LE Myers Co. v. United States, 45057.

• Citation: 105 Ct. Cl. 459,64 F. Supp. 148
• Decision Date: 04 February 1946
• Docket Number: No. 45057.,45057.
• Parties: L. E. MYERS CO. v. UNITED STATES.
• Court: Court of Federal Claims

64 F. Supp. 148

105 Ct. Cl. 459

L. E. MYERS CO. v. UNITED STATES.

No. 45057.

Court of Claims.

February 4, 1946.

Horace S. Whitman, of Washington, D. C. (Robert C. Handwerk, of Washington, D. C., on the brief), for plaintiff.

Louis R. Mehlinger, of Washington, D. C., and John F. Sonnett, Asst. Atty. Gen., for the defendant.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHALEY, Chief Justice.

The plaintiff agreed to construct for the Department of Commerce 26 sets of steel 125' Airway radio range masts, four to a set, at that many locations in Pennsylvania, Wisconsin, Illinois, Minnesota, North Dakota, Iowa, Missouri, Kansas, Oklahoma, Texas, Mississippi, Tennessee, Arkansas, and Louisiana.

The contract, a formal one, was entered into June 23, 1932, following the usual advertisement, bid, and award.

There were in fact 50 sets advertised, at 50 various sites, but the plaintiff chose to bid for 26 sets only, and its bid was accepted, at stated amounts for each unit. Locations for the masts were identified by the names of the towns nearest to the precise locations. Precise locations and physical data were to be obtained by the contractor from local airport officials. The work and the named unit price included excavation for and the construction of specified concrete bases, excess concrete to be paid for at $12 per cubic yard. In naming this price of $12 per cubic yard, the bidder (plaintiff) stated in its accepted bid "(The above bid price includes earth excavation)." The bidder also agreed to a deduction of 1½ percent from the listed prices.

The work was agreed to "be completed in ninety days from date of receipt of notice to proceed with the work", and the specifications, drawings, and bid were made part of the contract.

Among other matters of defense the defendant raises issue on the statute of limitations, Section 156 of the Judicial Code, 28 U.S.C.A. § 262: "Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues. * * *"

The petition herein was filed February 2, 1940.

The findings show that the last completion date was May 26, 1933, at which date full performance on plaintiff's part was accomplished. This was the work at Minneapolis, Minnesota.

However, on May 24, 1933, the plaintiff had submitted to the defendant its "final" vouchers for the balances claimed to be due. The vouchers did not include the additional amounts herein sued for. After making certain deductions, the defendant paid the remainder to the plaintiff June 16, 1933, by check, the plaintiff endorsed the check and accepted...