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CONTRACTS—Continued.

ruled the contract was illegal inasmuch as the appro-
priation for the work stipulated that the pools, etc.,
should be located "upon lands acquired or hereafter
acquired for park, parkway, or playground purposes,"
and contractor discontinued work upon receipt of such
notice.

Held:

The contract in question was unauthorized, illegal

and unenforceable. Loehler, 158.
X. Land dedicated to one public purpose may not be diverted

to another purpose. Id.
XI. The restriction by the statutes of the sites of certain

authorized structures to lands acquired or hereafter
acquired for park, parkway or playground purposes
excludes the use of land acquired for school purposes.

Id.

XII. Where the Government has misled a contractor in the

drawings or specifications accompanying a contract,
through error or misrepresentation, and as a result of
this error or misrepresentation the contractor has to
perform additional work, defendant is responsible and
recovery can be had for the amount of extra work
performed and no liquidated damages can be assessed

under the terms of the contract. Lukens, 184.
XIII. Where performance of contract by the contractor was

delayed by reason of the decision of the Comptroller
General that appropriated moneys were not available
for any payments under the contract, it is held that
this delay was due to "an act of the Government” in
the meaning of Article 17 of the contract. Graybar

Electric Co., 232.
XIV. The Secretary of War, and not the Comptroller General,

was the authorized official to enter into the contract
with plaintiff and to pass upon the question whether

plaintiff was the lowest responsible bidder. Id.
XV. Where one of the parties to a contract demands strict

performance as to time by the other party, the first
party must comply with all the conditions requisite

to enable the other party to perform his part. Id.
XVI. Failure on the part of the party demanding performance

to do that which the contract demanded of him to
enable the other party to perform without delay
within the time limit operates as a waiver of the

time provisions of the contract. Id.
XVII. Where contractor, in the erection of a post office build-

ing, after a survey by representatives of the con-
tractor and the Government as to prevailing rates
CONTRACTS—Continued.

of wages in the locality, paid the said rates of wages,
with certain increases, and likewise made an increase
to bricklayers when so ordered by the Secretary of
Labor, who after a hearing, held that all other wages
being paid were in accordance with the prevailing
rates, and where in the final settlement the Comp-
troller General made a deduction upon a report that
prevailing wages had not been paid, it is held that
such deduction was arbitrary and without warrant

in law. Hood & Gross, 258.
XVIII. Under the Act of August 30, 1935 (49 Stat. 1012), where

there was failure to pay the rate of wages required
by the contract, the remedy was termination of the

contract by the Government. Id.
XIX. Where each and all of the several counts and claims

made in plaintiffs' petition are based upon the action
of the contracting officer, and it is nowhere alleged in
the petition that the plaintiffs, in accordance with
the provisions of the contract, filed any written protest
against the instructions or decisions of the contracting
officer, or made any written appeal therefrom to the
head of the department concerned, or did anything in
the way of complying with the provisions of the con-
tract with reference to the decisions of the contracting
officer, it is held that as the plaintiffs did not exhaust
their remedies under the contract when decisions were
rendered against them suit cannot now be maintained.

Silas Mason, 266.
XX. It is universally held that if the contracting officer's

decision is so palpably erroneous, arbitrary or negligent
as to imply want of good faith, it may be impeached

and set aside. Id.
XXI. Where the contract provides that the contracting officer's

decisions in all disagreements arising out of the con-
tract shall be final, the contractor, it is held, is not

thereby deprived of his legal rights and remedies. Id.
XXII. Where it is only generally alleged in the petition, and

not specifically, that the contracting officer, upon a
multitude of occasions, willfully, arbitrarily, and coer-
cively neglected to perform his duties; interfered with,
delayed and prevented plaintiffs' performance of work
as required in the contract; refused payment for per-
formance of work not required by the contract; and
failed to make payment to plaintiffs in accordance with
the provisions of the contract, it is held that such

general allegations cannot be considered. Id.
XXIII. The word "willful” has different meanings. Id.

CONTRACTS—Continued.
XXIV. The powers and duties of the contracting officer, where

the contract provides that the contracting officer shall
decide all disputed questions arising under the contract,
are not those of an arbitrator ; an arbitrator's proceed-
ings and duties are judicial, or at least semijudicial
in their nature, while the duties of the contracting
officer are purely ministerial and involve no judicial

functions. Id.
XXV. Where contractor, whose bid had been accepted, sought

permission to begin work prior to the approval of the
contract and prior to the receipt of the notice to
proceed, and permission to begin work in these cir-
cumstances was given "at its own risk," it is held
there can be no recovery for additional expense in-
curred by reason of suspension of the work on a "Stop
Order” on all new work, before the approval of the

contract. Earle & Sons, 308.
XXVI. The words "at its own risk” are to be construed in

their usual and ordinary meaning, which would be
that if plaintiff sustained any damage by reason of
commencing work before any contract was made, it

alone was responsible for such damage. Id.
XXVII. Under a Special Jurisdictional Act conferring jurisdic-

