
    CALIFORNIA NURSERY COMPANY v. THE UNITED STATES
    [No. 44228.
    Decided October 2, 1944]
    
      
      Mr. Fred B. Rhodes for the plaintiff. Rhodes, Kleph-inger <& Rhodes were on the brief.
    
      Mr. B. R. Gamer, with whom was Mr. Assistant Attorney General Fromcis M. Shea, for the defendant.
   Whaley, Chief Justice,

delivered the opinion of the Court:

This action is brought pursuant to the Act of Congress approved June 25, 1938, giving Government contractors the right to sue the United States under indicated circumstances for recovery of increased costs incurred as a result of the enactment of the National Industrial Recovery Act. Submission is on a stipulation of facts and briefs. The facts are not in dispute.

The plaintiff’s contract called for planting of trees and shrubs at the Naval Air Station at Sunnyvale, California, and other work there of a landscaping nature.

The contract provided:

'Warranty Bond. The contractor shall warrant all trees and shrubs for a period of 18 months from date of acceptance of the contract work; and he shall, upon notice, promptly replace at his expense all trees and shrubs which die during this period. This warranty shall be covered by a bond (preferably that of a first class surety company) in the sum of 35 percent of the contract price. This bond shall be furnished before final payment of the contract is made.

The only question raised that merits serious consideration is jurisdictional. Under the statute, in order that jurisdiction might here attach, the claim must have been presented to the administrative office concerned “within six months from the date of approval of this Act or, at the option of the claimant, within six months after the completion of the contract, except in the discretion of the Comptroller General for good cause shown by the claimant.” Sec. 4, Act of June 16,1934,48 Stat. 974, 975.

It is stipulated and so found, that the work under the contract was completed and accepted June 5, 1934, and that plaintiff in the following July and August performed replanting work required by the contract, finishing replacements August 6, 1934. It is obvious that “acceptance of the contract work”, mentioned in the paragraph under the heading “Warranty Bond,” refers to the initial planting, and not to replacements of plants dying during the 18-month period, and the stipulated and adopted finding follows the wording of the contract.

The 18-month period expired the forepart of December,. 1935.

The plaintiff filed its claim with the administrative office March 11,1935, which is more than six months after replanting had been completed August 6, 1934, hence more than six months after June 5,1934, the acceptance date, but less than six months “after completion of the contract” if, within the meaning of the controlling acts of Congress, the completion of the contract was not consummated until the forepart of December, 1935, the end of the 18-month period.

There is no escaping the fact that replanting was a part of the contract work. The contract provided that it should be done. Without the contract it would not have been done.

Since the cost of possible replacements was a part of the contractor’s costs of performance of the agreed work, the plaintiff could not ascertain its costs until the 18-month period had expired.

This is not a suit for recovery of a contract price, due at a time certain and remaining unpaid. It is a statutory suit for recovery of costs and the period of limitation did not start to run until the event happened that determined those costs. They were ascertainable only at the conclusion of the 18-month period and the claim was therefore presented in time. The cause of action here is statutory and did not accrue piecemeal. In this connection see Austin Engineering Co. v. United States, 88 C. Cls. 559, 564.

Plaintiff’s increased costs resulting from the enactment of the National Industrial Kecovery Act in the, performance of its contract total $1,451.87, and in the replacement work total $108.00.

Plaintiff is entitled to recover $1,559.87. It is so ordered.

Whitaker, Judge; and Littleton, Judge, concur.

Madden, Judge,

concurring in part and dissenting in part:

I disagree with the opinion of the court as to the sum of $1,451.87 which is included in the judgment. This sum represents the increased costs incurred by the contractor in performing the contract down to the time when the work was accepted by the Government. Since, as is shown by the findings and the opinion, the work was completed and accepted on June 5, 1984, and the plaintiff’s claim under the 1934 act was not filed until March 11, 1935, that claim was filed too late if June 5 was the date of “completion of the contract,” within the meaning of that act.

The opinion of the court treats the contract to do the prescribed work, and to warrant life of the trees and shrubs for 18 months, as single, and as keeping performance incomplete until the expiration of the 18 months period of the warranty. I think the warranty should be treated, for this purpose, as a separate and supplementary provision.

The only situation analogous to the present one which the parties have pointed out, is that of the time of the filing of mechanics’ liens, under state statutes requiring that, to be effective, they must be filed within a specified period after “the completion of the contract” or “the final performance of the work” or “the last furnishing of labor or material” or words of similar import. All the cases seem to hold that the lien is filed too late, if it is not filed within the specified period after the work is done and turned over to and accepted by the owner, even though it is filed within the specified period after further work is done by the contractor by way of repair or replacement of defective materials pursuant to an express or implied warranty. See Bailey Meter Company v. Owens-Illinois Glass Company, 108 Fed. (2d) 468 (C. C. A. 7th); Taylor Bros. v. Gill, 126 Okla. 293, 259 Pac. 236; Fox & Co. v. Roman Catholic Bishop of the Diocese of Baker City, 107 Ore. 557, 215 Pac. 178; Coffey v. Smith, 52 Ore. 538, 97 Pac. 1079; Hammond Lumber Co. v. Yeager, 185 Cal. 355, 197 Pac. 111; Holmes v. S. H. Kress & Co., 100 Okla. 131, 223 Pac. 615; Otis Elevator Company v. Sheffield Realty Co., 205 Ala. 488, 88 So. 566; Garrett v. Lishawa, 36 Ohio App. 129, 172 N. E. 845; Adelmam, Inc. v. Church Extension Committee of Presbytery of New York, et al., 241 N. Y. Supp. 197,136 Misc. 810.

For the practical reason that a serious incumbrance on the title to land should not be permitted to spring up after the relatively short period which legislatures set for the filing of these liens, merely because some work supplemental to the work contracted for is done at a later time, the courts in the mechanic’s lien cases have treated the warranty as a separate contract. I recognize that there is, perhaps, not an equally strong reason of policy in this N. E. A. case urging toward the same result. But I think that the parties to such a contract really regard the warranty as a supplement to, rather than a part of, the contract, and no reason now occurs to me why an express warranty, such as appears in this case, should be treated differently from the implied warranties which are a part of every contract for construction or for furnishing materials. If there is no difference, the decision of the court in this case might have the effect of reopening N. E. A. cases which have been thought to be outside our jurisdiction because the claims for increased costs were not filed within the prescribed period after the “completion” of the contract in the sense in which I think Congress used that word.

Jones, Judge, took no part in the decision of this case.  