
    J. ERNEST NUSS, EDGAR H. TURKLE, CLYDE C. CHURCH, d/b/a ALLIANCE SEAMLESS CASKET CO. (A PARTNERSHIP) v. THE UNITED STATES
    [No. 49586.
    Decided January 5, 1954]
    
      
      Mr. William F. Welch for the plaintiffs. Mr. Frank M. McHale was on the briefs.
    
      Mr. Bernard Wohlfert, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

The plaintiffs Nuss, Turkle and Church, a partnership doing business under the trade name Alliance Seamless Casket Co., seek compensation for alleged breach of a contract implied in fact. They claim to have presented the plans, specifications and idea in connection with a casket used by the defendant to return to the United States the bodies of military personnel buried overseas.

In 1944 the Office of the Quartermaster General of the Army Service Forces, anticipating the authorization by Congress of a program for the return from overseas cemeteries deceased military personnel of World War II, directed its Memorial Division to make a study of the problems and requirements involved in such a program. At that time the Memorial Division had the duty of administering military cemeteries, the maintenance of grave registration records, including maintaining records of deceased soldiers, notifying their next of kin, and in general supervising overseas burials and grave registrations.

The Memorial Division which was under the direction of Colonel Harbold, requested the Casket Manufacturers Association of America to assist in the study and formulation of a program for the production of a suitable casket. In November 1944 the Association notified its members of the request and in early 1945 set up a technical committee headed by a Mr. Strunk, who was the production manager of the Boyertown Casket Company, to prepare specifications for a suitable casket, and to assist generally in the development of a repatriation program.

Since the Association was limited to companies and firms, the plaintiffs were not members.

This Association offered its services to the Memorial Division without any understanding or expectation that royalties or fees would be charged for the use of any plans, specifications, ideas or services furnished or submitted by it or any of its members.

The plaintiff Nuss had been the Cleveland branch manager of the Boyertown Casket Company of Boyertown, Pennsylvania, since 1935, and for five years prior thereto he was employed as a designer of caskets at the Columbus branch of that company.

In 1933 he learned of the effort of a competitor of his employer to manufacture a seamless casket by the deposit of copper on a plastic form. He studied the idea of manufacturing a metal casket by pressing the main body from a single sheet of steel so as to eliminate the welded seams generally found in metal caskets manufactured by the industry. The idea involved a top stamped from a single sheet, a receptacle drawn from a single sheet of steel, and a separate cradle to support the receptacle or container.

From 1935 to 1944 the plaintiff Church also was employed by the Cleveland branch of the Boyertown Casket Company. In 1944 Mr. Church left this position and purchased and thereafter operated a concrete-burial-vault manufacturing company. Mr. Nuss first discussed his seamless casket idea with Mr. Church in 1935.

The first public disclosure by Mr. Nuss of his idea was in 1939 when he held a conference with representatives of the Bepublic Steel Corporation concerning the use of stainless steel in the manufacture of a seamless casket. He also about that time discussed his idea with the plaintiff Turkle, who operated a mortuary business at Alliance, Ohio.

In the spring of 1944 Mr. Turkle who at that time was president of the National Selected Morticians Association, arranged for Mr. Nuss to present Ms ideas to a research committee of that organization at Pittsburgh, Pennsylvania. The Association at that time was investigating casket material and designs for use in the repatriation program, such investigation being at the request of Colonel Harbold, the director of the Memorial Division of the Quartermaster Corps. Several members of the committee were present, as were also representatives of the Eepublic Steel Corporation and the Camegie-Illinois Steel Corporation. The question was discussed as to whether a deep-drawn cteel casket could be made and it was suggested that if anyone could do it it would be C. J. Eodman of Alliance-Ware, Inc., of Alliance, Ohio, whose company was engaged in the manufacture of deep-drawn bath tubs.

After conferences were held between the plaintiffs and Mr. Rodman, Mr. Eodman at Mr. Turkle’s invitation addressed the fall meeting of the National Selected Morticians Association on the subject of porcelain enameling a deep-drawn casket.

In the spring of 1945 plaintiff Turkle retired as president of the National Selected Morticians Association, but while in that office he had experienced contacts with the Memorial Division of the Quartermaster Corps and other agencies of the defendant.

In April 1945 Mr. Turkle and Mr. Nuss discussed the idea of bringing the suggested seamless steel casket to the attention of the Quartermaster Corps. Soon thereafter the plaintiffs were associated in partnership.

About April 7,1945, Mr. Turkle went to the office of Major Beyers in the Memorial Division of the Quartermaster Corps and in behalf of the Alliance Seamless Casket Company presented a brochure containing drawings of a deep-drawn seamless casket proposed for use in the repatriation program. Major Beyers at that time was assigned under the direction of Colonel Harbold to study and assemble data concerning a proposed program and to investigate the general problem of plans and specifications for caskets and shipping boxes in order to have a design which would meet the approval of the Research and Development Branch of the Military Planning Division of the Quartermaster Corps.

Major Beyers took Mr. TurHe to see Colonel Harbold who briefly examined the brochure and commented that he was not setting anybody up in the casket-manufacturing business, to which Mr. TurHe replied that he was already in that business. Then Colonel Harbold concluded the conference by stating that the problem was assigned to Major Beyers and he could go ahead and review the matter. After leaving Colonel Harbold, Major Beyers conferred further with Mr. Turkle and requested more specific details.

On July 13, 1945, a conference called by Colonel Harbold was held in Washington, D. C., between the committee of the casket manufacturers’ association and the Memorial Division of the Quartermaster Corps. The announced objective was to inspect five full-sized sample caskets submitted by various manufacturers.

There followed a rather full discussion of the subject. Major Beyers had invited the plaintiffs to attend and they were present. Mr. Bodman of Alliance-Ware, Inc., was also present.

The question of whether a seamless casket was practical was discussed, and Mr. Bodman explained in detail his plant and equipment and expressed the conviction that such a deep-drawn casket could be manufactured.

After considering the various full-sized caskets the general understanding was that the committee of the casket manufacturers’ association would proceed to prepare its recommendations for the Memorial Division and as to what tests should be made in the research and development line.

The Besearch and Development Branch which had the duty of developing, designing, and specifying items of military supplies under the Quartermaster General delegated Lt. Paden to represent the branch at the July meeting and soon thereafter an order was isued to the Besearch and Development Branch to undertake the development of a suitable military casket for the purpose indicated.

In September 1945 the plaintiffs submitted to Major Beyers an additional brochure. Lt. Paden had observed that in the proposed model the flange on the top section of the casket turned outward, while that on the body section turned inward, and that this afforded a point for leakage where the bolts were fastened. It was then decided to have the flange on the body section turn outward instead of inward.

On October 3 and 4,1945, a conference was held in Washington, D. C., between the technical committee of the casket manufacturers’ association and representatives of the Memorial Division and the Research and Development Branch. The technical committee made its recommendation with respect to the conventional seamed casket best suited for the repatriation program. The plaintiff Turkle was present and discussed and promoted the idea of a seamless casket.

