Hol-Gar Manufacturing Corp. v. United States

• Decision Date: 22 January 1965
• Docket Number: No. 199-60.,199-60.
• Citation: 351 F.2d 972,169 Ct. Cl. 384
• Parties: HOL-GAR MANUFACTURING CORP. v. The UNITED STATES.
• Court: U.S. Claims Court

169 Ct. Cl. 384, 351 F.2d 972 (1965)

HOL-GAR MANUFACTURING CORP. v. The UNITED STATES.

No. 199-60.

United States Court of Claims.

January 22, 1965.

Theodore M. Kostos, Philadelphia, Pa., for plaintiff.

Alfred H. O. Boudreau, Jr., Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

PER CURIAM:

This case was referred pursuant to former Rule 45(a) (now Rule 57(a)) to Trial Commissioner Herbert N. Maletz, with directions to make findings of fact and recommendations for a conclusion of law. The commissioner has done so in an opinion and report filed on July 10, 1963. The plaintiff has excepted to the opinion and certain of the findings of fact. The parties have filed briefs and the case has been argued orally. Since the court agrees with the commissioner's findings, his opinion and his recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is therefore not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER

Plaintiff, a Pennsylvania corporation engaged exclusively in manufacturing generator sets and other equipment for agencies of the Government, was, as low bidder, awarded a contract in March 1958 to supply 5500 portable generator sets to the U. S. Army Corps of Engineers. A supplemental agreement was entered into by the parties in June 1958 increasing the contract by 1,375 units, for a total quantity of 6,875 sets. The unit price of the sets was $1,050; the total contract amount, $7,225,625. Plaintiff sues for the extra cost involved in equipping each generator set with thermostatically operated shutters (a device to control automatically the passage of air from the engine cooling system radiator through the front opening of the generator housing). It claims that such shutters were not required by the specifications but were insisted upon by the defendant's contracting officer and, therefore, constituted a change in the contract. An administrative appeal by plaintiff to the Armed Services Board of Contract Appeals was unsuccessful.

The specification governing the contract in question was MIL-G-12373, dated December 9, 1952, as amended by Amendment 2, dated August 21, 1957. Item 10 of the amended specification entitled "Housing" read as follows:

Suitable opening for the engine cooling system radiator, with thermostatically operated shutters having auxiliary manual control; substantial protective grill to protect shutters.¹

Item 22 of the amended specification entitled "Cooling system" read as follows:

Liquid cooling, with pusher-type fan (grille not required) for radiator. Thermostatic control for shutters, with auxiliary manual control. Manually adjustable doors in housing to control air flow.²

Against this background the principal issue here is whether these provisions, on their face, required plaintiff to equip the generator sets manufactured under the contract with thermostatically operated shutters for the engine cooling system radiator. The dispute, turning as it does on an interpretation of the language of the contract specifications, is a legal question on which the administrative ruling of the contract appeals board is not final as against the plaintiff, nor binding on this court. See 41 U.S.C. § 322; Edwards Eng. Corp. v. United States, 161 Ct.Cl. 322, 328 (1963) and cases cited; Beacon Construction Co. v. United States, 314 F.2d 501, 502, 161 Ct.Cl. 1, 3 (1963) and cases cited; Guyler v. United States, 314 F.2d 506, 509, 161 Ct.Cl. 159, 165 (1963). See also River Construction Co. v. United States, 159 Ct.Cl. 254, 262-266 (1962).³

At the outset it would appear that the plain language of Item 10 of the specification, as amended, required the inclusion of thermostatically operated shutters on the generator sets, in conjunction with the opening for the engine radiator. For that Item, to repeat, requires:

Suitable opening for the engine cooling system radiator, with thermostatically operated shutters having auxiliary manual control; substantial protective grill to protect shutters.

There is the further consideration that Item 10 of the original specification called for a "Suitable opening with substantial, manually controlled doors for the engine cooling system radiator; grille not required." There seems no doubt that the Item as so worded imposed a positive requirement for manually controlled doors for the radiator. Merely by comparing the language of the original and amended specification, it seems clear that Amendment 2 modified the original Item 10 so as to require (1) thermostatically operated shutters rather than manually controlled doors for the radiator; (2) an auxiliary manual control for the shutters; and (3) a grille to protect the shutters.⁴ It also seems apparent that Item 22 of the amended specification contained a complementary requirement; i. e., "Thermostatic control for shutters, with auxiliary manual control." Such controls for the shutters were called for by the original specification as well; but since that specification imposed no requirement for the shutters themselves, Government representatives did not insist on installation of the control mechanism since it would be superfluous. But after issuance of Amendment 2 specifying a shutter requirement, this no longer was the case.

