#### CUYAHOGA STAMPING & MACHINE COMPANY v. THE UNITED STATES

[No. A-114.

Decided April 14, 1924]

*On the Proofs*

*Contract; evidence of damage not specific.*— Wliere the evidence oí damage sustained by the plaintiff is not specific enough to enable the court to ascertain with certainty what it was, there can be no recovery.

*The Reporter’s*statement of the case:

*Mr. M. Walton Hendry*for the plaintiff.

*Mr. Barrett F. Broten,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant. .

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

I. The plaintiff is a corporation organized and existing under the laws of the State of Ohio, with its principal place *564of business at Cleveland, Ohio, and on February 15, 1918, entered into a contract in writing with the United States whereby it agreed to manufacture for the United States 1,000,000 *75-m/m.*cartridge cases, at the price of 30 cents for each completed unit specified in said contract, and the United States agreed to furnish f. o. b. cars at the plant of the contractor, Cleveland, Ohio, without cost to the contractor 1,000,000 brass disks of an average weight of 3.15 pounds and of sizes specified by the contractor whenever it might call for the delivery of the same. The plaintiff completed its contract and was paid the contract price. A copy of said contract is attached to the petition marked *“*Exhibit A,” and is made a part hereof by reference.

II. On February 18, 1918, the plaintiff entered into another contract in writing with the United States whereby it agreed to manufacture for the United States 500,000 75-m/m. cartridge cases at the price of 30 cents for each completed unit specified in said contract, and the United States agreed to furnish f. o. b. cars at the plant of the contractor, Cleveland, Ohio, the disks weighing 3.3 pounds each at such times and in such quantities as would enable the plaintiff to perform the terms of its contract. The plaintiff completed its contract and was paid the contract price for the cartridge cases delivered by it. A copy of said contract is attached to the petition marked “ Exhibit B,” and is made a part hereof by reference.

III. Under the terms of the contract marked “ Exhibit A ” the defendant delivered to the plaintiff 200,000 disks. The weight of said disks was not that specified in the contract but Aveighed a total of 12,437 pounds less than the weight specified in the contract, and the scrap resulting from the manufacture of the cartridge cases was 12,437 pounds less than would have been obtained had the defendant furnished disks of the weight specified in the contract. The fair market value of 12,437 pounds of scrap during the performance of the contract was the sum of $2,089.71.

IY. Under the terms of the contract marked *“*Exhibit B ” the defendant delivered to the plaintiff 380,000 disks. The *565weight of said disks was not that specified in the contract but weighed a total of 18,140 pounds less than the weight specified in the contract, and the scrap resulting from the manufacture of the cartridge cases was 18,140 pounds less than would have been obtained had the defendant furnished disks of the weight specified in the contract. The fair market value of 18,140 pounds of scrap during the performance of the contract was $3,043.71.

V. In the request for bids sent by the defendant to the plaintiff before the contracts were entered into it was stated: “ All scrap is to be retained by you for your use and benefit, which fact shotdd be considered in making your proposal.” The plaintiff in making its bids did consider this fact and made its bids lower in consequence thereof. When certain of the disks furnished by defendant on both of the sand contracts were less than the weight specified in said contracts the plaintiff protested in writing and orally, and filed a claim for its alleged loss with the district claims board at Cleveland, Ohio, and this board approved the claim; it has not, however, been paid.

VI. The terms of the contract marked “ Exhibit A ” provided that the defendants should furnish the said disks to the plaintiff f. o. b. cars at the plaintiff’s plant. This the defendant did not do, but through its contracting officer instructed the plaintiff to cart the said disks from the brass mill to the plaintiff’s plant, and at the same time stating that the plaintiff would be reimbursed for the expense of so carting the disks. The reasonable expense of carting said disks was the sum of $436.22, which was paid out by the plaintiff and which sum it has not been paid.

MEMORANDUM BX THE COURT

The evidence as to the damage sustained by the plaintiff due to the breakage of tools is not specific enough to enable the court to ascertain with certainty what it was.

Judgment for plaintiff under Findings III, IV, and VI in the sum of $5,569.64.