Up to that time the plaintiffs had had no personal contacts with any agent of the defendant outside the Memorial Division. At that time Major Beyers advised Mr. Turkle that the Research and Development Branch would prepare specifications subject to his approval.

The Research and Development Branch in October 1945 submitted a report of its findings and recommendations which included a rejection of the conventional type casket and recommended the adoption of either a seamless liner to be inserted in a conventional casket or a seamless casket drawn from steel with base, trim and handles applied by spot welding. The seamless liner types had been suggested by the Modern Casket Company of Chicago. The second type was used in the repatriation program.

After a further conference with the technical committee of the casket manufacturers’ association and Lt. Paden and a representative of the Research and Development Branch at which Major Beyers and plaintiff Turkle were present, Major Beyers announced that the research and development representatives would go to the plant of Alliance-Ware, Inc., at Alliance, Ohio, to watch the operation of the Bliss press used in the deep-drawing of steel bath tubs, and also inspect the plant in an effort to determine the feasibility of manufacturing a seamless casket.

On November 8, 1945, Lt. Paden and Mr. Wallance, who represented the Research and Development Branch, visited the Alliance-Ware plant and discussed technical problems with engineers and officials of that company. Also present were representatives of the Republic Steel Corporation and various representatives of casket manufacturing companies, and Major Beyers and plaintiff Turkle. Following this visit Lt. Paden and Mr. Wallance reported to the Quartermaster General in part as follows:

The fabrication of a seamless casket is both feasible and practical. The Alliance Ware Company is equipped and in a position to fabricate the deep drawn shells for the body of such a casket. The casket manufacturing industry, as represented by those present at the above described meeting, will cooperate in development and production of the seamless casket.

Lt. Paden, who was assigned by the Research and Development Branch the responsibility of preparing the specifications for the repatriation casket, was an experienced furniture designer but not an engineer. He attended a number of meetings at which he came in contact with one or more of the plaintiffs. He knew as early as July 1945 that the plaintiffs had submitted the seamless casket idea to the Quartermaster Corps. He sought information and help from, the Casket Manufacturers Association, but his main contacts were with the Galanot Products Company. The Galanot Products Company expressly disclaimed to Lt. Paden any interest in entering into a research and development contract with the defendant, but indicated it would rather develop the casket and pay its own costs of development.

The written specifications dated January 7, 1946, upon which bids were ultimately issued by the defendant for the manufacture of the casket, were prepared under the supervision and direction of Lt. Paden. Minor modifications in the cradle of the specified casket were suggested by various manufacturers during the later contract operations and approved by the Quartermaster Corps, but the casket produced was essentially that described in the specifications and drawings. The drawings were prepared from the casket model which had been made by the Galanot Products Company and submitted by the plaintiffs for the tests by the Bureau of Standards. The defendant’s specifications were somewhat more detailed than the brochures submitted by the plaintiffs, but the ultimate casket produced was substantially the same as the seamless casket proposed by the plaintiffs in their brochures.

On November 19, 1945, the plaintiff Turkle, Mr. Bowden of Alliance-Ware and Mr. Bacon of Galanot Products Company called on Lt. Paden to offer assistance in the writing of the specifications. In December Lt. Paden informed Mr. Turkle that a Mr. Cotnam, of the Quartermaster Procurement Division, was involved in the matter of the purchase of the casket. This was the first time plaintiffs knew that someone outside the Memorial Division might award the contract. Mr. Cotnam was a section or subsection chief in the Procurement Division of the Office of the Quartermaster General whose duties were to determine sources of supply, prepare procurement directives and forward all necessary information to a procurement agency of the Quartermaster Corps. He was a sort of liaison officer between the Office of the Quartermaster General and contracting officers. He had no authority to make contracts at any time, and no authority to contract for the defendant for the use of any inventions, specifications, designs or procedure for the manufacture of caskets, or to pay compensation for such use.

The plaintiff Turkle called on Mr. Cotnam several times during the next few months, but neither of the plaintiffs said anything to him concerning their expectation of receiving royalties or other compensation for the use of the seamless casket idea in the repatriation program. Mr. Cotnam understood from Mr. Turkle that he was associated with the Gala-not Company and was interested in obtaining a contract for the manufacture of the caskets. The plaintiffs on one occasion had a conference with General Feldman of the Quartermaster Corps, but they contacted no one in the Procurement Division other than General Feldman and Mr. Cotnam.

The procurement directive was prepared under the direction of Mr. Cotnam and forwarded to the Jeffersonville Quartermaster Depot. It stated the method of purchasing but contained no directive as to who should be awarded the contract.

The plaintiffs were never engaged in the business of manufacturing and selling caskets except as Mr. Nuss and Mr. Church had been employed by the Boyertown Casket Company and Mr. Turkle had purchased caskets for the use of his mortuary business. They had no manufacturing facilities, no engineering experience, and no financial resources with, which to undertake the manufacture of caskets. They never built a seamless casket. When the five caskets submitted by various manufacturers were sent to the Bureau of Standards for testing, Major Beyers informed plaintiffs of the fact and they were afforded an opportunity to submit and did furnish a sample casket. They provided some of the materials and had a full-size model of their proposed casket manufactured in the Galanot Products plant, but the body section of this sample casket was composed of several parts welded together in a seamed construction.

The plaintiffs at all times represented themselves as being able to produce and supply caskets. From the beginning of their contacts with the Memorial Division the plaintiffs contemplated that they would collaborate with the Galanot Products Company and Alliance-Ware, Inc., having the Alliance people make the deep drawings and the Galanot Products Company fabricate and assemble the caskets. They believed they had the only source for deep drawings of that size in the country and that no one else could or would attempt to make it, and that they could negotiate a contract with the Memorial Division of the Quartermaster Corps as prime contractor for the manufacture of all repatriation caskets.

The plaintiffs were unsuccessful in an endeavor to raise funds by the sale of stock for such a venture. During the latter part of 1945 they entered into a memorandum of agreement with the Galanot Products Company by which it was agreed that upon the formation of a new partnership between the plaintiffs the Galanot Products Company would then enter into a contract with the plaintiffs by the terms of which the plaintiffs would be the exclusive sales representatives in negotiations to secure a possible order for the manufacture and sale of caskets to the armed services, and that plaintiffs would receive a sales commission of five percent of the proceeds of any such contracts obtained by the Galanot Products Company.

The Jeffersonville Quartermaster Depot issued invitations for bids on the manufacture of a repatriation casket and shipping case. Approximately 40 companies submitted bids. Five of them, including the Galanot Products Company, were awarded contracts totaling approximately $6,000,000 each, the contracts calling for each of such companies to produce 50,000 units.

Although seamless tops for caskets have been manufactured in the industry since 1929, and the design and manufacture of a cradle or support for the body had long been within the existing knowledge and skill of the metal-fabricating industry, one-piece, deep-drawn body sections for caskets were not manufactured prior to the repatriation program. The type of steel necessary for such deep drawing was not available prior to April 1926, and the necessary dies, presses and techniques were not developed prior to 1927. Deep-drawn seamless steel bath tubs were first manufactured in 1927 by Alliance-Ware, Inc., after an expenditure of a million dollars on research and development.

