William F. Wilke, Inc. v. Cummins Diesel Engines, Inc.

The dilemma which this controversy posed for the trial court was aptly put by Alexander Pope more than two centuries ago: “Be not the first by whom the new are try’d, Nor yet the last to lay the old aside.” 1 A resolution of the problem calls for a deep draft from Pope’s Pierian spring. 2

William E. Wilke, Inc. (Wilke), the appellant here and plaintiff below, is a mechanical contractor who was a subcontractor on a job involving the construction of certain facilities for the United States government at Aberdeen Proving Ground. The performance of the contract required, among other things, that…