Dick v. United States, 48879.

• Citation: 82 F. Supp. 326
• Decision Date: 07 February 1949
• Docket Number: No. 48879.,48879.
• Parties: DICK v. UNITED STATES.
• Court: U.S. Claims Court

82 F. Supp. 326

DICK v. UNITED STATES.

No. 48879.

United States Court of Claims.

February 7, 1949.

W. V. T. Justis, of Washington, D. C. (Hewes & Awalt, of Hartford, Conn., on the brief), for plaintiff.

John F. Ganong, of Washington, D. C., and H. G. Morison, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

JONES, Chief Judge.

Plaintiff sues for the value of two propellers, spare parts and patterns furnished the United States Coast Guard, the value of which he alleges to have been $59,275.

Briefly the petition alleges that during the period involved the Coast Guard was under the jurisdiction of the Navy; that prior to 1944 the Navy and the Coast Guard jointly designed a new type of propeller for use on icebreaking vessels; that on June 30, 1944, the plaintiff agreed to manufacture and furnish to the Navy one shipset of the new propeller equipment including two propellers, spare blades and hubs, the price being $55,096.70, the equipment to be manufactured in accordance with a designated Coast Guard plan. Then on July 21, 1944, by contract, the plaintiff agreed, for the sum of $19,556, to manufacture the bow components of the new propeller equipment. This contract also specified that the equipment should be manufactured in accordance with the specified Coast Guard plan with the exception of certain modifications. These two contracts resulted in a price of $74,753.80 for one complete shipset of the new propeller equipment. About these contracts there is apparently no dispute.

On December 26, 1944, the United States Coast Guard headquarters in Washington, D. C., requested a bid on similar new propeller equipment. The following appeared on the first page of the negotiations:

"Telegraphic bid requested, to be confirmed by mail using this bid form."

The requirements, listed on the third page of the negotiation, were described as follows:

"Item No. Description Quantity Unit Price Total

"1. Propellers, each set consisting of (1) left hand propeller, (1) right hand propeller, (3) spare blades for right hand propeller, (1) spare propeller hub for right hand propeller, (3) spare blades for left hand propeller, and spare propeller hub for left hand propeller.

2 sets

All as indicated on Coast Guard Plan No. 96-CR-4400-4 Alteration O. The above propellers and blades to be complete with additional items as covered by list of materials (quantities for one ship) as indicated on the above mentioned plan. Finish, dimensions and materials shall be in accordance with all requirements of the Coast Guard Plan, 96-CR-4400-4.

2. Propellers, two (2) left hand, complete with (3) spare blades for each of two propellers and all additional items as indicated in list of material on Coast Guard Plan No. 96-CR-4400-5. The dimensions, finish, and materials shall all be as required on Coast Guard Plan 96-CR-4400-5.

2 sets"

This negotiation or request for bid was submitted by the Coast Guard to the plaintiff only. It was not submitted to other contractors. There followed considerable telegraphic correspondence. Each of the telegrams sent by plaintiff contained some reference to the Navy contract. In his first telegram plaintiff stated "We now have a Navy contract * * * for identical propeller blades * * *." The telegrams also discussed a conference to be held with one of the Navy officials. On January 10, 1945, the plaintiff, in the belief that the negotiation called for one shipset of the new propeller equipment, telegraphed the Coast Guard quotations on Item No. 1 for 2 sets for $51,032; item No. 2 $16,911.10. The telegram also stated "This same as Bureau of Ships order less the male and female gauges and patterns."

In submitting this bid plaintiff made a mistake. He thought he was submitting a bid for one set of 2 propellers and a bow propeller, rather than two sets of 2 propellers and a bow propeller each. There followed several telegraphic communications. Then on February 19, 1945, the Coast Guard headquarters in Washington issued a second negotiation, bearing the same identifying symbols. The plaintiff received the revised negotiation on February 21, 1945. The next day, February 22, 1945, the plaintiff, still under the impression that the negotiation called for one shipset of the new propeller equipment, telegraphed the Coast Guard a quoted price of $68,275, which included, in addition to the items in the previous negotiation, a new set of patterns at $4,500. On February 24, 1945, the Coast Guard telegraphed plaintiff that —

"Subject execution formal contract your telegraphic offer of 22 February accepted * * * in amount of 47555 dollars item one and 16220 dollars item 2 also set of patterns 4500 dollars * * * Proceed with work * * * acknowledge."

