
    THE CONSOLIDATION COAL CO. v. THE UNITED STATES
    
    [No. A-262.
    Decided April 20, 1925]
    
      On the Proofs
    
    
      Purchase order; agreement; requisition. — Where an order is placed by the Secretary of the Navy with a coal-mining company to furnish and deliver to the Navy during a designated period a specified quantity of coal, stating therein that such order is obligatory and shall take precedence over all commercial orders or contracts placed with said company, and the said company accepts all of the terms of such order, except the price named, and delivers the coal to the Navy at the time agreed upon, it is an agreement to purchase coal and not a taking under eminent domain, and the company is entitled to recover the market value of the coal at the time of its delivery.
    
      
      The Reporter's statement of the case:
    
      Messrs. J. Harry Oovington and Oscar W. TJnderwood, jr., for the plaintiff. Mr. Ralph Orews and Oovington, BwrUng <& Rublee were on the briefs.
    
      Mr. Howard J. Bloomer, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The opinion delivered in this case is upon findings of fact •made January 26, 1925, on the original trial, but which are not necessary to set forth except, as amended by the court April 20, 1925, and found as follows:
    I. The plaintiff, the Consolidation Coal Company, is a ■corporation organized and existing under the laws of the State of Maryland, and is, and has been since long prior to June 14,1917, engaged in the business of mining, producing, .and selling coal.
    II. On June 14, 1917, the Secretary of the Navy, acting under the direction of the President of the United States, gave notice to the plaintiff to be prepared to furnish its proportion of the total quantity of coal required by the Navy for the period ending September 30,1917, the tonnage which would be taken from the plaintiff during that period then being estimated by the Secretary at about 92,400 gross tons. Said notice stated that the price to be paid the plaintiff for •such tonnage as it should be required to deliver would be ■determined later, but as an advance payment the Navy Department would allow the unit of $2.33% per gross ton f. o. b. mines, any payments made at this rate to be subject ■to such increases or decreases as might later be decided upon.
    III. On August 10, 1917, the Secretary of the Navy forwarded a formal order designated as Navy Order N-69 to the plaintiff. Said order covered deliveries required to be made during the period from June 14, 1917, to September 30, 1917, recited that it was confirmatory of and supplementary to the letter from the Secretary of the Navy dated June 14, 1917, which in full was stated to be a part of this order, and stated that the plaintiff would be called upon to furnish during said period approximately 92,400 gross tons of coal, conforming to the Navy’s specifications. Said order N-69 reiterated the statement .of the Secretary’s letter of Juné 14, 1917, namely, that the fixing of a price for the coal would be subject to later determination, but that the plaintiff would, as an advance payment, be paid the unit price of’ $2.38% per gross ton f. o. b. mines, with the understanding-that such advance payment wpuld not be considered as having any bearing upon the price to be subsequently fixed, and that any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable would be paid to the plaintiff or refunded by the plaintiff, as the case might be,, .and .furthermore stated that the unit price stated in said. .'Order: N-69 would not prejudice any future price determination or be considered as a precedent in determining, quell increases or decreases as might be later decided upon ás proper..
    IY. The plaintiff accepted said Order. N-69 upon these terms, and in signing its acceptance" of the order indicated that the price stated and fixed in said Order N-69, namely, $2.3314 pm' gross ton f. o. b. mines, wa:s unsatisfactory. "A copy of said order and of the plaintiff’s acceptance thereof is annexed to the plaintiff’s petition as Exhibit B, and is by reference made a part of this finding.
    Y. On August 15, 1917, the Secretary of the Navy sent a telegram informing the plaintiff that regardless of estimated quantities in the allotments for coal placed with the plaintiff, the latter would be expected promptly to -supply the Navy’s needs, and stating that the alternative to noncompliance would be the enforcement of -the provisions of the acts of March 4 and June 15, 1917, under which the plaintiff’s plants or mines could be taken possession of and used' by the Government.
    YI. Pursuant to the aforementioned notice of June 14, 1917, and Order N-69, and further demands by the .Navy Department issued under the authority of the aforementioned acts the plaintiff furnished and- delivered to the United States from time to time during said period from June 14, 1917, to Septemmber 30, 1917, 108,520.78 net tons of coal, the first delivery during said period having been made on June 27, 1917, and the last on September 30,. 19.17.. Said coal was delivered by the plaintiff and' shipped to the-United States at New York, Philadelphia, Baltimore, and Washington.
    VII. Plaintiff billed the Navy Department at the advance unit price of $2.33% per gross ton for all deliveries made during August, as well as prior months, and many of those during September. 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 prices for the sale of bituminous coal. This scale of prices was provisional only, subject to reconsideration and revision when the whole method of administering the fuel supply of the country should have been satisfactorily organized and put into operation. The price thus prescribed for run-of-mine Maryland coal, which covered the plaintiff’s Georges Creek coal, was $2 per ton f. o. b. mines, which was equivalent to $2.24 per gross ton.
