
    WILLIAM C. ATWATER & CO. v. THE UNITED STATES
    [No. D-125.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Eminent domain; acts of March 4, 1917, and June 15, 1917; requisite to suit. — The procedure set forth in the acts of March 4, 1917, and June 15, 1917, for the recovery of additional compensation for a taking of materials, must be complied with before suit. See New River Collieries Co. et ail. v. United States, ante, p. 205.
    
      Same; authority of Secretm-y of Navy; acceptance of order. — The power conferred upon the Secretary of the Navy by Executive order of August 21, 1917, was only such as was given the President under the acts of March 4, 1917, and June 16, 1917, which was to place orders for materials “ usually produced or capable of being produced ” by the person with whom the order was given, and on a refusal to accept or comply with them, to seize the materials and operate the plant of the producer.
    When an order was given under these statutes for the purchase of materials, the terms and prices fixed therein, and the price accepted, or the order complied with and materials delivered without formal acceptance, there came into existence a valid contract.
    
      8wme; order for coal upon sales agent. — Plaintiff was a sales agent, purchasing and reselling coal to its customers without physically handling the coal, and at the time orders were placed with it under the acts of March 4, 1917, and June 15, 1917, did not own any coal on the ground or at the mouth of a mine, or any mines. Held, that orders for coal, given under such circumstances, there being nothing of plaintiff’s the Government could seize on failure to comply therewith, were not requisitions under said acts.
    
      Same; statute of limitations. — The statute of limitations, see. 156, Judicial Code, is not postponed by reason of failure to comply with the procedure prescribed in the acts of March 4, 1917, and June 15, 1917, for the recovery of additional compensation.
    
      The Reporter’s statement of the case:
    
      Mr. Spencer Gordon for the plaintiff. Messrs. Edgar T. Beamish and J. Harry Oovington were on the briefs.
    
      Mr. James J. Lenihan, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Messrs. W. F. Norris, Howard W. Ameli, and George Dyson were on the briefs.
    The court made special findings of fact, as follows:
    I. William C. Atwater & Company, Inc., plaintiff herein, was at all times hereinafter mentioned and now is a corporation organized under the laws of the State of New York.
    II. The plaintiff, at all the times involved in this case, was eñgaged as a sales agent in the business of selling the output of coal produced at various mines and was independent of the operators whose coal production it marketed. It purchased and resold to coal dealers or to consumers without physically handling it on, over, or through its own vehicle, dock, trestle, or yard.
    At the time the three orders involved in this case were issued the plaintiff did not own any coal on the ground or at the mouth of a mine, nor did it own any mines. All of the coal delivered to the Navy under the said orders was purchased by the plaintiff, and was, at the time of delivery, owned by the plaintiff.
    At the time it received the first of the orders hereinafter mentioned from the Secretary of the Navy, the entire tonnage of coal controlled by it had been disposed of under contract for months in advance and until the 1st of December, 1917.
    III. On June 14, 1917, the Secretary of the Navy wrote plaintiff as follows:
    NaVT DEPARTMENT,
    ’Washington, June 14, 1917.
    
    Sms: Effective at once, please be prepared to furnish your . proportion of the total quantity of coal required by the Navy for the period ending September 30,1917; it being estimated that the tonnage which will be taken from your company during that period will amount to about 13,000 tons, delivery being required at the following-named points:
    Navy Standard Mines, W. Va- 13,000 tons
    The coal furnished will be from mines now on the Navy Acceptable List.
    The price to be paid for such tonnage as you may be required to deliver is to be determined later, and, as the result of this department’s decision as communicated to the committee on coal production, council of national defense, will be contingent on the cost of production, data concerning which is now being prepared. As an advance payment, however, this department will allow the unit of two dollars, thirty-three and one-half ($2,335) per gross ton f. o. b. mines, although it is to be understood that any payments made at this rate will be subject to such increases or decreases as may be later decided upon as proper by reason of the ultimate decision with respect to cost of production, plus such reasonable profit as may be allowed.
    It will also be understood that the figure finally agreed upon as a proper amount to be paid your company will be subject to such increase or decrease in transportation or labor costs as may be exacted of you during the period of the formal contract.
    
      In making the allotments described herein every effort has been made to treat all suppliers equitably — consideration being given to the questions of production, convenience of transportation, and other governing factors. However, in view of the inability to reach a definite agreement as a result of the several conferences held on this subject, it has not been practical to as yet investigate as thoroughly as might be desired, so that, if it is found a possible injustice has been done to any supplier, upon receipt of satisfactory evidence bearing out such contention, steps will be taken to remedy same in subsequent allotments in the best interests of all concerned. The forms of delivery required are to be those stated under the various classes of the within schedule allotted to your company.
    It is probable that deliveries under this order may be required in the immediate future and you will, therefore, make all necessary preparations to meet such deliveries as may be called for, on which it may be necessary to make telegraphic assignments.
    Respectfully,
    Josephus DaNiels,
    
      Secretary of the Navy.
    
    W. C. ATWATER & COMPANY,
    
      1 Broadway, New York Gity.
    
    On June 19, 1911, plaintiff wrote the Secretary of the Navy as follows:
    Wm. C. AtwateR & Co., Inc.,
    
      June 19, 1917.
    
    Hon. Josephus Daniels,
    
      Secretary of the Navy, Washington, D. 0.
    
    Dbae Sir: We are duly in receipt of your letter of June 14th and notice that you have requisitioned a block of our coal for use of the Navy and for delivery up to September 30th, 1917. It seems unfortunate that the department, in fairness to itself, could not have seen its way clear in payment for this coal to give a price somewhat approximating its real value. We wish, accordingly, to respectfully register our protest against the basis of payment you have suggested and will bill the coal delivered to the department at $3.50 a gross ton at the mines. In the meantime, we have instructed our mines to make pro-rata shipments to the department on the basis of the 13,000 tons covered by your requisition, which is the proportionate part of your total requirements you feel should be shipped from our mines.
    We are keenly alive to the necessities of the Government at this time and are desirous to extend the same consideration to the Government that we feel the Government should be willing and ready to extend to us.
    Yours very truly,
    William C. Atwater & Company, INC.,
    By William C. Atwater, President.
    
    IV. On August 16, 1917, the Paymaster General of the Navy wrote plaintiff as follows:
    Navy Department,
    Bureau oe Supplies and Accounts,
    ’Washington, D. 0., August 16,1917.
    
    Wm. C. Atwater & Co.,
    
      1 Broadway, New Yorh, N. Y.:
    
    Subject: Navy Order No. N-77.
    Keference: Letter from the Secretary of the Navy dated 14 June, 1917.
    Sirs: Navy Order No. N-77 is enclosed in duplicate. This is not an additional order for coal, but is issued in confirmation of the above letter from the Secretary of the Navy.
    Kindly sign the original and return. The duplicate may be retained.
    Respectfully,
    McGowan,
    
      Paymaster General of the Navy.
    
