(dissenting).
It cannot be denied that the result reached by the court in this ease would be a fair and just one, if the contract between the parties permitted it.
The parties could have contracted between themselves that if the cost of doing this work turned out to be expensive beyond reasonable expectations, the parties should be equally charged with the excess. But this is not what they did. The plaintiff agreed to do the work for a fixed sum. There was no provision in the contract for the payment of any additional sum if the cost of doing the work turned out to be much greater than had been expected. Indeed, neither party knew how much work would have to be done to ascertain whether the cold-cup process would work without the use of a grinding machine, and yet the contractor agreed to do the necessary work for a fixed sum.
Furthermore, as the work progressed and costs mounted, the plaintiff never told defendant that its costs were far in excess of what it had anticipated, and never requested the Government to pay any part of the excess. No contractor can charge the Government with any part of unanticipated costs, except those coming within the “Changes” articles, where the contract provides that the plaintiff should do the work for a specified sum. To require the Government to pay an amount in addition to the stipulated sum, because the contractor incurred greater expense than he had anticipated, would leave the Government in a wholly untenable position, never knowing what a job was going to cost it, although the plaintiff had contracted to do it for a specific sum.
Many times when the Government asks a contractor to do an exploratory job, the cost of which is uncertain and which neither party can foresee, the parties enter into what are sometimes called research and development contracts, under which each party agrees to share in the cost of doing the work. That is what the parties probably should have done in this case, but they did not. The plaintiff undertook to do the work for a fixed sum, and, in my judgment, that is all it is entitled to recover. That is all the Government agreed to pay, and that is all the Government should pay. As. a matter of generosity, the Government, might well have agreed to pay the additional expense, but no court can require a person to be generous; it can only require him to be just.
Even a mutual mistake as to an antecedent or existing fact does not justify reformation of a contract (Maryland Cas. Co. v. United States, for Use of Green, 8 Cir., 169 F.2d 102 and cases there cited), but, even if it did, I cannot see that there was any mutual mistake of fact in this ease. The defendant did not know what it would cost plaintiff to do the work nor, I suppose, did plaintiff, although plaintiff thought it knew when it agreed to do the work for a fixed sum. Plaintiff was mistaken, but the mistake was only plaintiff’s and not that of the defendant. There was no mutual mistake of fact. When plaintiff agreed on a fixed price, it assumed the risk of doing the work for this sum; defendant did not agree to share the risk. Even if contracts could be reformed for a mistake about a fact supposed to exist or to have existed at the time the contract was agreed upon, they certainly cannot be reformed because the parties could not accurately foretell the future.
I sympathize with the plaintiff, but it made a contract and it is entitled to recover only according to that contract. I regret to dissent, but I must.