
    394 F. 2d 521
    WALDEMAR P. THOMSON v. THE UNITED STATES
    [Nos. 206-61 and 174-65.
    Decided May 10, 1968]
    
      
      Waldemar P. Thomson, pro se. Jerrell Babb, of counsel. Herbert Pittle, with whom was Assistant Attorney General Clyde 0. Martz, for defendant.
    Before Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton, and Nichols, Judges.
    
   PeR Curiam :

These cases were referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendations for conclusions of law under the order of reference and Eules 47(c) and 57(a). The commissioner has done so in an opinion and report filed on September 13, 1967. Exceptions to the commissioner’s opinion, findings and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on the briefs of the parties without oral argument. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover in case No. 206-61 in the sum of $5,880 and judgment is entered for plaintiff in that amount in that case. Plaintiff is not entitled to recover in case No. 174-65 and the petition is dismissed in that case.

OPINION OP COMMISSIONER

Bernhardt, Commissioner:

Case No. 206-61

1. On March 18, 1966, the court entered judgment in favor of plaintiff on the issue of liability in Case No. 206-61 (Thomson v. United States, 174 Ct. Cl. 780, 357 F. 2d 683 (1966)), and remanded it to the commissioner to determine damages pursuant to Buie 47 (c). At page 795 of its opinion the court held:

Plaintiff is entitled to recover as damages for the defendant’s breach of contract the amount stipulated in his second Bid for Services, less any appropriate reductions. [citations]. Judgment is entered to that effect. The amount of recovery will be determined under Buie 47 (c). We cannot now tell from the record, but appropriate offsets might include incidental costs of performance which Mr. Thomson may have saved, as well as sums which he may have earned or with reasonable diligence could have earned from other employment after his discharge. These and other offsets, if proven by the defendant [citations], should be taken into consideration in determining the proper amount of recovery.

2. Plaintiff’s second contract for appraisal services was to have been completed within 95 days. Had he not been terminated August 8, 1959, it is reasonable to conclude from the record and the plaintiff’s admissions at trial that he would have finished his appraisal and filed his report by August 22, 1959, 15 days earlier than the estimated time for doing so. Although there was a scarcity of appraisers at relevant times in the general area, and plaintiff testified that he would not have accepted other work as an appraiser after the termination of his contract because he felt obligated to maintain himself available exclusively for resuming work under the contract in suit if and when the Government ordered him to do so, and no other appraisal work was offered to him nor did he refuse or seek any, the Government did not establish that, in the brief period between the August 8,1959, termination and the August 22, 1959, constructive completion date, there was a reasonable likelihood that plaintiff could have become gainfully employed as an appraiser in order to mitigate his losses resulting from termination of his contract.

8. Plaintiff is not entitled to recover contract per diem for any period beyond August 22,1959, for the reason that where an appraiser contracts with the Government to perform specified appraisal services for an estimated period of time required to complete the appraisal and file a report at a stipulated per diem compensation rate, he is not entitled to recover for more than the time actually or constructively spent in completing the contract, reduced further by any incidental expenses which termination saved him from incurring.

4. Plaintiff is entitled to recover contract per diem at the rate of $75 per day for 80 days from June 2,1959, through August 22, 1959, diminished by $120 as the sole appropriate reduction representing incidental costs of performance as to stenographic services which he was obviated from using during that period because of the termination. Plaintiff is entitled to recover the net amount of $5,880 as damages for breach of contract in Case No. 206-61.

Case No. 17J¡.-65

5. Plaintiff, an experienced appraiser, customarily was paid $125 per day for appraisal services rendered away from his residence in Los Angeles. He was induced to enter into the two appraisal contracts in suit at the rate of $75 per day through the representation by the United States Attorney’s office that $75 per day was the most they could pay him. Because of this alleged misrepresentation he demands reformation of the two contracts in suit to pay him at the rate of $125 per day instead of the contract rate of $75. The United States Attorney’s office had paid other appraisers from $50 to $150 per day for their services, depending on the nature and location of the property to be appraised, the competence and experience of the appraiser, the type of appraisal, and whether the appraisal involved absence from the appraiser’s office location. $75 per day was a standard rate at that time and place to be paid to appraisers for the appraisal of farmlands comparable to those involved here. That was the rate fixed in the contracts awarded by the United States Attorney’s office to two other appraisers in 1958 to perform the same appraisals which the plaintiff contracted to perform. The plaintiff was engaged to perform the appraisals when one of the two original appraisers was terminated because of a disqualifying legal conflict. The record does not afford a reliable comparison between plaintiff and the two original appraisers, or between plaintiff and other appraisers who were compensated at a higher rate by the United States Attorney’s office for other appraisals, with respect to their relative competence, experience and worth. It is concluded that the representation by the United States Attorney’s office to the plaintiff that $75 per day was the maximum per diem they could pay him for the appraisals in question was not a misstatement of a material fact, but was merely that office’s concept of a fair price for the services solicited and consistent with prevailing contract rates for comparable services. If plaintiff was not satisfied with the rate of compensation tendered him his recourse was to decline the employment.