    The said Navy Order N-77 is printed at page 28 of the record in the addendum to the second amended petition, and is made a part hereof by reference. It provides, among other things, that it is made pursuant to the provisions of the acts of Congress, naval appropriation act approved March 4, 1917, and the urgent deficiency act approved June 15, 1917, and under the direction of the President of the United States, that compliance with the order is obligatory and that no commercial orders shall be allowed to interfere with the delivery herein provided for. Subparagraph (b) of said Navy order N-77 provides as follows:
    “(b) As it is impracticable to now determine a reasonable and just compensation for the material to be delivered, the fixing of the price will be subject to later determination. You are assured of a reasonable profit under this order; and as an advance payment, you will be paid the unit prices stated hereon, with the understanding that such advance payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable will be paid to you or refunded by you, as the case may be. The unit 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.”
    It is also provided in said Navy order that it confirms and supplements the letter from the Secretary of the Navy dated June 14, 1917, which in full is a part of the order, and that plaintiff would be called upon to furnish during the period from June 14, 1917, to September 30, 1917, approximately 13,000 tons of coal at $2,335 per gross ton, f. o. b. mines— $30,355 — to be delivered at Navy standard mines, West Virginia; also that transportation and other charges connected with the handling of the coal should be included in the company’s bills to the Navy Department. This order was signed by the Paymaster General of the Navy by direction of the Secretary of the Navy. Below the order was the endorsement “ This order is accepted subject to the conditions in paragraph (b) above ” with a blank space at the end thereof for the signature of the company.
    Not having received the signed copy from the plaintiff the Paymaster General wrote on September 17, 1917, requesting its prompt return. On September 19, 1917, the company returned the copy of the order with the endorsement at the foot thereof “ Beceipt of the above is hereby acknowledged. William C. Atwater & Co. (Inc.), by W. C. A., president.”
    V. On August 21, 1917, the President of the United States issued the following Executive order:
    “By virtue of authority vested in me in the section entitled Naval emergency fund ’ of an act of Congress entitled 'An act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes,’ approved March 4, 1917, and in the section entitled ‘ Emergency shipping fund ’ of an act of Congress entitled ‘An act making appropriations to supply urgent deficiencies in appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,’ approved June 15, 1917, I hereby direct that the Secretary of the Navy sba.ll bare and exercise all power and authority vested in me in said acts, in so far as applicable to and in furtherance of the construction of vessels for the use of the Navy and of contracts for the construction of such vessels, and the completion thereof, and all power and authority applicable to and in furtherance of the production, purchase, and requisitioning of materials for construction of vessels for the Navy and of war materials, equipment, and munitions required for the use of the Navy, and the more economical and expeditious delivery thereof.
    “ The powers herein delegated to the Secretary of the Navy may, in his discretion, be exercised directly by him or through any other officer or officers who, acting under his direction, have authority to make contracts on behalf of the Government.
    “ Woodrow WilsoN.
    “ The White House,
    “ 'M August, 1917.”
    
    On August 28, 1917, the President of the United States issued the following Executive order:
    “ By virtue of the power conferred upon me under the act of Congress approved August 10, 1917, entitled ‘An act to provide further for the national security and defense by encouraging the production, conserving the supply, and controlling the distribution of food products and fuel,’ and particularly for the purpose of carrying into effect the provisions of said act relating to fuel, Harry A. Garfield is hereby designated and appointed United States Fuel Administrator, to hold office during the pleasure of the President.
    “ Said Fuel Administrator shall supervise, direct, and carry into effect the provisions of said act and the powers and authority therein given to the President so far as the same apply to fuel as set forth in said act, and to any and all practices, procedures, and regulations authorized under the provisions of said act applicable to fuel, including the issuance, regulation, and revocation under the name of said United States F’uel Administrator of licenses under said act. In this behalf he shall do and perform such acts and things as may be authorized and required of him from time to time by direction of the President and under such rules and regulations as may be prescribed.
    “ Said Fuel Administrator shall also have the authority to employ such assistants and subordinates, including such counsel as may from time to time be deemed by him necessary, and to fix the compensation of such assistants, subordinates, and counsel.
    
      “All departments and established agencies of the Government are hereby directed to cooperate with the United States Fuel Administrator in the performance of his duties as here-inabove set forth.
    “ (Signed) Woodrow WilsoN.
    “ The White House,
    “«Í August, 1917”
    
    VI. On September 22, 1917, the Navy Department issued to plaintiff a document designated “ Supplementary Navy Order N-77,” which is printed at page 39 of the record in the addendum to the second amended petition, and is made a part hereof by reference. It provides for the delivery of United States Navy standard coal by plaintiff from October 1, 1917, to June 30, 1918, 50,000 gross tons, f. o. b. cars mines; 49,000 gross tons, at Lamberts Point, Virginia, and 2,000 gross tons at the Norfolk, Virginia, Naval Hospital. The order provided for the payment of $2.24 per ton for coal from the West Virginia district, $2,408 per ton for coal from the West Virginia (New River) district, and $2.24 per ton for coal from the Virginia district; also for the reimbursement to the company for expenses incurred in connection with the transportation and handling of the coal. This order provided on its face that it was issued pursuant to the provisions of the acts of March 4, 1917, and June 15, 1917, respectively, and that compliance with the order was obligatory, also that it was issued under the conditions stated in subparagraph (a), which was a part of the printed form used for the order and which provides as follows:
    “ (a) The price herein stated has been determined as reasonable and as just compensation for the material to be delivered; payment will be made accordingly. If the amount is not satisfactory, you will be paid 75 per centum of such amount, and further recoursé may be had in the manner prescribed in the above-cited acts. Please indicate conditions under which you accept this order by filling in and signing certificate below, returning original copy of order. If you state the price fixed as reasonable is not satisfactory, 75 per cent only of the unit price will be paid. If payment in full is accepted, it will be considered as constituting a formal release of all claims arising under this order.”
    
