The opinion
DAVIS, Judge
(concurring).
Joining the court’s opinion, I add some supplemental observations (on one aspect of Count I) which are not inconsistent, as I see it, with that opinion. As the court holds, it is clear from the materials presented to us on Count I that (a) the letter contract was never terminated, directly or constructively, (b) the parties continued the letter contract in effect by mutual agreement, and (c) Modification 43 did not purport to establish the final fee but fixed only an interim fee subject to possible enlargement. From these premises it would not be bizarre to argue that the parties implicitly amended the letter contract to agree, in fact, that a “reasonable” fee would be paid, without coming to any accord on the final figure. If this were so, one might then go on to say that the special “payments” clause of the original letter contract — not the separate “payments” clause inserted by Modification 43, which is the only “payments” provision the court’s opinion deals with — was a “specific contract adjustment provision” calling for an appeal to the Armed Services Board of Contract Appeals if the parties could not agree upon the amount of the “reasonable” fee. 1
*300 I do not take this path because I have concluded that (leaving Count II aside) the Government never actually undertook to pay any more than the fee set by Modification 43, regardless of whether a higher fee would be “reasonable”. The Navy’s conduct (still putting Count II apart) shows that it never subjectively agreed to pay whatever fee was determined to be “reasonable”. It may be that, in the end, the defendant will be held, under the principles of quasi-contract, to pay such a larger fee, but I feel that the Navy should not be found, on the record before us, to have actually (i. e., in fact) agreed to pay a “reasonable” fee. Therefore, if plaintiff prevails, it will not be “under the contract”, in the Bianchi-Utah-Grace sense, but either in quantum meruit or for a breach.
. The “payments” clause in the original letter contract was as follows:
“(d) Subject to the dollar limitation set forth above, payments on account of cost expenditures during the letter contract *300 period shall be made in accordance with the clause hereof entitled ‘Allowable Costs, Fixed Fee, and Payment.’ Xo payments of fee shall be made under this letter contract, except pursuant to a termination settlement.”
Modification 43 certainly deleted the last sentence of this provision, and it could also be argued, if an actual agreement on a “reasonable” fee had been made, that that subsequent agreement for a “reasonable” fee gave new content to the clause on “Allowable Costs, Fixed Fee, and Payment” (emphasis added), and thereby triggered the “payments” clause quoted above.