6. The plaintiff’s additional contention that the United States Attorney’s office misrepresented the estimated time it would take to perform the appraisals and prepare reports by fixing it at 155 days for both contracts (one was for appraising the fee, mineral and water rights in property taken, and the other to appraise flight easements over adjoining property), whereas a reasonable time estimate was 188 days, is without substance. He demands payment at $125 per day for 188 days, less appropriate offsets such, as payments received and expenses saved by termination. Plaintiff’s contracts estimated a total of 155 days through the filing of a report, and his constructive performance time was 140 days. Appraiser Miles’ contracts provided an estimated 165 days. Plaintiff’s claim to entitlement to be paid for 188 days because of the Government’s misrepresentation founders on the fact that he performed — or would have performed if he had not been terminated — in 15 days less time than his contracts called for. He has not proved that 188 days was a reasonable time for performance, or that the Government misrepresented the time estimate by fixing it at 155 days. Moreover, plaintiff has not proved that the estimate of 155 days originated with the Government.

7. The plaintiff finally contends that he was entitled to be paid at the rate of $125 per day for an estimated 85 days he alleges he was deprived of employment in attending conferences and trial sessions as an expert witness. There are several reasons why this is -unsound. Despite the plaintiff’s testimony that he intentionally kept himself unemployed and available to discharge his contract obligations, the record shows that he did have certain conflicting assignments in August, September and October, 1959, which would have prevented him from performing the contracts in suit on those occasions if he had been ordered to. Again, the condemnation actions to which the appraisal contracts were related came to conference and trial at various times from August 1959 to July 1964, and it is not credible that plaintiff would have remained voluntarily unemployed for that entire period awaiting a call to duty. Moreover, there is no legal propriety to plaintiff’s theory. Where an appraiser contracts with the Government to perform specified appraisals in an estimated period of days at a stipulated rate of per diem compensation, plus the same rate of compensation for subsequent services in appearing at pretrial conferences and trial sessions as an expert witness to support his appraisal, there is no enforceable agreement or custom that the Government will call upon him for such subsequent services, for other factors might intervene to preclude the need for such services, such, as settlement of the related case, or rendition of an appraisal report unsatisfactory to the Government. In such a circumstance where the contract of employment is terminated prior to completion of the appraisal report, the appraiser is not entitled to damages for breach of contract for that portion of prospective compensation attributable to the possibility that he might have been called to attend pretrial conferences and trial sessions as an expert witness, even though an appraiser who is engaged to render an appraisal report in connection with a prospective condemnation trial is usually called as a witness at such trial and paid therefor. The obligation of the Government to pay for such subsequent services is incurred only when, as and if the appraiser renders them.

8. In rendering his Statements of Services to the Government for payment purposes in each of the two contracts the plaintiff certified that the bills based on a total of 116 days at $75 per day were “true and correct and fair.” He accepted the sum of $4,500 for 60 days at the rate of $75 per day under the first contract, and this constitutes an accord and satisfaction for that portion of the present claim, since it has not been established that the Government misrepresented either the proper rate of per diem or the correct estimate of time.

