dissenting:
We do not think that the facts of this case meet the requirements of a mutual mistake of such a nature as would authorize a setting aside of its plain terms. The specifications are very clear. They were attached to the invitation to bid and became a part of the contract without any request on the part of either party that they be changed. Olympia Shipping Corporation v. United States, 71 C. Cls. 251, 262-3.
*260Undoubtedly there was conversation in the Area Engineer’s office and it is altogether likely that plaintiffs calculated their bid upon the belief that Fir-Tex would be available within the time required. They evidently relied upon the information furnished by the Baker Ice Machine Company, but after all the conversations had taken place the plaintiffs signed 'a contract which obligated them to do the construction work and furnish one or the other of three different types of insulation material. When it became apparent that the first two types of material would not be available within the time required, and that the semi-rigid substitute would not be acceptable, the plain terms of the contract required that plaintiffs use the only other available material specified therein. This was done and the work of the contract was completed and accepted by the Government on August 3, 1943.
The local officers were not authorized to change the terms of the contract without the approval of the Chief of Engineers or the head of the department.
The facts of this case do not bring it within the pattern set out in the cases cited by the plaintiffs. Plaintiffs were unfortunate in that they relied upon the mistaken belief that the cheaper material would be available, but the defendant made no such guarantee. The plaintiffs obligated themselves to. do certain work within a specified time with one of three different kinds of material. They did the work with one of the materials specified in the contract, and they have been paid the price stipulated in the written agreement.
The petition should be dismissed.
Judge Littleton authorizes me to say that he concurs in the foregoing dissent.