The concept of a casket with a seamless body, a seamless top and a cradle or support for the body was known and in the public domain prior to the time plaintiff Nuss conceived the idea. Patents had been issued in 1906,1921,1899, 1914, and 1937 for seamless caskets. The references to these patents are set out in finding 32.

The plaintiffs never obtained a patent for any of their ideas, although they contemplated obtaining patent protection and for the purpose consulted a patent attorney who advised them that their ideas were not patentable.

The defendant raises the question of the jurisdiction of this court. There is no question that this court has jurisdiction to render a judgment for the breach of a contract implied in fact.

There are several hurdles, however, which the plaintiff must surmount in order to establish such a contract.

In the first place, plaintiffs in the main dealt with officers who had no authority to enter into a procurement contract.

In the case of Federal Crop Insurance Co. v. Merrill, 332 U. S. 380, 384, the Supreme Court used the following language:

* * * Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been' unaware of the limitations upon his authority. * * * * * * The oft-quoted observation in Rock Island, Arkansas & Louisiana Railroad Co. v. United States, 254 U. S. 141, 143, that “Men must turn square corners when they deal with the Government,” does not reflect a callous outlook. It merely expresses the duty of all courts to observe the conditions defined by Congress for charging the public treasury.

From the record in this case we do not see anything which would enable the plaintiffs to escape the conditions laid down in this quotation. While at first blush they may seem to be somewhat extreme, yet, if, as a matter of practical operation, any contractor were permitted to establish a contract implied in fact upon a mere oral discussion by any employee of the Government in any division, regardless of whether he had authority to make such a contract, it would be very difficult to conduct the operations of the Government. There is a reason, therefore, for the requirement that the dealings must be with someone who has authority to make a contract for the Government before a binding obligation can be entered into.

The defendant also raises a serious question in that there was a public disclosure of the idea. In fact, plaintiffs admit as much in their brief, although they say that the disclosure was restricted. As a matter of fact the idea was presented and disclosed at public meetings several times after 1939.

Since the plaintiffs did not build any of the caskets they must depend upon an implied contract connected with the presentation of the idea and the preparation of the specifications.

It has been held that a disclosure of an unpatented invention or secret process not made in secrecy is a public disclosure. Moore v. Ford Motor Co., 28 F. 2d 529; National Tube Co. v. Eastern Tube Co., 2 Ohio C. C. (N. S.) 469, 470-1; American Potato Dryers v. Peters, 184 F. 2d 165.

It is apparent from this record that in the early contacts the plaintiffs were presenting the suggestion to the Government believing as they did at that time that the Galanot Products Company and possibly Alliance-Ware, Inc., were the only people who were qualified to build a seamless casket and that these would be the only ones who would be interested in a contract with the Government. They evidently expected at the beginning to get their compensation from these companies. In fact, they had a contract with the Gala-not Products Company to receive a five-percent commission on contracts that were made.

They were apparently surprised when they found that other companies would attempt to make them. They then changed their approach and decided they would undertake to present a claim against the Government on the theory that they furnished the idea and helped furnish the specifications.

We think the plaintiffs’ claims, considered in the light of the entire record, fall far short of furnishing a basis for holding the Government liable for breach of a contract implied in fact.

We have every respect for a man who undertakes to rope and hog-tie an idea and harness it for practical operation. An idea is an inanimate thing and will die of inertia or malnutrition no matter how much merit it may have unless some energetic person breathes into it the breath of life.

The idea was not a new one since several patents had already been issued.

The plaintiffs in this instance were acting primarily in the capacity of salesmen and promoters. This is not a criticism but merely a comment.

Salesmanship and advertising are essentials of American business life. They are valuable services. The old saying, often quoted and misquoted, to the effect that if a man can write a better book, preach a better sermon or make a better mousetrap than his neighbor, though he build his house in the woods, the world will make a beaten path to his door, may have been true when first expressed, but in the light of modern business practices he would probably starve before the public learned that he was in the woods.

We think that in presenting this idea to representatives of the Government and pressing for favorable action the plaintiffs rendered a service. The Galanot Products Company, in evident recognition of the value of such work, had contracted to pay them a commission on any contracts that might be secured. After the services had been rendered the plaintiffs sued that company and a compromise settlement was reached, the terms of which are not disclosed. It is apparent from the entire record that the whole purpose of the entire presentation was to interest the Government in contracting for the manufacture of the seamless casket, with the expectation on the part of plaintiffs that the company which secured the contract would compensate them for their services. When the entire record is considered the plaintiffs have no basis for recovery against the defendant. The petition is dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.

FINDINGS OE EACT

The court, having considered the evidence, the report of Commissioner Roald A. Hogenson, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiffs, J. Ernest Nuss, Edgar H. Turkle, and Clyde C. Church, are citizens of the United States and residents of Ohio, associated in a partnership called the Alliance Seamless Casket Company.

They bring this action under the provisions of Title 28, U. S. C., section 1491 (4) for the claimed breach by the defendant of an alleged contract implied in fact.

2. In 1944, the Army Service Forces, Office of the Quartermaster General, in anticipation of the possible authorization by Congress of a program of return from overseas cemeteries of deceased military personnel of World War II, directed the Memorial Division, Office of the Quartermaster General, to make a study of the problems and requirements involved in such a reburial program. The Memorial Division then had the assigned duty of administering military cemeteries in the United States and the maintenance of grave registration records. It also had the war-time function of maintaining records of deceased soldiers, notifying next of kin, and coordinating the program of overseas burials and grave registrations administered by the Quartermasters attached to the field armies.

3. Early in October 1944 the Memorial Division, directed by Colonel B. P. Harbold, contacted the Casket Manufacturers Association of America to obtain assistance in the study and formulation of a program for the production of the so-called repatriation casket. On November 11, 1944, the Association notified its members of the request, and early in 1945 set up a technical committee, under the chairmanship of Lester M. Strunk, production manager of the Boyertown Casket Company, to prepare specifications for a suitable casket and assist generally in the development of a repatriation program.

Membership in the Casket Manufacturers Association was limited to companies and firms and was not extended to individuals. The plaintiffs and their partnership were never members of the Association.

4. The Association offered its services to the Memorial Division without any understanding or expectation that royalties or fees would be charged for the use in the production of a repatriation casket, of any plans, specifications, ideas, or services furnished or submitted by the organization itself or any of its members.

5. The plaintiff Nuss has been the Cleveland, Ohio, branch manager of the Boyertown Casket Company of Boyertown, Pennsylvania, since 1935. For five years prior thereto, he was employed as a designer of caskets at the Columbus, Ohio, branch of that company. In 1933, he learned of the efforts of a competitor of his employer to manufacture a seamless casket by the electrolytic deposit of copper on a plastic form. He nurtured and studied the idea of manufacturing a metal casket by pressing the main body from a single sheet of steel so as to eliminate the welded seams found in metal caskets manufactured in the industry. His concept involved three elements: (1) A top or cover stamped from a single sheet of steel, (2) a receptacle or container also deep drawn from a single sheet of steel, and (3) a support or cradle upon which the receptacle was mounted or supported.