      Subparagraph (a) was modified by a typewritten insertion designated as paragraph 6 of the order, as follows:
    “ 6. Subparagraph (a) of paragraph 1 above is hereby modified to the effect that the prices as herein stated are subject to change from time to time under proper governmental authority; it to be understood that any change in prices — if not retroactive — will apply on the delivery of tonnage made immediately subsequent to the date on which such new prices become effective, provided the contractor is not delinquent on the particular delivery in question, in which latter event the old prices will apply; if subsequent published prices are held by proper authority to be retroactive, such price adjustments as may be necessary on deliveries already made may be proceeded with under this order.”
    Subparagraph (c) of paragraph 1 of said order provided as follows:
    “(c) The order must be accepted and filled 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 order is placed under subparagraph (b), original order is to be signed and returned. The duplicate copy 'may be retained by you in either case.”'
    At the conclusion of the order was the following: “ The above board is accepted subject to the conditions in subpara-graph (a). The price therein stated and fixed as being reasonable is_satisfactory.” This was followed by a blank space for the signature of the company.
    The plaintiff did not sign Supplementary Navy Order N-77 until October 20,1917, when plaintiff wrote the following letter to the Navy Department:
    
      William C. Atwater & Co.,
    POCAHONTAS SMOKELESS COAL & COKE,
    
      New York, Oct. %0th, 1917.
    
    Navy Department,
    
      Bureau Supplies <& Accounts,
    Washington, D. 0.
    
    
      Supplernentanry Order N-77
    
    Gentlemen: We beg to acknowledge receipt of Navy Order No. N-77, in duplicate. We return one copy of the order herewith, having endorsed our acceptance under sub-paragraph (a) of paragraph 1, subject to the following modification in price on deliveries made to the department under this order, between October 1st, 1917, and the end of the season of Lake navigation, which we trust will meet with the approval of the department:
    Practically the entire tonnage of coal marketed by us is under contract to the end of the season of Lake navigation, which will be approximately December 1st, next.
    Any tonnage delivered by us to the department on requisition under the above order, which is not required to fill our existing contract obligations, between October 1st, 1917, and the end of the season of Lake navigation, we will bill the department on the basis of $2.24 per gross ton, plus the amount of the “ jobber’s margin ” of 15‡ per net ton in accordance with paragraph 1, subparagraph (a), and paragraph 6 of the above order.
    Any tonnage delivered by us to the department on requisition under the above order, between October 1st and the end of the season of Lake navigation, that is diverted from our existing contract obligations, we will bill against the department at the price at which it has been sold by us under such contracts.
    Very truly yours,
    William 0. Atwater & Company, Inc.,
    By John L. Steinbuglee, Secretary.
    
    With this letter Supplementary Navy Order N-77 was returned with an acceptance reading as follows:
    The above order is accepted subject to conditions in sub-paragraph (a) above. The price therein stated and fixed as being reasonable is satisfactory subject to modification as per letter October 20, 1917, attached.
    William C. Atwater & Co., Inc.,
    By John L. Steinbuglee, Secretary.
    
    
      On October 26, 1927, the Navy Department returned Supplementary Order N-77 to the plaintiff with a letter as follows:
    Navy Department,
    Bueeau op Supplies asd AccouNts,
    Washington, I). 0., October £6,1917.
    
    In reply please refer to No. N-77, 503-6e, 504-15a.
    Wm. C. Atwater & CompaNY,
    
      1 Broadway, New York, N. Y.
    
    Subject: Delivery Navy allotment bituminous coal. Reference: Your letter to S. and A., 20 Oct., 1917.
    Sirs : The understanding indicated in your letter above referred, as the price to be paid on coal delivered under Navy order cited, is not correct, and, instead, there is but one price to be paid on same during the total period involved — subject only to any further revision that may be made, and which will be announced accordingly under Executive authority.
    The price to be paid, f. o. b. mines, on all coal delivered, subject to the above, is $2.24 per gross ton, “ West Virginia,” plus jobber’s commission of an amount not exceeding $0.15 per net ton — to which your company is apparently entitled under jobber’s affidavit received.
    The distinction in time based on the close of Lake navigation, or any other like conditions, is.therefore not to be considered, and your bills for all coal delivered — in which your most active cooperation is invited — should be under the one uniform price basis above shown, as set forth in Navy order covering and all supplementary or modifying advices thereto.
    It is requested, therefore, that the signed supplementary order forwarded you be promptly executed and returned, while the copy of the Navy order received with your letter above referred to, bearing your signature, is returned herewith.
    Prompt response will be appreciated.
    Respectfully,
    
      Paymaster General of the Navy.
    
    On November 2, 1917, the plaintiff returned Supplementary Navy Order N-77 to the Navy Department with the words “ subject to modification as per letter October 20,1917, attached ” stricken from the acceptance and with a letter as follows:
    
      Wm. C. Atwater & Co. Inc.,
    
      November 2nd, 1917.
    
    Bureau Supplies & AccouNts,
    
      Navy Department, Washington, D. G.
    
    GeNtlemeN : We beg to acknowledge receipt of letter from the department under date of the 26th ult., returning copy of Navy Order No. N-77. In accordance with the department’s request we have executed and return herewith the signed supplementary order and have eliminated the reference to our letter of October 20th, 1917, in connection with price we bill the department on coal diverted from our .existing contracts up to the end of the Lake season 1917. In view of the fact that we have a very considerable balance of tonnage to ship for Lake delivery under Lake priority order and are also shipping heavily to five by-product and steel plants in the West, all of whom we have been advised are engaged in Government business, we will appreciate it if the department will make minimum call upon us for deliveries under the above order, at least until after the first week in December.
    Appreciating the cooperation of the department in this matter, we remain,
    Very respectfully yours,
    William C. Atwater & Company, Inc.,
    By-, Secretary.
    
    VII. On June 13, 1918, the Navy Dapartment issued to plaintiff a document designated “ Navy Order N-3004 ” which is printed at page 55 of the record in the addendum to the second amended petition, and is made a part hereof by reference. It provides for the delivery by plaintiff from July 1, 1918, to June 30, 1919, of 200,000 gross tons of Navy standard coal at Lamberts Point, Virginia, and 5,000 gross tons of high-grade bituminous coal at Portsmouth, Virginia, Naval Hospital. The order provided for the payment of $2,632 per ton for coal from the West Virginia district, $3.08 per ton for coal from the West Virginia-Tug River district, $3,024 per ton for coal from the West Virginia-New River district, and $2,632 per ton for coal from the Virginia district; also for the reimbursement to the company for expenses incurred in connection with the transportation and handling of the coal. This order provided on its face that it was issued pursuant to the provisions of the acts of March 4, 1917, and June 15, 1917, respectively, and that compliance with the order was obligatory; also that it was issued under the conditions stated in subparagraph (a) which was a part of the printed form used for the order and which provides as follows:
    “(a) The price herein stated has been determined as reasonable and as just compensation for the material to be delivered; payment will be made accordingly. If the amount is not satisfactory, you will be paid 75 per centum of such amount, and further recourse may be had in the manner prescribed in the above-cited acts. Please indicate conditions under which you accept this- order by filling in and signing certificate below, returning original copy of order. If you state the price fixed as reasonable is not satisfactory, 75 per cent only of the unit price will be paid. If payment in full is accepted, it will be considered as constituting a formal release of all claims arising under this order.”
    Subparagraph (a) was modified by a typewritten insertion designated as paragraph 6 of the order as follows:
    “ 6. Subparagraph (a) of paragraph 1 above is hereby modified to the effect that the prices as herein stated are subject to change from time to time under proper governmental authority, it to be understood that any change in prices — if not retroactive- — -will apply on any and all shipments of coal made from the mines, subsequent to the date on which such new prices become effective, provided the supplier is not delinquent on the particular delivery in question, in which latter event the old prices will apply; if subsequent published prices are held by proper authority to be retroactive, such price adjustments as may be necessary on deliveries already made may be proceeded with under this order.”
    Subparagraph (c) of paragraph 1 of said order provided as follows:
    “(c) The order must be accepted and filled 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 order is placed under subparagraph (b), original is to be signed and returned. The duplicate copy may be retained by you in either case.”
    At the conclusion of the order was -the following: “ The above order is accepted subject to the conditions in subpara-graph (a). The price therein stated and fixed as being reasonable is_satisfactory.”*, This was followed by a blank space for the signature of the company.
    Upon receipt of this order by the company there ensued considerable correspondence wherein the company contended that it was being called on to furnish more than its proportion of coal. Mr. Atwater, the president of the plaintiff company, and Mr. Steinbugler, the secretary, went to Washington and protested to officials of the Navy Department and the Fuel Administration as to the amount of coal to be taken from the company and the price allowed.
    By direction of the Paymaster General of the Navy there were forwarded to the plaintiff three letters in words and figures as follows:
    19 Jult, 1918.
    Wm. C. Atwater & Co.,
    
