71 Ct. Cl. 251 | Ct. Cl. | 1930
delivered the opinion:
Plaintiff brings this suit to recover compensation for the taking of its steamship Parthian in accordance with the terms of requisition charter No. 2 prepared by the defendant and duly executed by the plaintiff and the United States Shipping Board.
Plaintiff insists that under the plain terms of the charter it is entitled to compensation for the taking of its vessel at' the rate of $10 per deadweight ton per month from the date the vessel was taken by the defendant until the date on which it was redelivered. There is no question but that the contract between the parties expressly provided for the payment by the defendant of the compensation claimed by plaintiff.
The defendant, by its counterclaim, contends that the charter as entered into was contrary to the agreement of
Under the facts, we are of opinion that the plaintiff is entitled to recover compensation for the taking of its steamship Parthian at the rate of $10 per deadweight ton per month from August 25, 1918, to June 18, 1919, plus an operating commission of $2,533.80, which amount less the new revenues collected leaves the sum of $34,012.32 due the plaintiff by the defendant.
This court has equitable jurisdiction to reform a written instrument but the only rule of equity upon which this court might invoke such jurisdiction is the doctrine of mutual mistake and this principle has been applied in all of the decided cases. The facts in this case do not warrant the reformation of the contract. On the contrary, they establish that no agreement had been reached between the parties prior to the execution of the contract; that the plaintiff knew that the clause now sought to be substituted was not in the written contract when it executed the same, that it called the Shipping Board’s attention to the provisions of the charter twice before the Shipping Board executed the contract and that, notwithstanding this fact and after the Shipping Board had presumably taken legal advice, it executed the contract fully, freely, openly, and with full knowledge. Instead of show
It is worthy of note that the defendant did not call as a witness anyone representing the Shipping Board who had anything to do with the preparation, consideration, or execution of the charter. The defendant’s counterclaim is predicated upon an account constructed by auditors of the Shipping Board against the plaintiff in the light of the construction of the charter by such auditors about ten years after the execution of the charter. In the light of the facts there is no merit in defendant’s counterclaim.
The plaintiff claims interest, but since the suit is based upon a contract, interest may not be included in the judgment. Atlantic Refining Co. v. United States, 69 C. Cls.
In view of our conclusion that plaintiff is entitled to recover under the terms of the charter executed by the parties compensation for the use of its vessel, it is not necessary to discuss the plaintiff’s other contentions.
Plaintiff is entitled to recover the amount of $34,012.32. It is so ordered.