
    TWIN CITY FORGE & FOUNDRY CO. v. THE UNITED STATES
    
    [No. A-212.
    Decided May 11, 1925]
    
      On. the Proofs
    
    
      .Dent Act; prospective profits. — A claim for recovery of incidental expenses such as tools, facilities, patterns, etc., that might have been absorbed if the contract had been completed is in the nature of a claim for prospective profits the granting of which is prohibited under the Dent Act.
    
      
      Same; interest. — Section 2 of the Dent Act can not be construed to repeal section 177 of the Judicial Code.
    
      The Reporter's statement of the case:
    
      Mr. Jesse Adkins for the plaintiff. Messrs. John G. Benson and Jackson H. Ralston, and Gobi, 'Wheelwright & Benson were on the briefs.
    
      Mr. John Vance Hewitt, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant. Messrs. Arthur Camduff, Crowley Wentworth, and Paul J. Mullen were on the briefs.
    The following are the facts as found by the court:
    I. The plaintiff is, and during all the times mentioned in these findings was, a corporation organized and existing under and by virtue of the laws of the State of Minnesota,, and located at, and having its place of business in, the city of Stillwater, in said State.
    Plaintiff was organized in July, 1917, to engage in the general drop forge and foundry business, and invested its paid-up capital in the installation of manufacturing units to carry on these enterprises.
    II. On January 28, 1918, plaintiff entered into a contract with the Government whereby it agreed to machine, band., and attach base covers to 225,000 155 mm. high explosive shells, and to furnish suitable boxes, wooden nose plugs and grommets therefor; to cover said shells with an antirust compound and to deliver them to the Government, all according to the plans and specifications forming a part of said contract, by September 1, 1918. Said contract bore No. G787-434A, and will be referred to hereinafter as coni tract G787. It is attached to plaintiff’s original petition as Exhibit A, and is by reference made a part of this finding as Exhibit A hereto.
    This contract was entered into in good faith by an officer acting under authority of the Secretary of War, but was not executed in the manner prescribed by law. The contract was partly performed and expenditures were made and obligations incurred by the plaintiff on the faith of it prior to November 12, 1918; and plaintiff was ready, willing, and able to complete the performance thereof.
    On August 2, 1918, an agreement supplemental to said contract Avas entered .into betAveen plaintiff and the Government proidding for the procuring and installation of necessary equipment and the heat treating of the shells to be machined and finished by plaintiff under said contract G787. A copy of said supplemental agreement is annexed to plaintiff’s original petition as Exhibit B thereto, and is by reference made a part of this finding.
    III. Said contract G787 contained a provision authorizing its termination by the Secretaiy of War in case of termination or limitation of the avar; and the Avork under the contract being unfinished at the time of the cessation of hostilities betAveen the United States and German on NoAmuber 11, 1918, operations thereunder Avere ordered suspended by the Secretaiy of War on or about the 23d day of December, 1918, excepit as to certain shells in process of completion, and Avork under the contract ceased on or about January 31, 1919.
    IV. Said contract was found by the Secretaiy of War not to be executed in the manner required by law; and prior to June 30, 1919, plaintiff presented to the Secretaiy of War its claim under said contract.
    Under certain “statutory aAvards” made by the Secretary of War and accepted by plaintiff, one of June 27, 1919, and one of November 26, 1919, providing for suspension, of operations under said contract and for advance payments to plaintiff on account of its claims groiving out of the contra. t and the termination thereof, there Avas paid to plaintiff by the Government under said aAvard of June 27, 1919, an advance payment of $232,225.87. A copy of the said statutory aAvard of November 26, 1919, is annexed to plaintiff’s original petition as Exhibit A-2 thereto, and is by reference made a part of this finding.
    V. For the purpose of performing the said contract plaintiff purchased wooden nose plugs and rope grommets which Avere not used by it owing to the suspension and termination of the contract. These nose plugs and grommets were necessary for the performance of the contract and cost plaintiff tbe sum of $4,826.30. After the suspension and termination of the contract they were of no material value to plaintiff, and they were taken over by the Government with the understanding that plaintiff, was to be allowed by the Government said sum of $4,326.30 therefor.
    VI. For use in the performance of the contract plaintiff purchased, at a cost of $79,450.21, certain materials and supplies, such as general supplies, small tools and repair materials and parts for machines used in the work, designated as indirect materials. Said indirect materials were necessary for the performance of the contract, but had not been used; •and after the suspension and termination of the contract plaintiff had no use for them, and they were taken over by the Government.
    VII. The contract provided that in the event of its termination by the Government plaintiff would be paid by the ■Government for all obligations incurred by plaintiff solely for the performance of the contract of which plaintiff could not otherwise be relieved. Plaintiff entered into certain .subcontracts with business concerns for materials and supplies for use in the performance of the contract; and, not •being able otherwise to secure release from its obligations under said subcontracts upon the termination of its contract with the Government, plaintiff, under authority from the Government, made payment to the subcontractors for such release, as follows:
    Automatic Engine Works-$1,001.01
    Midway Engineering Works- 373. 55
    Haynes Stellite Co- 984.36
    Cooperative Machine Tool Company-.- 14. 21
    VIII.In order to perform said contract it was necessary for plaintiff to procure electrical power, and in order to procure such power plaintiff was required to enter into a contract with the Northern States Power Company which provided that the minimum charge for each month should equal 50 per cent of the highest charge incurred in any previous month. Power so procured by plaintiff was used both for the performance of said contract with the Government and for other operations by the plaintiff, including contract G1805, of January 4, 1917, with the Government. Under the terms of this power contract plaintiff could not be released from it before October 1, 1919. Between the date of termination of work under said contract G787 with the Government and October 1, 1919, the average monthly consumption of power by plaintiff was 1,389 kilowatts, and prior to such termination the highest amount was '3,460 kilowatts, of which 50 per cent is 1,730 kilowatts. The difference between 1,730 kilowatts and 1,389 kilowatts, or 341 kilowatts per'month, represents the amount of power which plaintiff did not use but for which it was required to pay between February 1, 1919, and October 1, 1919, under the terms of said power contract. The amount paid for such power not used by plaintiff during said period was $5,669.32. If this sum be apportioned between said contracts G787 and G1805, the amount to be apportioned to contract G787 would be $2,607.88.
    IX. Plaintiff expended, for tools and machine repair parts to be used in the performance of said contract and which were partly consumed in the performance thereof, the sum of $102,840.68. If this sum be apportioned between the completed and uncompleted parts of the contract work, $32,651.91 is apportionable to the uncompleted part of the work. These tools and repair parts were taken by the Government after the termination of the contract.
    X. The increased facilities which had to be provided for plaintiff’s performance of the contract were provided and installed by plaintiff at a cost of $598,756.80. Under the provisions of the contract the Government was to pay for and take title to such increased facilities up to $420,000. It. paid for and took title to $419,339.85 worth of these increased facilities, leaving $179,416.95 worth of them paid for by and belonging to plaintiff. Upon the termination of the contract these facilities paid for by and belonging to the-plaintiff were taken by the Government, at which time they were worth $17,559.75. No payment has been made to plaintiff on account of said facilities so purchased by and belonging to it. If the $179,416.95 purchase price of said facilities be apportioned between the completed and uncompleted portions of the contract, $67,884.20 of it would be apportion-able to the uncompleted portion of the contract.
    
