Opinion of the Court 107 C. Cls. days later the plaintiff did sign the contract, protesting orally against doing so, and proceeded with and ultimately finished the work. It renewed its claim for extra compensation to the Contracting Officer and appealed his adverse decision to the Secretary of War, who also denied his claim. The Secretary sent the claim to the General Accounting Office which also rejected it. We think the plaintiff is entitled to recover. The specifications and the two drawings, in conjunction, were misleading, and had the effect of misleading the plaintiff into making a bid which it would not otherwise have made. The bid was required to be irrevocable and to be backed by a substantial bond, and exposed the plaintiff to liability to the Government for any increased costs resulting from performance by some other contractor, if the plaintiff refused to perform. We think that the plaintiff was coerced by these circumstances into signing the contract when the Government had no right to a contract based on the plaintiff's bid. The situation is quite different from that in the Massman case, 102 C. Cls. 699. There the Government was in no way at fault or responsible for the plaintiff's mistake, and the plaintiff was probably not entitled to withdraw its bid. It was, therefore, not improperly coercive for the agent of the Government to threaten to enforce the bid bond. Here the plaintiff's dilemma was the result of the Government's misleading documents. The plaintiff's second claim is for a part of the wages of bricklayers employed by the plaintiff's subcontractor, whom the plaintiff has reimbursed. The proposed contract and specifications, which were a part of the invitation for bids, called the bidders' attention to the statute which required contractors on public buildings to pay not less than the wage rates determined by the Secretary of Labor to be the prevailing rates. The specifications stated that the Secretary had determined the prevailing rate for bricklayers in this area to be $1.50 per hour. In fact, the Secretary determined on April 4, 1941, that the prevailing rate in the area was $1.75 per hour. While the specifications which accompanied the invitation for bids, and which stated the determined wage rate to be $1.50 per hour, were, no doubt, prepared before the new wage rate was determined on April 292 Opinion of the Court 4, 1941, the new rate was determined some weeks before the contract was made, and the plaintiff should have been advised of it. Not being so advised, the plaintiff underestimated the costs of bricklaying, and may recover the amount, $1,216.95, which it was obliged to pay to bring its wages up to the newly determined rate. We recognize, of course, that the statute requires the payment of the determined rate as a minimum, and does not forbid the payment of a higher rate. But the rate determined to be the prevailing rate is, by hypothesis, the rate customarily paid, and the rate at which a contractor could expect to hire his labor. Here the claim of the bricklayers for $1.75 was based entirely upon the fact that the prevailing rate as determined by the Secretary of Labor was, in fact, $1.75. But the Government had represented that it was $1.50, and the plaintiff is entitled to recover because of the misrepresentation. The plaintiff's third claim is that $950, which was assessed against it as liquidated damages and deducted from the payments made to it on the contract, was wrongly deducted. We have found that the plaintiff was diligent in the performance of its work, and that its late completion of its work was caused by a change made by the Government in the width of the copper flashing to be used on the roof, together with a truckmen's strike at Pittsburgh, which delayed delivery of necessary material. Under the terms of Article 9 of the contract, quoted in finding 20, liquidated damages should not have been assessed, and the plaintiff is entitled to recover on this claim. Judgment will be entered for the plaintiff in the amount of $19,766.95. It is so ordered. JONES, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, dissenting in part: I do not think plaintiff is entitled to recover for bricking up the doors not shown on the plans, because of the fact that it signed the contract with knowledge that the contracting officer interpreted the plans and specifications to require that they be bricked up, and would insist upon this being done. 736172-47—vol. 107- -22 Syllabus 107 C. Cls. The fact that the contracting officer told plaintiff that its bid bond would be forfeited if it did not sign the contract does not amount to duress. If plaintiff had been excusably misled by the plans it had a right to withdraw its bid without incurring any liability on the bid bond. Presumably it knew this and, therefore, could not have been coerced by the contracting officer's threat. Hartsville Oil Mill v. United States, 271 U. S. 43, 48, and cases cited. Its failure to withdraw its bid and its signing of the contract, I think, bound it to do the work required of it. I understand this to have been our holding in Massman Construction Co. v. United States, 102 C. Cls. 699; cert. denied, 325 U. S. 866. H. WILLIAM KLARE, RECEIVER OF DETROIT BANKERS COMPANY, v. THE UNITED STATES [No. 46771. Decided December 2, 1946]* On Defendant's Demurrer Damages; rights of receiver of holding company with respect to national bank in receivership.