B-115148, AUG. 3, 1955

B-115148: Aug 3, 1955

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF APRIL 25. PART OF WHICH WAS LEASED BY THE CLAIMANT TO THE UNITED STATES UNDER LEASES NOS. STATING THE BELIEF THAT THE CHECK WAS ERRONEOUSLY ISSUED IN PAYMENT OF A CLAIM WHICH THERETOFORE HAD BEEN PAID IN THE AMOUNT OF $6. 495.68 PESOS WAS ISSUED PURSUANT TO GENERAL ACCOUNTING OFFICE SETTLEMENT NO. 1990417. THE SETTLEMENT WAS MADE AS INTENDED AND WAS IN CONFORMITY WITH THE RECOMMENDATIONS OF NUMEROUS REPRESENTATIVES OF THE ARMY. BASED UPON A DETERMINATION BY EXPERT APPRAISERS THAT THE ACTUAL DAMAGE TO THE REAL ESTATE WAS IN THE AMOUNT OF 1. THE SETTLEMENT LIKEWISE WAS IN CONFORMITY WITH THE RECOMMENDATION OF FOREIGN CLAIMS COMMISSION NO. 56.

B-115148, AUG. 3, 1955

TO JOSEPH J. MALLOY AND PHILIP F. DODSON, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1955, RELATIVE TO THE CLAIMS OF ORTIGAS, MADRIGAL Y CIA, S. EN C., OF MANILA, REPUBLIC OF THE PHILIPPINES, FOR RENTAL AND DAMAGES TO REAL PROPERTY IN QUEZON CITY, REPUBLIC OF THE PHILIPPINES, PART OF WHICH WAS LEASED BY THE CLAIMANT TO THE UNITED STATES UNDER LEASES NOS. W-OO-003-ENG-628, W 00-003-ENG-629 AND W-00-003-ENG-630, ALL DATED FEBRUARY 6, 1947. YOU RETURNED CHECK NO. 502,166 DATED DECEMBER 12, 1951, IN THE AMOUNT OF 1,495.68 PESOS, STATING THE BELIEF THAT THE CHECK WAS ERRONEOUSLY ISSUED IN PAYMENT OF A CLAIM WHICH THERETOFORE HAD BEEN PAID IN THE AMOUNT OF $6,447.23 AND REQUESTING PAYMENT OF ANOTHER CLAIM IN THE AMOUNT OF $7,340.68.

THE FILES SHOW THAT THE CHECK IN THE AMOUNT OF 1,495.68 PESOS WAS ISSUED PURSUANT TO GENERAL ACCOUNTING OFFICE SETTLEMENT NO. 1990417, DATED NOVEMBER 27, 1951, PERTAINING TO THE CLAIM FOR 41,895 PESOS ($20,947.50) ARISING FROM EXCAVATION AND EXTRACTION OF SOIL AND ROCKS BY UNITS OF THE UNITED STATES ARMY IN JUNE 1945 FOR ROAD CONSTRUCTION PURPOSES (GENERAL ACCOUNTING OFFICE CLAIM NO. Z-591837/1) ). THE SETTLEMENT WAS MADE AS INTENDED AND WAS IN CONFORMITY WITH THE RECOMMENDATIONS OF NUMEROUS REPRESENTATIVES OF THE ARMY, BASED UPON A DETERMINATION BY EXPERT APPRAISERS THAT THE ACTUAL DAMAGE TO THE REAL ESTATE WAS IN THE AMOUNT OF 1,495.68 PESOS. THE SETTLEMENT LIKEWISE WAS IN CONFORMITY WITH THE RECOMMENDATION OF FOREIGN CLAIMS COMMISSION NO. 56, DATED APRIL 26, 1948, WHICH COMMISSION HAD CONSIDERED THE CLAIM BUT WAS NOT AUTHORIZED TO TAKE FINAL ACTION SINCE THE CLAIM WAS IN EXCESS OF $5,000. UPON REVIEW, WE CONCLUDE THAT THE PROPER MEASURE OF DAMAGES WAS THAT ON WHICH THE SETTLEMENT WAS BASED I.E., THE DIMINUTION IN VALUE OF THE PROPERTY, RATHER THAN THE ESTIMATED COST OF REPLACING THE EARTH AND ROCK REMOVED AS CLAIMED BY YOUR CLIENT. SEE CRYSTAL CONCRETE CO. V. TOWN OF BRAINTREE, 309 MASS. 463, 35 N.E. 2D 672. THE SETTLEMENT IS ACCORDINGLY SUSTAINED.