      1 Broadway, New York City.
    
    Subject: Expediting of payments applying on Navy Order N-3004.
    SiRS: It is noted that the above Navy order has not been signed and returned. It will not be possible to make any payments applying on this order until after it has been received here properly signed.
    The Navy is desirous that payment on Navy contracts be expedited in every possible way. It is particularly desired to avoid the delay in payment caused by nonreceipt of the signed Navy order, and it is therefore requested that the order with your company be properly executed as soon as possible and forwarded to the Paymaster General, U. S. N., Purchase Division, Seventh and B Streets SW., Washington, D. C.
    Respectfully,
    By direction of the Paymaster General.
    27 August, 1918.
    Messrs. Wm. C. Atwater & Co.,
    
      1 Broadway, New• York, N. Y.
    
    Subject: Public bill for $52,076.52 from navy yard, Norfolk, Va. Under Navy Order 3004.
    Sirs: Public bill in your favor is being held in the disbursing division awaiting return of above-mentioned document signed, or statement of your position in the matter.
    Respectfully,
    By direction of the Paymaster General.
    
      13 SEPTEMBER, 1918.
    William C. Atwater and Company,
    
      1 Broadway, New York City.
    
    Subject: Supply of coal' for Navy use.
    References: (a) Your letter to Supplies and Accounts 6
    September, 1918. (b) Navy Order N-3004.
    Sirs : After full consideration of your letter above referred to it is felt inadvisable to make any present change in the allotment as now shown in Navy order above numbered, having in view advices already definitely given, that it was the intention to call on your company for deliveries on a much decreased scale due to the operating changes of your company since allotment was first made, assurance of which is again repeated. It is considered unnecessary that any change be made in the technical reading of the Navy order, which should therefore be promptly signed by you and returned here, in order that payments now pending can be made without delay.
    Respectfully,
    _ . 5
    
      Paymaster General of the Namy.
    
    VIII. During the period involved in this action the Navy Department of the United States maintained a list of mines known and. designated as the “ Navy acceptable list.” This list contained the names and locations of all mines, the production of which had been inspected and tested by the Navy Department and had been found to be up to the Navy standard and fit for use by the Navy Department. All the coal involved in this action was taken from mines on the “ Navy acceptable list.”
    IX. Pursuant to the orders described in these findings plaintiff delivered coal to the United States and received payment therefor as follows:
    Navy Order N-77. At Tiburón, Cal., Tonnage Paid
    June, 1917, to Sept., 1917_ 11, 889.1840 $28, 282.47
    Navy Order N-77 supplementary:
    At Lamberts Point, Va., Oct. 2, 1917, June 30, 1918_ 106, 332.1640 466,152.26
    At U. S. Naval Hospital, Portsmouth, Va., Oct. 31, 1917, June 30, 1918_ 4,110.2000 18, 049.29
    At Tiburón, Cal., Oct., 1917, Jan., 1918_:_ 12,954.1240 36,140.43
    
