#### THE GARFORD MOTOR TRUCK COMPANY v. THE UNITED STATES.

[No. B-142.

Decided January 2, 1923.]

*On the Proofs.*

*Contract; addition of sales tax to contract price.*— Where plaintiff submits a written proposal to the Government to furnish certain automobile chassis upon condition that any special taxes imposed by National or State Governments will be added to the contract price, and the contract is awarded to plaintiff “in accordance with his proposal,” but the formal contract after-wards executed contains no special reference to said condition of the proposal, it is as much a part of said contract as if expressed therein in terms. *Gar ford Motor Truck Oo. case,*57' O. 01s. 404.

*The Reporter's*statement of tlie case:

*Mr. W. Ainsworth Parker*for the plaintiff.

*Mr. Qrowley Wentworth,*with whom was *Mr. Assistant Attorney General Robert IS. Lovett,*for the defendant. *Mr.*IF. *F. Norris*was on the briefs.

The following are the facts of the case as found by the court:

The plaintiff is, and was during the times herein mentioned, a corporation organized and existing under the laws of Ohio, its principal office and factory being located at Lima, Ohio.

II. On or about April 23, 1919, the plaintiff and the United States entered into a written contract, designated Motors 2970, signed at the end by the parties by their duly authorized representatives, by which contract the plaintiff contracted to manufacture and sell to the United States, and the United States contracted to buy from the plaintiff, on the terms and conditions therein set forth, certain designated spare parts for Garford automobile trucks, for a total price of $188,787.13, plus the amount of any sales tax imposed or to ho imposed on the plaintiff for and on account- of the sale of the said spare parts.

HI. Thereafter, on or about May 22, 1919, the plaintiff and the United States entered into a written contract signed *54at the end by the parties by their duly authorized representatives, modifying the aforesaid contract Motors 2970 by eliminating therefrom certain articles.

IV. Thereafter the plaintiff, in performance of and in accordance with the aforesaid contract Motors 2970, modified as aforesaid by the contract of May 22, 1919, duly delivered to the United States on or about December 6, 1919, the last and final installment of the articles covered thereby. All the articles contained in the said installment were inspected by the United States before delivery in accordance with the terms and conditions of the said contract, modified as aforesaid, and were approved and accepted by the United States. There was imposed on the plaintiff for and on account of the sale and delivery of the said articles a tax of 5 per cent of the base price thereof by section 900 of an act of Congress approved February 24, 1919, 40 Stat. 1122; Thereupon there became due and owing to the plaintiff from the United States, under and by virtue of the said contract, amended as aforesaid, for and on account of the sale and delivery of the articles contained in the said installment, the sum' of $1,-148.00, which included the sum of $51.19, being the amount of the said sales tax imposed on the plaintiff as aforesaid. The plaintiff has demanded from the United States payment of the said sum of $1,148.06. The Auditor for the War Department has admitted the said sum of $1,148.06 to be due to the plaintiff, but has refused payment thereof as hereafter set forth in Findings XIII and XIV.

V. On or about April 28,1919, the plaintiff and the United States entered into a written contract, designated Motors 3002, signed at the end by the parties by their duly author^ ized representatives, by which contract the plaintiff contracted to manufacture and sell to the United States, and the United States contracted to buy from the plaintiff, on the terms and conditions therein set forth, certain designated spare parts for Garford automobile trucks, for a total price of $188,787.13 plus the amount of any sales tax imposed or to be imposed on the plaintiff for and on account of the sale and delivery of the said spare parts.

VI. On or about May 22,1919, the plaintiff and the United States entered into a written contract, signed at the end by *55the parties by their duly authorized representatives, modifying the aforesaid contract Motors 3002 by eliminating therefrom certain articles.

VII. On or about June 10, 1919, the plaintiff and the United States entered into a written contract, signed at the end by the parties by their duly authorized representatives, further modifying the aforesaid contract designated Motors 3002 by changing the destination of the parts covered thereby from “Main Supply Depot, Motor Transport Corps, American Expeditionary Forces, Cercy la Tour, France,” to “ Commanding Officer, Motor Transport General Depot, Camp Jessup, Atlanta, Georgia.”

VIII. Thereafter, on or about September 15, 1919, plaintiff and the United States entered into a written contract, signed at the end by the parties by their duly authorized representatives, further modifying the aforesaid contract designated Motors 3002 by extending the time of performance to October 30, 1919.

IX. Thereafter, on or about May 29, 1920, plaintiff and the United States- entered into a written contract, signed at the end by the parties by their duly authorized representatives, further modifying the said contract designated Motors 3002 by eliminating therefrom certain articles.

