
    CHARLES H. BLANCHARD, JR. DOING BUSINESS AS BLANCHARD CONSTRUCTION COMPANY v. THE UNITED STATES
    [No. 376-59.
    Decided June 11, 1965]
    
      
      Travis Brown for plaintiff.
    
      Frances L. Nmn, with, whom was Assistant Attorney General John W. Douglas, for defendant.
    
      Before CoweN, Chief Judge, Laramoke, Burpee, Bavis and ColliNS, Judges.
    
   Per Curiam :

This case was referred pursuant to former Buie 45(a), now Buie 57(a), to Trial Commissioner Saul Bichard Gamer with directions to make findings of fact and recommendation for a conclusion of law. The commissioner has done so in an opinion and report filed on April 10,1964. Plaintiff and defendant filed exceptions to the commissioner’s report, briefs were filed by the parties, and the case was submitted to the court on oral argument of counsel. Since the court is in 'agreement with the findings and recommendation of the commissioner, subject to the deletion of two sentences, it adopts the same, as amended, and as hereinafter set forth, as the basis for its judgment in this case. The plaintiff is therefore entitled to recover and judgment is entered for plaintiff in the sum of thirty-six thousand seven hundred fifty-seven dollars and forty-eight cents ($86,757.48). Be-fendant’s counterclaim is dismissed.

OpiNion op Commissioner

A construction contractor here complains that the Government deprived him of $75,000 worth of timber which, under his contract, rightfully belonged to him. The contract called for a certain wooded part of the project area to be cleared, and plaintiff contends that, under a proper interpretation of the applicable specification provisions, the timber generated by such clearing operations belonged to him.

Plaintiff’s contract with the Eglin Air Force Base in Florida called for the construction of a “Bombing Eange.” Certain structures had to be erected, and some 4,000 acres of land had to be cleared. About 1,000 acres thereof were, in addition, required to be grubbed. Generally, clearing consisted of cutting the trees no higher than 12 inches above the ground, and grubbing consisted, in addition, of the removal of all stumps and large roots.

Sheets 1 and 2 of the contract drawings delineated, by legends consisting of hatch and cross-hatch lines within boundary lines, the specific areas which were to be cleared only, and to be both cleared and grubbed. Sheet 1 referred to the “Cleared Area” and the “Cleared and Grubbed Area.” Sheet 2 referred to the “Area to be Cleared to Stumps Only” and the “Area to be Cleared & Grubbed.” Sheet 3 described the outside boundaries of the rectangular area to be cleared only by arrows leading to the words “Limits of Clearing to Stumps Only,” and, within such limits, another rectangular area, the boundary lines of which were similarly designated as “Limits of Clearing & Grubbing.”

The outside boundaries of these two distinct areas were also visibly marked out on the project site.

The specification provision about which the controversy revolves reads as follows:

SECTION n
CLEARING AND GRUBBING
2-04. DISPOSAL OE CLEARED AND GRUBBED MATERIAL:
(a) Merchantable Timber. All timber from within the limits specified to be cleared and grubbed measuring 8 inch diameter and larger at breast height shall be trimmed of limbs and tops and stock piled at locations within the area as designated by the Contracting Officer. This timber shall remain the property of and will be disposed of by the Government. All the other merchantable timber shall become the property of and shall be disposed of by the contractor.

Plaintiff contends that he reasonably construed this provision as retaining in the Government the title to the 8 inch and larger trees “within the limits” of the area specified on the drawings to be both “cleared and grubbed”, i.e., the crosshatched area, and as vesting in the contractor, pursuant to the provisions of the last sentence that “All the other merchantable timber shall become the property of * * * the Contractor,” the title to the trees of such dimension within the limits of the other area specified on the drawings to be cleared only, i.e., the hatched area. It seems clear that plaintiff is correct.

