# Law v. United States > United States Court of Claims · July 14, 1971 · 195 Ct. Cl. 370 URL: https://www.frixlaw.com/law-library/cases/8594244 ## Case - **Full name:** BRUNO LAW AND RICHARD MARLINK, TRUSTEES IN DISSOLUTION FOR DANIEL J. CRONIN, INC. v. United States - **Court:** United States Court of Claims - **Decided:** July 14, 1971 - **Citations:** 195 Ct. Cl. 370; 1971 U.S. Ct. Cl. LEXIS 54; 1971 WL 17828 - **Precedential status:** Published - **Opinion:** Opinion of the court by Gamer - **Judges:** Collins, Cowen, Davis, Dueeee, Gamer, Laeamoee, Nichols, Ohief, Skelton - **Cited by:** 37 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8594244 ## How later opinions describe it (automated extraction) - noting it is the contractor's burden to show "where the work was delayed because of the lack of approval" - holding court may rely on other evidence in the record where plaintiffs total time theory has been rejected - holding Government’s failure to install equipment in a timely manner breaches duty not to hinder ## Opinion text Pee Cueiam: This case was referred to Trial Commissioner Saul Bicbard Gramer with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(h). The commissioner has done so in an opinion and report filed on April 16, 1971, wherein he concluded “that defendant has failed to meet the burden of proof * * * that plaintiff * * * ‘corruptly’ practiced or attempted ‘to practice any fraud against the United States in the proof, statement, establishment, or allowance’ of the claim herein” and recommended that judgment be entered for plaintiff in the amount of $216,574.53. Plaintiff and defendant each obtained an extension of time to file a notice of intention to except to the commissioner’s report and recommendation but neither filed such notice or any exception. On May 28, 1971, the parties filed a stipulation of settlement wherein, among other things, it is stated that the “stipulation is made for the purpose of enabling the court to enter judgment in favor of plaintiffs and against the defendant in the sum of $216,574.53 and to dismiss, with prejudice, the defendant’s plea in fraud.” Subsequently, on June 14, 1971, for plaintiff and June 15, 1971, for defendant, each party filed a motion for enlargement or extension of time to file a notice of intention to except to the commissioner’s report, reciting therein the filing of the stipulation of May 28, 1971 and the fact that it had not yet been acted upon by the court. *377 Since the court agrees with, the commissioner’s opinion, findings and recommended conclusion of law, it hereby adopts the same, without oral argument, together with the stipulation of the parties, filed May 28, 1971, as the basis for its judgment in this case. Therefore, plaintiffs (trustees in dissolution) are entitled to recover, judgment is entered for plaintiffs (trustees in dissolution) in the sum of $216,574.53 and defendant’s plea in fraud is dismissed with prejudice. OPINION OP COMMISSIONER Gamer, Commissioner: Daniel J. Cronin, Inc. (hereinafter sometimes referred to as “Cronin”), was a New Jersey corporation which, on May 11, 1951, entered into a $6,580,000 lump sum contract with defendant, acting through the Bureau of Yards and Docks, Department of the Navy, to perform certain construction work at the United States Naval Aeronautical Turbine Laboratory, Trenton, New Jersey. The work was described as the construction of a “High Pressure Blower Wing, Test Wing and Miscellaneous Construction.” The project in effect constituted a laboratory for the testing of turbo prop and turbo jet airplane engines under simulated flight conditions. Cronin’s work principally consisted of the erection of several buildings and the installation of an electrical distribution system and mechanical piping, including piping running between and connecting the buildings. Various complicated machines and pieces of equipment were to be installed in and around the structures which Cronin was to build. Most of these quite sophisticated machines and equipment items were to be furnished and installed by defendant. However, defendant acted through separate contracts with third parties under which such parties undertook to manufacture and install the machines and equipment. Included in Cronin’s work was the construction of the foundations for such machines and equipment. After the installation of such machines and equipment by defendant (i.e.: the third parties) , it was then Cronin’s responsibility to connect them to the piping. Thus, by reason of defendant’s undertaking the furnishing and the installation of the machines and equipment in and around the buildings and on the foundations which Cronin was to construct, there was cast upon defendant *378 the burden of effecting a rather intricate type of coordination between Cronin’s construction work and the work of the third-party machine and equipment contractors. Cronin’s contract called for the completion of its work within 450 days after receipt of the notice of award. The receipt of such notice on May 11,1951 fixed August 3,1952 as the completion date. There was, however, an extraordinary time overrun of almost four years, the contract work not being finally accepted until June 28,1956, or 1,423 days after the original completion date. Cronin, was granted time extensions for the full overrun period, thus