      XI. Plaintiff was compelled to employ borrowed money for its expenditures for the purchase and installation of the necessary increased facilities for the contract work which were to be acquired by it and paid for by the Government. It was seldom less than ten days, and often several months, between the time of such expenditures by plaintiff and plaintiff’s reimbursement therefor by the Government; and interest on the amounts of such expenditures from the time they were made by plaintiff to the time of plaintiff’s reimbursement by the Government amounted to $3,053.69.
    XII. Under the provisions of said contract G7S7, the Government was to furnish the forgings for the shells, and under certain specified conditions plaintiff was to be reimbursed by the Government for the cost of work done on shells rejected on account of defective forgings furnished by the Government.
    Eight hundred and twenty of the forgings furnished by the Government were defective and not capable of being machined into acceptable shells. The defects in these forgings were not apparent until after plaintiff had spent $4,-943.21 in machining operations on the forgings, for which work and expenditure plaintiff has received no compensation or reimbursement.
    XIII. Plaintiff expended $2,028.29 for patterns for repair parts for machinery and tools to be used in the performance of the contract. These patterns were of no material value after the termination of the contract. If this sum be apportioned between the performed and unperformed portions of the contract, $767.42 is the portion of it properly apportion-able to the unperformed portion of the contract.
    XIV. Plaintiff expended $9,642.38 for engineering and drafting in the designing and drafting of new or improved machinery and equipment, and the devising of improved methods of operation in the performance of the contract. The results of such engineering and drafting expense were of no value to the plaintiff after the termination of the contract. If such expense be apportioned between the performed and unperformed portions of the contract work, $3,-648.29 of said expense is properly apportionable to the unperformed part of the work.
    
      XV. During the performance of the contract plaintiff unloaded a great many, cars of forgings shipped by the Government to plaintiff’s plant. After the termination óf the contract it was found that 61 cars of such forgings, owing to the termination of the contract, were not put into production, so that plaintiff received no compensation for unloading said 61 cars. Unloading of these forgings cost plaintiff $2,136.07.
    XVI. On account of plaintiff’s unpreparedness for and uñfamiliarity with the kind of work called for by the contract and the difficulty and delay in securing the necessary equipment and other facilities, some months elapsed before plaintiff’s plant had attained and was operating at its normal capacity. The cost of producing shells during this period preceding normal production was much higher than the cost of shells produced and delivered while the plant was operating at normal capacity. Also the reductions in the work to be done and the subsequent termination of the contract work by the Government’s order of December 23, 1918, caused a higher cost to plaintiff of the work done after normal capacity ceased.
    The total number of shells produced and delivered and paid for under the contract was 139,870, the contract price for which at $11.50 per shell amounted to $1,608,505. If these shells had been produced by plaintiff at the rate and under the conditions prevailing when its plant had attained and was operating at its normal capacity, which point had been reached before December 23,1918, their cost to plaintiff would have been $1,000,513.44. Because of the reasons and adverse conditions before stated the production of these 139,870 shells actually co.st plaintiff $1,366,529.90, or $366,-016.46 more than they would have cost if produced when the plant was operating at its normal capacity.
    If the said $366,016.46 be apportioned between the completed and uncompleted portions of the contract, $138,485.95 of it is apportionable to the uncompleted portion of said contract. ■
    XVII. Plaintiff expended for traveling and legal expenses in the performance of said contract $11,459.85. These expenditures produced nothing which was of value to plaintiff after the suspension of the contract. If this amount be apportioned between the completed and uncompleted portion of the contract, $4,410.62 is apportionable to the uncompleted part of the contract work. It does not appear whether or not additional traveling and legal expenses would have been necessarily incurred if the contract had been completed.
    XVIII. For use in the performance of the contract plaintiff purchased certain quenching oil at a cost of $2,092.80, At the termination of the contract work, a portion of said, oil remaining on hand was of the fair value of $1,600, This oil was taken over by the Government with the understanding that the plaintiff was to be paid therefor, but no payment for it has been made.
    XIX. The contract contained a provision allowing cancellation by the United States in the event of the termination, of the war and provided:
    “In the event of the cancellation of this contract, as in. this article provided, the United States will accept the completed shells then on hand and the others then in the process of manufacture when completed, and will pay to the contractor the price herein agreed upon for each and every unit accepted by and delivered to the United States. The United States will also pay to the contractor the cost of component parts purchased with the approval of the department then on hand in an amount not exceeding the requirements for the completion of this contract, which shall be in accordance with the specifications referred to in schedule 2, hereto attached, and also all costs theretofore expended and for which payment has not been previously made and all obligations incurred solely for the performance of this contract of which the contractor can not be otherwise relieved, together with a sum equivalent to 10% of such costs so expended or incurred, except that said 10% shall not apply on the cost of purchased component materials or parts not in process of conversion or- assembly. The 10% of cost herein allowed shall be subject to such addition as the contract officer may deem necessary to fairly and justly compensate the contractor for work, labor, and service rendered under this contract.”
    Under the above provisions of the contract, plaintiff claims the following:
    
