571 Opinion of the Court tiff in the proposal of March 4. The plaintiff argues that the bid on the new design was not accepted in the form it was presented and that there was therefore no contract to perform the additional work for $1,064. The plaintiff was paid $1,064 but claims to be entitled to receive the difference between that sum and $1,482.99 shown above. We think this claim must be denied. When the defendant advised plaintiff of the amount which it would pay for the work, and the plaintiff went ahead with it without making protest or notifying defendant that it would not be bound by the price at which the latter stated was to be paid, we are inclined to think it is precluded from asking to be paid more than the defendant proposed. In any event when the plaintiff on March 22, 1933 delivered to the defendant a "Stipulation and Consent" in writing, executed by the plaintiff and its surety, which stated that the total amount to be paid for additional work on the footings, in accordance with the new design, was "not to exceed the sum of $1,064.00," the agreement was perfected, and the plaintiff's claim for $418.99 as additional contract compensation on account of the footings must therefore be rejected. Plaintiff also claims damages by reason of the delay of the defendant in reaching a decision on the footings and foundation changes, and additional work incident thereto. That delay did result while the defendant was reaching a decision in this matter is clear, and we think it is also plain that the plaintiff was compelled to keep its organization intact and ready to proceed during this period. In listing its daily expense for the purpose of computing the overhead the plaintiff makes a charge of $1.67 for insurance on the property being constructed, and $1.50 for interest on capital invested. Neither of these items, we think, should be allowed. Not including these two items we find the reasonable amount of plaintiff's daily overhead to be $16.83. The system adopted by the defendant for the construction work necessarily caused other delay. A firm by the name of Scott & Welch was employed to draw the plans and specifications. The architectural materials, such as millwork, painting, stone, exterior stone, and matters of Opinion of the Court 92 C. Cls. that nature had to be approved by the architects, and after having been approved by them were still required to be approved by the supervising architect of the defendant. A matter of this kind should have been attended to before the contract was let, or at least in time for the work to proceed. As the contract specified the time for its completion there was an implied contract between the parties when plaintiff was directed to proceed with the work that all necessary construction details would be ready and furnished to plaintiff when required, but instead the evidence shows it took nearly four months for plaintiff to get the millwork detail drawings prepared by the architects so that it could be ordered from the millwork firm. Further difficulty was encountered due to the fact that the defendant refused to accept the details that the architects had made and they had to be returned and done over again. About the middle of October 1933 the plaintiff was still being delayed by the failure of defendant's architects Scott & Welch to act on samples of paint submitted as early as May 1933. But the evidence as to how much these matters affected the completion of the building is very indefinite and uncertain. These delays probably overlapped more or less the period used in the general construction of the building but how much it is impossible to tell from the evidence. There is no direct evidence showing at what time the building would have been completed had these delays not occurred. On the other hand it appears that the defendant's engineer stopped the pouring of concrete in the retaining walls from January 7 to January 18, 1933, and also stopped work on February 15 for 28 days on account of unsatisfactory footings and soil conditions. Although there is no way of determining exactly how much time was caused to be lost by defendant in coming to a decision on the matter of changes in the footings and struts, and the lack of prompt decisions by the architects, and some other matters, we think there should be included on account of all these matters a figure which represents, under all the evidence, the amount of delay caused by the defendant which we can conclude is reasonably certain—that is, that the plaintiff suffered at least that amount of delay. 571 Opinion of the Court The plaintiff relies largely on communications addressed to the defendant's officers, and claims presented therein which were denied by the defendant, and are not evidence of the correctness of the claims so made. Our conclusion upon all the evidence and ultimate finding upon the matter of delays is that plaintiff lost at least 60 days by the fault of the defendant, that is that it took at least 60 days longer in the completion of the building, and that plaintiff is entitled to recover for this delay the sum of $1,009.80, for overhead at the rate of $16.83 per day. The plaintiff also claims damages due to defendant's alleged breach of contract and delay in furnishing models for the lamp standards and in making final payment for the work. The defendant failed to furnish the models for the lamp standards in time and until the models were furnished the plaintiff could not have the standards