Having been furnished the original specification and Amendment 2 as enclosures to the Bid Invitation, and having read Item 10 and the amendment thereto, it is somewhat difficult to perceive how plaintiff, as an experienced Government contractor in the manufacture of generator sets, could have concluded that thermostatically operated shutters were not required. Indeed it is elementary that the language of a contract must be given that meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circumstances. New York Trust Co. v. Island Oil & Transport Corp., 34 F.2d 655, 656 (2d Cir. 1929); Hammond Ford, Inc. v. Ford Motor Co., 204 F.Supp. 772, 773 (S.D. N.Y.1962); 4 Williston, Contracts, § 611 at 553 (3d ed. 1961).⁵

Plaintiff insists, however, that Item 10, as amended, imposed no positive requirement for thermostatically operated shutters. It maintains that the comma after the word "radiator" should be disregarded and that if disregarded, the term "with thermostatically operated shutters" modifies the word "radiator". In short, in plaintiff's view, Item 10, as amended, requires merely a suitable opening for an engine cooling system radiator having thermostatically operated shutters. To support this contention, plaintiff adverts to the second sentence in Item 22 "Thermostatic control for shutters, with auxiliary manual control" and asserts that the term "with auxiliary manual control" in that sentence modifies the word "shutters" and that the sentence must, therefore, be read as though there were no comma after the word "shutters". It then argues that since this sentence is grammatically similar to the sentence in Item 10, "Suitable opening for the engine cooling system radiator, with thermostatically operated shutters having auxiliary manual control * * *", the latter sentence should likewise be read as if there were no comma after the word "radiator". This means, according to plaintiff, that the Item 10 sentence requires only a "Suitable opening."

There are several difficulties with this argument. In the first place, the reasonable construction of the Item 22 sentence is that a thermostatic control and an auxiliary manual control are both required for the shutters so that a comma after the word "shutters" in that Item is grammatically proper. Furthermore, "(p)unctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the Court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent, on judicially inspecting the whole, the punctuation will not be suffered to change it." Ewing's Lessee v. Burnet, 11 Pet. (36 U.S.) 41, 9 L.Ed. 624 (1837). See also, Hughes v. Samedan Oil Corp., 166 F.2d 871, 873 (10th Cir. 1948); Travelers Indemnity Co. v. Pray, 204 F.2d 821 (6th Cir. 1953). But even assuming that the inclusion of a comma in the second sentence of Item 22 was incorrect, this would not constitute sufficient reason to conclude that a similar grammatical error should be read into Item 10. Certainly an improper grammatical construction of one item in a specification affords no justification to accord the language of another item — i. e., Item 10 — a meaning other than that conveyed by the language actually used. In construing a contract, the language of the instrument is given its ordinary and commonly accepted meaning unless it is shown that the parties intended otherwise. Breese Burners, Inc. v. United States, 121 F.Supp. 530, 535, 128 Ct.Cl. 649, 658-659 (1954); Kronner v. United States, 110 F.Supp. 730, 734, 126 Ct.Cl. 156, 163 (1953); Eddy v. Prudence Bonds Corporation, 165 F.2d 157, 161 (2d Cir. 1947), cert. denied 333 U.S. 845, 68 S.Ct. 664, 92 L.Ed. 1128 (1948); Prudential Insurance Co. of America v. Nelson, 101 F.2d 441, 444 (6th Cir. 1939), cert. denied 308 U.S. 583, 60 S.Ct. 106, 84 L.Ed. 489 (1939). No such contrary intent is present here and, as written, the phrase "with thermostatically operated shutters" in Item 10 modifies "Suitable opening" not "the engine cooling system radiator" so that the provision calls for "Suitable opening * * * with thermostatically operated shutters" — language clearly requiring shutters.

What is more, were plaintiff correct that Item 10, as amended, requires merely a suitable opening, then the sentence would read: "Suitable opening for the engine cooling system radiator and for thermostatically operated shutters * * *." (Emphasis added.) But that is not what the Item...