On February 27, 1945, the plaintiff acknowledged receipt of the order. On March 8, 1945, the Coast Guard sent plaintiff its purchase order in which plaintiff was named as supplier. On March 15, 1945, plaintiff's assistant manager deposited in the mail for the Coast Guard an acceptance of the purchase order. The following day, March 16, 1945, plaintiff telegraphed the Coast Guard that he had made the mistake of quoting one set instead of two sets, and that the price should be doubled. On March 17, 1945, the Coast Guard sent plaintiff a telegram stating

"Your wire quotation for propellers was confirmed by your formal quotation dated 22 February"

and then added

"request letter explanation of prices described as mistake * * * also detailed cost break-down."

The mailed acceptance apparently did not reach defendant's officials until about March 21, 1945.

The plaintiff then submitted an explanation of his mistake to Lt. Comdr. Robbins, United States Coast Guard, then contracting officer, who was in charge of the negotiations. At a conference it was stated that it was obvious a mistake had been made and Commander Robbins agreed to a purchase price of $127,550 and stated that the Coast Guard would prepare a formal contract covering the requirements of the negotiation in which the purchase price would be set forth in the amount of the revised quotation, $127,550. Plaintiff's representative was informed that it would take some time for the formal contract to be prepared and that in view of the urgency of its need for the propellers, defendant desired plaintiff to proceed with the work on the propellers pending the preparation and issuance of the formal contract. Plaintiff, relying on the agreement with the contracting officer, went ahead with the manufacture of the propellers.

On March 31, 1945, the Coast Guard returned to the plaintiff the purchase order referred to above which bore the acceptance of plaintiff as of March 15, 1945.

The Coast Guard prepared a formal contract in which the purchase price was clearly stated to be $127,550. On April 5, 1945, the Coast Guard, after the contract had been approved by its legal division, sent the original and two copies of the formal contract to plaintiff for execution. Plaintiff received them on April 9, 1945, and on the same day executed and returned them to the Coast Guard. In May 1945 the plaintiff learned that the Procurement Legal Division of the Coast Guard had determined that the Coast Guard could not execute the formal contract unless the Comptroller General of the United States ruled that the alleged contract growing out of the telegraphic communications was subject to reformation. Plaintiff prepared and on July 25, 1945, submitted a petition to the Comptroller General for reformation of the alleged contract. The Comptroller General stated that the case had not been previously presented to that office for consideration and plaintiff's letter afforded no proper basis for action at that time, but that a report was being requested from the Navy. In August 1945 the Navy Department submitted to the Comptroller General a report covering the negotiation between the Coast Guard and the plaintiff. On August 31, 1945, the Comptroller General ruled that there was no legal basis for modifying the price stated in the bid of the contractor. A reconsideration of the ruling was denied January 15, 1946.

In the meantime the plaintiff had proceeded with the manufacture of the two shipsets of propellers and spare parts. Delivery was completed in February 1947. On February 12, 1947, the plaintiff submitted an invoice for the propellers and spare parts in the sum of $127,550. On or about April 15, 1947, plaintiff received from the Coast Guard a check in the amount of $68,275. Plaintiff, in accepting the check, protested the deduction of $59,275 from the total invoiced price and reserved all rights in reference thereto.

In view of the many telegraphic communications, modifications and changes, it is doubtful whether any formal contract or meeting of the minds really occurred during the process of the negotiations. At any rate, we are unable to determine from the allegations in the petition that such a definite contract was made.

The defendant contends that the bid of February 22, 1945, and the acceptance on February 24, 1945, constituted a contract. However, it will be noted that in plaintiff's telegraphic offer of February 22 he stated:

"We quote 47,555 dollars item one and 16,200 dollars item two plus 4,500 if you require a new set of patterns, but we propose to use the patterns we now have. * * * Italics supplied."

The Coast Guard in its reply of February 23 stated at the outset:

"Subject execution formal contract your telegraphic offer 22 February accepted for furnishing propellers blades and hubs."

Apparently both of these messages left something to be determined before the agreement was definitely completed.

Defendant earnestly contends that regardless of all previous correspondence, the purchase orders which were prepared by the Coast Guard on March 8, 1945, and mailed to plaintiff, and which plaintiff received on March 15, 1945, and which he signed and deposited in the...