
    R. P. FARNSWORTH & CO., Inc., v. ELECTRICAL SUPPLY CO.
    No. 9138.
    Circuit Court of Appeals, Fifth Circuit.
    July 2, 1940.
    
      McCORD, Circuit Judge, dissenting.
    For former opinion, see 112 F.2d 150.
    J. C. Henriques and Gordon Boswell, both of New Orleans, La., for appellant.
    Irving R. Saal and Lawrence K. Benson, both of New Orleans, La., for appellee.
    Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
   PER CURIAM.

It is urged that our language: “Not until the wall was rebuilt and the order passed to pay the $82.80 was there a final settlement of the contract,” means that payment or an order to pay is requisite to a final settlement. We do not so hold, but we say that there must be an unconditional and final ascertainment of the amount due. So long as the United States contend that the contractor must do something more and is holding back an amount, large or small, to secure full performance, there is no final settlement of the contract. It does not matter in this case whether rebuilding the wall was really a part of the contract or not, the Treasury was so contending, and was refusing payment till it should be done. Not until July 28, 1934, was it admitted that the contract was fully performed, counter claims were waived, and the $82.80 stated to be unconditionally owing. That k was at the same time ordered paid, is not essential, but plainly shows finality.

Rehearing denied.

McCORD, Circuit Judge, dissenting.  