      Navy Order N-3004:
    At Lamberts Point, Va., July 1, 1918, Tonnage Paid
    June 7, 1919_ 126,952. 190 At U. S. Naval Hospital, Portsmouth, $607,14S. 30
    Va., July 1, 1918, June 30, 1919_ 4, 855. 200 23, 504.84
    At Sewalls Point, Va., Oct., 1918, Dec., 1918_ 3, 097. 14, 618. 92
    Total_ 270,192. 390 1,193, 896. 51
    On August 21, 1917, the President of the United States, under the so-called “ Lever Act ” of August 10, 1917 (40 Stat. 276), issued a proclamation regulating the sale of coal between private parties and prescribing a scale of tentative prices for the sale of bituminous coal. The scale of prices was provisional only, subject to reconsideration and revision when the whole matter of administering the fuel supply of the country should have been satisfactorily organized and put in operation. The price thus prescribed for the run-of-mine Virginia and West Virginia coal, which covered the plaintiff’s coal, was $2.00 per net ton, f. o. b. mines, which was equivalent to $2.24 per gross ton. By Executive order, dated August 23, 1917, that price was increased by permitting to be added thereto a jobber’s commission of 150 a net ton, which is equivalent to 16.80 a gross ton, making the unit price $2,408 per ton. In order to obtain that price the plaintiff submitted an affidavit to the Navy Department, dated October 19, 1917, that it was a coal jobber engaged as a sales agent in the business of selling coal from mines located in the Pocahontas coal field in West Virginia.
    The scale of prices specified in the Executive order of August 21, 1917, was amended by Executive order dated October 27, 1917, by adding thereto the sum of 450 a net ton, or 50.40 a gross ton to cover wage increases. The Navy Department sent a copy to the plaintiff of a circular letter dated November 12, 1917, addressed to “All Suppliers of Bituminous Coal,” advising it of the issue of said Executive order and requesting it to submit an affidavit to the effect that the mines it represented had fully complied with the conditions stipulated in the order of the President, as quoted in the letter, and further requesting that the affidavit state specifically the date on which the wage increase became effective. By letter dated November 26, 1917, the plaintiff submitted the required affidavit, dated November 26, 1917, covering the wage increase.
    In the Fuel Administrator’s Publication No. 4-C, entitled “ Further classification of bituminous coal,” an increase of 400 a net ton, or 44.80 a gross ton on coal furnished from the Tug Elver district was granted. The order of the Fuel Administrator, dated March 20, 1918, increased the price of specially prepared coal by 200 a net ton, or 22.40 a gross ton. On March 31, 1918, the jobber’s commission of 150 a net ton, or 16.80 a gross ton, was discontinued. The provisional prices fixed in the Executive order of August 21,1917, were made the final prices for coal delivered during the period by Fuel Administrator order dated March 27, 1918, which stated that these prices should be the basis for settlements on coal sold prior to April 1,1918; and that after April 1,1918, no coal should be sold or delivered at any fixed price subject to revision on account of any subsequent price regulations. The Fuel Administrator Order No. 26, effective May 25, 1918, decreased the price of bituminous coal, including the mines from which shipments were made by the plaintiff to the Navy Department, by 100 a net ton, or 11.20 a gross ton. Under date of November 22, 1918, the Paymaster General of the Navy addressed to the plaintiff a letter, which granted an increase of 5.60 per gross ton on specially prepared coal shipped from the mines from which coal was being furnished by the Atwater Company to the Navy.
    The detailed figures showing dates and payments are shown by plaintiff’s amended Exhibits A, B, C, and D, filed with the second amended petition, which to this extent are made a part hereof.
    The payments made to the plaintiff by the Navy Department were for the entire tonnage furnished by the plaintiff at the full prices mentioned in the specified orders and their modifications. These payments were received, accepted, and retained by the plaintiff without protest.
    For each payment vouchers were prepared by officers at the Navy Department on printed forms of public bills. On each form appeared the words “ Bureau Contract No.,” which had been stricken out and the words “ Navy Order N-3004 ” (or the appropriate number) inserted by the Navy Department. Attached to each bill was an invoice on the letterhead of William C. Atwater & Company, Inc., on which appeared the endorsement “ Correct and just. Payment not received. William C. Atwater & Co., Inc., by David H. Allen, General Manager.” This endorsement appeared on the invoices presented under Navy Order N-77, as well as under Navy Orders N-77 Supplementary and N-3004. Such an endorsement was in practice required by the Navy Department when tentative prices were paid under Navy Department orders providing for advance payments, and without such an endorsement the supplier would not be paid, but payments under bills bearing such endorsement were not treated as final by the Navy Department, and additional payments would be made where the Navy orders so provided in spite of such an endorsement on the invoices at the time of the payment of the advance price.
    On August 31, 1917, the supply officer, U. S. navy yard, Norfolk, Va., had sent a circular letter to the plaintiff on the subject of supporting papers covering deliveries of coal to the Navy which contained instructions in part as follows:
    “ 5. For each delivery under this award, submit bill in duplicate for the exact quantity shipped, stating thereon the requisition or contract number and item number. The original bill must bear the following certificate and be signed with firm name and autograph signature of an official of the firm, together with this title:
    “ Examples:
    “‘Certified correct and just; payment not received.
    “ ‘ The Smith JoNes Company,
    “ ‘ By J. D. Smith, ¡Secretary.
    
    “ ‘ Certified correct and just; payment not received.
    “ ‘ Jones & Smith,
    “ ‘ By J. D. Smith, Member of Firm.’’
    
    “ 6. The Treasury Department regulations require the certification as outlined in the above paragraph. You are requested, therefore, to follow carefully these instructions, in order that there may be no delay in our making prompt payment of your bill.”
    The Fuel. Administrator changed from time to time the prices specified in Navy Orders N-77, Supplementary N-77, and N-3004, by orders duly issued and received by the plaintiff, and the plaintiff received, accepted, and retained the payments made to it at the prices as so changed from time to time by proper governmental authority without protest. The provisional price specified in Navy Order N-77 was made the final price for the coal delivered under its terms and provisions by the Fuel Administrator’s order dated March 27, 1918.
    X. The plaintiff owned no coal mines. The coal delivered to the United States involved in this case was acquired by plaintiff by purchases from mines controlled by interests affiliated with them. On the dates when the three Navy orders were given the coal which was subsequently delivered pursuant to said orders was in the ground and was not owned by the plaintiff. In every case the coal was owned by plaintiff at the time of actual delivery to the United States. The coal was delivered to the United States pursuant to instructions received from the Navy Department from time to time, sometimes in letters, sometimes telegrams or telephone calls, sometimes by instructions direct to the railroad to turn the coal over to vessels. These instructions were in addition to Navy Orders N-77, N-77 Supplementary, and N-3004. The coal delivered to Lamberts Point and to Sewalls Point had in all cases been mined and was owned by the plaintiff when these instructions were given. But in the case of the coal which was delivered to- Portsmouth, Virginia, and Tiburón, California, the orders were monthly and some of the coal was not out of the ground when the orders were given. All of the coal was shipped on commercial waybills, which are simplified bills of lading. None of it was shipped on Government bills of lading. The coal which went to Lamberts Point and Sewalls Point was consigned to William C. Atwater & Company, Inc., and was delivered by the plaintiff to naval vessels at Hampton Hoads. The coal which went to the Naval Hospital, Portsmouth, Virginia, and to Tiburón, California, was consigned to the officer in charge at the respective places.
    XI. During the whole of the period in which the said coal was delivered there was a ready and constant market, at Hampton Roads, Virginia, for said coal for export to foreign countries and for foreign bunkering purposes, and the demand would have readily absorbed all of the coal delivered by plaintiff to the Navy Department of the United States. The plaintiff company had a well-established export business in coal similar to that furnished the Navy. There was direct railroad connection between the mines in West Virginia where the coal was produced and the piers at Hampton Toads, Virginia, where the export market existed. There was no lack of cars or embargo during the period in question which would have prevented the coal going into the export market. The coal delivered at Lam-berts Point, Virginia, and Sewalls Point, Virginia, did in fact go' over the railroad to the point of export market at Hampton Roads. The coal delivered to the United States Naval Hospital, Portsmouth, Virginia, went over the same railroad to a switching point a few miles from Lamberts Point and- could readily have gone to Lamberts Point. During the period that the coal was delivered to Tiburón, California, the railroad was open to Hampton Roads, Virginia, and the plaintiff company was shipping large quantities of coal to Hampton Roads during the same period.
    XII. At the time of these transactions the price of export coal was in excess of the price of domestic coal. The export market value of the coal delivered to the Navy Department at the time and place of delivery of the same, the amounts which the Government has paid to plaintiff, and the difference therein are as follows:
    
      
    