tion upon the Court of Claims “to hear * * . to
judgment" and "to adjudicate * * * upon the
basis of the losses and/or damages suffered due to
car shortage and/or other war conditions" the claim
of plaintiffs "growing out of losses and/or damages"
suffered under purchase orders for furnishing hay
to the United States Army during the World War,
it is held that the Jurisdictional Act cannot be con-
strued as authorizing the entry of a judgment for
any losses or damages sustained by plaintiffs by
reason of any conditions that existed prior to and
at the time plaintiffs made their offer and entered into

the contracts with the Government. Randall, 325.
XXVIII. It is held to be clear upon the record that any loss

or expense which plaintiffs may have incurred in
excess of prices at which plaintiffs agreed to sell hay
to the Government was due not to any car shortage
or any war conditions arising subsequent to the date
of plaintiffs' offer but to the failure of plaintiffs to
acquire title to the hay necessary to fill the Govern-
ment's contracts or to secure a binding option therefor
at a price equal to or less than the price at which
plaintiffs agreed to sell the hay to the Government.
Id.

CONTRACTS—Continued.
XXIX. Where contractor, engaged under contract with the

Government in constructing the Valewood and Fitler
levees on the Mississippi River, by reason of inadequate
equipment and unsuitable methods of operation, was
unable to complete the work within the time limit pre-
scribed by the contract, and a portion of the work
was taken over and let to another contractor; it is
held, on the preponderance of the proof, that the
slides occurring in the Fitler loop, removed and re-
placed by the second contractor, were not due to the
condition of material placed by the plaintiff, arising

out of plaintiff's operations. Orleans Dredging Co., 360.
XXX. Where the weight of the embankment upon a weak

foundation caused a subsidence of the Fitler loop, be-
tween stations 8100 and 8111, it is held that there is
no proof that, without the digging by the plaintiff in
the borrow pit below the depth provided for in the
contract specifications, as modified, there would have
been no subsidence; the margin of safety is not proved.

Id.
XXXI. Where plaintiff signed contract containing a provision

that the contract must be approved by the Chief of
Engineers, U. S. Army, it is held that plaintiff waived
any right it may have had to a standard form of con-
tract, signed only by the contracting officer, and ac-
cordingly plaintiff can not complain of any delay
caused by length of time required to secure the signa-

ture of the Chief of Engineers. Id.
XXXII. Where plaintiff contends that it was harrassed and an-

noyed in the progress of its work due to conflicting
orders issued by the contracting officer, it is held that
all of these orders were reasonable and provided for

in the contract. Id.
XXXIII. The failure of the plaintiff to make reasonable progress,

so as to complete the work within the contract period,
it is held, was due to its failure to have sufficient

equipment with which to perform the work. Id.
XXXIV. It is held that the evidence does not disclose any unrea-

sonable acts on the part of the contracting officer which
amounted to capriciousness or arbitrariness, either in
the orders given for the borrow pits or in the manner
in which the material was being placed in the levees.

id.

XXXV. Where a portion of the work was relet to another con-

tractor, after the plaintiff had failed to make satis-
factory progress, it is held that there is no material
difference between the two contracts which would
show the agreement with the second contractor was
not the same as that with the first contractor. Id.

CONTRACTS—Continued.
XXXVI. Where liquidated damages were charged against the

plaintiff under Article 9 of the contract for failure
to complete the work in time, it is held that such
failure was entirely due to insufficient equipment,
delay in getting dredges to the site of the work, and
the method used in performing the work that caused

slides, for all of which plaintiff was responsible. Id.
XXXVII. Where refusal of the contracting officer to permit

partial payments caused plaintiff to borrow large sums
of money, it is held that such refusal was within the
discretion of the contracting officer, and the plaintiff
is not entitled to recover for interest paid; the claim
is in form for damages but in substance it is for

interest. Id.
XXXVIII. Where under a contract for the delivery of hay to Army

post, plaintiffs were required to make delivery of the
number of tons of hay called for within a reasonable
time, or as needed by the Government, not to exceed
15 tons a day, it is held that six months was a reason-
able time for compliance with the contract and letters
from the defendant to plaintiffs, asking for delivery,
are sufficient to show that defendant needed the bay,
and accordingly plaintiffs were in default. Mueller-

Huber Grain Co., 401.
XXXIX. Where contract for delivery of hay to Army post called

for delivery of a certain number of tons during March,
beginning March 15, at a rate not exceeding 15 tons
a day, and delivery schedule provided that the balance
should be delivered at the same rate during April and
May, effective April 1 and May 1, but contract was not
executed by the Government until March 27, it is held
that plaintiffs were not in default when the contracting
officer of the Government so declared on April 4, and
such action by the contracting officer operated to

breach the contract. Id.
XL. The contract did not become effective until it was exe-

cuted by the defendant on March 27 and that date
operated also to extend the contract time for perform-
ance by the number of days between March 18, when
the contract was forwarded to plaintiffs and March 27,

when it was executed by the defendant. Id.
XLI. Where hay delivered by the plaintiffs to Army post

under contract complied with the provisions of the
contract and with Department of Agriculture specifica-
tions but was rejected by the Army hay inspector and
upon analysis was found to comply with the specifica-
tions, it is held that such rejection was improper and
unauthorized, and was a breach of the contract on the
part of the defendant. Id.

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