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Opinion of the Court

price of the goods. In no case cited by the plaintiff has the court taken a contrary position.

In Biermann v. Shea, 28 F. Supp. 213, and Duradene Co., Inc., v. Magruder, 21 F. Supp. 426, cited by plaintiff, the issue was whether or not the plaintiff had successfully carried the burden of showing that he had not included the tax in the price of the articles sold. There is no statement in either of these cases or in the others cited by plaintiff in conflict with what we have said above.

The Act requires the plaintiff to establish the fact that it did not pass on the burden of the amount of the tax, "to the satisfaction of the trial court." The plaintiff's testimony does not establish this to our satisfaction. Briefly, it is this:

In the selling price of the articles on hand on August 1, 1933, to which the floor stocks tax applied, there was not included any amount for or on account of the floor stocks tax until additional merchandise was purchased to replenish the stock sold. But when additional purchases were made, the plaintiff does not deny that it paid for them an amount which included processing taxes, which taxes were equal in amount to the floor stocks taxes. In fixing its selling price plaintiff added to the cost to it of the merchandise purchased 17 percent to cover operating expenses and profit. Therefore, as to the articles purchased after August 1, 1933, the plaintiff passed on to its customers the amount of this processing tax by adding its customary write-up of 17 percent.

The testimony further shows that the articles which had been on hand on August 1, 1933, and which were still on hand after the new purchases were made, were sold at the same price at which the new purchases were sold. Therefore, as to the amount on hand when the new purchases were made, the plaintiff did pass on the amount of the floor stocks tax to its customers, the floor stocks tax and the processing tax being the same in amount.

Just what amount of the August 1, 1933 inventory was still on hand when the new purchases were made plaintiff is unable to show. Presumably new purchases were not made until the stock got low, but how low plaintiff is unable to show. Plaintiff has carried the burden placed on it by the Act only to the extent of showing that some of its August 1, 1933 inventory was not sold at prices which included the


92 C. Cls.

amount of the floor stocks tax, but its testimony shows that some of it was sold at a price which included the amount of this tax.

Had plaintiff retained its sales records it would have been able to show precisely what amount of the August 1, 1933 inventory had been sold at a price which included the amount of the tax and the amount that had been sold without including the amount of it, but unfortunately this the plaintiff could not do. The impossibility of its making out a case is not an inherent one, but one arising from its own destruction of its records.

The plaintiff has not carried the burden placed on it by the Act and it is therefore not entitled to recover. Its petition is therefore dismissed. It is so ordered.

LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur.


[No. 43406. Decided October 7, 1940. Motion for new trial, March 3, 1941] On the Proofs

Government contract; knowledge of conditions.—Where plaintiff's subcontractor, in the construction of two bridges over the Cape Cod Canal, prior to the submission of bids and prior to the acceptance of plaintiff's bid had examined the site of the work, the plans and specifications, the boring maps and data, and where the plan of the cofferdam method that the subcontractor proposed to follow in the construction of the four main channel piers had been submitted to the defendant's contracting officer and said method had been approved by the Government's engineers and its contracting officer; and where in carrying out the work in accordance with such plans and methods difficulties were encountered and extra costs were incurred, it is held that proof does not support the claim that the Government's engineers possessed superior knowledge as to the subsurface conditions which was withheld from plaintiff and from plaintiff's subcontractor, nor were plaintiff and plaintiff's subcontractor misled as to said conditions. C. W. Blakeslee & Sons, Inc. v. United States, 89 C. Cls. 226 cited.


Reporter's Statement of the Case

Same; extra work.-Where plaintiff was required by the Government's contracting officer and consulting engineers to perform extra work not authorized by the contract, plans, and specifications, in order to eliminate a discoloration on the surface of the concrete called "sand-streaking," it is held that plaintiff is entitled to recover for the extra cost thereby incurred.

The Reporter's statement of the case:

Mr. Mark W. Norman for the plaintiff. Messrs. Raymond E. Hackett and Francis K. Norman were on the briefs.

Mr. George F. Foley, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Paris Houston was on the briefs.

The court made special findings of fact as follows:

1. Plaintiff is a corporation of the State of New York. Its subcontractor herein, Blakeslee-Rollins Corporation, is a corporation of the State of Massachusetts.

