and allowing deduction from payments to shipper of
shipping costs, obligated shipper to assume cost of
marine insurance, which the Government deducted
from final settlement and plaintiff is entitled to
recover on this item of its claim. Id.
V. Where the invitation for bids to supply dredging parts
for delivery at Cristobal, Canal Zone, requiring ship-
ments through New York to be routed by a specific
steamship line, did not restrict shipments to a route
by way of New York but left the port optional to
shipper; and where, after the submarine menace
closed New York ports to shipping and a change
order was issued providing for delivery at plaintiff's
plant and providing that shipping costs which would
otherwise have been paid by shipper would be de-
ducted from payments to shipper; then the deduc-
tions could be made according to the cost of ship-
ment from available ports and were not restricted to
cost of shipment by way of New York, and on this
item of its claim plaintiff is not entitled to recover. Id.
VI. Where the plaintiff pursuant to proper renegotiation
proceedings entered into agreements with the Gov-
ernment relating to the elimination of excessive
profits and as a result of these agreements repaid to
the Government certain sums; the Court of Claims,
having no jurisdiction to determine excessive profits,
cannot bar recovery since a ruling barring plaintiff
in the instant case would in effect be a ruling that
any compensation due plaintiff was an excessive
profit. Id.
VII. Where the plaintiffs, in response to identical announce-
ments promulgated by the Government, severally
entered into contracts with the Government,
through the Federal Surplus Commodities Corpora-
tion, for the sale and delivery of stipulated quantities
of flour; and where from the announcement and the
offers filled out on forms prepared by the Govern-
ment, as well as from other documents in evidence, it
is established that weekly deliveries were contem-
plated during the periods covered by the respective
contracts, deliveries to be made in accordance with
weekly shipping instructions to be furnished by the
Government; and where it was provided in each of
the contracts that storage charges were to be paid by
the defendant in the event of delay in giving shipping
instructions; it is held that the storage charges, under
the terms of the agreements, should be dated and
paid from the end of the grace period, 21 days after
the contemplated weekly shipments, and not 21 days
after the final specified delivery date, and plaintiffs
are entitled to recover. Flour Mills of America,
Inc., et al., 116.
VIII. Taking into consideration not only the provisions of the
several agreements but also all the memoranda,
letters and statements, the court concludes that the
plaintiffs were entitled to receive some sort of weekly
shipping instructions, failing which the Government
was obligated to pay the minimum of the storage
charges in accordance with the terms of the con-
tract. Id.
IX. Except in Case No. 46451, in which the plaintiff is The
International Milling Company, the respective con-
tracts did not require that the Government order the
delivery of the flour in equal quantities weekly. Id.
X. It is a cardinal rule of construction of contracts that
the court will, if possible, ascertain and give effect
to the mutual intention of the parties. Chesapeake
and Ohio Canal Co. v. Hill, 15 Wall. 94; Great Northern
Ry. Co. v. United States, 236 Fed. 433. Id.
XI. In a suit involving the construction of contracts pro-
viding for the sale to the Government of flour, it is
necessary and proper to consider the customs and
practices of the trade in arriving at the intention of
the parties to the contracts. See Hostetter v. Park,
137 U. S. 30; Moore v. United States, 196 U. S. 157,
38 C. Cls. 590. Id.
XII. The fact that contracts, insofar as they are in written
form, were prepared by the defendant, may be con-
sidered in construing them. Phoenix Insurance Co.
v. Slaughter, 12 Wall. 404; Marietta Manufacturing
Co. v. United States, 73 C. Cls. 528.
Id.
XIII. An essential element of a contract is mutuality; and
the corresponding obligation of the defendant may
be express or implied. Butler v. Thompson, 92
U. S. 412. Id.
XIV. Since the Government has given its consent to be sued
in contract cases, it is, as the defendant, not an
exception to the rule that obligations assumed by the
contract must be mutual. There is no reason why
the Government, in such cases, should be treated as
a favored litigant. See Sacramento Navigation
Company v. Salz, 273 U. S. 326; 17 Corpus Juris,
Secundum, Section 328. Id.
XV. In a suit for material furnished and work performed
under a Government contract which was canceled by
the Government before completion; it is held that
the defendant is bound by the letter of the con-
tracting officer of June 6, 1942, notifying the plaintiff
that the contract was canceled under Article 23 of
the contract, and plaintiff is entitled to recover.
Line Construction Company, 154.
XVI. A subsequent letter, dated June 9, 1942, notifying the
contractor that its right to proceed was not termi-
nated in accordance with Article 23 of the contract
but under the provisions of Article 9, due to its
failure to commence operations and maintain the
rate of progress stipulated in Article 1 thereof, was
of no effect since the letter of June 9 was apparently
not received until June 12 and the contractor had
meantime, on June 10, acknowledged the letter of
June 6 and complied with the order of the contract-
ing officer to furnish to him inventories of materials,
apparatus and equipment delivered to the job,
which materials, supplies and equipment were sub-
sequently used by the successor contractor in com-
pleting the job. Id.
