MacLaren Sportswear Co. v. United States, 49456.
| Decision Date | 08 January 1952 |
| Docket Number | No. 49456.,49456. |
| Citation | 121 Ct. Cl. 396,101 F. Supp. 885 |
| Parties | MacLAREN SPORTSWEAR CO. v. UNITED STATES. |
| Court | U.S. Claims Court |
Edwin J. McDermott, Philadelphia, Pa., for the plaintiff.
Frank J. Keating, Washington, D. C., with whom were Asst. Atty. Gen. Holmes Baldridge and Acting Asst. Atty. Gen. Newell A. Clapp, for the defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.
Plaintiff's suit is based upon two contracts for furnishing and delivering khaki trousers to the defendant. The facts of the case have been stipulated by the parties.
On February 24, 1943, defendant awarded plaintiff contract W669 qm-26646 for 90,000 pairs of trousers, cotton, khaki, officers', 8.2 oz. (unfinished bottoms) at $1.00 per pair.
On April 8, 1943, plaintiff was awarded contract W669 qm-27619 for furnishing and delivering 200,000 pairs of trousers, cotton, khaki special (double needle joining seams) (finished bottoms) at $0.68 per pair.
Both contracts provided for the assessment of liquidated damages for delays in deliveries: W669 qm-26646 at the rate of one-tenth of one percent of the contract price for each day's delay in delivery of each item, and W669 qm-27619 at the rate of one-fifth of one percent.
Contract W669 qm-26646 provided for deliveries of the trousers as follows:
Under the terms of the contract, the quantity of 90,000 trousers under contract W669 qm-26646 were required to be delivered as follows:
-----------------------------------------
| | Number
Date due (1943) | Percent | of
| | trousers
-----------------------------------------
April 1 ........ | 17 | 15,300
May 1 .......... | 33 | 29,700
May 31 ......... | 34 | 30,600
June 30 ........ | 16 | 14,400
-----------------------------------------
During the period April 1, 1943, to and including May 6, 1943, plaintiff actually delivered to the defendant 4,461 trousers. On this latter date defendant terminated plaintiff's right to deliver 33,000 pairs of trousers pursuant to Article 25 of the contract, which provided:
"Delays—Liquidated damages.—If Contractor refuses or fails to make delivery of acceptable material or supplies within the time or times specified in Article 1, or any extension or extensions thereof, the actual damage to the Government for the delay will be impossible to determine, and in lieu thereof the Contractor shall pay to the Government, as fixed, agreed, and liquidated damages for each calendar day of delay in the delivery of any article, a sum equal to one-tenth of one percentum (1/10 of 1%) of the price of such article, for each day's delay after the time specified for delivery, and the Contractor and his sureties shall be liable for the amount thereof: Provided, however, That if the Contractor fails to make delivery of any portion of the material or supplies within the time specified in Article 1, the Government reserves the right to terminate the right of the Contractor to deliver all or any portion of the undelivered material or supplies, and to purchase similar material or supplies in the open market or secure the manufacture and delivery thereof by contract or otherwise, * * *."
The Government did not purchase the terminated quantity of 33,000 pairs of trousers elsewhere.
On October 14, 1943, supplemental agreements were drawn by the defendant and executed by the parties for each of the foregoing contracts, W669 qm-26646 and W669 qm-27619, by which the Delays — Liquidated Damages clause of each contract was deleted. Each supplemental agreement contained this provision: "That any rights accrued to or liabilities incurred by the parties hereto under the terms and conditions of the aforesaid Delays — Liquidated Damages clause prior to the date hereof, shall in no wise be affected by the terms hereof."
The defendant charged plaintiff liquidated damages on all deliveries made after October 13, 1943, by assessing the rate of liquidated damages stated in the original contracts on the number of days of delay from the date due to and including October 13, 1943. The amount of damages so charged amounted to $198.62 ($259.88 less a credit of $61.26) on contract W669 qm-26646 and $103.52 on contract W669 qm-27619.
The defendant has furnished plaintiff with a statement of account between the parties, and a Certificate of Settlement dated February 11, 1949, was issued by the General Accounting Office advising plaintiff that it was indebted to the defendant in the amount of $63.78 ($61.26 under contract W669 qm-26646 and $2.52 under contract W669 qm-27619) representing liquidated damages due under the terms of the two contracts. A review of the settlement by the Comptroller General at plaintiff's request resulted in its affirmation on August 2, 1949.
Plaintiff sues to recover the amounts of $198.62 and $103.52 plus an additional amount of $1,025.06 which represents liquidated damages based upon the 90,000 delivery schedule called for in contract W669 qm-26646 instead of the 57,000 delivery schedule which remained after the termination of plaintiff's right to deliver 33,000 pairs of trousers on May 6, 1943.
Plaintiff makes two contentions: first, that because the delivery schedule was expressed in percentages for delivery every thirty days, that when the number of trousers to be furnished was reduced from 90,000 to 57,000 the percentages should have been based upon the reduced contract quantity and, second, that no liquidated damages should have been assessed on deliveries made after October 13, 1943, since the liquidated damage clause was deleted on October 14, 1943.
On May 6, 1943, the date when the contract quantity was reduced from 90,000 to 57,000 pairs of trousers, the plaintiff was over 40,000 pairs behind the schedule of delivery required of it by the contract (15,300 pairs due April 1, 29,700 pairs...
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