
    FEDERAL SUGAR REFINING COMPANY v. THE UNITED STATES
    [No. B-147.
    Decided January 19, 1925]
    
      On the Proofs
    
    
      Purchase order; agreement; requisition. — Where an order is placed by the Paymaster General oí the Navy with a sugar refining company to furnish and deliver a certain quantity of sugar to the Navy, stating therein that said order is obligatory and shall .take precedence over all commercial orders or contracts placed with said company, and the refining company accepts said order and agrees to its conditions as to compensation, it is an agreement to purchase sugar and not a requisition of it under the right of eminent domain.
    
      The Ref oner's statement of tbe case:
    
      Mr. HoTce Smith for the plaintiff.
    
      Mr. John E. Hoover, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    Motion for new trial overruled June 8, 1925.
    The following are the facts as found by the court:
    I. Plaintiff is a corporation, duly organized under the laws of the State of New York, engaged in the business of refining sugar, with its principal place of business and office at 91 Wall Street, New York City.
    II. On April 15, 1920, there was issued out of the Bureau of Supplies and Accounts of the Navy Department an order, a copy of which, including the sheet attached thereto and the acceptance thereon, is in -words and figures as follows:
    Bureau of'
    Supplies & Accounts
    Navy Order Number N-6273
    Navy DepartmeNT,
    Bureau oe Supplies AND AccouNts,
    Washington, T). G., 15 April, 1920.
    