X. On or about March 18, 1920, the plaintiff in performance of and in accordance with the aforesaid contract Motors 3002, modified as aforesaid, duly delivered to the United States an installment of the articles covered thereby. All the articles contained in said installment were inspected by the United States before delivery in accordance with the terms and conditions of said contract, modified as aforesaid, and were approved and accepted by the United States. There was imposed on the plaintiff for and on account of the sale and delivery of the said articles a tax of 5 per cent of the base price thereof by chapter 18, section 900, of an act of Congress approved February 24, 1919, 40 Stat. 1122. Thereupon there became due and owing from the United States to the plaintiff, under and by virtue of the aforesaid contract Motors 3002 (amended as aforesaid) for and on account of the sale and delivery of the articles contained in the said installment, the sum of $6,586.74, which included *56the sum of $298.68, being the amount of the said sales tax imposed on the plaintiff as aforesaid. The plaintiff has demanded from the United States the said sum of $6,586.74. The Auditor for the War Department has admitted the said sum to be due to the plaintiff, but has refused payment thereof as hereafter set forth in Findings XIII and XIV.

XL On or about June 14, 1919, plaintiff and the United States entered into a written contract, designated Motors 3592, signed at the end by the parties by their duly authorized representatives, by which contract the plaintiff agreed to manufacture and sell to the United States and the. s United States agreed to buy from the plaintiff a set of miscellaneous spare parts for Garford automobile trucks for the sum of $32,774.14 plus the amount of any sales tax imposed or to be imposed on the plaintiff for and on account of the sale of the said spare parts.

. XII. On or about December 31, 1919, plaintiff, in performance of the aforesaid contract, Motors 3592, duly delivered to the United States all the articles which it had therein contracted to deliver, and fully performed all and everything in the said contract required by it to be performed in accordance with the terms thereof. All the said articles were inspected by the United States before delivery in accordance with the terms and conditions of the said contract, and were approved and accepted by the United States. There was assessed upon the plaintiff by the United States for and on account of the sale and delivery of the articles covered by the said contract by section 900 of an act of Congress approved February 24, 1919, 40 Stat. 1122, a tax amounting to 5 per cent of the base price thereof, or $1,638.70. The plaintiff has demanded from the United States the base price named in the said contract, Motors 3592 (or $32,774.14), plus the amount of the sales tax assessed on it as aforesaid (or $1,638.70), or a total sum of $34,412.84. The Auditor for the War Department has admitted the said sum to be due to the plaintiff, but has refused payment thereof as hereafter set forth in Findings XIII and XIV.

XIII. The Auditor for the War Department, on behalf of the United States, has made offers of settlement to the *57plaintiff of its aforesaid claims and of an additional claim made by the plaintiff against the United States under contract Motors 3882, as follows:

A — Admitted due and payable:

By notice of settlement dated February 24, 1920—

Invoice dated December 31, 1919,

contract Motors 3882_$46, 068. 75

Invoice dated December 81, 1919, contract Motors 3592_ 34,412.84

Invoice dated, December 6, 1919, contract Motors 2970_ 1,148. 06

-$81,629. 65

By notice of settlement dated April 15, 1920:

Invoice dated March 18, 1920, contract

Motors 3002_ 6,586.74

- 6, 586. 74

Total admitted due and payable_88,216.39

B — Deductions claimed on account of alleged overpayments by Lieut. Col. Daniel W. Arnold on a contract dated July 25, 1917:

By notice of settlement dated February

24, 1920___ 69,294.77

By notice of settlement dated April 15,

1920_ 4,194 43

Total deductions claimed_ 73,489.20

C — Total balance tendered to plaintiff (A minus B)_ 14, 727.19

XIY. The plaintiff refused to accept the settlements so tendered to it and demanded immediate payment of the said claims without deduction.

XV. The deductions claimed by the United States from the plaintiff in the notices of settlement dated February 24, 1920, and April 15, 1920, for alleged overpayments by Lieut. Col. Daniel W. Arnold, amounting to $73,489.20, were disallowed by this court and held invalid by its opinion and judgment entered June 12, 1922, in case No. 68-A, in which case the plaintiff had sued to recover the sum of $46,068.75 for performance of contract No. 3882 hereinbefore referred to in Finding XIII.

*58XVI. Following entry of the said opinion and judgment in its favor the plaintiff made application to the Comptroller General for payment by the Treasury Department of its claims herein sued on, as follows:

On contract Motors 2970_*_$1,148. 06

On contract Motors 3002_ 6, 586. 74

On contract Motors 3592_34, 412. 84

Total_ 42,147.64

The said Comptroller General admitted that this court had, by its judgment in case No. 68-A aforesaid, decided that the claim of the United States against the plaintiff for $73,489.20 (shown in Finding XIII) was invalid, but nevertheless declined to pay the said claims of the plaintiff based on contracts No. 2970, 3002, and 3592.

MEMORANDUM

BY THE COURT.

This case is ruled by the case of *Garford Motor Truck Co.*v. *United*States, 57 C. Cls. 404. The same counterclaim, in the amount of $73,489.20, presented in that case by the defendant, has again been presented in this case under practically similar conditions as to the law. In the former case it was disallowed and should be disallowed in this case.

Judgment should be entered for the plaintiff against the defendant for the sum of $42,147.65, and it is so ordered.