There were two distinct areas for the clearing and grubbing operations. In one, only clearing was to be done. In the other, both clearing and grubbing were to be done. The only places where a contractor could ascertain the “limits” of these different areas were the drawings and the marked boundaries on the site itself. As to this there is no dispute. A previous paragraph, 2-02, of the same section of the specifications, which described the requirements of the “Clearing” operation in detail, specifically referred the contractor to a certain drawing (Sheet 26) to ascertain the areas “designated by cross-hatching” for a special type of clearing operation. Accordingly, when paragraph 2-04(a), being the only paragraph specifying what timber was to belong to whom, used, in describing the timber to belong to the Government, the almost identical area language as was used on the drawings, the contractor naturally thought the timber in the other area belonged to him. The specification said “all timber from within the limits specified to be cleared and grubbed * * * shall remain the property of * * * the Government.” The drawings used the exact “cleared and grubbed” phrase, as distinct from “clearing only,” and Sheet 3, designating the “Limits of Clearing and Grubbing,” used the almost identical language of 2-04(a). “Limits specified” could rationally refer only to the areas and boundaries shown on the drawings, and “cleared and grubbed” reasonably meant the “cleared and grubbed” area shown on the drawings, which specified such area in such exact language and as separate and distinct from the “cleared only” area. Certainly plaintiff’s reading of the specification is logical and natural.

Defendant argues that when paragraph 2-04(a) referred to the timber “within the limits specified to be cleared and grubbed,” it referred to the entire project area because the whole area had to be cleared, including the part to be grubbed also. It contends it should not therefore be necessary for the provision in question to refer to “clearing, only” and “clearing and grubbing,” as two distinct operations. It points out that other parts of section II of the specifications, which include paragraph 2-04(a), make no distinction between “clearing only” as one operation, and “clearing and grubbing” as another.

However, the language of each part of the specifications must be studied in its particular context. Where other parts of the specifications, including the other paragraphs of section II, headed “Clearing and Grubbing,” used these terms separately, and defined them, and made no reference to areas or geographical limits, there was no need to use the separate terminology of the drawings. The different operations themselves, as operations, were being defined. But when 2-04(a) referred to ownership of certain timber in certain areas as defined on drawings, and used the same area language as the drawings, a different situation is presented. It is not an operation that is here being discussed. It is, instead, a geographical demarcation. It could also be pointed out that where, as under “Statement of Work,” the specifications themselves referred to these operations in connection with areas, it did use the terms “Clearing” and “Clearing and Grubbing” separately. But most importantly, these separate and distinct terms were so used on the drawings to which 2-04 (a) obviously sent the reader.

Secondly, if indeed all the 8-inch timber in the entire project area was intended to belong to the Government, as defendant maintains, it would have been extremely easy to say so directly and clearly. Defendant’s reading of 2-04(a) is certainly a most confusing and roundabout way of expressing that simple thought. Paragraph 2-04(a) in its original form defined “merchantable timber” as being 6 inches in diameter measured one foot above the ground (commonly referred to as “saw logs”), and then specifically said “All merchantable timber shall remain the property of the Government.” This was simple language easy to understand and which could lead to no controversy. The amended paragraph which is here involved was issued in the form of an addendum. This addendum seemingly reserved the saw logs in a certain defined area to the Government and then added the new sentence, “All the other merchantable timber shall become the property of and shall be disposed of by the Contractor.” Now, says defendant, that new sentence was meaningless for it gave the contractor nothing. This is hardly a fair construction. If all that was intended to be accomplished by the new provision was, as defendant maintains, to change the 6 inches to 8, and elevate the place of measurement from one foot above the ground to breast height, it would have been easy indeed to make these simple changes and still retain the language about all the merchantable timber belonging to the Government, and not confound bidders by changing the entire section, using “limits” and area language identical to that on the drawings, eliminating the sentence about all the timber belonging to the Government, adding a new sentence indicating that this time contractors were to get some saw logs, and then informing them that, despite all these changes, all the saw logs still belonged to the Government anyway.

At the most, even taking defendant’s interpretation as a possible one, the provision would have to be considered ambiguous. However, plaintiff’s interpretation was certainly a reasonable one — indeed, everything considered, much the more reasonable — and such construction should therefore, under familiar principles of contract interpretation-relating to resolving ambiguities against the drafter, be adopted. WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 6-7, 323 F. 2d 874, 876-77 (1963).

Where the Government draws specifications which are fairly susceptible of a certain construction and the contractor actually and reasonably so construes them, justice and equity require that that construction be adopted. Where one of the parties to a contract draws the document and uses therein language which is susceptible of more than one meaning, and the intention of the parties does not otherwise appear, that meaning will be given the document which is more favorable to the party who did not draw it. This rule is especially applicable to Government contracts where the contractor has nothing to say as to its provisions. * * * Peter Kiewit Sons’ Company v. United States, 109 Ct. Cl. 390, 418 (1947).

This disposition of the case is a fair one to both sides because, interpreting the specifications as he did, plaintiff actually made a substantial reduction in his bid by what he then considered was the value of the timber in the “cleared only” area and which he reasonably thought would become his. He specifically caused a cruise to be made for the express purpose of determining the value of the saw logs in such area. Thus, in effect he purchased the timber by giving the Government credit for its value in the form of a reduced bid.

Defendant stresses certain actions of plaintiff during the clearing operations as being inconsistent with his present claim as to his original interpretation of the specifications. It asserts that in fact plaintiff treated the logs as belonging to defendant, that this indicates that plaintiff originally interpreted the specifications as defendant now interprets them, and that plaintiff’s claim is an afterthought. The “practical interpretation” of the contract by the parties themselves “during performance” is, of course, of “great importance” in resolving disputes involving contract interpretation. Manufacturers Aircraft Ass'n. v. United States, 77 Ct. Cl. 481, 521 (1933), cert. denied, 291 U.S. 667. “Acts of the parties under a contract prior to the time when the contract becomes subject to controversy,” and which are inconsistent with their subsequent contentions, “are to be given considerable weight in interpreting the contract.” Union Paving Co. v. United States, 126 Ct. Cl. 478, 489, 115 F. Supp. 179 (1953).

However, this contention of defendant’s is unsupported by the record. The controversy arose before clearing operations even commenced and as a result of defendant’s marking the 8-inch trees to be cut and as belonging to it. The clearing operation itself was subsequently conducted under an agreement whereby defendant would retain the timber but would keep tallies by making appropriate entries in “scale” books of the amount of the timber involved. The timber was, consequently, quite naturally treated as defendant’s, and no damaging inferences can possibly be drawn therefrom. Of far greater significance in testing plaintiff’s original interpretation is his action, prior to bidding, in causing the aforementioned cruise to be made of the timber in tlie “cleared only” area and then reducing Ms bid by the substantial amount wHch he concluded was the value thereof. And his immediate assertion of title to the trees at the very first indication by the Government of its claim to them is itself persuasive evidence of plaintiff’s consistent interpretation.

After the contracting officer ruled that the timber here in controversy belonged to the Government, plaintiff, under the contract disputes article, appealed the issue to the Armed Services Board of Contract Appeals. The Board affirmed the contracting officer’s decision. Defendant contends the Board’s decision is entitled to finality. However, the only issue here involved is the proper interpretation of a contract specification. Numerous decisions of this court hold that such an issue is one of law. Therefore, the administrative appeals board decision lacks finality. See W. H. Edwards Eng'r. Corp. v. United States, 161 Ct. Cl. 322 (1963) and Beacon Construction Co. v. United States, 161 Ct. Cl. 1, 314 F. 2d 501 (1963), and cases therein cited. There was here no testimony submitted to the Board or any Board hearing in the usual sense. The Board simply decided the appeal on a record composed only of the documents, and, noting that “The problem presented is not entirely free from difficulty,” based its decision wholly on a “study of the pertinent contract provisions.”

The final problem involves the value of the timber. Here again the parties are in sharp controversy. Plaintiff says that, based on the cruise made prior to the submission of his bid, the value was $75,000, being the product of an estimate of 1,500,000 board feet at the then fair market value, for virgin timber, of $50 per thousand, cut and stockpiled. As indicated, plaintiff in fact reduced Ms bid by such amount based on this estimated value. Plaintiff further contends that in any event, the Board found the value to be $62,000, a factual finding which, plaintiff argues, amounts to a binding concession on defendant’s part and which should be'accorded finality. He says no lesser amount should be awarded.

As noted, tMs controversy arose between the parties before the trees were cut. It was agreed at the time that an accurate record should be kept of the amount of board feet of lumber that was involved. As a result, the timber in the area in controversy was, after it was cut and prior to its being-removed by defendant, “scaled” by defendant’s employees, with appropriate entries being made in scale books. Such scaling consisted of actually counting and measuring the logs cut. Plaintiff’s representatives were present at such scaling and there is no record of any disagreement concerning the figures contemporaneously entered in the books. Defendant contends that plaintiff’s damages should be based on the amount of timber shown by these records, which it argues are far more accurate than the cruise estimate. Based on such figures (and on defendant’s fair market value contentions), defendant argues for a valuation of approximately $28,000.

Furthermore, defendant denies that the Board “found” a $62,000 value.

