#### AMERICAN SEATING COMPANY v. THE UNITED STATES1

[No. C-14.]

*On the Proofs*

*Contract; additional order; increase in price.*— A contractor is not entitled to any excess over tie original price for additional articles delivered wliere it has not complied with the conditions providing for an increase in price, nor is it entitled to damages for the Government’s refusal to award a contract at an increased price for such additional articles.

*The Reporter's*statement of the case:

*Mr. Raymond M. Hudson*for the plaintiff.

*Mr. Edward I).*Hays, with whom was *Mr. Assistant Attorney General William J.*Donova/n, for the defendant.

Decided June 8, 1925.

Motion for new trial overruled October 26, 1925.

The following are the facts as found by the court:

I. The plaintiff, American Seating Company, is a corporation duly organized under the laws of the State of New Jersey, and engaged in the manufacture of medical supplies, tables, and equipment at Grand Kapids, Michigan, and with offices in Chicago, Illinois.

II. The Government advertised for bids for 200,000 bedside folding tables, and the plaintiff, among other bidders, bid on the same. An award was made to plaintiff for 50,000 tables at 55 cents each, the award for the amount called for being split up among three contractors. ¡Under date of

*58September 4, 1918, plaintiff entered into a contract with the Government, in writing, a copy of which, marked “ Exhibit A,” is made an exhibit to the petition and is by reference made a part of this finding. This contract called for the manufacture and delivery, under the terms stated in the contract, of 50,000 bedside folding tables at 55 cents each, 5,000 to be shipped on or before September 23, 1918, and shipments at the rate of 10,000 per week thereafter until completed. These 50,000 tables were in due time manufactured and delivered by the plaintiff and were paid for in full by the Government at the contract price of 55 cents each.

III. On November 4, 1918, the field medical supply depot of the Army sent to plaintiff a telegram, stating there would be awarded plaintiff an order for 150,000 additional tables at the contract price, and for plaintiff to advise immediately Avhen it could start production and rate of delivery. The plaintiff declined to accept this award at the contract price of 55 cents per table, but proposed to accept the order for the 150,000 tables at 65 cents per table. No order was placed for the 150,000 tables nor was plaintiff’s proposal accepted by the Government.

IY. Under date of November 7, 1918, the officer in charge of the field medical supply depot, U. S. Army, issued to plaintiff a purchase order, number 4820, a copy of which is made Exhibit B to the petition, and is by reference made a part of these findings. This purchase order number 4820 called for 50,000 bedside folding tables, and was a 100 per cent increase of contract under the provisions of said contract of September 4. This contract provided in paragraph 8, article 1, that the quantities would be increased at the option of the Government and with the consent of the contractor not exceeding 100 per cent, and further that the price originally specified would be increased not to exceed 10 per cent thereof at the time the contractor accepted the quantity increase provided for, provided the contractor was able to present evidence satisfactory to the contracting officer of an increase in the cost of material, overhead, or labor sufficient to justify the increase in price. The plaintiff accepted this purchase order for 50,000 additional tables and proceeded

*59with the manufacture and delivery of the same. When the order for the additional tables was given, plaintiff was notified that the Government would call for bids for 150,000 tables.

V. Bids were called for an additional 150,000 tables, and plaintiff, among others, was a bidder therefor at the price of 65 cents per table. The advertisement for the bids on these tables provided that the bids would be opened on November 18, 1918. The armistice having occurred in the meantime, the bids were not acted upon by the Government agents, nor was any contract, awarded on any of the bids for the additional 150,000 tables.

VI. Plaintiff was proceeding with the performance of the work called for by purchase order 4820 for 50,000 tables at 55 cents each, when, under date of November 22, plaintiff was notified of a possibility of canceling the contract, and that no work should be started upon raw material, but that work in process of construction would probably be accepted. A copy of this notice is to be found in paragraph 8 of the petition. On November, 28, 1918, plaintiff was further informed that arrangements for the cancellation of order 4820 were to be made with the contracting officer of the field medical supply depot. Plaintiff made no objection to this procedure and proceeded to complete the 18,000 tables then in course of construction. The remaining 82,000 tables were not manufactured or delivered in time. The 18,000 were completed, and full payment was made therefor at the price mentioned in the purchase order of 55 cents. The manufacture of the tables at the price of 55 cents each entailed a loss on the plaintiff. It does not appear from the evidence that plaintiff lost anything by the suspension of the order for the 50,000 tables or by the failure of the Government to accept 32,000 tables at the contract price of 55 cents each. It does not appear from the evidence that plaintiff offered to manufacture or deliver the 32,000 tables or any part thereof after the notice of suspension.

VII. As above stated, at the time plaintiff accepted the purchase order for the additional tables, there was a conversation between the plaintiff’s agent and the representative of the Government, in which the latter stated that the Gov*60ernment would need 150,000 additional tables, and plaintiff was informed at the same time that proposals would have to be called for by advertisement. The evidence fails to show any representation by the officer that the plaintiff would be awarded any further contract., Plaintiff knew that bids were called for, for the additional tables, and itself made a bid. These bids were never accepted on account of the cessation of the war.

The court decided that plaintiff was not entitled to recover.

1

 Writ of certiorari denied.

MEMORANDUM BY THE COURT

The plaintiff sues for alleged losses resulting from cancellation of the contract for the manufacture of folding tables that was actually made, and on account of the failure of the Government to make another contract, whereby the plaintiff would have undertaken to make 150,000 additional folding tables at a higher price per table than was named in the original contract. It had a contract for 50,000 of these tables, which was performed, and it received the price called for in its contract with the Government. Under a provision in the contract an additional 50,000 tables were ordered at the same price of 55 cents per table. This order was accepted and during the course of its performance an order of suspension was issued by the Government on account of the cessation of the war. At that time 18,000 tables were made or were in process of being made, and these were completed and paid for, which left 32,000 affected by the suspension. While the plaintiff apparently claims a loss on account of this suspension, it is manifest from the findings that there could be no recovery upon this item, because it would have made no profit if it had continued to manufacture, but, on the contrary, would have suffered a loss. There is no damage shown on account of the suspension of the order for 50,000 tables at 55 cents each. It is apparently a part of plaintiff’s contention that its loss came because of certain alleged promises which the officers of the Government made when it accepted the order for 50,000 tables, its claim in that regard being that it was to be given a contract for 150,000 tables at *6165 cents each. The evidence shows that the plaintiff was informed that bids would be asked for 150,000 tables, and plaintiff bid in response to this call for bids, stating the price of 65 cents per table. The armistice having intervened, these bids were never acted upon and no contract was made. Since the statute required the bids to be called for, it is manifest, if the officers in charge had made the representations which plaintiff claimed, they would not be binding upon the Government and would be in excess of the officers’ authority. The facts, however, show that no such representations were made.

The petition is dismissed.

Graham, Judge,

took no part in the decision of this case.