
    AMERICAN SMELTING AND REFINING COMPANY v. THE UNITED STATES.
    [55 C. Cls. 466; 56 id., 482; 259 U. S. 75.]
    Judgment was rendered in favor of the defendant in the court below. On plaintiff’s appeal the judgment was affirmed, and the Supreme Court decided:
    A contract made during war for war material to be delivered by & specified date, which was as early as delivery would be practicable under the circumstances, is within the exception of Rev. Stats, sec. 3709, dispensing with advertising for purchases when public exigencies require immediate delivery.
    The formalities of Rev. Stats., sec. 3709, are to protect the United States, and not the seller.
    The fact that an offer and an acceptance by correspondence are both made in express contemplation of a more formal document to follow does not prevent their constituting a contract.
    At a time when the price of copper to the Government was fixed under act of August 29, 1916, c. 418, sec. 2, 39 Stat. 649, at 234 cents per pound, plaintiff received from the War Department a proposal in writing for delivery of a stated amount at that price before a certain date under shipping orders to be supplied by the department and accepted it in writing at the department’s request and upon its advice that no payment could be made without such acceptance. Held, (a) A contract, and not a requisition under the national defense act of June 3, 1916, c. 134, sec. 120, 39 Stat. 213, which authorized, in addition to purchase, the obtaining of material by compulsory orders, for a fair and just compensation. (1») The plaintiff, having completed deliveries after alleged delays in shipping orders and after the Government price had been increased under the act of Aug. 29, 1916, supra, could not in respect of such deliveries claim freedom from the contract because of such delays and recover the difference between the new and contract prices upon the theory that the deliveries were compulsory. and called for a fair compensation under the national defense act and the fifth amendment, (c) Damages for the Government’s delay in performing could not be had upon a petition framed on the theory of a compulsory requisition, (d) The case was not within the act of March 2, 1919, c. 94, 40 Stat. 1272, authorizing relief to contractors furnishing supplies under agreements not executed in the manner provided by law.
   Mr. Justice Holmes

delivered the opinion of the Supreme Court May 15,1922.  