Syllabus unnecessary in view of the fact that no identity of structure and no infringement have been found to exist between any of the Government structures and any claims which might possess patentable novelty in any of the Isham patents. The petition will be dismissed. It is so ordered. WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge; and GREEN, Judge, concur. ALLEN POPE v. THE UNITED STATES [No. K-366. Decided March 7, 1932. Motion for new trial overruled June 5, 1933] On the Proofs Contract for construction of tunnel; limitation on authority to make changes. Where a construction contract authorizes the contracting officer to make changes, such authority does not extend to an unnecessary substitution of method and equipment for a method and equipment theretofore approved by him and sufficient to do the work. Same; erroneous lines and grades furnished by contracting officer.— Where a Government contractor is bound by his contract to make excavations according to lines and grades fixed by the contracting officer, payment to be based thereon, and said lines and grades are erroneous and subsequently corrected by the contracting officer, the contractor is entitled to recover the additional expense of changing the excavation, and claim therefor is not one for damages. Same; responsibility for defective work.-A Government contractor is not relieved of responsibility for defective work by the mere fact that the performance of the contract was under Government inspection and supervision. Same; neglect to require change orders in writing.-A contract provision that orders for material changes are to be in writing and the price agreed upon, before payment can be made, is binding, and where the contractor makes a material change without requiring the order to be in writing, he cannot recover. Same; unwarranted interference with work. The right of a contracting officer to interfere with the plan or method of performing the work agreed upon does not extend to an unwarranted and arbitrary interference, and the contractor who has successfully assumed the burden of proving such interference may recover his damages. Reporter's Statement of the Case The Reporter's statement of the case: Messrs. George R. Shields and George A. King for the plaintiff. King & King were on the brief. Messrs. Edwin S. McCrary and Charles F. Kincheloe, with whom was Mr. Assistant Attorney General Charles B. Rugg, for the defendant. The court made special findings of fact as follows: I. Plaintiff is, and at the time of making the contract in suit was, a citizen of the United States, doing business in his own name as a contractor, with his principal office and place of business at Washington, D.C. He has at all times borne true allegiance to the Government of the United States and has in no way aided, abetted, or given encouragement to rebellion against the United States, and is the sole owner of the claim described in the petition. II. On December 3, 1924, plaintiff entered into a contract with the United States for the construction complete of a tunnel in the District of Columbia, in accordance with plans and specifications attached and at unit prices therein named. A copy of said contract was delivered to plaintiff on December 24, 1924, thereby fixing the time for completion of said contract work as December 24, 1926. A copy of said contract, together with specifications, is attached to the petition, marked "Exhibit A" and, with the contract drawings, exhibit 1, parts 1 and 2, is by reference hereby made a part of this finding. III. The contract and specifications, paragraph 62, authorized the contracting officer to allow dry packing over the crown of the tunnel arch where necessary. Dry packing was to be paid for by the cubic yard and cement used in grouting was to be paid for at the rate of $3.00 per bag. The contracting officer ordered the plaintiff to dry pack and grout the cavities over the crown of the tunnel arch in the timbered section of the tunnel. The plaintiff dry packed the space over the tunnel arch between the "B" lines vertically extended, as appears from illustrations of cross sections of the tunnel set forth in this finding. He also dry packed the area outside the "B" lines vertically extended and into this THE ROOF, ROTTEN SEAMY ROCK, CAVED IN FOR ENTIRE LENGTH OF 2000 FEET. THE CONCRETE ARCH LINING WAS BUILT TO THE "B" LINE. THE SPACE OVER THE ARCH OUTSIDE OF THE. "B" LINE WAS REQUIRED TO BE FILLED WITH, DRY PACKING, AND; BY DIRECTION OF THE CHIEF OF ENGINEERS ON PLAINTIFF'S APPEAL, WAS REQUIRED TO BE GROUTED FULL. NO PAYMENT HAS BEEN MADE FOR ANY OF THE DRY PACKING NOR GROUT THUS REQUIRED TO BE USED ALL SPACES OVER THE ARCH, INCLUDING CAVE-INS OUTSIDE OF THE |