71 Ct. Cl. 126 | Ct. Cl. | 1930
delivered the opinion:
Plaintiff brings this suit upon a judgment previously awarded by this court upon a contract between it and defendant. The defendant sets up a counterclaim based upon
The contracts upon which the overpayments were alleged to have been made were what are commonly called “ cost-plus contracts,” and contained a provision as follows:
“ Cost of the work. — The contractor shall be reimbursed in the manner hereinafter described for such of its actual net expenditures in the performance of said work as may be approved or ratified by the contracting officer * *
Counsel for defendant contend that under the contract the contractor was not to be reimbursed for such expenditures as were approved or ratified by the contracting officer, but only for “ actual net expenditures ” provided for or contemplated by the contract; that consequently the approval •of the contracting officer was not conclusive; and that if it has shown that any of the items of its counterclaim were not such “ actual net expenditures in the performance of said work,” defendant may recover thereon.
The findings show that for all of the items in controversy, the sums received by the plaintiff were evidenced by vouchers showing that plaintiff incurred the expenses represented thereby with the approval of the constructing quartermaster or his authorized representative, and that with each voucher were receipts from payees evidencing payment thereof by plaintiff, and that each voucher covering reimbursement to the plaintiff of expenditures so made bears the approval of the contracting officer or his representative, all in accordance with the provisions of the contract. If the decision of the contracting officer as shown by his approval or ratification was not final, his act in so doing was merely an idle gesture, for the contention of defendant is that notwithstanding such approval it can raise any objection to these items that it sees fit. We do not think the contract can properly be so construed. In fact to so construe it would have the effect to strike from the contract the words “ as may be approved or ratified by the contracting officer,” for
The Supreme Court in United States v. Mason & Hanger Co., 260 U. S. 323, 326, affirming the decision of this court made upon a similar provision in a similar case, said with reference to the decisions of the contracting officer and settlements and payments made in consequence thereof:
“ Over the effect of these the Comptroller of the Treasury has no power. They were the acts and duty of the officer-in charge, in the expression of which there was no ambiguity, and were, therefore, conclusive in effect.”
True, the findings in that case do not show that the words on which defendant relies in the case at bar were included
The plaintiff claims to be entitled to interest on its judgment, and we think that the act of March 3, 1875, 31 U. S. C. A. sec. 227, applies and the plaintiff is entitled to the interest claimed unless precluded by section 615 of the revenue act of 1928. The act of March 3, 1875, above referred to, provided in substance that when any final judgment or approved claim against the United States is presented for payment and payment is withheld because of an asserted counterclaim or set-off, suit shall be instituted, and if the set-off asserted is not sustained, then interest shall be allowed on the judgment or claim, payment of which was thus wrongfully withheld or deferred. This provision has been held applicable in similar cases in other courts. See United States v. La Grange Grocery Co., 31 Fed. (2d) 297, and United States v. New York, C. & St. L. R. Co., 32 Fed. (2d) 887, in the reasoning of which we concur. But section 615 of the 1928 act amending section 177 (a) of the Judicial Code, provides:
“ Sec. 177. (a) No interest shall be allowed on any claim up to the time of the rendition of judgment by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest, except as provided in subdivision (b),”
and if this provision applies to cases such as the one at bar, no interest can be recovered by plaintiff herein. We do not think, however, that it was intended to apply to such cases. The words “ no interest shall be allowed on any claim up to the time of the rendition of judgment by the Court of Claims,” we think were intended to apply to suits on the original claim. There has already been a “ rendition of judgment by the Court of Claims,” and while this judgment is in one sense a claim, we think it is not such a claim as is referred to in the provision of the statute cited. We