      1. The sum of $7,945.02, as 10 per cent of the $79,450.21 shown by Finding VI to have been expended by plaintiff for general supplies, small tools and repair materials and parts for machines, which were not used in the work.
    2. The sum of $3,265.19, as 10 per cent of the $32,651.91 shown by Finding IX to have been expended by plaintiff for tools and repair parts which were used in the work.
    3. The sum of $6,124.04, as 10 per cent of the portion of the cost of increased facilities paid for and belonging to plaintiff which plaintiff claims should be apportioned to the unperformed portion of the contract, the correct figures for which are shown by Finding X.
    4. The sum of $494.32, as 10 per cent of the $4,943.24 shown by Finding XII to have been expended by plaintiff for machine work on defective forgings furnished by the Government.
    5. The sum of $76.74, as 10 per cent of the $767.42 shown by Finding XIII to have been expended by plaintiff for patterns for us in the performance of the contract.
    6. The sum of $364.82, as 10 per cent of the $3,648.29 shown by Finding XIV to have been expended by plaintiff for engineering and drafting services in connection with the performance of the contract.
    7. The sum of $13,850.86, as 10 per cent of extra cost to plaintiff of the work performed under the contract over what it would have cost if it had been performed when plaintiff’s plant had attained and was operating at its normal capacity, the correct amount of which extra cost is shown by Finding XVI.
    8. The- sum of $447.06, as 10 per cent of the $4,470.62 shown by Finding XVII to have been expended by plaintiff for traveling and legal expenses in connection with the performance of the contract.
    9. The sum of $4,377.87, as 10 per cent of the cost of the heat-treating facilities provided for by the said supplemental contract of August 2, 1918, which was purchased and installed by plaintiff, as shown by Finding XXIV.
    XX. Said contract contained a provision that after the completion thereof, the Government should remove all facilities which belonged to it, without cost to plaintiff; and where such facilities had been erected on land or'installed in buildings owned by plaintiff, the Government should restore such land or buildings to as good-condition as obtained prior to the contract, subject only to reasonable wear and tear, all without expense to the plaintiff. Facilities be longing to the Government were installed in buildings and erected on land owned by plaintiff, and were removed by the Government, but the Government failed to restore said buddings and lands to as good condition as obtained prior to tne contract, subject to reasonable wear and tear, and the fair and reasonable cost of restoring the same will be $5,721.
    XXI. After the termination of the contract and discontinuance of work thereunder on or about February 1, 1919, the increased facilities for the performance of the work belonging to the Government remained for some time in buildings of plaintiff’s said plant.
    These facilities consisted in part of heavy machine tools, such as lathes, boring mills, etc., set on heavy foundations, and also of the materials composing various systems throughout the plant, such as piping system for transmission of water and cutting compound, power transmission systems, including shafting and wiring, and conveyor systems. It was admitted from the beginning that the machine tools and substantial portions of the materials in these systems belonged to the Government, and the Government finally admitted that all of the materials in the systems belonged tc it. While the Government began removing said facilities about February, 1920, it had removed a very insignificant part of them by the end of 1920.
    After the beginning of 1921 the piping, power transmission, and conveyor systems remained until removed by the Government between July 10 and October 4, 1922. The plaintiff repeatedly requested the Government to remove the facilities and disclaimed any interest in them. The presence of this equipment in the buildings prevented the use of such buildings by plaintiff and the leasing of them to others.
    Until June 1, 1920, the machine tools occupied 121,716 square feet of floor space in plaintiff’s buildings, and their presence effectively prevented- the use of that area by plaintiff or its leasing it to others.
    By January 1, 1921, the greater part of the machine tools had been removed, but the presence of the various systems aforesaid still completely prevented the use of such area by the plaintiff or its leasing to others. The materials admitted to belong to the Government were a substantial part of these systems. The Government refused to dismantle them or to remove any of the materials until July 10, 1922, and the removal was completed October 4, 1922. The plaintiff was unable at any time before their removal to dismantle or remove these systems or any part thereof. The Government from the beginning claimed ownership in a substantial part of these materials, and the presence of these materials in the plant effectively occupied the entire area and prevented its use by plaintiff or leasing to others.
    Between February 1, 1920, and June 1, 1920, a period of four months, the area so occupied was 121,716 square feet; between' June 1, 1920, and June, 1921, or twelve months, the area so occupied was 113,910 square feet; between June 1, 1921, and November 30, 1921, or six months, the area so occupied was 11,231 square feet; between December 1, 1921, and July 10, 1922, or seven months and ten days, the area so occupied was 105,510 square feet. The reasonable rental value of the space so occupied by the Government was twenty cents per square foot per annum. The total reason'able rental value of the entire area so occupied by the Government during the period as aforesaid was $54,918.30.
    XXII. Said contract provided that 5 per cent of the contract price for all shells finished and delivered by plaintiff should be retained by the Government until the contract ivas completed; and under this provision of the contract $80,425.25 of the contract price for the shells completed and delivered by plaintiff Avas retained by the GoA^ernment and has not been paid to plaintiff.
    XXIII. The said supplemental contract of August 2, 1918, between plaintiff and the Government, referred to in Finding II, was entered into in good faith, but was not executed as required bjr laAv. It required plaintiff to install certain heat-treating equipment in its plant, to be paid for by the Government, and required the treatment therein of the shells machined under the- terms of the original contract. Said supplemental agreement was partly performed ¡and expenditures made and obligations incurred by plaintiff upon the faith of it prior to November 12,1918; and plaintiff was ready, willing, and able to complete said contract.
    XXIV. The said supplemental agreement provided that the Government should pay plaintiff the cost of the heat-treating equipment up to a maximum of $60,978 and should become the owner thereof, and that the Government would remove said equipment from plaintiff’s plant as provided in the original contract with reference to the removal of other equipment or facilities belonging to the Government. Pursuant to the terms of this supplemental agreement, plaintiff expended for the purchase and installation of said heat-treating equipment $43,778.77. The Government has removed, sold, or otherwise disposed of said equipment, but has not paid plaintiff said sum of $43,778.77 expended by it therefor.
    XXV. After the suspension and termination of said original and supplemental contracts under orders of the Government, and during the years 1919 and 1920, plaintiff, at the Government’s request, furnished certain services and materials in listing and separating the plaintiff’s and the Government’s facilities and materials in plaintiff’s plant and in caring for and disposing of said Government facilities. The cost to plaintiff of said services and materials, and of continuing overhead and other termination expenses chargeable to the termination of said contracts, amounted to $45,384.88.
    If does not appear what part of said sum was presented by plaintiff prior to June 30, 1919, as a claim against the Government.
    XXVI. Plaintiff, after the suspension and termination of said original and supplemental contracts, and during the years 1919 and 1920, expended for expert accountant and other services and expenses in the preparation and presentation of its claim against the Government on account of said contracts and their termination by the Government, the sum of $28,353.51. It does not appear what portion of this sum was presented by plaintiff to the Secretary of War prior to June 30,1919, as a claim against the Government.
    XXVII. Under date of January 27, 1921, the Ordnance Section of the War Department Claims Board, acting upon claims presented by plaintiff, offered a final settlement contract on said original and supplemental contracts, which offer was not accepted by plaintiff, and from which plaintiff thereupon appealed to the Secretary of War. On April 11, 1921, the Secretary of War affirmed the action of said Claims Board and entered the same as the final action of the War Department in the matter. Plaintiff refused to accept the proposed settlement and rejected the same on or about April 20, 1921.
    XXVIII. On January 4,1918, plaintiff entered into a cost-plus contract with the Government whereby plaintiff agreed, for a specified compensation, to make and deliver to the Government 425,000 155 mm. common steel shell forgings,, to be made in accordance with certain drawings and specifications furnished by the Government, the component parts and materials for which were to be furnished by the Government. This contract was designated No. G1805-990A,, and will be referred to in these findings of fact as contract G1805. It is set forth as Exhibit C to plaintiff’s original petition, and is by reference made a part of this finding, as Exhibit C hereto. Said contract was partly performed and expenditures made and obligations incurred by plaintiff' upon the faith thereof prior to November 12, 1918; and' plaintiff was ready, able, and willing to continue and complete the performance thereof.
    XXIX. Under the terms of said contract G1805, the necessary additional equipment or facilities required by plaintiff for the performance of the contract were to be secured and installed by the plaintiff and were to be paid for by the Government up to a certain specified amount, title to such part as was paid for by the Government to vest in the United States. It being thought that delivery of some of these facilities could probably be secured sooner by the Government than by plaintiff, it was agreed between plaintiff and the Government that certain parts of them should be-ordered by the Government, which was done-.. . There was. much delay in securing the necessary additional facilities, both those ordered by the plaintiff and those ordered by the Government; and this delay in turn resulted in corresponding delay in the performance of the contract by plaintiff. It does not appear that such delay in the procuring of equipment was due to any fault on the part of either the plaintiff or the Government, further than that there was some delay by the Government at times in the inspection and approval of some of said equipment prior to its shipment for delivery to plaintiff’s plant.
    XXX. Said contract G1805 contained provision for its termination by the Government upon specified terms of settlement in the event of the termination or limitation of the war. The contract work not being completed at the time of the cessation of hostilities between the United States and Germany on November 11, 1918, operations thereunder were, under direction of the War Department, discontinued on or about December 20, 1918, except as to work necessary to complete products then in process of manufacture; and all work in performance of the contract ceased on or about December 31, 1918.
    XXXI. Prior to June 30, 1919, plaintiff presented to the Secretary of War its claim against the Government on account of the suspension and termination of said contract G1805, and under date of November 20, 1919, plaintiff entered into a formal contract for a partial settlement and payment to plaintiff on account of the termination of the contract. A copy of said settlement contract is attached to plaintiff’s original petition as a part of Exhibit C-2, which exhibit is by reference made a part of this finding.
    XXXII. In settlement with and securing release from certain of its subcontractors under said contract G1805, plaintiff, under authorization by the Government, made.settlement payments to subcontractors as follows:
    Johnson & Drake_$12,426.40
    Midway Engineering Company- 108. 80
    .Northwest Steel & Iron Company- 2, 707. 69
    There were also allowed by the Government District Claims Board the following subcontractors’ claims, required to be paid by plaintiff: ' '
    