THE OTHER CLAIM (GENERAL ACCOUNTING OFFICE CLAIM NO. Z-591837), AS TRANSMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT BY FIRST INDORSEMENT DATED FEBRUARY 2, 1951, FROM THE DEPARTMENT OF THE ARMY, EMBRACED RENT IN THE AMOUNT OF $3,227.23 FOR THE PERIOD FROM MAY 18, 1949, THROUGH JULY 16, 1949, UNDER LEASE NO. W-OO-003-ENG-628, DATED FEBRUARY 6, 1947; $2,795 AS COST OF RESTORATION UNDER THE SAID LEASE; AND $425 AS COST OF RESTORATION UNDER LEASE NO. W-OO-003-ENG-630--- A TOTAL CLAIM OF $6,447.23. THIS CLAIM WAS ALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENTS NOS. 1978968 AND 197969, BOTH DATED OCTOBER 9, 1951, IN THE AMOUNTS OF $3,649.45 AND $2,797.78, RESPECTIVELY (A TOTAL OF$6,447.23), AND COVERED BY TREASURY CHECKS NOS. 50,267,770 AND 13,901,375, BOTH DATED OCTOBER 11, 1951, WHICH WERE PAID BY THE TREASURER OF THE UNITED STATES ON NOVEMBER 23, 1951, ON THE INDORSEMENTS OF JOSEPH J. MALLOY, ATTORNEY IN FACT. THE CERTIFICATES OF SETTLEMENT REFERRED TO, WHICH WERE MAILED TO THE CLAIMANT, C/O JOSEPH J. MALLOY, 1406 G ST., N.W., WASHINGTON 5, D.C., CLEARLY STATED THE EXACT ITEMS INCLUDED IN THEM, WITH REFERENCES TO THE LEASES INVOLVED AND TO THE RECOMMENDATIONS OF FOREIGN CLAIMS COMMISSION NO. 58, PROCEEDINGS NO. PCC 58-JA-FC-1490, DATED OCTOBER 26, 1950. NEITHER THE LEASES NOR THE PROCEEDINGS REFERRED TO WERE RELATED TO THE $20,947.50 CLAIM DISCUSSED ABOVE, AND THERE COULD HAVE BEEN NO UNDERSTANDING OR BELIEF ON THE PART OF ANY AGENT OF THE GOVERNMENT THAT THE CERTIFICATES OF SETTLEMENT COVERED ANY CLAIMS OTHER THAN THOSE SPECIFICALLY DESCRIBED IN THEM.

IT APPEARS, HOWEVER, THAT THERE WAS SUBSEQUENTLY RECEIVED A SUPPLEMENTAL REPORT STATING THAT RENT PROPERLY WAS PAYABLE ALSO FOR THE PERIOD MAY 1 THROUGH MAY 17, 1949, IN ADDITION TO THAT ALLOWED IN THE SAID SETTLEMENTS. IN THE CIRCUMSTANCES MR. MALLOY'S CONSENT TO ACCEPT THE $6,447.23 AS "IN FULL AND FINAL SETTLEMENT" OF THE CLAIM INVOLVED,HAVING BEEN BASED UPON A MISTAKE AS TO THE IDENTITY OF THE CLAIM, WILL BE IGNORED. ACCORDINGLY, THE CLAIMS DIVISION OF THIS OFFICE IS BEING DIRECTED TO ISSUE A SUPPLEMENTAL SETTLEMENT ALLOWING RENTAL FOR THE SAID ADDITIONAL PERIOD, WHICH APPARENTLY WILL COVER SUBSTANTIALLY THE DIFFERENCE BETWEEN THE $6,447.23 PAID AND THE AMOUNT OF $7,340.68 REFERRED TO IN YOUR LETTER.

THE RECORD CLEARLY SHOWS THAT, WHILE THERE WAS APPARENTLY SOME CONFUSION AS TO WHICH CLAIM WAS REFERRED TO IN THE POWER OF ATTORNEY FILED BY MR. MALLOY, ALL THREE OF THE SETTLEMENTS HERETOFORE STATED WERE MADE AS INTENDED BY THIS OFFICE; WERE IN ACCORDANCE WITH THE PERTINENT RECORDS; AND TOGETHER CONSTITUTE A COMPLETE DISPOSITION OF ALL THE CLAIMS PRESENTED, EXCEPT WITH RESPECT TO RENTAL FOR THE PERIOD FROM MAY 1 THROUGH 17, 1949. WITH THAT EXCEPTION, THE SETTLEMENTS ARE SUSTAINED.

THE CHECK TRANSMITTED WITH YOUR LETTER OF APRIL 25, 1955, IS RETURNED HEREWITH AND MAY BE CASHED WITHOUT PREJUDICE TO FURTHER PROSECUTION OF THE CLAIM. A CHECK IN PAYMENT OF THE AMOUNT OF THE ADDITIONAL RENTAL SHOULD BE RECEIVED BY YOU IN DUE COURSE AFTER ISSUANCE OF THE SUPPLEMENTAL SETTLEMENT.