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126 C. Cls.

the value of the property just before the casualty, or (2) the adjusted basis for determining a loss upon a sale of the property. Helvering v. Owens, 305 U. S. 468, 471.

In our opinion the type of loss here claimed is not within the meaning of the term "or other casualty" as used in section 23 (e) (3), but we need not therefore rest our conclusion alone on a determination of that question since the plaintiff has failed in this case to prove the value of the house furnishings at the time of the alleged loss or the cost of the furnishings, which would be the adjusted basis for nonbusiness property. See Finding 12.

We have carefully considered plaintiff's motion, for amendment of the findings as to the value of the properties alleged to have been lost, in the light of a further study of the record and find no sufficient basis for a change in the findings of fact heretofore made.

The plaintiff's motion is, therefore, denied. It is so ordered.

MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur.

W. E. BARLING v. THE UNITED STATES

[No. 49190. Decided May 5, 1953. Plaintiff's motion for rehearing overruled October 6, 1953.]

On the Proofs

Government contract; agreement by defendant to deliver materials; failure not a breach of the contract.—In a suit to recover damages for the alleged breach of a contract by the Government, where it is shown by the evidence adduced that the Government was without fault in the failure to deliver the materials on time, as agreed, it is held that the plaintiff is not entitled to

Same; defendant's failure to deliver not a breach of contract or of warranty.-Plaintiff on January 28, 1946, entered into a contract with the Bureau of Reclamation to perform the earthwork and erect reinforced concrete structures at the Riverton project in Wyoming. Under the contract specifications the Government agreed to furnish cement, reinforcing steel and certain other

34

Opinion of the Court

materials for use in the contract work. Failure to secure steel and cement caused delay in performance and an extension of time was granted. Plaintiff claims in the instant suit that the failure of defendant to furnish the materials as needed was a breach of contract or of warranty, or both, for which plaintiff is entitled to recover. The defendant contends that it did not breach the contract for the reason that it did not, either in the contract or by warranty, agree to furnish the materials at any particular time, and that it was not negligent in delivery of materials to plaintiff. Defendant's contention is sustained. United States 78 (6)

Same; due diligence used by defendant.-The case having been heard by the United States Court of Claims on the issue of liability alone, it is held on all the facts and circumstances as disclosed by the evidence that the defendant used due diligence to obtain both the steel and the cement, as required, and in the circumstances then existing in 1946 the defendant's failure to furnish the materials did not constitute a breach of the contract. United States

74

Same; claim of warranty based on statement by unauthorized representative.-Plaintiff's contention is not sustained that defendant warranted that it would furnish steel and cement as needed, where it is shown that plaintiff's contention is based on statements made by a representative of the Government who was not the contracting officer.

United States 60

Same; unauthorized warranty ineffectual.—A warranty made by one not authorized would be ineffectual.

United States → 60

Mr. J. R. Greenwood for the plaintiff. Messrs. Samuel Herrick and Philip F. Herrick were on the brief.

Mr. William A. Stern, II, with whom was Mr. Assistant Attorney General Holmes Baldridge, for the defendant.

LITTLETON, Judge, delivered the opinion of the court:

Plaintiff sues to recover damages in the amount of $90,415.48 for the alleged breach of a contract entered into on January 28, 1946, with defendant, acting through its Bureau of Reclamation, Department of the Interior, whereby plaintiff agreed to perform earthwork and erect reinforced concrete structures for a pilot canal, laterals and sublaterals, which were to be a part of defendant's Pilot Division, Riverton Project, Wyoming.

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126 C. Cls.

Under paragraph 23 of the contract specifications quoted in finding 6, defendant agreed to furnish cement, reinforcing steel, and certain other materials for use in the contract work. Because of the inability of defendant to supply reinforcing steel and cement when needed by plaintiff for contract operations, there was substantial delay in the completion of the work.

It is plaintiff's position that the failure of defendant to furnish the materials as needed was a breach of contract or of warranty, or both, for which plaintiff is entitled to recover damages. Defendant contends that it did not breach the contract for the reason that it did not, either in the contract or by warranty, agree to furnish the materials at any particular time, and that it was not negligent in delivery of materials to plaintiff.

The case is now before the court under an order dated November 2, 1951, limiting the trial to the issues of law and fact relating to the right of plaintiff to recover, and reserving for later determination the amount of recovery should plaintiff here prevail.

