# E. H. Sales, Inc. v. The United States

> United States Court of Claims · January 22, 1965 · 340 F.2d 358

URL: https://www.frixlaw.com/law-library/cases/9450425

## Case

- **Full name:** E. H. SALES, INC. v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** January 22, 1965
- **Citations:** 340 F.2d 358; 169 Ct. Cl. 269; 1965 U.S. Ct. Cl. LEXIS 52
- **Precedential status:** Published
- **Opinion:** Concurrence by Dayis
- **Judges:** Dayis, Cowen, Durfee, Davis, Collins, Whitaker
- **Cited by:** 13 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/9450425

## Opinion text

DAYIS, Judge
(concurring).
I join the opinion of the court which decides, as a matter of law, that plaintiff’s interpretation of the contract is correct. But I append a few sentences on the finding by the Board of Contract Appeals that plaintiff itself understood that the contract fell into the indefinite-quantities class. This finding rests, entirely, on statements and occurrences after the revision of January 16, 1956; the Board admits that there is no relevant extrinsic evidence as to the parties’ intention prior to or at the time of the modification. Some of the post-contract items cited by the Board indicate that plaintiff later became troubled by the language inserted in Section B by the revision of January 1956, but the facts on which the Board relies do not add up to an acceptable showing that plaintiff acquiesced in the defendant’s interpretation of the modified contract while it was being performed. For instance, admissions that a contract embodies phrases which appear to support the other party do not amount to an agreement that he is also right if the contract is read as a whole. Similarly, mere failure to raise legal points promptly, or to ask for relief as soon as possible, can rarely be elevated, by itself, into a “practical” acceptance of the other side’s construction of the contract (so long as the issues are timely presented, as they were here since the Board considered them on their merits). There often are other substantial explanations for such conduct. In this case, the plaintiff’s actions and inaction, prior to the termination of the last agreement in the series, were all thoroughly consistent with a hope that the successive contracts would ultimately afford plaintiff adequate work, and therefore that it need not yet bring up the matter of increased compensation. In a word, the neutral facts to which the Board points form an insubstantial basis for finding any dispositive practical construction of the contract by this contractor.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450425. Public record. Not legal advice.