6. From 1935 to 1944 the plaintiff Church was a fellow employee of Mr. Nuss, serving as the sales manager of the Cleveland branch of the Boyertown Casket Company. In 1944 Mr. Church left this position and purchased and thereafter operated a concrete-burial-vault manufacturing company. Mr. Nuss first discussed his seamless casket ideas with Mr. Church in 1935.

7. The first public disclosure of his ideas was made by Mr. Nuss in 1939 when he held a conference with representatives of the Republic Steel Company concerning the use of stainless steel in the manufacture of seamless caskets. In the same year he discussed his ideas with the plaintiff Turkle who operated a mortuary business at Alliance, Ohio.

In the spi'ing of 1944, the plaintiff Turkle was president of the National Selected Morticians Association, and he arranged for Mr. Nuss to present his ideas about a seamless steel casket at a meeting of the research committee of that organization at Pittsburgh, Pennsylvania. The Selected Morticians were investigating casket material and designs to be suggested for use in the repatriation program at the request of Colonel Harbold of the Memorial Division of the Quartermaster Corps.

The presentation, attended by seven or eight members of the committee and also by representatives of the United States Steel Corporation and Carnegie-Illinois Steel Company, was illustrated by drawings and a representation of a cross-section of a proposed casket.

At this meeting, the issue was raised by a representative of a steel company as to whether such deep-drawn seamless steel caskets could be made, and it was suggested that if anybody in the United States could do it, it would be C. J. Rodman of Alliance-Ware, Inc., Alliance, Ohio, whose company was engaged in the manufacture of deep-drawn bathtubs.

Conferences were thereafter held between the plaintiffs and Mr. Rodman. In October 1944 at Mr. Turkle’s invitation, Mr. Rodman addressed the fall meeting of the National Selected Morticians on the subject of porcelain enameling of a deep-drawn casket.

In the early spring of 1945, plaintiff Turkle retired as president of the National Selected Morticians. In such office, he had experienced contacts with the Memorial Division of the Quartermaster Corps and other agencies of the defendant. About April 1945, Mr. Turkle suggested to Mr. Nuss that the idea of the seamless steel casket be brought to the attention of the Quartermaster Corps. Thereafter the plaintiffs associated in a partnership.

8. About April 7, 1945, the plaintiff Turkle went to the office of Major Melvin A. Beyers in the Memorial Division, Quartermaster Corps, Washington, D. C., and in behalf of the Alliance Seamless Casket Company, presented a brochure, received in evidence as Plaintiffs’ Exhibit No. 6, containing drawings of a deep-drawn seamless steel casket proposed for use in the repatriation program. This brochure had been prepared by the plaintiff Nuss. It specified that the body and top sections were each to be deep-drawn from a single sheet of 16-gauge steel, and otherwise depicted the cradle, moldings, hinges, handles, rubber gasket and sealing bolts.

Major Beyers was then assigned as Technical Officer under the direction of Colonel Harbold who had detailed him to study and assemble data concerning a proposed repatriation program and to investigate the general problem of specifications and plans for caskets and shipping boxes, in order to have a design of casket which would meet with the approval of the Research and Development Branch of the Military Planning Division of the Quartermaster Corps.

Major Beyers took Mr. Turkle to Colonel Harbold who briefly surveyed the brochure. The Colonel had been acquainted with Mr. Turkle in connection with his presidency of the National Selected Morticians, and commented that he was not setting anybody up in the casket manufacturing business. Mr. Turkle replied that he was already in that business. The Colonel concluded the conference by stating in effect that the problem was assigned to Major Beyers, and he could go ahead and review the matter.

After leaving Colonel Harbold, Major Beyers conferred further with Mr. Turkle and requested submission of more specific details.

9. On July 13, 1945, a conference, called by Colonel Har-bold, was held at Washington, D. C., between the technical committee of the Casket Manufacturers Association and the Memorial Division of the Quartermaster Corps, for the announced purpose of inspecting five full-size sample caskets submitted by various manufacturers for consideration in the proposed repatriation program.

Colonel M. H. Zwicker, Executive Officer, Memorial Division, presided, with both Colonel Harbold and Major Beyers in attendance.

At the invitation of Colonel Harbold, 1st Lt. F. S. Paden and two other representatives of the Kesearch and Development Branch, Military Planning Division, were in attendance.

Besides the technical committee, there were present other representatives of casket manufacturers, the plaintiffs Turkle and Church, and Mr. C. J. Hodman of Alliance-Ware, Inc.

Major Beyers had invited the plaintiffs to attend, and Mr. Rodman, an expert in the deep-drawing of metals, was present at the suggestion of Mr. Turkle.

10. There were on display at the meeting five full-size models of seamed metal caskets which had been submitted by various casket manufacturers in conformity with tentative specifications previously drawn up by the Memorial Division.

The plaintiffs submitted a brochure, received in evidence as Plaintiffs’ Exhibit No. 7, which had been prepared by the plaintiff Nuss after the April meeting between Major Beyers and Mr. Turkle. The document contained various drawings of a proposed 16-gauge seamless-steel hermetically sealed casket, and specified use of two seamless-steel deep-drawn sections for the top and body for the stated purpose of complete elimination of seams and soldered joints. The gradually rounded sides and bottom of the body section and the base molding were designed to afford urn-shaped casket lines. The plaintiffs proposed in this brochure that with the planned strength of the edges or flanges of the top and body sections, the sealing surface could be drawn up tight, and there would be no danger of the opening of seams. The sealing qualities specified were a sponge rubber gasket fitted between the turned edges of the top and bottom sections, and the use of twelve one-half inch machine bolts to draw the top to the body section. An “expandable” hinge, welding of the molding, inside and over-all dimensions, side bars and end handles, exterior lacquer finish, and interior fittings and finish were detailed in the brochure.

The plaintiffs also had on display a band simulating an end-section piece of their proposed seamless casket.

As a part of the proceedings, the plaintiff Church addressed the conferees with respect to the proposals of the Seamless Casket Company. The question was raised by a casket manufacturer as to whether the seamless casket could be made. Mr. Church remarked that the plaintiffs had never made one, but introduced Mr. Rodman as an expert with the know-how to do it. Mr. Rodman then explained in detail his plant and equipment and expressed the conviction that such a deep-drawn casket could be manufactured.

The conference considered the various full-size caskets, and discussions were led by the technicians of the manufacturers presenting the models. The general understanding was reached that the technical committee of the Casket Manufacturers Association would thereafter proceed to prepare its recommendations to the Memorial Division as to the elimination of types and features of caskets and as to what tests should be made by the Research and Development Branch, Military Planning Division, for final recommendation to the Quartermaster General.

11. The Research and Development Branch was charged with the duty of developing, designing, and specifying items of military supplies coming within the jurisdiction of the Quartermaster General, and having been advised of the possibility of development and procurement of a repatriation casket, delegated 1st Lt. F. T. Paden to represent the branch at the July meeting. Soon thereafter, and on August 14, 1945, a project order was issued to the Research and Development Branch to undertake the development of a suitable military casket for the repatriation program. Lt. Paden, Hugh B. Johnson, and Donald Wallance were assigned to the project.

