B-129301, NOV. 1, 1956

B-129301, NOV. 1, 1956

TO MR. ROBERT E. MICHEL, JR.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1956, REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES AS SET FORTH IN OUR CLAIMS DIVISION LETTER OF JULY 6, 1956, IN THE AMOUNT OF $653.55, REPRESENTING EXCESS COSTS INCURRED AS A RESULT OF YOUR DEFAULT UNDER CONTRACTS NOS. N195S-891, N195S-1378, AND N195S-1872, DATED OCTOBER 29 AND DECEMBER 30, 1953, AND APRIL 23, 1954, RESPECTIVELY, WITH THE DEPARTMENT OF THE NAVY.

THERE APPEARS NO DISPUTE RELATIVE TO YOUR DEFAULT UNDER THE ABOVE CITED CONTRACTS. HOWEVER, IN YOUR LETTER OF SEPTEMBER 7, 1956, YOU STATE THAT "IT DOES NOT SEEM REASONABLE UNDER ANY PRINCIPLES OF LAW OR EQUITY, THAT ONE PARTY TO A CONTRACT CAN MAKE THE CONTRACT IMPOSSIBLE OF PERFORMANCE, AND CLAIM DAMAGES FROM THE OTHER PARTY BECAUSE OF A BREACH.' YOUR STATEMENT IS BASED ON THE FACT THAT YOU WERE INDUCTED INTO THE MILITARY SERVICE ON MAY 11, 1954, AND THUS WERE PRECLUDED ANY OPPORTUNITY TO COMPLETE PERFORMANCE OF THE CONTRACTS IN QUESTION.

A REVIEW OF THE ADMINISTRATIVE RECORDS FURNISHED OUR OFFICE DISCLOSES THAT UNDER CONTRACT NO. N195S-1378 YOU AGREED TO COMPLETE DELIVERY OF THE VARIOUS LOTS OF THE ITEMS SPECIFIED THEREIN BY APRIL 27, 1954. YOUR FAILURE TO FURNISH LOTS NOS. 5, 6 AND 7 NECESSITATED PURCHASE IN THE OPEN MARKET AND CHARGING YOUR ACCOUNT WITH THE EXCESS COSTS INCURRED THEREBY PURSUANT TO THE TERMS OF PARAGRAPH 11 OF THE GENERAL PROVISIONS OF THE CONTRACT. SINCE THE COMPLETED CONTRACT DELIVERY WAS SCHEDULED ON APRIL 27, 1954, OR PRIOR TO YOUR DATE OF INDUCTION INTO THE MILITARY SERVICES, IT MAY NOT BE CONCLUDED THAT YOUR BREACH OF CONTRACT WAS DUE TO IMPOSSIBILITY OF PERFORMANCE SUCH AS TO AFFORD RELIEF AS PROVIDED UNDER PARAGRAPH 11 (B) OF THE GENERAL PROVISIONS. THE SAME SITUATION PREVAILS WITH RESPECT TO YOUR BREACH OF CONTRACT NO. N195A-891 WHERE THE COMPLETED DELIVERY WAS SCHEDULED ON JANUARY 27, 1954, AND WHERE THE EXCESS COSTS WERE CHARGEABLE TO YOUR ACCOUNT IN CONNECTION WITH THE REPURCHASE OF LOTS 1 AND 8 IN THE OPEN MARKET.

WHILE FINAL DELIVERY UNDER THE REMAINING CONTRACT NO. N195S-1872 WAS SCHEDULED SUBSEQUENT TO YOUR DATE OF INDUCTION, AND WHILE THE RULE EXACTING STRICT PERFORMANCE MAY BE RELAXED IN SOME INSTANCES (SEE 17 C.J.S. PAGE 1086, PAR. 507) THIS CONTRACT MAY NOT BE CONSIDERED AS REQUIRING THE TYPE OF PERSONAL SERVICES WHICH WOULD BE DISCHARGED AS A RESULT OF YOUR INVOLUNTARY INDUCTION INTO THE MILITARY SERVICES.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE LETTER OF JULY 6, 1956, IN COMPUTING YOUR INDEBTEDNESS IN THE AMOUNT OF $653.55 APPEARS CORRECT, AND THAT ACTION IS SUSTAINED.