being relieved of any liability for liquidated damages (the contract rate being $1,200 per day). Luring the course of construction, Cronin frequently complained about delays to and interference with its work allegedly caused by defendant. In addition, defendant initiated a very large number of changes and there was much controversy over the proper amount of compensation therefor. To help him decide the claims which Cronin submitted, at that time (1954) amounting to over $850,000 for the time overrun and almost $900,000 for increased change order compensation, the contracting officer appointed, at different times, two boards to investigate the claims and make recommendations with respect thereto. Thereafter, the contracting officer made certain allowances in connection with the change orders and disallowed the time overrun claim on the ground that it was a claim in the nature of damages for breach of contract, not compensable under the contract provisions. Cronin’s appeal to the Armed Services Board of Contract Appeals resulted in additional change order allowances but the Board dismissed the claims for delay as being beyond its jurisdiction. Thereafter, Cronin filed an 82-page petition herein, consisting of 141 paragraphs, contending that the entire 1,423-day overrun was wholly attributable to scores of breaches of contract committed by defendant and claiming damages with respect thereto in the amount of $1,045,000. However, only one change order claim in the amount of approximately $15,600 is set forth in the petition. As part of the pretrial proceedings, there was issued, under the court’s rules, a pretrial order addressed to the issue of *379 damages for the delays allegedly caused by defendant. The order directed Cronin to furnish to defendant, with respect to such of the damages as were based on Cronin’s books of account or other records, a statement showing the items and figures appearing in such books and records which Cronin intended to prove, and to make such books and records available for examination by defendant. In accordance therewith, Cronin submitted various accounting schedules detailing the basis of its claimed damages. The pretrial order also directed defendant, upon such submission by Cronin, to examine the books and records upon which the Cronin accounting schedules were based, and then, in turn, to submit to Cronin schedules showing the results of defendant’s examination, including an explanation of any differences between its schedules and Cronin’s. Pursuant to the pretrial order, defendant (through four Special Agents of the Federal Bureau of Investigation, Department of Justice) examined the books and records of Cronin upon which the damage schedules had been based. Upon receiving the results of their examination, defendant came to the conclusion that certain of the Cronin damage schedules included, as alleged legitimate expenses of contract performance by the corporation, expenditures which were in fact the personal indebtednesses of its officers. Defendant further became convinced that there had also been included in such schedules, as such alleged legitimate contract expenses of the corporation, payments to certain of its officers and employees which were in fact reimbursements to them of the federal and state tax withholdings that the corporation had made on their salaries. As a result, defendant, on June 27, 1962, amended its answer so as to include therein a special plea in fraud wherein it requested the court to render judgment of forfeiture pursuant to the provisions of 28 U.S.C. § 2514 (1958) , 1 Attached to the plea was a list of 505 “specific *380 items” which were included in Cronin’s schedules and which were alleged as not having been a “part of the expense” of performing the contract. By a second amendment of January 14,1964, defendant added five more items to its fraud plea. During the major period of performance of the instant contract, Cronin was a family corporation, all of whose stock was owned by Daniel C. Cronin, his wife Julia, and their son John, who was the active, operating head of the company. (On July 16,1954, all of the stock was transferred to John.) By 1958, the corporation’s finances had deteriorated, and in 1959 a plan for arrangement under the Bankruptcy Act was filed and adopted by the United States District Court for the District of New Jersey on June 30,1959. Under the terms of the plan, the Cronins resigned as officers and all of the company’s stock was transferred to the Standard Accident Insurance Company, the surety on the contract. Except for the settlement of its financial affairs, the corporation became defunct. The petition herein, filed on October 26, 1959, after the surety had succeeded to the ownership of the corporation’s stock, is part of the attempt to effect such settlement. 