made and set up. But the work required in setting up the standards was very slight. The evidence is so indefinite and uncertain as to the amount of extra expense, if any, caused to plaintiff by reason of the delay in relation to the models for the lamp standards that this claim cannot be allowed. Part of this delay was caused in the first instance by the plaintiff making claim that it was not required to furnish the lamp standards-a claim which it afterwards withdrew. Plaintiff claims damages by reason of the delay of the Government in making final payment. The contract provides that upon completion and acceptance of all work required the amount due the contractor will be paid after the contractor shall have furnished the Government with a certain kind of release of claims against the Government. The matter of this release may not be important but the contract did not require payment until "all work" was accepted and this did not take place until the lamp standards were installed and accepted as satisfactory, which was on June 29, 1934. Final settlement was not made until September 22, 1934, but in view of the dispute between the plaintiff and the Government's officials we cannot say that an unreasonable delay took place in making the final payment. Syllabus 92 C. Cls. It follows from what has been stated above that the plaintiff is entitled to recover $3,037.50 on account of the increased amount of work required on the excavation, and $1,009.80 on account of unreasonable delays, or a total of $4,047.30 for which judgment will be entered. It is so ordered. LITTLETON, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, took no part in the decision of this case. OTIS ELEVATOR COMPANY, A CORPORATION, v. THE UNITED STATES [No. 43623. Decided January 6, 1941. Plaintiff's motion for new trial overruled April 7, 1941.] On the Proofs Income tax; account stated.-Where taxpayer consented to the assessment and collection of a deficiency in tax for the year 1929 and accepted as correct an overassessment for the year 1930, and where later the Commissioner informed taxpayer in writing that a portion of the overassessment for 1930 would be applied against the deficiency for 1929, and the balance would be withheld pending the determination of taxpayer's liability for prior years, and thereupon a certificate of overassessment was issued; it is held that an account stated resulted. Same; mutual misapprehension as to facts.-Where an account has been stated under a mutual misapprehension as to the facts, the contract implied therefrom is voidable by either party thereto, and where so voided suit cannot be maintained upon it. Same; taxes paid by wholly owned subsidiary.—Where under the British law, taxes paid by the British subsidiary of plaintiff were levied upon the subsidiary corporation paying dividends and not upon the stockholder receiving the dividends, it is held, under Biddle v. Commissioner, 302 U. S. 573, that taxpayer was not entitled either to a credit or a reduction of said foreign taxes paid by its wholly owned subsidiary. Same; refund.-In suits for the refund of taxes erroneously exacted there can be no recovery if it appears that in fact taxes have not been overpaid. Lewis v. Reynolds, 284 U. S. 281, cited. Same. Where taxes have actually been refunded, the Government may sue and recover if it later develops that the refund has been in error. Same. Where before a refund of taxes has been made it is discovered that the taxes have in fact not been overpaid, no refund will be required. 590 Reporter's Statement of the Case The Reporter's statement of the case: Mr. T. I. McKnight for the plaintiff. Messrs. Sims, Handy, McKnight & Carey were on the brief. Mr. J. W. Hussey, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the brief. The court made special findings of fact as follows: 1. The plaintiff, a New Jersey corporation, with its principal office in New York City, was the parent corporation of a group of affiliated corporations. On March 10, 1930, it filed a consolidated return for itself and subsidiaries for the calendar year 1929 showing an income tax due for that year of $1,041,831.49, which it duly paid. On March 10, 1931, it filed its consolidated return for itself and subsidiaries for 1930 showing a tax due of $841,707.06, which was paid in quarterly installments, on March 16, June 15, September 15, and December 15, 1931. 2. Later, on December 15, 1931, a waiver of limitation on assessment and collection of the deficiencies in tax having been executed, it paid additional assessments for 1929 and 1930 in the respective amounts of $15,870.28 and $2,476.19, together with interest of $1,655.95 on the 1929 assessment and $109.82 on the 1930 assessment. 3. Still later, on May 27, 1932, the Commissioner of Internal Revenue proposed a further assessment for 1929 of $1,559.80, but stated that there had been an overassessment for 1930 of $9,903.03. In making that determination the Commissioner allowed a deduction from gross income of $43,422.34 on account of what the Commissioner later determined to be depreciation on an appreciation in value of its assets, and also allowed a credit under the provisions of section 131 of the Revenue Act of 1928 in the amount of $29,874.91 for English taxes paid in 1930 on dividends received by plaintiff from its wholly owned English subsidiary. The Commissioner in his letter inclosed a form denominated a "Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassess |