Opinion of the Court

that in sending them out there was no attempt to fit the telegram to the particular case and that in this instance the claimant received a telegram which in its terms might well have been applicable to other tanners but which was not in fact applicable to it. It advised the claimant that the prospect of using "equipment and harness leather" for further Government contracts was remote. The claimant was not then engaged in manufacturing equipment or harness leather. It requested that its recipient might take such steps as might be possible to convert leather which it had coming through on its contracts into leather suitable for other purposes, whereas it is determined, and in fact conceded, that the claimant had no "contract" to manufacture this special shoe leather for the Government.

It is to be said for the claimant that it no doubt in good faith interpreted this telegram as authority to convert its surplus special shoe leather into a commercial product, and that it incurred the expense it did in so converting this leather in the belief that it was authorized by competent authority so to do and that it would be compensated therefor. But if it had no proper basis for such a conclusion upon its part and there was in fact the incurring of no valid obligation upon the part of the Government to reimburse it for its expense incurred it must still be said that its good faith in the matter can furnish no basis for a judgment at our hands. Considering the claim as predicated upon a contract within the purview of the Dent Act to reimburse the claimant for its expense incurred in this behalf it must be concluded that the facts give rise to no such contract, and that if not deficient in that respect it must necessarily result that it was a contract wholly without consideration, due to the conclusion that there was no valid obligation on the part of the United States with reference to this surplus leather. It is but one of those cases of not infrequent occurrence where a loss results without a legal remedy.

GRAHAM, Judge; HAY, Judge; BooтH, Judge; and CAMPBELL, Chief Justice, concur.

Reporter's Statement of the Case

JOHN L. ALCOCK & COMPANY v. THE UNITED

STATES

[No. C-1018. Decided December 7, 1925]

On the Proofs

Requisition; performance of contract.-Plaintiff, having been permitted by the Government to make and perform certain foreign contracts for lumber, according to their terms, and having been paid the agreed price, there was no requisition of its lumber by the Government that would entitle it to additional compensation from the United States.

The Reporter's statement of the case:

Mr. M. Carter Hall for the plaintiff. Mr. C. C. Carlin and Carlin, Carlin & Hall and Wade & Beck were on the brief.

Mr. P. M. Cox, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff was at the time of the different transactions hereinafter mentioned, and still is, engaged in the business of purchasing, selling, and exporting lumber of all kinds, under the firm name and style of John L. Alcock & Company, with the principal office in Baltimore City, Maryland.

II. Prior to the entry of the United States into the World War, and for several months thereafter, agents of Great Britain, France, and Italy, as well as private firms dealing with manufacturers of airplanes in those countries, had contracted for a large part of the spruce and fir timber growing in the United States, more than the mills of the country could supply. From the entry of the United States into the war, April 6, 1917, to August, 1917, the Equipment Division of the Signal Corps of the Army made contracts with the various mills and lumber dealers to supply spruce and fir lumber for the manufacture of airplanes. Some time in August, 1917, the Spruce Production Division of the Signal Corps was organized, and Colonel Brice P.

Reporter's Statement of the Case

Disque, U. S. A., was placed in charge with station at Portland, Oregon. On September 7, 1917, a telegram, signed by the Secretary of War, was sent to all mills that had contracts with the Equipment Division of the Signal Corps, which reads:

"Under the provision of section 120 of the act of Congress approved June 3, 1916 (39 Stat. 166), entitled 'An act for making further and more effective provision for the national defense and for other purposes, you are hereby ordered to proceed with all possible haste in the production of airplane spruce on the order placed with your company by the equipment division of the Signal Corps. In filling this order you are further required to give preference thereto over all other orders without regard to the order or the date of contracting therefor, provided that this order shall not operate to interfere with necessary Navy work for the Government of the United States.

"By direction of the President."

This telegram was not sent to plaintiff.

III. There was established in the United States by the British Government during the World War for the purpose of procuring war material and supplies a branch of the British Ministry of Munitions of War, designated as the "British Ministry of Munitions of War in the United States of America," with headquarters in Washington, D. C., and a branch in New York. There was a subdivision of this organization called the Division of Aeronautical Supplies, which was engaged, among other duties, in procuring spruce and fir lumber for airplane construction, which during the transactions involved in this case was in charge of Captain David Thomson, of the Royal Flying Corps. There were also French and Italian missions in the United States at the same time for the same general purposes, who so far as the matters concerned in this case go appear to have acted through the British organization. All of the lumber for airplane construction during this period appears to have been transported for the allies in British bottoms, upon permits issued to American brokers by the British Ministry of Munitions in this country and in England. Some time in December, 1917, Major Frederick W. Leadbetter was assigned to the Spruce Production Section of Signal Corps, and appears to have been in charge for the

Reporter's Statement of the Case

United States during the same period. One of the functions of the Spruce Production Division was to allocate to the allies and the United States their respective proportions of lumber for airplane construction. Through Major Leadbetter and Captain Thomson the United States, Great Britain, France, and Italy agreed to discontinue the practice of ordering spruce and fir through private brokers and to order through the Spruce Production Division, and also agreed that permits to transport such lumber to brokers in allied countries would not be issued except through the Spruce Production Division. The Spruce Production Division was to release American brokers 60 per cent of the lumber embraced in their contracts with brokers in allied countries. The releasing was to be done and the sawing of the timber to be ordered by Colonel Disque at Portland, Oregon.

IV. Previous to February, 1918, plaintiff had placed with private parties in Great Britain, intended for use in the manufacture of aircraft for war purposes, orders for 301 cars of spruce and fir. ("C. i. f. U. K." means "cost, insurance, freight United Kingdom.") The orders are as follows:

"Orders Nos. 314 and 350, both of May 31, 1917, state No. 314 sold c. i. f. less 7%. Shipment to be made as soon as possible and not later than Oct./Nov. loading in the interior. War risk for buyer's account. Certificate of the inspection to be final between shipper and buyer. Number 350 sold c. i. f. U. K. less 7% discount and commissions on c. i. f. value; buyer to have option of cancellation of any portion not shipped December 31, 1918; war risk for buyer's account. Buyer to arrange ocean space and to pay invoice valuation after deducting all charges when cars are loaded in the interior; seller to provide inspection certificate with each carload which will be final between the shipper and the buyer. Shipment to be made to Boston, Baltimore, or Pacific coast ports; buyer to get benefit of any saving in inland freight to Pacific coast ports.

"Orders Nos. 336 and 339 of October 18 and November 1, 1917, respectively, state the lumber was sold f. o. b. cars in the interior less 7% for discount and commission; loading to be complete in February next on Order No. 336, and on Order No. 339 shipment to be made as soon as possible. Cer

Reporter's Statement of the Case

tificate of inspection to be final between the shipper and buyer under both orders.

"Orders Nos. 343 and 344 of December 6, 1917, and Nos. 345 and 346 of December 13, 1917, respectively, state the lumber sold c. i. f. U. K., less 7% discount and commission on c. i. f. value. War risk for buyer's account. Buyers to arrange ocean space and pay invoice valuation after deducting all charges when cars are loaded in the interior. Seller's certificate with each carload shipped shall be final between the shipper and buyer. Shipment with all possible speed to Baltimore and Boston."

According to instructions from Major Leadbetter, in charge of the production department of the United States Signal Corps, the plaintiff, on February 5, 1918, submitted to him the list of the 301 cars of pine and fir at Baltimore, or on the way there, that he had sold abroad, containing the car numbers of orders placed, and giving their order number, also his order number, the contract number, and the foreign contract date.

The difference between what plaintiff would have received had this lumber been delivered and paid for under these foreign contracts, with interest thereon at legal rate from February 5, 1918, and the amount which the owners actually received from the British, French, and Italian Governments under arrangement subsequently made for the disposition of the lumber, is what is claimed in this suit.

These differences, stated by contracts, are as follows:

At the time these foreign orders were placed the price for such lumber in the domestic market was advancing, and, after deducting ocean freight, brokerage, and insurance, the price under the orders was about ten to fifteen dollars per M cheaper than the price here.