B-130935, APR. 18, 1957

B-130935: Apr 18, 1957

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TO ODEL DIE CASTING COMPANY: REFERENCE IS MADE TO LETTERS DATED FEBRUARY 9 AND APRIL 8. 313.44 NOW CLAIMED BY YOU WAS DEDUCTED. OF SLIGHT BURRS WHICH WERE FOUND TO INTERFERE WITH THE ASSEMBLY OF THE GRENADE FUSES. WERE REWORKED AT THE GOVERNMENT'S TEXARKANA PLANT IN ORDER TO AVOID THE SHIPPING COSTS INCIDENT TO THEIR RETURN TO YOUR DETROIT PLANT. THE RECORD FURTHER SHOWS THAT THE PROCEDURE ADOPTED IN THIS INSTANCE WAS UNQUALIFIEDLY AGREED TO IN YOUR LETTER DATED FEBRUARY 23. - WHEREIN YOU STATED: "IT IS AGREED THAT WE WILL WAIVE OUR CLAIM FOR THIS AMOUNT IN OUR TERMINATION SETTLEMENT. WE REALIZE THAT THIS CHARGE SHOULD HAVE BEEN INCLUDED IN OUR PRICE REDETERMINATION. WE DID NOT RECEIVE THIS BILL (THE GOVERNMENT-S) UNTIL AFTER OUR PRICE REDETERMINATION WAS SETTLED AND CLOSED.

B-130935, APR. 18, 1957

TO ODEL DIE CASTING COMPANY:

REFERENCE IS MADE TO LETTERS DATED FEBRUARY 9 AND APRIL 8, 1957, FROM YOUR ATTORNEYS, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 31, 1956, WHICH DISALLOWED YOUR CLAIM FOR $1,313.44, REPRESENTING THE COST OF REWORKING CERTAIN COMPONENTS GOING INTO THE MANUFACTURE OF A QUANTITY OF HAND GRENADES FURNISHED THE DETROIT ORDNANCE DISTRICT UNDER CONTRACT NO. DA-20-018-OMD-12488, DATED JUNE 27, 1952, AS AMENDED.

THE RECORD SHOWS THAT THE AMOUNT OF $1,313.44 NOW CLAIMED BY YOU WAS DEDUCTED, ALONG WITH ANOTHER ITEM NOT HERE MATERIAL, FROM THE TOTAL AMOUNT OF $18,890.39 FOUND TO BE DUE YOU UNDER THE FINAL TERMINATION SETTLEMENT AGREEMENT, OTHERWISE REFERRED TO AS SUPPLEMENT NO. 3, EXECUTED ON MARCH 28, 1955, BETWEEN YOU AND THE CONTRACTING OFFICER, TO COVER THE COST OF REMOVAL AT THE LONE STAR ORDNANCE DIVISION, TEXARKANA, TEXAS, OF SLIGHT BURRS WHICH WERE FOUND TO INTERFERE WITH THE ASSEMBLY OF THE GRENADE FUSES, AND WERE REWORKED AT THE GOVERNMENT'S TEXARKANA PLANT IN ORDER TO AVOID THE SHIPPING COSTS INCIDENT TO THEIR RETURN TO YOUR DETROIT PLANT, AND THEIR RESHIPMENT AFTER REWORKING BACK TO TEXAS. THE RECORD FURTHER SHOWS THAT THE PROCEDURE ADOPTED IN THIS INSTANCE WAS UNQUALIFIEDLY AGREED TO IN YOUR LETTER DATED FEBRUARY 23, 1955--- WRITTEN PRIOR TO THE TIME OF EXECUTION OF THE TERMINATION SETTLEMENT AGREEMENT OF MARCH 28, 1955--- WHEREIN YOU STATED:

"IT IS AGREED THAT WE WILL WAIVE OUR CLAIM FOR THIS AMOUNT IN OUR TERMINATION SETTLEMENT. WE REALIZE THAT THIS CHARGE SHOULD HAVE BEEN INCLUDED IN OUR PRICE REDETERMINATION, HOWEVER, WE DID NOT RECEIVE THIS BILL (THE GOVERNMENT-S) UNTIL AFTER OUR PRICE REDETERMINATION WAS SETTLED AND CLOSED.