12. In the last week in September 1945 the plaintiffs submitted to Major Beyers an additional brochure, received in evidence as Plaintiffs’ Exhibit No. 8, containing detailed drawings and specifications for a seamless steel casket to be used in the repatriation program. In considering the plaintiffs’ proposals made at the July conference, Lt. Paden had observed that while the flange on the rim of the top section projected outwardly, the flange on the body section of the casket was turned inwardly, and that the sealing bolts would project through the flanges and slightly into the body section, thereby affording points of leakage around the threads of the bolts. He conceived the idea of correcting this defect by simply turning the body-section flange outwardly. Major Beyers informed the plaintiffs of these objections to their proposed sealing mechanism and also suggested that a casket with conventional lines would be preferred over the urn-shaped design previously proposed by the plaintiffs.

The plaintiffs’ September brochure provided that the body-section flange be turned outwardly, and, in addition, modified their design from an urn-shaped casket to the conventional-appearing type, by specifying the deep-drawn body section to have vertical sides rounded at the corners and to a flat bottom. The September brochure was prepared by the plaintiff Nuss after the July conference.

13. On October 3 and 4, 1945, a conference was held at Washington, D. C., between the technical committee of the Casket Manufacturers Association and representatives of the Memorial Division and the Research and Development Branch. The technical committee made its recommendation with respect to the conventional seamed casket best suited for the repatriation program. The plaintiff Turkle was present and discussed and promoted the idea of the use of the seamless casket.

Until that time, the plaintiffs had had no personal contacts with any agent of the defendant outside of the Memorial Division. Major Beyers at that time advised Mr. Turkle that the Research and Development Branch was in charge of investigating the casket project and would prepare the specifications subject to his approval.

14. The Research and Development Branch, Military Planning Division, pursuant to the August project order, undertook the study and development of a repatriation casket, and on October 23, 1945, submitted a report of their findings and recommendations to the Memorial Division, addressed to the attention of Major Beyers. The report, prepared by Hugh B. Johnson and signed by General Doriot, head of the Military Planning Division, recommended the rejection of the conventional casket proposed by the technical committee of the Casket Manufacturers Association at conferences held October 3 and 4. The reasons stated were that the body of the casket consisted of five pieces with a considerable length of welded and soldered joints, that large scale production would make it extremely difficult to produce airtight caskets of that type, and that adoption of such a casket would confine production to existing casket manufacturing facilities which could not produce the quantities per month required in the repatriation program.

The report recommended the adoption of either (a) a seamless liner, drawn from 18-gauge steel, to be inserted in a conventional casket, the liner to consist of two halves fitted together with a gasketed joint, or (b) a seamless casket, drawn from 16-gauge steel, with base, trim, and handles applied by spot welding. It was reported that the latter casket had been discussed with two manufacturers outside the casket industry, who were willing to set up tools and draw the required parts. It was suggested that completion of fabrication and finishing be accomplished by members of the casket industry or any steel fabricators willing to bid.

The first type had been suggested by the Modern Casket Company of Chicago, with the proposal that deceased military personnel would be transported to the United States in the seamless liners which would thereafter be inserted into finished caskets. It was similar in design to the casket depicted in the United States patent No. 1,375,758, hereinafter referred to in Finding No. 32.

The second type was ultimately used in the repatriation program.

15. On October 2B, 1945, or shortly thereafter, the Research and Development Branch held a meeting with the technical committee of the Casket Manufacturers Association at Washington, D. C. Lt. Paden and Mr. Wallance represented Kesearch and Development, and Major Beyers and the plaintiff Turkle were present. Major Beyers announced the findings and recommendations contained in the Kesearch and Development report. The casket manufacturers opposed the adoption of the seamless casket and expressed doubts as to whether it could be made. After considerable discussion, Mr. Wallance announced that Kesearch and Development representatives would go to the plant of Alliance-Ware, Inc. at Alliance, Ohio, to watch the operation of the Bliss press, used in the deep-drawing of steel bath tubs, and inspect the plant in an effort to reach a conclusion as to the feasibility of manufacturing a seamless casket. An Alliance-Ware representative was in attendance, and he and the plaintiff Turkle initiated a telephone call to the officials of that company, and Mr. Turkle then made arrangements for the plant inspection by Research and Development.

16. On November 8, 1945, Mr. Wallance and Lt. Paden visited the Alliance-Ware plant and observed the stamping of deep-drawn seamless steel bath tubs, one every thirty seconds for about an hour, and also welding operations such as would be required in placing moldings on a seamless casket. Technical problems and assembly methods were discussed with Mr. Walter Price, chief engineer of the Galanot Products Company of Alliance, Ohio; Messrs. Brett and Bowden, vice presidents of Alliance-Ware, Inc.; Mr. Eisen-bach, engineer of the Bliss Company, the manufacturer of the press, and Mr. William Baker, metallurgist of Republic Steel Corporation. Other persons present were various representatives of casket-manufacturing companies, Major Beyers, and the plaintiff Turkle.

Following a luncheon arranged by Mr. Turkle, a meeting was held over which Mr. Wallance presided. Considerable discussion was had concerning the feasibility of manufacture of a seamless steel casket and the matter of the participation of casket manufacturers in production of them.

In tbeir Report of Official Travel to The Quartermaster General, Mr. Yfallance and Lt. Paden stated in part as follows:

The fabrication of a seamless casket is both feasible and practical. The Alliance Ware Company is equipped and m a position to fabricate the deep drawn shells for the body of such a casket. The casket manufacturing industry, as represented by those present at the above described meeting, will cooperate m development and production of the seamless casket.

17. Lt. Paden was the individual assigned by Research and Development to the responsibility of preparing the specifications for the repatriation casket. He was experienced as a furniture designer, but was not an engineer and was not versed in metallurgy or in the design or manufacture of caskets. While he attended several meetings at which he came into contact with one or more of the plaintiffs, he had no recollection of having any direct dealings or conferences with them except that on one occasion he called on Mr. Nuss in his Cleveland office and discussed some of the work that had been done. He knew as early as July 1945 that the plaintiffs had submitted the seamless casket idea to the Quartermaster Corps. He resorted to the Casket Manufacturers Association and individual casket manufacturers for information and help, but his main contacts were with the Galanot Products Company, Alliance, Ohio, which made available its plant and the technical knowledge and services of its engineers on the problems of design and fabrication of a seamless casket. He made various trips to the Galanot plant and also to the factory of Alliance-Ware, Inc. The Galanot Products Company expressly disclaimed to Lt. Paden any interest in entering into a research and development contract with the defendant, but indicated that it would rather develop the casket and pay its own costs of development.

The written specifications and drawings, dated January 7, 1946, upon which bids were ultimately issued by the defendant for the manufacture of the repatriation casket, were prepared under the supervision and direction of Lt. Paden, and are in evidence as Plaintiffs’ Exhibit No. 12.

Minor modifications in the cradle of the specified casket were suggested by the various manufacturers of the repatriation casket during the later contract operations and approved by the Quartermaster Corps, but the casket produced was essentially that described in the said specifications and drawings.

