#### JULIUS GOLDSTONE, FREDERICK GOLDSTONE, AND SIGISMUND K. GOLDSTONE, A COPARTNERSHIP, TRADING AND DOING BUSINESS UNDER THE FIRM NAME OF J. & F. GOLDSTONE & CO., v. THE UNITED STATES

[No. D-353.

Decided December 7, 1925]

*On the Proofs*

*Contract; delays; damages.*— Where delays of the Government in supplying materials according to contract compelled the plaintiff to maintain an organization longer than otherwise necessary, it is entitled to recover the expense caused by such delays.

*The Reporter's*statement of the case:

*Mr. M. Garter Hall*for the plaintiff. Oarlin, *Garlin <$> Hall*were on the brief.

*Mr. Joseph Henry Oohen,*with whom was *Mr. Asistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a copartnership composed of Julius Gold-stone, Frederick Goldstone, and Sigismund K. Goldstone, trading and doing business under the firm name of J. *&*F. Goldstone & Co., and for several years prior to 1918 was engaged in the manufacture of coats, suits, and cloaks in the city of New York.

II. On April 2, 1918, the plaintiff entered into a written contract with the United States to manufacture 160,000 bed *402sacks at 12 cents each, 80,000 to be delivered during April and 80,000 during May of 1918, in equal weekly shipments, at the New York depot of the Quartermaster Corps of the Army without expense of transportation. The United States agreed to furnish all material except thread, said material to be delivered to the plaintiff from the supply control depot, 151 Fifth Avenue, New York City. A copy of said contract is attached to the petition, marked “ Exhibit A,” and is made a part hereof by reference.

III. The plant of the plaintiff during April and May, 1918, was capable of producing 20,000 bed sacks weekly, and the plaintiff was prepared to make deliveries in accordance with the terms of its contract, 80,000 sacks during April and 80,000 during May, 1918. The entire plant and facilities of the plaintiff were used, or ready to be used, exclusively in fulfilling its contract during the period from April 2, 1918, until the final completion of the contract on August 7, 1918.

IY. During the first week, after the execution of the contract on April 2, 1918, the Government delivered to plaintiff only 44,679 yards of material, as follows:

Yards

Apr. 4, 1918_ 7,082

Apr. 5, 1918_ 6,101

Apr. 10, 1918_10, 851

Apr. 10, 1918_10, 520

Apr. 11,1918_10,125

These were the only deliveries of material during the first week by defendant, and that quantity was not sufficient to enable plaintiff to manufacture 20,000 sacks in that period of time. Approximately 100,000 yards were required for that number. Neither were the remaining deliveries of material sufficient to enable plaintiff to manufacture and deliver the number of bed sacks by May 31, 1918, the time stipulated for the expiration of the contract. Plaintiff sent its trucks for material frequently to the Government supply depot from which the goods were to be delivered, sometimes waiting as late as 5 p. m. without getting material.

During the performance of the contract plaintiff made complaints to the officers of the defendant as to the insufficient deliveries of material; on April 10, 1918, to Lieutenant Nicholet, defendant’s officer in charge of distribution of raw *403material for the clothing and equipage division of the officers’ supply division in New York; shortly thereafter to Mr. L. B. Tim, who was in charge for defendant of the contracting branch of the clothing and equipage division. Plaintiff’s complaints were to the effect that sufficient quantities of material were not being furnished by the defendant for plaintiff to complete the contract within the time stipulated therein. About April *27,*1918, plaintiff visited Captain Addyman, who was an officer of the defendant in charge of the enforcement and inspection of contracts at New York from April, 1918, to February *22,*1919, and complained to him about the insufficient deliveries of material, and at that time stated to Captain Addyman that plaintiff would have to discontinue performance of the contract and hold the defendant liable in damages for its failure to deliver sufficient material.

V. The plaintiff continued to perform the contract, being told by Captain Addyman that the contract must be fulfilled notwithstanding the delay by the Government in delivering materials. The plaintiff delivered to the United States bed sacks on the date and in quantities and was paid therefor at the contract price by Treasury check, as follows:

VI. Owing to the delays of the Government in delivering materials in accordance with the terms of the contract *404the plaintiff was obliged to maintain its entire organization for nine weeks longer than would have been necessary had the Government furnished the materials as required by the contract. From April 2, 1918, to August *1,*1918, the plaintiff did not engage in any civilian work, and its entire-plant and facilities were engaged in the performance of the contract, except when it was engaged on two other Government contracts, which last contracts were completed in 24 hours after they were begun. The additional expense to the plaintiff caused by delays of the United States in delivering materials was the sum of $2,966.42.

The court decided that plaintiff was entitled to recover.

Hat, *Judge,*

delivered the opinion of the court:

The facts are fully set out in the findings. The plaintiff commenced work under the contract and was delayed nine-weeks by the defendant in its performance. It incurred losses and expenses amounting to the sum of $2,966.42. These facts are not disputed.

The law governing such cases is well established. *Kelly & Kelly*v. *United States,*31 C. Cls. 361; *Cramp & Sons*v. *United States,*41 C. Cls. 164; *Mueller*v. *United States,*113 U. S. 153; *United States*v. *Smith,*94 U. S. 214; *Crook Company, Inc.,*v. *United States,*59 C. Cls. 348. The defendant, insists that this case is similar to the case of *Crook Company, Inc.,*v. *United States,*59 C. Cls. 593. But an examination of that case will demonstrate that it is entirely unlike the case at bar.

In the *Crook case, supra,*the plaintiff failed to include in the stipulation between the parties facts which were necessary to be proved in order that the plaintiff might recover for the loss and expense which it incurred by reason of the delays caused by the Government.

It is a wholly different case and has no relation to the-case under consideration.

Judgment for the plaintiff in the sum of $2,966.42.

It is so ordered.

Geaham, *Judge;*Dowhet, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.