
    KINGAN & CO., INCORPORATED, v. THE UNITED STATES
    [No. 45275.
    Decided October 4, 1943]
    
      Mr. Paul F. Myers for plaintiff. Mr. James Craig Peacock was on the brief. '
    
      Mr. Grover C. Sherrod, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant.
   The court decided that the plaintiff was entitled to recover, in an opinion per curiani, as follows:

The amount of $4,439.62 claimed by plaintiff represents-an amount admittedly due it under the contract of September 5,1934, for canned roast beef, but payment of the amount, was withheld by defendant on the ground of alleged overpayment to plaintiff of $3,043.56 for yardage for cattle and' sheep slaughtered, and $1,396.06 for feeding cattle and sheep-received from day to day by plaintiff which either did not exceed the daily quotas provided for in contracts with defendant or were not in excess of the number slaughtered each, day.

The defendant first filed a counterclaim in this suit for the .alleged overpayments to plaintiff, but, after the decision in this court in John Morrell & Company v. United States, 94 C. Cls. 490, defendant, upon application to and by leave of the court, withdrew this counterclaim.

Upon the facts and the provisions of the contracts between the parties in this case, the question presented is governed by the decision of this court in John Morrell & Company, supra, and judgment will be entered in favor of plaintiff for $4,439.62. It is so ordered.  