INDEX DIGEST

ACCRUAL BASIS.

See Taxes XLIII, XLIV.

ADMINISTRATIVE DETERMINATION.
See Transportation of Freight III.

ADMINISTRATIVE REMEDIES.

See Pay and Allowances XXXIV; Suit for Salary XI, XII. XVIII.
ALASKA RAILROAD.

See Overtime Pay I, II, III.

ALLOCATION.

See Taxes XIII, XIV, XV, XVI.

AMENDED PETITION.

See Pay and Allowances XXVI.

APPRAISAL.

See Contracts XXXVII.

ARCHITECTURAL SERVICES.

See Report to Congress IV, V, VI.
ASSIGNMENT.

See Contracts XLI, XLII, XLIII.

"BACK PAY".

See Suit for Salary VIII.

BAD DEBT.

See Taxes VIII, IX, X, XI, XII.

BELGIAN LAW.

See Contracts XLI, XLII, XLIII.

BREACH OF LEASE.

See Contracts XXXVI, XXXVII, XXXVIII, XXXIX, XL.

BURDEN OF PROOF.

See Transportation of Freight II.

CANCELLATION CHARGES.

See Taxes XXXII, XXIII, XXXIV.

CARRY-BACK.

See Taxes XXXV, XXXVI, XXXVII, XXXVIII, XXXIX.
CHANGE ORDER.

See Contracts LVI, LVII, LVIII.

925

141 C. Cls.

CHARITABLE CONTRIBUTIONS.
See Taxes XXIV, XXV, XXVI.

CHARITABLE ORGANIZATION.
See Taxes I, II, III, IV.

CIVIL SERVICE COMMISSION.
See Overtime Pay V.

CLUB DUES.

See Taxes XLVI, XLVII, XLVIII.

COMBAT COMMENDATION.

See Pay and Allowances XXXVIII.

COMPENSABLE DAMAGE.
See Just Compensation III.

CONDEMNATION.

See Just Compensation I, II, III.

CONSTRUCTIVE EVICTION.
See Just Compensation V, VI.

CONTRACT.

See Report to Congress X, XI, XII, XIII.
CONTRACTING OFFICER.

See Contracts XLIV, LIV.

CONTRACTS.

I. Plaintiff in a suit for damages and contract reformation
had asked the Government to produce a certain docu-
ment under Rule 26 of the Court of Claims Rules.
The Government refused, claiming privilege, and a
commissioner of the court was directed to make a
determination as to whether the document was, in fact,
privileged. The commissioner recommended that the
document should be produced and the court issued an
order for its production. The Government seeks recon-
sideration of that order. It is held that the document,
being an advisory opinion of a subordinate to an agency
head, is privileged, and that in this case the agency
head has the right to determine the question of privilege.
The court's earlier orders are set aside and plaintiff's
motion for production of the document is denied.
Kaiser Aluminum & Chemical Corp., 38.
Courts

464(4)

II. The sole defense to discovery under Rule 26 is that the
document sought is "privileged" as the word is known
and understood in the law of evidence. This means
"executive privilege", substantive in nature, and ex-
pressed in statutory form at 28 U.S.C. § 2507. Id.
Courts 464(4)

141 C. Cls.

CONTRACTS—Continued

III. Executive privilege, granted by custom or statute, is for
the benefit of the public, not the executive. When the
Government consents to be sued it is normally desirable
that the facts in possession of either party to the litiga-
tion be fully disclosed. However, there are recognized
exceptions when the production of the evidence would
be contrary to the public interest. Id.

IV. The administration of justice is only a part of the general
conduct of the affairs of Government and may, such
as in the instant case, be subordinate to the general
welfare. Government from its nature has necessarily
been granted a freedom from control that the citizen
does not possess.
The fact that the Government may

not be sued without its consent is such an example and
suggests that it also has favorable rights in the matter
of privilege. Id.

Courts 464(4)

V. When the head of an agency claims privilege from dis-
covery on the ground of public interest, a judicial
examination of the sought-for evidence should not be
required without a definite showing of necessity, such
as a claim of fraud or duality of interest. There is no
absolute right for judicial examination and determina-
tion of all evidence the discovery of which the executive
deemed contrary to the public interest. Id.
Courts 464(4)

VI. Under contracts with the Fort Leonard Wood Exchange
plaintiffs furnished taxicab service at the Fort and paid
to the Exchange 10 percent of their gross receipts for
the privilege. They sue the United States to recover
the amount so paid in. It is held that plaintiffs' con-
tracts were with the Exchange and not with the United
States. On the authority of Borden v. United States,
126 C. Cls. 902, the court is found to be without juris-
diction and plaintiffs' petitions are dismissed. Pulaski
Cab Co., et al., 160.