9. Plaintiff is not entitled to recover under Case No. 17A-65.

Findings or Fact

IntroÓMotion

1. In 1959 the United States Attorney’s office in Los Angeles was charged with litigating two condemnation cases (C.A. Nos. 1836-ND and 1904-ND) brought to acquire land for the United States Naval Air Station at Leemore, California. C.A. No. 1836-NI) required the appraisal of the fee, plus mineral and water rights, of some 35 parcels of land. C.A. 190A-ND required the appraisal of flight easements over adjoining property. In response to the invitation of the United States Attorney, the plaintiff in January 1959 submitted a Bid for Services in which he agreed to perform the appraisal services for C.A. No. 1836-ND at $75 per day for an estimated 60 days. On February 19,1959, the plaintiff was authorized to proceed. He did so on March 4 and, through June 1, 1959, had worked 60 days for which he was paid the sum of $4,500 at the agreed rate of $75 per day, which sum he accepted in complete payment for the period covered, although the job was approximately 15 days short of completion. Plaintiff’s Statement of Services for billing purposes in the amount of $4,500 certified this to be “true and correct and fair.” This Bid for Services, which we shall call the “first contract”, is not directly in issue in the Case No. 206-61 which is first under consideration.

2. On February 3,1959, the United States Attorney invited plaintiff to submit a Bid for Services for appraising flight easements over adjoining property in connection with C.A. No. 1904-ND. Plaintiff’s Bid for Services dated May 2,1959, was submitted providing for a fee of $75 per day for an estimated 95 days, of which approximately 15 days represented the estimated time it would take him to complete his obligations under the first contract. Pursuant to what this court later decided was sufficient authorization (Thomson v. United States, 174 Ct. Cl. 780, 357 F. 2d 683 (1966)), the plaintiff worked 55 days under what we shall term his “second contract” in the period from June 2 through July 27, 1959. On or about August 8, 1959, he received instructions from the United States Attorney not to render further services until directed in writing to do so. No dissatisfaction with the quality of plaintiff’s services was expressed then or later. Plaintiff received no directions to resume, and on or about August 22, 1959, filed his claim for 116 days at $75 per day, certifying this to be “true and correct and fair”. Both the United States Attorney’s office and later the General Accounting Office declined to honor the claim, whereupon plaintiff filed Case No. 206-61 in this court. On March 18, 1966, the court entered judgment for plaintiff on the issue of liability (Thomson v. United States, supra), and at page 795 ruled that “Plaintiff is entitled to recover as damages for the defendant’s breach of contract the amount stipulated in his second Bid for Services, less any appropriate reductions.” The court defined appropriate reductions to include “incidental costs of performance which Mr. Thomson may have saved, as well as sums which he may have earned or with reasonable diligence could have earned from other employment after his discharge, as proven by the defendant.” The case was then remanded to the commissioner to determine the amount of recovery under Buie 47(c), which is to be the subject of findings 5 through 8 in this report.

3. (a) In the meantime, on June 1,1965, the plaintiff filed his petition in Case No. 174-65 in this court which, as amended June 9,1967, seeks recovery of $23,500 for his services in both contracts less (a) the $4,500 already paid him for the first contract, and (b) the prospective judgment in Case No. 206-61 for services in the second contract. The substance of the claim for $23,500 is that, had the United States Attorney not misrepresented to plaintiff that the combined job would take 155 days (60 days under the first contract and 95 days under the second), and that he (the United States Attorney) was authorized to pay a maximum fee of only $75 per day to appraisers, the plaintiff would have bid on the basis of $125 per day for 188 days, which he says represents, respectively, his standard rate for such services, and a more realistic estimate of time. Plaintiff’s amended petition in Case No. 174-65 asks in addition for $10,625, representing compensation at the rate of $125 per day for an estimated 85 days which plaintiff contends he would have spent in pretrial conferences and trial attendance had the Government not deprived him of the opportunity by terminating his services.

(b) Subsequent to filing his exceptions to the commissioner’s opinion and findings in Case 206-61 the plaintiff moved to amend his petition in that case to allege a new theory of recovery similar to that which he later alleged in Case No. 174-65 as described in the preceding paragraph (a) of this finding. This was the first time plaintiff had presented this theory of recovery either administratively or in the court. The court denied plaintiff’s motion on March 8, 1965. On June 1, 1965, the petition in Case No. 174-65 was filed, and on July 19, 1965, the court denied without prejudice defendant’s motion to consolidate both petitions for argument. Thereafter on March 18, 1966, the court entered judgment for plaintiff on liability on Case No. 206-61. At trial on March 8,1967, of the remaining damage issue in Case No. 206-61 and all issues in Case No. 174 — 65, much of the evidence relevant to the latter was not relevant to the liability aspects of Case No. 206-61.

