Reporter's Statement of the Case 92 C. Cls. by special letter; and where contractor without notice to proceed did complete all of the 12 casts called for by the contract, but only 7 of such said casts were ordered by the Government, for which contractor was paid the price agreed upon; it is held that the contract falls under the heading of a "wish, want, or will" contract and is not enforceable because of lack of mutuality. The Reporter's statement of the case: Mr. Fred W. Shields for the plaintiff. Mr. Joseph M. Bonuso was on the brief. Mr. Robert E. Mitchell, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. Plaintiff is a partnership composed of Stephen Battistone and John V. Arban, doing business in Washington, D. C. 2. On January 2, 1934, plaintiff entered into a written contract, No. TL SA 4723, with the defendant, represented by the Assistant Secretary of the Treasury, to furnish all labor and materials and perform all work required for one duplicate cast from master models of lighting fixtures, types B-3, B-4, LL-3, PP-3, R-3, V−3, K-4, O, EE-3, S-4, HH-3 and TT (owned by the Government), which were to be taken over and stored by the contractor, and full responsibility assumed for same from time of completion until June 30, 1936, so that orders could be made from time to time, as needed, for these duplicate models, at the unit prices named by the contractor in proposal dated June 26, 1933, for a consideration of $7,049, in strict accordance with the specifications, schedules and drawings, which are made part of the contract. This contract was made pursuant to a proposal of plaintiff dated June 28, 1933, and defendant's acceptance dated January 2, 1934, and was based on unit prices as set forth in that proposal and acceptance. 3. Performance of all work was, under the contract, to be completed by June 30, 1936. The models were for exterior lighting fixtures for Federal buildings and the contract provided: Reporter's Statement of the Case The work shall be commenced as soon as practicable after the date of receipt of notice to proceed, the duplicate cast of each master model shall be completed and shipped or otherwise delivered as directed within ten (10) calendar days from the date of receipt of notice to proceed with each duplicate ordered. The following provisions were included in the specifications: 6. The Government reserves the right to order additional casts (one or more for each type of fixture) at the unit rate fixed by the amount included for the duplicate cast in each bid, at any time during the period extending from the date of completion of the master model or taking over of existing master models to June 30, 1936. 15. Notice to proceed will be a special letter notifying the contractor to proceed with the model or group of models, or casts, as the case may be. The contractor is notified that the receipt by him of full size or shop drawings with other information is not the notice to proceed with the model. The unit prices for the duplicate casts were agreed to be as follows: Article 32 of the Specifications provided: Inspection will be made by Government Representatives. The contractor shall notify the Supervising Architect as to where the master models and duplicate casts are to be cast, etc., and when they will be ready for such inspection. Duplicate casts will receive the same inspection as specified for master models. Reporter's Statement of the Case 92 C. Cls. Copies of the contract and specifications are filed in evidence and made part hereof by reference. 4. Immediately upon the execution of the contract plaintiff proceeded with the work of making up all twelve of the duplicate casts specified therein, notwithstanding it had not received from defendant the notice to proceed, as provided for in the specifications; and at least seven of these duplicate casts had been completed prior to March 10, 1934, viz, B-3, B-4, LL-3, K-4, EE-3, S-4, and TT, and the work on the remaining five casts was being carried on to completion. 5. Plaintiff, who had had similar contracts with defendant prior to this, was aware that it was not authorized to proceed with the work of making the duplicate casts until receipt of notice to proceed, but did so in anticipation of orders from the defendant, and also notified the office of the Supervising Architect that casts were ready for inspection at plaintiff's studio. A representative of the Government made inspections of all the duplicate casts, as to quality and character of the work being carried on (which he would have done as routine regardless of notice to proceed on request of the contractor). 6. The principal architect of the Procurement Division, being the inspector of models and casts, during the course of his inspection of the duplicate casts at plaintiff's request, became cognizant of the fact that plaintiff was constructing all the duplicate casts specified in the contract. 7. March 12, 1934, defendant wrote plaintiff the following letter, omitting immaterial matter: Referring to the models to be supplied by you for the Special Exterior Lighting Fixtures, you are directed to ship, when completed and formally approved by this office, the models listed below. The route of shipment is optional when not stated. Please ship duplicate casts of all master models, i. e., Minneapolis, Minnesota. 83 Reporter's Statement of the Case Plaintiff did not regard this letter as formal notice to proceed with the work, and on May 9, 1934, plaintiff (already having completed at least seven or more of the duplicate casts) wrote the defendant as follows: With reference to our contract TISA-4723 entered with you on the 2nd day of January 1934 for certain duplicate models of lighting fixtures, we wish to call your attention that we have not as yet received notice to proceed with same. You are no doubt familiar with the delay preceding the awarding of this contract and we would appreciate any effort on your part which will enable us to proceed with this work. May 25, 1934, the defendant by the following letter gave plaintiff formal notice to proceed with seven of the duplicate casts: In connection with your contract for duplicate models from specified master models (which are the property of the Government) for exterior lighting fixtures for Federal Buildings, you are ordered to proceed with one duplicate cast of the following types now in your possession at the unit rates named in your contract: Each of these duplicate casts shall be completed and shipped or otherwise delivered as directed within ten (10) calendar days from date of receipt of this notice to proceed. When these types of models have been formally approved by this office, you are instructed to ship same to the Flour City Ornamental Iron Company, 2736 27th Avenue South, Minneapolis, Minn. As there are no buildings yet under contract which require lighting fixtures to be made from types Nos. PP-3, R-3, V-3, HH-3, and O, notice to proceed on these types cannot be given you at this time. Reporter's Statement of the Case 92 C. Cls. Plaintiff obtained bills of lading from the defendant's appropriate agent and shipped the seven types of casts specified in the foregoing letter within ten days from the date of receipt thereof. They were received by the fixture manufacturer, The Flour City Ornamental Iron Company, on June 12, 1934, and plaintiff was duly paid for the same by defendant at the unit prices specified in the contract. 8. No other instruction or notice to proceed was given by defendant to plaintiff under this contract and plaintiff had the remaining five casts involved in this action completed, viz., PP-3, R-3, V-3, HH-3, and O, upon receipt of the foregoing letter of May 25, 1934. 9. Final inspection was never made by defendant's representative of the five casts in question, and no official approval of them was given by defendant. 10. Plaintiff wrote defendant February 12, 1935, as follows: With reference to our contract for the above project, we wish to bring to your attention that all Models have been completed and approved. We are now holding duplicates of Fixture Types: PP-3, R-3, V-3, O, and HH-3, fully covered by insurance, in storage; and would like to be advised as to their disposal in order that we may be in a position to receive payment. We also would like to emphasize that any further delay would incur additional expense, not anticipated, and respectfully ask your prompt attention be given to this matter. 11. Defendant wrote plaintiff on June 4, 1935, as follows: In connection with your contract of January 2, 1934, for making duplicate casts of specified types of models from master casts owned by the Government, for exterior lighting fixtures for Federal Buildings, reference is made to your request for payment and to be advised as to the disposal of the five remaining types of duplicates under your contract, which you have completed without order and are storing. Under your contract, the right is reserved by the Government to order the duplicates when desired and at any time until the expiration of your contract, June 30, 1936. Careful consideration and detailed investigation has been given this question. The records do not indicate |