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PROCEDURE WITH REGARD TO PETITIONS FOR

REVIEW ON CERTIORARI

(Public-No. 81–76th Congress]
[Chapter 140-1st Session)

(S. 198]

AN ACT TO PROVIDE THAT BECORDS CERTIFIED BY THE COURT OF CLAIMS

TO THE SUPREME COURT, IN RESPONSE TO WRITS OF ERTIORARI, MAY INCLUDE MATERIAL PORTIONS OF THE EVIDENCE, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 3, subsection b, of the Act of February 13, 1925 (43 Stat. 936, 939, c. 229; U. 8. Code, title 28, sec. 288b), be amended so as to read as follows:

“(b) In any case in the Court of Claims, including those begun under section 180 of the Judicial Code, it shall be competent for the Supreme Court, upon the petition of either party, whether Government or claimant, to require, by certiorari, that the cause be certified to it for review and determination of all errors assigned, with the same power and authority, and with like effect, as if the cause had been brought there by appeal. In such event, the Court of Claims shall include in the papers certified by it the findings of fact, the conclusions of law, and the judgment or decree, as well as such other parts of the record as are material to the errors assigned, to be settled by the Court.

"The Court of Claims shall promulgate rules to govern the preparation of such record in accordance with the provisions of this section.

“In such cases the Supreme Court shall have authority to review in addition to other questions of law, errors assigned to the effect that there is a lack of substantial evidence to sustain a finding of fact; that an ultimate finding or findings are not sustained by the findings of evidentiary or primary facts; or that there is a failure to make any finding of fact on a material issue.”

Approved, May 22, 1939. (53 Stat. 752.)

XXVI

AMENDMENT OF RULES OF THE SUPREME COURT

ORDER OF MARCH 25, 1940

It is ordered that Rule 41 of the Rules of this Court be, and the same is hereby, amended to read as follows:

“41

"JUDGMENTS OF THE COURT OF CLAIMS-PETITIONS FOR REVIEW

ON CERTIORARI

"(See Sec. 3 (b) of the Act of February 13, 1925, as amended by the

Act of May 22, 1939)

“1. A petition to this court for a writ of certiorari to review a judgment of the Court of Claims shall be accompanied by a certified transcript of the record in that court, consisting of the pleadings, findings of fact, conclusions of law, judgment and opinion of the court, and such other parts of the record as are material to the errors assigned. The petition shall contain a summary and short statement of the matter involved; the relevant parts of statutes involved (see Rule 27 (f)); the questions presented; and the reasons relied on for the allowance of the writ. Only the questions specifically brought forward by the petition for writ of certiorari will be considered. A supporting brief may be annexed to the petition or presented separately, but it must be direct and concise. (See Rules 26 and 27.) The petition, brief, and record shall be filed with the clerk, and forty copies shall be printed under his supervision. The record shall be printed in the same way and upon the same terms that records on appeal are required to be printed. The estimated costs of printing shall be paid within five days after the estimate is furnished by the clerk; and if payment is not so made, the petition may be summarily dismissed. When the petition, brief, and record are printed, the petitioner shall forthwith serve copies thereof the respond nt, or his counsel of record, and shall file with the clerk due proof thereof.

“2. Within twenty days after the petition, brief, and record are served (unless enlarged by the court, or a justice thereof when the court is not in session), the respondent may file with the clerk forty printed copies of an opposing brief, conforming to Rules 26 and 27. Upon the expiration of that period, or upon an express waiver of the right to file or the actual filing of such brief in a shorter time, the petition, briefs, and record shall be distributed by the clerk to the court for its consideration. (See Rule 38, par. 4 (a).)

“The provision of subdivision (a) of paragraph 3 of Rule 38 shall apply to briefs in opposition to petitions for writs of certiorari to review judgments of the Court of Claims.

“3. The same general considerations will control in respect of petitions for writs of certiorari to review judgments of the Court of Claims as are applied to applications for such writs to other courts. (See par. 5 of Rule 38.)”

It is further ordered that the regulations prescribed by this Court in reference to appeals from the Court of Claims, appearing in 210 U. S., appendix, be, and they hereby are, rescinded.

AMENDMENT OF RULES OF THE COURT OF CLAIMS

It is ordered this 10th day of April 1940 that the Rules of the Court of Claims be, and they are hereby, amended by renumbering the present RULE 99 as 99 (a) and by adding to said rule an additional paragraph numbered 99 (6) and reading as follows:

"99 (0). Whenever a certified transcript of the record is requested by the plaintiff or his attorney of record, or by the Assistant Attorney General, for the purpose of filing a petition for a writ of certiorari in the Supreme Court, and the plaintiff or defendant desires not only the pleadings, fir ings of fact, conclusion of law, judgment and opinion of the Court but also "other parts of the record as are material to the errors assigned,” the party making the request for the record shall file with the Court, not more than forty-five (45) days after judgment has been entered, a copy of the petition for the writ of certiorari and an original and five (5) copies of such parts of the record as, in his judgment, are material to the errors assigned, and serve upon the opposing counsel a copy of the same at the same time it is filed in the Court.

