B-136146, AUG. 5, 1959

B-136146, AUG. 5, 1959

TO MRS. MARY E. RING:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1959, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR $720 INCIDENT TO THE OCCUPANCY OF YOUR HOUSE BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, UNDER LEASE NO. DA-49-080-ENG-3333, DATED DECEMBER 1, 1956, AS AMENDED.

THE LEASE PROVIDED FOR A TERM BEGINNING DECEMBER 1, 1956, AND ENDING JUNE 30, 1957, PROVIDED THAT, UNLESS AND UNTIL THE GOVERNMENT SHOULD GIVE NOTICE OF TERMINATION IN ACCORDANCE WITH PARAGRAPH 12, THE LEASE WOULD REMAIN IN EFFECT UNTIL JUNE 30, 1967. PARAGRAPH 12, HOWEVER, GRANTED THE GOVERNMENT THE RIGHT TO TERMINATE THE LEASE AT ANY TIME BY GIVING 30 DAYS WRITTEN NOTICE TO THE LESSOR PRIOR TO THE END OF ANY GOVERNMENT FISCAL YEAR. ON MAY 11, 1957, YOU ACKNOWLEDGED RECEIPT OF THE GOVERNMENT'S CANCELLATION NOTICE EFFECTIVE AS OF JUNE 30, 1957, AND YOU IN TURN ISSUED TIMELY WRITTEN NOTICE TO THE GOVERNMENT THAT RESTORATION WOULD BE REQUIRED. IT IS ADMINISTRATIVELY REPORTED THAT THE PREMISES WERE VACATED BY THE GOVERNMENT PRIOR TO JUNE 30, 1957, THAT ON THIS DATE YOU MET WITH THE GOVERNMENT'S REPRESENTATIVE AT THE HOUSE BUT REFUSED TO DISCUSS RESTORATION OF THE LEASED PREMISES UNTIL YOU HAD CONSULTED WITH YOUR ATTORNEY; THAT WHILE ON JULY 8, 1957, YOU WERE REQUESTED TO SUBMIT A LIST OF REPAIRS YOU CONSIDERED NECESSARY FOR RESTORATION OF THE PREMISES, NO FURTHER COMMUNICATION WAS RECEIVED FROM YOU UNTIL AUGUST 13, 1957. SUPPLEMENTAL AGREEMENT NO. 1, EXECUTED BY YOU ON SEPTEMBER 23, 1957, YOU AGREED TO ACCEPT $269 IN LIEU OF PHYSICAL RESTORATION OF THE HOUSE AND TO ACCEPT SURRENDER OF THE PREMISES AS OF JUNE 30, 1957, IN ITS CONDITION AT THAT TIME, AND TO ASSUME THE CUSTODY, CARE, AND CONTROL THEREOF, THE GOVERNMENT THEREAFTER TO BE RELIEVED OF ANY AND ALL RESPONSIBILITY THEREFOR. IN THIS SAME INSTRUMENT YOU RELEASED AND FOREVER DISCHARGED THE UNITED STATES FROM ANY AND ALL MANNER OF ACTIONS, LIABILITY AND CLAIMS FOR DAMAGES, AND RESTORATION OF THE LEASED PREMISES EXCEPT THE FOLLOWING:

TABLE

A. OCTOBER 1956 RENTAL. $140.00

B. NOVEMBER 1956 RENTAL. 140.00

C. JULY 1957 RENTAL FOR SHOWING THE

PROPERTY AND TAKING CARE OF

DAMAGES. 140.00

D. TIME AND MENTAL AND PHYSICAL

STRAIN TO WHICH OWNER WAS

SUBJECTED, TOGETHER WITH TELEPHONE,

ETC. 300.00

TOTAL $720.00

BY SETTLEMENT OF JANUARY 16, 1958, YOU WERE ALLOWED $70, REPRESENTING ONE -HALF MONTH'S RENTAL FOR JULY 1957, AS ADMINISTRATIVELY RECOMMENDED. THE BALANCE OF YOUR CLAIM WAS DISALLOWED AND THE SETTLEMENT ACTION WAS SUSTAINED IN OUR DECISION OF MAY 28, 1958, TO YOU.

