61 Ct. Cl. 231 | Ct. Cl. | 1925
delivered the opinion of the court:
The plaintiff, from June 16, 1917, to September 28, 1917, both inclusive, delivered to the U. S. Navy at Hampton Hoads 75,084.40 gross tons of Pocahontas coal, for which it has been paid at the rate of $2.24 per gross ton as the value thereof at the mines, a total sum of $168,188.20, in addition to which it has also been paid the freight paid by it for the transportation of said coal from the mines to the place of delivery, amounting to $111,631.60. Asserting that said coal was requisitioned by the Secretary of the Navy, acting for the President, recovery is sought of an additional sum as just compensation, measured by the prices it is alleged it could have sold said coal for in the market, and interest thereon as a part of just compensation. The acts of March 4, 1917 (39 Stat. 1193), and June 15, 1917 (40 Stat. 183), are pleaded.
The defendant denies that there was a requisitioning of the coal and asserts that it was delivered under an order placed by the Secretary of the Navy of date June 14, 1917, which defined the basis of compensation, and that upon that basis the plaintiff has been fully paid.
The order of June 14,1917, is pleaded as “ Exhibit A” and is made a part of the findings. It requested the plain-
The plaintiff’s sales manager, immediately upon receipt of this order on June 15, wrote the Secretary of the Navy (Finding III) stating that immediately upon receipt of his order of the 14th instructions had issued to the mines to provide the coal referred to, but stating that the entire product of the company’s mines up to April 1, 1918, was under contract and that it would expect the Government to save it harmless if any of the existing contracts were necessarily breached by reason of this Government “ requisition.”
A copy of that letter was forwarded to the president of the company, and immediately on its receipt he wrote the Secretary of the Navy (Finding III) stating he deemed it his duty, before the matter went any further, to say that the letter of the sales manager did not wholly state the position of the company, and “ to the end that there be no misunderstanding hereafter ” that “ we look upon the price of $2.335 per gross ton as an advancement upon a final price to be determined not alone by damage suits to which the company may be subjected but by a consideration as well of market prices and loss of profits.”
The Secretary of the Navy acknowledged receipt of this letter (Finding III), thanked its writer for the manner in which he had acceded to the department’s “ request,” with other suggestions rather indefinite in character.
On June 16, 1917, in response to a request from the navy yard at Norfolk for the immediate delivery of some coal, the plaintiff, having coal at that place intended for delivery on othex' orders, made its first delivery of 1,803 tons, and its second delivery was made on June 21.
Navy Order N-13, bearing date August 9, 1917, pleaded as “ Exhibit B ” and made a part of Finding IV by reference, was transmitted to the plaintiff by the Paymaster General of the Navy with a letter referring to it as “ confirming
One feature of the case, the demand for the inclusion of interest in any recovery allowed, is to be disposed of by the determination of the question as to whether there was a requisitioning of this coal. If the relations of the parties were contractual, there can be no award of interest. (See sec. 177, Judicial Code, 36 Stat. 1141, amended Nov. 23, 1921, 42 Stat. 316, and reenacted June 2, 1924, 43 Stat. 346.)
As bearing upon this question plaintiff distinguished this case from the Consolidation Coal Company, No. A-262, decided J anuary 26, 1925, and, on motion for new trial, April 20, 1925, 60 C. Cls. 608, in which just such a Navy order figured, by the fact that in that case there was an acceptance of the order whereas in this case there was no acceptance. But there are other considerations which it was not found necessary to discuss in the Consolidation case. There contractual relations were derived from the acceptance of Navy Order N-69, the same in form as herein, but because here there was no acceptance of the Navy Order, N-13, it does not necessarily follow that the relations of the parties were not contractual.
Before the issuance of Navy Order N-13 more than a third of the coal here involved had been delivered. Deliveries had commenced very soon after the receipt of the order of June 14, which all the facts show was accepted, with reservations as to the basis of compensation, and even if Navy Order N-13, unaccepted by plaintiff, was an attempted requisitioning, which is by no means conceded, it is difficult to conceive how established contractual relations could thtis be disrupted. The right of eminent do
[Reverting to the order of June 14, 1911, which, it is to be said, was the only order in existence with reference to this coal for nearly two months and until the issuance of Navy Order N-13 of August 9, 1917, the order itself and the authority therefor are subjects for consideration.
It is to be observed not only that this order was neither in terms a requisition nor couched in such language as to justify such a construction, but also that at this time the 'Secretary of the Navy had no power to requisition. The acts of March 4, 1917, and June 15, 1917, are pleaded. The latter of these acts had not then been passed. The former gave certain powers to the President but did not authorize their exercise through some other agency as did the latter. Under neither act was there any delegation of power to the Secretary of the Navy until the Executive order of .August 21, 1917. It is true that this Executive order referred to the powers of the President under the act of .March 4, 1917, as well as that of June 15, 1917, -and assuming that the President might delegate his powers under the act of March 4, without express authority therefor, it .is plain that no power could be exercised thereunder by
Earlier than these acts is the national defense act of June-3, 1916, which in section 120 empowered the- President through the head of any department to place orders which should be obligatory. A large part of this section deals, with procedure by the Secretary of War and Army supplies, but its general terms are broad enough to include the-placing of an order for coal for the Navy. The difficulty in locating the authority for this order, whether under the-national defense act or not, arises because, while in some-of its phraseology it savors of an obligatory character, it. is an order by the Secretary of the Navy with no suggestion that he is acting for the President. In many instances the-President does act through the heads of departments and they, when acting, are regarded as acting for him, but when, the authority for the action emanates from the President it is customary to indicate that the action is by direction of or-by the authority of the President.
But whether this order was under the authority of the national defense act or not seems not necessary of determination, for, in any event, it was an accepted order fully performed, and if we must conclude that it was merely an order-for coal for the use of the Navy, placed by the Secretary, it was an authorized order, the acceptance and performance of which determined the relations of the parties to be contractual. The fact that the final price to be paid.for the-coal was in abeyance did not defeat the contract or convert the order into something else. See Federal Sugar Refining Company, No. B-147, decided January 19, 1925, 60 C. Cls.. 184.
This order stated that the price of the coal to be determined later would be contingent upon the cost of production with a reasonable profit added, and it is open to the •assumption that the Navy Department then expected the price of coal at the mine to be equal to or greater than '$2,335 per gross ton, else it would not have fixed that amount •as advance payment. The Government is not in the habit •of paying more under such circumstances than it expects ultimately to pay. This order was accepted by the sales manager of the plaintiff company to the extent at least of indicating that it would furnish the coal as requested, although there was a condition imposed upon the entering of the order predicated upon the fact that the plaintiff already had its output for a considerable time under contract, and the sales manager evidently conceived the possibility that the supplying of the Navy order would necessitate the breaching of some other contract. It does not appear that the sales manager had final authority to bind the plaintiff as to terms, but even if he had it appears that when the attention of the president of the company, who must be admitted the superior authority, was called to the matter and within five days after the receipt of the order and
In the consideration of this matter the parties seem to have eliminated from their calculations the freights which the plaintiff paid for the transportation of the coal from the mines to the place of delivery, and which were repaid to the plaintiff, and to have considered the case purely from the standpoint of the value of the coal, exclusive of freight, which results in a f. o. b. mines price. Of course, the value of the coal at the place of delivery necessarily included the transportation expenses in getting it there; but to harmonize ourselves with the theory of the record we have found the value of the coal upon the basis stated, therefore offsetting as against that value the amount which the Gov-