671 Opinion of the Court (b) Type of material to be excavated in all cases such as can be moved by normal job labor and equipment, power shovels, without resorting to blasting. The single issue in this case is whether the material in the lower part of these excavations could be moved by normal job labor and equipment without resort to blasting. The findings set out in detail the nature of the work and the conditions upon which plaintiff's claim is based. We have found that normal job labor and shovels and the usual normal equipment were not sufficient to remove this hard rock shale without blasting. The plaintiff was not permitted to blast. The plaintiff found that while the bulldozer and the backhoe were sufficient to remove the upper part of the material, neither of them was sufficient to remove the consolidated and hard rock which was found as the excavation ran deeper. At that point the rock could not be removed by pick and shovel or by powered machines such as shovel or backhoe. The backhoe operates something like a power shovel. It has a bucket attached to the boom and operates in reverse so that the bucket moves toward the equipment instead of away from it, as does the power shovel. The plaintiff found that by the use of the power shovel and the backhoe in the hard rock not only would the machinery be injured but the ground so torn up as to interfere with the proper walling and foundations. The plaintiff found that the rock structure could only be removed by using pneumatic equipment which consisted of a compressor and a breaker, or by blasting. It was forbidden to use blasting because of the injury that might be caused to the foundations of buildings and other structures. The pneumatic method proved effective but the excess cost of this method amounted to about $20 per cubic yard of materials removed. A designated representative of the contracting officer examined the site before the full depth of the excavation had been finished. He determined at that time that the excavation was within the terms of the contract and could be removed by normal methods, labor and equipment. However, he later examined the conditions in the parking area and found that hard rock was encountered and recommended Opinion of the Court 149 C. Cls. the plaintiff be paid $20 per cubic yard for the excess cost of the excavation in the parking area. Apparently, he did not again examine the other portion of the excavation, although it developed that practically the same hard rock condition developed in the deep part of that excavation as had been disclosed in the parking area. Plaintiff was issued a change order for the excavation in the parking area and was paid therefor. However, it was refused payment for the 229.94 cubic yards of the material which plaintiff excavated from the garage footings, the garage floor area, the utility trench, and the gatepost holes, as set forth in finding 13, and set forth in detail in the latter part of finding 15. The excess cost of this material at $20 per cubic yard totals the sum of $4,598.80. The defendant contends that the decision of the Armed Services Board of Contract Appeals, which was adverse to the plaintiff to the effect that no changed condition was encountered, was a factual issue and is supported by substantial evidence. The defendant also contends that plaintiff failed to give timely written notice of the changed condition. We have set out in finding 17 in full detail the reason why both of these defenses must be rejected. There is no evidence of any kind that the hard material in the footings and the trenches could have been removed by a power shovel. There was testimony that it could have been removed by a backhoe. However, this evidence is conflicting and taken as a whole is neither persuasive nor substantial. The overwhelming weight of the credible evidence is that a backhoe could not have been used effectively and efficiently to remove the material which was too hard to be thus removed. It is also very clear that in all probability such effort would have materially damaged the expensive equipment that would have been involved. In addition, the testimony indicates that if the backhoe could have been used it would have left voids beyond the neat lines of the sides or bottom of the footing. This would have required the contractor to fill such voids with concrete at its own expense. The testimony shows that this is not a practical or efficient contract procedure and could not have been within the contemplation of the parties. 671 Findings of Fact As to the question of written notice, the contracting officer or his designated representative was thoroughly familiar with the written requests of the plaintiff for payment of the excess cost occasioned by the removal of the hard rock conditions that were encountered. They discussed these claims from time to time and when the final adverse decision was made the plaintiff appealed that decision. It had filed a written notice originally and we do not construe that it must file an additional claim for excess cost every time a new rock was discovered. A part of the board's finding is in the nature of a conclusion of law. The facts and the evidence when taken as a whole in the light of the conditions that developed are so overwhelming as to preclude any other reasonable conclusion than that unforeseen conditions developed which made it impossible to remove the hard material thus encountered by normal job labor and equipment and pick shovels. The plaintiff is entitled to recover the sum of $4,598.80. It is so ordered. LITTLETON, Judge (Ret.); LARAMORE, Judge; MADDEN, Judge; and WHITAKER, Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Saul R. Gamer, and the briefs and argument of counsel, makes findings of fact as follows: 1. Plaintiff is a corporation organized under the laws of the State of Maryland, with its office in Baltimore, Maryland. 