On these issues of the quantity of timber in controversy and the Board’s “finding” of value, defendant is correct. On the first issue, the cruise upon which plaintiff relies was a 10 percent one, i.e., only about 10 percent of the area was covered and an estimate of the entire area based thereon. An estimate so grounded is far less accurate than actual counts and measurements of the individual logs cut. In the area in controversy there was some acreage that had very little merchantable timber. Plaintiff shows no substantial basis for not accepting the contemporaneous scale book figures. And on the second issue, it is clear that the reference to $62,000 in the Board opinion does not constitute an acceptable finding as to value. The Board simply stated: “The value of the trees in controversy appears to be in the vicinity of $62,000.” Furthermore, the Board took no valuation testimony or, indeed, as hereinabove set forth, any testimony at all, and it is nowhere indicated upon what, if any, valuation data this figure is based.

Plaintiff points to defendant’s admission in its original answer of the $62,000 value. However, in view of defendant’s denial of such value by its amended answer, permitted to be filed by court order, the original pleading cannot be treated as a damaging admission. “The office of the petition and answer is to permit introduction of the true facts in the record. If something was inadvertently or erroneously admitted, it is not only the right but the duty of the def endr ant to correct the error.” Spiers, Inc. v. United States, 155 Ct. Cl. 614, 630-631, 296 F. 2d 757 (1961).

Accepting defendant’s figures as to the quantity of the virgin and second growth timber involved, and plaintiff’s fair market values pertaining thereto ($50 and $40 per thousand feet, respectively, cut and stockpiled), the value of the timber in controversy is $36,757.48. The details and bases for the computation of this amount are set forth in finding 13.

Defendant filed a counterclaim herein but offered no evidence in support thereof. Accordingly, it should be dismissed.

Consequently, judgment should be entered for plaintiff in the sum of $36,757.48, and defendant’s counterclaim dismissed.

FINDINGS oe Fact

1. Plaintiff is an individual doing business under the name of Blanchard Construction Company, with offices in Pensacola, Florida. He has been, for many years, engaged in the construction business in the Florida area, including the performance of a number of contracts at Eglin Air Force Base in Southwest Florida.

2. (a) On April 4, 1955, defendant, by its Office of the Director of Procurement, Air Proving Ground Command, Eglin Air Force' Base, Florida, issued an Invitation to Bid on the construction of an Air Force “Pattern Bombing Range” at the Eglin Air Force Base in Florida. Attached to the invitation were the specifications and drawings with respect to the work to be performed. Plaintiff received a copy of the invitation and attachments.

(b) The specifications attached to the invitation, being Specification No. 55-207, dated September 3,1954, contained a part entitled “Statement of Work.” Nine items were listed, including the clearing and grubbing of certain areas, the construction of various structures, such as a Control Station, Towers, and an Electrical Distribution System, and the construction of roads and parking areas. The provisions therein concerning clearing and grubbing stated :

In general the work shall consist of the following items:
(1) Clearing for Target Area, Utility Lines, Sight Lines, and Miscellaneous Areas.
(2) Clearing and Grubbing for Hoads, Parking Areas, Buildings, Target Configurations, and Impact Areas.

(c) The specifications also contained a part entitled “Technical Provisions.” Included therein were the following:

