Dale Construction Co. v. United States

161 Ct. Cl. 825, 1963 U.S. Ct. Cl. LEXIS 94, 1963 WL 8486
CourtUnited States Court of Claims
DecidedMay 10, 1963
DocketNo. 85-58
StatusPublished
Cited by16 cases

This text of 161 Ct. Cl. 825 (Dale Construction 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
Dale Construction Co. v. United States, 161 Ct. Cl. 825, 1963 U.S. Ct. Cl. LEXIS 94, 1963 WL 8486 (cc 1963).

Opinion

Per Curiam :

This case was referred pursuant to Buie 45 to Herbert N. Maletz, a trial commissioner of this court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed October 18, 1962. Exceptions to the commissioner’s report were taken by the plaintiff, a brief was filed by the defendant and the case was submitted to the court without argument of counsel. Since the court is in agreement with the findings and recommendations of the commissioner, subject to correction of a clerical error and deletion of one sentence, it adopts the same, as amended, as the basis for its judgment in this case.

The commissioner’s opinion as approved by the court is as follows:

The sole issue in this case is the amount of damages plaintiff is entitled to recover by reason of defendant’s breach of contract.

Plaintiff, Dale Construction Co. (Dale), is a Massachusetts corporation which, as low bidder, was awarded a contract by the Civil Aeronautics Administration (C.A.A.) on December 20,1951, pursuant to Schedules VII and VTII, for replacement of portions of Instrument Landing Systems at the Teterboro, New Jersey, Air Terminal and the West-chester County Airport, White Plains, New York. The estimated contract price for Teterboro was $8,872.50; for White Plains, $8,856.00. The nature of the work to be performed under each Schedule was virtually identical but due to later revisions, the final contract price of Schedule VII, as completed on June 20,1951, was $9,512.09.

Under the contract, Notice to Proceed on both Schedules was to be issued by C.A.A. to become effective about April 1, 1951. However, plaintiff exercised a contract right to have [827]*827these Notices staggered ten days. On April 19, 1951, Dale received a Notice to Proceed on Teterboro, but was never issued a Notice to Proceed on White Plains.

On May 6, 1951, the contractor inquired as to when it might expect to receive a Notice and received a reply from the C.A.A. that changes in the work probably would be required due to an extension in the runway at the White Plains airport being made by the State of New York to accommodate the Air National Guard. The C.A.A. added that “you may expect to receive revised plans from us shortly after July 1, 1951, upon which you may submit new quotations but that if it were not legally possible to equalize the existing contract, it would be necessary to issue new Invitations to Bid. Not until nine months later, in March 1952, did plaintiff receive further written advice from the C.A.A. concerning the White Plains portion of the contract, and then only to be advised by the agency that it appeared in the best interests of the Government not to have the work done and that the contract was, therefore, considered closed. This communication was followed by another in April 1952 in which the C.A.A. sent plaintiff a proposed release for all claims. Plaintiff quite understandably declined to sign the release unless it were paid for certain labor and material expenditures in connection with the White Plains job. Subsequent efforts by the parties to reach an administrative settlement were not successful. This may have been due to the fact that the plaintiff was dilatory in prosecuting its claim and failed to supply the C.A.A., as requested, substantiating documentary information.

The evidence of record shows that the plaintiff suffered damages by reason of the breach in the amounts set forth below.

Item 1: Expenditures for lumber, labor and miscellaneous materials. To prove entitlement plaintiff’s witness Bobbins, the treasurer and principal stockholder of Dale, testified,1 but without presenting supporting documentary information, that the company had expended $1520.97 for specifically identified items of lumber, labor and miscellaneous materials [828]*828for the Teterboro and White Plains projects. Plaintiff claims that one-half of this expenditure is applicable to White Plains and on this basis says it is due $760.49 (one-half of $1520.97).

An examination by defendant’s accountant of plaintiff’s records — consisting of canceled checks, checkbooks, payroll books, memoranda, letters and invoices, but not books of original entry which were not available — resulted in verification of a total expenditure on both projects for these items of only $543.81. Conceding that one-half of the expenditure is applicable to White Plains, defendant contends that plaintiff is entitled only to $271.91 (one-half of $543.81). This contention is persuasive not only because of the impressive credibility of the defendant’s witness who had made the audit, but because of plaintiff’s failure to buttress its proof by documentary information or corroborative testimony. Thus there is no reasonable basis for allowing recovery on this item in excess of the verified amount.

Item, 2: Bond and Insurance Premium. Plaintiff’s witness testified that the company purchased a performance bond in accordance with the requirements of the contract, the premium payment for which was $132.97, $66.90 of which is applicable to WThite Plains. This amount was verified by the defendant and is concededly due plaintiff.

Plaintiff also claimed expenditure for $39.00 for a premium payment for certain Workmen’s Compensation insurance. For lack of verification or corroboration, this claim must be disallowed.

Item 3: Poles, fencing, reinforcing and structured steel. Plaintiff claims $569.45 for these items, of which defendant’s accountant was able to verify only $316.48.

One of the items which defendant was unable to verify was a claim of $160.00 (applicable to White Plains only) for 230 pieces of structural steel, including cost of bending and forming. The witness Robbins, without contradiction, identified the specific categories of steel purchased for the job. He testified further, without contradiction, that steel at the time cost 7 or 8 cents a pound, plus 2 cents a pound for bending and forming, and that the company purchased [829]*8291,600 pounds of steel for tbe White Plains job, resulting in an expenditure of approximately $160.00.

The plaintiff also claims $78.90 for structural steel and galvanized bolts. To support the claim, its witness testified that the company purchased small pieces of steel at a cost, including galvanizing, of $134.48. One-half of this expenditure (or $67.24), plaintiff asserts, is applicable to White Plains. Additionally, its witness testified that $6.66 was expended for special galvanized bolts, making a total of $73.90 for this particular item.

Though these claimed expenditures totaling $233.90 ($160.00 plus $73.90) for reinforcing and structural steel are unverified, the record does contain some independent corroboration. Specifically, on July 10, 1952, the C.A.A. wrote Dale (see finding 12) that in excess of 200 pieces of reinforcing steel and straight bars had been located at the White Plains site. The conclusion is inescapable from this that Dale must have made at least a substantial part of the expenditure for the steel in question. In these circumstances, and in light of Robbins’ testimony which is credible, there is reasonable basis for allowing one-half of this claimed expenditure, or $116.95. Although this result is only proximate, the fact of damage has been clearly established and a reasonable basis of computation is afforded. Under these circumstances, lack of certainty as to the amount of damages does not preclude recovery.

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Bluebook (online)
161 Ct. Cl. 825, 1963 U.S. Ct. Cl. LEXIS 94, 1963 WL 8486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-construction-co-v-united-states-cc-1963.