1. A contract made during war for war material to be delivered
by a specified date, which was as early as delivery would be
practicable under the circumstances, is within the exception of
Rev.Stats., § 3709, dispensing with advertising for purchases when
public exigencies require immediate delivery. P.
259 U. S.
78.
2. The formalities of Rev.Stats. § 3709 are to protect the
United States, not the seller. P.
259 U. S.
78.
3. The fact that an offer and an acceptance by correspondence
are both made in express contemplation of a more formal document to
follow does not prevent their constituting a contract. P.
259 U. S.
78.
4. At a time when a price for copper to the government had been
fixed under Act of August 29, 1916, c. 418, 2, 39 Stat. 649,
claimant received from the War Department a proposal in writing for
delivery of a stated amount at that price before a certain date
under shipping orders to be supplied by the Department and accepted
it in writing at the Department's request and upon its advice that
no payment could be made without such acceptance.
Held:
(a) A contract, and not a requisition under the National Defense
Act of June 3, 1916, c. 134, § 120, 39 Stat. 213, which authorized,
in addition to purchase, the obtaining of material by compulsory
orders for a fair and just compensation. P.
259 U. S.
78.
(b) The claimant, having completed deliveries after alleged
delays in shipping orders and after the government price had been
increased under the Act of August 29, 1916,
supra, could
not, in respect of such deliveries, claim freedom from the contract
because
Page 259 U. S. 76
of such delays and recover the difference between the new and
contract price upon the theory that the deliveries were compulsory,
and called for a fair compensation under the National Defense Act
and the Fifth Amendment. P.
259 U. S.
79.
(c) Damages for the government's delay in performing could not
be had upon a petition framed on the theory of a compulsory
requisition. P.
259 U. S.
79.
(d) The case was not within the Act of March 2, 1919, c. 94, 40
Stat. 1272, authorizing relief to contractors furnishing supplies
under agreements not executed in the manner provided by law. P.
259 U. S.
79.
55 Ct.Clms. 466 affirmed.
Appeal from a judgment of the Court of Claims dismiss ing
appellant's petition on demurrer.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a claim for $512,515.50, being the price of 20,500,620
pounds of copper at 26 cents a pound less payments received at 23
1/2 cents. The petition was dismissed by the Court of Claims on
demurrer. The facts alleged are as follows. The government had some
correspondence with the United Metals Selling Company ending in an
order or proposal for 30,000 metric tons of copper for the French
government to be delivered on or before June 1, 1918. To this the
Company replied on March 26, 1918, that the Copper Producers
Committee had divided the handling of copper and had given the
export business to the American Smelting and Refining Company. The
letter requested that the order be changed to apply to the
last-named company, and concluded "they tell us that it will quite
fit in with their operations to handle this present order along
Page 259 U. S. 77
with the other shipments." Thereupon, on March 28, 1918, a
letter was written by the Ordnance Department to the American
Smelting & Refining Company
"to advise you that the Procurement Division is prepared to
procure from you 30,000 metric tons (66,138,000 pounds) of copper
at a price of 23 1/2 cents per pound net, f.o.b. New York basis.
Deliveries are to be completed on or before June 1, 1918,"
shipping instructions to be taken up with the Supply Division,
Ordnance Department, with further particulars not material, and
ending, "[y]our acceptance of this letter is requested pending
issuance of formal contract which will go forward in a few days."
The representative of the claimant seems to have delayed an answer
in the hope of adjusting one or two details, but, on April 11,
wrote:
"We have your favor March 28th . . . and take pleasure in
accepting your letter as above pending issuance of formal contract
which we hope to receive in the near future."
The copper except the 20,500,620 pounds, was delivered before
July 2, 1918, has been paid for, and no question is raised about
it. But it was practically impossible to deliver this last amount
until after that date, and no shipping orders for it were received
until a later time. It was delivered finally, and the claim for the
advanced price is based upon the facts and arguments that we shall
state.
At the time when the order was accepted, the Price-Fixing
Committee of the War Industries Board, an agency of the Council of
National Defense, had fixed the price of copper at 23 1/2 cents per
pound f.o.b. New York under the Act of August 29, 1916, c. 418, §
2, 39 Stat. 619, 649, and the authority of the President. On July
2, 1918, the price was advanced to 26 cents per pound. The National
Defense Act of June 3, 1916, c. 134, § 120, 39 Stat. 166, 213, had
authorized the President in time of war "in addition to the present
authorized methods of purchase or procurement, to place an order"
for material required,
Page 259 U. S. 78
made compliance with such orders obligatory under a penalty, and
gave them precedence. The compensation paid was to be fair and
just. The position of the claimant is that, although the language
of contract was used, it was yielding to the requirements of the
statute, and is entitled to the fair price that the statute
promised. The fair price, it contends, for copper delivered after
the change of July 2 is 26 cents, because the delay is alleged to
have been due to the failure of the government to send shipping
orders and to the fact that further deliveries were made impossible
for the time by the government's appropriating all the copper
available to other uses. It also argues that there was no valid
contract, since the agreement was not made by advertising, and was
not within the exception when the public exigencies require
immediate delivery. Rev.Stats. § 3709.
We may lay the latter objection on one side. There can be no
question that the war created a public exigency, and it would be
going far to deny that the contract was for a delivery as immediate
as was practicable for the subject matter. Moreover, the statutory
requirements were for the protection of the United States, not to
the seller.
United States v. New York & Porto Rico
Steamship Co., 239 U. S. 88. Of
course, the expressed contemplation of a more formal document did
not prevent the letters from having the effect that otherwise they
would have had. The only serious argument is the supposed duress.
But that cannot prevail. It may be true that the claimant was
yielding to the statute in a general way, and did not discriminate
between what it was required to yield and what it could reserve.
But if it had desired to stand upon its legal rights, it should
have saved the question of the price. It did not do so, but, on the
contrary, so far as appears, was willing to contract and was
content in the main with what was offered. As was pointed out by
the Court of Claims, the acceptance was sent because
Page 259 U. S. 79
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. We are of opinion that the claimant must
stand upon the letters of March 28 and April 11.
The claimant argues that, under its contract it was set free by
the delay in shipping orders, and that, although it did not refuse
to proceed on that account, the omission should be credited to
patriotism, not to a waiver of legal rights. But, whatever the
motives for its conduct, the claimant kept the contract on foot. It
even is said to have requested to be allowed to continue deliveries
after June 1. Its claim, if any, must be for damages on the ground
that the United States did not perform its part of the contract on
time. Such a claim is not necessarily waived by completing
performance.
St. Louis Hay & Grain Co. v. United
States, 191 U. S. 159,
191 U. S. 164.
But the petition is framed on the theory that there was no
contract, but a requisition under the above-mentioned Act of June
3, 1916, c. 134, § 120, and that the claimant is entitled to just
compensation by that section and by the Fifth Amendment to the
Constitution. This we hold to be a mistake. Whether any claim for
damages could be urged is not before us; the petition discloses
grounds for doubt, at least. Our judgment excludes any remedy under
the Act of March 2, 1919, c. 94, 40 Stat. 1272, providing for
supplies and services furnished under agreements not executed in
the manner prescribed by law. We have said nothing about repeated
requests that the claimant should sign a formal contract, its
refusals, and its ultimate signing under protest, because these
facts in no way modify the relation of the parties under the
contract by letters already made.
Judgment affirmed.
