Philson Painting Co.

Contracts; interpretation; painting eontraet. — This case relates to a 12-month contract for the interior painting of certain Government buildings in New York City. Plaintiff claims that defendant breached the contract by failing to assign plaintiff a minimum of 1,500,000 square feet of painting to be done as required by the contract, contending that defendant failed by 1,031,087 square feet and defendant claiming it failed by 739,418 square feet in complying with contract requirement. Plaintiff asserts that the 1,500,000 square feet minimum related to and only to the painting provided for in the original contract and that the work orders issued pursuant to a change order of May 7, 1970 should be disregarded in determining the extent to which defendant failed to meet the said 1,500,000 square feet minimum. Defendant counterclaims that it overpaid plaintiff as to one aspect of the contract work. Senior Trial Judge White in a recommended decision filed November 26, 1973 (reported in full at 19 CCF para. 82704) concluded that plaintiff was entitled to an equitable adjustment based on the 739,418 square feet figure in the amount of $10,485. The change order of May 7, 1970 did not modify the provision of the original contract that the amount of painting and related work required “will be no less than 1,500,000 square feet” for the *7501'2-month period. Thus all work orders issued under the contract should be considered in determining the extent to which defendant breached the contract, As to the counterclaim, Senior Trial Judge White determined that plaintiff was overpaid $1,522.80 as a result of a Government clerical error and that defendant is entitled to recover the same. This case came before the court on a joint motion that the court adopt the recommended decision. Since the court agrees with the decision, by order of February 1,1974, it granted the parties’ motion, adopted the decision as the basis for its judgment in this case, and entered judgment for plaintiff for $8,962.20, offsetting the amount of defendant’s counterclaim against the amount of the judgment.