    Total market value_$1,531, 887. 08
    Total paid- 1,193,896.51
    Total difference_ 337, 990. 57
    XIII. The market value as stated in Finding XI hereof is in all cases within the figure allowed by the Fuel Administration for sale for export and foreign bunkering. The Fuel Administrator promulgated orders relating to export and bunker coal as follows: On September 6, 1917, it was directed that the President’s order fixing prices for bituminous coal as of August '21, 1917, included export and bunker coal. This was repeated in another order of the Fuel Administrator of October 6, 1917. There was considerable difference of opinion among coal operators as to whether this meant that the price of export coal was to be no more than the domestic price, and on December 13, 1917, the Fuel Administrator directed that the maximum price of coal sold and delivered to vessels for foreign bunkering purposes or for export to foreign countries, except to Canada and Mexico, should be the price prescribed for such coal at the mine at the time such coal left the mine plus transportation charges from the mine to port of loading plus $1.35 per ton of 2,000 pounds, plus customary and proper charges for work on bunkering or loading, storage, towing, elevation, trimming, special unloading, and other port charges. On February 25, 1918, this order was reaffirmed and it was stated that the phrase “ delivered to vessels for foreign bunkering purposes ” was held to mean coal put in the bunkers of any vessels sailing from a tidewater port to any port outside the United States and Alaska excepting naval vessels or Army transports. On January 31, 1919, the regulation of price for export coal was rescinded. No permits were required from the Fuel Administration for the sale of coal for export and foreign bunkering, and there was no restriction of such sale by the Fuel Administration except as to price. The War Trade Board required permits in connection with the sale of coal for export purposes, but these permits were refused only in cases when the proposed consignee had been blacklisted as being friendly to the enemy. Plaintiff herein never had an application refused and experienced no difficulty in connection with its sales for export purposes. The War Trade Board exercised no supervision over the delivery of bunker coal to foreign vessels.
    XIY. During the period from June 1, 1917, to date, the legal rate of interest in Virginia, West Virginia, the District of Columbia, and New York was six- per cent and in California was seven per cent.
    The court decided that plaintiff was not entitled to recover.
   Graham, Judge,

delivered the opinion of the court:

This suit grows out of several orders issued by the Navy Department to the plaintiff for the purchase and procurement of coal. The orders were accepted, the coal delivered, and the plaintiff paid in full' the price fixed in the orders. It is here claiming that its coal was requisitioned, and that it is entitled to the full market value of the same at export prices.

The plaintiff, at the time it received and accepted the orders, was engaged in business as a sales agent, purchasing the output of the mines of others and reselling to coal dealers and consumers without physically handling the coal. It, at the said time, owned no coal on the ground or at the mouth of the mine, nor did it own any mines. All the coal delivered was purchased by the plaintiff, and at the time of delivery was owned by the plaintiff.

At the time of the receipt of the orders the entire tonnage of coal which the plaintiff had previously contracted for had been disposed of under contracts in advance, and until some months thereafter.

On June 14, 1917, and thereafter plaintiff received orders at different times from the Navy Department for specified amounts of coal subject to the conditions in subparagraph (a) of said orders.

Subparagraph (a) is as follows:

“ The price herein stated has been determined as reasonable and as just compensation for the material to be delivered; payment will be made accordingly. If the amount is not satisfactory you will be paid 75 per centum of such amount, and further recourse may be had in the manner prescribed in the above-cited acts. Please indicate conditions under which you accept this order by filling in and signing certificate below, returning original copy of order. If you state the price fixed as reasonable is not satisfactory, 75 per cent only of the unit price will be paid. If payment in full is accepted it will be considered as constituting a formal release of all claims arising under this order.”

The orders fixed a price per ton, and stated that this price had been determined “ as reasonable and just compensation ” for the coal to be delivered; that “ if payment in full is accepted it will be considered as constituting a formal release of all claims arising under this order ”; and that if the price stated was satisfactory the following clause at the bottom of the order should be signed:

“ The above order is accepted subject to the conditions in subparagraph (a). The price therein stated and fixed as being reasonable is satisfactory.”

This was signed in each case by the plaintiff.

The order also provided that in case the price fixed as reasonable was not satisfactory, 75 per cent of this price would be paid to the plaintiff. The orders stated that they were issued pursuant to the provisions of the acts of March 4, 1917, and June 15, 1917.

The plaintiff accepted the price named and payment in full, without protest or objection, for all coal delivered at the price stated in the respective orders, which was the domestic price.

In the case of the American, Smelting & Refining Co., 259 U. S. 75, 78, 79, it was held that an order for copper at a price fixed, and the acceptance of the order and the price fixed, was a contract, which precluded the vendor from recovering additional compensation. Justice Holmes, in delivering the opinion of the court, said:

“ * * * 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, sec. 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.
* * * * *
“ 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.”

In Nelson Co. v. United States, 56 C. Cls. 448, there was an order for the delivery of lumber in excess of the amount called for by the contract, the price stated in the order being the contract price, and, although protesting, plaintiff filled the order and accepted payment. This court dismissed the petition. Chief Justice Taft, in delivering the opinion affirming this court (261 U. S. 17, 23, 24), said:

“ * * * this can not change the legal effect of its evident acquiescence seen in its letter of June 18th and its failure to protest thereafter and to put the Government on notice that it intended to claim a recovery on a quantum valebat when it was delivering the extra two million feet of lumber and receiving the payments therefor from the Government at the prices named in the bid.”

In the case of Willard, Sutherland & Co. v. United States, 262 U. S. 489, 494, where there was an order for coal in excess of the quantity provided for in the contract, the price fixed in the order being the contract price, and the plaintiff protesting filled the order and accepted payment, the judgment of this court dismissing the petition was affirmed. Justice Butler, in delivering the opinion of the court, said:

“ * * * it must be held voluntarily to have accepted the order for the additional 1,000 tons and to have furnished it at the price specified in the contract. Charles Nelson Co. v. United States, 261 U. S. 17.”

At the time of the passage of the act of March 4,1917, this Government was not at war, but was preparing for any emergency that might arise, and was at war at the time of the passage of the act of June 15,1917. The required method of advertising for bids and executing formal contracts necessarily involved delay. It was thought desirable to supplement this by another and a swifter method of purchasing and procuring supplies, and so a method was provided by these acts in addition to the methods authorized by sections 3709 and 3744 of the Revised Statutes. The President by these acts was authorized, “ in addition to the then authorized methods of purchase and procurement,” “ to place an order ” for materials with producers of such materials through such agencies of the Government as he saw fit; and in order to be sure that the desired materials would be promptly secured, and possibly as an incentive to acceptance and compliance with the order, it was further provided that, if the producer refused or failed to comply with the order, the President coul'd seize the materials or plant of the producer. A taking was only to be resorted to in case of the failure or refusal of the party to accept or comply with the order.

