G. S. Briggs & Co. v. United States

delivered the opinion of the court:

This suit grows out of a contract for the delivery by plaintiff of 15,000 railroad ties at $1.25 per tie, to the supply officer, at the naval operating base, Hampton Hoads, Va. The ties were delivered to and accepted by the defendant. Thereafter the representative of the defendant claimed that a portion of the ties was not of the kind called for by the contract and the plaintiff agreed to accept the ties that were returned to it. Approximately 6,211 were shipped to it. The ties were received and afterwards sold at a price less than the contract price to the Norfolk & Western Railroad, the Pennsylvania Railroad, and the representatives of the War Department. Plaintiff is not entitled to recover any loss sustained by this resale.

The Government retained and used 9,176 ties, for a portion of which it paid the contract price, and for the remainder 66.36 cents per tie, under a settlement with plaintiff. Plaintiff received the amount paid under this settlement under protest and reserved its rights, and it is entitled to recover *360the difference between the sums so paid and the contract price on 9,176 ties (Finding V).

Judgment should be entered for the plaintiff in the sum of $3,699.39, and it is so ordered.