I. Where the Government draws specifications which
are fairly susceptible of a certain construction and
the contractor so construes them, justice and equity
require that construction to be adopted. Peter
Kiewit Sons' Company (No. 46432), 390.
II. Where one of the parties to a contract draws the docu-
ment and uses language which is susceptible of more
than one meaning, and the intention of the parties
does not otherwise appear, that meaning will be
given the document which is more favorable to the
party who did not draw it; and this rule is especially
applicable to a Government contract where the
contractor has nothing to say as to its provisions.
Noonan v. Bradley, 9 Wall. 407; Chambers v. United
States, 24 C. Cls. 387; Callahan Construction Co. v.
United States, 91 C. Cls. 538, 611; Blair v. United
States, 99 C. Cls. 71, 135; 321 U. S. 730. Id.
See Contracts XXXVIII, LXXVII.
AUTHORITY PRESUMED.
See Personal Injury I, II, III.
See Taxes IV, V, VI.
CANCELLATION OF CONTRACT.
See Contracts XV, XVI, XVII.
CIVIL SERVICE.
See Suit For Salary IX, X, XI, XII, XIII, XIV, XV, XVI, XVII,
CLAIM OF RIGHT.
See Taxes V.
CLASSIFICATION, EFFECTIVE DATE.
See Suit For Salary XVI, XVII, XVIII.
CONGRESS, INTENTION OF.
See Suit For Salary XVIII.
CONSEQUENTIAL DAMAGE.
See Taking II.
CONTRACTING OFFICER.
I. Whether or not the contract required plaintiff to pay
the increased wages to common laborers was not a
question of fact but of law; and the contract did not
require plaintiff to appeal to the contracting officer
a ruling of the project engineer on the legal inter-
pretation of the contract. Paretta Construction
Company, 324.
CONTRACTING OFFICER-Continued
II. The provision of the contract in suit that the decision
of the contracting officer as to the proper interpreta-
tion of all drawings and specifications should be final,
subject to appeal, cannot be employed to oust the
jurisdiction of the Court of Claims to construe the
legal effect of those provisions of the specifications
which are in seeming conflict and to determine the
question of law involved. Stafford, 479.
See also Contracts LXVII, LXXI, LXXVII.
I. Where contractor entered into a contract with the
Government for road construction, which it was
unable to complete within the specified contract time;
and where the Government did not terminate the
contract, as requested, but issued a suspension order,
and the contractor, after the suspension, resumed
performance and completed the performance; it is
held that the contract remained in force, including its
provision for liquidated damages, and plaintiff,
surety, is not entitled to recover. United States v.
American Surety Company, 322 U. S. 96, distin-
guished. Dineen, Supt., 18.
II. The difficulty of determining exact damages is the
reason and justification for the insertion of the
agreement for liquidated damages. See Lebanon
Woolen Mills, Inc. v. The United States, 99 C. Cls.
318.
III. In a suit against the Government seeking a refund of a
portion of the transportation and marine insurance
charges on articles sold to defendant for shipment to
the Canal Zone, the Court of Claims takes judicial
notice that on December 30, 1941, when the invita-
tion for bids was issued, the United States was at war
with both Germany and Japan, and that German
submarines were at large in the Atlantic Ocean.
Ellicott Machine Corporation, 62.
IV. While the contract obligated plaintiff to include war
risk insurance as a part of the shipping costs, neither
the contract for shipper to supply dredging parts to
be delivered free of all charges at Cristobal, Canal
Zone, nor invitation for bids, nor change order issued
by the United States, on account of wartime sub-
marine menace to shipping, permitting delivery to
be made at shipper's plant instead of at Cristobal
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 à 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.
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.
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