A-33470, OCTOBER 25, 1930, 10 COMP. GEN. 186

A-33470: Oct 25, 1930

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ARE A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT WITH THE UNITED STATES. THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD. OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT. BY WHICH WAS DISALLOWED THEIR CLAIM FOR $410. TO COVER THE LIQUIDATED DAMAGES ALLEGED TO HAVE ACCRUED ON ACCOUNT OF 41 DAYS OF DELAY IN MAKING DELIVERIES OF THE OAK LUMBER THEREIN CONTRACTED FOR WITHIN THE PERIODS OF TIME FIXED BY THE CONTRACT. REMISSION OF THE LIQUIDATED DAMAGES CHARGED FOR THE 41 DAYS' DELAY CAUSED BY SEVERE WEATHER CONDITIONS IS NOT AUTHORIZED. THE CONTRACTORS WERE OBLIGATED TO COMPLETE THE DELIVERIES OF THE WHITE OAK LUMBER PURCHASED THEREUNDER BY THE ENGINEERING DEPARTMENT AT LARGE.

A-33470, OCTOBER 25, 1930, 10 COMP. GEN. 186

CONTRACTS - LIQUIDATED DAMAGES - DELAYS DUE TO "ACTS OF GOD" SEVERE WINTER WEATHER CONDITIONS, CONSISTING OF CONSTANT AND HEAVY RAINS, AN ORDINARY FLOOD OR FRESHET, AND FREEZING AND ZERO WEATHER, ARE A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT WITH THE UNITED STATES, AND THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD," TO EXCUSE DELAYS, UNLESS SO ABNORMAL, EXTRAORDINARY, OR UNUSUAL, AND OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 25, 1930:

DODSON AND RICHARDSON REQUESTED AUGUST 19, 1930, A REVIEW OF SETTLEMENT DATED JUNE 27, 1930, BY WHICH WAS DISALLOWED THEIR CLAIM FOR $410, THE AMOUNT DEDUCTED FROM THE FINAL PAYMENT UNDER THEIR WAR DEPARTMENT CONTRACT NO. W-1092-ENG-832, DATED DECEMBER 16, 1929, TO COVER THE LIQUIDATED DAMAGES ALLEGED TO HAVE ACCRUED ON ACCOUNT OF 41 DAYS OF DELAY IN MAKING DELIVERIES OF THE OAK LUMBER THEREIN CONTRACTED FOR WITHIN THE PERIODS OF TIME FIXED BY THE CONTRACT.

THE REASON ASSIGNED FOR THE DISALLOWANCE OF THE CLAIM BY SAID SETTLEMENT OF JUNE 27, 1930, APPEARS TO BE THAT AS THE CONTRACT MAKES NO PROVISION FOR EXCUSING DELAYS IN PERFORMANCE FOR ANY CAUSES, REMISSION OF THE LIQUIDATED DAMAGES CHARGED FOR THE 41 DAYS' DELAY CAUSED BY SEVERE WEATHER CONDITIONS IS NOT AUTHORIZED.

UNDER THE PROVISIONS OF THE CONTRACT, THE CONTRACTORS WERE OBLIGATED TO COMPLETE THE DELIVERIES OF THE WHITE OAK LUMBER PURCHASED THEREUNDER BY THE ENGINEERING DEPARTMENT AT LARGE, WAR DEPARTMENT, FOR USE IN MAKING MISCELLANEOUS REPAIRS FOR FIELD OUTFITS AND FOR THE FLEET AT THE UNITED STATES SUPPLY AND REPAIR DEPOT, MEMPHIS, TENN., F.O.B. POINT OF SHIPMENT, AS FOLLOWS: 34,000 FEET (B.M.) LUMBER FROM THE MILL AT DES ARC, ARK., ON OR BEFORE JANUARY 10, 1930; AND 12,621 FEET (B.M.) LUMBER FROM THE MILL AT HAZEN, ARK., ON OR BEFORE JANUARY 20, 1930. THE CONTRACT PROVIDED THAT IN CASE OF FAILURE ON THE PART OF CONTRACTORS TO MAKE THE SHIPMENTS WITHIN THE TIME SPECIFIED IN THE BIDDERS' PROPOSAL (A PART OF THE CONTRACT) THE CONTRACTORS SHOULD PAY TO THE GOVERNMENT AS LIQUIDATED DAMAGES THE SUM OF $10 FOR EACH CALENDAR DAY OF DELAY UNTIL COMPLETION OF THE DELIVERIES.