    VIII. After the President’s said proclamation the Navy Department instructed the plaintiff to adjust its billing to the President’s provisional price; that is, about September 1, 1917, the Navy Department advised the plaintiff to adjust its billing from $2.33% per gross ton to $2.24 per gross ton, the equivalent of $2 per net ton, ivhich was the President’s provisional price, but about September 4, 1917, the Navy Department instructed the plaintiff to continue billing at $2.33% per gross ton, and the plaintiff corrected to $2.33% per gross ton such bills as had been sent out at the $2.24 gross-ton price. On September 15, 1917, Admiral S. McGowan, Paymaster General of the Navy, under the approval of the Secretary of the Navy, issued to naval commandants and supply officers an order quoting a letter to the Secretary of the Navy from the Fuel Administrator, in which the latter set out the prices provisionally prescribed in the President’s said proclamation and suggested that the Navy Department in its purchases of bituminous coal conform to the same, subject to change. In this order the Paymaster General prescribed that differences between the advance unit prices and those provisionally fixed by the President should be adjusted with the suppliers. In the latter part of September, 1917, the plaintiff under instructions from the Navy Department, resumed its billing at the President’s provisional price of $2.24 per gross ton. Pursuant to those instructions the plaintiff either adjusted or permitted the Navy Department to adjust, previous deliveries at $2.33% per gross ton to the $2.24 gross-ton price, and billed for the tonnage not theretofore billed at $2.24 per gross ton, so that the bills as adjusted for all deliveries made under said Order N-69 were adjusted to the price of $2.24 per gross ton.
    IX. The said price of $2.24 per gro.ss ton ($2.00 per net ton) was unsatisfactory to the plaintiff, and the plaintiff so indicated in the manner of endorsing its bills carrying that price which were filed with the Navy Department.
    X. On August 23, 1917, the President delegated his powers under the Lever Act respecting fuel to Dr. H. A. Garfield, as Fuel Administrator. The orders of the Fuel Administration confirmed the prices prescribed in the President’s proclamation as being provisional in character, but to stand unless changed by order of the President for good cause shown. Under his orders prices for deliveries were provisional until November 16, 1917, after which time deliveries were ordered to be made at fixed prices, not subject to revision. On December 3, 1917, this order was revoked so far as it concerned deliveries to the United States, permitting coal again to be sold subject to revision in price, but this exception was subsequently eliminated effectivé April 1, 1918, after which all deliveries were ordered to be made at a fixed price not subject to revision.
    XT. The plaintiff, conceiving the Fuel Administration to be the proper body through which to apply for a revision of prices on tonnage delivered under Order N-69, filed its application for the same according to the procedure required by the order of the Fuel Administrator of December 6, 1917, which prescribed rules of procedure to be followed by applicants for a revision in prices. This order, among other things, required the filing of cost data with the Federal Trade Commission, and the plaintiff filed such data with said commission.
    XII. Under date of January 31, 1918, the Fuel Administrator increased the price of coal produced in that portion of Maryland where the plaintiffs Georges Creek coal is produced by 40 cents per net ton for run-of-mine coal above the price of $2 per net ton provisionally prescribed in the President’s proclamation of August 21, 1917, which additional ' allowance was based on highest cost of approximately 85 per cent of the tonnage produced in the respective coal fields, and was to take effect February 1, 1918. The plaintiff subsequently billed the Navy Department for thi.s 40 cents additional on the said tonnage delivered between June 14, 1917, and September 30, 1917. The Navy Department paid this 40 cents per net ton on 42,689.66 net tons delivered through the plaintiff’s Baltimore office, amounting to $17,075.86, but refused to pay it on the tonnage so delivered through its other offices, taking the position that this 40 cents additional allowance was not retroactive and that the $17,075.86 paid through the plaintiff’s Baltimore office was paid in error and inadvertently.
    XIII. The plaintiff diligently pressed its contention before the Navy Department, and subsequently filed a request for an additional revision in price with the Fuel Administration. The Navy Department advised the plaintiff on June 21, 1918, that no prices were retroactive as to coal delivered under Order N-69, but added that if it were held under Executive authority that all prices should be adjusted and direct announcement should be so made, independent of advices that may have been given prior thereto, action would be promptly taken to carry out such announcement. The plaintiff continued to press its claim with the Navy Department until July 1, 1919, when the Secretary of the Navy advised the plaintiff that no additional amount would be paid. On June 7, 1921, the plaintiff’s attorneys made formal demand on the Secretary of the Navy for additional compensation, which demand was disallowed by the Acting Secretary of the Navy under date of June 22, 1921.
    XIV. On account of the delivery of the said 108,520.78 net tons of Georges Creek coal by the plaintiff, the United States has paid the plaintiff a total of $234,122.38, which sum includes the said $17,075.86, paid at the rate of 40 cents additional per ton on the Baltimore tonnage, as set forth in Finding XII.
    
      XV. Prior to June 14,1917, the plaintiff had entered into 126 long-term contracts with private parties which called for the delivery in monthly installments of coal produced by the plaintiff from its own mines, and coal purchased from other producers could not have been applied upon these contracts. Under these contracts the plaintiff had agreed to deliver to private parties practically the entire production of its mines during the period June 17, 1917, to September 30, 1917, and had the right during said period to deliver 100,674.03 net tons of coal more than it actually delivered under them. The plaintiff would, in the ordinary course of its business, have delivered these 100,674.03 net tons during this period upon these contracts but for the fact that the Navy took the said 108,520.78 net tons delivered to it, and the only reason the plaintiff did not apply the 100,674.03 net tons to these private contracts was that this coal was so taken by the Navy. Had the plaintiff delivered to the purchasers under these contracts the said 100,674.03 net tons, plaintiff would have received therefor $384,696.90, or an average price of $3.8212 per net. ton. As to the remaining 7,846.75 net tons taken by the Navy Department, which but for its delivery to the ■ Government plaintiff could have sold in the market during the period from June 14 to September 30, 1917, it does not appear at what time or times during said period this coal would have been available for sale by the plaintiff, and its market value at such time or times can not be determined. If it be rated at the average price, plaintiff would haA^e received for the said 100,674.03 net tons under its said prÍArate contracts $29,984.00, making a total of $414,680.90 plaintiff Avould haAre received at private sale for the 108,520.78 net tons dehwered to the Government, or $180,558.5.2 more than plaintiff has received from the Government for it.
    XVI. Title fair market value of the said 108,520.78 net tons of coal furnished to the Government by the plaintiff between June 14 and September 30, 1917, was, at the times it Avas so furnished by the plaintiff, $350,046.24, or $115,923.86 more than plaintiff has been paid by the Government for it.
    XVII. On or about June 12, 1919, the Navy Department, acting under the direction of the President, and citing as .authority for it's'action " the national defense act of June 3, 1916, the food control-act.of August 10, 1917, and the naval appropriation act of July 1, 1918, addressed and issued to the plaintiff Navy Orders N-6123 and N-6157 for the furnishing. of coal by plaiptiff to the department during the period from July 1 to December 31, 1919. These orders were similar in terms and conditions, with the exception of the hinds and approximate quantities of the coal to be required under "them* Order N-6123 was for approximately 85,000 gross tons of Navy Standard Big Vein Georges Creek Coal; and'Order N-6157 was for approximately 62,000 gross tons of Navy Supplementary List Coal of a kind known as Jenner coal. The price Specified in each order was $3,364 per gross ton. '■
    Subparagraph (A) of--paragraph 1 of said orders provided : <’
    “ The price herein stated has been determined as just compensation for the material to be delivered or service to be rendered. If. satisfactory to you, payment will be made accordingly,-. an,4> aeqeptance of this price will be considered as, constituting^ a, ^formal release of all claims arising under this ‘order.'j "If the’, price is not satisfactory and you so manifest -’below 'ifi-'writing, you will be paid 75 per cent only of the idesigitafed-’-amount. Further recourse may be had by suit'ea-gainst" .the'United States to recover such further sum.as added, to. the:said 75 per cent shall make up such amount as-will be. just compensation therefor.” '
    By paragraph.-2 of said, orders it was provided:
    “This order must be .accepted and complied with in any event, and if -placed in accordance with subparagraph A you are only required to indicate below whether the price stated and fixed is satisfactory or "is hot 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. * * Do not make any alterations in the Navy .order.” -
    The plaintiff accepted-each"'of said orders in the following words: “The above order is accepted, subject to the conditions in subparagraph A--aboye. The price therein stated and fixed as being reasonable i.s-satisfactory.” A copy of Order N-612.3,. with .plaintiff’s, said... acceptance appended thereto, is annexed to the plaintiff’s petition-as Exhibit F, and is by reference made a part of this finding.