The drawings were prepared from the casket model which had been made by the Galanot Products Company and submitted by the plaintiffs for the tests by the Bureau of Standards.

18. While the defendant’s specifications were somewhat more detailed than the brochures submitted by the plaintiffs, the ultimate casket produced for the defendant in the repatriation program was substantially the same as the seamless casket proposed by the plaintiffs in their brochures previously mentioned in Findings Nos. 8,10, and 12.

The repatriation casket comprised a one-piece top or lid, which had been an article of commerce since 1929, a one-piece body section, which had the change in design of the sealing mechanism as described in Finding No. 12, and a cradle or support, the design of which varied somewhat with each contractor and conformed to drawings submitted by the individual contractors and approved by the Quartermaster Corps. It was suitably ornamented with moldings, the design and fabrication of which were within the skill of the ordinary metal craftsman, and had characteristic finishing and fittings usual to the casket industry. The only difficult problem in the design and production of the repatriation casket was the deep-drawing of the body section.

19. About November 19, 1945, the plaintiff Turkle, Mr. Bowden of Alliance-Ware, Inc., and Mr. Bacon of Galanot Products Company called on Lt. Paden at his office in Washington, D. C., to offer assistance in the writing of specifications for the repatriation casket, and endeavored to explain how the deep drawing should be specified so that it could be made efficiently. The plaintiff Turkle had other contacts with Lt. Paden, who advised him sometime in December 1945 that Mr. Thomas T. Cotnam of the Quartermaster Procurement Division was involved in the matter of the purchase of the caskets. This was the first time that the plaintiffs realized that someone outside of the Memorial Division might award the contract.

Mr. Cotnam was a section or subsection chief in the Procurement Division, Office of the Quartermaster General. His duties were to determine sources of supply, prepare procurement directives, and forward all necessary information to a procurement agency of the Quartermaster Corps. He was a liaison officer between the Office of the Quartermaster General and contracting officers. He had no authority to make contracts for the defendant at any time, and particularly no authority to enter into a contrat in behalf of the defendant for the use of any of the plaintiffs’ inventions, specifications, designs, or procedure for the manufacture of caskets, or to pay compensation for such use.

The plaintiff Turkle called on Mr. Cotnam several times during the period commencing in December 1945 and before the repatriation casket contracts were awarded on August 2, 1946. The plaintiff Nuss met Mr. Cotnam once in Cleveland, Ohio. Nothing was ever said to him by either of the said plaintiffs concerning expectation of receiving royalties or other compensation for use of the seamless casket idea in the repatriation program.

20. Mr. Cotnam conferred with officers of the Memorial Division who gave him the impression that they thought they had the authority to purchase the repatriation caskets and that they were planning to purchase the casket being proposed by the plaintiff Turkle and the Galanot Products Company. Mr. Cotnam understood from Mr. Turkle that he was associated with the Galanot company and was interested in obtaining a contract for the manufacture of the caskets.

The plaintiff Turkle on one occasion had a conference with General Herman Feldman of the Quartermaster Corps, but the record does not disclose their conversation. The plaintiffs contacted no one in the Procurement Division other than General Feldman and Mr. Cotnam.

The procurement directive for the repatriation caskets was actually prepared by and under the direction of Mr. Cotnam, and forwarded by him to the Jeffersonville Quartermaster Depot. It indicated the quantity of caskets to be purchased, the delivery schedule required by the Army, the description and specifications of the casket, and a statement of all known sources of supply. It stated the method of purchasing but contained no directive about who should be awarded a contract. He obtained the specifications from the Military Planning Division and the other information concerning sources of supply from the casket manufacturing industry.

21. The plaintiffs were never actually engaged in the business of manufacturing and selling caskets, except as Mr. Nuss and Mr. Church had been employed by the Boyertown Casket Company, and as Mr. Turkle had purchased caskets in the operation of his mortuary business. They had neither manufacturing facilities, nor engineering experience, nor financial resources to undertake the manufacture of caskets. They never built a seamless casket. In October 1945, when the Quartermaster Corps was arranging to have the five caskets previously submitted by various manufacturers forwarded to the Bureau of Standards for testing, Major Beyers informed the plaintiffs of that fact, and they were afforded an opportunity to submit and did furnish a sample casket. They provided some of the materials and had a full-size model of their proposed casket manufactured at the Galanot Products Company plant, but the body section of this sample casket was composed of several parts welded together in a seamed construction. It was one of the two sample caskets which held compressed air in the tests conducted by the Bureau of Standards in October 1945.

The plaintiffs consulted with Mr. Hodman of Alliance-Ware, Inc. on various occasions from about August 1944 until January 1946 concerning the art of deep-drawing of metals. Mr. Eodman wrote articles published in certain trade magazines, “The Enamelist” and “Finish,” in September and October 1944, in which he expressed the conviction that one-piece deep-drawn steel casket bodies could be made. A specific design of a seamless casket was illustrated in the “Finish” article, and was credited to the plaintiff Nuss. The latter article also contained a photograph of the Bliss press used in the deep-drawing of bathtubs, and it was stated that with such equipment, the deep-drawn casket could be fabricated.

22. The plaintiffs at all times represented themselves as being able to produce and supply caskets. From the beginning of their contacts with the Memorial Division, the plaintiffs contemplated that they would collaborate with Galanot Products Company and Alliance-Ware, Inc., having the latter company make the deep drawings and the former fabricate and assemble the caskets. They believed they had the only source for a deep drawing of that size in the country, that no one else could or would attempt to make it, and that they could negotiate a contract with the Memorial Division of the Quartermaster Corps as prime contractor for manufacture of all of the repatriation caskets.

The plaintiffs unsuccessfully endeavored to raise funds by sale of stock for such a venture. During the latter part of 1945, they entered into a memorandum of agreement with John W. Merriam, then President of the Galanot Products Company, by which it was agreed that upon the formation of a new partnership between the plaintiffs, the Galanot Products Company would enter into a contract with the plaintiffs, by the terms of which the plaintiffs would be the exclusive sales representatives in negotiations to secure a possible order for the manufacture and sale of caskets to the armed services or other departments of the United States Government, and that plaintiffs would receive a sales commission of 5% of the proceeds of any such contract obtained by the Galanot Products Company.

The Galanot company bid and was awarded a contract for the manufacture of repatriation caskets. The plaintiffs themselves did not submit a bid, but aided the Galanot company in its contract performance by arranging for that company to hire the services of a consulting engineer who advised on organization and layout of the Galanot plant and suggested modifications in the cradle design of the repatriation casket which were submitted to and approved by the Quartermaster Corps.

The plaintiffs received an undisclosed sum of money from the Galanot Products Company, or its president, John W. Merriam, in settlement of a law suit brought by them in Court of Common Pleas, Stark County, Ohio, to enforce the terms of the above-mentioned memorandum of agreement.

