27 F.2d 212 | 3rd Cir. | 1928
In the court below, McNeil & Sons brought' suit against the United States to recover the value of ears of coal commandeered or taken, as is alleged, by the latter, and never paid for. The sequence of acts by the parties to this suit was as follows: McNeil & Sons, who were under contract to deliver certain coal they had sold to the Netherlands and Swedish government, shipped the carloads here involved at various times between October 31, 1919, and March 31, 1920, on various railroads. For this coal they were to be paid at the average price of $7.25 per ton f. o. b. piers. By virtue of the proclamation of the President of the United States of October 30, 1919, reinstating the former rules and regulations of the Fuel Administrator, this coal was thereafter seized by the government, thereby causing a loss to McNeil & Sons of said $7.25 per gross ton. No attempt or offer of the United States was made to make payment for the coal under provisions of section 10 of the Lever Act (Comp. St. §' 3115%ii). After certain steps, to which reference will be hereafter made, McNeil & Sons brought suit against the United States to recover this value of said coal. Jury was waived, and the case tried by a judge, who found the coal had been taken as aforesaid by the United States; that during the months of November and December, 1919, and January and February, 1920, no market for coal existed and McNeil & Sons were unable to get coal from any source to replace the coal taken, and that in' March there was some market of which the value was stipulated. It will thus be seen that the plaintiffs under such facts and acts of the parties had a cause of action to recover from the United States the damages they had sustained by reason of its taking their coal, and on proof of' such facts, which are not questioned, it was entitled to so recover unless the government showed that in some way, payment, release, etc., such action and the damages incident thereto was satisfied. Such defense the United States seeks to make by reason of certain acts of third parties, to which we now refer.
When requested to pay for this coal, the United States denied all liability therefor,
These findings, together with others to which reference could be made, show that this was not the ordinary case of an election where there is freedom of choice, but one where the party who says there was an election has by a refusal to meet its just obligation itself created a condition where there was practically no freedom of choice and no alternative save financial ruin. In so far, therefore, as the court below found a verdict in favor of the plaintiff, it is sustained, but the record will be remanded to assess the damages in the amount stipulated, which is the damage sustained by the taking by the United States less amounts received from the divertees.
WOOLLEY, Circuit Judge, dissents.