2 To assist it in prosecuting the claim of this defunct corporation, the surety retained the company’s former project manager, Boy S. Eyre, who had been with Cronin ever since June 1951. He was the company’s project manager not only on the instant contract but on all the other company projects as well. As such, he became quite familiar with the company and its operations and appeared to the surety to be the most qualified former employee of the company capable of so assisting it. It was he who had prepared the damage schedules which led to the filing of the fraud plea. On November 30, 1965, the Cronin corporation was dissolved under the laws of the State of New Jersey, with its interest in the claim herein being transferred to named trustees in dissolution for the corporation. These trustees have been substituted as the parties plaintiff herein. However, for convenience, as used herein “plaintiff” will refer to Daniel J. Cronin, Inc., the original plaintiff. *381 The taking of testimony with respect to each of the multitude of incidents claimed by plaintiff to constitute breaches of the contract over the approximately five years of contract performance and the damages allegedly flowing therefrom, as well as with respect to the great bulk of the 510 individual items claimed by defendant as having constituted attempts by plaintiff to practice fraud in the establishment of its claim, generated an enormous trial record. Almost 12,300 pages of testimony were taken during approximately 18 weeks of trial, and around 2,800 exhibits introduced. The parties agree that the claim with respect to the one change order which is still in dispute is to be handled by the court upon the basis of a review of the administrative record under the Wunderlich Act ( 41 U.S.C. § 321-22 (1964)), which added over 760 pages of Board testimony for the court’s consideration. The parties’ requested findings of fact and briefs with respect to all the issues total almost 1,900 pages. THE BELAY CLAIM The record fails to support plaintiff’s basic contention that the entire lengthened period of performance is attributable to defendant’s breaches o'f the contract. Plaintiff has presented evidence concerning a great number of incidents which occurred from the very beginning of the work and continued throughout performance, each of which it contends resulted in delays for which defendant is liable. Such incidents relate to practically every step in the construction sequence of each of the various buildings and installations comprising the project, commencing with the excavation and the foundations, and going on to all of the succeeding operations, including the erection of the structural steel, the wall brickwork, the roofing, the miscellaneous ironwork, the electrical and mechanical work, the installation of the special type doors, and the painting. Among other things, plaintiff complains about delays attributed to erroneous, conflicting, and ambiguous drawings (allegedly resulting from the project’s having been hurriedly designed and prematurely let out for bids); delays in approving shop drawings; delays in delivering government-furnished mate *382 rial; delays in approving changes (allegedly dne, in part, to the necessity of defendant’s having to redesign the project constantly while the contractor was attempting to construct it); delays caused by the making of ordered changes (exception being taken to changes ordered after the original work in question had already commenced); delays resulting from interferences from the other contractors also working on the project (exception being taken to defendant’s alleged wrongful action in preferring the other contractors’ operations to plaintiff’s); and delays due to defendant’s failure to coordinate properly the work of the various contractors. The evidence, however, demonstrates that many of the incidents relied on by plaintiff were isolated and nonsequential, and therefore could not possibly have caused any significant delay in the overall progress of the project. Furthermore, with respect to the great bulk of such incidents, plaintiff has failed to prove, or indeed even to attempt to prove, the crucial fact of the specific extent of the alleged wrongful delay to the project operations caused thereby. For the most part, it has not even attempted a reasonable approximation based upon some rational theory. Instead, plaintiff typically relies on each instance as constituting wrongful action which “contributed to the delayed completion” of the particular building or installation “and of the project as a whole,” 3 without indicating whether such “contribution” was one day, thirty days, or any reasonably accurate period of time. Plaintiff simply takes the original and extended completion dates, computes therefrom the intervening time or overrun, points to a host of individual delay incidents for which defendant was allegedly responsible and which “contributed” to the overall extended time, and then leaps to the conclusion that the entire overrun time was attributable to defendant. On this record this “total time” theory cannot be accepted. Such proof of delay is ordinarily as unsatisfactory as the “total cost” method of proving damages. “A Total time’ approach is no less susceptible to inaccuracies than the total-cost theory.” WRB Corporation v. United States, 183 Ct. Cl. 409, 427 (1968). *383 In addition to the hereinabove-mentioned failure of the proof to support any material delay flowing from many of the incidents relied on, there are other factors which compel the conclusion that “[p]lamtifl’s presentation does not support” the “dependability here” of the total time theory. Id. The record shows that a good part of the extended period of time was not attributable to any breach of the contract by defendant. For one thing, this contract contained, as Article 10, a “Changes and