    Under date of November 25, 1919, the Secretary of the Navy, by letters, notified the plaintiff that by reason of failure to secure adequate and sufficient bids as the result of competitive bidding, said Navy Orders N-6123 and. N-6157 would “be continued beyond the date as noted therein to an extent as authorized under the acts of Congress ” in pursuance to which said orders were issued, or until such earlier date as it might “become practicable to enter into contracts.” Said letters further stated: “ The general conditions as set forth in the Navy order above numbered — of which this letter becomes a part — will apply in. the fulfillment of the requirements contemplated herein.” Said letters of notification were accepted by the plaintiff subject to the conditions of- said Navy orders, the acceptance in the case of Order N-6123 reading as follows: “Accepted subject to the conditions of Navy Order N-6123.” A copy of the notification applying to Order N-6123, with the plaintiff’s said acceptance appended thereto, is annexed to plaintiff’s petition as Exhibit G, which is by reference made a part of this finding.
    Pursuant to applications by the plaintiff under Order N-6123 and supporting affidavits of April 24, 1920, and May 13, 1920, respectively, for an increase in price of $0.2824 per gross ton on coal supplied on and after November 1, 1919, and a further increase of $0.2622 per ton on and after April 1, 1920, on account of increases in miners’ wages; and to applications by plaintiff under Order N-6157, on the same ground, and supporting affidavits of April 27, 1920, and May 20, 1920, respectively, for an increase of $0,272 per gross ton from November 1, 19Í9, to April 1, 1920, and a further increase of $0,253 per ton on and after April 1,1920; the Paymaster General of the Navy, by letters of June 1, 1920, notified the plaintiff of the allowance in full of the increases in prices applied for. These increases brought the price of coal supplied under Order N-6123 from November 1, 1919, to April 1, 1920, up to $3.6464 per gross ton, and the price of coal supplied on and after April 1, 1920, up to $3.9086 per gross ton; and brought the price of coal supplied under Order N-6157 from November 1, 1919, to April 1, 1920, up to $3,636 per gross ton, and the price on and after April 1, 1920, up to $3,889 per gross ton. Each of said letters of notification also stated: “All conditions of the Navy order in question, except as herein modified, will be applicable in the case of all deliveries made hereunder.” The plaintiff accepted each of said notifications in the same terms. Its acceptance under Order N-6123 was as follows: “Accepted subject to the conditions of subparagraph (a) of Navy Order N-6123; the prices herein stated and fixed as being reasonable are satisfactory ”; and its acceptance under Order N-6157 was the same except as to the number of the order. Copies of said letters, with the plaintiff’s acceptances appended thereto, are annexed to plaintiff’s petition as Exhibits I and J and are by reference made a part of this finding.
    On August 18, 1920, the Secretary of the Navy, by separate but similar letters, notified the plaintiff of the necessary continuance of said Orders N-6123 and N-6157; and that, following the consideration which had been “given to the question of coal supply, involving complete analysis of the conditions presented by the suppliers as reason for an adjustment of price,” it had been decided to modify the Navy orders then in effect as therein stated, which was an increase to $4.25 for all coal supplied by plaintiff under said Orders N-6123 and N-6157 on and after April 1, 1920. Said letters also contained the following statements: “ This price is retroactive to April 1, 1920. Since this figure includes all advances made in wage scales, the affidavits previously requested in this particular will not be required in the case of those suppliers who have not submitted same. While this price may be modified by the Navy if deemed .proper, it will to all intents and purposes be regarded as a price fixed in keeping with paragraph (a) of the Navy order placed with your company. The general conditions as set forth in the Navy order in question — of which this letter becomes a part — will apply in fulfillment of the requirements contemplated herein.” No acceptance of the conditions and price specified in said letters was executed or expressed by the plaintiff. Copies of said letters are annexed to the plaintiff’s petition as Exhibits K and L, which are by reference made a part of this finding. ■
    On September 29, 1920,plaintiff, in separate bnt similar letters, wrote the Secretary of the Navy with reference to each of said Orders N-6123' and N-6157, acknowledging his said letters of August 18, 1920, increasing the price to $4.25 per ton and saying; Beg 'to advise that we are unable to accept the price therein stated,and fixed by you as reasonable compensation to us fob the"*delivery to'’the" Navy of the coal ordered under said original Navy order ‘and modifications thereof. In accordance with the'provisions of the act of Congress under which said orders'are given we; therefore request prompt payment by the Na(Vy of 75 per cént of the amount fixed by you, and we reserve the 'right to ourselves to present our claim in due course for the balance due. ' We wish further to call your attention to. the fact that we have been compelled to grant an increase in wages, effective'August 16, 1920, which has resulted in an increase iff our mining cost in the field from which this coal is shipped of $0.3543 per net ton.” By letter of the next day this stated increase in production cost was corrected to 35 cents even per net ton. Copies of plaintiff’s said letters of September 29, 1920, are annexed to the plaintiff’s petition as Exhibits M and N, wdiich are by reference made a part of'this finding.
