
    JARDINE MINING COMPANY v. THE UNITED STATES
    No. 48890.
    Decided September 30, 1953.
    Defendant’s motion for new trial granted and opinion amended December 1, 1953
    
      
      Mr. Russell E. Smith for the plaintiff.
    
      Mr. Carl Eardley, with whom was Mr. Assistant Attorney Generad Warren E. Burger, for the defendant.
   Howell, Judge,

delivered the opinion of the court:

This suit was brought under the War Contract Hardship Claims Act, known as the Lucas Act, 60 Stat. 902, as amended by 62 Stat. 869, 992, 41 U. S. C. (Supp. Y) § 106 note, to recover the net loss alleged to have been sustained by plaintiff in the performance of Government contracts between September 16,1940, and August 14,1945.

By order of the court dated 'March 6, 1950, the case was referred to a Commissioner for the limited purpose of taking evidence and making findings on the question of the plaintiff’s request for relief. The issue now before the court for decision is whether or not the record establishes that plaintiff had on file with the department or agency concerned a request for relief within the meaning of the Act.

It is defendant’s position that the documents relied on by plaintiff were not sufficient to apprise the contracting agency that it was being asked to grant plaintiff relief as a matter of grace. Fogarty v. United States, 340 U. S. 8.

Plaintiff is a mining corporation doing business in the State of Montana. In April 1942, the Bureau of Mines of the Department of the Interior wrote to plaintiff concerning the availability and cost of white arsenic ore in the vicinity of plaintiff’s mines at Jardine, Montana. Plaintiff replied that all of its ore contained a concentration of from one to two percent arsenic; that it could probably produce about two million pounds of white arsenic, 99.9 percent pure, per annum, at an estimated cost of 5 cents per pound. Plaintiff stated that it had not treated its ore to recover arsenic since 1936 because of the low market price for arsenic and that it would cost approximately $15,000 to repair its equipment in order to resume arsenic production.

In May 1942, the War Production Board wrote to plaintiff and asked if plaintiff would proceed with the rehabilitation of its plant if a satisfactory arrangement could be made for the purchase of its arsenic output. In June 1943, the War Production Board wrote to the Secretary of Commerce requesting that Metals Reserve Company be authorized to negotiate with plaintiff for arsenic production for resale in accordance with allocation directives from the Chemicals Division of the War Production Board.

On June 17, 1943, plaintiff entered into a contract with Metals Reserve Company for sale and delivery to Metals Reserve of 10,000,000 pounds (5,000 tons) of refined white arsenic for a total price of $600,000. The contract provided in a clause entitled “Delivery Schedule” (Finding 6) for two separate and distinct delivery periods. One-half of the contract quantity of arsenic was to be delivered within 18 months from the date of the execution of the contract, or by December 17, 1944, and the balance to be delivered within the next ensuing 12 months, or by December 17, 1945.

The contract provided that shipments were to commence on or about January 1, 1944, after completion of the mill construction and the installation of the necessary facilities, and were to be at the rate of approximately 400,000 pounds per month. It also provided :

However, it is hereby understood and agreed that the quantities, as set forth in the above entitled paragraph “Delivery Schedule” shall be shipped within the periods of time, as therein specified. * * *

A “Force Majeure” clause provided that where there was a prevention of or delay in the performance of the contract for some disabling reason beyond the control of either party, the party affected would be entitled to a suspension of the agreement. This clause also provided:

Nothing contained in this paragraph shall be construed to permit Seller to make up any deficiencies in the delivery schedule, contrary to the paragraph entitled “Special Conditions.”

The above-mentioned “Special Conditions” clause provided that time was of the essence in the contract and that- any deficiencies resulting from failure by seller to deliver the arsenic called for in the first or 18-month delivery period, could not be made up by deliveries in the succeeding second or 12-month delivery period.

The contract also contained the following cancellation provision:

Notwithstanding any other provision hereof, Buyer may cancel this Contract, without payment of any damages or penalties for such cancellation, with respect to any material remaining undelivered after January 1, 1946.

Plaintiff borrowed $500,000 from the Smaller War Plants Corporation, the loan being secured by a mortgage upon the real and personal property of plaintiff. Metals Reserve Company consented to an assignment by plaintiff to Smaller War Plants Corporation of the proceeds to become due plaintiff under the contract.

