
    No. 262
    UNITED STATES v. A. BENTLEY & SONS CO.
    U. S. District Court, S. D. Ohio, E. D.
    No. 2178.
    Decided Oct. 16, 1923
    297. CONTRACTS — If payment under cost-plus contract was so excessive as to infer fraud, government may have relief without alleging amount paid on contract or its honest value.
    923. PLEADINGS — Federal courts may order bill of particulars in State where it obtains — Motion to make more definite and certain used in Ohio instead of bill ar particulars — Facts peculiarly known to opposite party inherently incapable of exact pleading, need not be specifically pleaded — Petition charging fraud should particularize with reasonable certainty — Allegation that government contract was sub-let without alleging that plaintiff did not consent thereto held defective.
    Attorneys — Harry M. Daugherty, Benson W. Hough, Columbus, etc., for United States; Marshall & Fraser and Brown, Hahn & Sanger, Toledo, etc., for Bentley & Sons Co.
   SATER, D. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action by the U. S. against Bentley & Sons to recover $5,000,000. The government claimed that the defendant had been overpaid this sum in the construction of Camp Sherman, at Chillicothe, Ohio, said construction being made on a cost-plus basis. A motion to make the petition more definite and certain was filed and overruled. In its opinion the court held:

l..If the amount paid by the government under a cost-plus contract for the construction of an army camp was sufficiently in excess of what it should fairly have paid to warrant an inference of fraud, the government, on adequate proof, was entitled to relief even though its petition did not allege the amount paid on the contract nor indicate what the honest value of the construction should have been.

2. In States in which the use of bills of particulars obtains, a Federal Court may order a bill of particulars when necessary to clarify the issues irrespective of whether the action is founded on contract or tort.

3. Though a bill of particulars has limited use in Ohio under GC. 11336, yet if the allegations of the petition are so general as to afford opportunity for surprise when the proof is taken, defendant may move to make the pleadings more definite and certain.

4. Where facts to be alleged are peculiarly known, or presumed to be known, by the opposite party, and inherently incapable of being exactly pleaded less certainty and particularity are required of the pleading than in ordinary cases.

5. A petition charging fraud by the contractor of an army camp constructed on the cost-plus basis should show with reasonable certainty of what the fraud consisted, how it escaped detection, and why it was not detected at the time of its perpetration or for so long a, time thereafter.

6. An allegation of petition setting up fraud by army camp contractor upon cost-plus contract charging the defendant sub-let portions of the work without alleging that the govern-men did not consent thereto, or that it was ignorant thereof, held defective.  