section n
CLEARING AND GRUBBING
2-01. scope: The work covered by this section consists of furnishing all plant, labor, equipment, and materials, and performing all operations in connection with clearing and grubbing, complete, in strict accordance with this section of the specifications and the applicable drawings, and subject to the terms and conditions of the contract.
2-02. clearing: Clearing shall consist of the felling, and cutting up, or the trimming of trees, and the satisfactory disposal of the trees and other vegetation designated for removal, together with the down timber, snags, brush and rubbish, occurring within the limits shown on the drawings for target area, buildings, roadways, and parking areas, lanes for power and communication lines, sight lines, and all miscellaneous areas indicated on the drawings to be cleared. Except as otherwise specified hereinafter, trees and other vegetation, except such individual trees, groups of trees, and vegetation, as may be designated by the Contracting Officer to be left standing, and all stumps, roots and brush in areas to be cleared shall be cut off twelve inches or less above the original ground surface. Trees and stumps in areas to be covered by embankments 3 feet or more in height shall be cut off to within 8 inches or less of the original ground surface. Clearing of areas designated by cross-hatching on Sheet No. 26 of the drawings shall consist only of cutting down trees which are 13 feet high or higher above natural ground. Trees less than 13 feet in height shall be left standing. All limbs and branches required to be trimmed shall be neatly cut close to the bole of the tree or to main branches, and the cuts more than V/2 inches in diameter thus made shall be painted with an approved tree-wound paint. Individual trees, groups of trees, and other vegetation, to be left standing, shall be thoroughly protected from damage incident to construction operations, by the erection of barriers or by such other means as the circumstances require, as approved by the Contracting Officer. Clearing operations shall be conducted so as to prevent damage by falling trees to trees left standing and to structures under contruction, and so as to provide for the safety of employees and others.
2-03. grtjbbxno : Grubbing shall consist of the removal and disposal of all stumps, roots larger than 1% inches in diameter to the depth specified and matted roots from areas to be occupied by buildings, roadways, parking areas, target configurations, and impact areas the limits specified for clearing in paragraph 2-02 hereof. Stumps, roots, logs, or other timber more than iy2 inches in diameter, matted roots, and other debris not suitable for foundation purposes shall be excavated and removed to a depth not less than 12 inches below natural ground for buildings and 6 inches below natural ground for roads and parking areas within the area to be grubbed. All depressions excavated below the original ground surface for or by the removal of stumps and roots, shall be refilled with suitable material and compacted to make the surface conform to the surrounding ground surface.
2-04. DISPOSAL OP CLEARED AND GRUBBED MATERIAL:
(a) Merchantable Timber. All timber from within the limits specified to be cleared, larger than 6 inches in diameter measured one foot above the ground,, shall be considered merchantable timber. All merchantable timber shall be trimmed of limbs and tops and stockpiled at locations designated by the Contracting Officer. All merchantable timber shall remain the property of the Government.
(b) Burni/ng or Removal from Site. All timber except such timber as may be ordered salvaged as provided for above, all logs, stumps, roots, brush, • rotten wood and other refuse from the clearing and grubbing operation shall be disposed of as directed or authorized by the Contracting Officer. Timber and other refuse to be disposed of by burning shall be burned at locations specified by the Contracting Officer, in a manner that will avoid all hazards, such as damage to existing structures, construction in progress, trees and vegetation. Tbe Contractor will be responsible for compliance with all Federal and State laws and regulations relative to tbe building of fires. Disposal by burning shall be kept under constant attendance until the fires have burned out or have been completely extinguished.

(d) The specifications further contained an Addendum No. 1, dated April 1, 1955, which amended the above-quoted Paragraph 2-04(a) of Section II of the Technical Provisions. Said addendum stated with respect thereto:

1. SPECIFICATION no. 55-207, dated 3 September 1954, covering the Construction of Pattern Bombing Range “C” (Land) at Eglin Air Force Base, Florida is amended as follows:
a. On Page 2-2, Paragraph 2-04(a), “Disposal of Cleared and Grubbed Material”, is amended to read as follows:
(a) merchantable timber. All timber from within the limits specified to be cleared and grubbed measuring 8 inch diameter and larger at breast height shall be trimmed of limbs .and tops and stock piled at locations within the area as designated by the Contracting Officer. This timber shall remain the property of and will be disposed of by the Government. All the other merchantable timber shall become the property of and shall be disposed of by the Contractor.
■K $ * $ *

(e) Drawings in 49 sheets accompanied the invitation. Sheets 1, 2, and 3 of these drawings delineated the areas which were to be cleared only and the areas which were to be both cleared and grubbed, as follows:

1. Sheet 1 was labeled “Location Plan and Index.” Ii contained an “Index” of all 49 drawings, a “Legend” key, specifying symbols used on the drawings and their meanings, and the general location of the entire contract area, showing, among other things, rivers, roads, the boundary of the entire reservation, and the limits of the areas therein to be “cleared” as well as “cleared and grubbed.”

Under the “Legend” key, the symbol for the “Cleared Area” was shown to be a series of hatch marks (parallel, slanting lines) within the boundary lines of the area, and the legend for the “Cleared & Grubbed Area” was shown to be

a series of cross-liatch marks within boundary lines. These symbols were shown as follows:

On the sheet, the cross-hatched “Cleared & Grubbed” area was shown as consisting of a part of, and being entirely enclosed within, the hatch lined “Cleared Area.”