On March 15,1944, plaintiff wrote to Metals Reserve Company and advised that office that because of difficulties encountered in securing the necessary materials to rebuild the refined arsenic furnace, and the fact that the frozen condition of the ground made it impossible to lay the foundation, shipments of arsenic under the contract could not begin before July 1944. Pointing out that the causes of the delay were beyond the seller’s control within the meaning of the contract’s “Force Majeure” clause, plaintiff stated that it would require an extension of time to perform under the provisions of the contract. This letter was acknowledged by Metals Reserve on March 31, 1944, in a letter which said nothing about whether or not the extension of time would be granted, but which did state as follows:

You understand, of course, that these delays do not operate to alter the terms of the provisions “Delivery Schedule” and “Special Conditions’’ of the contract nor to extend the final termination date thereof.

On December 14,1944, three days before the end of the first delivery period, plaintiff wrote to Metals Reserve Company stating that serious delays beyond the control of plaintiff had prevented delivery of all the arsenic called for in the first contract period and that all the funds borrowed from Smaller War Plants bad been expended plus about $156,000 of private capital. The letter concluded with the following:

In view of all the circumstances involved, we respectfully request that a bi’oad and liberal interpretation be made of the provisions of the contract and that the time of delivery of the balance of the 5,000 tons of refined arsenic be extended to enable Jardine Mining Company to deliver all of the arsenic contracted for, regardless of the time involved, and without loss.

On the same day, Smaller War Plants also wrote to Metals Eeserve. In that letter Smaller War Plants pointed out that under the terms of the contract, Jardine was obligated to deliver 2,500 tons of arsenic by December 17, 1944, and another 2,500 tons by December 17,1945, “these two provisions being separate.” The letter also contained the following statement:

We are writing you this letter ahead of the expiration date for delivery of the first 2,500 tons with the hope that you will consider favorably the request of the Jardine Mining Company for a suspension of the contract for the period of time which they have lost through circumstances beyond their control. We hope the “force majeure” clause of the contract may be interpreted so as to permit the Jardine Mining Company to complete the contract for the delivery of the 5,000 tons of arsenic as agreed upon after they have solved the metallurgical problems with which they have been confronted.

The letter also stated that unless plaintiff was permitted to deliver all the arsenic called for in the contract, the Government would lose the money loaned to plaintiff. In a similar letter of the same date to the War Production Board, Smaller War Plants noted that one-half of plaintiff’s contract was about to expire and ashed WPB to help in “getting the contract extended” since it was assumed that Metals Eeserve would look to WPB for a recommendation. Smaller War Plants then expressed the “hope that a plan can be worked out under which the company will be permitted to carry on and produce the arsenic as called for in the contract.”

On January 3, 1945, WPB wrote to plaintiff stating that its failure to fulfill the 2,500-ton portion of its contract during the first delivery period did not affect those provisions of the contract specifying purchase and delivery of a like amount during the year 1945, i. e., the second delivery period. WPB stated that it could not recommend to Metals Reserve that the contract be extended beyond the contract expiration date and into the year 1946. On January 5, 1945, Metals Reserve again wrote to plantiff and stated that it was not inclined at that time to act favorably upon plaintiff’s request of December 14, 1944, and that the terms and conditions of the contract remained in full force and effect.

As of the termination date specified in the contract, December 17,1945, plaintiff had delivered only 127 tons of the 5,000 tons of arsenic called for. On January 4, 1946, Reconstruction Finance Corporation, as successor to Metals Reserve Company, wrote to plaintiff advising that the contract was cancelled as to the undelivered portion under the “Cancellation” provision of the contract.

It is defendant’s position that plaintiff’s letter of December 14,1944 to Metals Reserve requesting that it be permitted to deliver all of the arsenic contracted for “regardless of the time involved, and without loss” is a request for an extension of time under the provisions of the contract, presumably the “Force Majeure” clause, and as such is not a request for extra-legal relief, citing T. Calvin Owens v. United States, 123 C. Cls. 1.

Under the circumstances of this case we cannot agree with defendant’s argument. Plaintiff’s letter of March 15, 1944 called defendant’s attention to the “Force Majeure” clause of the contract and the fact that work under the contract was going to be delayed at least four months for reasons beyond plaintiff’s control. In its reply to that letter, defendant warned plaintiff that such delays would not operate to alter plaintiff’s obligation to deliver the specified amounts in each contract period and that any amounts not delivered in the first period might not be made up in the second. This would mean, of course, that if plaintiff did not deliver 2,500 tons in the first period, it could not under any circumstances deliver all of the arsenic called for under the contract.

