256 Opinion of the Court workmen took this language to mean one-half by volume, and applied such a mixture. The mixture was too hard, and the coating cracked badly, whereupon the architects required its removal and replacement by a mixture of about one-fourth Portland cement and three-fourths asbestos by volume. If Loftis' workmen had mixed the materials by weight, instead of by volume, the one-half of cement, by weight, would have been about one-fourth, by volume, since the asbestos ingredient was much lighter, and this mixture would have been satisfactory. The defendant contends that Loftis should have known that the mixture by volume would be improper, and hence should have made the mixture by weight. The architects' representative who supervised the work for the defendant testified that specifications for mixtures of cement as ordinarily written mean parts by volume. We think that Loftis' men acted reasonably in reading the specifications as they did, in view of this custom, and had a right to suppose that the defendant wanted the result which the specifications would produce. To be sure, if Loftis' men had known better, they should have inquired as to whether a mistake had been made, just as if the defendant's inspector had happened to observe the mixture, and had known that the result would not be right, he should have given instructions for a proper mixture. In the circumstances, we think the fault was the defendant's in writing the specifications wrongly, and that it should pay for correcting the mistake. Plaintiff made no claim for this extra work until June 1932, after the work was completed. Plaintiff asserts, and we have found, that there was an understanding between Loftis and the representative of the surety company which took control of Loftis' work while it was still in progress, on the one hand, and Kramer, the representative of the architects, on the other, that Loftis would do whatever was directed by the architects, and would withhold claims for extra work until after the job was completed. On June 20, 1932, plaintiff forwarded to the architects a considerable number of claims, including the one for recovering boilers and others hereinafter discussed. The architects considered these claims on their merits without any assertion that they Opinion of the Court 98 C. Cls. were late, and made adverse recommendations on them to the Treasury Department. A hearing was held before the Assistant Secretary of the Treasury in 1933, at which representatives of both parties appeared. Again, no objection on account of lateness was made to the presentation of the claims. On June 5, 1934, the Department rejected the claims. In these circumstances the lateness of presentation of the claims to the architects did not foreclose plaintiff. Thompson v. United States, 91 C. Cls. 166, 179. The defendant does not urge that the Department's determination was, under Article 15 of the contract, final. It is not, therefore, necessary for us to determine whether the language of that article is applicable to the questions presented here, or any of them. We have, therefore, decided the several claims on their merits. Floor and Ceiling Plates The defendant's architect requested plaintiff to revise its original drawing to show nickel-plated floor and ceiling plates around pipes. The contract did not call for nickel-plated plates. Loftis made the change, and installed the kind of plates requested, without then making any protest or claim for additional compensation. The additional cost of the plates because of the nickel plating was $543.58. The defendant's architect testified that he regarded this change as covered by a change order which related primarily to other fixtures, but the defendant does not urge that contention here. It relies solely on the lateness of plaintiff's claim, which was not made until June 1932, after the completion of the contract. As to the lateness of the claim, what we have said above in relation to the recovering of the boilers is applicable, and plaintiff may recover its additional cost. Clean-out Plates Plaintiff claims that it was required to use chromium plated clean-out plates, and that it should be paid the extra cost of the chromium plating, as that was not required by the contract. We have found that this alleged extra cost 256 Opinion of the Court was covered by an extra order given and paid for by the defendant, requiring chromium plating on metal in the toilet rooms. Plaintiff is not entitled to recover for this item. Cleaning Traps Some traps in the heating system did not operate properly, and the defendant required plaintiff, pursuant to its guaranty, to go over them. In some of them elements were missing and these were installed. All were cleaned. Some months later there was further trouble and the defendant again required plaintiff to clean the traps. Plaintiff urges that the trouble which gave rise to the second cleaning was that the defendant caused the return pipes to be covered, which prevented the steam from condensing, thus interfering with the operation of the traps. The defendant later removed the covering from the return pipes. The basis of plaintiff's claim is