2. Sheet No. 2 was labeled “Plot Plan” and showed in enlarged scale and greater detail the territory surrounding the Range Target Centers. It bore a similar “Legend” with the same symbols for the “Area to be Cleared to Stumps Only” and the “Area to be Cleared & Grubbed.” Within the territory shown on the drawing were shown the limits and extent of such areas, as indicated by the hatch and cross-hatch legends.

3. Sheet No. 3 was labeled “Target Area and Impact Cameras — Plan and Details.” This sheet contained no legend or hatch and cross-hatch symbols. However, one of the sketches on the sheet had the outside boundary line thereon, described as “Limits of Clearing to Stumps Only” and, within such limits, another rectangular area, the boundary lines of which were described as “Limits of Clearing & Grubbing.”

3. The boundaries of the tracts had been clearly marked by defendant at the site itself. The entire outer perimeter was marked, as well as the inner area, to be both cleared and grubbed, so that the “cleared only” area was distinguished from the area to be both cleared and grubbed. Plaintiff noted these markings in his prebid inspections of the site.

4. (a) Plaintiff construed the specifications and drawings as meaning that the timber measuring 8 inches in diameter or larger at breast height (saw logs) within the limits of the area specified on the drawings to be both cleared and grubbed, i.e., the cross-hatched area, would, under amended paragraph 2-04(a), remain the property of the Government while all the other timber of that kind would be the contractor’s prop-erfcy. This would result in. such timber within the limits of the area specified on the drawings to be cleared only, i.e., the hatched area, becoming the property of the contractor. The drawings were the only contract documents showing the area to be cleared only and the area to be both cleared and grubbed, and plaintiff looked to these drawings to ascertain the limits of such areas under the provisions of Addendum No. 1 that “All timber from within the limits specified to be cleared and grubbed” shall remain the property of the Government, and that “All the other merchantable timber shall become the property of and shall be disposed of by the Contractor.” Consequently, plaintiff desired to know, prior to submitting his bid, the value of the timber in each area so specified on the drawings which would be the contractor’s property, and how much, if he were the successful bidder, he could realize thereon.

(b) Trees below 8 inches in diameter have a market for conversion into pulpwood. Plaintiff understood that such pulpwood would belong to him. There is no controversy about such pulpwood. The entire tract, which was to be both cleared and grubbed, as well as cleared only, consisted of approximately 4,000 acres. The Laird Timber Company, a lumber company interested in purchasing such pulpwood, made at plaintiff’s request a cruise of the 4,000 acres. It estimated that approximately 5,000 cords of such wood could be obtained therefrom and offered to purchase it from plaintiff, if he became the contractor, at $4 per cord. Assuming that amount of wood, this would result in plaintiff’s receiving $20,000 therefrom. In subsequently preparing his bid, plaintiff made an allowance of $16,000 for the value of the pulpwood.

(c) The area to be cleared only consisted of approximately 3,000 acres.. The Abbott Lumber Company, a lumber company interested in purchasing the saw logs in such area, made at plaintiff’s request a cruise thereof. On the basis thereof (a 10 percent cruise), it estimated that approximately 1,500,000 board feet of lumber could be produced from such logs and offered to pay $50 per thousand board feet if plaintiff became the contractor, which was the then market price of virgin timber (cut and stockpiled) in the area. Assuming that amount of lumber, this would result in plaintiff’s receiving $75,000 therefor, and, in subsequently preparing his bid, plaintiff made such an allowance for the value of the saw logs.

5. Plaintiff was the low bidder and, under date of May 26, 1955, entered into a contract with defendant, acting by a contracting officer of the Office of the Director of Procurement, Air Proving Ground Command, Eglin Air Force Base, Florida, for the performance of the work hereinabove described at a contract price of $472,967. The next, lowest bid was $557,354.

)6. Upon being advised that he was the successful bidder, plaintiff accepted the offers of the Laird Timber Company to purchase the pulpwood, and the Abbott Lumber Company to purchase the saw timber. The Laird Timber Company was to do all of the cutting, and plaintiff was to do the stockpiling of the saw timber so that the Abbott Lumber Company might then haul off to its mill the saw timber which it had agreed to purchase from the “cleared only” area.