When plaintiff wrote its later letter of December 14,1944, the time allotted by'the contract for the first period deliveries was about to expire and plaintiff had delivered only a small part of the 2,500 tons of arsenic called for in that period. Plaintiff knew that in defendant’s opinion, at least, the provisions of its contract would not permit plaintiff to do what it was asking in that letter, i. e., to deliver the undelivered portions of the 2,500 tons called for in the first period during the second period so that plaintiff could ultimately deliver to defendant all of the 5,000 tons called for in the contract. Plaintiff had not previously disputed defendant’s interpretation of the “Special Conditions” clause in the contract and it did not, in the letter of December 14,1944, contend that such interpretation was wrong. We think that in asking for a “broad and liberal interpretation” of the contract to the end that all of the 5,000 tons of arsenic might be delivered, plaintiff was asking defendant to waive the contract requirements contained in the “Special Conditions” clause. This same impression is gained from the letter of December 14, 1944, from Smaller War Plants to WPB in which it was stated that the writer hoped that a plan might be worked out whereby all the arsenic contracted for might be delivered.

By December 1944, there was apparently no question in the minds of anyone concerned but that plaintiff would suffer losses if it was prevented from delivering all the arsenic called for. The total contract price was $600,000. As of December 14,1944, plaintiff had expended all of the $500,000 Smaller War Plants loan and an additional $156,000 of private capital in its attempts to fulfill the contract. Plaintiff so advised defendant in the December 14th letter.

In the Owens case, supra, relied on by defendant, the contractor was clearly entitled to the extensions of time requested under the provisions of his contract and the extensions asked for were in fact granted by defendant as relief under the contract. In the instant case, the letters of December 14, 1944 were written to defendant after defendant had stated that no circumstances would permit the delivery during the second delivery period of arsenic which should have been delivered in the first. We need not decide whether, had plaintiff asked for an extension of time for the first delivery period (which was 18 months), they would have been entitled to it under the provisions of the “Force Maj eure” clause. What plaintiff did ask for in the December 14th letter was that it be permitted to deliver the balance of the first-period arsenic during the second period and that it be allowed to deliver all the arsenic called for by the contract regardless of when. We think that under no valid interpretation of the contract could this be considered a request for legal or contract relief.

Under the Government’s interpretation of plaintiff’s contract, particularly the “Special Conditions” clause, the only way it could have allowed plaintiff to do what it wished, was by a modification of the contract without consideration. This defendant might have done had it felt that such modification would benefit the Government in its efforts to further the prosecution of the war. It is clear from defendant’s later letters that defendant did not believe such an amendment would be of benefit to the war effort since in WPB’s letter of January 3,1945 to Smaller War Plants, WPB noted that the arsenic supply and demand situation was fairly well in balance for the year 1945, and this meant that there might well be no necessity for the delivery of even a substantial portion of the arsenic contracted for. (Finding 19.)

Under all the circumstances, we think defendant was clearly on notice by plaintiff’s letter of December 14, 1944, that plaintiff was requesting relief outside the terms of its contract and as a matter of grace. Accordingly, plaintiff had on file with a war contracting agency of defendant, prior to August 14, 1945, a request for relief from losses within the meaning of Section 3 of the Lucas Act.

[The case is remanded to a commissioner of this court for further proceedings.]

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

FINDINGS OF FACT

The court having considered the evidence, the report of Commissioner Currell Vance, and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiff is a corporation organized and existing under the laws of the State of Montana, with its principal place of business located at Jardine, Montana.

2. On April 27,1942, the Bureau of Mines, Department of Interior, wrote plaintiff concerning the availability and cost of white arsenic ore in the vicinity of plaintiff’s mines at Jardine, Montana.

3. On April 30,1942, plaintiff replied, stating that it had not treated its ores to recover arsenic since 1936 owing to low market prices; that all of the ore mined contained arsenic in a concentration of from one to two percent; that present underground developments indicated an ore reserve of about 650,000 tons; that it could probably produce about two million pounds of white arsenic, 99.9 percent pure, per annum at an estimated cost of 5 cents per pound; and that it would cost approximately $15,000 to repair its equipment to resume arsenic production.

