
    HEID BROTHERS, INC., v. THE UNITED STATES
    [No. F-126.
    Decided March 5, 1928]
    
      On the Proofs
    
    
      Counterclaim; requirement of proof; purchase of coal; test of samples; failure to comply loith contract in talcing samples; payment of full contract price. — In seeking recovery against a plaintiff in the Court of Claims by way of counterclaim, the Government must establish its right to recover by proper and sufficient evidence, and where a contract to furnish the Government coal required the same to be of certain standard, the test to be made from samples, collected and prepared, if the contractor so elected, in his presence, and the evidence is that the contractor was given no notice or opportunity to be present when the samples were taken, and was not notified that any samples had been taken until a year after the Government had accepted the coal and paid therefor the price payable for coal up to standard, the Government can not recover the difference in price provided for in the contract for coal below the standard fixed.
    
      The Reporteras statement of the case:
    
      Mr. M. Walton Hendry for the plaintiff.
    
      Mr. John E. Hoover, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation organized under the laws of the State of Texas and has been continuously for a period antedating the dates of the transactions involved in this case engaged in the forage and fuel business, having its principal place of business at El Paso, Texas.
    II. On June 20, 1917, the United States, represented by Captain S. B. Belden, Quartermaster Corps, U. S. A., entered into a contract with the plaintiff to furnish bituminous coal f. o. b. cars at Fort Huachuca, Arizona, from July 1, 1917, to June 30, 1918, and for all coal delivered during July, August, and September, 1917, the plaintiff was to receive $14 a ton of 2,000 pounds, and for all coal delivered during the balance of the fiscal year ending June 30, 1918, $15.50 a ton of 2,000 pounds.
    III. The specifications and proposals for coal for the Army stations in the United States, prepared in the office of the Quartermaster General, U. S. Army, Washington, D. C., February, 1916, attached to and made a part of the contract of June 20, 1917, provided in part as follows:
    ' “ 23. Oontraotor privileged to be present. — The contractor shah have the privilege of having a representative present to witness the collection and preparation of the samples to be forwarded to the laboratory.
    ífc H* H* H»
    “ 25. Laboratory and method.- — The samples shall be immediately forwarded to the Bureau of Mines, Department of the Interior, Washington, D. C., and they shall be analyzed and tested in accordance with the method recommended by the American Chemical Society and by the use of a bomb calorimeter. Such analyses and tests shall be made at no cost to the contractor. The result shall be reported by the Bureau of Mines to the post quartermaster in not more than fifteen (15) days after the receipt of the sample — if more- than one sample is received from the same delivery, the fifteen (15) days shall date from the receipt of the last sample taken.
    ❖ Hi ❖ Hi Hi
    “ 35. Determination of price. — The Government hereby agrees to pay the contractor within 30 days after the completion of an order or delivery for each ton of 2,000 pounds of coal delivered and accepted in accordance with all the terms of this contract the price per ton determined by taking the analysis of the sample, or the average of the analysis of the samples if more than one sample is analyzed, collected from the coal delivered upon the basis of the price herein named, adjusted as follows for variations in heating value, ash, and moisture from the standards guaranteed herein by the contractor (see paragraph 13 in Appendix for exception to this method):
    [Here follow provisions for adjustments.]
    *****
    
