United States of America, Appellant, v. John Mcshain, Inc., Appellee, 288 F.2d 165 (D.C. Cir. 1961)

This is a sequel to our decision in United States v. John McShain, Inc., 103 U.S.App.D.C. 328, 258 F.2d 422, certiorari denied 1958, 358 U.S. 832, 79 S. Ct. 52, 3 L. Ed. 2d 70. We there decided that it was error to dismiss the complaint of the United States, seeking damages for alleged breach of a construction contract, at the close of the Government's case, since its evidence indicated prima facie that a contract between the United States and the defendant-appellee had been made and that the latter had breached it. We remanded for trial at which the defendant McShain would have an opportunity to introduce its proof, but indicated no view as to the result to be reached once all the proof had been received. At the close of the trial on remand, the jury returned a verdict for the defendant, finding specially, inter alia, in answer to an interrogatory, that there was a mutual understanding by both parties that the proposal of the defendant was not to be a firm bid upon the project. Under this finding the defendant's proposal, which the plaintiff purportedly accepted, did not result in a contract. Judgment was entered accordingly, and the United States appeals.

We cannot say that the jury's special finding just mentioned, or the jury's general verdict, lacks support in the evidence. We find no reversible error with respect to the judge's charge, or any other aspect of the case, with this exception: We think it was error to award the defendant the costs of its defense against the United States, 28 U.S.C. § 2412(a); Ewing v. Gardner, 1951, 341 U.S. 321, 71 S. Ct. 684, 95 L. Ed. 968; United States v. Patterson, 5 Cir., 1953, 206 F.2d 345, 348; cf. United States v. Chemical Foundation, 1926, 272 U.S. 1, 20-21, 47 S. Ct. 1, 71 L. Ed. 131. These costs will be eliminated from the judgment, and the judgment, so modified, will be affirmed.

So ordered.