    Federal Sugar BeeiniNG CojipaNY,
    
      91 Wall Street, New York, N. Y.
    
    Sir:1. In accordance with the provisions of the acts of Congress, national defense act approved 3 June, 1916, food control act approved August 10, 1917, naval appropriation act approved 1 July, 1918 (q'uoted in part on back of this page), and acting under the direction of the President of the United States, by virtue of the authority vested in him by the Constitution and laws of the United States, an order is hereby placed with you imder the conditions stated in subparagraph B (subparagraph A is eliminated and not a part of this agreement), to furnish and deliver material or services needed by the Navy as in [one] sheets attached. Compliance with this order is obligatory and shall take precedence over all commercial orders or contracts placed with you.
    (A) ^The price herein stated has been determined as just compensation for the material to be delivered or service to be rendered. If satisfactory to you, payment will be made accordingly and acceptance of this price will be considered as constituting a formal release of all claims arising under this order. If the price is not satisfactory and you so manifest below in writing, you will be paid 75 per' cent only of the designated amount. Further recourse may be had by suit against “ the United States to recover such further sum as added to the said 75 per cent shall make up such amount as will be just compensation therefor.”
    (B) As it is impracticable to now determine just compensation for the material to be delivered or services rendered, the fixing of the price will be subject to later determination. You are assured of just compensation under this order, and pending the determination of the final price you will be paid the provisional price stated hereon, with the understanding that such price paid will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such payment and the amount finally determined upon as just compensation will be paid to you or refunded by you, as the case may require. The provisional price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later decided upon as proper. *
    2. This order must be accepted and complied with in any event, and if placed in accordance with subparagraph A, you are only required to indicate below whether the price stated and fixed is satisfactory or is not satisfactory. If not satisfactory, a separate letter of comment and qualification must accompany the original order that is to be signed by you and returned. If the order is placed under subparagraph B, original is to be signed and returned. Do not make any alterations in the Navy order. The original must be signed with the name of the firm or company over the actual signature of an “ officer of the company ” or “ member of the firm,” with the official capacity of the signer indicated. The duplicate copy is to be retained by you in either case.
    3. Payment. — Dealer’s invoices must be in duplicate and must contain the following data: Navy order number, point of delivery, quantities, weights, number of packages, itemized unit prices, with any extras enumerated, extensions, etc. The original invoice must bear the following certificate, “ Prices are certified to be those stated in Navy order No. 6273; payment not received,” signed in the same manner as provided above for the original of the Navy order.
    If inspection is made at the manufacturer’s works, invoices, with evidence of shipment (preferably copy4 of the bills of lading), are to be submitted to the inspector, who will forward them with inspection report (stamped on bills, if practicable) to-for preparation of public bills.
    If inspection is not made at the works, invoices are to be sent to-, Provisions & Clothing Officer, Fleet Supply Base, South Brooklyn, N. Y., for preparation of public bills.
    Public bills will be paid by Navy disbursing officer, Bureau of Supplies and Accounts, Navy Department, Washington, D. C. * * *
    4. Inspection.- — The material delivered or services rendered shall be subject to inspection and examination by the officer or officers authorized by the Navy Department, and will not be accepted unless conforming in all respects to the requirements of the specifications hereunto attached and made a part of this order. If the specifications direct inspection before shipment, the shipment must not be made until the material has been inspected and orders given for shipment by the inspection officer, unless specifically authorized by the bureau concerned.
    o. Shipping memoranda. — Unless otherwise directed in the specifications, each ease, orate, barrel, plate, paoJcage, etc., that may be shipped or delivered under this Navy order must be plainly stenciled (not handmarked), marked, or securely tagged by the dealer, stating the dealer's na/me, Ncuvy order number, the class, item numbers, as they appear on the attached sheets, and plainly addressed to the consignee indicated in this order. In case of carload shipments, the dealer shall tag the car, showing his name and this Navy order number. Any failure to comply with these instructions will place material at the dealer’s risk. Every shipment must be accompanied .by bill of lading and shipping invoices in duplicate, giving name of the dealer, number of Navy order, requisition number, name of bureau, and a full statement of quantities, weights, packages, etc.
    6. Freight payment. — If price is stated f. o. b. works, the material will be shipped on Government bill of lading, to be furnished by-. If, in case of emergency, shipment on commercial bill of lading is authorized by the Navy, price shall be as provided above, plus prevailing freight rate at approved tariffs, plus war tax. In order to secure reimbursement dealer must certify to amount of freight paid, substantiating gross weight by inspector’s report, freight bill, or copy of bill of lading. If price is stated f. o. b. destination, it includes all freight and war tax'involved, and no war tax exemption certificate will be granted.
    7. Title. — The dealer, by presenting invoices and receiving payment for the material delivered or the property transferred under this order, warrants the legal title thereto and that the dealer is the proper person or company to receive payment. If any lien, mortgage, or other interest has been acquired against the material or property or the proceeds-thereof, the dealer warrants to save the Government harmless from any such claim.
    8. Priority.- — Unless rerated by express order in writing by the priorities committee of the War Industries Board,, this order is by authority of said priorities committee rated as class A-5, and its execution shall take precedence overall your orders and work of a lower classification to the extent necessary to insure delivery according to the date-specified herein, as prescribed by circular No. 4, issued by the priorities division of the War Industries Board of date-July 1, 1918, and all amendments thereto.
    If a priority certificate higher than A-5 is required in order to secure needed materials, the dealer will file application for such priority direct with the priorities committee-in the usual way.
    _As compliance with this Navy order is mandatory, but might be interfered with by priority certificate of rating higher than A-5, the contractor will advise this office in case of any such interference.
    9. Quality. — -Unless otherwise specified, all materials shall be of the best commercial quality used for the manufacture or construction of any article or articles under this Navy order, and the workmanship shall be of the highest gráde-
    
      lo.Correspondence should refer to this Navy order and item numbers. If in regard to inspection, the correspondence should be with the inspection officer, if known, otherwise with the bureau concerned. (To ascertain the bureau concerned, see upper left corner of this page.)
    11.The conditions appearing on 'the reverse side hereof' are made a part of this order.
    By direction of the Secretary of the Navy.
    S. McGowaN,
    
      Paymaster General of the Navy.
    
    The above order is accepted subject to the conditions in: subparagraph B above.
    Federal Sugar BefiNing Company,
    By Beginald D. Smith, Asst. Treasurer.
    
    Witness:
    F. SchNeidler.
    On the reverse side of this order appear the following:
    “EXTRACTS PROM NATIONAL DEFENSE ACT OF JUNE 3, 1916'. (39 STAT. 166)
    “ Seo. 120. Purchase or procurement of military supplies in time of actual or imminent war. — The President, in time-•of war or when war is imminent, is empowered, through the head' of any department of the Government, in addition to the present authorized methods of purchase or procurement, to place an order with any individual, firm, association, company, corporation, or organized manufacturing industry for such product or material as may be required, and which is of the nature and kind usually produced or capable of being produced by such individual, firm, company, association, corporation, or organized manufacturing industry. Compliance with all such orders .for products or material shall be obligatory on any individual, firm, association, company, corporation, or organized manufacturing industry or the responsible head or heads thereof and shall take precedence over all other orders and contracts. * * * Any individual, firm, association, company, corporation, or organized manufacturing industry or the responsible head or heads thereof owning or operating any manufacturing plant * * * failing to comply with the provisions of this section shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment for not more than three years and by a fine not exceeding $50,000.
    “ EXTRACTS FROM FOOD CONTROL ACT,- AUGUST 10, 1917 (40 STAT. 27 6)
    “ Sec. 10. That the President is authorized, from time to time, to requisition foods, feeds, fuels, and other supplies necessary to the support of the Army or the maintenance of -the Navy, or any other public use connected with the common defense, and to requisition, or otherwise provide, storage facilities for such supplies; and he shall ascertain and pay a just compensation therefor. If the compensation so determined be not satisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President, and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum will make up such amount as will be just compensation for such necessaries or storage space, and jurisdiction is hereby conferred on the United States District Court to hear and determine all such controversies.
    “EXTRACTS FROM ACT OF JULY 1, 1918 (PUB. NO. 182-65TH CONGRESS)
    “ Sec. 5 (b) The President is hereby authorized and empowered, within the limits of the amounts appropriated therefor:
    
      “ First. To place an order with any person for such ships or war material as the necessities of the Government, to be determined by the President, may require and which are of the nature, kind, and quantity usually produced or capable of being produced by such person. Compliance with all such orders shall be obligatory on any person to whom such order is given, and such order shall take precedence over all other orders and contracts theretofore placed with such person.
    “ If any person owning, leasing, or operating any factory equipped for the building or production of ships or war material for the Navy shall refuse or fail to give to the United States such preference in the execution of such an order, or shall refuse to build, supply, furnish, or manu: facture the kind, quantity, or quality of ships or war material so ordered at such reasonable price as shall be determined by the President, the President may take immediate possession of any factory of such person, or of any part thereof, without taking possession of the entire factory, and may use the same at such times and in such manner as he may consider necessary or expedient.
    “(d) That whenever the United States shall * * * take over any factory .or part thereof, or any ships or war material, in accordance with the provisions of paragraph (b), it shall make just compensation therefor, to be determined by the President, and if the amount thereof so determined by the President is unsatisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as added to said seventy-five per centum shall make up such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code.
    “EXTRACTS FROM JUDICIAL CODE (36 STAT. 1091, 1093, 1136, 1137)
    “ Sec. 24. The district courts shall have original jurisdiction as follows: Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of ali set-offs, counterclaims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court.
    “ Sec. 145. The Court of Claims shall have jurisdiction to hear and determine the following matters:
    “ First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an executive department, upon any contract, express or implied with the Government of the United States, or for damages liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.
    CONDITIONS
    “(Immaterial in this connection.)”
    Sheet No. 1, attached as part of the order, reads as follows:
    “ N-6273. Federal Sugar Refg. Co.
    “ S. and A. Req’n 414 — P and C — Approp. Provisions Navy 1920.
    “ 420,000 pounds granulated sugar, to be delivered in accordance with Navy Specifications 56S11 attached, except as to sacks.
    “ Delivery to be made by 1 May, 1920, to Provisions and Clothing Dept., Fleet Supply Base, 35th St. & 2nd Ave., Brooklyn, N. Y.
    “ To be inspected at destination.
    “Provisional price: $0.14 per pound, f. o. b. refinery. Total, $58,800.
    “ Sugar to be delivered in double sacks, inner one of cotton and outer one of 12-ounce burlap.”
    The original of said order, with plaintiff’s acceptance thereon, was returned by plaintiff to said bureau.
    III. On April 20, 1920, the provisions and clothing department, U. S. Navy Fleet Supply Base, Brooklyn, wrote plaintiff to the effect that it was in receipt of a copy of Navy order 6213 dated 15 April, 1920 (being the order mentioned in Finding II), calling for delivery to that department by 1 May, 1920, of 420,000 pounds granulated sugar, Navy specification 56-C-II, to be in double sacks, and stating it was assumed that plaintiff had received the original of the order and that delivery of sugar would shortly be made.
    IY. Shortly after said letter of April 20, in a conversation over the telephone, plaintiff’s representative notified Commander Karker (who was the chief executive officer in charge of the said provisions and clothing department at the fleet supply base in Brooklyn) that he had been unable to locate said order, and Commander Karker took immediate steps to have a duplicate of the order furnished by the Bureau of Supplies and Accounts. On receipt of the duplicate, the commander forwarded same by hand to plaintiff. In the meantime, on account of the prevailing uncertain condition of the sugar market, some communications passed between the general sales manager and Commander Karker, by telephone or otherwise, with the suggestion of a conference between representatives of the refineries and Commander Karker, having in view some arrangement that might prove satisfactory to both the refineries and the representatives of the Navy Department with regard to sugar needed by the latter. Following this conversation, a letter, dated 28 April, 1920, was written by Commander Karker to plaintiff, a copy of which is as follows:
    28 April, 1920.
    FedeRál Sugar Refining Company,
    