As stated, the President could proceed to purchase by simply placing an order. But, further, it will be seen that it was contemplated that in placing the order he should name a price, and so the act provides that if the producer to whom the order is given shall “ refuse to furnish * * * at a reasonable price to be determined,” the President is authorized “ to take possession of his plant or materials.” The term “ reasonable price ” left the matter of purchase price to be offered discretionary with the President, as well as the terms and conditions upon which the goods were to be supplied, as also the form and substance of the order to be issued in each case.

Obviously, when an order was given under authority of these statutes for the purchase of materials, and the terms and price were fixed therein, and the price was accepted, or the order complied with and materials delivered without formal acceptance, there came into existence a valid contract under the authority of this statute, a contract which was enforceable in the courts and binding upon both parties.

These said two acts, in some minor particulars not pertinent to the question here, are different, but the authority of the President to make a legal contract by placing an order under certain terms and conditions without the formality of advertising for bids or formal contracts is the same, as is the purpose to secure by this method the purchase by contract of the materials and to make the acceptance of the order and the delivery of the goods, where no objection has been made to the price, a contract binding upon both parties.

As stated, the orders in this case fixed the price. It was accepted in writing as satisfactory, and the price named was paid and accepted.

The court in the Consolidation Coal Co. case, 60 C. Cls. 608, 270 U. S. 664, which was appealed to the Supreme Court and the appeal dismissed, and in the Pocahontas Fuel Co. case, 61 C. Cls. 231, where no appeal was taken, and in both of which the parties owned coal mines, held that similar orders to those in this case constituted contracts. In Ameri can Smelting Co. v. United States, supra, Justice Holmes stated in the opinion:

“ No acceptance was necessary if the order was a compulsory requisition ” — that is to say, if it be merely an order intended to be accepted by the plaintiff, its acceptance or nonacceptance could not convert it into a requisition. If any significance is to be attached to the acceptance by the plaintiff of the order and price as satisfactory, it must be concluded that it did not regard it as a requisition, and it is evident that this was not the intention of the defendant.

As was stated in the American Smelting & Refining Co. case “ if it 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.” Following what we concluded was the legal principle and logic of this opinion*, which was in accord with our construction of the meaning of the statutes, we held, as stated, in the Consolidation Coal Co. and Pocahontas Fuel Co. cases, supra, that the orders were contracts. And in line with the same principles we held in the Liggett &, Myers case, 61 C. Cls. 693, 274 U. S. 215, which involved an order for cigarettes, that it was a contract, but the Supreme Court reversed that case, holding that the order was a requisition, though not questioning the jurisdiction of this court. A few facts will serve to distinguish it from this case. That case was on a stipulation of facts, which did not contain the President’s order of August 9, 1917, giving authority to the Secretary of the Navy to proceed in the procurement of materials. It will be found in Finding Y in this case, and an inspection of it makes it plain that it is important in reaching a conclusion as to whether the orders under subparagraph (a) of the naval orders were, under the acts of March 4, 1917, and June 15, 1917, contracts or requisitions.

The order of the President is based upon and confined to the authority given him under these acts and contains the following language:

“ I hereby direct that the Secretary of the Navy shall have and exercise all the power and authority vested in him in said acts in so far as applicable to and in furtherance of the production, purchase, and requisitioning of * * * war materials, equipment, and munitions required for the use of the Navy and the more economical and expeditious delivery thereof.”

The power conferred upon the Secretary of the Navy by the order of the President was only such power as was given him under the acts of March 4 and June 15, 1917 (Hooe case, 218 U. S. 322, and North American Co. case, 253 U. S. 330, 333), and the power given him under these acts was to place orders, and, on refusal to accept or comply with them, to seize the materials and operate the plant of the producer.

In the Liggett & Myers case the order was under sub-paragraph (b) of the naval order, which did not fix a definite price, but left for later determination the compensation; that is to say, that under subparagraph (b) the plaintiff’s consent to the price fixed was not sought as it was upder subparagraph (a). The court says in its opinion:

“ The plaintiff’s consent was not sought. It was not consulted as to quantity, price, time, or place of delivery.”

In the instant case, under subparagraph (a), the consent of the plaintiff was sought. It was asked to state whether or not the price fixed was satisfactory, and it did so state in signing its acceptance of the order. The acceptance of the order “ subject to the conditions ” was an acceptance of the quantity named and the time and place of delivery. The plaintiff could have refused to accept, and in that event it would receive 75% of the price. The acceptance of the price, which included an agreement to the other terms of the order, can not be said to have been a mere “ expression of purpose to obey,” for there was no compulsion in the acceptance. Plaintiff had no coal mines. It had nothing to be seized if it did not accept the orders when and as given.

Subparagraph (a), under which the orders in the present case were placed, and subparagraph (b), under which the orders in the Liggett & Myers case were placed, are in the findings.

One other distinction between this case and the Liggett & Myers case, assuming for the purpose that orders under sub-paragraph (a) were intended as requisitions to be enforced if not complied with, under the acts of March and June, 1917, is that in that case the plaintiff owned a plant, and was engaged in the manufacture of cigarettes. Had it refused to accept the order the Government could have seized its plant. In this case the plaintiff was a mere broker and sales agent, securing coal for sale when and as it could obtain it, from mines and independent operators. There was nothing obligatory upon the plaintiff, no compulsion. There was nothing the Government could have seized under said acts (and the act of June 3, 1916, did not apply) had the plaintiff refused to comply with the orders. Clearly it could not have been the intention of the Navy Department to treat this order as a requisition.

There is another phase of the provisions of the act which precludes the contention that this was a requisition. The act provides for an order for war material “ which is of the nature and kind usually produced or capable of being produced by such individual ” — that is, the person to whom the order is given. This means, if it means anything, that the materials ordered must be of the kind which the person addressed manufactures and produces; that is to say, the act did not authorize the President to order cigarettes from a producer of coal, or coal from a manufacturer of cigarettes. So his power was limited to the material produced. The word produced ” here means manufactured, something brought into existence by some plan or method of transforming materials into a product.

The petition alleges that the plaintiff’s coal was requisitioned by the Government under certain orders issued by the Navy Department. There are three orders involved, one dated June 14, 1917, later becoming Navy Order N-77, one called Supplementary Navy Order N-77, dated September 22, 1917, and one called Navy Order N-3004, dated June 13, 1918. The deliveries under the first two of these orders were completed on or before June 29, 1918. Deliveries under the last order begun July 2,1918, were made at divers dates, and completed in June, 1919. The plaintiff claims that its coal was taken under the power of eminent domain and that it is entitled to have the highest market value of coal at the time and place of delivery. It has been paid the full price stated in the several orders except where the prices were increased from time to time by the Fuel Administration, and in the latter case the full prices have been paid and have been received. In other words, the prices for domestic coal have been paid. The plaintiff asks export prices.