4. Trial in Case Nos. 206-61 and 174-65 was held on March 8, 1967. Trial in Case No. 206-61 was restricted to determination of damages, while trial in Case No. 174-65 mingled aspects of both liability and damages. It was agreed by counsel that the record of the earlier trial on the liability issue in Case No. 206-61, as well as the record of the last trial in both cases, would be available interchangeably in the preparation of requests for findings of fact, subject of course to the finality imposed on facts found by the court in Thomson v. United States, supra. The facts found by the court in Case No. 206-61 are, therefore, incorporated by reference and will not be repeated herein, except to the extent necessary to provide a factual basis for plaintiff’s demand for reformation of the contracts in Case No. 17N65.

Case No. W6-61

5. The estimated 95 days allowed by plaintiff’s second contract commenced June 2,1959, and would have expired September 6, 1959. By about August 7, 1959, plaintiff had assembled all of the field data upon which his appraisal report was to be based, and had commenced to dictate his report into a machine. Assuming the correctness of plaintiff’s testimony that he would have completed the dictation of his report in five or six days, and that it would have taken a typist ten days to type it up (an estimated 120 pages), it is reasonable to conclude that plaintiff’s appraisal report in the combined cases would have been ready for filiug by August 22, or 80 working days (exclusive of July 4, when he did not work) after the commencement of work on June 2, 1959. Accordingly, under the recovery formula of the court plaintiff could not recover compensation for that part of his second contract involving the preparation of his appraisal report beyond August 22,1959, regardless of the fact that he would then have finished 15 days ahead of the estimated contract time of 95 days. The 80 days does not include the time which, under the contract, the plaintiff could have anticipated participating in pretrial conferences or in trial attendance as a witness, as to which there is no way of estimating the time to be required. There is no custom assuring that an appraiser wbo prepares an appraisal report as an aid in litigation will be called upon to participate in pretrial conferences or testify at trial, for bis report may be unsatisfactory, or tbe case settled, or testimony may be considered unnecessary. However, it is usually intended that an appraiser engaged in connection with a condemnation action will testify at trial if needed, and an appraiser is not usually discharged before completing his contract, except for cause. Defendant’s Exhibit 4 illustrates such an occasion with reference to plaintiff’s predecessor appraiser in C.A. No. 1836-ND whose services were terminated after a few days of performance (see finding 9, infra).

6. With the exception of keeping from three to six previously scheduled appointments to interview individuals in August, the plaintiff performed no additional work for the defendant in connection with the subject condemnation after receiving notice to stop work on August 8, 1959. The record does not permit a finding as to the dates of the three to six appointments in August, nor the time they consumed, nor whether they were accomplished before or after August 22, the constructive completion date of plaintiff’s appraisal report (see finding 5).

7. On June 10,1959, plaintiff advised defendant in writing that he would not be available for contract performance for three days in the week of August 24-28, or three days in the week of August 81-September 4, or for the 17-day period from September 31 (sic) to October 16,1959. During at least part of these interludes he was obligated to the United States Treasury in connection with appraisal duties. Plaintiff testified that he held himself exclusively available from August 8, 1959, to December 20, 1959, to perform services under the contracts in suit, that during that period he neither received nor solicited other assignments, and that he would not have accepted any other assignments if he were given the opportunity because he felt himself obligated to remain totally available to complete performance of the contracts whenever the defendant needed him. This statement is inconsistent with the evidence, viz: (a) in April and March 1959 plaintiff was engaged in an unrelated appraisal for 24 days after he had started his performance of the first contract; (b) on July 23, 1959, plaintiff advised defendant in writing that “I cannot work on this particular job all the time as I have other work to do * * and requested that the United States Attorney suggest his name to the Lands Division of the Department of Justice as an expert witness in another pending case involving land appraisal; (c) for six days in August and 17 days in September and October 1959 he was to be engaged in unrelated appraisal matters as stated above; and (d), it is not reasonable to imagine that plaintiff could justifiably have refrained from accepting other employment for the period from August 4, 1959, to July 21,1964, during which it is indicated in Plaintiff’s Exhibits 21 through 28 that pretrial conferences and trial sessions were held in the condemnation cases. Moreover, there is no evidence that the plaintiff at any time requested the United States Attorney for permission to seek other appraisal employment that might conflict with completion of the subject appraisal. Nor is there any evidence that defendant ever rescinded its stop order of August 8, 1959, to plaintiff, or ever indicated to plaintiff subsequent to termination that his services would be required to complete the appraisal report, participate in pretrial conferences in the condemnation proceedings, or appear as a witness at the condemnation trials. Evidence indicates that another appraiser (Miles) attended pretrial conferences and trial sessions for no more than 183 days (and probably much less) at various times scheduled from August 4, 1959, to July 21, 1964, but the number of days is not susceptible to accurate determination from the record.