that the second cleaning required of it under its guaranty was unnecessary and useless, since it had no relation to the trouble. Article 14 of the specifications, quoted in finding 14, lodged broad discretion in the contracting officer as to determining plaintiff's duty under its guaranty. It concludes with this language: The opinion of the contracting officer as to the liability of this contractor under any such guarantee or as to the satisfactory fulfillment or compensation for non fulfillment thereof shall be final. The contracting officer concluded, not unreasonably we think, that the second cleaning was called for under the guaranty. We have doubts as to whether he was right, but whichever way we might resolve our doubts, plaintiff could not recover, in view of the language quoted. Vent Pipes for Dishwashing Machine The contract called for the installation of a dishwashing machine. It is not good practice to connect the vents for exhaust steam from such a machine with the ventilating system of a kitchen, hence such a connection was not called for by the contract, which contained no language specific Opinion of the Court 98 C. Cls. to the problem. Loftis, however, furnished the architects a shop drawing showing the machine connected with the ventilating system. Loftis was in error in so making the shop drawing and, when he installed the machine, he did not make the connection, and objected to being required to do so. He was, however, directed in writing to make the connection, which he did at a cost of $103.00. The arrangement did not work, and the connection was later removed. Plaintiff made a written claim for this item, which was rejected by the architects. He again included this claim in the group presented in June 1932, and it was dealt with in the way we have described above in connection with the claim for recovering the boilers. Plaintiff may recover on this item. Vent Pipes for Steam Kettles Practically the same things happened concerning the steam kettles as we have described in connection with the dishwashing machine, except that here Loftis made no shop drawing showing connections with the ventilating system. He was, however, ordered to make the connection, which he did at a cost of $475.00 and, the arrangement proving unworkable, the defenuant later removed the connection. There was a claim, a rejection, and a renewal of the claim as in the case of the dishwashing machine. Plaintiff may recover. We have, as appears above, concluded that plaintiff may recover on its claims for radiator valves, recovering boilers, floor and ceiling plates, and connecting the dishwashing machine and steam kettles with the ventilating system. The several amounts, with allowances for overhead and profit, where proper, total $16,452.33, and for this amount plaintiff is entitled to a judgment. It is so ordered. JONES, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. Syllabus ASPHALT REVETMENT CO., INC. v. THE [No. 43300. Decided February 1, 1943] On the Proofs Patent for protective mat structure for river banks; validity.—United States letters patent 1,874,567, applied for August 8, 1929, and issued August 30, 1932, to Oscar A. Mechlin, directed to a protective mat structure for river banks, and assigned January 19, 1931, to plaintiff, held to be invalid. Same; infringement.-For many years United States engineers engaged in revetment work to protect the banks of the Mississippi River and to stabilize the river in its course have used various types of protective mattresses such as fascine and articulated concrete, and the Government has also manufactured and installed reinforced asphaltic composition mattresses. The terminology of the two claims of the patent in suit is applicable to this latter type of structure and the Mechlin patent if valid would be infringed thereby. Same; validity.-When the claims of a patent are directed to an asphaltic composition possessing certain characteristics, such as flexibility and self-sustaining cohesiveness, and the proper proportions of asphaltic compositions having the same characteristics were well known in the prior art, it is not necessary for the specification to disclose in detail the proportions of the various ingredients mentioned as forming the composition, and the claims are not invalid because of the lack of such disclosure. Same; anticipation.-The two claims of the Mechlin patent in suit do not specify anything previously unknown to those skilled in the art and are not directed to novel subject matter. Same. The two claims of the patent in suit are anticipated by the United States patent 869,566 issued to Hawkes in 1907. Same; indefiniteness.-The specifications of the Mechlin patent disclose no limitation as to length, width or thickness of the mat of asphaltic composition; and plaintiff's theory that the patent monopoly is addressed only to large continuous sheets and not to mats of the size set forth in the prior art patent to McGillivray would, if followed, lead to invalidation of the claims because of failure to properly define the invention. General Electric Co. v. Wabash Appliance Corporation, et al., 304 U. S. 364, 369, cited. 533123-43-vol. 98-20 |