Armed Services 28

VII. When a Post Exchange contract limits liability to the
Exchange, the fact that Post Exchanges are instru-
mentalities of Government does not show the Govern-
ment has consented to be sued on such contract. Id.
Armed Services

28

141 C. Cls.

CONTRACTS—Continued

VIII. Plaintiff had a "requirements" contract with the Govern-
ment to supply crushed rock and other materials for
Navy installations on the Hawaiian island of Oahu.
It was notified to stockpile a large quantity of rock to
be used for extension of a runway, the construction
work to be done by the Seabees. The Government
then changed its plans and had the work performed
under private contract, leaving plaintiff with a large
supply of processed rock on hand for which there was no
ready or profitable market. Although the Government
contends that no specific order was issued for the rock,
it is held that sufficient authorization was given plaintiff
to make its losses legally recoverable. Plaintiff is
entitled to recover $60,895.92, less an offset in the
Government's favor of $19,908.58. Ready-Mix Con-
crete Co., 168.

IX. In an earlier decision in this case (131 C. Cls. 204) it was
held that the Government's claim based on violation
of the Walsh-Healey Act was barred by the statute of
limitations, but could be treated as a defensive measure
and used as an offset against plaintiff's claim. The
Government was entitled to withhold the sum of
$19,908.58 from plaintiff for violation of the act in the
performance of other contracts. A regulation issued
by the Secretary of Labor, 41 C.F.R. 201.1(f), did not
affect the Government's right to withhold. Id.
Limitation of Actions 41

X. Jurisdiction to hear and determine this case was conferred
on the court by a special Act of Congress. An earlier
special Act of Congress, the Act of March 23, 1933,
48 Stat. 1295, had authorized the exchange of approxi-
mately 1,420 acres of land between plaintiff's predecessor
in title and the Government, the lands to be accepted
from the plaintiff's predecessor to be determined to
be seeped and unproductive. As completed, the
transaction involved the exchange of only about 1,200
acres. Plaintiff, whose predecessor in title was the
Colonial Realty Company, contends that the Govern-
ment did not comply with the earlier act when it refused
to include in the exchange some 150 acres tendered by
plaintiff on the ground that such acreage was productive
and, therefore, not exchangeable. The suit is for an
accounting and for damages for the alleged violation
of the statute. It is held that the Government's deter-

141 C. Cls.

CONTRACTS-Continued

mination as to the productivity of the land was correct
as to all but 7.4 acres. Plaintiff is entitled to recover
the difference in 1936 sales price between this land
and the lands she would have received in exchange, or
$565. She is also entitled to recover $135.05 for loss
of water credits on these lands. Judgment is entered
for $700.05. Reynolds, 211.

United States 55

XI. Defendant was justified in withdrawing its approval of
the original proposed exchange and requesting a deter-
mination of the Secretary of the Interior as to the
quality of lands which the plaintiff offered for exchange.
The evidence is to the effect that the experts relied
upon by the Government in making its determination
were highly qualified in this particular field. Id.
United States

55

XII. Although the 7.4 acres which it is held should have been
included in the exchange were productive, they should
have been accepted because they were in a legal sub-
division which was more than 50 percent unproductive.
There was a statutory provision that where more than
50 percent of a legal subdivision was seeped and unpro-
ductive the whole of the subdivision would be regarded
as exchangeable.

United States 55

Id.

XIII. Plaintiff is not entitled to recover for delay resulting from
the investigation and determination as to the quality
of the land offered for exchange. The Secretary of the
Interior had a legal duty to take such action as he
did. Id.

United States 73 (20)

XIV. Plaintiff is not entitled to recover the difference in rental

value of the respective lands for the 1933-1957 period.
The ordinary measure of damages for breach of a con-
tract or other legal obligation is the difference in value
between what one would have received had the obliga-
tion been satisfied according to its terms, and what one
actually received. Damages are measured as of the
time when performance should have taken place. Id.
United States

74(13)

XV. Plaintiff is not entitled to recover the difference in the
sales prices of the two kinds of land in 1957 as the
result of the decrease in the value of the dollar. There