    On February 2, 1921, the Acting Paymaster General of the Navy wrote the plaintiff referring to an affidavit filed by plaintiff in November, 1920, for increase in price On account of increase in miners’ wages and saying: “Satisfactory evidence through receipt of required affidavit having been submitted by your company in support of your claim for an increase of $0.3232 per gross ton on coal supplied the Navy on and subsequent to 16 August, 1920, Navy Order N-6123 is, by this letter, so modified as to provide that the unit price stated therein — $4.25 per gross ton f. 0. b. mines— is increased to‘$4.5732 per gross ton, which increase will be applied in effecting settlement for all coal supplied the Navy by your company under Navy Order N-6123 on and subsequent to 16 August, 1920.” ’ It was further stated in said letter that this increase was intended to cover the increased cost of production brought about by reason of the said ad-vanee in miners’ wages; and that all conditions of said Navy Order N-6123, except as therein modified, would be applicable to all deliveries under this modification of the order. A similar letter was written by the Acting Paymaster General on the same date, February 2, 1921, to the plaintiff ivith reference to Order N-6157, with the exception that the increase in price stated therein to have been allowed by the department was $0.218 per ton, making the price for coal supplied under said order on and after August 16,1920, $4.468 per gross ton. The affidavits referred to in said letters of February 2, 1921, were affidavits of November 1 and November 6, 1920, furnished by the plaintiff with reference to increase in miners’ wages. Plaintiff acknowledged said letters in the same language, its acknowledgment or acceptance in the case of Order N-6123 being as follows: “Accepted subject to the conditions of subparagraph (a) of Navy Order N-6123; the price herein stated and fixed as being reasonable is not satisfactory.” Copies of said letters, with the plaintiff’s said acceptance appended thereto, are annexed to plaintiff’s petition as Exhibits O and P, which are by reference made a part of this finding. The plaintiff continued delivering coal to the Government under said orders until March 31, 1921.
    XVIII. During the period from April 1, 1920, to March 31, 1921, the plaintiff supplied to the Navy Department, in installments at different times throughout said period as required by the department under the said Navy Orders N~ 6123 and N-6157 and modifications thereof, shown by Finding XVII, 39,625.06 gross tons of Navy Standard Big Vein Georges Creek Coal, and 35,839.86 gross tons of Navy Supplementary List Coal, known as Jenner Coal, making - a total of 75,464.92 gross tons supplied during said period.
    Of this tonnage 19,364.94 tons were supplied prior to June 1, 1920, and 2,813.84 tons from June 1 to August 16, 1920,-the remaining 53,286.14 tons' being supplied thereafter. .
    The plaintiff having objected to the price of $4.25 per ton fixed by the Navy Department’s letters of August 18, 1920, and to the prices of $4.5732 per ton under Order N-6123 and $4.468 per ton under Order N-6157, fixed by the department’s letters of February 2, 1921, for coal supplied on and after August 16,1920, and having requested payment of 75 per cent of said prices, payment of said 75 per cent was made to plaintiff by the department.
    The value of the coal delivered from April 1, 1920, to September 29,1920, at said prices fixed by the Navy Department, was $125,118.23.
    The fair-averaged market value of the coal delivered at divers times from September 29, 1920, to March 31, 1921, was $289,387.94.
    The value of the whole 75,464.92 tons supplied by the plaintiff during the period from April 1, 1920, to March 31, 1921, was $414,506.17, being the sum of the two foregoing values, upon which payment has been made to the plaintiff in the sum of $251,309.70, leaving an unpaid balance of $163,196.47 in favor of the plaintiff.
    XIX. It does not appear from the evidence that the coal ordered and delivered under and pursuant to the said orders of the Navy Department had been mined at the time the orders for it were issued or placed by the department.
    XX. The several exhibits to the plaintiff’s petition, Exhibits A to P, inclusive, are authentic copies of the notices, orders, acceptances, and other papers of which they purport to be copies, and such of them as have not hereinbefore been made parts of these findings of facts are by reference made a part of this finding.
    The court decided that plaintiff was entitled to recover, in part.
    
