CONTRACTS-Continued

141 C. Cls.

not entitled to recover and its petition is dismissed.
S. N. Nielsen Co., 793.

LVII. Plaintiff's losses would have been the same if the change
order had not been issued. The change was within the
scope of the contract and was accepted by plaintiff.

Id.

LVIII. The decision of the Armed Services Board of Contract
Appeals, affirming the action of the contracting officer,

was not an arbitrary one, as claimed by plaintiff. Id.
United States

73(9)

LIX. This case was referred by the court to Commissioner
Marion T. Bennett under Rules 45 and 46, and his
findings of fact and recommendations are adopted by
the court. Plaintiff's suit involves a contract with the
Veterans Administration for veterans' training under the
Servicemen's Readjustment Act of 1944. It had been
determined by the Veterans Administration that a fair
and reasonable rate of tuition for the course in upholstery
conducted by plaintiff was 65 cents an hour, but this
was subsequently increased administratively to 68.8
cents an hour. Plaintiff contends that the rate should
have been 91.6 cents an hour and asserts that the
allowances determined by the Veterans Tuition Appeals
Board as fair and reasonable costs for the items of
teaching, consumable supplies, administrative expense
and advertising were erroneous and arbitrary. It is
held that the decision of the board was supported by
substantial evidence and that there is no showing of
arbitrary or capricious action on the part of the members
thereof. Plaintiff is not entitled to recover and its
petition is dismissed. Field School of Upholstery, 807.
Armed Services 105

LX. Defendant challenges the jurisdiction of the court over
the subject matter of the claim but did not present the
question to the court in the form of a motion to dismiss.
This was the procedure followed in Hemphill Schools, Inc.
v. United States, 133 C. Cls. 462, and the court there
held that it had jurisdiction under 28 U.S.C. § 1491
and that the Administrative Procedure Act did not oust
such jurisdiction. For the reasons stated in that
opinion it is held that the court has jurisdiction in the
instant case. Id.

141 C. Cls.

CONTRACTS-Continued

LXI. As against plaintiff's claim of $55,628.24 for teaching and
related personnel the board allowed $41,113.25. It is
held that the amount so allowed is fair and reasonable

for 188,765 hours of instruction paid for by the Veterans
Administration.

Armed Services

Id.
105

LXII. An allowance of $25,351.14 as the cost of consumable
supplies for the year ended June 30, 1950, was fair
and reasonable. Plaintiff's presumption of error in its
April 30, 1950 inventory is not supported by substantial
evidence. Id.

LXIII. The board properly excluded items of entertainment and
money lost in a payroll theft as not representing neces-
sary or normal costs of running the school. It also
properly excluded interest on borrowed money and
discount expense, as such items resulted primarily from
the inadequacy of operating capital. The total allow-
ance made for administrative expenses was fair and
reasonable. These expenses included allowances for
legal and accounting fees, salaries, depreciation of equip-
ment, supplies, travel, telephone and telegraph, and
certain dues and medical expenses. Id.

LXIV. An allowance of $8,935.80 for advertising was fair and
reasonable and the board properly excluded a contribu-
tion to a paralyzed veterans' association and other
items as being improperly classified as advertising
expenses. Id.

Armed Services 105

COUNTERCLAIM.

See Contracts VIII, IX; Suit for Salary XIV, XV, XVI.
DE FACTO RANK.

See Pay and Allowances XXXV, XXXVI.

DEMURRAGE.

See Just Compensation VII, VIII, IX.

DEVISE.

See Taxes XXVII, XXVIII, XXIX, XXX, XXXI.

EQUITABLE ADJUSTMENT.

See Contracts LVI, LVII, LVIII.

EQUITABLE CLAIM.

See Report to Congress I, II, III, IV, V, VI.

141 C. Cls.

EQUITABLE CONSIDERATIONS.

See Report to Congress VIII.

EQUITABLE RECOUPMENT.
See Contracts XXXII.

EXPLOSION.

See Report to Congress VII, VIII, IX.
FALSE IMPRISONMENT.

See Suit for Damages I, II, III, IV.
FEDERAL EMPLOYEES PAY ACT.
See Overtime Pay V, VI.

FIREFIGHTERS.

See Overtime Pay IV, V, VI, VII, VIII.

GENERAL BRIDGE ACT.

See Contracts XLVII, XLVIII, XLIX, L.
INFRINGEMENT.

See Patents I, II, III.

INJUNCTIVE RELIEF.
See Taxes XLI.

INSOLVENCY.

See Contracts LII.

INTENT OF CONGRESS.

See Pay and Allowances IX, XIV, XLVI.

INTEREST.

See Suit for Salary XIV, XV, XVI; Taxes XXI, XXII, XXIII.
INTERSTATE COMMERCE COMMISSION.