      91 Wall St., New York Oity, N. Y.
    
    (Attention Mr. Lowry.)
    Dear Sir: The Navy requires at New York approximately 1,400,000 lbs. of fine granulated sugar every month. For the past four months it has been increasingly difficult to secure this sugar and it has been necessary frequently to resort to commandeer.
    The Navy recognizes, and desires tp avoid, the undesirability of commandeer in times like the present and accordingly wishes to arrange with the sugar refiners for an adequate and dependable supply.
    The monthly requirements from the Federal Sugar Refining Company will equal 294,000 lbs. and the Navy will endeavor to handle this in the regular commercial double sacking, inner one of cotton and outer orie of 8-oz. burlap; sugar to be otherwise in accordance with Navy specifications 56-S — 11, dated 20 January, 1913. It would be. desirable to arrange for the delivery of this quantity between the first and tenth of every month.
    The question of price is a difficult one, but the suggestion has been advanced that the refiners might be willing to execute a variable-price contract for the next eight months, the' price of each month’s delivery to be the commercial quotations from some recognized source for the last five days of the prior month and for the first five days of the month in which delivery is made.
    The provisions and clothing officer would appreciate it if your company would, consider our sugar situation and ad' vise us in regard thereto. It is hoped that you will be able to suggest some practicable method by which the Navy may be assured of an adequate sugar supply without embarrassment to commercial requirements and to the business of the sugar refiners.
    Very truly yours,
    (Signed) M. H. Karker,
    Commander, Supply Corps, U. S. Navy,
    
      Provisions and Clothing Officer.
    
    On 3 May, 1920, another letter was sent to and received by plaintiff, which called attention to said letter of April 28, and advised plaintiff that the intended, method of purchasing sugar as stated in this letter of April 28 did not apply to Navy order No. 6213 and added, “As the sugar ordered on Navy order No. 6273 is urgently needed please advise this department definitely when delivery of this sugar may be expected.” This letter was signed for the provisions and clothing department of the Navy supply base by Mr. Shaw, who was Commander Karker’s first assistant, and was authorized by the commander.
    V. On May 3, 1920, plaintiff, through its sales agent, replied by letter to the said letter of April 28, set forth in Finding IV. In this letter, after stating that the position of the provisions ■ and clothing department was a difficult one and that it was even more difficult from plaintiff’s standpoint “ because of the unusual conditions in the sugar market this year,” it was also said that as to a very large pare of its business plaintiff had been and was still working “ on what is known as a toll basis ”; that is, the buyer supplies the raw sugar, the plaintiff refines it at a fixed charge and delivers to him the refined product. The letter stated that “ this means that the sfigar is his at all times, whether it is in the raw or refined state.” It was then explained that where plaintiff had furnished sugar to others during 1920 it was where raw sugar had been purchased by it and some arrangement made with owners of refined sugar whereby the refined product could be replaced out of the raw sugar so purchased. It was further stated that when plaintiff was “working under the Food Administration” the different refineries supplied sugar to the Army and Navy on a stated basis, naming 14 refineries. The letter closed with a suggestion that representatives of the refineries and the Navy meet the next week to see if some plan could be agreed 'upon relative to the monthly requirements of the Navy and that at such meeting the matter of price could also be discussed. It suggested that the meeting be held at headquarters of the United States Equalization Board at 111 Wall Street, New York.
    Replying to this letter, Commander Karker, provisions and clothing officer, as above stated, on May 4, 1920, wrote plaintiff and its sales manager, agreeing to a meeting with representatives of refineries and asking him to arrange the time and place and give the writer notice.
    VI. On May 4,1920, the plaintiff through its general sales manager wrote a letter in answer to that of the provisions and clothing department, set forth in Finding IV, as follows:
    New York, May 1¡.,1920.
    