      
       Appealed.
    
   GRAham, Judge,

delivered the opinion of the court:

This is an action to recover payment for bituminous coal claimed to have been requisitioned by the Navy under separate orders at two different times. The petition sets up two causes of action. The first cause of action grows out of an order designated N-69, which is dated the 10th of August, 1917, and covered shipments of coal beginning the latter part of June and terminating the 30th of September, 1917. The second cause of action grows out of two orders by the Navy Department, with modifications and extensions thereof Imown as N-6123 and N-6157, each dated the 12th day of June, 1919, for deliveries of coal from the 1st of July, 1919, to the 31st of December, 1919. These last two orders were for different grades of coal, the conditions and terms of them are the same except as to the price, and originally they were the same as to price. For the purposes of this discussion only one of them will be alluded to, namely, N-6123, it being understood that what is said applies as well to N-6157. The order of August 10,1917, in the first cause of action was for 92,400 tons of coal at a price named of $2.335 per gross ton, f. o. b. mines. The plaintiff began deliveries on the 27th of June, 1917, and concluded its deliveries on September 30, 1917. On August 21, 1917, the President issued a proclamation regulating the sale of bituminous coal. The price that covered the run of mine of the plaintiff’s coal under this proclamation was $2 per net ton, equivalent to $2.24 per gross ton; and thereafter, about the 1st of September, 1917, the Navy Department informed the plaintiff .that it should adjust its billing from the price previously named in the order of $2.335 per gross ton to $2.24 per gross ton. On the 4th of September it instructed the plaintiff to continue billing at $2.335, but again, about September 17, adjusted the price to $2.24, and plaintiff delivered the coal and was paid at the provisional prices as adjusted from time to time. It is suing here to recover the difference between the sum so received and such other sum as would make just compensation for the value of the coal. The theory on which the suit is brought is that the order N-69 was a requisitioning of the coal.

The first cause of action arises under paragraph .(b) of the order, which in substance provides that a price would be tentatively fixed. If the price was accepted it would make the contract; if it was not accepted, then the plaintiff, upon delivery of the coal, would be paid the price fixed and such additional sum as would make up the difference between the price fixed and the value of the coal, being the fair market juice of the same at the time and place of delivery fixed in the order. In the first cause of action the plaintiff refused to accept the price but delivered the coal. It was paid the price and it is entitled to a further recovery in an amount which will make up the difference between the amount paid and the fair market value of the coal at the time and place of delivery fixed by the order, which, according to the Findings of Fact, is $115,923.86. Federal Sugar Refining Co. v. United States, ante, p. 184.

The second cause of action presents a somewhat different situation. It is under subparagraph (A) of the order; and the orders in both of these causes of action, it might be stated, are in terms and conditions the same except that the first cause of action is under subparagraph (B) of the order and the second under subparagraph (A). Subparagraph (A) provides:

“ The price herein stated has been determined as just compensation for material to be delivered or service to be rendered. If satisfactory to you, payment will be made accordingly and acceptance of this price will be considered as constituting a formal release of all claims arising under this order.”

The order in another section provides:

“Prices herein stated will be subject to change due to change in wage scale or freight rate as may in general be applicable to the field in question and operative on the coal called for hereunder.”