See Just Compensation IX.

JURISDICTION.

See Contracts VI, VII, LX; Pay and Allowances XIX, XXVIII;
Suit for Damages I, II, III, IV.

JUST COMPENSATION.

I. Plaintiff, a public utility, provided services for an area in
California which was condemned by the Government in con-
nection with a flood control project. Plaintiff's property, as
such, was not taken but it lost the customer accounts of 387
residential and 4 industrial users of its services, who were
moved out by the project. It also lost some of its facilities
which were abandoned because they could not be removed,
except at prohibitive cost. It is held that plaintiff's damages
were consequential only and that the loss was not compensable
under the Fifth Amendment. The petition is dismissed.
Southern Counties Gas Co. of California, 28.
Eminent Domain

107

141 C. Cls.

JUST COMPENSATION—Continued

II. The connection between the Government's flood control project
and plaintiff's loss is indirect. It falls within the principle
which denies compensation for loss of business. Id.

III. Although the line between a compensable and noncompensable
loss is sometimes a thin one, it is held that the instant case
falls within the principle as stated in Omnia Co. v. United
States, 261 U.S. 502, 510. Where there is consequential loss
or injury resulting from lawful governmental action the
law affords no remedy. Id.

IV. Plaintiffs, in their petition filed pursuant to Rule 13, allege
that the United States Army seized certain of their property,
including tools, machinery and papers evidencing their owner-
ship, which was located at two separate places in or near
Manila, Philippine Islands. The defendant admits the
seizure but claims that this was Government property which
plaintiffs had illegally obtained from it. An affidavit of an
Army officer who took an inventory of the property indicates
that the property at one of the locations belonged to the
defendant, but makes no mention of the property at the other
location. It is held that this and other documents submitted
by the defendant fail to establish that the Government
owned all of the property seized. Because there is an issue
as to whether the Government took any of plaintiffs' property,
for which it would be liable, defendant's motion for summary
judgment is denied. Miles Timber and Transport Corp., 237.
War and National Defense 14

V. Plaintiff leased a portion of a building in Chicago, Illinois,
which was subsequently leased in its entirety to the Govern-
ment. Plaintiff claims that remodeling work carried on by
the Government was so disturbing that it interfered with
plaintiff's use and occupancy of its leased premises. Such
activities, it is alleged, resulted in its being constructively
evicted and constituted a compensable taking under the
Fifth Amendment. It is held that plaintiff's rights were
disposed of by condemnation proceedings in Chicago and
that its claim is barred by the doctrine of res judicata. The
Advertising Checking Bureau, Inc., 430.

VI. A question of a constructive taking prior to a formal acquisition
of property is a matter which could be raised in a condemna-
tion proceeding. Failure to raise the issue puts an end to the

141 C. Cls.

JUST COMPENSATION-Continued

cause of action and cannot later be brought into litigation
by the parties. Id.

Eminent Domain ✪ 243(2)

VII. This case was referred by the court to Commissioner C. Murray
Bernhardt under Rules 45 and 46 and his findings of fact
and opinion of law, with slight change, are adopted by the
court. Plaintiff claims unpaid demurrage on 35 flat cars
which it supplied to the Marine Corps Supply Annex at
Nebo, California, to be used for the transportation of surplus
howitzers to an ordnance depot in Utah. No written order
was issued for the cars but plaintiff had been alerted that
they would be required for the shipment and it had been
the custom for the carrier in such cases to supply cars upon
an alert, with the route order to follow later. In the instant
case the cars were admitted to defendant's grounds and placed
on its own trackage. They were not used, however, as the
shipment was ultimately transported by truck. It is held
that this was an act of appropriation by the defendant and
plaintiff is entitled to recover even in the absence of an order
or of ultimate use. It is stipulated that the proper amount
of the judgment is $4,010. Union Pacific Railroad Co., 869.
Carriers 100(1)

VIII. Plaintiff gained no advantage in having the cars on defendant's
trackage as it had ample trackage of its own just outside the
reservation. When defendant's agents permitted the cars
to enter the reservation for placement, they impliedly acqui-
esced in any resulting liability. Id.

IX. The decision in favor of plaintiff is found to be in harmony with
certain cited reports of the Interstate Commerce Commission.
The demurrage liability was incurred under section D. 1. of
Rule 6, Freight Tariff No. 4. Id.

See also Contracts XLVII, XLVIII, XLIX, L.

LEAVE STATUS.

See Suit for Salary XIX, XX.

LOSS ON DEBENTURES.

See Taxes XVII, XVIII, XIX, XX.

MEASURE OF DAMAGES.

See Contracts X, XI, XII, XIII, XIV.

MERCHANT MARINE ACT.

See Suit for Salary XVII.