--Where it is shown that by an order of the United States District Court the holding company of which plaintiff is receiver was divested of all interest in the stock of the First National Bank-Detroit and the beneficial interest in the bank stock was transferred to the direct ownership of the stockholders of the holding company; it is held that plaintiff, as receiver, has no power to sue for the alleged wrongs complained of, and defendant's demurrer is sustained and plaintiff's petition dismissed. (See Lucking and Davis v. United States, 102 C. Cls. 233). Same. Even if plaintiff, receiver, were a stockholder in the bank he would not be entitled to recover under the facts presented in the petition since under the National Bank Act (12 U. S. C. 197), after the creditors of an insolvent national bank have been paid, any assets available shall next be used to repay any statutory assessments that have been paid; and in the instant case the assessment made and collected was paid by the shareholders of the holding company, not by the shareholders of the bank. *Plaintiff's petition for writ of certiorari pending. 310 Opinion of the Court Mr. William Alfred Lucking for the plaintiff. Mr. Newell A. Clapp, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. The facts sufficiently appear from the opinion of the court. MADDEN, Judge, delivered the opinion of the court: The Government has demurred to the plaintiff's petition. The petitioner alleges that he is the Receiver of Detroit Bankers Company and that this is a "Receiver's and stockholders' suit" to compel an accounting and repayment of upwards of $3,500,000 which the Secretary of the Treasury and the Comptroller of the Currency and the Receiver of the First National Bank-Detroit illegally and secretly abstracted from the assets and trust estate of said bank, while the bank was in receivership in the process of liquidation, and used and paid out for attorneys' fees, contrary to the pertinent Acts of Congress; and for a similar accounting and repayment of $1,251,000 similarly abstracted and spent by the same persons for salaries and for the hire of clerks and other employees in the office of the Comptroller of the Currency in Washington, D. C. Most of the further facts alleged in the petition are substantially the same as those recited in our decision in the case of Lucking and Davis v. United States, 102 C. Cls. 233, and will not be repeated here. The petitioner alleges that Detroit Bankers Company, of which he is Receiver, is the owner and holder of all the shares of the capital stock of the First National Bank-Detroit. In the Lucking case, supra, we held that neither Lucking, as a former depositor in the First National, who had been repaid in full as a depositor, nor he and his coplaintiff, as shareholders in Detroit Bankers Company, could maintain class suits to remedy the wrongs alleged in the petition. We held that the claims, if enforceable, belonged to the First National Bank-Detroit, or its receiver; that if a stockholder's suit was necessary, Detroit Bankers Company was the sole stockholder, and that no showing had been made that it or its receiver had refused to sue. The present suit is by the Receiver of the Detroit Bankers Company, which, the petition alleges, is the sole stockholder of First National Bank-Detroit. The Government, Opinion of the Court 107 C. Cls. in support of its demurrer, contradicts this statement and quotes, in an appendix to its brief, an order of the District Court of the United States for the Eastern District of Michigan, Southern Division, entered on July 29, 1938, authorizing the Receiver of the First National Bank-Detroit to compromise and settle various controversies between himself and the then Receiver of Detroit Bankers Company. Paragraph 3 of the order said: "The Receiver of Detroit Bankers Company is to transfer and deliver unto the Receiver of First National Bank-Detroit the shares of the capital stock of First National Bank-Detroit now held by said Detroit Bankers Company, and said Receiver is to hold said shares of stock as custodian for the shareholders of Detroit Bankers Company." The plaintiff, in its brief, refers to this statement of the Government and does not contradict it or attempt to explain the Court's order as being anything different from what it seems on its face to be, i. e., a complete divestment of the Detroit Bankers Company of all interest in the stock of the First National Bank-Detroit, and the transfer of any beneficial interest in that stock to the direct ownership of the stockholders in Detroit Bankers Company, thus eliminating the latter company as a stockholding company. We cannot, in view of this official court record, not contradicted by the plaintiff, and of which we take judicial notice, accept the plaintiff's statement in his petition that his principal, Detroit Bankers Company, owns the stock of First National. But unless we accept that statement, the only possible ground for his suit is lacking, and the demurrer must be sustained. The Government, in further support of its demurrer, asserts that even if the plaintiff were a stockholder in First National Bank-Detroit, he would have no right to sue because neither he nor any other stockholder, as such, could benefit from any recovery. It points to the allegation in the plaintiff's petition that "the closed bank's stockholders have paid double (statutory) liability assessments of over $19,000,000 to the Bank Receiver", i. e., the Receiver of First National Bank-Detroit. In fact it was not the First National's stockholders, but the stockholders of Detroit Bank |