American Smelting & Ref. Co. v. United States,
259 U.S. 75 (1922)

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U.S. Supreme Court

American Smelting & Ref. Co. v. United States, 259 U.S. 75 (1922)

American Smelting & Refining Company v. United States

No. 221

Argued April 25, 1922

Decided May 15, 1922

259 U.S. 75


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.


(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.

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