    Uxited States Navy,
    
      Fleet Supply Base, Iflrd St. and 2nd Ave., Broohlyn, N. Y.
    
    GeNtlemeN : Replying to your favor of May 3rd, would say that we are not able to locate Navy Order 6213 and have no record of the same.
    .Will not this and the other matters pertaining to sugar for the Navy be taken up by Commander Karker in accordance with our letter to him of May 1st?
    We are,
    Yours very tr'uly,
    Federal Sugar Refining Co.,
    
      General Sales Manager.
    
    VII. As early as February 14, 1920, plaintiff, through its general sales manager, notified the provisions and clothing department of tbe Navy that it was doing business on the toll basis, as it again mentioned in its letter of May 3. The plaintiff had been informed before the meeting mentioned of the general needs of the Navy with reference to sugar. The conference referred to in the preceding finding was held in the afternoon of May 6. Commander Karker and a number of representatives of sugar refineries attended. He told them that the Navy required about 1,400,000 pounds of granulated refiner! sugar every month. The conference, resulted in an arrangement whereby the “refiners committee on sugar supply for the Army and Navy” would secure an adeq'uate supply of refined sugar to the Navy on the East and Gulf Coasts, and the provisions and clothing officer, fleet supply base, to notify this committee on or about the 6th of each month of the quantity of sugar required for delivery at each point on the first of the month following. The prices for the sugar were to equal but not exceed current trade quotations, less 2 per cent. Said officer was to notify the committee as soon as possible as to the quantities deliverable on June 1, and such quantities (approximately 2,800,000 pounds) sho'uld be the May and June needs of the Navy. The sugar refiners were to deliver immediately all sugar due on outstanding Navy orders. The arrangement or agreement made at, the said conference had reference to future needs and to sugar ordered subsequent to the date of May 6. It did not include or affect outstanding-orders placed prior to that date. Commander Karker notified representatives of the refineries at the meeting that the outstanding unfilled orders were not included in the agreement arrived at on May 6, 1920.
    VIII. The plaintiff delivered to the provisions and clothing department at the place designated in order No. 6273 the 420,000 pounds of granulated sugar mentioned in the-order and the same was received and used by the Navy. This delivery occurred on May 12, 1920. The reasonable or fair market value of the sugar at the date fixed in said order-for its delivery, May 1, 1920, was 18% cents per pound. The officer in charge offered 17% cents per pound in payment for the sugar, but plaintiff declined to receive this-price. Plaintiff was paid the provisional price of 14 cents per pound. ’*
    IX. The reasonable cost of the special sacking of said sugar, which was done by plaintiff under said contract, was the sum of $420. It cost the plaintiff the sum of $336 to convey the sugar from its refinery to the railroad cars by which it was ultimately delivered to the defendant, as already stated.
    The court decided that plaintiff was entitled to recover.
   Cambbell, Chief Justice,

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-fifth Street and Second Avenue, Brooklyn, N. Y., in certain kinds of sacks. The order mentioned a “ provisional price” of 14 cents per pound. It was drawn upon a form in use in the bureau, which contained the language that in accordance with the provisions of designated acts of Congress “and acting under the direction of the President of the United States * * * an order is hereby placed with you under the conditions stated in subparagraph B (subparagraph A is eliminated and not a part of this agreement), to furnish and deliver material or services needed by the Navy as in one sheet attached.” The attached sheet stated the details, as above given. The subparagraphs A and B refer only to price. As A was eliminated from the “ agreement ” by the order itself, there was left subparagraph B, which states that “ as it is impracticable to now determine just compensation for the material to be delivered or services rendered, the fixing of the price is subject to later determination.” It assures the vendor of just compensation and proceeds “ pending the determination of the final price, you will be paid the provisional price stated hereon.” There are also provisions as to payment of the additional sum or a refund by plaintiff, according as the final price exceeds or falls below the provisional price.

