#### JOSEPH F. MORGAN v. THE UNITED STATES

[No. B-211.

Decided April 28, 1924]

*On the Proofs*

*Contract; bid; mutual mistake; reformation.*— Where plaintiff bids on a proposal to furnish caskets to the Government stipulating that deliveries shall be f. o. b. factory, and by mutual mistake they execute a contract requiring deliveries f. o. b. station, Brooklyn, N. X., the contract should be reformed so as to make it conform to plaintiff’s bid and entitle plaintiff to recover the cost of delivery at the station.

*Same; changes in specifications; extra work.*— Where a contract provides that changes in the specifications shall be made only on the written order of the contracting officer and the contractor performs work not called for by the contract or specifications on the oral order of an inspector, he can not recover the cost of such extra work.

*The Reporter’s*statement of the case:

*Mr. Chapman W. Mawpin*for the plaintiff.

*Mr. Charles M.*Nash, with whom was *Mr. Assistant Attorney General Robert IT. Lovett,*for the defendant. *Mr. William F. Norris*was on the brief.

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

I. The plaintiff is a citizen of the United States and of the State of New York, and has always rendered true allegiance to the Government of the United States.

II. In response to advertisement requesting bids therefor, the plaintiff, in December, 1919, submitted to the proper officer of the Quartermaster Corps, U. S. Army, his bid for the furnishing of 6,000 metal-lined caskets and shipping-cases, at $64.20 each, stipulating in said bid that deliveries should be *“*f. o. b. factory.” His bid was accepted, of which he was notified, and without any further negotiations with reference thereto a contract was prepared by the United States, bearing date of January 6,1920, and was duly *651executed by tbe plaintiff and by W. B. Gibson, colonel, Quartermaster Corps, TJ. S. Army, on behalf of the United States. A copy of said contract, together with Schedule A attached thereto and specifications made a part thereof, is attached to plaintiff’s petition entitled “ original contract ” and is made a part hereof by reference. Said contract as written provided for delivery *“*f. o. b. cars at station, Brooklyn, N. Y.” When the plaintiff signed this contract he overlooked the discrepancy between the provision therein contained as to the place of delivery and that specified in his' bid.

III. When the first caskets were ready for delivery, the defendant’s inspector at plaintiff’s plant directed that they should be delivered f. o. b. cars at station, against which the plaintiff protested as being contrary to his contract. The matter was referred to the zone supply officer of the Quartermaster Corps at New York, who determined that the plaintiff was not obligated to make such delivery, but, representing that the Government was then without facilities to undertake the transportation of the caskets then for delivery, he requested the plaintiff to make such delivery at the station until such time as the Government might be equipped to take over the work for itself, and agreed that the plaintiff would be properly compensated therefor.

The plaintiff thereupon proceded to make deliveries to the station and so delivered 200 caskets at a cost to him of $3 per casket, after which tire United States took over the matter, of transporting the caskets from plaintiff’s factory, and accepted delivery of the remaining 5,800 caskets thereat. The plaintiff has not been compensated for the delivery of said 200 caskets.

IV. The specifications made a part of the original contract provided that the plaintiff should furnish eight heavy japanned chest handles with screws for each shipping case, to be fastened inside- thereof. Thereafter the defendants inspector at plaintiff’s plant directed that the handles should be set into the sides and ends of the shipping cases by countersinking, and fastened by small bolts to be extended through a reinforcing metal plate about *1*inches square, to be placed on the inside of the shipping case. The plaintiff *652refused to do so on tlie ground that it was not within the provisions of his contract, but the inspector gave directions to his subordinates that no caskets and cases should be received unless the handles were so countersunk and reinforced. Plaintiff appealed to> the zone supply officer, who determined that the instructions of the inspector should be complied with, and thereupon plaintiff purchased a supply of said metal plates at a cost to him of $2,755.20, and also purchased and installed in his factory a machine for the countersinking of said handles, the cost of which to him, together with 'the cost of installation, was $800, $250 of which represented the cost of the machine and $550 the expense of installation.