8. Had the defendant’s notice to stop of August 8, 1959, not been issued and the plaintiff had completed his appraisal report for filing, he would have paid a parttime stenographer approximately $120 for transcribing his dictated report at the rate of $1.50 per hour for ten working days and helping in the preparation of a map to accompany the report. The report would have covered appraisals under both contracts. While plaintiff had undisclosed hotel expenses while he was performing his appraisal investigation in the field from June 2 to approximately August 7, 1959, thereafter his out-of-pocket expenses of performance would have been limited to the stenographic services mentioned above, for he main-tamed bis offices in bis living quarters in San Francisco and bad no other assistance or proven costs. The $120 stenographic expense is the only appropriate reduction of amounts which would have been due plaintiff for the interrupted portion of his contract performance from the time of the interruption on August 8, 1959, through the August 22, 1959, constructive date of probable completion as computed in finding 5.

9- At relevant times there was a scarcity of land appraisers in Southern California. Demand exceeded supply. It is concluded that employment was available if sought. It is not reasonable to conclude, however, that such employment would have been available to plaintiff for the period from August 8 to August 22, 1959, because of the shortness of time, and it is not proven that plaintiff was offered or refused any such employment in that period, nor did he seek any.

Oase No. 17J¡.-65

10. Regardless of whether plaintiff or defendant supplied the estimates of 60 and 95 days in the respective contracts in suit for the performance of the appraisals, the collective total of 155 estimated days exceeded the 140 days which the computation in finding 5, supra, reconstructs to be the time within which the plaintiff, on the basis of his own performance up to the time of termination and from his own testimony with respect to time beyond termination for completion, would have completed his appraisal duties in both contracts and filed his report. There is no reason to believe that if plaintiff’s contracts had provided for a longer time for performance that his time of actual and reconstructed performance would have exceeded 140 days without deliberate procrastination.

11. Plaintiff’s customary compensation for appraisals outside of Ms San Francisco headquarters was at the rate of $125 per day. He had done and was doing appraisal work for the United States Treasury at that rate. Unknown to plaintiff the United States Attorney’s office paid from $50 to $150 per day for appraisal services at relevant times, depending on the nature and location of the assignments, the particular skills and experience of the appraiser, and whether the appraiser’s services were away from home. Plaintiff’s qualifications as an appraiser seemed impressive enough on paper, but there is no basis in the record for comparing his qualifications to those of other appraisers, or to conclude that he was more experienced or capable than Messrs. Miles and Andrews, except that he was more qualified than Mr. Miles to appraise mineral rights. Plaintiff’s own testimony as to his comparatively superior ability and worth in relation to average appraisers is not sufficient evidence to prove the allegation. The rate of $75 per day was a common rate of compensation paid by the United States Attorney’s office for appraisal of farmlands such as those involved in the cases in issue, and was the same as that contracted to be paid to Messrs. Miles and Andrews for identical services. There is no evidence that plaintiff could not have refused to accept the appraisal contracts in suit at the proffered rate of $75 per day if he was not satisfied. Nor is the plaintiff’s allegation that in his contract negotiations with the United States Attorney the latter misrepresented that the highest rate he was authorized to pay was $75 per day corroborated by any evidence other than plaintiff’s testimony to that effect. However, the defendant’s witness who participated in the contract negotiations with plaintiff did not categorically deny the plaintiff’s contention, but said that $75 was a standard per diem at that time for appraising farmland.

12. It was defendant’s intention in engaging plaintiff’s appraisal services that he should file an appraisal report, attend pretrial conferences, and testify at condemnation trials, all at the rate of $75 stated in the contract. (Cf. finding 5, supra). Time was of the essence because the District Court was pressing the United States Attorney to bring the condemnation cases to trial by September 1, 1959, and plaintiff was under the justified impression that the appraisal work had to be completed appreciably prior to trial date. Plaintiff had advised defendant on July 28, 1959, that he could be ready to testify by September 8 if he worked every day until then. It is indicated in Plaintiff’s Exhibits 21 through 28 that pretrial conferences and trial sessions as to the two condemnation cases were scheduled at various times for the period from August 4,1959, through July 21,1964, for a total of approximately 133 days.