2. On October 31, 1933, notice was given to prospective bidders by the War Department, U. S. Engineer Office, Boston, Mass., that an advertisement would issue and specifications and plans be available November 4, 1933, for the construction of the substructures of two highway bridges over the Cape Cod Canal at Bourne, Mass., and that bids would be entertained therefor.

The advertisement and invitation for bids was accordingly issued, with the plans and specifications. A copy is filed in the case as plaintiff's Exhibit No. 2, and is made part hereof by reference.

Articles 33 and 34 of the published specifications were as follows:

Borings.-Wash borings have been made under the direction of the contracting officer and of the engineer at various points at the sites of the work. These borings were made in the usual manner and with reasonable care and their locations, depths, and the character of the material apparently encountered have been recorded in good faith on the contract plans. Samples of material obtained from the borings have been preserved and labeled and may be examined at the United States Engineer Office near the Buzzards Bay end of

Reporter's Statement of the Case

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the Canal. There is no expressed or implied agreement that the depths or the character of the material have been correctly indicated and bidders should take into account the possibility that conditions affecting the cost or quantities of work to be done may differ from those indicated.

Boulders.-The borings apparently indicate that boulders may be encountered in varying numbers and sizes at any or all of the excavations to be made for the work.

Article 303 provided in part:

The contractor may construct the Main Channel Piers by such method as he may elect, subject to the approval of the contracting officer and the engineer, both as to general method and as to details. Each bidder must describe in writing the general method and must be prepared at the time of submitting his bid to submit to the contracting officer full information concerning the method he proposes and consideration will be given to the method proposed in determining the award of the contract.

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For the construction of these piers it is expected that the contractor will elect to use one of two methods, either:

(a) the open cofferdam method, involving the use of steel sheet piling, driven to proper alignment and depth and adequately braced; or

(b) the caisson method, involving the use of a caisson, presumably of the open well type to permit excavation in the open, but with provision for sealing wells and applying compressed air if same be found necessary or desirable.

The bridges which are the subject of suit were known, one as the Bourne Bridge, and the other as the Sagamore. Attached to the specifications accompanying the invitation for bids were numerous charts, among them one showing the record of exploratory wash borings at Bourne and another at Sagamore. These two charts bear upon the nature of the material already encountered under the surface with the statement that the borings were still in progress and that information relating to borings could be obtained at the U. S. Engineer Office at the Buzzards Bay end of the canal. The provision in the specifications that the bidder might


Reporter's Statement of the Case

bid either on the cofferdam method of construction or on the caisson method was adopted by the contracting officer in order that advocates of each system might have an opportunity to bid on the method they favored. The supervising engineers, Fay, Spofford & Thorndike, had recommended to him the cofferdam method.

3. Sheets included in the plans and specifications show that three wash borings were made by or for the Government at each of the main channel piers of the two bridges, two of which borings were in the perimeter of the proposed site of each pier, and one of which was in the center thereof. These borings indicated the presence of boulders under ground but did not and were not adapted to reveal their number, size, and location all around the perimeter of the main channel piers.

Representatives of the plaintiff investigated the boring. data as obtained by the U. S. Engineer Office and there is no satisfactory proof that defendant's officers withheld from the plaintiff any material information respecting subsurface conditions along the perimeters of the prospective main channel piers not commonly known or easily available to the plaintiff.

In the wash-boring process of subsurface exploration, a casing is driven downward and by means of a pipe within, water is forced downward washing the earth upward. Samples of the earth are thus obtained and recorded. When boulders are struck they are either forced aside, split by dynamiting, or the rig is shifted to one side. The information thus obtained as to size of the boulders is necessarily meagre and is limited to one point except in cases where the rig is shifted and the two points related.

4. Plaintiff made no borings. To have made more borings than the Government made would have been unduly expensive, there was not sufficient time for it, and to have bored entirely around the perimeters of the four main channel piers would have also been impractical.

Based on the information it obtained, or was already in possession of, plaintiff made a bid of $1,327,700 for all work within the limits of the contract plans and $10 per cubic yard for excess concrete.

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