Hargis Canneries v. United States, Civ. A. No. 435.

• Decision Date: 01 February 1945
• Docket Number: Civ. A. No. 435.
• Citation: 60 F. Supp. 729
• Parties: HARGIS CANNERIES, Inc., v. UNITED STATES.
• Court: U.S. District Court — Western District of Arkansas

60 F. Supp. 729

HARGIS CANNERIES, Inc., v. UNITED STATES.

Civ. A. No. 435.

District Court, W. D. Arkansas, Fort Smith Division.

February 1, 1945.

G. T. Sullins, of Fayetteville, Ark., for plaintiff.

Clinton R. Barry, U. S. Atty., and Thomas C. Pitts, Asst. U. S. Atty., both of Fort Smith, Ark., for defendant.

MILLER, District Judge.

The complaint was filed March 31, 1944, and after the disposal of some preliminary motions the defendant filed its answer on September 14, 1944, and on September 20, 1944, the plaintiff filed its motion for judgment on the pleadings. Rule 12(c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The motion for judgment on the pleadings admits all facts well pleaded, but does not admit conclusions of law; facts which the court will take judicial notice are not true; legally impossible facts; facts which would be inadmissible in evidence in the event of a trial nor facts which might appear by a record or document included in the pleadings to be unfounded. Cohen v. United States, 8 Cir., 129 F.2d 733; Rosenhan v. United States, 10 Cir., 131 F.2d 932.

The facts disclosed by the pleadings and exhibits thereto are as follows:

Plaintiff is a corporation, organized and doing business under the laws of the State of Arkansas with its principal place of business at Fayetteville in that State.

On or about the first day of June, 1942, plaintiff entered into a contract with the defendant through the California Quartermaster Depot, E. J. Brugger, Major, Q. M.C., purchasing and contracting officer, for the sale of 10,000 dozen No. 10 cans of blackberries at the price of $6 per dozen. The contract provided that final delivery should be made not later than June 30, 1943. Under the contract plaintiff delivered to the defendant 3600 dozen cans at $6 per dozen and 1590 dozen cans at $5.69 per dozen.

On September 13, 1942, the contracting officer wrote plaintiff terminating plaintiff's right to make further deliveries and proceeded to purchase enough blackberries from other packers to complete the contract and paid other packers a price in excess of the contract price to be paid the plaintiff in the sum of $8,730.81.

The defendant has withheld the sum of $8,730.81 from plaintiff and has refused to pay the plaintiff said sum, but is withholding said money as damages by reason of condition 2 of the contract entered into between plaintiff and defendant.

Plaintiff alleges that the blackberries were not furnished according to contract by reason of unforeseeable circumstances and causes beyond its control and without fault or negligence on its part; that the weather conditions were such as to make it impossible to pack the amount of blackberries provided for in the contract within the time provided therein or during the year 1942, and that under condition 2 of said contract it is relieved from complying with the contract and is not liable to the defendant for any excess cost on account of its failure to make deliveries because of the circumstances and conditions which prevented it from fulfilling the contract.

Condition 2 of the contract reads as follows: "If the contractor refuses or fails to make deliveries of the materials or supplies within the time specified, or any extension thereof, the Government may by written notice terminate the right of the contractor to proceed with deliveries or such part or parts thereof as to which there has been delay. In such event, the Government may purchase similar materials or supplies in the open market or secure the manufacture and delivery of the materials and supplies by contract or otherwise, and the contractor and his sureties (if any) shall be liable to the Government for any excess cost occasioned the Government thereby: Provided, that the contractor shall not be charged with any excess cost occasioned the Government by the purchase of materials or supplies in the open market or under other contracts when the delay of the contractor in making deliveries is due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unsually severe weather, and delays of a subcontractor due to such causes unless the contracting officer shall determine that the materials or supplies to be furnished under the subcontract are procurable in the open market, if the contractor shall notify the contracting officer in writing of the cause of any such delay, within 10 days from the beginning thereof, or within such further period as the contracting officer shall, with the approval of the head of the department of his duly authorized representative, prior to the date of final settlement of the contract, grant for the giving of such notice. The contracting officer shall then ascertain the facts and extent of delay, and his findings of fact therein shall be final and conclusive on the parties hereto, subject only to appeal within 30 days by the contractor to the head of the department concerned or his duly authorized representative, whose decision on such appeal as to the facts of delay shall be final and conclusive, on the parties hereto. As used herein `head of department' means the head or any assistant head of the executive department or independent establishment involved, and `his duly authorized representative' means any person authorized to act for him other than the contracting officer; and the term `contracting officer' shall include his duly appointed successor or his authorized representative."

After the defendant had terminated the contract, the plaintiff made application to the California Quartermaster Depot for release of liability and for payment to it of the sum of $8,730.81, purchase price of the blackberries delivered by plaintiff and accepted by defendant under the contract. The matter was submitted to the contracting officer who made the following findings of fact:

"Findings of Fact "December 22, 1942

"1. In response to radio of this office dated May 30, Hargis Canneries, Inc., offered 10,000 doz. cans. @ $6.00 per doz., drained weight 65 ounces. Offer was accepted by radio of June 1, and above contract awarded. Change Order "B" reduced the unit price of 1590 dozen cans to $5.69 to compensate for a lower average drained weight.

"2. On August 14, 1942, contractor notified this office that due to an insufficient supply of blackberries, he would be unable to complete...