4. On May 27, 1942, the War Production Board wrote plaintiff and inquired:

If arrangements could be made for the purchasing of your arsenic output at a satisfactory price, would you be prepared to proceed with the rehabilitation of your plant and if so what price would you consider necessary and what term of contract would justify your proceeding?

5. On June 7, 1943, the War Production Board wrote the Secretary of Commerce requesting that Metals Eeserve be authorized to negotiate with Jardine, for arsenic production for resale in accordance with allocation directives, from the Chemicals Division of the War Production Board.

6. On June 17,1943, plaintiff entered into a contract with the Metals Eeserve Company for the delivery to the Metals Eeserve of 10,000,000 pounds of refined white arsenic. With respect to deliveries the contract provided:

Delwery Schedule
Deliveries of the material deliverable hereunder shall be made in accordance with the following schedule:
(a) Not less than 5,000,000 pounds to be delivered within 18 months from date of execution of this Contract; and
(b) 5,000,000 pounds to be delivered within the nest ensuing 12 months; such ensuing 12 months’, period to commence 18 months after the date of execution of this Contract.
Shipments
Shipments of the material shall commence approximately January 1, 1944 (after completion of mill construction and the installation of necessary facilities) at the rate of approximately 400,000 pounds per month. However, it is hereby understood and agreed that the quantities, as set forth in the above entitled paragraph “Delivery Schedule” shall be shipped within the periods of time, as therein specified. * * *

The Special Conditions of the contract provided as follows:

It is hereby understood and agreed between Buyer and Seller that time is of the essence in this Contract and any deficiencies resulting from failure by. Seller to deliver material in accordance with the provision “(a)” of the paragraph entitled “Delivery Schedule”, cannot be made up by deliveries under the provision “ (b) ” of said paragraph “Delivery Schedule.”

The Force Majeure clause of the contract provided in part:

* * * A suspension of performance pursuant to this clause shall not have the effect of abrogating the agreement, but immediately upon the termination of the cause of disability all the provisions thereof shall again come into full force and effect and the time of performance of the agreement shall be extended for a period equal to the period of suspension, but in no event shall such extended period be of longer duration than the unexpired term of the agreement at the time of suspension. Nothing contained in this paragraph shall be construed to permit Seller to mate up any deficiencies in the delivery schedule, contrary to the paragraph entitled “Special Conditions.”

The cancellation provision of the contract provided:

Notwithstanding any other provision hereof, Buyer may cancel this Contract, without payment of any damages or penalties for such cancellation, with respect to any material remaining undelivered after January 1, 1946.

7. Plaintiff borrowed the sum of $500,000 from the Smaller War Plants Corporation and was indebted to said corporation for that amount plus some items of interest as of December 14, 1944. This indebtedness was secured by a mortgage upon the real and personal property of the plaintiff.

8. The Metals Reserve Company was at all times advised of the existence of the obligation of the plaintiff to the Smaller War Plants Corporation as indicated by letter from Metals Reserve Company, dated June 25, 1943, to Smaller War Plants Corporation, reading as follows:

Re: Arsenic Contract (MRC-1 P-2095 Jardine Mining Company).
Reference is made to your letter dated June 24, 1943, relative to assignment of the captioned contract by Jar-dine Mining Company.
In view of the fact that Smaller War Plants Corporation, acting in a governmental capacity in the interests of the war effort, contemplates a loan to the Jardine Mining Company please be advised that Metals Reserve Company will consent to assignment of proceeds due to Jardine Mining Company as Seller, under the aforesaid contract, to Smaller War Plants Corporation as security, upon notice by Seller to this Company of such assignment.

9. On March 15, 1944, the Jardine Mining Company, through its president wrote a letter to the Metals Reserve Company asking for relief from the delivery schedules con-iained in the contract under the “Force Majeure” terms of the contract, which read as follows:

Re: MRC-7 P-2095 (Arsenic).
Enclosed herewith find copy of your letter of February 15th, 1944, acknowledged and confirmed, as provided therein.
With reference to the above mentioned contract:
We wrote you on December 28, 1943, attention of Mr. M. E. Miller, Traffic Manager, that we expected to begin shipments of refined arsenic during April, 1944. This schedule must be modified and extended, because of acts of nature, over which we have no control, but which are provided for in the paragraph of said contract, designated “Force Majeure”.
Materials for rebuilding our refined arsenic furnace could not be delivered at Jardine before January 1944. At that time the ground on which said furnace is to be erected, was frozen to considerable depth, making it impractical to lay the foundation thereof, lest subsequent thawing this spring buckle it, thus _ causing severe damage to the furnace itself, or rendering furnace useless. Materials and equipment for building the refining furnace are stored and we are ready to begin building as soon as the frost is out of the ground. This is not expected before early May and it will take about six weeks thereafter to complete the furnace. Therefore, we will not be able to ship refined arsenic under our contract before July 1944.
The crude section of the arsenic plant has been operating since February 14th and low grade crude is being accumulated. It will be accumulated and stockpiled until the refining furnace is ready to treat it.
We regret this delay, of course, but the acts of nature, over which we have no control, have, in effect, delayed the commencement of refining arsenic to fulfill said contract, by approximately four months.

I,0. In reply to the letter quoted in the preceding finding, Metals Reserve Company advised plaintiff as follows by letter dated March 31,1944:

Re: Contract No. MRC-1 P-2095 (Arsenic).
Receipt is acknowledged of your letter of March 15, 1944, advising among other things, that you will be unable to ship refined arsenic under the captioned contract before July, 1944, because of delays encountered in rebuilding your furnace as a result of conditions stated to be beyond your control.
Thank you for advising us with respect to this matter. You understand, of course, that these delays do not operate to alter the terms of the provisions “Delivery Schedule” and “Special Conditions” of the contract nor to extend the final termination date thereof.

II. On December 14, 1944, the Jardine Mining Company, by its president, wrote the following letter to the War Production Board:

Re: Contract 5000 tons refined arsenic between Metals Reserve Co. and Jardine Mining Co. June 17, 1943.
The above mentioned contract was entered into at the request of War Production Board.
Attached hereto is a copy of letter addressed to Metals Reserve Co., in connection therewith.
In view of the fact that the production of arsenic by Jardine Mining Company was, as confirmed, for the war effort, we respectfully request that War Production Board cooperate with Jardine Mining Company and Smaller War Plants Corporation, to tibe end that none of the parties to the contract and loans be adversely affected.

12. On December 14, 1944, the Jardine Mining Company wrote the Metals Reserve Company the following letter:

Re: Contract 5000 tons refined arsenic. P-2095. Dated June 17, 1943.
We wish to advise you that the operations of Jardine Mining Company to fulfill the above mentioned contract, which was entered into at the request of War Production Board, have met with serious delays and interruptions, all of which have been beyond the control of our Company.
Our efforts to fulfill said contract have been very costly. The sum of $500,000 furnished by Smaller War Plants Corporation, on approval by War Production Board, has been exhausted and in addition, about $156,000 mostly private capital. Recently Smaller War Plants Corporation donated the sum of $5,000 for research work in connection with our production.
In view of all the circumstances involved, we respectfully request that a broad and liberal interpretation be made of the provisions of the contract and that the time of delivery of the balance of 5,000 tons of refined arsenic be extended to enable Jardine Mining Company to deliver all of the arsenic contracted for, regardless of the time involved, and without loss.

13. On or about December 14, 1944, William H. Hax, President of the Jardine Mining Company, conferred with 'officials of the Smaller War Plants Corporation concerning the possibility of plaintiff’s contract being cancelled by reason of nondelivery under the terms of the contract. Following this conference, on December 14, 1944, the Smaller War Plants Corporation wrote a letter to the Metals Reserve Company which read as follows:

