71 Ct. Cl. 739 | Ct. Cl. | 1931
delivered the opinion:
June 28, 1919, plaintiff and the defendant entered into a contract for the construction of an extension to the power
Because of numerous delays caused by the defendant,, the work which the defendant required plaintiff to do under the contract was not completed and accepted until June 30, 1921, which was 505 days beyond the time fixed by the contract for its completion. The Government arbitrarily held plaintiff liable for liquidated damages for 23 days’ delay beyond the contract period.
With reference to the various items included in plaintiff’s claim for amounts in excess of those allowed by the Chief of the Bureau of Yards and Docks as the cost of changes and extras, the facts establish beyond question that plaintiff was not allowed its proven costs for these items, and Findings I to XV, inclusive, show the additional amounts to which it is entitled for the extra work performed.
The defendant insists that plaintiff may not recover any amount with reference to these items for the reason that under the contract, paragraph 17 of the general provisions, the decision of a board of three officers and the Chief of the Bureau of Yards and Docks was conclusive and binding upon the plaintiff, and relies upon Lustbader Construction Co. v. United States, 62 C. Cls. 549; Eaton, Brown & Simpson, Inc., v. United States, 62 C. Cls. 668, and other cases of similar import in which it was held that when the parties to a contract agree that the decision of an officer shall be final the court may not set aside such decision unless it is fraudulent or so grossly erroneous that fraud will be implied. Those cases are not controlling here. It
With respect to the items relating to changes and extras set forth in Findings I to XY, inclusive, and the item of $2,300 exacted by the defendant as liquidated damages, Finding XVII, the plaintiff is entitled to recover a total of $22,968.14.
The next item claimed by the plaintiff relates to the additional cost to plaintiff of maintaining a force of workmen by reason of unreasonable delays directly caused by the defendant during the period beyond February 11, 1920, the date specified for the completion of the contract, including the increased costs for labor and material, and additional expenses resulting from such delays incurred by the plaintiff in being required to prosecute the work under conditions not contemplated in the contract.
The record is voluminous and all the testimony is positive that the delay in completing the work within the time provided in the contract was directly chargeable to the- defendant, and the facts establish that the delays were of such character as to entitle the plaintiff to recover its additional cost in maintaining its force of workmen and the increase in costs for labor and material, and the additional expense
With respect to many of the items referred to in Findings V to XV, the plaintiff was compelled to hold much of the work in suspense because of the failure of the Government officers to make decisions as to what they wanted and in holding up the work and changing decisions already made.
With respect to the item of additional costs to plaintiff attributable to the delay caused by the defendant (Finding XIX), the facts establish that the additional costs and expenses to plaintiff and the increase in the costs of labor and material directly attributable to the wrongful and unreasonable delay was $45,160.50. This amount the plaintiff is entitled to recover.
The remaining item relates to the deduction by the defendant of $2,800.59 from the amount of $80,141.31, being the final payment by the Navy Department admittedly due plaintiff under the contract. See Finding XX. Although the item of $20,800.59 was. deducted from the final payment mentioned, it represented 2 per centum of $140,029.67, the claims reserved by plaintiff in the qualified release. The exaction by the defendant of payment of this consideration from the plaintiff in order that it might receive payment of the amount admittedly due was unauthorized and the plaintiff is entitled to recover the same. McClintic-Marshall Co. v. United States, supra; Carroll et al. v. United States, 69 C. Cls. 435.
Judgment will be entered in favor of the plaintiff against the defendant for $70,929.23. It is so ordered.
