61 Ct. Cl. 312 | Ct. Cl. | 1925
delivered the opinion of the court:
The plaintiff is a lumber broker, conducting an extensive business from Baltimore, Md. During 1917 it had a number of contracts with foreign lumber brokers in Great Britain to supply them with a vast quantity of spruce and fir
Prior to our entry into the war accredited representatives of Great Britain, France, and Italy came to this country, being charged, among many other duties, with the procurement of spruce and fir lumber for airplane construction. As soon as the United States became involved in the war, a critical situation with respect to this particular war commodity arose. The allied countries had outstanding contracts, and, the needs of the United States becoming acute, it became a question, in view of the limited supply and abnormal demand, as to what should be done. The conflicting interests of the several countries brought about confusion, or as was said by the British representative, “ the spruce situation was attended with complications.” To solve the attending difficulties, some time in August, 1917, the spruce production division of the Signal Corps of the Army was organized. Colonel Brice P. Disque was put in charge and stationed at Portland, Oregon. September 7, 1917, the Secretary of War, acting in pursuance of the act of June 3, 1916 (39 Stat. 166) the national defense act, dispatched to all the mills producing spruce and fir an order to proceed with all possible haste in the performance of Government contracts, and to give them preference irrespective of outstanding contracts or obligations to any other parties except the Navy Department. In December, 1917, Major Lead-better was assigned to the spruce production section of the spruce production division of the Signal Corps and became thereby in charge of the allocation of airplane lumber among the allied countries and the United States, the representa
The plaintiff rests its case primarily on an alleged verbal order of commandeering. This order it asserts was positively given by Major Leadbetter during the conference of February 11, 1918. In this respect the case is decidedly unique. We do not hesitate to say that even in the absence of being called upon to reconcile the conflicting statements with regard to this precise matter we would be exceedingly loath to impose a substantial liability upon the defendant upon mere spoken words, especially so when the whole conduct of the parties, from beginning to end, negatives an intention to requisition and leaves us no more to rest the facts upon than the mere statement of one party, positively and emphatically contradicted by the other.
The United States in the exercise of its war powers specifically granted by various acts of Congress sometimes requisitioned and on other occasions consummated the transaction by following a peremptory order with express contracts between the parties for the supplying of the materials. As a general rule it was the policy of the Government to contract where possible, and when contracts fol
What was done by the Government in this case was the customary and usual proceedings indispensable to marshaling the lumber resources of the Nation, stimulating production, and supervising the equitable distribution of the supply among the countries at war. We will not advert to the necessities of the proceeding. It is sufficient to observe that the plaintiff fell in whole-heartedly, after some slight hesitation caused by its anxiety over private contracts, with the program and followed it implicitly. It submitted to government control of its -vast holdings of spruce and fir. Of course, what was done eventuated in its failure to perform its private contracts, to what extent is somewhat problematical, for, notwithstanding the degree of restraint imposed upon it, conditions were far from favorable to the accomplishment of private consignments of merchandise by rail, and trans-Atlantic transportation without governmental consent was practically impossible. In the end the Government of the United States allocated the plaintiff’s lumber to Great Britain, France, and Italy, and by a proper order placed it in a position to negotiate its sale with and secure its delivery to them. This the plaintiff did. It entered into contracts, and notwithstanding the date of their signature, it did not then, nor does it now, disclaim that these three countries failed to pay it the full amount agreed upon. The contracts in the record were voluntarily executed. Without this formality it would not have received payment from these countries for the lumber. Even pre
In addition to what has been said, the authority of Major Leadbetter to commandeer has not been shown. The order of September 10, 1917, on its face, precludes the exercise of the power, except upon the conditions prescribed therein. The record is silent in this respect. The officer must be clothed with authority to act, and his authority must be shown. B. & O. R. R. Co. v. United States, 261 U.S. 592.
The petition will be dismissed. It is so ordered.