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 sugar ordered bas been, actually • delivered by the one party and received by the other. If a price be not fixed or an agreed method of fixing it be not found in the contract, the law implies an agreement to pay the reasonable or fair market price of the goods at the time and place of delivery stated in the contract. (See Benjamin on Sales, vol. 1, pp. 102 et sey.; 35 Cyc. p. 101.) In United States v. Berdan Fire-Arms Co., 156 U. S. 552, there arose the question of the price to be paid for the use of a patented device, the Government officials not believing they had authority to agree upon the price. The Supreme Court says (p. 569) : “ That no price was agreed upon or that the officers of the Government were not authorized to agree upon a price is immaterial. No price y^as fixed in United States v. Palmer, 128 U. S. 262, or in United States v. Russell, 13 Wall. 623. The question is whether there was a contract for the use and not whether all the conditions of the use were provided for in such contract. This is the ordinary rule in respect to the purchase of property or labor.” In the instant case we are dealing with the purchase of property. As indicative of the understanding had by parties of the paper in question, it may be noticed that the instrument is referred to in the body of it as “ an order placed,” and one paragraph is eliminated because “not a part of this agreement.” If any significance is to be attached to the extracts from statutes appearing on the reverse side’of the order they show that the remedies suggested were suits in the Court of Claims or in the district courts when exercising concurrent jurisdiction with the Court of Claims. No reference is made to suits under section 10 of the Lever Act.

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 prior to the Lever Act, which was temporary legislation intended to grant additional powers because “of the existence of a state of war,” but the provisions of which should “ cease to be in effect when the existing state of war between the United States and Germany shall have terminated.” Section 24. The President was given the power to requisition. He delegated, as he was authorized to do, his powers under the act to other agencies. Whether the delegation of this authority continued during 1920, in view of the President’s proclamation relative to the Fuel Administration, the licensing of dealers in food supplies and to sugar, it is not necessary now to determine. (See Proclamations, 41 Stat. 1741, 1774, 1807 ; 40 Stat. 1919, 1929. Act of December 31, 1919, 41 Stat. 386.) But this power to requisition did not take away the right to get supplies through the means afforded by other statutes. It did not prevent contracts nor did it make resort to the harsher method of requisition essential. In Bogerfs case, 2 C. Cls. 159, it was necessary to ■determine whether the property (in that case a vessel) had been “ appropriated ” by the Government through the exercise of eminent domain or had been taken under the provisions of a written contract, because in the one event the court was deprived of jurisdiction by the act of July 4,1864, 13 Stat. 381, while in the other event it co'uld hear and determine the case. The court held that it had jurisdiction. In its opinion delivered by Judge Nott, it is said (p. 164): “Whether grounded on sovereignty, necessity, or implied contract, this right of eminent domain is the last means for acquiring property to be exercised by a government or to be resorted to by a court,” and further (p. 165) : “When'the vourt can impute to the Government a fair compliance with the terms of its agreements or an unnecessary exercise of its power, it is not a question which -construction of its acts shall be adopted, * * , *. An implied contract, however, always yields to an express one, and the parties here having provided for the taking of the vessel and having agreed upon the price to be paid, if so purchased, need not go behind the terms of their agreement.” In RusselVs case, 13 Wall. 623, wherein the same act of July 4,1864, was urged to defeat the jurisdiction of the court that was urged in Bogerfs case, supra, the Supreme Court refused to refer the taldng and using of the vessel to an “ appropriation ” by the Government but allowed a recovery as this court had done (5 C. Cls. 121) upon contract.

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 of the parties are fixed by their contract. There is some insistence on behalf of plaintiff that the sugar was delivered after a conference between Commander Karker, who was the provisions and clothing officer at the fleet supply base, and representatives of different sugar refineries, having in view an agreement as to the price to be paid for sugar. This conference was held in May, but the facts show that the agreement reached had reference to future orders and not to orders placed before that time. We think the price offered by the Government officer in settlement was the reasonable and fair market value of the sugar at the time the order was given, but the price at the time and place fixed for its delivery was somewhat higher. Delay of 12 days in delivering the sugar does not confer a right to more than would be recoverable if delivery had been made promptly, in accordance with the contract. There was but one contract between the parties. See Gibbons case, supra.

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.

GRAHAM, Judge: Hat, Judge; Downey, Judge; and Booth, Judge, concur.  