7. In early August 1955, defendant’s foresters, in anticipation of plaintiff’s commencing to work on the clearing and grubbing operations, and before any equipment was moved into the area for such purpose, marked with paint all of the saw timber to be cut. Defendant construed the contract as giving to it the ownership of all the saw logs (i.e., the timber 8 inches and larger at breast height) throughout the entire area, with the contractor being entitled only to the pulpwood (i.e., the trees less than 8 inches at breast height). Accordingly, the marking was done by defendant to indicate which of the trees should be cut as saw log property belonging to defendant, with the remainder of the unmarked trees constituting pulpwood trees belonging to plaintiff. It was at this time that the difference between plaintiff and defendant as to the proper interpretation of the contract concerning the ownership of the saw logs in the “cleared only” area became evident.

8. (a) Shortly thereafter, but still in August 1955, plaintiff met with defendant’s representatives to discuss the interpretation of amended specification paragraph 2-04(a). Plaintiff contended he was entitled to the saw logs in the “cleared only” area as designated on the drawings and that defendant was entitled to such timber in the area designated on the drawings to be both cleared and grubbed. Defendant’s representatives disputed this interpretation, stating it had been defendant’s intention to retain possession of all the saw logs in both areas. However, defendant’s representatives agreed to discuss the matter with the contracting officer and then to advise plaintiff of such officer’s conclusion. Plaintiff was subsequently advised that the contracting officer did not agree with plaintiff’s interpretation. Thereupon, on August 31, 1955, plaintiff sent the following letter to defendant:

Eeference is made to Addendum No. 1 to Specifications No. 55-207, dated 1 April 1955, Sub-Section A, Merchantable Timber.
It is the contention of the Contractor that this addendum clearly states the area from which merchantable timber will be taken and this area is defined as, “All timber from within the limits specified to be cleared and grubbed.” This cleared and grubbed area can easily be identified on the drawings without question.
It is requested that your comments in regard to the above be forwarded to the Contractor as expeditiously as possible.

(b) Due to the dispute, plaintiff was not permitted to remove any of the saw logs he claimed from the “cleared only” area.. It was nevertheless agreed that plaintiff would stockpile the saw logs. Defendant would then, by scaling (i.e., counting and measuring the logs actually cut) and making appropriate entries in scale books, maintain a tally of such timber prior to removing it. Defendant would then, upon completion of the removal of all of the saw logs from the disputed area, furnish plaintiff a copy of the log tallies so he would know the total number of board feet that was removed by defendant from such area.

(c) Plaintiff was permitted to retain the pulp wood cut from the entire area.

9. (a) By a communication to plaintiff dated September 23, 1955, the contracting officer rendered his “Decision Disallowing Request of” plaintiff under the contract. The reasons given were based solely on the interpretation of the specifications. The decision relied on the fact that section II of the specifications is entitled “Clearing and Grubbing” and not “Clearing and Clearing and Grubbing,” yet “it does include all areas whether they are to be cleared only or to be grubbed in addition thereto.” It also pointed to the wording of paragraph 2-01, “Scope”, under said section II, and the use of the phrase “clearing and grubbing” therein, and stated: “It cannot be maintained that this combination of words refers only to one phase of the operation since the same sentence ties in all applicable work on the contract drawings.” It further noted that paragraph 2-04 (b) of section II, “Disposal of Cleared and Grubbed Material,” obviously referred “to disposal of material from the entire area,” and that plaintiff’s own progress chart “grouped the work under this phase of the contract under one title, ‘Clear and Grub’.” The decision concluded that:

Based on the above reasoning it is the opinion of the undersigned contracting officer that the questioned wording in Addendum No. 1 adequately covers the entire area whether it is to be cleared or cleared and grubbed, and therefore all merchantable timber 8 inches in diameter or larger becomes the property of the government.

(b) This decision was not mailed until October 31, 1955. It was received by plaintiff on November 1, 1955.

10. (a) Article 6 of the contract, entitled “Disputes,” reads as follows:

Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the head of the department, and the decision of the head of the department or his duly authorized representatives for the hearings of such appeals shall, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capriciouSj or so grossly erroneous as necessarily to imply bad faith, be final and conclusive: Provided, That, if no such appeal to the head of the department is taken, the decision of the Contracting Officer shall be final and conclusive. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer, evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.

(b) On November 4,1955, plaintiff appealed the contracting officer’s decision to the Secretary of the Air Force.

11. (a) Plaintiff’s appeal was referred to the Air Force Contract Appeals Panel of the Armed Services Board of Contract Appeals. Pursuant to the parties’ stipulation, the Board considered the appeal simply upon a record which was composed of the contract, the specifications, and written arguments. No hearing was held or personal appearances made.

