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CASES DECIDED

IN

THE COURT OF CLAIMS

February 1, 1943, to March 31, 1943, and other cases not heretofore

published.

JACOBSON BROTHERS COMPANY V. THE

UNITED STATES

(No. 43009. Decided October 5, 1942. Plaintiff's motion for new trial

overruled February 1, 1943)

On the Proof

Government contract; effectiveness of release; deduction by Comptroller

General; liquidated damages.—Where plaintiff, contractor, entered into a contract with the Government for the construction of an addition to the Library of Congress; and where, upon plaintiff's statement to the contracting officer representing the defendant that plaintiff was making no claims against defendant based on any supposed breaches of contract on the defendant's part and upon plaintiff's execution of a complete release, with no exceptions, the contracting officer decided that it would be equitable to grant plaintiff extensions of time aggregating 272 days, the number of days after the agreed date on which the contract was completed ; and where the contracting officer recommended settlement on such basis, thus wiping out any liability on plaintiff's part for liquidated damages; and where settlement was effected on that basis, with the exception of one item; it is held that plaintiff is not entitled to recover except for said one item, deducted by the Comptroller

General. Same.-Where upon final settlement between contractor and the Gov

ernment, contractor executed a complete release without any exceptions; and where thereupon the Comptroller General issued a certificate of settlement for the amount of the voucher recommended by the contracting officer less $900 deducted by the Comptroller General for liquidated damages for nine days' delay; and where Treasury check in the amount named in the said certificate of settlement was issued to plaintiff and plaintiff accepted and cashed said check ; it is held that the contract bound plaintiff to

1 533123–43—Vol. 98—2

98 C. Cls. Reporter's Statement of the Case give a release which would be effective except as specific matters were reserved for further claim or litigation and the release given

had such effect. Same.-Deduction of an amount by the Comptroller General in final

settlement of contract did not destroy the effectiveness of complete release by contractor as a defense to a suit against the Government on a validly released claim.

The Reporter's statement of the case :

Mr. Louis M. Denit for plaintiff. Brandenburg & Brandenburg were of counsel.

Mr. James J. Sweeney, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows:
1. Plaintiff is a corporation of the State of Delaware.

2. March 31, 1932, plaintiff entered into a contract (Symbol No. AC-cong-70) with the defendant, represented by its contracting officer, David Lynn, Architect of the Capitol, whereby plaintiff, for the consideration of $1,123,000, agreed to furnish all labor and materials and perform all work required for the construction of an addition to the Library of Congress, in accordance with designated specifications, schedules, drawings and other documents, the work to commence within ten calendar days after date of receipt of notice to proceed and be completed within 400 calendar days from date of such receipt. '

The work included the reconstruction and remodeling of certain parts of the existing east book stack, reconstruction and remodeling of the East Main Building together with corridors adjacent thereto, remodeling of parts of the East North and East South curtains adjacent to the East Main Building, the extension and addition to the present building; the reconstruction of the vaults below grade, and the new equipment, driveways, and approaches, all as required by the drawings and specifications. The contractor was also required to protect certain parts of the existing structure and equipment therein, to relocate equipment and piping, and to maintain the continued service of drinking water cooling and circulation and brine cooling and circulation. Unit prices were submitted for the following items:

1.

Reporter's Statement of the Case 1. Excavating for footings or other work below cellar floor.

2. Earth fill and grading same.

3. Reinforced concrete footings including forming and reinforcing steel.

4. Reinforced concrete walls including forming and reinforcing steel.

5. Plain 1-2-4 mixture concrete.

Plaintiff furnished a performance bond in the penal sum of $561,500, with the United States Fidelity and Guaranty Company of Baltimore, Maryland, as surety.

The contract and its documents are in evidence and are made part hereof by reference.

3. On April 14, 1932, plaintiff received notice to proceed, thereby fixing the date for completion as May 19, 1933.

Plaintiff commenced work May 11, 1932, and completed it February 14, 1934. Plaintiff thus used 272 days in excess of the originally agreed time of 400 days.

At the time of final settlement the Architect of the Capitol, who was the contracting officer, waived all delays and did not assess any liquidated damages against the contractor. He allowed time extensions aggregating 272 days as follows:

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During the progress of the work, plaintiff requested time extensions greatly in excess of the 272 days allowed. On most occasions the contracting officer deferred final action on plaintiff's requests for time extensions until the time of final settlement. As to many of the delay periods, there were two or more concurrent delays on different parts of the 98 C. Cls. Reporter's Statement of the Case work. Plaintiff did not at any time suspend all of the contract work on account of such delays. The contract pro. vided that plaintiff should pay to the defendant $100 per day for each calendar day's delay in the completion of the contract, subject to the provisions of Article 9 of the contract.

4. Article 3 of the contract provided that the contracting officer might make changes in the drawings or specifications within the general scope of the contract.

Under this article of the contract the contracting officer made changes, adding to the contract price or deducting therefrom, by orders as follows:

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