"WE ARE WAIVING THIS BILL IN OUR TERMINATION CLAIM SO THAT THERE WILL BE NO FURTHER DELAY IN REACHING A FINAL SETTLEMENT OF OUR CLAIM INASMUCH AS CONTRACT NO. DA-20-018-ORD-12488 WAS TERMINATED ON JUNE 30, 1954.'

IN ADDITION TO THE WAIVER CLAUSE RECITED IN YOUR LETTER OF FEBRUARY 23, 1955, IT IS NOTED THAT IN SUPPLEMENT NO. 3 TO THE CONTRACT, YOU FURTHER AGREED THAT:

"* * * SAID SUM ($16,588.95), TOGETHER WITH ALL OTHER SUMS HERETOFORE PAID, CONSTITUTES PAYMENT IN FULL AND COMPLETE SETTLEMENT OF THE AMOUNT DUE THE CONTRACTOR BY REASON OF THE COMPLETE TERMINATION OF WORK UNDER THE CONTRACTOR BY REASON OF THE COMPLETE TERMINATION OF WORK UNDER THE CONTRACT AND OF ALL OTHER CLAIMS AND LIABILITIES OF THE CONTRACTOR AND THE GOVERNMENT UNDER THE CONTRACT * * *.'

THE TERMS OF THE ABOVE WAIVER AND RELEASE ARE PLAIN AND UNAMBIGUOUS IN THAT THEY CLEARLY EVIDENCE AN INTENTION UPON YOUR PART TO EXTINGUISH NOT ONLY THE GOVERNMENT'S CLAIM FOR $1,313.44, WHICH, INCIDENTALLY, WAS EVENTUALLY ABANDONED BY THE LATTER'S AGENT, DAY AND ZIMMERMAN, INC., BUT ALSO ANY AND ALL LIABILITY UPON THE PART OF THE UNITED STATES ARISING OUT OF THE CONTRACT.

IN ITS RULING UPON THE SUBJECT OF RELEASES, GENERALLY, THE COURT SAID IN THE CASE OF HOUSTON V. TROWER, 297 F. 558, AT PAGE 561:

"THE LANGUAGE IN A RELEASE (AS HERE) MAY BE BROAD ENOUGH TO COVER ALL DEMANDS OR RIGHTS TO DEMAND, OR POSSIBLE CAUSES OF ACTION, A COMPLETE DISCHARGE OF LIABILITY FROM ONE TO ANOTHER, WHETHER OR NOT THE VARIOUS DEMANDS OR CLAIMS HAVE BEEN DISCUSSED OR MENTIONED, AND WHETHER OR NOT THE POSSIBLE CLAIMS ARE ALL KNOWN.'

THEREFORE, EVEN THOUGH AT THE TIME OF THE NEGOTIATIONS CONCERNING THE GOVERNMENT'S CLAIM AGAINST YOU FOR REWORKING CERTAIN OF THE COMPONENTS, IT WAS THEN KNOWN THAT SUCH CLAIM SUBSEQUENTLY WOULD BE WITHDRAWN, NEVERTHELESS, SINCE THE ITEM INVOLVED WAS EXPRESSLY WAIVED IN YOUR SAID LETTER OF FEBRUARY 23, 1955, AND WAS EMBRACED BY THE TERMS OF THE RELEASE OF FEBRUARY 23, 1955, AND WAS EMBRACED BY THE TERMS OF THE RELEASE SUBSEQUENTLY EXECUTED BY YOU ON MARCH 28, 1955, THERE EXISTS NO LEGAL OR PROPER BASIS UPON WHICH THE GOVERNMENT NOW MAY REMIT THE AFORESAID DEDUCTION TO YOU. SEE, IN THIS CONNECTION, UNITED STATES V. WM. CRAMP AND SONS COMPANY, 206 U.S. 118, 128; C. R. WILSON BODY COMPANY V. UNITED STATES, 59 C.CLS. 611, 620. ..END :