Two orders were placed, as stated, under this second cause of action, on the 12th of June, 1919, for coal to be delivered between July 1, 1919, and the 31st of December, 1919. The price named in these orders, $3,364 per gross ton, was accepted as satisfactory by the plaintiff, and the plaintiff was paid on the basis of this accepted price for coal delivered under these orders between July 1, 1919, and November 1, 1919. For coal delivered after the 1st of November the price named in the order was increased by the Secretary of the Navy on a showing by the plaintiff that there had been an increase in wages, the amount allowed being the amount of such claimed increase. And for coal delivered from the 1st of November to the 1st of April the plaintiff was paid at this increased price. On the 25th of November the two original orders, under an order of the Secretary of the Navy, were extended. The period for delivery and the amounts to be delivered within that period were not named in the order, it being provided that they would be subject to future arrangements between the par■ties.. This .modified and. extension.. order, provided that it should be á part of the two original orders. No price was named in it, and it is to be assumed that the price named in the original orders was to remain the same. It was accepted as satisfactory by the plaintiff. Thereafter it was arranged between the parties for the .delivery of coal from the 1st of April, 1920, to the 31st of March, 1921, and the coal embraced in the second cause of action was delivered during' that period. ■ * : ‘

The Secretary of the Navy, on the'lst of June, 1920, on a showing by the plaintiff that it had had* another increase in wages beginning the ,1st of April, again increased the price ■effective-the Tst of. April.. This monease was cumulative, being an increase on the increase already allowed. Later, on the 18th of August, the Secretary Reviewed the whole ■situation, and' it would, seem that in, order to cover all claims, those.of others as..well.as the\plaintiff — for the Navy was getting ■ coat from: other - sources — fixed- the price for all coal delivered after’1‘the51st1 ofMApril, 1920,. at $4.25. This was to cover all increases in wages after the 1st of April, 1920. As far as the plaintiff is concerned it does not appear that it had .any increase,.ip wages ¡from the 1st of April to the 16th ■o.f August, /SO- that /jUjdei?', the • contract this price of $4.25 ■covered..the original', price naipLed..i¡nvt¿!¡i@ orders plus all increases in,wages up to the JCfilr pf;August; and therefore -on coal delivered between the 1st of April and the 16th of August, 1920, the plaintiff should be paid on the basis of $4.25 per ton. .On the 16th of August-the plaintiff had .another raise of wages, which apparently, was not known to the Secretary of the Navy on the 18th pf August, at the time he named the price $4.25, and was afterwards, in September following, brought to his attention, and upon a formal claim for this increase by the plaintiff in November, 1920, the Secretary of the .Navy increased the price to •the extent of this claim for increase, effective for all coal delivered on and after the 16th of August.' As it does not appear that the plaintiff had any raise in’wage scale after August 16, 1920, the plaintiff should be paid'fbf all coal delivered after that date up to the 31st of March, 19*21, at the rate of $4.468 per ton for coal delivered under Order N — 6157, and $4.5732 per ton for coal delivered under Order N-6123, the prices fixed by the department. At the said prices of $4.25 per ton prior to August 16, 1920, and $4,468 and $4.5732 per ton after August 16, the amount due the plaintiff for all the coal delivered to the Government after April 1, 1920, was $335,079.61. From this should be deducted the $251,309.70 which was paid the plaintiff, leaving the amount which the plaintiff is entitled to recover under the second cause of action $83,769.91.

The plaintiff in its petition and proof has sought a recovery upon the theory that these orders of the Secretary of the Navy were in the nature of requisitions or commandeering proceedings. This position is not tenable, for the order on its face contemplated an acceptance. If the order was a compulsory requisition, no acceptance was necessary. American Smelting & Refining Co. v. United States, 259 U. S. 75, 79. In this last case it was also held “ that an order and acceptance is a contract enforcible in this court.” The original orders in this case with the price named, under the second cause of action, were accepted a,s satisfactory, subject to increases by reason of increase in wages and freight rates. There is nothing in the order to indicate, if the order was accepted as satisfactory, that the price was to be fixed upon any other basis than the price named, plus increase in wages or freight rates as might occur' from time to time during the period of delivery. The very language of the order directed to the plaintiff states “that an order is placed with you under conditions stated in sub-paragraph a (subparagraph & is eliminated and is not a part of this agreement) to furnish and deliver material and services needed by the Navy as in sheets attached.” The sheets attached called for 85,000 tons of coal at a price of $3,364 per gross ton f. o. b. mines. Said subparagraph (A) provides that the price stated had been determined upon as “just compensation for the material to be delivered or service to be rendered,” and that “ if satisfactory to you payment will be made accordingly, and an acceptance of this price vill be considered as constituting a formal release of all claims arising under this order.” The plaintiff indorsed on this order: “ The above is accepted subject to the conditions of subparagraph (A) above. The price therein stated and fixed as being reasonable is satisfactory.”