Under the terms of the contract of June 17,1943, between Metals Reserve Company and the Jardine Mining Company, of Jardine, Montana, for the production of arsenic, the Jardine Mining Company agreed to deliver 2,500 tons of refined arsenic by December 17, 1944, and another 2,500 tons by December 17,1945, these two provisions being separate.
We are writing you this letter ahead of the expiration date for delivery of the first 2,500 tons with the hope that you will consider favorably the request of the Jardine Mining Company for a suspension of the contract for the period of time which they have lost through circumstances beyond their control. We hope the “force majeure” clause of the contract may be interpreted so as to permit the Jardine Mining Company to complete the contract for the delivery of the 5,000 tons of arsenic as agreed upon after they have solved the metallurgical problems with which they have been confronted.
The Smaller War Plants Corporation, on recommendation of the War Production Board, made a loan to the Jardine Mining Company in the amount of $500,000, carrying the provision that the receipts from the arsenic contract would be utilized for the payment of the obligation. The purposes of the loan were to enable the company to develop and equip its properties and plants so as to be able to fulfill the arsenic contract.
The Company employed the best talent available. It engaged the services of Dr. Francis A. Thomson, President of the School of Mines at Butte, who prescribed the metallurgical treatment and furnished the design of the furnace. The company employed an experienced arsenic man from the staff of the Bureau of Mines to superintend production and every effort was made to produce the arsenic called for by the contract. Metallurgical dif-culties apparently not previously encountered in the industry have, however, made it impossible to get efficient production under way. The Smaller War Plants Corporation has contributed $5,000 for the employment of a very highly skilled engineer who is now undertaking to solve these problems and it is our understanding that there is a promising prospect of solving these metallurgical problems soon.
If the contract is canceled, however, the government money loaned to the Jardine Mining Company will be lost, and it is our hope that Metals Reserve Company will make it possible for the Jardine Mining Company to continue its efforts and eventually produce the 5,000 tons of arsenic which the present contract calls for.
We enclose copy of our letter to the War Production Board requesting their assistance, and the Board of Directors of the Smaller War Plants Corporation will greatly appreciate the cooperation of Metals Reserve in this important matter.

14. Following the conference between William H. Hax and officials of the Smaller War Plants Corporation, the Smaller War Plants Corporation wrote a letter dated December 14,1944, to the War Production Board as follows:

We have written the Metals Eeserve Company asking that special consideration be given the request of Jar-dine Mining Company, Jardine, Montana, for an extension of their contract tor the production of arsenic for the war effort. We enclose copy of our letter to the Metals Eeserve which recounts the efforts of the company to meet its obligation and our assistance in the form of a loan for $500,000 to help the company to develop, remodel and enlarge its properties and plants so as to fulfill the contract.
The company has employed experts and expended the money in accordance with the recommendations of those experts, but because of difficulties beyond its control it has been unable to get into quantity production. One-half of the contract expires on December 17, 1944, and the purpose of this letter is to ask your help in getting the contract extended. We assume the Metals Eeserve will look to the War Production Board for a recommendation. Smaller War Plants Corporation has recently contributed $5,000 for additional metallurgical research which promises to solve the problem. Insomuch, however, as the money loaned to the Jardine Mining Company has been expended for the purpose of enabling the company to meet this production, the government’s investment in the enterprise will be lost if the contract is terminated.
We shall greatly appreciate your attention to this important matter in the hope that a plan can be worked out under which the company will be permitted to carry on and produce the arsenic as called for in the contract after the present metallurgical problems have been solved. We believe such an arrangement would be to the best interests of the government and all concerned.

15. Following receipt of the Smaller War Plants Corporation letter of December 14, 1944, the Metals Eeserve Company on December 16, 1944, replied to said letter as follows:

In Mr. Gunderson’s absence I am acknowledging your letter of December 14 proposing that Metals Eeserve Company consider extension of its contract with the Jardine Mining Company for refined arsenic in view of certain delays which have occurred in the operation of the company.
We note that you have also written the War Production Board in this matter.
This is simply to advise you that your request is receiving our careful attention and that we will consult with the War Production in arriving at any decision.
However, we wish at this time to call your attention to the fact that under existing legislation our statutory right to pay subsidy prices for materials expires as of June 30,1945. The price paid the Jardine Mining Company is in excess of the OPA ceiling and, therefore, constitutes a subsidy. Our commitment already extends beyond June 30,1945 having been entered into prior to the adoption by Congress of the limitation referred to above.
’ At first glance this would appear, therefore, to constitute an obstacle to the further extension of the contract.

16. The War Production Board under date of December 18, 1944, replied to plaintiff’s letter of December 14, 1944, as follows:

This will acknowledge receipt of your letter of December 14 with respect to continuation of the Metals Reserve Company contract for arsenic with your Company.
We are in the process of reviewing the arsenic supply-demand situation, and at the conclusion of this study we will make suitable recommendation to Metals Reserve Company. Immediately a decision is arrived at we shall be glad to advise you.

17. On December 18, 1944, the War Production Board replied to the letter of December 14,1944, written by Smaller War Plants Corporation as follows:

This will acknowledge your letter of December 14 with reference to the Jardine Mining Company’s contract with Metals Reserve Company for the purchase of refined arsenic.
We are undertaking a review of the entire arsenic situation and outlook for 1945, on the basis of which we will be prepared to make suitable recommendations to Metals Reserve Company with respect to the suspension and continuation of the existing arsenic contract.
Immediately we have reached a decision on this matter I will be pleased to advise you.