      St. Paul Stamp Works_ $137.03
    Rogers, Brown & Company-1,148. 64
    It does not appear whether these last two claims have yet been paid by plaintiff.
    XXXIII. The necessary electrical power for the performance of said contract G1805 was furnished by the Northern States Power Company under the same contract under which it furnished power for the performance of plaintiff’s contract G787, as shown' by Finding VIII. If the $5,669.32 cost to plaintiff of the unused current for which it had to pay under said power contract on account of the termination of said contracts G787 and G1805 be apportioned between said contracts, the amount apportionable to this contract, G1805, is $3,061.44.
    XXXIV. Plaintiff had to employ borrowed money in purchasing and installing the increased facilities necessary for the contract work which were to be procured and installed by it and paid for by the Government, and also in meeting its operating expenses under the contract. Keim-bursement by the Government for expenditures made by plaintiff for the purchase and installment of such facilities and for its operating expenses under the contract were seldom made within ten days of such expenditures by. plaintiff and -were often delayed for several months thereafter.
    Interest at 6 per cent per annum on the amounts of said payments by plaintiff on account of increased facilities from the time of such payment by plaintiff to the time of plaintiff’s reimbursement by the Government amounted to $3,230.30.
    Interest at 6 per cent per annum on plaintiff’s expenditures for operating expenses from the time of such expenditures by plaintiff to the time of the Government’s payment of plaintiff on account of such expenditures would amount to $5,880.53..
    XXXV. In connection with the performance of said contract G1805, plaintiff made miscellaneous expenditures for which it has not been reimbursed or compensated by the Government, as follows:
    Miscellaneous operating costs and expenses, $3,604.77; traveling expense, $2,975.46; machining defective forgings, $820.22; demurrage, $42; photostatic copies of contract, $45; legal expenses, $1,575.37; miscellaneous services, $162.77; water service, $500; freight, switching charges, and die-liner material, $1,067.38; liability insurance, telegrams, etc., $651.95; expert account services, $737.83; and detective services in protecting its buildings and the equipment, materials, and products therein, $3,377.88, making a total of $14,822.80.
    XXXYI. Following the direction of the War Department for the suspension and termination of said contract G1805, and during the period of time from December 22, 1918, to February 28, 1921, the following expenditures were made by plaintiff in connection with the contract and its termination.
    1. Office pay rolls from January 1, 1919, to October 31, 1919, $3,999.34.
    2. Labor pay rolls from January 1, 1919, to October 31, 1919, $10,970.63.
    3. Sundry miscellaneous labor and material, $1,538.18.
    4. Carrying charges and expenses from October 15, 1919, to March 31,1920, such as guards for buildings and property therein, at the plant; liability insurance, labor for checking forgings, labor and material for installing clocks and other miscellaneous work, insurance on salvage material left on hand, shoveling snow, painting buildings, etc., $6,882.37, less $3,505.06 on account of errors in certain reimbursements to plaintiff, leaving $3,377.31.
    5. Compensation to expert accountants for services in the preparation of plaintiff’s claim against the Government on account of the termination of the contract by the Government, $4,307.66.
    It does not appear what portions of said expenditures were presented by plaintiff prior to June 30,1919, as a claim against the Government.
    XXXVII. In the performance of said contract G1805 and until the suspension of operations thereunder, plaintiff made 240,675 shell forgings. Under the terms of the contract plaintiff was to receive a base profit of 35 cents per forging, and if the actual cost of forgings should be less than $1.95 per forging, plaintiff was to receive an increased profit of 50 per cent of such saving in cost, but in no event was plaintiff’s maximum profit to exceed 60 cents per forging; but if the cost should exceed $1.95 per forging plaintiff was to share equally with the Government such excess cost, but in no event was plaintiff’s profit to be less than 25 cents per forging.
    It appears that the forgings above mentioned were made at an average actual cost of $1.8401 per forging, or 10.93 cents less per forging than the estimated cost of $1.95 specified in the contract. Fifty per cent of the aggregate savings on the forgings is $13,152.89. The base profit of 35 cents per forging on the total number of forgings produced aggregates $84,236.25. The Government has paid the plaintiff on account of said base profits and savings the sum of $63,-080.05, leaving an unpaid balance on account thereof amounting to $34,309.09.
    XXXVIII. Under date of January 21, 1921, the Ordnance Section of the War Department Claims Board submitted to plaintiff a final settlement contract for the settlement of all claims and matters between plaintiff and the Government on account of said contract G1805. This proposed settlement was not accepted by plaintiff, which thereupon appealed to the Secretary of War. On April 11, 1921, the Secretary of War affirmed and adopted the action of said War Department Claims Board and entered the same as the final action of the War Department in the matter. Plaintiff declined to agree to such final action or proffered settlement and rejected the same on or about April 20, 1921.
    XXXTX. On August 21, 1918, plaintiff entered into a contract with the Government whereby plaintiff agreed, for a compensation of $9 per shell, to machine, band, and attach base covers to 315,000 155 mm. high explosive shells, and to furnish suitable boxes, wooden nose plugs and grommets therefor, to cover them with an antirust compound, and to deliver them to the Government, all in accordance with certain plans and specifications specified in the contract. Said contract bore No. P13885-3411A, and will be referred to in these findings of fact as contract P13885. It is annexed to plaintiff’s original petition as Exhibit D and is by reference made a part of this finding.
    
