60 Ct. Cl. 184 | Ct. Cl. | 1925
delivered the opinion of the court:
The plaintiff sues to recover an alleged price for a large amount of sugar it furnished to the Navy. It claims that there was an agreed price of 23 cents per pound. After delivering the sugar it rendered a bill based on these figures, with an additional charge of 10 cents per bag and another small charge, all aggregating $97,356. The Government was credited with the payment made on the sugar at 14 cents per pound and a “discount” of $1,200. The difference of $37,356 is the principal sum claimed in the petition. The officials representing the Government in the transaction offered to settle for it on the basis of 17% cents per pound. This offer was refused by the plaintiff, and on that phase of the case the question is what price was payable for the sugar.
The Government presents, however, a contention that the Court of Claims is without jurisdiction of the controversy. Insisting that the sugar was “ requisitioned ” under the authority conferred by the tenth section of the act of August 10,1917, 40 Stat. 276, known as the Lever Act, the argument is that plaintiff could only sue in a district court of the United States. Pfitsch case, 256 U. S. 547. The facts do not show a requisition of the sugar, but they do establish the existence of a valid contract. They show that an order-dated April 15,1920, directed to the Federal Sugar Befining Co. at its office in New York, was issued out of the Bureau of Supplies and Accounts of the Navy Department, by which an order was placed with plaintiff for 420,000 pounds of granulated sugar to be delivered by May 1, 1920, to provisions and clothing department, fleet supply base, Thirty-
This order was duly accepted by the plaintiff and the original was returned to the bureau. The acceptance reads: “The above order is accepted subject to the conditions in subparagraph B above.” The plaintiff subsequently delivered to the designated agency of the Navy Department, in the specified kind of sacks, the amount of sugar called for in the “ attached ” sheet. It was received and used by the Navy. A copy of the order and of its acceptance is .set forth at length in Finding II. Considering all of its terms and the acceptance, it contains Avithin its four corners all the essential elements of a contract of sale. It states the amount of granulated sugar ordered, the time and place of its delivery, the kind of sacks in which it is tó be put, and a “ provisional price of 14 cents,” and the acceptance of-it appears. The fact that a final price was then left open for future determination does not defeat the contract, especially since
The argument of counsel for the Government predicates the want of jurisdiction upon the contention that the sugar was obtained by means of a “Navy requisition order No. N-6273,” and that “the requisition of food supplies” was only authorized by the tenth section of the Lever Act. We do not understand this contention to go to the length of claiming that the Lever Act was the only laAvful authority under which supplies for- the Navy could be secured. It must, of course, be recognized that ample authority to contract for food and other supplies is to be found in statutes
A weakness in the theory of a requisition of the sugar is the absence of evidence to support such a theory. Calling an order or a proposal a requisition order does not make it so or change its effect. The power of requisition given by the act involved in its exercise the taking of property for which the act as well as the Constitution provided just compensation should be made. An order for the goods might very well be one of the steps in a contemplated requisition of them, and a refusal to comply with the order could be another step tending to justify a resort to the extreme measure of taking, authorized by the statute. But where an order is given in expectation of its acceptance and it is accepted and the goods delivered, there is no requisition or any necessity for it. Nor does the fact that the form in which it was drafted stated that compliance with the order was “obligatory” constitute the order a requisition or deprive it of its contractual effect. If it was in fact obligatory no acceptance of it was necessary. It was said in American Smelting Co. case, 259 U. S. 75, 79, “As pointed out by the Court of Claims, the acceptance was sent because the claimant was advised by the Government that no payment could be made until the claimant had accepted in writing the Government’s proposal, whereas no acceptance was necessary if the order was a compulsory requisition.” Yet, an acceptance was invited in the instant case and was given. It is said in the American Smelting Co. case, 55 C. Cls. 466, 471, in an opinion by Judge Hay: “Where one party makes an offer to another by letter and the party to whom the letter is addressed prepares and mails his answer accepting the proposal, a contract is made between the parties and is binding upon them.” In Herrmanns case, 57 C. Cls. 96, where the plaintiff delivered goods in England upon an order stating the price and did not wait for them to be “commandeered,” it was held that a protest against the price when paid him was unavailing to defeat the contract. See also Gibbons case, 8 Wall. 269. We repeat, the rights
Judgment will be awarded on the basis of the ascertained value of the sugar at the date fixed for its delivery, less the amount already paid. And it is so ordered.