On January 28, 1946, the parties executed a contract whereby plaintiff agreed to perform earthwork and erect reinforced concrete structures for defendant at the Riverton Project in Wyoming. The contract specifications contained a provision that defendant would furnish certain materials, including cement and reinforcing steel, for use in the completion of the contract work. Plaintiff was to begin work within 30 calendar days after receipt of notice to proceed, and to finish the job within 270 calendar days after receipt of the notice. On March 4, 1946, plaintiff received notice to proceed, thus fixing the contract performance period to be March 5 to November 29, 1946, inclusive.

On March 4, 1946, defendant issued a requisition for purchase of the project steel requirements, and on March 18, 1946, the first invitation for bids on such steel was issued. Bids were to be opened on April 4, 1946, but none were received. Invitations for bids were thereafter reissued six times during the spring and summer of 1946, to an aggregate of 48 suppliers, but no bids were received in response to these invitations.

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Opinion of the Court

On April 4, 1946, plaintiff submitted to the project superintendent a schedule of his steel and cement requirements, requesting periodic deliveries beginning April 20. On April 22, 1946, plaintiff was advised by defendant's superintendent that there would be some delay in the delivery of steel. Thereafter, as set forth in findings 13-18, defendant made repeated and diligent efforts to obtain reinforcement steel for the project which finally resulted, in August of 1946, in the delivery of sufficient amounts of steel for the completion of the work.1

In addition to the difficulties above recounted, defendant was unable to furnish cement as needed by the contractor, which also caused delay. Orders for the cement were placed by plaintiff with the project superintendent, who promptly, and sufficiently far in advance to have permitted timely delivery, relayed the orders to the cement manufacturer. On two occasions prompt delivery was not forthcoming, and, as a result, plaintiff was forced to suspend concrete placing operations because of a lack of cement.

2

Plaintiff applied for and was granted an extension of time because of the inability and failure of defendant to furnish cement and steel as needed. The contracting officer made findings of fact dated June 4, 1947, in which he found that plaintiff had been delayed 91 calendar days because of the inability of defendant to furnish reinforcing steel as needed, and 12 calendar days by the inability of defendant to furnish cement as needed. The contracting officer further found that plaintiff was entitled to an extension of 174 calendar days from November 2, 1946, to April 24, 1947, because of an order to suspend concrete placing operations during the winter months. As a result of these findings plaintiff was given and accepted an extension of time of 277 calendar days.

By Change Order No. 2, Extra Work Order No. 2, and findings of fact of the contracting officer dated December 3,

The contracting officer found that plaintiff had been unavoidably delayed 91 calendar days because of the inability of defendant to obtain and furnish to plaintiff a suficient quantity and proper sizes of reinforcing steel when needed.

2 From October 2 to October 7, 1946, and from October 19 to October 24, 1946, or a total of 12 days.

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1947, the performance time of the contract was extended to October 2, 1947, on which date plaintiff completed the job.

Plaintiff contends that he was wilfully and negligently delayed in the performance of the contract work by defendant's failure to furnish reinforcing steel and cement when needed. It is argued that defendant gave notice to proceed at a time when it did not have reinforcing steel on hand or on order, that at the time notice to proceed was given defendant knew or should have known that there might be delays in obtaining steel, and that defendant was thereafter dilatory in providing a sufficient supply of steel for the completion of the project.

While it is true that at the time the contract was executed defendant had not obtained or ordered the steel for the instant contract, it had been the practice of the Bureau of Reclamation for a number of years to obtain steel only when there was a contractor on the job to receive it, and prior to 1946 it had usually been possible to secure delivery of reinforcing steel within thirty days from the date of the order.

It is also true that in December of 1945 and January of 1946 defendant had encountered some difficulty in obtaining reinforcing steel for use in other projects. At the time the instant contract was entered into, however, defendant reasonably expected that the supply of steel would improve in the immediate future. There is nothing in the record to indicate that defendant knew or should have known that it would be unable to furnish reinforcing steel to the contractor in time for the work to proceed in an orderly manner and to be completed within the contract period. Nor can we, in the circumstances of this case, attach significance to the fact that notice to proceed was given at a time when the Government did not have on hand or on order the materials it had agreed to furnish.

Finally, there is no evidence that the defendant was in any way at fault in failing to exert its best efforts to obtain the steel it had agreed to furnish. On the contrary, we have found that it exercised great diligence in an effort to secure steel for the plaintiff as needed, and that its inability to do so was not attributable to any fault or negligence on its part. It was very difficult to obtain steel in 1946, and the record