144 Opinion of the Court market value of the stock if the Government should decide that it would never release the stock. The right to income from property, and the chance of gain and risk of loss from later increases or decreases in its market value usually accompany ownership, and accompany no other relation to property. The provision of the British Act whereby the depositor of stock was not allowed to receive the actual dollars paid in dividends, which were to go to the Reconstruction Finance Corporation, but was to be paid an equivalent sum in British money, amounted perhaps to no more than a wartime restriction requiring British citizens to turn their dollars in to the Government for sterling, so that the Government would have the use of the dollars which it needed so badly. Though we have adverted to strong indicia of ownership in the plaintiffs' decedent, we have nevertheless concluded that he was not the owner of the stock within the meaning of Section 862 of the Internal Revenue Code. He had no right to the return of the stock, either soon or late. He had no right even that the stock be kept available, subject to the pledge to the Reconstruction Finance Corporation, until the Government either released it to him or extinguished any possibility of a release and substituted its obligation to pay him the then value of it. The Government could, under Section 2 (8) of the statute, have sold the stock in the hope of buying similar stock cheaper at a later time and releasing the substituted stock to the depositor. If Section 2 (8) did not mean that, it is hard to see what it meant, as there would be no advantage to the Government in substituting other similar shares if the ones deposited were still available. We have then, as between the plaintiffs' decedent and the British Government, the two possible owners, all the documentary indicia of ownership in the Government, plus a complete immunity from any claim for a return of the stock, and a complete power to do as it pleased with the stock at any time, being accountable only for paying the equivalent of dividends in the meantime, and for, at its option, paying the market value or returning the same or substituted shares at some time in the future. We think that the plaintiffs' decedent had a chose in action, which the obligor, the British 816618-49-vol. 112—16 Opinion of the Court 112 C. Cls. Government, could satisfy by alternative performances, at its option, and that he did not continue to own the stock. The plaintiffs rely strongly, and with reason, upon the decision of this court in James v. United States, 63 C. Cls. 379. In that case the British decedent had deposited shares in American corporations with the British Treasury pursuant to the British Finance Act, 1916, the shares to be at the "absolute disposal" of the Treasury. The court held that the same estate tax statute here in question did not apply to the shares, since the decedent did not own and hold the shares but had only a chose in action against the British Government, its obligation being "wholly contractual." The differences between the present case and the James case, that in the latter case the stock had been transferred to the British Government on the books of the corporation whereas in the instant case it had not, and that in the James case the British Government, after the decedent's death but before the litigation, had actually sold the stock, do not seem to us to be material. As to the latter point, the court mentioned it in the James case as an indication of the power which the British Government had over the stock, and it has that same power under the law and the terms of the deposit in the instant case. As to the first point, the change of ownership on the books of the corporation would add nothing to the British Government's already complete powers over the stock, including the express powers to sell it, to vote it, and to collect the dividends on it. In the James case the court relied on Provost v. United States, 269 U. S. 443, where it was held that a "loan" of stock by one broker to another to enable the latter to deliver on a short sale, it being contemplated that the same shares would not be returned, and other shares later acquired would be returned in their stead, was a sale of the stock and required the payment of the stamp tax applicable to sales. In the instant case, the substitution of other shares for the deposited ones was one of the alternatives which the British Government could, at its option, resort to, hence the Provost case is pertinent here. The Government makes a good deal of the fact that Great Britain also imposed an estate tax upon the decedent's estate, 144 Opinion of the Court and listed in his estate these shares. Of course, the decedent owned something of value in relation to these shares, and that something was subject to the British Estate Tax, whether it was the shares themselves or the Government's promise in regard to them. The tax would have been the same whether it was the one or the other, hence we think that the designation used is not important. The Financial Powers (U. S. A. Securities) Act, 1941, itself, in Section 2 (4) and (5) designates the depositor's right as a right to "release or payment”, which is an accurate description and is no indication that British law regarded the decedent as the owner of the stock. The Government urges that the British Emergency Powers (Defense) Acts of 1939 and 1940 and the Regulations promulgated pursuant to them, referred to in our finding 29, provided a method whereby