      Said contract P13885 was not executed in the manner prescribed by law.
    XL. At the time of the cessation of hostilities between the United States and Germany, on November 11, 1918, expenditures had been made and obligations incurred by plaintiff in preparing for the performance of said contract P13886, but no work on said shells had been performed, and operations under the contract were, by direction of the Secretary of War, suspended on or about December 19, 1918, and not thereafter resumed.
    XLI. Prior to June 30, 1919, plaintiff presented to the Secretary of War a claim on account of said contract P13885, pursuant to which “ statutory awards,” one of June 27,1919, for an advance payment of $104,175.88, and another of November 26,1919, for an additional advance payment of $5,000, were made by the Government. Said awards and the terms of settlement of claims provided for therein were agreed to by plaintiff, and the said award of $104,175.88 was paid to plaintiff. A copy of said award of November 26, 1919, is annexed to plaintiff’s original petition as Exhibit D-2, and is by reference made a part of this finding.
    XLII. Prior to the suspension and termination of said contract plaintiff had entered into certain subcontracts with a number of business concerns for work or materials for the performance of the contract; and béing unable otherwise to. secure release from said subcontracts, plaintiff was authorized by the Government to pay said subcontractors amounts as follows in settlement of said subcontracts:
    National Tool Company_ $866. 06
    Hannafin Manufacturing Company.- 433. 64
    Manning, Maxwell & Moore_'- 116. 00
    A. R. Williams Machinery Company- 49, 701. 93
    General Electric Company_ 112. 67
    In all_ 50, 730. 09
    XLIII. Said contract provided that plaintiff should provide and install increased facilities for the performance of the contract work, for the cost of which, up to a maximum of $522,422, plaintiff was to be reimbursed by the Government, the facilities so paid for by the Government to become the property of the Government.
    
