# Neil a Goldwasser, Doing Business as Century Offset Company v. The United States

> United States Court of Claims · December 13, 1963 · 325 F.2d 722

URL: https://www.frixlaw.com/law-library/cases/9449777

## Case

- **Full name:** Neil a GOLDWASSER, Doing Business as Century Offset Company v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** December 13, 1963
- **Citations:** 325 F.2d 722; 163 Ct. Cl. 450; 1963 U.S. Ct. Cl. LEXIS 153
- **Precedential status:** Published
- **Opinion:** Dissent by Davis
- **Judges:** Jones, Davis, Whitaker, Laramore, Durfee
- **Cited by:** 27 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/9449777

## Opinion text

DAVIS, Judge
(dissenting in part).
I stand with the court on two propositions: (a) this was a requirements contract, not an “indefinite quantities” contract; and (b) Klein v. United States. 152 Ct.Cl. 8 , 285 F.2d 778 (1961), requires us to hold that, if plaintiff’s contract was wrongfully terminated for default, it cannot now be considered as having been terminated for the defendant’s convenience. I depart from the *730 court in believing that this contract was not terminated for default and that no issue of default is presented. The defendant does not argue that plaintiff was in default or that the contract was terminated under the default article. In cancelling the agreement, the contracting officer did not mention that clause; the references in Admiral Pyne’s letter of October 4, 1960, to plaintiff’s standard of work seem to me no more than an explanation of the reason why the defendant was exercising the privilege it thought it had of refusing to deal with plaintiff at any time and for any reason. The truth, to my mind, is that defendant’s officials erroneously considered this an “indefinite qualities” contract and proceeded on that basis. They mistakenly thought the United States would incur no liability of any kind, no matter what the state of plaintiff’s performance.
In the absence of a convenience-termination article, the defendant’s abrupt cancellation when it still needed the printing would have been a breach entitling plaintiff to the full common-law measure of damages. The termination article, however, sets the limit to the possible recovery and precludes prospective profits. As the Chief Judge points out, the failure of the defendant to invoke that article makes no difference. This was not a termination for default and the rule of the Klein case is inapplicable. See John Reiner & Company v. United States, Ct.Cl., 325 F.2d 438 and Brown & Son Electric Company v. United States, Ct.Cl., 325 F.2d 446 . 4 It follows, in my view, that the measure of plaintiff’s damages is what he would have received if there had been a convenience-termination.
. In the course of showing that the defendant never invoked the termination-for-convenience article, the court points out that the contracting officer did not send a termination notice or follow the regulatory procedures for such a termination. Those facts are entirely relevant to deciding whether the default-termination or the convenience-termination mechanism was triggered by this contracting officer. The court decides, on the basis of these and other circumstances, that the default article was used in this instance and decides the case on that foundation. The failure to invoke the convenience-termination article and procedures would not matter, however, if the contract were cancelled, not for default, but because the defendant erroneously believed the agreement to be an “indefinite quantities” contract. See John Reiner & Company v. United States and Brown & Son Electric Company v. United States, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449777. Public record. Not legal advice.