18. On January 3, 1945, as further reply to the plaintiff’s letter of December 14, 1944, the War Production Board wrote the following letter:

This is with further reference to your letter to me of December 14 and my reply of December 18 with respect to your company’s contract for the delivery of arsenic during the years 1944 and. 1945.
The fact that the Jardine Mining Company failed to fulfill the 2500-ton contract with the Metals Eeserve Company calling for the delivery of this amount prior to December 31,1944, does not affect those provisions of the contract specifying purchase and delivery of a like amount during the year 1945.
While we recognize fully the production problems and difficulties encountered by you at your mine and plant, War Production Board cannot base a contract and purchase recommendation for the year 1946 on any grounds other than that of the arsenic supply-requirements situation, which for the year 1945 is fairly well in balance. Since it is impossible at this time to forecast either supply or requirements for 1946, we are unable to recommend to Metals Reserve Company that it extend your present contract into that year.
Some time about the middle of this year we will review the outlook for arsenic for the future and at that time determine whether War Production Board will be justified in securing arsenic output from your mine beyond the end of 1945.

19. On January 3, 1945, for further reply to the Smaller War Plants Corporation’s letter of December 14, 1944, the War Production Board wrote Smaller War Plants Corporation the following letter:

This is in further reference to your letter of December 14 and my reply of December 18 regarding the Jardine Mining Company’s contract with Metals Reserve Company for the purchase of refined arsenic during the years 1944 and 1945.
It is our understanding that the fact that the Jardine Mining Company did not fulfill the 2500-ton contract calling for the delivery of this amount to Metals Reserve Company prior to December 31, 1944, does not in any way affect that portion of the contract specifying purchase and delivery of a like amount during the year 1945. You will recognize that at the present time the Metals Reserve Company is awaiting Congressional action extending its authority and appropriations for the purchase of subsidized materials during the fiscal year 1945-46, so that until legislation effecting this has been passed by the Congress the Metals Reserve Company can legally fulfill its end of the contract only through June 30 of this year.
With respect to a new contract to extend from January 1, 1946, to December 31,1946, we do not feel justified at this time in making such a recommendation to Metals Reserve Company. The arsenic supply and demand situation is fairly well in balance for the year 1945, but it is impossible now to forecast either supply or requirements for 1946. We will be in a better position to do so some time about the middle of this year, at which time we will review the entire situation to determine the WPB justification for recommending to Metals Reserve Company that the arsenic contract be extended into the year 1946.

20. On January 5, 1945, the Metals Reserve Company replied to the plaintiff’s letter of December 14,1944, as follows:

Re: P-2095 (Arsenic).
Reference is made to your letter of December 14, 1944 requesting an extension of the delivery schedule set forth in the captioned contract between us.
Please be advised that after taking into consideration the facts in connection with the contract, this Company is not inclined, at this time, to act favorably upon your request.
Under the circumstances, the terms and conditions of the contract, of course, remain in full force and effect.

21. During the period between June 27,1943, and January 5, 1945, the War Production Board, Metals Reserve Company, and Smaller War Plants Corporation were all Governmental agencies of the United States.

22. By letter dated January 4, 1946, the Reconstruction Finance Corporation, as successor to Metals Reserve Company, wrote plaintiff the following letter:

Re: Contract No. MRC-1 P-2095 (Arsenic).
Reference is made to the captioned Contract dated June 17,1943 covering the purchase from you by Metals Reserve Company of not to exceed 10,000,000 pounds of refined white arsenic to be delivered not later than December 17,1945.
This is to advise that our records show that approximately 127 short tons of this material have been delivered under the captioned Contract. Under the terms of the “Cancellation” provision of the Contract Reconstruction Finance Corporation, as successor to metals Reserve Company, has the right to cancel it as to any material remaining undelivered after January 1,1946 and accordingly, the contract is hereby cancelled as to the undelivered portion thereof.

23. From June 17, 1943, the date of the contract with Metals Eeserve Company, until January 4, 1946, the date on which the contract was canceled by the Government with respect to the materials undelivered as of January 1, 1946, the plaintiff was only able to produce and to deliver to defendant one hundred twenty-seven short tons of arsenic for which it received the contract price of $15,267.84.

