Finally, a contractor's own treatment of an event, reflecting its "practical interpretation of the contract . . . at a time when it was not a subject of controversy, is entitled to great, if not controlling, weight." Inland Empire Builders, Inc. v. United States, 424 F.2d 1370, 1378, 191 Ct.Cl. 742 (1970); see Blanchard v. United States, 347 F.2d 268, 273, 171 Ct.Cl. 559 (1965). By Riverside's own accounting treatment, the transaction with Warwick was recognized as a financial windfall, not an economic sacrifice.
The practical interpretation of the contract by the parties themselves during performance, before a dispute arises, is of great importance in resolving disputes involving contract interpretation. See Blanchard v. United States, 347 F.2d 268, 171 Ct.Cl. 559 (1965); and Manufacturers Aircraft Ass'n v. United States, 77 Ct.Cl. 481 (1933), cert. denied, 291 U.S. 667, 54 S.Ct. 442, 78 L.Ed. 1057. Under the view we take of the meaning of the contract, either of the parties could adjust any variation in observing the 37,500 pound delivery schedule in any year or years, up or down, in a later year or years of the contract period, so as to arrive at an average of approximately 37,500 pounds per year, provided the yearly average of approximately 37,500 pounds or the total amount of 187,500 pounds to be sold and delivered under the contract was not exceeded, except by consent of both parties.
Such understanding on the part of the parties should be accorded great weight. See, e.g., Chase Rice, Inc. v. United States, 173 Ct.Cl. 740, 746, 354 F.2d 318, 321 (1965); Blanchard v. United States, 171 Ct.Cl. 559, 566, 347 F.2d 268, 273 (1965). Moreover, it is well settled that "[w]here the Government draws specifications which are fairly susceptible of a certain construction and the contractor actually and reasonably so construes them, justice and equity require that that construction be adopted."
This practical interpretation of the contract by the parties, at a time when it was not a subject of controversy, is entitled to great, if not controlling, weight. Chase Rice, Inc. v. United States, supra; Blanchard v. United States, 347 F.2d 268, 273, 171 Ct.Cl. 559, 566 (1965); Crown Coat Front Co. v. United States, 292 F.2d 290, 292-293, 154 Ct.Cl. 613, 617 (1961). Plaintiffs' suggestion that if the contract be deemed ambiguous, it be construed against defendant as drafter, is "now of no moment."
Perhaps in retrospect, with the missing drawings supplied, and with full explanation of defendant's intended use of the contours, previously obscurely manifested, one could question the reasonableness of plaintiff's interpretation and plaintiff's corresponding failure to comprehend the significance of the not too evident inconsistencies; but plaintiff was not expected to exercise clairvoyance. Blount Bros. Constr. Co., supra. Under the circumstances as revealed by the entire record in the case, plaintiff's interpretation was certainly a reasonable one, and, therefore, under familiar principles of contract interpretation its interpretation rather than that of the defendant-drafter of the language must be adopted. Blanchard v. United States, 347 F.2d 268, 171 Ct.Cl. 559 (1965); Bennett v. United States, 371 F.2d 859, 178 Ct.Cl. 61 (1967). Plaintiff is accordingly, entitled to extra compensation under the changes provisions of the contract.
This point is particularly persuasive because the contemporaneous construction of the disputed language before it becomes the subject of judicial controversy is entitled to great weight when this court must interpret the language. Chase Rice, Inc. v. United States, 354 F.2d 318, 321-322, 173 Ct.Cl. 740, 746 (1965); Micrecord Corp. v. United States, 361 F.2d 1000, 1004, 176 Ct.Cl. 46, 53 (1966); Blanchard v. United States, 347 F.2d 268, 273, 171 Ct.Cl. 559, 566 (1965). The means of providing transportation over a trade route, including the itinerary, sailing frequency, number and type of vessels to be employed.
Franklin Co. v. United States, 381 F.2d 416, 419, 180 Ct.Cl. ___, (July 1967). Blanchard v. United States, 347 F.2d 268, 273, 171 Ct.Cl. 559, 566, (1965). In the instant case, plaintiff's very first letter was written on September 25, 1962, approximately 2 weeks after the contractual period for making calls under the contract had expired.
In contending for its motion for summary judgment, defendant argues that whether or not a default is excusable is a question of fact, and that the findings of the Board on this question are final and conclusive under the Wunderlich Act. Numerous decisions of this court hold, however, that where, as here, the ultimate determination of liability turns on the proper interpretation of contract provisions, the issue is one of law which this court resolves independently. Southwest Welding Mfg. Co. v. United States, 373 F.2d 982, 179 Ct.Cl. 39 (1967); United Contractors v. United States, 368 F.2d 585, 177 Ct.Cl. 151 (1966); Blanchard v. United States, 347 F.2d 268, 171 Ct.Cl. 559 (1965). Defendant cites Whitlock Corp. v. United States, 159 F. Supp. 602, 141 Ct. Cl. 758, cert. denied, 358 U.S. 815, 79 S.Ct. 23, 3 L.Ed.2d 58 (1958), Walsh Bros. v. United States, 69 F. Supp. 125, 107 Ct.Cl. 627 (1947), and related cases in which this court has ruled that prime contractors were not entitled to be excused under clauses similar to that in the instant contract, for delays in performance of the contracts.
In ascertaining this intention, the court gives great, if not controlling, weight to the interpretation placed by the parties themselves upon the contract as evidenced by their statements and conduct prior to the time when the contract becomes the subject of controversy. Chase Rice, Inc. v. United States, 354 F.2d 318, 173 Ct.Cl. 740 (1965); Blanchard v. United States, 347 F.2d 268, 171 Ct.Cl. 559 (1965). In the instant case, the plain language of the contract documents called for antenna couplers with single knob control and the parties interpreted this language to mean only single knob control, without the additional separate tuning knobs called trimming adjustments.
Since great weight is given to the practical interpretation of a contract by the parties to it before the contract becomes the subject of controversy, if such is the case, then it reinforces Maxwell's interpretation of the specifications. Crown Coat Front Co. v. United States, 292 F.2d 290, 292-293, 154 Ct.Cl. 613, 617 (1961); Blanchard v. United States, 347 F.2d 268, 273, 171 Ct.Cl. 559, 566 (1965); Chase Rice, Inc. v. United States, 354 F.2d 318, 322, 173 Ct.Cl. 740, 746 (1965). The other conclusion is that the representatives of the Government were aware Maxwell was reading the contract specifications more stringently than required, but that they said nothing, possibly in the hope that Maxwell would be able to meet this more demanding standard.