"Unless the parties can agree as to the parts of the evidence in the record which are material to the errors assigned, then counsel for the party so objecting shall, within ten (10) days from the date of the filing in the Court and service upon him of the above record, file with the Clerk of the Court an original and five (5) copies of such parts of the evidence as he considers should become part of the record to be certified, and at the same time serve upon the appellant's attorney a copy thereof. The Court will then settle the record to be certified.

"See Rule 41 of the Supreme Court as amended March 25, 1940, and Supreme Court General Equity Rules."

IN

THE COURT OF CLAIMS

April 1, 1940 to October 6, 1940.

DEWEY SCHMOLL, SUCCESSOR ASSIGNEE FOR

THE BENEFIT OF CREDITORS OF MURCH BROTHERS CONSTRUCTION COMPANY, INC., v. THE UNITED STATES

[No. 42519-B. Decided January 8, 1940. Defendant's motion for

new trial overruled June 3, 1940]

On the Proofs

Government contract; delay caused by failure to acquire title.

Where the execution of the contract implied an agreement by the Government to acquire title to the premises, or at least control of the premises upon which the buildings were to be erected, it is held that failure to do so, causing a delay in starting the work, operated as a waiver of the time limit of

the contract. Same; violation of contract by separate notices to commence work.

Where the contract implied that one notice to proceed with the work and only one would be given, and when by reason of its own fault and negligence defendant attempted to segregate the work to be done under the contract and to serve notices differing as to the date of completion, it is held de

fendant again violated the contract. Same; postponement not a suspension.-Where the contract provided

for the suspension of the work under ce in circumstances, such provision for suspension cannot be applied to a direction

to postpone the commencement of the work. Same.--To "suspend” work means to stop work already begun. Same.-The defendant, it is held, could not postpone the commence

ment of work so as to make impracticable the performance of the contract within the time specified therein and then insist on liquidated damages because the contract had not been

performed as originally stipulated. Same; time for completion.Where a provision of the contract pro

vides for an apportionment of liquidated damages when part of the buildings are completed within the time specified and part are not so completed, it is held that such provision has application only where a specified time for completion of the buildings remains a valid part of the contract; such provision cannot apply unless it is first found and held that the defendant is entitled to liquidated damages.

1

Reporter's Statement of the Case Same; breach by failure to provide site.-Failure on the part of

the defendant to make available to the contractor the site on which work is to be performed is a breach of the contract.

McCloskey v. United States, 66 C. Cls. 105, cited. Same; breach by failure to facilitate work.—Where the performance

of the contract is required at a fixed date there is an implied contract that the Government will do its part so as to render the performance of the contract possible on the part of the contractor. Worthington Pump & Machinery Corp. v. United

States, 66 C. Cls., 230, cited. Same; contractor prevented from timely completion.—Where a con

tractor is prevented from executing his contract according to its terms, he is relieved from the obligations of the contract as to time of completion and from paying liquidated damages.

Levering & Garrigues v. United States, 73 C. Cls. 566, 578 cited. Same; penalties.—Penalties are not favored by the courts when it

does not appear that any actual damages have been sustained. Same; additional overhead.-Where neither the contractor nor the

defendant was the sole cause of delays, and where the delays for the greater part were caused by additional work required by the defendant, which the contractor in part performed at an agreed price, it is held that the contractor is not entitled to

recover for additional overhead as such, Same; special tests.—Where contract provided that contractor should

without additional charge furnish all facilities, labor and material for tests required by the inspectors and that special fullsize, and performance tests should be as described in the specifications, it is held that contractor is entitled to recover for a

special and performance test not described in the specifications. Same; authority of contracting officer.—Where contractor was al

lowed additional pay for extra work, on the basis of contractor's actual cost plus 10 percent to cover overhead and profit, and where the extra work was actually performed by a subcontractor, it is held that under the contract the ruling of the contracting officer that the amount allowed (10 percent)

for both profit and overhead was sufficient was conclusive. Same.—Under the contract, the contracting officer's decision was

final in disputes as to questions of fact but he was given no

authority to determine the proper construction of the contract. Same; extra work.—Where an independent subcontractor threw out

rock and soil, which defendant required the prime contractor to remove and do the necessary regrading in accordance with the specifications, it is held that the plaintiff is entitled to

recover for extra work. The Reporter's statement of the case :

Mr. M. Walton Hendry for the plaintiff. Mr. Bernard J. Gallagher was on the briefs.

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