24. Plaintiff, following receipt of the letter of January 5, 1945, made no further request for an extension of time or other assistance until February 6, 1947. On February 6, 1947, plaintiff filed a claim with the Reconstruction Finance Corporation in the amount of $2,376,185 for alleged losses sustained under the contract.

By letter dated March 25, 1947, plaintiff was notified by the Reconstruction Finance Corporation that its claim had been denied. This letter reads as follows:

You have heretofore filed with Reconstruction Finance Corporation a claim in the amount of $2,239,139.33 for relief under Public Law 657, 79th Congress, and Executive Order 9786.
This will advise that your claim has been thoroughly considered and that same is hereby denied in its entirety. Neither the record submitted by you nor the files of Reconstruction Finance Corporation demonstrate that you had filed a written request for relief from losses with Reconstruction Finance Corporation or Metals Reserve Company on or before August 14, 1945. Hence, under Section 3 of Public Law 657, the claim you now tender is not entitled to consideration. In conference Mr. Stephen J. Angland, your attorney, advised that you consider your letter of December 14,1944 to Metals Reserve Company as tantamount to a written request for relief from loss. It was explained to Mr. Angland that this letter requested an extension of the time of delivery under Contract No. P-2095 with Metals Reserve Company for a period of time sufficient to enable you to deliver all of the material contracted for regardless of the time involved and without loss, and that such letter did not, in our opinion, meet the requirements of Section 3 of the statute. However, even if it be considered that this letter would constitute a satisfactory written request, the instant claim cannot be considered under Part II, Section 204 Executive Order 9786 since final action was taken on the request contained in said letter by this Corporation’s letter of January 5, 1945, denying the extension of time.
Moreover, as you know, Metals Reserve Company and Reconstruction Finance Corporation contracted for strategic and critical materials pursuant to recommendations of the War Production Board. The War Production Board would not in December 1944 or January 1945 recommend to Metals Reserve Company the contract extension desired by you since such action was not indicated by the arsenic supply situation then existing. The contract, which called for the delivery of 10,000,000 pounds of white arsenic at a price of 60 per pound, was never terminated for convenience or default but expired pursuant to its terms. Your claim indicates that over the period from June 17, 1943, the date of the contract, through January 1, 1946, its termination date, you delivered material having an aggregate value of $15,267.84. This represented your total deliveries against a contract having a commitment value of $600,000.
In view of the foregoing and apart from any other grounds of denial, Reconstruction Finance Corporation cannot find in any event that relief would have been granted under the First War Powers Act, 1941, on or befoi’e August 14, 1945 since it cannot reasonably be concluded that the prosecution of the war would have been facilitated by compliance with your request.
The Smaller War Plants Corporation loan is not a contract within the meaning of this statute, and we understand from Mr. Angland that we are in complete accord on this point. Whatever claims may have been filed by you with the War Department or any other agency are insufficient to constitute a written request for relief from Reconstruction Finance Corporation under Section 3 of Public Law 657.
In conclusion, we direct your attention to Section 6 of Public Law 657, which entitles the claimant dissatisfied with the action of a Government Agency in denying its claim to appeal within six months to a Federal District Court of competent jurisdiction.

25. On July 11,1947, plaintiff, under authority of Section 6 of the Act of August 7, 1946 (the Lucas Act), filed a petition in the United States District Court for the District of Columbia and subsequently on December 9, 1948, as authorized by Section 6 of the Lucas Act, as amended-June 25,1948, 62 Stat. 869, plaintiff’s claim was transferred from the United States District Court to the United States Court of Claims.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff had on file with a war contracting agency of defendant, prior to August 14, 1945, a request for relief from losses within the meaning of Section 3 of the Lucas Act. 
      
       This case was previously before the court on defendant’s motion to dismiss plaintiff’s alternative causes of action. In a decision dated January 3, 1950, 115 C. Cls. 279, the court denied defendant’s motion to dismiss the cause of action under the Lucas Act, and granted the motion with respect to plaintiff’s claim for damages for breach of contract.
     
      
       In our earlier decision herein, 115 C. Cls. 279-, we held that defendant’s cancellation of the contract in January 1946 as to the undelivered portions thereof, was not a breach of contract.
     
      
       Amended December 1, 1953.
     
      
       Amended December 1, 1953.
     