Blaine Co. v. United States

157 Ct. Cl. 53, 1962 U.S. Ct. Cl. LEXIS 93, 1962 WL 9267
CourtUnited States Court of Claims
DecidedApril 4, 1962
DocketNo. 435-56
StatusPublished
Cited by1 cases

This text of 157 Ct. Cl. 53 (Blaine Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blaine Co. v. United States, 157 Ct. Cl. 53, 1962 U.S. Ct. Cl. LEXIS 93, 1962 WL 9267 (cc 1962).

Opinion

JoNes, Chief Judge,

delivered the opinion of the court:

This is an action for damages alleged to have been incurred as a result of defendant’s breach of contract.

Plaintiff The Blaine Company, a Pennsylvania corporation, contracted as of March 13, 1951 to produce 195,000 fatigue jackets for defendant. Pursuant to the contract, plaintiff was to deliver 29,500 jackets in each of the months May through October of 1951. An additional 12,000 jackets were to be delivered in November of that year. Also contained in the contract was the following clause: “acceleeaTION OP DELIVERY TO MAXIMUM EXTENT DESIRED.”

Herringbone twill cotton cloth was to be furnished by defendant in accordance with an “Availability Schedule for Government Furnished Material” delineated in the contract.1 The availability schedule was coordinated with plaintiff’s jacket delivery schedule and called for an initial shipment (16 percent of contractual requirements) 45 days prior to plaintiff’s first delivery. In general, the contract provided that 15 days thereafter, defendant was to make the first of 10 shipments, each separated by 15 days, so as to make available in alternative shipments 8 percent and 7 percent of the required material. The contract further provided that:

In the event that any Property is not furnished to the contractor [at the scheduled time] the contracting officer shall, if duly requested by the contractor, make a determination of the delay occasioned the contractor thereby and an equitable adjustment on account of such delay under the section of this contract entitled “Changes”, [55]*55provided, however, that the Government shall not be liable to the contractor for, and no such adjustment shall include, consequential damages or loss of profit.2

Upon notification of availability, plaintiff was to pick up the cloth at the Philadelphia Quartermaster Depot.

Initial availability was scheduled for April 17,1951; plaintiff’s first jacket delivery was set for May 31, 1951. Nevertheless, it was plaintiff’s intention, to which defendant acquiesced, to postpone delivery under the contract in suit until completion of another jacket production contract previously negotiated with defendant. Informing defendant of this intention, plaintiff stated that the contract in suit would still be completed “within the time specified for completion without obligating ourselves to a specified monthly delivery * * * accelerating] if possible.”3

As to the contract involved in the present action, plaintiff, on May 11,1951, agreed to begin production June 1,1951, and planned to make the first jacket delivery about July 30,1951.

On April 17,1951, the availability date of the initial shipment, defendant had not made any cloth available. By May 2, 1951, the availability date of the second shipment, defendant was still behind the contract shipment schedule.4 Neither, at this time, had plaintiff begun to produce jackets under the contract.

But, on June 21,1951, defendant notified plaintiff that over 95,000 yards of cloth (shipped May 14, 25, and 31) had not been picked up and that additional cloth consignments would not be released until such time as it was picked up.

Prior to this, during May 1951, plaintiff, encountering storage difficulties, requested by letter that defendant hold up further shipments. On June 22, 1951, plaintiff picked up the cloth made available in May, as described above, bljf again requested that no more doth be issued to its account until defendant was so notified.

Defendant was notified on July 10 that plaintiff then possessed storage space. Plaintiff advised defendant on July 14 that a minimum 40,000 yards per week would be required [56]*56to maintain the accelerated production program plaintiff contemplated. Communications throughout July and August (see findings 12 and 13) emphasized plaintiff’s desire for accelerated availability of cloth.

By August 30, 1951, under the contract schedule, defendant should have furnished 457,275 yards of cloth; but as of that date, only 366,685 yards had actually been made available. One reason for defendant’s failure to meet the availability schedule was its mistaken belief that the contract required cloth necessary to produce 155,000 jackets, rather than the 195,000 called for. This error was discovered about the middle of August.

Not until September 24, 1951, had the August 30th requirements been met by defendant. (And it is this 24-day delay that plaintiff stresses.) The concluding shipment, a small quantity relatively, was made about 12 days later than the availability schedule provided.

From the date of defendant’s acceptance of the first shipment of completed jackets (July 12, 1951), plaintiff’s rate of production until the contract was fully complied with (November 5,1951) was an almost unvarying 12,060 jackets per week.

Plaintiff argues that had the balance of cloth due August 30th been available as of that date, rather than September 24th, it could have completed the contract before November 1,1951. Plaintiff thus is asking for increased costs for labor and overhead for the period November 1 through November 5. The latter has been shown by the evidence to be the latest possible date of the contract’s completion.

Properly exhausting its remedies under the disputes clause in the contract, plaintiff asserted before the Armed Services Board of Contract Appeals that labor costs had not been increased, and claimed $1,516.58 for increased overhead for the period November 1 through 10. In a decision, dated August 31, 1956, the Board held that defendant was not in default of its duty to furnish cloth and did not breach the contract. We must review that decision according to the standard of the so-called Wunderlich Act, 68 Stat. 81, 41 Ü.S.C. §321 (1958).

Obviously, defendant did deviate from the contract availability schedule. But plaintiff’s actions, including letters [57]*57in May and June requesting postponement of deliveries until storage space was available, cannot but be treated as a waiver of its right to defendant’s strict compliance with the schedule.

This is not to say that defendant owed no duty whatsoever regarding dates of availability. Clearly, defendant intended to enforce plaintiff’s contractual obligations. Thus, defendant did owe a duty to make sufficient cloth available at proper times as to enable plaintiff to perform under the contract-^ — that is, to make reasonable shipments under the circumstances. Consideration for defendant’s duty was plaintiff’s forbearance to enforce its right to strict compliance with the availability schedule.

Accordingly, we must determine whether this duty was breached. As heretofore noted, and as shown by finding 19, plaintiff’s rate of production was stable and uniform. The facts and circumstances of record are not sufficient to show that defendant’s deviation caused plaintiff to delay or curtail production. As a matter of fact the contrary seems more likely. Plaintiff argues that by its letters in July and August an intention to accelerate was indisputably indicated. This may well be so. Nevertheless, the acceleration language of the contract was not mandatory. It cannot be construed to give plaintiff the power to unilaterally create a new and different relationship between the parties.

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Bluebook (online)
157 Ct. Cl. 53, 1962 U.S. Ct. Cl. LEXIS 93, 1962 WL 9267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blaine-co-v-united-states-cc-1962.