The opinion of the court was delivered by: BYERS
This is an action to recover $4,680.82 damages for the alleged breach of an express contract on the part of the United States of America, and jurisdiction is found in Title 28 U.S.C.A. § 41(20).
The plaintiff had a written contract dated November 21, 1939, for steel shelving to be erected in the General Federal Office Building for the storing of records for the Bureau of the Census, the contract price being $97,800.00.
The shelving was installed and the defendant deducted $4,680.82, improperly as the plaintiff asserts. The items so comprised were:
(1) $1,500.00 deducted from the plaintiff's first requisition dated March 2, 1940, as "5% deduction for failure to meet specifications".
(2) $2,160.00 deducted from the second requisition dated March 12, 1940, as "deduction for failure to meet specifications".
(3) $1,020.82 deducted from the final requisition dated March 29, 1940. This comprises two items:
(a) $964.00 as "deduction for failure to meet specifications"; and
(b) $56.82 as "1% discount".
The question for decision is whether the plaintiff is entitled to judgment for these deductions.
The contract is a formidable document, of which, curiously enough, no copy was delivered to the plaintiff. That does not affect the status of the parties but somewhat explains the plaintiff's assertion that he did not appeal to a departmental head (See Article 12) because he did not know of that requirement.
It seems unnecessary to quote at length from the contract, and attached documents, in view of the narrow issues presented by this litigation. It should be noted, however, that according to invitation the contractor submitted a bid to:
"Furnish, deliver, and erect in place, in the General Federal Office Building, Washington, D.C., (now under construction) steel shelving as hereinafter described and in strict accordance with Federal Specifications AA-S-271, dated August 1, 1933, 'shelving; steel, storage'; except that: 'Unless otherwise permitted herein' shall be inserted in paragraph C-1; in paragraph D-2 the posts shall be of the angle-shaped type and shall not be less than * * * (these gages are U.S. standard and subject to standard commercial tolerances); * * *."
The pertinent specifications are:
"C1. Steel shall be one pass, cold rolled as a minimum requirement, free from defects and imperfections which impair appearance or strength of the product.
"C-2. Workmanship shall be first class in every respect and of a type to insure strength and rigidity of erected shelving."
"D-5. Finish. -- All parts shall be thoroughly cleaned to remove rust, grease, or dirt. Finish shall consist of one coat of enamel thoroughly baked on, olive green color. Unless otherwise specified, bolts and nuts shall be of ...