Connor & Ripstra, Co-Partners v. United States

100 Ct. Cl. 465, 1944 U.S. Ct. Cl. LEXIS 101, 1944 WL 3736

Opinion

MaddeN, Judge,

delivered the opinion of the court: The plaintiff, a partnership, seeks to recover for the extra costs incurred by it in excavating rock, in the performance of a contract providing for a lump sum compensation, and for •extra payment, the amount of which was to be adjusted pursuant to the contract, for excavating rock as defined in -the contract. The facts appear in our findings of fact and -will not be repeated here.

The plaintiff was paid an extra amount of $1,041.96 for excavating rock. This amount was calculated upon the basis of an investigation made, after the completion of the contract, by the defendant’s superintendent of construction, to determine how much rock, as defined in the contract, the plaintiff had excavated, and what was the reasonable cost, per cubic yard, of excavating it. In our opinion, the facts produced by this investigation constitute the most trustworthy evidence as to how much extra compensation plaintiff should have received. The testimony of Mr. Ripstra, one of the partners in the plaintiff’s firm, that he estimated that the excavation took twice as long as it should have taken, hardly rises to the dignity of evidence. The other estimates made by the plaintiff were merely estimates, not records, of the materials encountered. The investigation by the defendant’s superintendent of construction was, on the other hand, carefully and systematically made. On the basis of all the evidence, we conclude that the plaintiff has already received as much extra compensation as it was entitled to under the contract and may not recover more.

As to the plaintiff’s claim for compensation for repairing the steam line which it damaged with its excavating machine, the plaintiff took no appeal from the contracting officer’s denial of that claim, and that officer’s decision therefore became final. The plaintiff has abandoned its claim for damage to the excavating machines, described in finding 9.

The plaintiff’s petition will be dismissed.

It is so ordered.

Whitaker, Judge; LittletoN, Judge; and Whaeet, Chief Justice, concur. JoNes, Judge, took no part in the decision of this case.