The plaintiff placed handles upon 100 shipping cases after this method, when he was directed to discontinue that process. When this work was thus discontinued by direction of the inspector, the plaintiff had on hand all of said metal plates except those Avhich had been used on the. said 100 cases, and which were then of no value to him in his business and unsalable except as junk, in which respect they were worth $12. The plaintiff sold the grooving machine which he had purchased for the purpose of countersinking these handles for $175, which was all it was then reasonably worth.

Upon a claim filed with the General Accounting Office the plaintiff was allowed and paid $668.40 on account of the equipping of 100 cases with countersunk and reinforced handles.

V. At various times subsequent to the execution of the original contract, six separate supplemental contracts were entered into, all of which, with specifications accompanying some of them, are attached to plaintiff’s petition as a part thereof, and are made a part hereof by reference. Said supplemental contracts provided for changes in specifications, changes in prices, and extensions of time.

VI. By supplemental contract No. 1404, of date June 25, 1920, attached specifications were provided for in lieu of those attached to the original contract, and a new price for caskets was fixed at $72.45 instead of $64.20. It was understood that the increase in price was to compensate the plaintiff for a. newly devised cradle which was to *653be placed inside the shipping cases in such manner as to prevent the shifting of the casket, but the specifications were omitted therefrom.

Thereafter by supplemental contract No. 1405, of date July 10, 1920, specifications for the cradle were provided and other substituted specifications attached, and as to price it was provided that for 100 to be furnished without cradle the price should be $63.20 instead of $64.20, that for 900 with the cradle the price should be $71.45, and that for the remaining 5,000 the price should be $71.70, a re- ’ duction in price of $1 each as to 1,000 and of 75 cents each as to 5,000 caskets and cases.

When the plaintiff was requested to sign this contract providing for the stated reduction in price, he protested and refused so to do, but he was informed by the inspector that unless he executed that contract with such reduced places provided for therein he would be granted no further extension of time in case he should find the same necessary and because of the fact that he had provided the materials necessary for the completion of the contract which would in a large measure be of no value except for use upon this particular class of work and because a refusal to grant him extension of time if he should find the same necessary would be ruinous, he executed said contract.

VII. The plaintiff fully completed his contract before the expiration of the time provided for in the last supplemental contract, and was paid therefor at the prices stipulated in the various contracts.

MEMORANDUM

As to the first item of plaintiff’s claim, it is clear that he is éntitled to a reformation of the contract to make it conform to his bid as to the place of delivery and is entitled to recover the amount claimed for the delivery otherwise of 200 caskets.

The second and third items of plaintiff’s claim are the outgrowth of a requirement as to the countersinking and reinforcing of handles on shipping cases, abandoned after *654100 cases had been so treated, and while the transaction indicates a hardship on plaintiff we find no remedy. This requirement is to be treated as a change in the specifications required by the contract to be directed by the contracting officer in writing. Plaintiff’s proper course was to insist that he be so directed before performing. He was paid for those that he so equipped and he is without any valid contractual obligation on the part of the Government under which he can be compensated for damages sustained by reason of the abandonment of the plan. *(Plumley's*case, 226 U. S. 545.)

The last item of the claim is stated as an “enforced reduction in price of caskets” and is predicated upon the facts set up in Finding YI. The reduced prices were provided for in a duly executed contract. There was in legal contemplation no duress upon which relief could be predicated. • It is open to the assumption that the reduced prices were agreed to in consideration of extensions of time to be granted when found necessary. However that may be, the contract is conclusive.

The original contract herein should be and it is reformed in respect to the place of delivery so as to make it conform to plaintiff’s bid in that respect and plaintiff is entitled to recover for the delivery of 200 caskets otherwise than as provided in the contract as so reformed the sum of $600; otherwise plaintiff is not entitled to recover.