STEPHENS, Circuit Judge.
For the period herein concerned John G. and W. B. Lundstrom constitute a copartnership under the firm name and style of Western Auto Express. The copartners as plaintiffs in the district court were awarded a money judgment against the United States under the Tucker Act of March 3, 1887, c. 359, 24 Stat. 505, Title 28 U.S.C.A. Sec. 41(20), for the reasonable value of services performed under a contract. The United States, defendant below, appeals claiming that nothing is owing to plaintiffs, and the plaintiffs appeal claiming that the award, under the evidence, should be larger.
The defendant below and the plaintiffs below are designated as appellants and appellees, respectively in the briefs, but we think it more understandable to refer to the plaintiffs below, who are both appellees and cross-appellants here, as Lundstroms and to the defendant below, which is both appellant and cross-appellee here, as United States or as the government.
The District Quartermaster, Civilian Conservation Corps at Vancouver, Washington, mailed to Lundstroms and others a written invitation for bids for “Commercial hauling of C.C.C. Camp Buildings” from various places to other localities. There is a note to the specification furnished the bidders as follows: “The above supplies are composed of about 75 Ton of Lumber (Portable Knocked Down buildings and building material) and about 200 Ton of Lumber for each shipment.” Lundstroms’ bid was accepted, and they entered upon the performance of the contract.
One of their truck men who was assigned to the job promptly informed them that the whole job consisted of hauling knocked down sections of C.C.C. houses located in out-of-the-way places and that there was no lumber to haul as the word “lumber” is customarily understood. There seems to be no controversy over the asser[794]*794tion of Lundstroms that the hauling of this sort of material is much more expensive than ordinary lumber. The compensation for hauling was fixed by the contract upon a base payment per hundred weight which covered both lumber and knocked down sections of houses. Upon learning the nature of the materials Lundstroms promptly notified the Quartermaster, but the latter refused to consider any adjustment. The evidence seems to establish that the official bruskly demanded full and prompt performance of the contract upon the penalty of having private trucks employed and charged to Lundstroms’ account and upon threats to withhold payments including due payments from other jobs.’
Lundstroms were not financially able to weather these penalties and threats so proceeded to perform the service, protesting, however, that the nature of the materials was not in accord with specifications. The contract provided for progress payments. Accordingly, vouchers were regularly made out upon government blanks, forwarded to the government and honored by it. It will be important to note that the vouchers contained the following printed statement upon their faces. “I certify that the above bill is correct and just and that payment therefor has not been received.” It may be well, too, at this junction to recite that the invitation to bid and the ensuing contract contained the following provision: “It is the duty of each prospective bidder to familiarize himself with all the terms and conditions of this proposal and satisfy himself completely before submitting his bid. All prospective bidders are invited to consult with the District Quartermaster, C.C.C. Vancouver Barracks, Washington, for any information desired.” The contract also contained a provision for referring disputes and a provision for “Variation of Quantities,” both of which we shall discuss later.
After the hauling had been completed and payment had been fully made as provided in the contract, Lundstroms brought suit upon the contract claiming, however, that the variation of the material as above indicated had greatly increased the cost of handling it and demanded judgment upon the quantum meruit value of the services less the sums already paid.
It is not seriously contended by the government that in ordinary parlance knocked down sections of houses would be classed as lumber. It does claim, however, that a directive was shown Lundstroms before the contract was entered into to the effect that such material is classed as lumber and further that the bidding rules required them to familiarize themselves with the terms of the proposal. (The full provision on this point has already been set out.)
As to the directive it is sufficient to say that the evidence is completely conflicting as to whether or not it was ever seen by or called to the attention of Lundstroms. The court found that Lundstroms knew nothing about the directive, and we cannot disturb this finding. The court also' found against the contention of the government that the requirement regarding the bidder’s duty to familiarize himself etcetera assists it. The representation as to materials were clear, and Lundstroms had a right to rely upon them. There is no claim as to the condition of the materials or as to any other situation out of the normal. As was said in United States v. Utah, Nevada & California Stage Co., 199 U.S. 414, 26 S.Ct. 69, 73, 50 L.Ed. 251, in referring to the necessity of the bidder’s making investigation beyond the government representations: “We do not think, when the statement was thus unequivocal, and the document was prepared for the guidance of bidders for government service, that the general statement that the contractor must investigate for himself, and of nonresponsibility for mistakes, would require an independent investigation of a fact which the government had left in no doubt.” Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898. See Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; Freund v. United States, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131.
The latter case is authority also for the proposition that the acceptance of payments as the work progresses under a comparable provision does not preclude additional recovery upon the quantum meruit. We shall therefore not further notice the government’s claim that this is an action in tort and therefore not within the purview of the Tucker Act.