SINCE THE GOVERNMENT DID NOT OCCUPY YOUR HOUSE PRIOR TO DECEMBER 1, 1956, THE EFFECTIVE DATE OF THE LEASE, AND SINCE THE LEASE CONTAINS NO PROVISION FOR ANY PAYMENT FOR ANY PERIOD PRIOR THERETO, THERE IS NO LEGAL BASIS FOR PAYMENT OF THE RENT CLAIMED UNDER ITEMS (A) AND (B) OF YOUR CLAIM. THE INSPECTION OF THE HOUSE IN THE MONTH OF OCTOBER 1956 WAS MERELY PRELIMINARY TO THE LEASE AGREEMENT AND YOU WERE PUT ON NOTICE THAT THE INSPECTING OFFICERS HAD NOTHING TO DO WITH THE ACTUAL LEASING OF YOUR HOME. FURTHER, YOU WERE INFORMED THAT IF ANOTHER LESSEE DESIRED TO RENT THE HOUSE YOU WERE UNDER NO OBLIGATION TO HOLD SAME FOR THE GOVERNMENT. IN ANY EVENT, THE WRITTEN LEASE ALONE FIXED THE OBLIGATIONS AND RIGHTS OF THE PARTIES AND ANY STATEMENT THAT MAY HAVE BEEN MADE, OR ANY UNDERSTANDING YOU MAY HAVE HAD AT THAT TIME, CANNOT OPERATE TO VARY THE PLAIN INTENTION OF THE PARTIES AS EXPRESSED IN THE LEASE. HENCE, SINCE THE PAYMENT OF ANY ADDITIONAL RENTAL NOT PROVIDED FOR IN THE LEASE WOULD OPERATE AS A MODIFICATION OF THE LEASE PREJUDICIAL TO THE INTERESTS OF THE GOVERNMENT, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL RENTAL FOR THE MONTHS OF OCTOBER AND NOVEMBER 1956.

AS TO ITEM (C), YOU CONTEND, IN EFFECT, THAT YOU ARE ENTITLED TO A FULL MONTH'S RENT FOR THE MONTH OF JULY 1957, SINCE YOU COULD NOT TAKE CARE OF THE REPAIRS IN LESS TIME THAN 30 DAYS. IN ACCEPTING THE NOTICE OF CANCELLATION OF THE LEASE EFFECTIVE AS OF JUNE 30, 1957, AND SURRENDER OF THE BUILDING WITHOUT ANY RESERVATION FOR RENT UNTIL THE PREMISES WERE RESTORED OR SATISFACTORY ARRANGEMENTS WERE MADE THEREFOR, YOU WAIVED WHATEVER RIGHT YOU MAY HAVE HAD FOR RENT AFTER JUNE 30, 1957. THE FACT THAT IN THE SUPPLEMENTAL AGREEMENT EXECUTED ON SEPTEMBER 23, 1957, YOU RESERVED THE RIGHT TO FILE A CLAIM FOR RENT FOR THE ENTIRE MONTH OF JULY 1957, WHILE AT THE SAME TIME AGREEING TO ACCEPT $269 IN LIEU OF RESTORATION, DID NOT OPERATE TO VALIDATE YOUR CLAIM FOR THE WHOLE MONTH. IN THE LIGHT OF THE FOREGOING, AND CONSIDERING YOUR REFUSAL TO DISCUSS RESTORATION ON JUNE 30, 1957, AND YOUR FAILURE TO TIMELY RESPOND TO THE GOVERNMENT'S LETTER OF JULY 8, 1957, REQUESTING A LIST OF THE DESIRED REPAIRS, THERE IS NO PROPER BASIS FOR ALLOWANCE OF ANY ADDITIONAL RENTAL. NEITHER IS THERE ANY PROPER BASIS FOR ANY ALLOWANCE FOR TAKING CARE OF THE DAMAGES AND SHOWING THE PROPERTY. ANY EXPENSES THAT MAY HAVE BEEN INCURRED BY YOU IN SHOWING THE PREMISES ARE ONLY SUCH AS THOSE WHICH ULTIMATELY WOULD HAVE BEEN INCURRED BY YOU IN ANY EVENT, EVEN IF THE GOVERNMENT'S TENURE HAD EXTENDED THROUGH JUNE 30, 1967. THIS TYPE OF EXPENSE TOGETHER WITH THE EXPENSES FOR TAKING CARE OF THE DAMAGES, AND THE EXPENSES CLAIMED UNDER ITEM (D) OF YOUR CLAIM FOR TIME, MENTAL AND PHYSICAL STRAIN, TELEPHONE, ETC., GENERALLY ARE REGARDED AS CONSEQUENTIAL IN NATURE FOR WHICH NO RECOVERY IS AUTHORIZED.

FOR THE FOREGOING REASONS IT MUST BE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR ANY CHANGE OR MODIFICATION OF THE ACTION HERETOFORE TAKEN ON YOUR CLAIM.