149 C. Cls.

CONTRACTS-Continued

DISPUTES-Continued

Administrative decisions-Continued

Finality of on question of fact-Continued

a changed condition was based on conflicting evidence which, taken
as a whole, was neither substantial nor persuasive, the decision,
adverse to the contractor, was not final or binding.

Allied Contrac-

Where the Armed Services Board of Contract Appeals has deter-
mined a question of fact dispute adversely to the contractor and
the record made before the Court of Claims contains evidence which
provides substantial support for such determination, the Board's
decision is final and conclusive despite the fact that the court might
have reached a different result. Act of May 11, 1954, 68 Stat. 81,
41 U.S.C. § 321 (Supp. III, 1952). Bateson Construction Co., 514.
United States 73 (14)

Question of fact.

What constitutes.

Whether or not defective concrete caissons constructed by the plain-
tiff were the result of faulty concrete design furnished by the Gov-
ernment or the result of insufficient or improper mixing of other-
wise suitable concrete by plaintiff, is a question of fact within the
meaning of the Disputes clause of the contract. Bateson Construc-
tion Co., 514.

In connection with a contract to perform excavation and embank-
ment work for a dam spillway, the contractor cannot maintain that
he was misled by the information supplied to bidders if that in-
formation was in fact sufficient to alert an experienced contractor
of ground and water conditions even though some information in
the Government's possession was withheld. Leal, 451.
United States 70 (30)

Withholding of information-when actionable.

While the Government has a duty to disclose to prospective bidders
all pertinent information in its possession, a withholding of infor-
mation which would not reasonably be expected to mislead bidders
will not give rise to a claim by the contractor. Ragonese v. United
States, 128 C. Cls. 156, 162. Leal, 451.
United States

74 (4)

149 C. Cls.

CONTRACTS-Continued

INTERPRETATION.

Obligation to order services.

Requirements contract.

Where the quantity ordered under a requirements contract is con-
siderably more or less than that anticipated from a reading of the
contract terms, the court will usually protect the aggrieved party
from unfair usage by applying a test of good faith to the other
party's actions. But where the contract states that the quantities
mentioned are estimates only and the obligation of the Government
is to order those services which, in the judgment of the contracting
officer are needed, the Government is not obligated to pay for more
than he orders provided the contracting officer acts in good faith.
Shader Contractors, 535.

Where all the payments sought to be recovered by the purchaser of
a ship under the Merchant Ship Sales Act, 60 Stat. 41, were made
within 6 years of the filing of the petition, the claim is not barred
by the six-year statute of limitations applicable to suits in the Court
of Claims [28 U.S.C. § 2501]. Colonial Navigation Co., 242.
Courts 461

RELEASE.

Interpretation of release.

Although a release may be couched in broad, general terms, it will
be interpreted in accordance with the intention of the parties as
revealed by the facts of the case. Thus, where the purchaser of a
Government owned ship has agreed to pay the purchase price by
means of a series of notes, the last group of which notes included
an extra charge for slotting and strapping which the Government
agreed to refrain from collecting if pending litigation resulted in
a decision that the Government was not entitled to make such a
charge, and where the purchaser sold its business to a third party
who assumed liability on the notes and the Government and the
original purchaser executed releases which appeared to ignore the
Government's agreement to cancel or refund slotting and strapping
costs if the litigation resulted adversely to the Government's posi-
tion, the releases did not nullify the Government's obligation to make
such refund when there was no indication that the original pur-
chaser intended to release the Government from such obligation.
Colonial Navigation Co., 242.

Release 38

United States 113

149 C. Cls.

CONTRACTS-Continued

REQUISITES AND VALIDITY.

Nature and grounds of obligation.

Requirements contract.

A requirements contract is one in which one party promises to supply
all specific goods or services which the other party may need during
a certain period at an agreed price and in which the other party
implicitly promises that he will obtain his required goods or services
from the first party exclusively. Shader Contractors, 535.

Plaintiff as subrogee of a bank which held a valid assignment under
a Government contract, acquired only the rights of the bank, if any,
and when the United States made a payment which completely
discharged its indebtedness to the assignee (the contractor having
been declared bankrupt), the plaintiff had no rights against the
United States. Berkeley, 549.

United States 111 (8)

Effect of subrogation—in general.