It thereafter made claims for increases in price named in the order, by reason of increases in wages as contemplated by the order, and in each case it was allowed the exact amount of the increase in price requested. It applied in May, 1920, for an increase on account of raise of wages April 1, and on June 1 following, the Secretary of the Navy granted this increase, effective April 1. The communication of the Secretary to the plaintiff fixing this new price, in accordance with the request of the plaintiff, was accepted as shown by an entry thereon in the language quoted above, b 'ing the same wording used in accepting the original order. This was after the delivery of the coal had begun. The plaintiff continued to deliver coal under this unqualified acceptance of the price until the 16th of August. Thereafter,, on a .showing of an increase in wages, the price was again raised to the amount requested, effective the 16th of August.

This request for an increase, as of the 16th of August,, was not made until November, there having been large de-liveri; s of coal between these dates. The action of the Secretary of the Navy in placing these orders, as stated in the orders purported to be by authority of the national defense act of June 3, 1916, the food control act of August 10, 1911, known as the Lever Act, and the Navy appropriation act of July 1, 1918, and the .sections of each of these acts relied upon were quoted in the order. It seems clear from the form of the order that the Secretary of the Navy ivas proceeding according to the provisions of the acts of June 3, 1916, and July 1, 1918. Each of these acts confers upon the President authority, through the head of a department, “to place an order,” and while these acts both contain a provision that the order shall be obligatory and that the Government shall be given precedence, these latter provisions were not compelling, did not amount to dures.s, and did not prevent the plaintiff from discriminating between what it was required to yield and what it could reserve. See American Smelting & Refining Co. v. United States, supra. It could have stood upon its legal rights and saved the question of price. (Ibid.)

The act of July 1; 1918, upon which the plaintiff relies for its theóry of a requisition was similar in its apparent purpose to the national'defense act. It also began by conferring authority upon the President “ to place an order,” provided that the order should be obligatory and that preference should be given to it. It further provided that in case of refusal to comply with the order the President was authorized to take possession of the plaintiff’s factory and operate it. It will be seen that the act clearly contemplated, first, an’ effort to establish’ a contractual relation by the placing of an order, and its acceptance. If the order was accepted, there was an end of the matter and no occasion would exist for a-taking or a requisition of the property, as the acceptance of the order made a contract:' American Smelting & Refining Co. v. United States, supra. The taking of the property or material was predicated upon a refusal to accept the order, and only upon such "refusal. It was the refusal that justified the requisition or the taking. A mere order to deliver property where the order has not been accepted and the property not delivered is not a taking upon -which an implied contract could be based so as to give this court jurisdiction. United States Bedding Co. v. United States, 266 U. S. 491. Under the facts of the instant case there was no taking of the plaintiff’s property for which it could recover as and for a taking. If there were a' doubt as to whether in this case there was a taking or a contract it would have to be held to be a contract rather than a taking through the exercise of the harsh right of eminent domain. Federal Sugar Refining Co. v. United States, supra.

In the view of the conclusion reached, there is no occasion to consider whether the Secretary of the Navy had authority under the act of July 1, 1918, to requisition or take coal or take possession of a coal mine, or the further question, whether the Secretary could requisition material which was not in possession, at the time, of the person to whom the order was addressed, or not in existence in the form ordered; i. e., had not been produced.

Hat, Judge,; -Downey, Judge; Booth, Judge, and Campbell, Chief Justice, concur.

With the amended findings was filed the following

MEMORANDUM BY THE COURT

The plaintiff has filed a motion for a new trial and requested an'amendment to the findings of fact heretofore made. The requested amendments have been considered and .some amendments to the findings made.

The court has concluded as to the coal delivered between .the 29th of September, 1920, and the 31st of March, 1921, to allow thé plaintiff its fair market value, thus changing .and increasing the allowance made under the judgment heretofore entered," as shown by the amended findings. This ■conclusion is reached after further consideration of plaintiff’s letter of September 29, 1920, in which it refused to .accept the last price fixed by the Secretary of the Navy in his order of August 18, 1920. It would seem, under the terms of sub-paragraph A of the contract, that having refused to accept the price named it was entitled to the fair market value of the coal delivered under the contract after the said September 29, 1920.

On the question of interest the court adheres to its view that the statute (42 Stat., p. 316, sec. 1324) forbids the allowance of interest upon an express contract where the payment of interest is not stipulated for in the contract.

The necessary changes have been made in the'findings to • conform to the foregoing views. Judgment should be entered for the plaintiff in the sum of $279,120.33, and it is .so ordered.  