“The provision relied on by the plaintiff, to the effect that ‘Tests shall be witnessed by the Government inspector,’ was undoubtedly inserted for the benefit of the defendant .... If the defendant elected to have an inspector present only during portions of a test, this did not provide any sound basis for a complaint by the plaintiff.”
How later courts described this case
- “The provision relied on by the plaintiff, to the effect that ‘Tests shall be witnessed by the Government inspector,’ was undoubtedly inserted for the benefit of the defendant .... If the defendant elected to have an inspector present only during portions of a test, this did not provide any sound basis for a complaint by the plaintiff.”
Written by the judges who cited it.
The opinion
DAVIS, Judge,
(concurring):
When this case was earlier before us on the question of whether plaintiff was entitled to a de novo trial on the merits of this claim, I dissented from the court’s order (in favor of de novo trial) on the ground that the failure to supply Government inspectors was a constructive change within the Changes Article and therefore within the Board’s jurisdiction. Now that the case has been tried here under the court’s directive, I bow to the prior decision and on the merits agree with and join in the court’s opinion and judgment.