      Plaintiff expended for such increased facilities $155,-541.58, of which amount plaintiff was reimbursed by the Government the sum of $100,386.60, leaving an unreim-bursed balance of $55,154.98.
    Of said facilities paid for by and belonging to the Government, all were taken and removed by the Government after the termination of the contract, except certain electrical wiring and other things of a value of $15,000, which were left to plaintiff. Allowing this $15,000 to the Government, the unreimbursed balance of plaintiff’s expenditures for facilities is $40,154.98.
    XLIV. Plaintiff had to employ borrowed money in paying for the said increased facilities provided and installed by it for which it was to be reimbursed by the Government. Expenditures by plaintiff on this account were seldom reimbursed by the Government within 15 days, and reimbursements were .sometimes delayed for four or five months, the average delay being about 64 days. At the rate of 6 per cent per annum interest on these expenditures from the time they were made by plaintiff until plaintiff was reimbursed for them by the Government amounted to $545.82.
    XLV. Said contract provided that after the completion of the contract and removal of facilities belonging to the Government, the land and buildings occupied by said facilities should be restored by the Government to as good condition as obtained prior to the contract, subject only to reasonable wear and tear. The Government did not restore said land and buildings to the condition specified by the contract, and the reasonable cost of so restoring them is $3,590.
    XLVI. Said contract provided that the facilities belonging to the Government should be removed by the Government within one year after the completion of the contract. The Government did not begin the removal of said facilities until the expiration of a year after the termination of the contract. These facilities consisted in part of large machine tools and in part of piping systems, power transmission systems, shafting, and mechanical conveyors. Practically none of the machine tools were removed until June 1, 1920, and they were practically all removed by January 1, 1921. None of the piping systems, power transmission systems, shafting, and conveyors were removed until July 10, 1922, and their removal wag completed October 4, 1922. Nothing belonging to the plaintiff was in any of the area occupied by these facilities. The presence of these facilities entirely prevented the use by plaintiff of such buildings as were occupied by them, and also prevented the leasing of such buildings by plaintiff to others. The Government was repeatedly requested by plaintiff to remove such equipment.
    Between February 1, 1920, and June 30, 1920, or four months, the area thus occupied by the Government was 63,-487 square feet; between July 1, 1920, and March 30, 1921, or nine months, the area so occupied was 58,717 square feet; between April 1, 1921, and July 10, 1922, or fifteen and one-third months, the area so occupied was 52,597 square feet. The reasonable rental value of 6,968 square feet of this area was ten cents per square foot per annum, or $1,703.29 for the entire time so occupied; the reasonable rental value of the remaining area was twenty cents per square foot per annum of $24,133 for the entire time so occupied. The total reasonable rental value of the area so occupied by the Government during this period was $25,836.29.
    XLYII. After the suspension and termination of said contract, and during the years 1919 and 1920, plaintiff, at the request of the Government, furnished certain services and materials in listing and separating the plaintiff’s and the Government’s facilities in plaintiff’s plant and buildings and in caring for and disposing of said Government facilities. The cost to plaintiff of said services and materials, and of continuing overhead and other termination expenses chargeable to the termination of the contract, amounted to $27,-523.31. It does not appear what portion of this sum was presented by plaintiff to the Secretary of War prior to June 80, 1919, as a claim against the Government.
    XLVIII. After the suspension and termination of said contract, and during the years 1919 and 1920, plaintiff expended for expert accountant and other services and expenses in the preparation and presentation of its claim, against the Government on account of said contract, and its termination by the Government, the sum of $20,207.50. It does not appear what portion of this sum was presented by plaintiff to the Secretary of War prior to June 30, 1919, as a claim against the Government.
    XLIX. In order for plaintiff to get possession of certain buildings necessary for the performance of contracts G787 and P13885 and contracts supplemental thereto, it was necessary to evict certain tenants occupying some of plaintiff’s buildings. This was done by plaintiff and the Government, and the Government subsequently settled with said evicted tenants by payment direct to one of said tenants, and by payment to the others through plaintiff. In the transaction the Government erroneously charged $500 of said payments against plaintiff, and plaintiff has not been reimbursed said ■sum.
    L. On April 11, 1921, the Secretary of War made a final ■award on plaintiff’s claims under said contract P13885, which award was not acceptable to plaintiff and was rejected by plaintiff on or about April 20, 1921.
    LI. Prior to November 11, 1918, plaintiff and the Gov■ernment entered into certain contracts for the furnishing of certain special shells by plaintiff to the Government, which contracts were numbered P2113-1155A, and P2115-1157A. These contracts were, after November 11, 1918, duly suspended and terminated by the Government; and prior to June 30,1919, plaintiff presented its claims on said contracts to the Government. The Secretary of War awarded plaintiff $107.75 on contract P2113-1155A and $3,370.48 on contract P2115-1157A. Said awards were agreed to by plaintiff, but they have not been paid to plaintiff.
    LII. As set forth in Finding IY, plaintiff was paid by the Government under the statutory award of June 27, 1919, on its claim under the said contract G787, an advance allowance and payment of $232,225.87 on account of its claim ■under said contract; and the Government is entitled to a further credit of $5,626.86 against plaintiff on account of proceeds received by plaintiff from the sale by it, for the Government, of certain machinery belonging to the Government.
    