Whether there was authority in the officers issuing the orders to exercise the power of eminent domain, and whether having received the entire price fixed there should be a recovery of an additional amount, and whether, in the absence of action by the President, or the board authorized to do so, ascertaining the amount of just compensation, there is a right of action, are questions that were involved in the case of New River Collieries Co., decided by this court on April 2,1928 (ante, p. 205), and the discussion need not be repeated in this case, which is weaker, in some aspects, than was the case just mentioned.

Plaintiff waited more than six years after it had accepted the order, as stated, before this suit was brought on February 23, 1924, and it waited more than six years after it had delivered more than 40,000 tons of the coal called for before bringing suit. The entire amount called for was delivered five years and eight months before this suit was instituted. The acceptance of the order, the expression of satisfaction with the price, the acceptance of the entire amount based on that price, conclusively bar the present claim. But the plaintiff insists that subparagraph (a) was modified and a refinement is indulged in as to the meaning to be ascribed to the modification. It accepted, however, the price stated in sub-paragraph (a) and was actually paid that price. If there had been a reduction of the price and the reduced sum had been offered there would be more merit in the contention. There can be no merit in it when so belatedly asserted. As heretofore explained, no such case as here presented was considered in the Liggett & Myers Tobacco Co. case, 274 U. S. 215, 61 C. Cls. 693.

Navy order N-3004 covered the period from July 1, 1918, to June 30, 1919, and it was accepted with a statement that “ the price fixed is satisfactory.” The full amount was paid to and accepted by plaintiff, but the latter claims that sub-paragraph (a) was modified. The modification did not alter the effect to be given the acceptance of the price fixed as satisfactory, whatever may have been the effect of an attempted reduction of the price stated. The acceptance of the full amount of the stated price — -that is to say, the acceptance of 100 per cent instead of 75 per cent — has an important bearing on the right of the recipient to maintain a suit for an additional sum, and in any event will defeat such right, whereas in this case the price was agreed to, was accepted without protest, and no complaint was made- for so long a time as the record discloses. The mere acceptance of the 100 per cent is not sufficient to defeat the jurisdiction of a court. Houston Coal Co. case, 262 U. S. 361. But such acceptance does affect the merits of the case. McNeil & Sons case, 267 U. S. 302, and White Oak Coal Co. v. United States, 15 Fed. (2d) 474. In this last-named case the court says (p. 477):

“ Under the law, as well as under the offer of the Government, plaintiff was entitled to the full amount of the price fixed, only in the event it was accepted in full satisfaction. It had the right to decline the Government’s offer and sue for the value of the property taken, if it desired to do so, but in that event it was entitled, not to the full amount of the price fixed, but only 75 per cent thereof. It obtained the full price by accepting the offer, certifying the price fixed as satisfactory, and rendering invoices, not for 75 per cent, but for the full price, which it accepted without protest. Even if the contract feature of the case be ignored, plaintiff can not recover. It voluntarily elected to pursue one of two inconsistent remedies as a means of obtaining compensation for its property. Having obtained benefits thereby which it could not otherwise have obtained, it is estopped from pursuing the other remedy.”

There could be no requisition or taking of the coal except by virtue of the orders. There is not a particle of proof of any authority in any officer or agent of the Government to take plaintiff’s coal, if we leave out of consideration the three orders and the acts on which they were predicated. Affirmative proof of the power to take must appear. See Hooe case, 218 U. S. 322, 336; North American Co. case, 253 U. S. 330, 333. If, on the other hand, there was. a taking under the statutes mentioned in the orders, then it is plain that plaintiff has not followed these statutes in the assertion of its claims. It has not only departed from their provisions in its acceptance of 100 per cent of the prices stated, but it concedes that no other action has been taken by the President or other authorized agency toward determining the just compensation which the acts recognize. If it be said the price was determined in the orders themselves, the answer is that that price was declared satisfactory by the plaintiff and received in full. If something more was necessary to be done by the President or other agency, it has not been done, nor has plaintiff asked that such action be taken. It has acquiesced for years. It asserts in its brief that “ when its property was taken it did not have the immediate right to go to the Court of Claims,” and must first have just compensation determined by the President, citing United States v. Taylor, 104 U. S. 216, United States v. Cooper, 120 U. S. 124. We think that a substantial compliance with the procedure provided in the statutes is essential in such case. But under another phase of the case plaintiff asserts that it was not entitled to sue until May 14, 1922.” This date is apparently adopted as the date when the President’s power expired under the act of June 15, 1917. This assertion is predicated on the provision of the act, 40 Stat. 183, terminating authority under it at the end of six months after the final treaty of peace. But the act of June 5, 1920, 41 Stat. 988, expressly repealed the act of June 15, 1917, subject to certain exceptions, one of which was that it conferred on the United States Shipping Board, instead of the President, the “ powers and duties relating to the determination and payment of just compensation.” If, therefore, it be true, and plaintiff apparently concedes it is true, that action by the President under the statutes was a condition precedent to its right of action, the statute continued that same power in a board which has not acted and has not been applied to for action, and because thereof there is still a bar to the suit. The plaintiff insists that no part of its claim is barred by the six-year statute of limitations, notwithstanding the first order was issued in 1917 and entirely complied with by deliveries more than six years before suit was brought, which was in February, 1924, and the second order was issued and very largely complied with more than six years before suit was brought, and assigns as the reason for this contention that the necessary action by the President toward determining compensation had not been taken. If the reasoning is good to prevent the running of the statute of limitations, it is equally potent to prevent a suit.

Our conclusions may be summarized as follows:

1. That there was a contract; that plaintiff was paid the contract price and can not recover more than that price;

2. If these orders are treated as requisitions, then—

(a) That the plaintiff was not a producer of coal, owned no plant or mine, possessed no available coal at the time of the receipt of the orders, and was not a person to whom the requisition could or would be issued by the Secretary of the Navy under the authority of the acts named in the order, or the order of the President under said acts.

(b) That the acts enjoin certain necessary procedure, and that if the orders were obligatory upon it, the plaintiff has not pursued the course required by said acts and can not avail itself of them in this proceeding. See New River Collieries Co. v. United States, decided by this court April 2, 1928, ante, p. 205.

(c) That the claim is barred by the statute of limitations, and

(d) That the court is without jurisdiction. If the material was appropriated for public use, the taking must have been under section 10 of the Lever Act. United States v. New River Collieries Co., 262 U. S. 341, 343; United States Bedding Co. v. United States, 266 U. S. 491, 493; Atwater Co. v. United States, 215 U. S. 188, 191; White Oak Coal Co. v. United States, 15 Fed. (2d) 414 (certiorari refused).

The petition should be dismissed, and' it is so ordered.

GreeN, Judge; Moss, Judge; and Booth, Chief Justice, concur.  