A subrogee stands in the shoes of its subrogor and acquires no
greater rights than those acquired by such subrogor. Berkeley, 549.
Subrogation ←→ 33 (2)

SURPLUS WAR PROPERTY.

National security clause.

Dormant estate.

Where the deed conveying to a plaintiff-purchaser the title to a
surplus war plant contains a so-called "national security clause"
(National Industrial Reserve Act of 1948, 62 Stat. 1225, section 4(2))
providing that a dormant estate for a period of years is reserved
by the Government-seller and that at the completion of the years
specified the purchaser will have clear and complete title; and
where it appears that the property in question was sold for less
than it would have brought on the market if the entire fee had
passed at the time of purchase, the Government need not convey
the dormant estate without consideration. Fawick Corp., 623.
United States 58

TRANSFER OF CONTRACT TO THIRD PARTY.

Effect of.

When a contractor with the Government transfers to another his
right to perform the contract or to require of another its perform-
ance and retains no right to control such performance, the contractor
has made the type of transfer prohibited by 41 U.S.C. § 15 [Assign-
ment of Claims Act of 1940 as amended, 65 Stat. 41], resulting in
the annulment of the contract so transferred since the statute is

149 C. Cls.

CONTRACTS

Continued

TRANSFER OF CONTRACT TO THIRD PARTY-Continued

Effect of-Continued

designed to protect the Government from having to deal with
strangers to its contracts. McPhail, 179.

United States

71

COURT OF CLAIMS.

JURISDICTION.

Admiralty claim.

See also Taxes-Claims for Refund.

If a claim may be sued on in a court of admiralty, the Court of
Claims does not have jurisdiction to entertain it even though the
claim might otherwise be within the language of the statutes defin-
ing the Court of Claims' jurisdiction. Siljestad, 141.

The claim of a common carrier by water for hire against the Gov-
ernment for its failure to remove goods from piers within the "free
time" permitted by lawfully published tariffs on file was sufficiently
maritime in character to be within the jurisdiction of a court of
admiralty and therefore not within the jurisdiction of the Court of
Claims. Siljestad, 141.

Courts 518

Executive decision-review of by court.

An executive decision to abolish a position in a Government agency
or department and to create a new position to which the incumbent
of the abolished position was not transferred, is not a decision
which is reviewable by the Court of Claims on the merits. Umbeck,
418.

In general, controversies between private parties are not cognizable
by the Court of Claims. Berkeley, 549.

Where the Alien Property Custodian, as agent of the United States,
vests a contract under which it acquires the rights of the alien
enemy party thereto, it also succeeds to the obligations of such
alien enemy party and when those obligations run in favor of a
non-enemy not subject to the vesting provisions of the Trading with
the Enemy Act, such non-enemy has a claim justiciable in the Court
of Claims under the Tucker Act, 28 U.S.C. §§ 1346 and 1491. Carey,
587.

War and National Defense 11

CUSTOMS INSPECTORS. See Civilian Pay.

A party to a contract does not forfeit his rights under it by mis-
interpreting the contract nor by acquiescing in the other party's
misinterpretation unless he manages to mislead the other party to
his detriment. Carey, 587.

Estoppel 102

EXECUTIVE DECISION. See Court of Claims-Jurisdiction.
FRAUD. See also Contracts.

WHAT CONSTITUTES—IN GENERAL.

Lack of candor.

Lack of candor does not necessarily amount to fraud. Thus, where
a factor, who has financed a Government contractor and is the
beneficiary of the contractor's assignment of its contract claims
against the Government to a bank which had loaned money to the
factor, is aware of the fact that the delay in contract payments is
due to the fact that there have been shortages in deliveries to the
Government, it was proper for the factor to ask the bank to com-
municate with the Government to determine its position, particu-
larly when it was uncertain what position the Government would
take with respect to its obligation to the bank-assignee in the event
of fraud by the contractor. The failure of the factor to suggest the
possibility of the contractor's fraud in its letter to the assignee bank
was somewhat less than candid but it was not fraudulent.
Factors, 202.

Chelsea

GOVERNMENT AGENT.

AUTHORITY OF GOVERNMENT AGENT.

Power to incur indebtedness or make expenditures.

A Government agent does not have the power to irrevocably dispose
of Government money by mistake. Newark Insurance Co., 170.

United States 40

INDEFINITE APPOINTMENT.

See Civilian Pay.

INSURANCE COMPANIES.

See Taxes.

INTEREST. See Taxes.