      LIII. Under date of June 27, 1919, plaintiff was paid bjr the Government an advance payment of $30,000.00 on account of its claim under the said contract G1805; and in addition to this sum the Government is entitled to a credit of $6,394.62 against plaintiff on account of certain reimbursements to plaintiff not applicable to any specific charges on plaintiff’s books against the Government.
    LIY. As set forth in Finding XLI, plaintiff has been paid the sum of $104,176.88 by the Government as an advance allowance and payment on its claim under the said contract P13885.
    LV. Subsequent to the suspension and termination of the said contracts between plaintiff and the Government, plaintiff purchased from the Government, for the sum total of $315,938.11, certain direct and indirect materials and facilities which had been purchased for the performance of the contracts and paid for bjr the Government. Of this sum the Government has been paid by plaintiff $100,722.65, leaving the sum of $215,215.46 unpaid by plaintiff.
    LYI. On August 13, 1918, after plaintiff and the Government had agreed upon the contracts involved in this suit, the Government made advance payment of $750,000 to plaintiff for use in the performance of the contracts. This advance payment was evidenced by plaintiff’s demand promissory notes for the amount thereof, and secured by a mortgage on plaintiff’s plant, and it ivas to be repaid by plaintiff by crediting the Government with certain percentages of the contract prices due plaintiff on deliveries by it of the contract products. The outstanding, or unpaid, balances of said advance payment were to bear interest during the current month of August, 1918, at the rate of 7 per cent per annum and thereafter at such rate or rates as the War Credits Board might from month to month determine. Credits to the Government on the contract prices for deliveries by plaintiff were first to be applied to reimbursement of the Government for the principal of said advance payment, and thereafter to its reimbursement for the accrued interest thereon; and in case the total amount of said advance payment, with accrued interest, should not be applied and credited on the payments due from the Government, or if plaintiff for any reason, Avliether from termination of the contracts by the Government or otherwise, should not furnish to the Government the supplies provided for by the contracts, the unpaid balance of said advance payment and interest should immediately be paid by plaintiff to the Government, after deducting therefrom the total of any credits due plaintiff on account of the said deductions from the contract prices of deliveries by plaintiff under the contracts, and all liquidated accounts that might be due and o wing under the contracts from the Government to plaintiff.
    The court decided that there was due the plaintiff the sum of $404,993.29, arrived at as follows:
    There had been paid by the plaintiff on the $750,000 advanced to it the sum of $588,085.86, leaving the sum of $166,914.14 unpaid as of February 1,1919. The court found due the plaintiff by the Government on February 1, 1919, the sum of $336,323.64 (Findings V, VI, X, XII, XV! XVIII, XIX, XXII, XXIV, XXXV, XXXVII, and XLII), thus leaving a balance due the plaintiff as of that date of $169,409.50, thereby more than paying the balance of the advance under the terms of the advance payment agreement. In addition to the said sum of $169,409.50, the court found due the plaintiff the sum of $235,583.79 (Findings VII, XX, XXI, XXV, XXXII, XLII, XLV, XLVI, XLVII, XLIX, and LI), making together the sum of $404,993.29.
    As to all other items the petition was dismissed.
    The Government having paid to plaintiff the sum of $592,638.69 (Findings LII, LUI, LIV, and LV), the court found a balance due by the plaintiff to the United States of $187,645.40, for which amount judgment was rendered against the plaintiff.
    
      
       Appealed.
    
   Hay, Judge,

delivered-the opinion of the court:

This is a suit brought by the plaintiff against the United States upon several contracts. The contracts were informal, and the plaintiff is relying for recovery upon the provisions of the Dent Act, 40 Stat. 1272.

A great many items are claimed by the plaintiff, and the United States claims that the plaintiff has been paid in full and files a counterclaim.