THE RECORD DISCLOSES THAT SHIPMENT WAS NOT MADE FROM THE MILL AT DES ARC, ARK., UNTIL FEBRUARY 4, 1930, A DELAY OF 25 DAYS; AND THAT SHIPMENT FROM THE MILL AT HAZEN, ARK., WAS NOT MADE UNTIL FEBRUARY 5, 1930, A DELAY OF 16 DAYS, OR A TOTAL DELAY IN THE TWO SHIPMENTS OF 41 DAYS.

THE CONTRACTORS ADMIT THE 41 DAYS OF DELAY IN COMPLETE PERFORMANCE OF THE CONTRACT, BUT THEY DENY ANY LIABILITY FOR LIQUIDATED DAMAGES ON ACCOUNT THEREOF, CLAIMING THAT THE DELAYS WERE UNAVOIDABLE AND RESULTED FROM SEVERE WEATHER AND FLOOD CONDITIONS WHICH EXISTED DURING THE CONTRACT PERIOD AND MADE IT IMPOSSIBLE TO COMPLETE THE DELIVERIES ON THE DATES FIXED BY THE CONTRACT.

IN THEIR APPLICATION FOR REVIEW THE CLAIMANTS STATED:

WE OFFERED MILLS PRODUCING THIS STOCK INCREASED FINANCIAL RETURNS TO RUSH DELIVERY, AND UNDER THE CIRCUMSTANCES WE THINK THAT NO EFFORT NOR MONEY COULD HAVE PRODUCED THIS STOCK IN THE REQUIRED LENGTH OF TIME UNDER FLOOD CONDITIONS WHICH EXISTED DURING THE LIFE OF THIS CONTRACT. * * *

THE CONTRACT PROVIDED:

6. LIQUIDATED DAMAGES.--- FAILURE TO MAKE SHIPMENT WITHIN THE TIME SPECIFIED IN THE BIDDERS' PROPOSAL WILL BE FIGURED AT THE RATE OF $10.00 PER DAY FOR EACH CALENDAR DAY FOR ANY PERIOD OF DELAY IN SHIPMENT BEYOND THE TIME AGREED UPON IN THE PROPOSAL, AND THIS AMOUNT WILL BE DEDUCTED FROM THE INVOICE PRIOR TO PAYMENT.

THE FACTS RELATIVE TO THE CLAIM ARE STATED BY THE DISTRICT ENGINEER, LIEUT. COL. F. B. WILBY, CORPS OF ENGINEERS, UNITED STATES ARMY, LOCATED AT MEMPHIS, TENN., IN HIS REPORT TO THIS OFFICE DATED APRIL 26, 1930, TO BE AS FOLLOWS:

THE FIRM OF DODSON AND RICHARDSON HAS PROTESTED DEDUCTION FROM VOUCHER NO. 18342, MARCH, 1930, ACCOUNTS OF CAPTAIN L. C. GORDON, CORPS OF ENGINEERS, (CERTIFIED COPY INCLOSED), OF LIQUIDATED DAMAGES, $410.00, IN CONNECTION WITH SETTLEMENT OF CONTRACT NO. W-1092-ENG-832, DATED DECEMBER 16, 1929, WHICH PROVIDED FOR DELIVERY OF AN APPROXIMATE TOTAL OF 46,621 FEET B.M. OF OAK LUMBER F.O.B. MILLS AS FOLLOWS:

CHART

NO. FT.