In connection with the acceptance of progress payments and the printed statement that the amount stated upon the voucher is correct and just and not already received we consider the government’s claim that the facts constitute an accord and satisfaction. We think the essentials of an accord and satisfaction are [795]*795not present, but we are not required to go that far. There can be no doubt that the issue of accord and satisfaction must be pleaded, and this issue does not appear in the case, so far as we have seen, until it is argued in the government’s opening brief.
Furthermore, there is no substantial evidence in support of acquiescence by Lundstroms. The protests were in effect continuously. See St. Louis, Brownsville & Mexico R. Co. v. United States, 268 U.S. 169, 45 S.Ct. 472, 69 L.Ed. 899.
The contract contains the following provision :
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STEPHENS, Circuit Judge.
For the period herein concerned John G. and W. B. Lundstrom constitute a copartnership under the firm name and style of Western Auto Express. The copartners as plaintiffs in the district court were awarded a money judgment against the United States under the Tucker Act of March 3, 1887, c. 359, 24 Stat. 505, Title 28 U.S.C.A. Sec. 41(20), for the reasonable value of services performed under a contract. The United States, defendant below, appeals claiming that nothing is owing to plaintiffs, and the plaintiffs appeal claiming that the award, under the evidence, should be larger.
The defendant below and the plaintiffs below are designated as appellants and appellees, respectively in the briefs, but we think it more understandable to refer to the plaintiffs below, who are both appellees and cross-appellants here, as Lundstroms and to the defendant below, which is both appellant and cross-appellee here, as United States or as the government.
The District Quartermaster, Civilian Conservation Corps at Vancouver, Washington, mailed to Lundstroms and others a written invitation for bids for “Commercial hauling of C.C.C. Camp Buildings” from various places to other localities. There is a note to the specification furnished the bidders as follows: “The above supplies are composed of about 75 Ton of Lumber (Portable Knocked Down buildings and building material) and about 200 Ton of Lumber for each shipment.” Lundstroms’ bid was accepted, and they entered upon the performance of the contract.
One of their truck men who was assigned to the job promptly informed them that the whole job consisted of hauling knocked down sections of C.C.C. houses located in out-of-the-way places and that there was no lumber to haul as the word “lumber” is customarily understood. There seems to be no controversy over the asser[794]*794tion of Lundstroms that the hauling of this sort of material is much more expensive than ordinary lumber. The compensation for hauling was fixed by the contract upon a base payment per hundred weight which covered both lumber and knocked down sections of houses. Upon learning the nature of the materials Lundstroms promptly notified the Quartermaster, but the latter refused to consider any adjustment. The evidence seems to establish that the official bruskly demanded full and prompt performance of the contract upon the penalty of having private trucks employed and charged to Lundstroms’ account and upon threats to withhold payments including due payments from other jobs.’
Lundstroms were not financially able to weather these penalties and threats so proceeded to perform the service, protesting, however, that the nature of the materials was not in accord with specifications. The contract provided for progress payments. Accordingly, vouchers were regularly made out upon government blanks, forwarded to the government and honored by it. It will be important to note that the vouchers contained the following printed statement upon their faces. “I certify that the above bill is correct and just and that payment therefor has not been received.” It may be well, too, at this junction to recite that the invitation to bid and the ensuing contract contained the following provision: “It is the duty of each prospective bidder to familiarize himself with all the terms and conditions of this proposal and satisfy himself completely before submitting his bid. All prospective bidders are invited to consult with the District Quartermaster, C.C.C. Vancouver Barracks, Washington, for any information desired.” The contract also contained a provision for referring disputes and a provision for “Variation of Quantities,” both of which we shall discuss later.
After the hauling had been completed and payment had been fully made as provided in the contract, Lundstroms brought suit upon the contract claiming, however, that the variation of the material as above indicated had greatly increased the cost of handling it and demanded judgment upon the quantum meruit value of the services less the sums already paid.
It is not seriously contended by the government that in ordinary parlance knocked down sections of houses would be classed as lumber. It does claim, however, that a directive was shown Lundstroms before the contract was entered into to the effect that such material is classed as lumber and further that the bidding rules required them to familiarize themselves with the terms of the proposal. (The full provision on this point has already been set out.)
