The opinion of the court was delivered by: CLARY
Plaintiff herein, H. Daroff & Sons, Inc., made original claim against the United States for $ 6,069.40, withheld by the Government as charges for excess material under a contract for the manufacture of 7,000 Uniforms for the Armed Services. The original basis for its claim was that the cloth furnished by the Government had shrunk excessively and for that reason it should not have been charged for the excess material needed to complete the contract because of such excessive shrinkage. At the trial plaintiff voluntarily withdrew its entire claim on this theory and substituted instead a claim for an amount representing the difference between the price paid by the Government for 630 6/8 yards of cloth, plus an agreed 10% packing, handling, etc. charge and a unit price fixed by the contract for such cloth. It alleged that the unit price charged by the contract was unreasonable and excessive and in the nature of a penalty.
From the pleadings and proof I make the following
1. On 1 December 1942, plaintiff and defendant entered into Contract No. W 669 qm-23763, for the manufacture and delivery of 7,000 Uniforms, at $ 15.86 each, or a total consideration of $ 111,020.00.
2. Defendant agreed to furnish the basic cloth for the garments, the contract containing the following pertinent provision:
'Excess Materials. Should contractor require cloth in excess of the quantities provided by the allowances stated herein, for the purpose of completing his contract, it will be furnished by the Government, f.o.b. the quartermaster depot or installation designated by the government and charged to his account at the unit prices stated below, except that for the portion of the excess cloth in irreparable rejects and/or cut parts and all other materials and findings furnished in excess of the quantities provided by the allowances stated herein, the Government will supply the same to him, f.o.b. the quartermaster depot or installation designated by the government, and will charge his account with the value thereof at the prevailing government prices, plus 10% to cover the cost of packing, handling, etc.
Cloth, Wool, Elastique, OD Dark, 18 Oz. Yard $ 5.81'
3. Plaintiff fabricated 6,970 acceptable garments for which the contract allowance was 24,889 1/8 yards. Excess cloth used above contract allowances was 1,214 1/8 yards, and for this material the Government charged the plaintiff, as follows:
630 6/8 yards at $ 5.81 (fixed contract price) $ 3,664.66
583 3/8 yards at $ 3.7445 (purchase price) $ 2,184.45
Plus 10% for handling, etc. $ 218.44
1,214 1/8 yards Total charge for excess cloth $ 6,067.55
(An additional charged for excess buttons used, plus 10% was made against the plaintiff, but no claim for ...