(b) In the Government’s brief submitted to the Board, it was argued that it would not be reasonable to believe that “in a work-performance portion of the contract, and in a paragraph directing the disposal of cleared and grubbed material to make a transfer of title to property involving a sum of the magnitude in excess of $62,000.00. This would have been an unquestionably and unreasonably off-hand, casual and cryptic method for the accomplishment of such a purpose.”

The record does not indicate the basis for the use of such $62,000 figure.

(c) By decision dated May 8, 1956, the three-member Board Panel, stating that “The disagreement in this case hinges upon the proper interpretation of certain provisions in Specification No. 55-207 * * and that “The problem presented is not entirely free from difficulty,” unanimously sustained the contracting officer’s decision. In the course of its opinion, it stated that “The value of the trees in controversy appears to be in the vicinity of $62,000.”

12. On August 9, 1956, and after the clearing work had been completed in the “cleared only” area, plaintiff sent to defendant the following letter:

It is requested that we be furnished the total number of board feet of merchantable timber that was removed by the government from the cleared area only on the above reference project.
It was mutually agreed by the contracting officer and the contractor at the beginning of this project that the government would furnish to the contractor upon the conclusion of the logging operation the information requested above.

Not receiving a reply thereto, plaintiff, by the following letter of November 5, 1956, again sought the information:

It is requested that you refer to our letter of 9 August 1956 in which it was requested that the contractor be furnished the total number of board feet of merchantable timber that was removed by the Government from the cleared areas on the above reference contract.
It is to be noted that this information was to be furnished the contractor by the Government upon the conclusion of the logging operation, and that the Government and the contractor did, by mutual agreement, agree to the removal of the timber by the Government in order that the progress of this contract might not be delayed.
Your attention is further invited to the date of our previous communication on this subject which would normally indicate sufficient time had elapsed to enable the Government to supply the desired information.

In reply to this letter, defendant refused to furnish the data, contending it had no obligation to do so.

13. (a) At the time the saw logs in the “cleared only” area were cut, the fair market value of such virgin timber cut and stockpiled for hauling to the sawmill was $50 per thousand board feet. The fair market value of such cut and stockpiled second growth timber was $40 per thousand board feet.

(b) Based on the detailed “scaling” records kept by defendant after the timber was cut, there was a total of 877,720 board feet of saw timber taken from the total project area and 771,480 from the “cleared only” area.

(c) Of the total amount of 877,720,70 percent, or 614,404 board feet, was virgin timber. Ninety-six percent of such virgin timber, or 589,827.84 board feet, came from the “cleared only” area. At $50 per thousand, the value of such timber was $29,491.39.

(d) Tbe balance of 181,652.16 board feet of tbe saw timber tbat came from tbe “cleared only” area (771,480 minus 589,827.84) .was second growth timber. At $40 per thousand, tbe value of such timber was $7,266.09.

(e) Tbe total value of all the saw timber, both virgin and second growth, taken by defendant from tbe cleared only area was $36,757.48 ($29,491.39+$7,266.09).

14. Defendant introduced no evidence in support of its counterclaim.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover in the amount of. thirty-six thousand seven hundred fifty-seven dollars and forty-eight cents ($36,757.48), and judgment is entered for plaintiff in this amount. Defendant’s counterclaim is dismissed. 
      
       There was no objection to de novo evidence at the trial in the court. The court can therefore consider all the evidence including that produced de novo. Stein Bros. Mfg. Co. v. United States, 162 Ct. Cl. 802, 337 F. 2d 861 (1963), and later decisions to the same effect.
     
      
       In these particular areas, trees less than 13 feet In height were to he left standing.
     
      
       Trees less than 8 inches in diameter at breast height are referred to as “pulpwood,” as distinguished from the 8 inch and larger trees, referred to as “saw logs.” There is no controversy between the parties about such pulpwood trees. Even under the old paragraph, they were not regarded as “merchantable timber” by defendant. Plaintiff has removed and sole! the pulpwood from the entire project area. Although defendant had a sawmill at the base, it had no facilities for processing pulpwood.
     
      
       Since it is based on an actual count and measurement of tie logs cut, this is a more accurate figure of the amount of the timber in such area than the 1,500,000 estimate made by Abbott on the basis of a 10 percent cruise, and ■which plaintiff now claims to be the amount of which it was deprived.
     