(concurring).
I concur in the foregoing opinion and should like to add some observations of my own. The language quoted from the July 12, 1944 amendment to the contract between the parties may be susceptible of two constructions. But certainly it is a permissible construction that the words “will be reimbursed for actual out-of-pocket expense incurred in connection therewith” refers to all expenses incurred in connection with the stockpiling.
This construction, which the trial court adopted, appears to me to be the more reasonable one. For obvious reasons the language should be construed most strictly against Metals Reserve which drew the instrument. It is unreasonable to suppose that Sullivan would have agreed to the stockpiling arrangement if it had not contemplated a chance to get its expenses back by processing the concentrates itself. It is difficult to understand how it would agree to a modification of the arrangement which would result in its losing all these costs. The correspondence in evidence indicates that as late as June 23, 1949, the Bureau of Federal Supply did not dispute Sullivan’s contentions as to the meaning of this language as embracing reimbursement for both “inbound” and “outbound” costs, indicating that the only question was whether Reconstruction Finance or the Bureau should pay such charges for material shipped prior to December 1, 1948. Clearly the present contention of Reconstruction Finance is an afterthought.
With respect to the claim that Sullivan had agreed in advance in the original stockpiling contract that its claims against Metals Reserve (and Reconstruction Finance) should cease upon the latter’s assignment to any other branch or agency of the Government, it is plain that that provision for release of the original obligor cannot serve the appellant here for the provision was a conditional one. It was expressly “conditioned upon such assignee’s assuming all duties and obligations of Metals Reserve hereunder”. After Reconstruction Finance notified Sullivan that it was going to transfer and assign, it did in fact execute a written assignment to the Bureau of Federal Supply, which is exhibit 22 in evidence. That also contained the same condition respecting the assignee’s assuming all duties and obligations of the assignor. But the Bureau never did so. On August 9, 1949, it wrote Sullivan expressly disclaiming all liability for the charges about which Sullivan had been writing and upon which it was insisting; charges, which, as we here hold, were perfectly valid ones. Since the express condition for the appellant’s release was never fulfilled, the release was never accomplished.