As to the directive it is sufficient to say that the evidence is completely conflicting as to whether or not it was ever seen by or called to the attention of Lundstroms. The court found that Lundstroms knew nothing about the directive, and we cannot disturb this finding. The court also' found against the contention of the government that the requirement regarding the bidder’s duty to familiarize himself etcetera assists it. The representation as to materials were clear, and Lundstroms had a right to rely upon them. There is no claim as to the condition of the materials or as to any other situation out of the normal. As was said in United States v. Utah, Nevada & California Stage Co., 199 U.S. 414, 26 S.Ct. 69, 73, 50 L.Ed. 251, in referring to the necessity of the bidder’s making investigation beyond the government representations: “We do not think, when the statement was thus unequivocal, and the document was prepared for the guidance of bidders for government service, that the general statement that the contractor must investigate for himself, and of nonresponsibility for mistakes, would require an independent investigation of a fact which the government had left in no doubt.” Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898. See Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; Freund v. United States, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131.
The latter case is authority also for the proposition that the acceptance of payments as the work progresses under a comparable provision does not preclude additional recovery upon the quantum meruit. We shall therefore not further notice the government’s claim that this is an action in tort and therefore not within the purview of the Tucker Act.
In connection with the acceptance of progress payments and the printed statement that the amount stated upon the voucher is correct and just and not already received we consider the government’s claim that the facts constitute an accord and satisfaction. We think the essentials of an accord and satisfaction are [795]*795not present, but we are not required to go that far. There can be no doubt that the issue of accord and satisfaction must be pleaded, and this issue does not appear in the case, so far as we have seen, until it is argued in the government’s opening brief.
Furthermore, there is no substantial evidence in support of acquiescence by Lundstroms. The protests were in effect continuously. See St. Louis, Brownsville & Mexico R. Co. v. United States, 268 U.S. 169, 45 S.Ct. 472, 69 L.Ed. 899.
The contract contains the following provision :
“Special Instruction to Bidders
“Disputes: Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer, subject to written appeal by the contractor within thirty (30) days to the head of the department concerned or his duly authorized representative whose decision shall be final and conclusive upon the parties hereto. In the meantime the contractor shall diligently proceed with performance.”
It is the position of the government that this provision covers the dispute over the description of the materials to be hauled, that it was the duty of the Lundstroms to follow the procedure therein, and that the district court was without jurisdiction of the subject matter. But, if this were true, the very untenable and paradoxical situation would be present that the government, one of the parties to the contract, would have the decision as to the meaning and extent of its contract. Provisions such as here under consideration do not relate at all to the interpretation of the contract. Issues so arising are strictly issues of law and are for the courts to determine.
Although we do not cite it as controlling authority, we think the correct principle is concisely stated in Rust Eng. Co. v. United States, 86 Ct.Cl. 461. “It will be seen, therefore, that this item of plaintiff’s claim was denied upon the construction of the contract rather than upon the facts. It is clear that the court is not deprived of jurisdiction to consider the claim. Appeals were necessary under the contract only on disputes concerning questions of fact, and there was here no controversy as to the facts.” Cf. Haskell v. McClintic-Marshall Co., 9 Cir., 289 F. 405, 409. See Davis v. United States, 82 Ct.Cl. 334; Donnelly on the Law of Public Contracts, page 349.
The government cites three cases as authority for its position on this issue, none of which, in our opinion, is in point:
Leebern v. United States, 5 Cir., 124 F.2d 505. The litigant in this case was denied a review because he did not follow the administrative provisions of the Alcohol Tax Unit.
Plumley v. United States, 226 U.S. 545, 33 S.Ct. 139, 57 L.Ed. 342. A construction contract provided for a certain procedure in the case in which extras were added. No question arose as to the additions being extras. Recovery was denied upon the ground that the procedure provided was not followed.
Myers v. Bethlehem Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. In this case it was held that an administrative remedy must be exhausted before applying to the courts for relief.
In none of these cases was there an issue upon the proper interpretation of a contract. The provision in the contract covering “disputes”'in the instant case is in no sense a statutory administrative remedy, and cases turning upon provisions of this nature have no- relevancy to the question under consideration.
The following provision is in the contract: “6. Variation in Quantities: The government reserves the right to order more or less than quantities specified, provided the difference shall not exceed 25%.” It will be recalled that, the contract rate for hauling is a single flat per hundred pound rate inclusive of both lumber and knocked down material.
As heretofore stated we think Lundstroms had a right to recover upon a quantum meruit basis, but it appears to us that the parties contracted in the knowledge that the total job and the proportions of lumber and knocked down materials might vary by 25%. With this in mind we think the trial court was not clearly in error in applying the provision to the solution of the problem presented to it.
It is claimed by the government that there is no legal proof as to the reasonable sum to be paid for the hauling, but in our opinion the court had ample testimony to establish the correct sum. An [796]*796official basic table for hauling over Oregon highways was introduced. It was not shown definitely that the table was in effect as fixing official rates at the time the hauling was done, but several qualified witnesses testified in reference to it and stated that the rates provided therein were fair and reasonable for the hauling done under the contract.
The judgment of the court both as to the direct and cross appeals is affirmed.