23. Until late December 1945 or early January 1946, when a directive from the Quartermaster General assigned the responsibility of purchasing repatriation caskets to the Procurement Division, Major Beyers believed that the Memorial Division would negotiate a contract for the purchase of the caskets, and had so advised the plaintiffs. About October 17, 1945, at a conference held with Colonel Harbold, Colonel McConville, Colonel Zwicker and Major Beyers of the Memorial Division, the plaintiffs represented that they could furnish their proposed casket at approximately $85 per unit, without shipping case. There is no showing that the basis of computation of this price was revealed.

The plaintiff Nuss had contacted Alliance-Ware, Inc. about the deep-drawn body section and various other fabricators and suppliers concerning other parts and materials and obtained quotations of prices. Based upon production of 250,000 units, he then allowed $10.70 for each of the deep-drawn body sections and $2 per unit in the way of amortization of an estimated $500,000 equipment investment. He estimated direct labor at $1.80 per hour, increased by 110% as an overhead charge for rental of plant, administrative costs, maintenance expenses and other costs incident to factory operation, or a total of $3.78 per hour. He then estimated that 5% hours per unit would be required to produce the caskets, and multiplied that estimate by the $3.78 per hour figure, to arrive at a unit labor and overhead cost of $20.16. He estimated that the deep-drawn section and all other materials would cost $50.42 per unit, and added thereto 10% as a safety factor, or a total of $55.46. His total estimated cost per unit was $77.62, comprised of $55.46 for materials, $20.16 for labor and overhead costs, and $2 for amortization of equipment, to which total he added 10% for profit, with a resulting estimate of $85.38.

The plaintiff Nuss testified that labor and overhead costs increased during the 18- to 20-month period after August 2, 1946. He allowed an increase of $4 per unit on his $20.16 item of labor and overhead costs, and accoi’dingly increased bis original unit-price estimate. He stated that the plaintiffs could have manufactured and delivered 250,000 units of their proposed casket, without shipping cases, at a unit price of $89 or $90.

Mr. Nuss further estimated that the adoption by the defendant of certain minor modifications to the unit proposed by the plaintiffs, particularly a change in the sealing mechanism, would have further increased the unit price at which plaintiffs could have produced all of the repatriation caskets by the sum of $12, or to the approximate sum of $101 or $102, leaving the original profit estimate of $7.76 per unit undisturbed.

On the basis of the profits which the plaintiffs estimate would have accrued to them through their supplying 250,000 repatriation caskets to the defendant at a unit profit figure of $7.76, the plaintiffs seek in this action to recover the sum of $1,940,000 as damages for breach of the alleged implied in fact contract and as reasonable and just compensation for the adoption and use by the defendant of the ideas, plans, specifications, and information submitted by them.

24. The Jeffersonville Quartermaster Depot, Jefferson-ville, Indiana, issued invitations for bids on the manufacture of the repatriation casket and shipping case. Approximately 40 companies submitted bids, and on August 2,1946, the following companies were awarded contracts for a total of 250,000 caskets and shipping cases, each contract being for 50,000 units.

The average contract unit price for a casket and shipping case was $123.86. Deliveries under all contracts were prorated on a monthly basis and scheduled for the period from December 1946 through February 1948.

Alliance-Ware, Inc., received orders from and provided deep-drawn body sections to several of the prime contractors, at a unit price which varied from around $10.40 to $15, depending on the amount of the run and other conditions.

In accordance with the price-revision articles, the unit prices on all contracts were later increased to a range from $177.96 to $183.30 for the combination unit of a casket and a shipping case. These revised prices included unit price increases ranging from $13.56 to $17.95, allowed for changes in the specifications during the contract operations.

The Cincinnati Coffin Company contract is the only one concerning which there is, any evidence of a breakdown of the combination unit price to indicate the price paid for a repatriation casket without a shipping case. The contract documents show that 2,000 caskets without shipping cases were purchased from that company at the ultimately revised unit price of $125.48, whereas 50,990 combination units of caskets and shipping cases were purchased at a unit price of $177.96.

The plaintiffs contend that this unit price of $125.48 for the casket without case is indicative of the cost of the casket alone under all of the five contracts, contrasts that price with their estimated price of $101 or $102, and assert that they could have manufactured 250,000 of their caskets for the defendant at a saving of upwards of $5,750,000.

25. On the basis of figures submitted by the Casket Manufacturers Association late in 1945, Colonel Harbold estimated that a conventional seamed metal casket would have cost the defendant $151 per unit, and he used that figure in his estimates as to the total cost of the repatriation program. It is not clear from the evidence whether or not such price included the shipping case.

26. On April 8, 1946, the Cincinnati Coffin Company entered into a contract with the defendant, through its Quartermaster Corps, by the terms of which the contractor agreed to supply 9,500 units of a conventional seamed metal casket, with innerseal, and shipping case, at a unit price of $127.69. These caskets were not purchased for the repatriation program, but in part for current burials of deceased military personnel in the United States, and otherwise for permanent interments overseas. This unit price was increased pursuant to the price-revision article by supplemental agreement dated December 9,1947, to $153.03 for the combination unit of seamed metal casket and shipping case.

27. In its contract for manufacture of the repatriation casket, the Cincinnati Coffin Company at the outset had a unit price of $122.45 for 50,000 combination units of a casket and shipping case. The number of units was increased to 52,990 by supplemental agreement dated June 27, 1947, and the unit price was increased to $134,534 on August 5, 1947, on account of changes in the specifications on the shipping case, and reduced to $130,534 on October 23, 1947, to compensate the defendant for furnishing mattress and pillow units, and again increased to $138.94 on October 24,1947, on 50,753 units because of specification changes.

On December 23, 1947, by supplemental agreement, 2,000 shipping cases were eliminated from the contract, and the status of the contract was summarized as follows:

Pursuant to the price-revision article, the above-stated prices were increased by supplemental agreement dated March 9, 1948, as follows:

28. The history of the four other contracts for the manufacture of the seamless caskets and shipping cases was similar to that of the Cincinnati Coffin Company contract.

With respect to Continental Industries, Inc., the original unit price of $120 was increased to $130.68, June 26, 1947, and to $137.95, October 23, 1947, on account of changes in specifications, and finally increased by contract price-revision procedure on April 26, 1948, to $181.31, for a total contract price of 50,000 units of $9,065,500.

On the National Manufacturing Corporation contract, the original unit price of $121.60 was increased on June 6,1947, to $129.04 on all 50,000 units, and again increased on August 1,1947, to $135.16 on 48,944 units, on account of specification changes, and finally increased by contract price-revision procedure on December 3, 1947, to $182.80, for a total contract price on 50,000 units of $9,140,000.

On the Galanot Products Company contract, the original unit price of $125.69 was increased on all 50,000 units to $133.50 on June 6, 1947, and to $139.48 on 48,680 units on August 7, 1947, on account of specification changes, and finally increased by contract price-revision procedure on December 4,1947, to $179.25, for a total contract price on 50,000 units of $8,962,106.40.

On the Goodyear Aircraft Corporation contract, the original unit price of $129.56 was increased to $133.59 on November 19, 1946, and the quantity was increased from 50,000 to 55,000 units on June 26, 1947, and the unit price on 47,967 increased to $145.68 and on 7,033 to $138.56 on October 27, 1947, all increases in the unit price to that time being on account of specification changes. The unit price was ultimately increased on December 4, 1947, to $183.30 on 55,000 units, for a total contract price of $10,081,500.