B.M. FROM MILL LOCATED AT--- DATE OF SHIPMENT

34,000 DES ARC, ARK --------------------- JAN. 10, 1930

12,621 HAZEN, ARK ----------------------- JAN. 20, 1930

PARAGRAPH 6 OF CONTRACT SPECIFICATIONS PROVIDED FOR DEDUCTION OF LIQUIDATED DAMAGES AT THE RATE OF $10.00 PER DAY FOR EACH CALENDAR DAY FOR ANY PERIOD OF DELAY IN SHIPMENT BEYOND THE TIME AGREED UPON IN THE PROPOSAL. FINAL SHIPMENT WAS MADE FROM MILL AT DES ARC, ARKANSAS, UNDER DATE OF FEBRUARY 4, 1930, BEING 25 DAYS' DELAY; FROM MILL LOCATED AT HAZEN, ARKANSAS, FINAL SHIPMENT WAS MADE FEBRUARY 5, 1930, BEING 16 DAYS' DELAY; MAKING A TOTAL OF 41 DAYS AT $10.00 PER DAY, OR $410.00. THE LIQUIDATED DAMAGE PROVISION IN THE SPECIFICATIONS WAS INTENDED TO APPLY AGAINST THE ENTIRE LOT OF LUMBER, BUT AS THE CONTRACTOR PROPOSED TO MAKE SHIPMENTS FROM TWO DIFFERENT POINTS ON TWO DIFFERENT DATES, THERE WAS CREATED AN ELEMENT OF AMBIGUITY AND, ACCORDINGLY, THE LIQUIDATED DAMAGES WERE DEDUCTED AT THE RATE OF $10.00 PER DAY FOR DELAY ON EACH SHIPMENT, ALTHOUGH IT IS THE OPINION OF THIS OFFICE THAT DEDUCTIONS SHOULD HAVE APPLIED TO THE DELAY ON THE LOT AS A WHOLE; THAT IS, FROM JANUARY 20 TO FEBRUARY 5, 1930, ONLY.

2. THE CONTRACTOR CONTENDS, AS EVIDENCED BY LETTER OF FEBRUARY 3, 1930, COPY OF WHICH IS INCLOSED, THAT ABNORMAL WEATHER CONDITIONS PREVENTED THE PERFORMANCE OF THE CONTRACT WITHIN THE TIME AGREED UPON, WHICH IS CORROBORATED BY AN EXAMINATION OF THE RECORDS OF UNITED STATES WEATHER BUREAU. THE LATTER SHOWS AN EXCESS RAINFALL DURING JANUARY, 1930, OF ABOUT 7.13 INCHES AND ON TWO DAYS DURING THE MONTH (JANUARY 18TH AND 19TH) TEMPERATURES RANGING BELOW ZERO WERE RECORDED. SINCE THERE IS NO OFFICIAL WEATHER OBSERVATORY AT EITHER OF THE SHIPPING POINTS NAMED IN CONTRACT, THE PRECIPITATION AND TEMPERATURE RECORDS WERE TAKEN FROM OBSERVATIONS MADE AT NEAR-BY STATIONS. JANUARY, 1930, PRECIPITATION RECORD FOR DE VALLS BLUFF, ARKANSAS, IN VICINITY OF THE MILLS, WAS TAKEN FROM THE CLIMATOLOGICAL CHART ISSUED BY THE U.S. WEATHER BUREAU OF LITTLE ROCK, ARKANSAS, AS FOLLOWS: 2ND, 1.12; 7TH, 0.42; 8TH, 4.62; 9TH, 2.75; 10TH, 0.64; 11TH, 0.02; 12TH, 0.08; 13TH, 1.17; 14TH, 0.41; 18TH, 0.18; 21ST 0.15; 27TH, 0.80; MAKING A TOTAL OF 12.36 INCHES FOR THE ENTIRE MONTH. SOME EXTREMELY LOW TEMPERATURES WERE REPORTED AT BRINKLEY, ARKANSAS, IN THE SAME VICINITY, ON THE FOLLOWING DATES: JANUARY 18, MINUS 7 DEGREES; 19TH, MINUS 1 DEGREE; 20TH, 24 DEGREES; 21ST, 25 DEGREES; 22ND, 1 DEGREE; 23RD, 1 DEGREE; 24TH, 9 DEGREES; 25TH, 16 DEGREES.

3. IT IS BELIEVED THAT THE EXCESS PRECIPITATION WAS MUCH GREATER THAN THE CONTRACTOR REASONABLY COULD HAVE ANTICIPATED, AND THIS FACT, COUPLED WITH THE SEVERELY COLD TEMPERATURES, PREVENTED THE COMPLETION OF THE CONTRACT WITHIN THE TIME STIPULATED, ALTHOUGH IT IS KNOWN THAT THE CONTRACTOR MADE EVERY EFFORT TO FULFILL THE AGREEMENT.

IN SUPPORT OF THEIR CLAIM FOR REMISSION OF THE LIQUIDATED DAMAGES CHARGED, THE CLAIMANTS HAVE SUBMITTED THREE AFFIDAVITS, TO WIT:

(1) AFFIDAVIT OF W. F. MCMULLEN, SWORN TO AUGUST 21, 1930, AS FOLLOWS:

DURING DECEMBER, 1929, AND JANUARY, 1930, I OPERATED A SAWMILL IN WHAT IS KNOWN AS LAGRUE BOTTOM, LAGRUE BAYOU BEING A SMALL TRIBUTARY TO THE WHITE RIVER, AND MY MILL WAS LOCATED ABOUT SIX MILES SOUTH OF HAZEN, ARKANSAS. DURING THE TWO MONTHS REFERRED TO, I CUT OAK LUMBER FOR DODSON AND RICHARDSON, DE VALLS BLUFF, ONE CARLOAD OF WHICH WAS COVERED BY PROPOSAL NO. 30-289 FOR UNITED STATES ENGINEERS, MEMPHIS, TENN. MY FAILURE TO PRODUCE AND DELIVER TO THE RAILROAD THIS STOCK IN THE REQUIRED TIME WAS CAUSED SOLELY BY FLOOD CONDITIONS, LOW TEMPERATURES, WHICH FELL AS LOW AS 5 DEGREES BELOW ZERO, RENDERING IT PHYSICALLY IMPOSSIBLE TO MOVE LUMBER FROM MY MILL TO THE RAILROAD, AND HAVE IT READY TO LOAD IN THE TIME REQUIRED.

(2) AFFIDAVIT OF W. R. FAKES, SWORN TO AUGUST 23, 1930, AS FOLLOWS:

ON DECEMBER 16TH, 1929, I BEGAN THE PRODUCTION OF OAK LUMBER ON PROPOSAL NO. 30-289 FOR UNITED STATES ENGINEERS, MEMPHIS, TENN. THIS ORDER WAS FURNISHED ME BY DODSON AND RICHARDSON OF DE VALLS BLUFF, ARKANSAS. AFTER NUMEROUS DELAYS OCCASIONED BY EXCESSIVE RAINFALL, I WAS CONFRONTED WITH AN OVERFLOW FROM WHITE RIVER, WHICH PROHIBITED ME FROM HAULING LUMBER FROM MY MILL TO THE RAILROAD TRACKS. DURING THE PERIOD OF TIME IN WHICH WE WERE WORKING ON THIS CONTRACT, WE HAD A TEMPERATURE OF 5 DEGREES BELOWZERO, FREEZING ALL WATER, RENDERING IT IMPOSSIBLE EVEN WITH THE USE OF MUD BOAT TO CONVEY LUMBER TO THE RAILROAD TRACKS. DUE TO THE CAUSES ENUMERATED ABOVE, WHICH WERE BEYOND MY CONTROL, IT WAS PHYSICALLY IMPOSSIBLE TO PRODUCE THIS ORDER IN THE REQUIRED LENGTH OF TIME. I HAVE NO FINANCIAL INTEREST WHATSOEVER IN THE OUTCOME OF THIS CLAIM.

(3) AFFIDAVIT OF H. G. PATE, SWORN TO AUGUST 20, 1930, AS FOLLOWS:

I AM THE OFFICIAL REPRESENTATIVE OF THE DEPARTMENT OF AGRICULTURE, WEATHER BUREAU, AT DE VALLS BLUFF, ARKANSAS, AND MY RECORDS FOR JANUARY, 1930, INDICATE THAT WHITE RIVER REMAINED ABOVE FLOOD STAGE FROM THE 14TH TO THE 31ST, AND THE HIGHEST POINT REACHED DURING THIS TIME WAS 26.8 FEET ON THE 23RD, BEING 2.8 FEET ABOVE FLOOD STAGE, FURTHER TOTAL RAINFALL FOR THE MONTH AMOUNTED TO 12 INCHES. FURTHER DEPONENT SAITH NOT.

THE COURTS HAVE HELD THAT IF A PARTY CHARGE HIMSELF WITH AN OBLIGATION WHICH AT THE TIME WAS POSSIBLE OF PERFORMANCE, HE MUST ABIDE BY IT UNLESS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE ACT OF GOD, BY THE LAW, OR BY THE OTHER PARTY. UNFORESEEN DIFFICULTIES, HOWEVER GREAT, WILL NOT EXCUSE PERFORMANCE. WHERE THE PARTIES HAVE MADE NO PROVISION FOR A DISPENSATION, THE TERMS OF THE CONTRACT MUST PREVAIL. IN THIS CONNECTION, SEE UNITED STATES V. GLEASON, 175 U.S. 588, 603; CARNEGIE STEEL CO. V. UNITED STATES, 240 U.S. 156, 164; COLUMBUS RY. POWER AND LIGHT CO. V. CITY OF COLUMBUS, 249 U.S. 399, 412; AND 13 CORPUS JURIS, 635.