Extras” provision which permitted the contracting officer “at any time or times * * * [to] make changes in the drawings or specifications Of this contract and within the general scope thereof,” and to mate equitable adjustments to cover any increases in cost and additional performance time. There were a large number of such changes ordered. However, plaintiff specifically disclaims any contention that defendant abused such contract right to make changes either by reason of the number issued or their scope, i.e., that they amounted to a cardinal contract alteration, and consequently beyond the allowable limits of the article. Accordingly, no damages can be recovered for the exercise by defendant of its reserved contract right to make changes and, consequently, for the extra time required to perform the changed work. United States v. Rice, 317 U.S. 61 (1942); Mount Vernon Gontraeting Oorp. v. United States, 139 Ct. Cl. 688 , 153 F. Supp. 469 (1957). Where the contractor agrees thereto, the compensation fixed by the change order to cover his increased costs and the extension of contract time to perform the changed work give him all to which he is entitled. Magoba Construction Co. v. United States, 99 Ct. Cl. 662 (1943). As stated, of the many changes ordered by defendant on this contract, plaintiff is contesting only one. Consequently, as the court held in John McShain, Inc. v. United States, 188 Ct. Cl. 830, 835 , 412 F.2d 1281, 1285 (1969): “Because of the many delays flowing from the numerous change orders for which plaintiff has already been compensated, it would be improper to adopt plaintiff’s contention that the contract period as a whole must be used in computing the delay involved.” While plaintiff makes no complaint either with respect to the number or scope of the changes, it does contend that *384 defendant abused the right to make them by ordering changes, often in piecemeal fashion, after construction of the portion of the work involved in the change commenced, thereby causing disruption in plaintiff’s original planned sequence of operations. The contention is that had the changes been ordered prior to the commencement of the particular part of the operations involved, they could have been easily incorporated in the planned sequence, and the contractor could then have proceeded efficiently and without interruption. However, since Article 10 specifically authorizes the making of changes “at any time or times,” the contention lacks merit. If defendant orders a change after the portion of the work involved has already commenced, then some work already accomplished and paid for may have to be removed and redone. This may well make the change more expensive to accomplish than had it been ordered before the work commenced. But if the contractor is adequately compensated therefor, the timing of the change cannot, under the article here involved, be the basis of a breach of contract contention. “We know of no contract requirement or any obligation imposed by law which restricts the government’s power to order changes within a specified period.” J. D. Hedin Constr. Co. v. United States, 111 Ct. Cl. 70 , 106, 347 F. 2d 235, 258 (1965). Where a contract contains a “Changes” article such as the instant one, a contractor is not justified in believing that he will be able to proceed from the beginning to the end without interruption. Magoba Construction Co. v. United States, supra at 690. Another example of time improperly included by plaintiff in its total time computation pertains to the question of shop drawing approvals, which is a major issue in this case. In a host of instances, plaintiff complains about the length of time defendant took to approve shop drawings and constantly points to the alleged unduly long period between submission and approval. However, the mere fact that defendant took four weeks, or four months, or even longer, is in itself meaningless. The length of time is meaningful only in relation to the effect it had on the project operations. If the particular item of work involved, because of its proper sequence, and considering the then state of the project, is *385 not to be accomplished until six months later, taking four months to approve it may not be unreasonable. In other situations, one month or even less might be unreasonable. The proof here shows numerous instances in which the shop drawings defendant was holding related to work to be done far in the future. Therefore, their retention did not serve to impede the construction operations. Although held a seemingly long period of time, the drawings were, in the great bulk of the instances about which plaintiff complains, nevertheless approved in ample time prior to the point in the construction sequence when the part of the work involved had to be performed, thus resulting in no delay to the ultimate completion of the project. The length of time taken to give approval does not “establish ipso facto an unreasonable delay on the part of the defendant.” It is the contractor’s burden to show “where the work was delayed because of lack of approval.” Jefferson Constr. Co. v. United States, 177 Ct. Cl. 581, 595-96 , 368 F. 2d 247, 256 (1966). Further illustrating the impropriety of applying plaintiff’s total time theory to this case is the fact that the record clearly shows that a portion of the extended