29. In 1945 and 1946 the prevailing wholesale price of a conventional type, 16-gauge steel, sealed round-end casket, the seamed metal casket comparable to the seamless casket proposed by the plaintiffs, ranged from $220 to $265. There is no evidence from which it can be determined what the price would have been on mass purchases of such a casket by the defendant.

30. There is no satisfactory evidence that the use of the seamless casket idea resulted in savings to the defendant on the procurement of a repatriation casket, although it is reasonable to conclude that a better casket for the repatriation program was obtained.

31. Although seamless tops for caskets had been manufactured in the industry since 1929, and the design and manufacture of a cradle or support for the body had long been within the existing knowledge and skill of the metal-fabricating industry, one-piece deep-drawn body sections for caskets were not manufactured prior to the repatriation program. The type of steel necessary for such a deep drawing was not available prior to April 1926, and the necessary dies, presses, and techniques were not developed prior to 1927. Deep-drawn seamless-steel bathtubs were first manufactured in 1927 by Alliance-Ware, Inc., after an expenditure by that company of a million dollars on research and development. That year was the earliest time at which the deep-drawn body section of the repatriation casket could have been made.

32. The concept of a casket with a seamless top, seamless body, and a cradle or support for the body, was known and in the public domain prior to the time when the plaintiff Nuss conceived of the idea.

United States Patent 837,849, granted December 4, 1906, to Ephraim A. Knodle, a copy of which is in evidence as Defendant’s Exhibit No. 34, discloses a metal casket, the top and bottom sections of which are each stamped from a single sheet of metal to render the body section, as well as the top, completely seamless. A base or cradle supports the body and is attached thereto. Sealing is prescribed by interposing of cement or a like material between the outwardly extending flanges on the top and body sections.

United States Patent 1,375,758, granted April 26, 1921, to George Colvin Kennedy, a copy of which is in evidence as Defendant’s Exhibit No. 35, relates to a metal casket, the top and body sections of which are of seamless construction, each pressed from a single plate of steel. A seal is provided between the top and the receptacle.

United States Patent No. 636,766, granted November 14, 1899, to Robert C. Davis, a copy of which is in evidence as Defendant’s Exhibit No. 36, discloses a metal casket having seamless upper and lower sections, each being a duplicate of the other and having outwardly turned flanges, with a hermetically sealed joint.

United States Patent No. 1,090,270, granted March 17, 1914, to Louis 0. Brown, a copy of which is in evidence as Defendant’s Exhibit No. 37, discloses ornamental casket moldings made from sheet metal. These moldings are equivalent to the ones attached to the repatriation casket.

United States Patent No. 1,762,578, granted June 10,1930, to Charles H. Hiser, a copy of which is in evidence as Defendant’s Exhibit No. 38, relates to a clamping device adopted for use in metallic caskets and shows specifically the use of cap-screws to draw the flanges of the top and body sections, as well as a certain metallic clamp, against an interposed gasket and felt packing material.

United States patent No. 2,096,290, granted October 19, 1937, to Edward M. Strom, a copy of which is in evidence as Defendant’s Exhibit No. 39, discloses details of a sealing means for metal caskets including bar reinforcing for the top and body adjacent to the sealing mechanism. This patent also discloses a combination cradle and molding member for supporting the main body of the casket to protect the bottom from contact with the floor. This cradle is similar in design and function to the cradle shown in Defendant’s Exhibit No. 6, a photograph of the cross-section used by plaintiff Nuss in his public disclosure before members of the National Selected Morticians Association, and representatives of the steel industry at Pittsburgh, Pennsylvania, in April 1944.

33. The plaintiffs never obtained a patent for any of their ideas although they contemplated obtaining patent protection and to that end consulted a patent attorney who advised them that their ideas were not patentable.

34. There is no satisfactory evidence that the plaintiffs ever made any statement to, or caused any officer or employee of the defendant to understand, that they were submitting inventions, specifications, designs or procedures for the manufacture of caskets, for the purpose of a sale thereof to the defendant, or that they expected to receive compensation for such specifications, designs, inventions or procedures in the event they were adopted by the defendant.

The plaintiffs at no time disclosed their inventions, specifications, designs, or procedures for the manufacture of caskets to any officer or employee of the defendant in confidence with any understanding either express or implied that such disclosure was to be kept in confidence and secrecy.

35. There is no satisfactory evidence that any officer or employee of the defendant ever stated to the plaintiffs, or any of them, or intended that the plaintiffs would receive compensation in the event that the defendant adopted and used any inventions, specifications, designs or procedures for the manufacture of caskets, submitted by the plaintiffs.

36. There was no implied offer by the plaintiffs and no implied acceptance by any officer or employee of the defendant, nor any meeting of the minds between the plaintiffs and the defendant, that the plaintiffs would receive compensation for use by the defendant of any invention, specifications, design or procedure for the manufacture of caskets.

37. The plaintiffs never intended to obtain compensation from the defendant for their presentation of ideas, specifications, and designs, and for their other activities in the formulation of the repatriation casket program. They intended only to profit in a contract which they might negotiate with the Quartermaster Corps for the manufacture of deep-drawn seamless-steel caskets.

38. Neither the Memorial Division of the Office of the Quartermaster General, nor any of its officers or employees, had any authority to enter into a contract for or on behalf of the defendant to use privately owned inventions, specifications, designs or procedures for the manufacture of caskets, and to pay compensation therefor, or to purchase caskets, or to make contracts of any kind except for the purchase of headstones and grave sites and for the maintenance and repair of military cemeteries in the United States.

39. None of the officers or employees of the Research and Development Branch, Military Planning Division, with whom the plaintiffs had conversations or conferences or held negotiations, had any authority to enter into a contract for or on behalf of the defendant to use privately owned inventions, specifications, designs or procedures for the manufacture of caskets, or to pay compensation therefor, or to purchase caskets, or to make any contracts of any character.

40. The plaintiffs presented some testimony bearing on the time spent and expenses incurred by them in the development of the seamless casket idea and its presentation to the Quartermaster Corps. No records or vouchers with respect thereto were offered in evidence, and no itemization of expenses was presented.

The plaintiff Nuss testified that from 1933 to 1946 he devoted from 3,000 to 3,500 hours to the development of the seamless casket idea, and that during the latter part of that period, from 1944 into 1946, he averaged from 15 to 25 hours per week. He further estimated that his expenditures aggregated between $10,000 and $12,000.

The plaintiff Turkle estimated that from April 1945 to August 1946 he devoted about half of his time to the seamless casket project, and that his expenditures aggregated between $5,000 and $6,000.

The plaintiff Church estimated that he devoted about 90 days to the seamless casket project, and expended from $1,000 to $1,100.

No opinion evidence was offered as to the reasonable value of the ideas and services furnished to the defendant by the plaintiffs in the repatriation casket program.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiffs are not entitled to recover, and the petition is therefore dismissed.  