CONCLUSION op Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover in Case No. 206-61 in the amount of $5,880, for which judgment is entered, and that plaintiff is not entitled to recover in Case No. 174-65 and the petition is dismissed. 
      
       On or about July 31, 1959, plaintiff billed the Government for 56 days at $75 per day from June 1 through July 27, 1959, but it is observed (finding 1) that he was paid under the first contract $4,500 for 60 days through June 1, so his period of unpaid time under the second contract commenced June 2 instead of June 1, 1959, and his bill submitted on or about July 31 should have been for $4,125 (55 days at $75) instead of $4,200 (56 days at $75) as submitted. Plaintiff’s testimony at page 9 of the transcript that his billing was in error does not overcome the force of the exhibits. Plaintiff also worked on the second contract from July 28 through August 8, 1959, when It was terminated.
     
      
       By August 4, 1959, the date of the stop order received by plaintiff August 8, plaintiff claimed to have worked 116 days (60 days under the first contract plus 56 days under the second contract), and to have been prevented from working an additional 39 days to complete the second contract in the allotted 95 days. Having been paid $4,500 on August 27, 1959, for services through June 1, 1959, under the first contract, the plaintiff later submitted a claim to the General Accounting Office for $7,125, representing 95 days at $75 per day under the second contract, of which 95 days plaintiff had worked 56 days and had been ready, willing and able to work for the remaining 39 days.
     
      
       Note that although plaintiff moved at trial for permission to amend his petition to ash for compensation for 175 days, his amended petition seeks compensation for 188 áays. The 155 day estimate may be compared to the contract awarded to another appraiser (Miles) for 165 days for the same appraisal, as reported in finding 9, infra.
      
     
      
       under the circumstances, It is not clear that Case No. 174-65 is subject to dismissal for splitting the cause of action into two proceedings, as that subject is discussed in Moore’s Federal Practice, paragraph 0.410[2j. Had judgment been entered in Case No. 206-61 prior to the filing of the petition in Case No. 174-65, the latter would have been subject to dismissal for the reason assigned.
     
      
       This assumed -working every day except July 4, an assumption supported by plaintiff’s itemized bill in evidence as Defendant’s Exhibit 32, in which plaintiff certifies that he worked every day for 56 days from June 2 through July 27, 1959, except July 4.
     
      
       Curiously, plaintiff’s Bid for Services offered to deliver his appraisal report 150 days following authorization to proceed with the second contract, although It was anticipated that the condemnation conferences and trials which he would attend as an expert would commence early in the Fall of 1959.
     
      
       Plaintiff’s Exhibits 21 through 28 are an unreliable source of data for making this estimate, for they do not reliably establish the number of days actually spent by appraiser Miles in attending eventual pretrial conferences- and trial sessions in the condemnation cases.
     
      
       Although plaintiff testified that during pre-contract negotiations the defendant’s representative inserted the 60-day performance period in plaintiff’s Bid for Services, on November 4, 1959, in a letter to defendant, the plaintiff stated as to the first contract bid: “I filled out in the amount of 60 days.” On January 16, 1959, plaintiff wrote to defendant that he would try to perform the first contract in 60 days, although he had been told by another appraiser that it would take from 75 to 100 days for land value alone, exclusive of mineral and water rights. Thus plaintiff was not unaware that performance might exceed the time specified in his first contract, so he could not have relied exclusively on defendant’s representations but probably reacted to the defendant’s expressed desire to expedite performance because of the imminence of trial.
     
      
       Plaintiff’s Exhibits 21 through 28 indicate that, although Mr. Miles’ contract called for payment at the rate of $75 per day, from July 20, 1959 to June 16, 1964, the United States Attorney authorized him to be paid $100 per day for attending pretrial conferences and trials for a total of 95 days in connection with C.A. Nos. 1836-ND and 1904-ND, and $75 per day for 20 days for a period scheduled to start August 4, 1959. There is no explanation in the record for the increase of Mr. Miles’ contract rate from $75 to $100 per day, nor is there an accurate record of payments to Mr. Miles for services rendered at pretrial conferences and trials.
     
      
       The number of actual conference and trial days cannot be reliably derived from Plaintiil’a Exhibits 21 through 28, which are merely authorizations by the united States Attorney for appraiser Miles to be paid for future attendance at pretrial conferences and trial sessions.
     