      “-44. Payment shall be made within thirty (30) days after the completion of an order and shall be based on the contract price, provided the coal is not subject to rejection.”
    Form A, which was attached to and made a part of the specifications and proposals and which formed a part of the contract, required that the coal to be furnished by the plaintiff for the use of the Government at Fort Huachuca, Arizona, should be of a standard equal to 13,500 B. t. u.’s. (British thermal units).
    IY. During the months of July, August, and September, 1917, the plaintiff delivered to the defendant at Fort Hua-chuca, Arizona, 899.8 tons of coal at the contract price of $14 a ton, a sample of which was forwarded by the quartermaster at Fort Huachuca, Arizona, to the Bureau of Mines, Washington, D. C., for an analysis under the provisions of the contract. The sample was analyzed by the Bureau of Mines and a copy of its report showing the analysis was transmitted to the quartermaster at Fort Huachuca, Arizona, on October 31, 1917, but it was not received by that officer. On September 20, 1917, the plaintiff was paid therefor the sum of $12,597.20. On September 24, 1918, pursuant to a request contained in a letter of September 19, 1918, Van H. Manning, Director, Bureau of Mines, Washington, D. C., forwarded to the depot quartermaster, El Paso, Texas, a duplicate report of the analysis of October 31, 1917, which analysis disclosed that the coal delivered by the plaintiff only contained 12,490 B. t. u.’s. On September 30, 1918, the depot quartermaster, El Paso, Texas, advised the plaintiff that the coal so delivered contained 12,490 B. t. u.’s only instead of 13,500 as required by the contract; that on September 20, 1918, it had been paid, by check No. 10,645, $14 a ton for the 899.8 tons of coal delivered at Fort Hua-chuca, Arizona; that due to the difference in B. t. u.’s this was an overpayment of $1.39 a ton on 899.8 tons, or $1,250.72, and requested the plaintiff to remit accordingly,, which the plaintiff refused to do. The quartermaster at El Paso, Texas, advised the Auditor for the War Department that the plaintiff had been overpaid $1,250.72 under the contract of June 20, 1917.
    The plaintiff was not given notice or opportunity to be present when the said samples were taken, and was not notified that any samples had been taken until a year after the said coal was accepted and paid for by the defendant.
    Y. On March 20, 1918, the plaintiff entered into contract No. 107 with the defendant for furnishing alfalfa hay for delivery at Fort Bliss, Texas. The plaintiff delivered all of the hay called for under sa,id contract, which was accepted and used by the defendant: Under this contract the plaintiff was paid all of its claim except $1,398.97. By settlement certificate No. 110,961, dated May 20, 1921, the sum of $1,250.72, claimed by the defendant to be owing to it as an overpayment made under the contract of June 20, 1917, was deducted from the above sum, leaving a balance of $148.25, for which amount Treasury Warrant No. 56,399 was transmitted to the plaintiff. This Treasury warrant the plaintiff still holds but refuses to cash.
    The court decided that plaintiff was entitled to recover $1,250.72.
   Moss, Judge,

delivered the opinion of the court:

During the months of July, August, and September, 1917, plaintiff, Heid Brothers, delivered to the defendant under a contract dated June 20, 1917, 899.8 tons of coal at the price of $14 per ton, and on September 20, 1917, plaintiff was paid therefor the full contract price. Thereafter plaintiff was advised by letter from the War Department, dated September 30, 1918, that the quality of the coal furnished did not meet the standard of requirement provided in the contract, and plaintiff was requested to remit the sum of $1,250.72, as the difference in price between the coal furnished and that provided for in.the specifications. Plaintiff refused to comply with this request, and thereafter defendant deducted said sum from amounts due plaintiff under a contract for the delivery of alfalfa hay, and still retains same. This suit is for the recovery of said sum.

The contract herein provided that payment should be made within 30 days after the completion of an order, “ provided the coal is not subject to rejection.” The delivery of the coal in this case was completed sometime in the month of September, 1917, the exact date not disclosed, and full payment was made on September 20, 1917. The coal was consumed by the Government, and plaintiff received no intimation of any defect in the quality of same until September 30,1918, more than a year after the delivery and payment.

Tbe specifications and proposal for furnishing this coal to the Government, made a part of the contract, contained the following provision: “ The contractor shall have the privilege of having a representative present to witness the collection and preparation of the samples to be forwarded to the laboratory.” The contract provided elaborate specifications for the collection and preparation of samples, twelve specific directions being set forth in detail. Plaintiff is suing for the balance due on the hay contract, amounting to $1,250.72, to which there is no defense. In seeking a recovery against plaintiff, the Government has the burden of establishing by proper and sufficient evidence its right of recovery, and it has failed to do so. Plaintiff was given no opportunity to have a representative present when the samples were collected and prepared, and no evidence was offered to prove that the samples used in the analysis were taken in accordance with the provisions of the contract. The coal was delivered and paid for, and was consumed by the Government, and the Government sustained no damage whatever by reason of the alleged slight deviation from the specifications in the ash content of the coal. Defendant’s claim is without merit. Its contention is inequitable and unfair, and plaintiff is entitled to recover, and it is so ordered.

Graham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  