act only authorized amendment or modification of
future or pending contracts whenever it was deemed
that such action would facilitate the prosecution of
the war. Id.
XXXI. A traffic regulation at an Army post, which plaintiffs
allege increased their cost of performance of a con-
tract with the Government, was issued in the perform-
ance of a governmental function, and for such an act
the Government is not liable. Hallman Bros., 555.
XXXII. The provision of the contract in suit relating to changed
conditions referred to changed physical conditions af-
fecting the performance of the contract and had no
reference to such conditions as were brought about by
a traffic regulation on an Army post issued subsequent
to the signing of the contract. Id.
XXXIII. Where in a lump-sum contract it was provided that there
should be an addition to or a deduction from the con-
tract amount for rock excavation based on the quantity
of rock actually excavated, more or less than the esti-
mated quantity; and where the quantity of rock exca-
vation was very much less than the estimated quantity
and deduction was made accordingly at $7 per cubic
yard as stipulated in the contract; it is held that the
plaintiff is not entitled to recover although the cost of
rock excavation to the contractor was less than $7 per
cubic yard. Hedin et al., 558.
XXXIV. Where the contractor submitted a lump-sum bid based in
part upon the yardage of rock excavation estimated in
the invitation for bids, and in the contract, which also
fixed $7 per cubic yard as the price for excess or defi-
ciency in the estimated quantity of rock excavation;
and where the contractor, before submitting his bid,
made no independent investigation as to the cost of
rock excavation in the vicinity; and where the cost to
the contractor of rock excavation turned out to be
much less than the estimated $7 per cubic yard and the
quantity of rock excavated turned out to be much less
than the quantity estimated; and where in final settle-
ment deduction was made accordingly; it is held that
the plaintiff has not shown by the evidence that he is
entitled to an equitable adjustment of the deduction.
Id.
XXXV. Where plaintiff's construction contract included the in-
stallation of plumbing facilities such as water lines,
sanitary sewer lines and surface water drain pipes
to points outside the exterior walls of the building,
at which points connections would be made by other
contractors with these facilities, and they would be
extended, through ditches, to their destinations away
from the new buildings; it is held that the plaintiff has
not shown by the evidence that the work of laying
sewer, water, and steam service lines, grading, leveling,
and road and sidewalk construction, all of which was
done by the Government as a W. P. A. project, was
done in a manner so inconsiderate of plaintiff's in-
terests as to constitute a breach of the contract and
plaintiff is not entitled to recover. Id.
XXXVI. Where a considerable part of the blasting done on the
W. P. A. project took place at such a distance from
plaintiff's work that it could not have amounted to a
substantial interference; and where the plaintiff, as
shown by the evidence, maintained only incomplete and
unsatisfactory records as to the alleged interference
with the work by blasting, of which the Government
had no notice and no opportunity to check the ac-
curacy of such records; it is held that the plaintiff has
not adequately proved any damages resulting from
illegal interference with its work by the W. P. A.
Id.
XXXVII. While discrepancies and inconsistencies are apparent in
the evidence presented by the plaintiff, the Court holds
that no such lack of good faith in the presentation of
evidence has been shown as to amount to fraud within
the meaning of section 172 of the Judicial Code (28
U. S. C. 279) and the Government's plea of fraud is
dismissed. Id.
XXXVIII. Upon the authority of the decision of the Supreme Court
in the case of United States v. Howard P. Foley Co.,
329 U. S., it is held that the plaintiff is not entitled to
recover. (See page 710, post.) Kelly Company, 594.
XXXIX. Where there was unquestionably a delay of 82 days in
the completion of the contract in suit; and where it
is established that none of this delay was the fault
of the plaintiff but since on the evidence adduced it is
not possible to determine the portion of the delay for
which the defendant was responsible and also not pos-
sible to determine from the record the portion of the
delay due to each of the two causes for delay; it is
held that the record does not afford a sufficient ground
for recovery on the part of the plaintiff even if re-
covery were not barred by the decision in the Foley
case. Id.
XL. Where plaintiff, a manufacturer, entered into a con-
tract with the Government for the manufacture of a
certain number of metal "waterproof" blanket con-
tainers for use on life rafts carried on ships; and
where certain tests made by the Government as to
containers submitted under the contract were proper
and reasonable and were sufficient to show that the
containers were not "waterproof" within the intent
and meaning of the contract; it is held that in the
circumstances the defendant was justified in reject-
ing the containers submitted and in terminating the
contract as to the remainder, and its action in doing so
did not constitute a breach of the contract, for which
plaintiff would be entitled to recover. Newark Fire-
proofing, 606.