THE CONTRACT HERE INVOLVED MADE NO PROVISION FOR EXCUSING CONTRACTORS FOR DELAYS IN PERFORMANCE FOR ANY CAUSES. THEREFORE, THE QUESTION PRESENTED HERE IS WHETHER OR NOT PERFORMANCE WAS RENDERED IMPOSSIBLE FOR THE PERIODS OF DELAY, OR ANY PART THEREOF, BY THE ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT. NONE OF THE DELAYS ARE SHOWN OR EVEN ALLEGED TO HAVE BEEN CAUSED BY THE LAW OR BY THE GOVERNMENT. THE ENTIRE DELAY APPEARS TO HAVE BEEN CAUSED BY RAINY AND FREEZING WINTER WEATHER CONDITIONS IN THE VICINITY OF THE MILLS SUPPLYING THE LUMBER, DURING THE CONTRACT PERIOD.

CONTRACTORS CONTEND THAT THEY ARE ENTITLED TO REMISSION OF THE LIQUIDATED DAMAGES CHARGED BECAUSE THE DELAYS IN PERFORMANCE WERE DUE TO THE HEAVY AND CONSTANT RAINS WHICH CAUSED FLOOD CONDITIONS IN WHITE RIVER VALLEY, WHERE THE MILLS WERE LOCATED, AND TO THE FREEZING AND ZERO WEATHER PREVAILING IN THAT VICINITY, WHICH MADE IT IMPOSSIBLE TO PRODUCE AND DELIVER THE LUMBER WITHIN THE CONTRACT PERIODS. HOWEVER, UNDER THE PROVISIONS OF THE CONTRACT, THE CONTRACTORS ARE NOT ENTITLED TO BE RELIEVED FROM THE ACCRUED LIQUIDATED DAMAGES UNLESS THE SEVERE WEATHER CONDITIONS CAUSING THE DELAYS WERE SUCH AS TO CONSTITUTE "ACTS OF GOD.'

THE COURTS HAVE HELD THAT OCCURRENCES WHICH MIGHT REASONABLY HAVE BEEN ANTICIPATED ARE NOT ACTS OF GOD IN THE LEGAL SENSE. 1 CORPUS JURIS, 1175; GLEESON V. VIRGINIA MIDLAND RAILROAD COMPANY, 140 U.S. 435. LIGHTNING, EARTHQUAKES, GREAT DROUGHTS, TORNADOES, HIGH WINDS, EXTRAORDINARY FLOODS, A STORM OR TEMPEST OF EXTRAORDINARY VIOLENCE, WATERSPOUTS, VIOLENCE OF THE SEAS, AND OTHER LIKE DISTURBANCES OF THE ELEMENTS ARE USUALLY REGARDED AS ACTS OF GOD, BUT THIS IS NOT TRUE OF STORMS AND WEATHER CONDITIONS WHICH ARE NOT UNUSUAL IN CHARACTER AND WHICH COULD HAVE BEEN REASONABLY ANTICIPATED. FLOODS AND FRESHETS OF AN UNPRECEDENTED OR EXTRAORDINARY NATURE ARE ACTS OF GOD IN A LEGAL SENSE, BUT THEY ARE NOT SUCH WHERE THEY COULD HAVE BEEN ANTICIPATED BY ORDINARY FORESIGHT AND PRUDENCE. CONSTANT, UNUSUAL, OR HEAVY RAINS, AND AN ORDINARY FLOOD OR FRESHET, CAN NOT OF THEMSELVES BE CLASSED AS A PROVIDENTIAL HINDRANCE. FREEZING AND ZERO WEATHER, AT A SEASON OF THE YEAR WHEN SUCH WEATHER IS NATURALLY TO BE ANTICIPATED CAN NOT BE BROUGHT WITHIN THE DEFINITION OF THE TERM "ACT OF GOD.' IN THIS CONNECTION SEE 1 CORPUS JURIS, PAGES 1176, 1177, 1178, AND CASES THERE CITED. CONSTANT AND HEAVY RAINS, AN ORDINARY FLOOD OR FRESHET, FREEZING AND ZERO WEATHER, ARE ALL A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT, UNLESS THE CONTRACT PROVIDES OTHERWISE, AND THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD" UNLESS SO ABNORMAL, EXTRAORDINARY, OR UNUSUAL, AND OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT. THERE IS NO EVIDENCE HERE THAT THE RAINFALL, THE FLOOD, AND THE SEVERE COLD WEATHER, IN THE VICINITY OF DES ARC AND HAZEN, ARK., DURING THE CONTRACT PERIOD WERE OF SUCH AN EXTRAORDINARY OR ABNORMAL CHARACTER. EVEN THOUGH THE RAINFALL FOR MANY DAYS DURING THE CONTRACT PERIOD WAS FAIRLY CONSTANT AND UNUSUALLY HEAVY AND THE PRECIPITATION ABOVE THE NORMAL OF THE AVERAGE RAINFALL FOR THAT TIME OF THE YEAR, CAUSING THE RIVER TO OVERFLOW AND FLOOD THE VALLEY, AND THERE WERE, ALSO, MANY DAYS OF FREEZING AND ZERO WEATHER, IT WAS A COMMON, NATURAL EVENT, SUCH AS NOT ONLY MIGHT HAVE BEEN FORESEEN AS PROBABLE BUT SUCH AS MIGHT HAVE BEEN EXPECTED DURING THE WINTER SEASON, AND AGAINST WHICH IT WAS THE DUTY OF THE CONTRACTORS TO HAVE GUARDED IN THEIR CONTRACT, IF THEY DESIRED TO BE EXCUSED FOR DELAYS CAUSED THEREBY. AN ACT OF GOD WILL EXCUSE THE FAILURE TO DO A THING WHERE THE LAW CREATED THE DUTY BUT NOT WHERE IT IS CREATED BY THE POSITIVE AND ABSOLUTE CONTRACT OF THE PARTY. WHERE A PARTY BY CONTRACT CREATES A DUTY UPON HIMSELF HE IS BOUND TO MAKE IT GOOD NOTWITHSTANDING THERE MAY ARISE AN UNFORESEEN CONTINGENCY, SUCH AS MIGHT HAVE BEEN PROVIDED AGAINST IN HIS CONTRACT. SEE DERMOTT V. JONES, 2 WALL. 1, 7 AND 8; THE HARRIMAN, 9 WALL. 161, 172, 173; JONES V. UNITED STATES, 96 U.S. 24, 29; CHICAGO, ETC., RY. CO. V. HOYT, 149 U.S. 1, 14 AND 15; JACKSONVILLE, ETC., RY. AND NAV. CO. V. HOOPER, 160 U.S. 514, 527, AND 528; ROBSON V. MISSISSIPPI RIVER LOGGING CO., 61 FED.REP. 893, 900; LINK BELT ENG. CO. V. UNITED STATES, 142 FED.REP. 243, 247; FERGUSON ET AL. V. OMAHA AND S.W.R. CO. ET AL., 227 FED.REP. 513, 523, AND 524; BERG V. ERICKSON, 234 FED.REP. 817, 820; UNITED STATES V. LEWIS ET AL., 237 FED.REP. 80. SEE, ALSO, 5 COMP. GEN. 488.