the British Government, when it so desired, acquired possession of and absolute title to stocks and other securities belonging to its citizens. It argues that, if the purpose had been to acquire the absolute title to the decedent's stock here in question it would have been done under these Emergency Powers Acts. We recognize readily that the arrangement under which the British Government received the deposit of the decedent's securities was different from an outright acquisition of them with a duty to immediately pay for them. Instead, it gave the Government the use of them without paying for them unless and until it should decide that it would never release the same or equivalent securities to the depositor. There was, therefore, reason enough for the Government to have two different methods of acquiring securities for its use. But the fact that one of them was a plain and obvious acquisition of ownership by the Government does not determine that the other was not also an acquisition of ownership, by no means plain and obvious, but which, our analysis leads us to conclude, was the legal result of what was done. The plaintiffs are entitled to recover $189,128.61, with interest as provided by law. It is so ordered. HOWELL, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. 112 C. Cls. Syllabus R. R. HALLMAN AND N. W. HALLMAN, TRADING AS HALLMAN BROTHERS v. THE UNITED STATES [No. 47092. Decided November 1, 1948.] On the Proofs Government contract; reconstruction of Army Fort; claim based on unforeseen conditions; delay in completion. Under the provisions of a contract for the reconstruction of buildings at an Army Fort, where it was known in advance that there would be a large increase in the number of troops during the period when the work was to be done and before the completion of the contract, the imposition of traffic regulations imposed by the Government incident to this increase, resulting in stoppage of the contractors' trucks and interruptions of the work of their carpenters, did not constitute "unknown conditions" within the meaning of the contract (Article 4), and plaintiffs are not entitled to recover. Same; increase in troops and drills not unforeseen.-That the area in which the work was to be performed would be filled with troops who would be moving and drilling and that in an Army Fort troops would have the right of way could not have been unforeseen. Same; provision for prompt filing of claim not complied with.-Where the contract provided that if unforeseen conditions were encountered and are immediately called to the attention of the contracting officer he should promptly investigate, and if the contractors' claim is approved by the contracting officer and his superiors, the contract should be modified to provide for the increased costs caused by the unforeseen conditions; it is held that this provision of the contract (Article 4) was not complied with by the plaintiffs since their claim was not submitted to the contracting officer until the work was practically completed and there was no opportunity for the contracting officer to ascertain the facts necessary to an intelligent decision. Same; findings of fact contradicted by the evidence not binding on the court.-Findings of fact, such as those made in the instant case by the contracting officer with regard to the expense of extra trucks and extra help caused by the asserted unforeseen stoppages of traffic, which are contradicted by all the evidence and by the plaintiffs' own statements in their claims, are not binding upon the Court of Claims. 170 Reporter's Statement of the Case The Reporter's statement of the case: Mr. P. J. J. Nicolaides for plaintiffs. Mr. William F. Kelly was on the brief. Mr. S. R. Gamer, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. The court made special findings of fact as follows: 1. Plaintiffs are and at all times hereinafter mentioned were a partnership trading as Hallman Brothers, residents of the State of Georgia, citizens of the United States, having their place of business at 1157 W. Peachtree Street NE, Atlanta, Georgia. 2. By a unit price contract dated January 26, 1943, as amended by various supplemental agreements, entered into between plaintiffs and the defendant, acting by William M. Wessely, Captain, Corps of Engineers, as contracting officer, plaintiffs agreed, in consideration of the estimated amount of $525,083.20, to reconstruct certain buildings and facilities at both the "Main South Post Area," and the "North Post Area," Fort Oglethorpe, Georgia, in accordance with plans and specifications made a part of the contract. The following provisions of the specifications and contract are pertinent to the issues involved: SPECIFICATIONS: Part I-Section 1-01. The contractor shall visit the site and acquaint himself as to local conditions, availability of water, electric power, roads, soil conditions, and the relation of finished grade to existing grades and the natural surface of the ground. Part IV-Section 1-05. The Contractor shall visit the site and acquaint himself as to local conditions and difficulties which may attend execution of his work and become familiar with the requirements of the correct and proper installation. The submission of a proposal will be construed as evidence that such a visit and investigation has been made, and later claims for labor, equipment or materials required or difficulties encountered will not be considered. CONTRACT: ARTICLE 3. Changes.-The contracting officer may at any time, by a written order, and without notice to the |