The opinion
WHITAKER, Judge
(dissenting).
I regret that I am unable to agree with the opinion of the majority.
That opinion correctly says that “the time when a right to receive or a liability *186 to pay an ascertainable amount becomes fixed * * * is decisive of the proper time for accrual”; but I disagree with the statement that the amount of plaintiff’s profit was ascertainable in the fiscal year ending in 1945.
The contracting officer had agreed with plaintiff that its profit should be a certain percentage of the cost of the work done, but this was subject to approval by the Settlement Review Board. On review, the contracting officer’s superiors in Washington demanded an explanation of the difference between the estimated figure of work in process of 25 percent, on which the agreed percentage of profit had been based, and the actual figure of 7 percent. Most of the contracts provided for a profit, in the absence of an agreement, of 2 percent of the cost of materials purchased, but not in process, plus 8 percent of the cost of work in process. The profit agreed on between plaintiff and the contracting officer was based on the estimate that 25 percent of work was in process. It was not until after this variance between the estimate of work in process and the actual amount had been explained that thé Settlement Review Board approved the rate of profit tentatively agreed upon. This was on March 27, 1946, long after the close of the fiscal year ending in 1945.
It was impossible to ascertain the amount of plaintiff’s profit until the rate or percentage to be used in computing it was known.
The fact that the rate of profit was not determined prior to September 30, 1945, is an essential difference between this case and Continental Tie and Lumber Co. v. United. States, 286 U.S. 290 , 52 S.Ct. 529 , 76 L.Ed. 1111 .
In Continental Tie only two factors had to be considered in determining the amount of the award: (1) income figures derived from the books of the plaintiff, and (2) the calculations required by section 204 of the Transportation Act of 1920, 41 Stat. 456 , 460. Under that Act these two factors were fixed, with nothing left to be done except the ministerial act of computing the award. No action of either party could have varied these factors; hence, no action of either party could have varied the amount of the award. Not so in the present case. Although the cost figures might have been reasonably ascertainable from plaintiff’s books, there was no statutory formula nor an agreed percentage to apply to these figures. On the contrary, there was a variable profit percentage rate to be determined by negotiation and settlement between the parties, if possible. Therefore, unless a settlement had been reached, which was binding on the parties, or it was definitely determined that none could be reached, it cannot be said that the amount to which plaintiff was entitled was capable of being reasonably ascertained. The profit rate tentatively agreed upon could have been revised prior to September 30, 1945, and, hence, the amount of the award was not known prior to that date. As pointed out above, this was not the case in Continental Tie; therefore, that case is not controlling.
In the opinion of the majority, it is stated that the tentative profit rate was not challenged. This is erroneous. In finding 35, it is said that at the January 8, 1946 meeting, the reasonableness of the 4.875 percent rate was questioned, because it had been predicated on an estimate of the percentage of plaintiff’s inventory consisting of work in process which was at variance with the percentage shown in plaintiff’s settlement proposal. If plaintiff had been unable to explain the discrepancy, in all probability defendant would have found the 4.875 percent rate unreasonable, and would not have approved it.
For the reasons stated, I respectfully dissent.