The court has disallowed some of the items of the plaintiff’s claim, and has found that the plaintiff is indebted to the United States in the sum of $187,645.40. The items which the court has disallowed amount to the sum of $363,180.89, and are set out in Findings VIII, IX, X, XI, XII, XIV, XVI, XVII, XIX, XXVI, XXXIII, XXXIV, XXXVI, XLIV, and XLVIII.

Findings VIII and XXXIII set out the claim of the plaintiff for power expense. The amounts paid by the plaintiff on this account were paid after the termination of the contract, and most if not all of it was used by the plaintiff in its commercial work. The plaintiff had a contract with the power company, which it could have canceled after the termination of its contract with the United States, and it was its duty to do so so far as the United States was concerned. This expense does not appear to be remuneration for expenditures, obligations, or liabilities necessarily incurred in performing or preparing to perform the contract.

Findings IX, X, XIII, XIV, and XVII deal with expenditures made by the plaintiff for tools and machine repair parts, facilities, patterns, drafting, and legal expenses. The claim is that if the contract had been completed the uncompleted portion would have absorbed the amounts claimed. Thus it appears in Finding IX that the plaintiff expended for tools and machine repair parts to be used in the performance of the contract the sum of $102,840.68, and it claims that if the contract had been completed the uncompleted portion would have absorbed $32,651.91 of the sum expended. When the contract was made a termination thereof was contemplated by the parties in the event of the ending of the war. The plaintiff must have anticipated the risks of this contingency. The plaintiff, when it entered into the contract, assumed this possible liability. The Government can not be called upon to recompense the plaintiff for a loss which after all can only be guessed at, as there is nothing to show what the salvage value of the tools and machine repair parts was. Moreover, to allow this claim would be in effect to allow anticipated profits, as in substance the contention is-that if the contract had been completed the profit on the completed units would have been greater, and to require the Government to pay it would be to increase the profit on these units to that extent. The Dent Act, upon which the plaintiff relies, especially prohibits the granting of prospective or possible profits.

As to the claim set out in Finding X, the same principle applies, and, furthermore, under the contract the Government was only obligated to expend $420,000 for increased facilities. If the plaintiff spent more it did so at its own risk. Barrett Company v. United States, No. A-107, ante, p. 343.

The claims set out in Findings XIII, XIY, and XVII are governed by the same principles as those which have been applied to the claim set out in Finding IX.

The claim set out in Finding XYI is, in our opinion, clearly one for anticipated profits and can not be allowed. Russell Motor Car Co. v. United States, 261 U. S. 514; Savage Arms Corporation v. United States, 57 C. Cls. 71, 85, 86; Meyer Scale and Hardware Co. v. United States, 57 C. Cls. 26, 51; Duesenberg Motors Corporation v. United States, 260 U. S. 115, 124, where it is said by the court, “ It was the abrupt and unexpected suspension of hostilities and the declaration of an armistice that was the cause of loss to the contractor, and the disappointment of profits from its contracts which it was preparing to realize and would have realized. But it took that chance and has not now a legal claim against the Government for reimbursement of its outlays.” And this principle applies with equal force to the items of profits heretofore discussed.

The items disallowed in Finding XIX are items of ten per cent on claims disallowed in Findings IX, X, XIII, XIV, XVI, and- XVII, and the same principles are applicable.

Findings XXVI and XLVIII are claims for expert accountant and other services and expenses in the preparation and presentation of the claims of the plaintiff against the Government on account of its contracts and their termination by the Government. It seems to us that the mere statement of this claim is enough to refute it. There is certainly nothing in the contract which can justify holding the Government liable for expenses incurred by the plaintiff in getting; ready to prefer its claim. If such a charge is to be allowed, then the Government has the same right and could with equal force insist upon being paid for any expense which it may have incurred in preparing and presenting its case against the plaintiff.

Finding XXXYI sets out items which may be denominated termination expenses. These items were not for “ expenditures and obligations or liabilities necessarily incurred in performing or preparing to perform” the contract. Nor were they made or incurred prior to November 12, 1918. The Dent Act can not be invoked to uphold a claim of this character. Price Fire & Water Proofing Company v. United States, 261 U. S. 179, 183.

Findings XI, XXXIY, and XLIY set out items of interest which the plaintiff claims. Section 177 of the Judicial Code provides: “ No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims unless upon a contract expressly stipulating for the payment of interest.” See Tillson v. United States, 100 U. S. 43. No interest was stipulated in the contract. Section 2 of the Dent Act, which confers jurisdiction upon this court to “ find and award fair and just compensation,” can not be construed to repeal section 177 of the Judicial Code. The Dent Act is in effect a jurisdictional act granting rights to persons who without it would have no rights, and it can not be regarded as taking all the cases for which it provides out of the usual rule. It does not confer upon the court a discretion, “but the same principles of jurisprudence and the same statutory regulations as to practice are to be applied here that would be if the case had come into the court under its general jurisdiction.” Williamson Heater Co. v. United States, 58 C. Cls. 63, 72; Austin Co. v. United States, 58 C. Cls. 98, 137.

We have allowed the plaintiff the items set out in Findings XXY and XLVII. These items are not allowed under the Dent Act, for they were not made or incurred prior to November 12, 1918; but the plaintiff furnished the services and materials at the request of the Government, and the plaintiff is entitled to recover the said sums for the services performed and the materials furnished.

The jsetition of the plaintiff must be dismissed, and a judgment will be entered in favor of the United States for the sum of $187,645.40.

GRAham, Judge; Dowxnx, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  