2. On Thursday, September 20, 1951, an invitation for bids was issued by the State of Maryland Office of the United States Property & Disbursing Officer, National Guard Bureau, Department of the Army, for the construction of garages, the paving of a parking area, and the erection of a wire fence at the National Guard Motor Vehicle Storage Building, located at Oakland, Garrett County, Maryland. The invitation required the bids to be submitted by 2 p.m., Wednesday, September 26, 1951. The invitation required the furnishing of all plant, labor, materials and equipment, and the performing of all work Opinion of the Court 149 C. Cls. entitled to have his pay computed on the basis of those rates as amended and increased by the 1955 Act. The fact that plaintiff's retired pay was or should have been computed at old law rates (method (a)) from the time of his retirement up to and including the effective date of the 1955 Act, is immaterial because we can see nothing in the language or legislative history of the 1955 Act which cuts off plaintiff's section 511 right to recomputation when conditions were changed by the enactment of the 1955 Act in such a way as to make method (b) of section 511 more advantageous to him. Any cut-off of the right to recomputations under section 511 of the 1949 Act or any freezing of plaintiff's pay in a particular method of computation may have occurred in 1958 as a result of the Act of May 20, 1958, but it did not occur as a result of the Career Incentive Act of 1955. While the decision in this case reaches a different result with respect to the claim for additional retired pay than was reached by the court in Adams, supra, it does not, in a true sense, overrule the decision in Adams because that decision was rendered on entirely different legal arguments which, it now appears, were not germane to the claim. Plaintiff is entitled to recover and judgment will be entered to that effect. The defendant's motion for summary judgment is denied. Defendant's counterclaim is dismissed. Plaintiff's motion for summary judgment is granted. The amount of recovery will be determined pursuant to Rule 38(c). It is so ordered. LARAMORE, Judge; WHITAKER, Judge, and JONES, Chief Judge, concur. MADDEN, Judge, took no part in the consideration and decision of this case. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on September 23, 1960, that judgment for plaintiff Lewis L. Gover (2) be entered for $969.08. Syllabus MORGAN GUARANTY TRUST COMPANY OF NEW YORK AND JOSEPH A. ZOCK, AS EXECUTORS OF THE ESTATE OF RICHARD N. RYAN v. THE UNITED STATES [No. 195-57. Decided May 4, 1960] ON THE PROOFS Taxes, estate; interest on refund based on credit for taxes paid to State. In an action to recover interest withheld on part of a refund of estate taxes which the Government urges was based on the credit which the estate had received because of its payment of New York State inheritance taxes and was therefore not entitled to be paid interest on such refund under section 813(b) of the Internal Revenue Code of 1939, but where the plaintiffs contend that the refund was based on adjustments in estate taxes not related to State inheritance taxes within the meaning of section 813(b), it is held that no part of the refund given to plaintiffs was actually "based on" State inheritance tax credit since, when the estate was finally settled, it appeared that plaintiffs had already taken a larger State inheritance credit than the estate was entitled to, and, unless the refund had been based on other matters, there would have been a deficit of taxes paid. The court rejected the Government's position that any refund, up to the amount of the State inheritance tax credit, must be deemed to be based on that credit, and only the excess would be based on adjustments in the valuation of the estate, deductions, or other factors going into the final computation of the tax. Fahnestock v. United States, 119 Ct. Cl. 41, and J. P. Morgan & Co. v. United States, 136 Ct. Cl. 748. Judgment for plaintiff. Internal Revenue 1968 Taxes, estate; refund of taxes; interest on refund; estate tax credit based on State inheritance taxes.-Under section 813(b) of the Internal Revenue Code of 1939, refunds of Federal estate taxes allowed on the basis of the credit which the estate is entitled to because of State inheritance taxes paid, does not draw interest; but it must appear clearly that the refund was "based on" a State inheritance tax credit. Internal Revenue 1968 Taxes, estate; refund of taxes; interest on refund; estate tax credit based on State inheritance taxes.-Where at the time of filing and paying its Federal estate tax, the plaintiff has claimed |