IN THE INSTANT MATTER THE EVIDENCE DOES NOT ESTABLISH THE RAINFALL, THE FLOOD, OR THE COLD WEATHER HERE IN QUESTION AS BEING SO EXTRAORDINARY AND ABNORMAL AS TO BE CLASSED AS "ACTS OF GOD," WITHIN THE MEANING OF THE CONTRACT. THEREFORE, UNDER THE TERMS OF THE CONTRACT LIQUIDATED DAMAGES MUST BE EXACTED FOR EACH DAY'S DELAY IN COMPLETION OF DELIVERIES THEREUNDER AS AGREED.

HOWEVER, THE REQUEST FOR BIDS DID NOT SPECIFY THE MILLS OR PLACES AT WHICH DIFFERENT QUANTITIES OF THE LUMBER WAS TO BE DELIVERED BUT ADVERTISED THE 47 ITEMS OF LUMBER AS ONE LOT AND STATED THAT "AWARD WILL BE MADE AS A LOT," AND THAT "BIDDERS OFFERING LONGER SHIPMENT THAN 45 DAYS WILL NOT BE CONSIDERED.' ACCORDINGLY, THE LIQUIDATED DAMAGE PROVISION MAY BE HELD AS RELATING ONLY TO THE DATE OF COMPLETION OR FINAL DELIVERY UNDER THE CONTRACT. THE CONTRACTORS UNDERTOOK TO COMPLETE DELIVERY BY JANUARY 20, 1930, AND DELIVERY WAS NOT COMPLETED UNTIL FEBRUARY 5, 1930, OR AFTER A DELAY OF 16 DAYS. THEREFORE, LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT TO THE AMOUNT OF $160 INSTEAD OF $410. THE DIFFERENCE OF $250 WILL BE PAID TO THE CONTRACTORS IN DUE COURSE.