1. Where a government contract for dredging expressly required
prompt, written protest against any order for work outside the
specifications, written modification of the contract if altered
materially, and written orders for extra work,
held that
oral protests by the contractor, a claim for additional
compensation, and a favorable advisory opinion thereon by a
government official, were insufficient to establish that these
contract provisions were inapplicable or waived, or that a new,
oral agreement for compensation
quantum meruit was
substituted by implication. P.
267 U. S.
457.
2. A motion to remand to the Court of Claims for further
findings should be submitted at the first term of the entry of the
case, so that the Court may determine whether the motion shall be
passed upon in advance, or postponed until the hearing on the
merits. P.
267 U. S. 458.
58 Ct.Cls. 158 affirmed.
Appeal from a judgment of the Court of Claims rejecting a claim
for additional compensation for dredging.
Page 267 U. S. 456
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Sanford & Brooks Company agreed with the United States to
dredge a channel at a fixed rate per cubic yard of material
dredged. Payment for the number of yards dredged was made at the
contract rate. Later, this suit was brought to recover additional
sums, as upon a
quantum meruit. One claim was that the
material to be removed within the contract lines had been
misdescribed in the specifications, and the rule applied in
United States v. Atlantic Dredging Co., 253 U. S.
1, and
United States v. Spearin, 248 U.
S. 132, was invoked. Another claim was that, through a
mistake of the government's representative, work had been done
outside the limits prescribed by the contract, and that this was
more burdensome. The Court of Claims, after a hearing upon the
evidence, entered judgment for the defendant. 58 Ct.Cls. 158. The
case is here on appeal under ยง 242 of the Judicial Code. The appeal
was filed in this Court on September 20, 1923. It was not reached
for argument until January 15, 1925. On January 9, 1925, the
plaintiff filed, with its brief on the merits, a motion to remand.
The document, including appendices, contained 65 printed pages.
The reliance in this Court was wholly upon the motion to remand.
The claim on account of work inside the contract lines was not
insisted upon here. The claim for work outside the contract lines
was urged in the brief on the merits, but at the argument plaintiff
conceded that, upon the findings of fact made, there could be no
recovery. The contention then presented was that this Court could
not come to a proper decision on
Page 267 U. S. 457
this claim without having findings as to the existence or
nonexistence of eight additional alleged facts, and that, to this
end, the cause should be remanded to the lower court. The
government objected to the allowance of the motion to remand on the
grounds that the findings already made were definite; that they
included all material facts, and that, if the additional facts
asserted were found, these would not change the legal result. The
objections are, in our opinion, sound.
Plaintiff asserts that the additional findings would show that,
when the erroneous location of the work was discovered, it made
oral protest to the contracting officer of the government against
continuance of the work outside the contract lines; that it
protested orally against payment for such work at the contract
price; that, during the progress of the work, it made claim for
payment upon a
quantum meruit basis; that, seven months
after the completion of the work in question, the Judge Advocate
General gave an opinion on this claim favorable to the plaintiff;
that the Assistant Secretary of War approved of the opinion; that
he directed that negotiations be had with plaintiff concerning the
amount of additional compensation to be paid; but that no agreement
was reached. These, with other minor additions to the facts as
found, are relied upon by plaintiff to show that, as to this work,
the express provisions in the written contract which required
prompt written protest against any order for work outside of the
specifications, written modification of the contract if it was
altered materially, and written orders for extra work, were all
inapplicable or waived, and that a new oral agreement providing for
compensation quantum meruit was substituted by implication. We are
of opinion that the findings sought, if made, would be of no avail
to plaintiff. Oral protests, a claim for additional compensation
and a favorable
Page 267 U. S. 458
advisory opinion thereon would be facts clearly insufficient to
establish plaintiff's contentions.
Moreover, if those facts could conceivably affect the result,
the motion should, as a matter of discretion, be denied because of
the delay in filing it. A motion to remand for further findings,
even if based wholly upon matter included in the original record on
appeal, should be submitted at the first term of the entry of the
case, so that this Court may determine whether the motion shall be
passed upon in advance of the hearing on the merits to be postponed
until such hearing.
Compare 76 U. S.
Adams, 9 Wall. 554,
76 U. S. 559.
Where, as in this case, the motion is based largely upon matter not
appearing in the record on appeal, the reasons for insisting upon
promptness in making an application to remand are particularly
persuasive. Diligence in this respect is essential to the orderly
and expeditious administration of justice.
Compare Rule 14
of this Court governing petitions for certiorari for diminution of
the record.
Chappell v. United States, 160 U.
S. 499.
Affirmed.