
    BATESON-STOLTE, INC. v. THE UNITED STATES
    [No. 141-57.
    Decided May 7, 1958]
    
      
      Mr. John Kilcullen for the plaintiff. Mr. O. P. Easterwood, Jr., and Messrs. McNutt, Dudley and Easterwood were on the brief.
    
      Mr. Clare E. Walker, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
   Laramore, Judge,

delivered the opinion of the court:

This is a suit for $193,637.95 in additional expenses in- • curred by plaintiff in the performance of a Government contract. The defendant has moved the court for judgment on the pleadings dismissing plaintiff’s petition on the ground that it fails to state a claim upon which relief can be granted.

Plaintiff’s petition alleges that the defendant, by its acts, forced plaintiff to pay labor wages in excess of those contemplated at the time the contract was entered into. The petition further alleges that the increased costs resulting from the acts of the defendant “brought about a change in the manner of performance of work under the contract within the general scope of contract provisions which permitted adjustment under the contract. The refusal of the Government to make such adjustment resulted in a breach of contract.”

The contract provisions alleged to have been breached by the defendant do not appear in either the petition or any other part of the record. Defendant in reply to plaintiff’s opposition to the instant motion quotes in a footnote what is purported to be Article 4 of the contract. Whether this is one of the provisions which plaintiff alleges to have been breached we have no way of knowing. Rule 12 (d) of the rules of this court requires that plaintiff shall plead the substance of those portions of the contract on which it relies or annex to the petition a copy of the contract or its pertinent provisions. Plaintiff has failed to comply with this rule. On the record now before this court it would be impossible for us to decide whether plaintiff has or has not stated a cause of action.

In view of the failure of plaintiff’s petition to comply with Rule 12 (d) alleging the substance of those portions of the subject contract upon which it relies, plaintiff within 30 days hereof is permitted to file an appropriate amendment to its petition. Defendant’s motion for judgment on the pleadings is denied without prejudice to defendant’s right to renew said motion following the filing of plaintiff’s amended petition and defendant’s answer thereto. In the event plaintiff fails to file an appropriate amendment within 30 days hereof, its petition will be dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.  