contract time for which plaintiff sues is delay for which plaintiff itself (or its subcontractors) is responsible. For instance, the evidence demonstrates that the progress of the mechanical work was delayed in part due to the mechanical subcontractor’s inactivity, as well as its undermanning of this portion of the work. 4 Similarly, there was inexplicable delay attributable to a sub-subcontractor on the electrical work. 5 The findings of fact herein, which consider each incident upon which plaintiff bases its 1,423-day delay claim, show other instances of inexplicably lengthy periods consumed by plaintiff and its subcontractors in the performance of their work. 6 Thus, in considering the overall extended contract period for which plaintiff sues, we are faced with a conglomerate mass of individual incidents the bulk of which involve inde *386 terminate periods of time or periods which cannot possibly be charged to defendant as breaches of the contract. Accordingly, plaintiff’s basic claim of damages for the full time overrun of 1,423 days cannot be sustained. In Great Lakes Construction Co. v. United States, 95 Ct. Cl. 479 (1942), where the court referred to proof similar to that here involved as “blanket proof,” the contractor failing to prove “the fact that any one or more of the asserted faults of the defendant caused any specific delay * * *” (at 502), the court dismissed the entire delay claim, holding that “[t]here is no satisfactory evidence * * * that because of certain specified conduct on the part of the defendant, certain work of plaintiff was delayed by a certain number of days * * (at 503). Delay claims supported only by a total time theory grounded upon a number of alleged incidents, without a satisf actory showing of the extent of the actual delay caused by any of such incidents, were also dismissed in Jefferson Constr. Co. v. United States, supra; 7 Commerce International Co. v. United States, 167 Ct. Cl. 529, 545-46 , 338 F.2d 81, 91 (1964); 8 and George J. Grant Constr. Co. v. United States, 124 Ct. Cl. 202, 205-06 , 109 F. Supp. 245, 246 (1953). However, to dismiss the delay claim in its entirety in this case because plaintiff erroneously has grounded it upon the total time theory would manifestly be unfair. This is so because, with respect to some of the individual incidents of which plaintiff’s overall claim is composed, an examination of the record shows it to be sufficient not only to substantiate the contention that defendant did cause actionable delay but also to ascertain with a reasonable degree of accuracy the *387 extent of sueih. delay to the project as a whole. As was stated concerning the analogous total cost damage problem in Boyajian v. United States, 191 Ct. Cl. 283 , 254, 423 F. 2d 1231, 1244 (1970) : “In situations where the court has rejected the ‘total cost’ method of proving damages, but where the record nevertheless contains reasonably satisfactory evidence of what the damages are, computed on an acceptable basis, the court has adopted such other evidence * * Indeed, defendant in effect admits that the record does support some measure of recovery on certain of the matters about which plaintiff complains. 9 The separate findings of fact herein set forth the 148 individual alleged delay items upon which plaintiff’s claim rests. The reasons why most of them do not qualify as items of recovery, either because no actionable breach on defendant’s part is shown, or because no reasonably accurate extent of the alleged delay attributable thereto is ascertainable, or both, are in each instance indicated. Such reasons for the most part 'are founded on factual considerations and to discuss all of such matters here would largely amount to a duplication of the findings. Accordingly, there will be here set forth, in the order in which they have been presented by the parties, only the relatively few items (16) upon which plaintiff is entitled to recover'. THU ALTITUDE CHAMBER HOUSE One of three connected buildings constituting the “Test Wing” of the project was an “Altitude Chamber House.” This building was to contain two “altitude chambers” which were included in the equipment indicated in the specifications that would be “furnished and installed” by the Government. The descriptive list of such equipment contained in the specifications indicated that these chambers were being manufactured under a contract between the Navy and the Foster-Wheeler Corporation. Air from blowers driven by 6,000-horsepower motors contained in a building called the “High Pressure Blower Wing,” which air was first dehumidified and then either heated (up to 190 degrees) or cooled *388 (down to 67 degrees below zero) in “rigs” (a certain type of chamber), passed into these altitude chambers where jet engines could then be tested under simulated flight conditions from sea level to an altitude of 65,000 feet. The building, three stories high and resting on concrete footings, had a structural steel frame and brick walls. Under a sequence of work established by defendant (which differed from the sequence plaintiff originally planned), this building was the first that plaintiff was to erect. The FomdaMon Anchor Bolts A part of each altitude chamber was its “inlet portion.” As stated, plaintiff was to construct the foundations for the government-furnished equipment. In this