XVII. In the instant case there is no question of mutual
mistake, since the contracting officer testified that
he read carefully the letter of June 6 and under-
stood its contents and importance. There is no
claim that plaintiff or any of its representatives un-
dertook to mislead the defendant. The letter of
June 6 was carefully prepared; its contents were not
shown to the plaintiff before transmission. It does
not come within the limits of any exceptions laid
down in the books whereby a man may escape the
consequences of his act. See Wigmore On Evidence,
Vol. 4, section 2415, and cases there cited. Id.
XVIII. The court holds that the defendant is not entitled to
recover on its cross action against plaintiff for the
excess cost of completion of the job by the succeeding
contractor less the allowance for materials and
equipment, and work completed, since the contract
was canceled under Article 23 of the contract and
the provisions of Article 9, as to termination of
plaintiff's right to proceed due to failure to com-
mence operations and to maintain the required rate
of progress, were not effective. Id.
XIX. 1. In a suit for damages for alleged breaches by the
defendant of a construction contract, involving
seven buildings the foundations of which were con-
structed under a separate contract; it is held that
plaintiff is not entitled to recover for delay due to
defendant's alleged failure to deliver to plaintiff the
respective sites of certain of the buildings at the
time set forth in the contract, since the sites were
delivered as contemplated by the contract, and, in
addition, the defendant did not agree to deliver the
sites on any specific dates. See United States v.
Foley Co., 329 U. S. 64. Cauldwell-Wingate Com-
pany, 193.
XX. Where both plaintiff's contract and the contract for
the foundation work contained the usual provisions
authorizing the Government to make changes in the
drawings or specifications; and where the changes
made in the foundation contract were made pur-
suant to this provision; it is held that for any delay
incident thereto the plaintiff is not entitled to re-
cover under the decision in United States v. Rice,
317 U. S. 61. Id.
XXI. 2. Where the shop drawings for doors as originally
submitted did not comply with the specifications,
and for that reason were not originally approved,
but upon plaintiff's insistence were finally approved
in order to prevent further delay; it is held that the
defendant was not responsible for this delay and
plaintiff is not entitled to recover. Id.
XXII. 3. Where it is found that the defendant's inspector's
requirement that blemishes be removed from con-
crete ceilings in the houses was not unreasonable
but in accordance with the provisions of the con-
tract; it is held that plaintiff is not entitled to recover
for the cost of extra work involved in removing the
blemishes. Id.
XXIII. 4. Where defendant's project manager had approved
the drawings submitted by plaintiff with reference
to the installation of rawl drives in anchoring the
plaster partitions; and where defendant's inspector,
in spite of the approval by the project manager, re-
quired the installation of additional rawl drives,
which he had no authority to do; and where plain-
tiff acceded to the inspector's demand without
protesting to the contracting officer; it is held that
plaintiff is barred from recovery on account of its
failure to protest. See United States v. Blair, 321
U. S. 730; Silas Mason Co. v. United States. 105 C.
Cls. 27. Id.
XXIV. 5. Where, after amended instructions were given with
reference to the inspector's requirement that the
plastered partitions be exactly plumb and true,
plaintiff made no further written protest against the
requirements of the inspectors and also failed to take
any appeal to the head of the department from the
adverse ruling of the contracting officer on its claim;
it is held that plaintiff is not entitled to recover on this
item. Id.
XXV. 6. Where plaintiff made no protest against most of the
requirements of the inspectors; and where in no case
did plaintiff take an appeal to the head of the
department from the adverse ruling of the contracting
officer, as required under Article 15 of the contract;
the court, after careful examination of plaintiff's
other claims, in which no merit is discovered, holds
that plaintiff is not entitled to recover on any items
of its claim. Id.
XXVI. Property rights, as such, are by no means the only
matters the full enjoyment of which may be protected
by contract, and for which a contracting party may
be required to respond in damages in the event the
agreement is breached; and where something other
than a strict property right is the object of concern
the difficulty of ascertaining the damage in event of
breach would appear to make a stipulation as to
liquidated damages only the more desirable. See
Sun Printing & Publishing Assn. v. Moore, 183
U.-S. 642, 670. Oregon-Washington R. R. & Nav.
Co. v. United States, 58 C. Cls. 645, 648, reaffirmed.
Weathers Bros. Transfer Co., Inc., 310.
XXVII. In the instant case, in which plaintiff is seeking to be
compensated for transporting property not owned by
the Government but for the transportation of which
the Government had contracted with plaintiff, the
plaintiff is saying with respect to defendant's counter-
claim that, because the goods transported under a
prior contract were not the property of the Govern-
ment, plaintiff cannot be required under any circum-
stances to respond in damages to the Government for
a breach of this prior contract; and the court holds
that plaintiff's contention cannot be sustained, and
plaintiff is not entitled to recover for liquidated
damages deducted under the prior contract. Id.
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