XLI. It is immaterial, so far as plaintiff's right to recover is
concerned, that defendant predicated its rejection of
the manufactured containers and the termination of
the contract as to the balance called for on the er-
roneous ground that the containers did not satisfy a
"watertight" test. See College Point Boat Co. v. United
States, 267 U. S. 12. Id.
XLII. The terms "waterproof" and "watertight" are not used
interchangeably either generally or in marine matters.
While both terms generally signify imperviousness to
water, the important difference between them, which
is generally accepted and understood, is one of de-
gree; "waterproof" signifying the lesser and "water-
tight" the greater degree of imperviousness. Id.
XLIII. Where plaintiff entered into a construction contract with
the Government for the erection of temporary bar-
racks, in response to an invitation for bids in which
bidders were advised to visit the proposed sites and
become acquainted with conditions; and where plain-
tiff submitted its bid without inspecting the sites; it
is held that plaintiff is not entitled to recover for ex-
tra expense in excavations, since the conditions en-
countered were not subsurface and latent conditions
within the meaning of the contract. Walsh Brothers,
627.
XLIV. Where it was provided in the contract that the contractor
should pay the prevailing wages in the vicinity; and
where instead of paying carpenters 80 cents per hour,
which was the minimum wage named in the specifica-
tions and contract, it was necessary for plaintiff to pay
carpenters $1.00 per hour; it is held that the Govern-
ment's statement in the specifications was only a state-
ment of an existing fact at the time and was not a war-
ranty that, within the period of the performance of
the contract, workmen would not demand an increase
in wages, and plaintiff is not entitled to recover. Al-
bert & Harrison, Inc. v. United States, ante 292, dis-
tinguished, in which case the Government's statement as
to what the prevailing wage had been found by the
Secretary of Labor to be was erroneous. Id.
XLV. Where, on the one hand, the specifications stated that the
natural grades of the respective sites would be the
finished grades, and where, on the other hand, in the
case of several of the buildings, when the sites were
staked out, the grade marks on the stakes showed
that they were to be built on a level terrace, formed
by a considerable excavation on the uphill side and a
corresponding fill on the downhill side of the build-
ings; it is held that the plaintiff, without inspecting
the sites, had a right to rely on the clear statement
in the specifications as to how the buildings were to
be located with reference to the natural grade and is
entitled to recover on its claims (3 and 6) for extra
excavation and fill. Id.
XLVI. Plaintiff is not entitled to recover on its claim for extra
expense incurred by reason of alleged interference
and delay by the work of other contractors engaged in
installation of necessary utilities, since this was a
condition reasonably to be expected in the circum-
stances. Id.
XLVII. Delay in the work of plaintiff's subcontractor caused by
difficulty in obtaining heating equipment was not ex-
cusable within the meaning of article 9 of the contract,
and plaintiff is not entitled to recover liquidated dam-
ages deducted for late completion of the contract. Id.
XLVIII. In a suit involving the title to certain real property in
California, and plaintiff's claim that under a deed
executed in 1909 she is entitled to either the royalties
from an existing compensatory royalty agreement sub-
sequently executed by the United States covering that
land or to the value of the land itself; defendant's
demurrer is overruled. Deterding, 656.
XLIX. Where the plaintiff's predecessor in title in 1909 made
a deed providing that the land conveyed was to be used
for the stated purpose of widening and straightening
the Sacremento River in California "or for works or
purposes incidental thereto or in connection there-
with" with the stated understanding "that the grantors
or their assigns shall have at all times the right to make
such use of the lands hereby conveyed as may in the
judgment of the grantee or his assigns hereunder be
made without interfering in any manner with the said
works or purposes for which this deed is made;" it is
held that grantor's successor owned the exclusive right
to take gas from the land conveyed, since the deed
conveyed an easement to grantee and grantor retained
the corporeal and residuary interest in the land. Id.
L. Where grantee in deed which conveyed easement for the
purpose of widening a river transferred grantee's inter-
est to the United States, grantor retaining residuary
interest in the land, the relation between grantor's
successor and the United States in relation to their re-
spective rights in the land involved was a conventional
or contractual relation within the meaning of the stat-
ute giving the Court of Claims jurisdiction of such rela-
tions. (28 U. S. Code 250). Id.
LI. The provision in deed that grantor and his successor
should have use of land for all purposes except the
purpose of widening a river, for which grantee might
use it, constituted an agreement that grantee and its
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