instance, the foundations for such inlet portions constituted a part of the foundations for the Altitude Chamber House itself. The reason for defendant’s requiring plaintiff to construct the Altitude Chamber House first was the expectation of the Officer In Charge of Construction (OINCC) at the site that the altitude chambers would shortly be ready for delivery by Foster-Wheeler. At a conference on June 29, 1951, the OINCC informed plaintiff that the inlet portions of both altitude chambers would be delivered to the site within a week and that plaintiff had to have the foundations therefor ready to receive such equipment. Before proceeding with the foundations plaintiff was required to have its reinforcing steel shop drawings approved, but because of its accelerated schedule, defendant waived such approval for the part of the foundations upon which the inlet portions would be installed. Furthermore, the anchor bolts for the altitude chambers, which were to be embedded in the concrete foundations for the chambers, were, under the contract, to be supplied by defendant, and at the conference defendant agreed to furnish such bolts promptly since the foundations could not be poured without them. Although plaintiff commenced its foundation operations as directed, the anchor bolts were not delivered to the job until July 27 and 31,1951. Furthermore, some bolts included in the shipments were incorrectly fabricated, and other essential bolts were missing. To end the delay, defendant, on August 1, *389 1951, directed plaintiff to secure the necessary bolts and plaintiff was, by August 8,1951, able to obtain them. It could then proceed with the foundation work. When defendant, on June 29, 1951, ordered plaintiff to have the foundations for the inlet portions ready in a week and agreed, in connection therewith, to furnish the anchor bolts required for such work promptly, plaintiff was justified in expecting the receipt of the bolts in a day or two {i.e., by July 1,1951), so that it could proceed with its foundation operations without interruption. The delay in the furnishing of the bolts by defendant, and the further delay caused by requiring plaintiff itself to obtain some of them, resulted in a delay in the completion of the foundations for the inlet portions from July 1 through August 7,1951, a period of 38 days. Unexplained or unjustified failure to make timely delivery of government-furnished material resulting in delay to the contractor’s operations, is a breach of contract. Specialty Assembling & Paching Co. v. United States, 174 Ct. Cl. 153, 162 , 355 F.2d 554, 560 (1966); Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604 , 338 F.2d 94 (1964). No explanation is here given or justification shown for this delivery failure. Delay at this early foundation stage necessarily resulted in corresponding delay in the completion of the building. The Stop Order On October 1,1951 plaintiff commenced erecting the forms for the concrete for a part of the Altitude Chamber House denominated the “fuel room.” This one-story room, situated on the first floor level of the House, extended from its north wall into the building for approximately 25 feet. Constructed entirely of reinforced concrete, the room also served as a support for the structural steel at the second floor level. It was necessary to complete this room before the structural steel frame of the building could be erected, and plaintiff planned to pour the concrete therefor simultaneously with the concrete for the balance of the foundations of the House {i.e., those in addition to the parts of the foundations which were to support the inlet portions of the altitude chambers). On October 4, 1951, however, defendant, over plaintiff’s protest, directed plaintiff to cease its work on the fuel room *390 on the ground that it would interfere with the placement of the altitude chambers by Foster-Wheeler. As mentioned, the OINCC’s order to plaintiff on June 29, 1951 to proceed first with the construction of the Altitude Chamber House was based on the assumption that the chambers would be delivered within a week. 10 However, they were still not delivered by October 4, 1951, when plaintiff was ordered to stop work. Furthermore, on October 18,1951 plaintiff was ordered to remove the forms that had already been erected. By these orders, plaintiff was precluded from bringing any of the construction of the Altitude Chamber House above grade until Foster-Wheeler installed the chambers. Foster-Wheeler did not complete the installation of the chambers until March 5,1952, and on March 12,1952 defendant authorized plaintiff to proceed with its work on the fuel room and the balance of the Altitude Chamber Blouse superstructure. Thus, defendant’s stop order was in effect from October 4,1951 until March 12,1952, a period of 160 days. In justification for its action, defendant relies upon the fact that defendant’s contract with Foster-'Wheeler contained a provision that the walls and roof of the Altitude Chamber House would not be erected until after the chambers were installed on their foundations. However, plaintiff’s contract contained no similar provision, and plaintiff was neither a party to the Foster-Wheeler contract nor did it even know of the existence of such a provision therein. Indeed, plaintiff’s own contract in effect provided otherwise, «.