
    WAH CHANG CORPORATION v. THE UNITED STATES
    [No. 124-55.
    Decided October 5, 1960.
    Plaintiff’s motion for rehearing denied January 18, 1961]
    
      
      Thornton C. Land for the plaintiff. Stunner Ford, Stod-dard B. Colby, Charles T. Hall, and Breed, Abbott <& Morgan were on the brief.
    
      Howard O. Sigmond, with whom was Assistant Attorney General Perry W. Morton, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

This action is brought pursuant to Private Law No. 997, 83d Cong., 2d Sess., c. 1251, 68 Stat. A288 (1954), which provides:

That, notwithstanding any statute of limitations, lapse of time, or any prior court decision on this claim by any court of the United States, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment on the claim of Wah Chang Corporation against the United States for compensation for loss of property and for removal expenses incurred as a result of the acquisition in the year 1942 by the United States for military purposes of pier numbered 13, New York foreign trade zone, Staten Island, New York, which had theretofore been leased by said Wah Chang Corporation and upon which the said Wah Chang Corporation had erected and maintained a tungsten processing plant.

There is also a provision that “nothing contained in this Act shall be construed as an inference of liability on the part of the United States Government.” This provision, coupled with the legislative history, indicates clearly that the Congress did not intend to waive any defenses the Government might have to the plaintiff’s claim other than “any statute of limitations, lapse of time, or any prior court decision.”

The plaintiff is a corporation engaged in refining and concentrating tungsten ore. In December 1940, the plaintiff, acting through an affiliate or subsidiary company, leased a part of pier 13 at Staten Island, New York. The pier was owned by the City of New York, but was held by a corporation named the New York Foreign Trade Zone Operators, Inc., under an arrangement with the city. A plant for the processing and refining of tungsten ore was established on the leased space, with plaintiff furnishing the machinery, the engineers, and the technical management of the operation. This was plaintiff’s only plant. The lease provided that it should run until November 30, 1942, and thereafter could be terminated at the option of either party upon giving 60 days’ notice.

The Eeconstruction Finance Corporation (EFC), under the authority of section 5 of the Act of June 25,1940,54 Stat. 572, organized the Metals Eeserve Company and vested it with power to acquire tungsten and certain other strategic and critical materials. An acute shortage of tungsten existed in the year 1941, and it became necessary to purchase low-grade tungsten ore from South American countries and refine it in this country. Against this background the Metals Eeserve Company entered into a contract with the plaintiff on August 1, 1941, under the terms of which the plaintiff agreed to handle and process tungsten ore for Metals Eeserve. This tungsten ore was to be purchased in Bolivia and other South American countries by Metals Ee-serve and shipped to the plaintiff at its plant on pier 13 for treatment designed to eliminate the impurities and make it suitable for commercial use.

Metals Eeserve agreed that the plaintiff should realize on its contract $391,000 per year for the 3-year life of the contract. Included in this figure was $20 per ton, or $100,000 per year, for plant amortization. There was also allowed 8 percent per year interest on capital invested (a total of $49,200 over the 3-year period), in addition to the recovery of ordinary and necessary operating expenses.

For the $391,000 payment Metals Eeserve was entitled to the beneficiation (preparation for smelting) of 5,000 tons of ore. Payment was also to be made at the rate of $50 per ton for ore beneficiated in excess of 5,000 tons. Additional compensation, at the rate of $4 per ton, was allowed for the handling of all ores, including ores not requiring beneficiating.

The plaintiff, anticipating the successful conclusion of the negotiations with Metals Eeserve, sought the rental of additional space on the pier to accommodate the contemplated enlargement of the plant and the expanded operations. The additional space was turned over to plaintiff by the lessor on August 18, 1941. All the terms of the original lease, including the November 30,1942, expiration date, applied to the additional space. Thereafter the plaintiff commenced enlarging its plant and performing its contract with Metals Eeserve.

On February 7,1942, a petition in condemnation was filed at the request of the Secretary of War in the United States District Court, Eastern District of New York, for the acquisition, for a term of two years, of the use and occupancy of approximately 55 acres of land on Staten Island, including pier 13. The Army subsequently notified the plaintiff that its operation must be removed from pier 13 not later than October 1, 1942. The plaintiff asserts that the Government promised to pay the removal costs. The facts concerning this alleged promise, which is one of the bases for the plaintiff’s claim, will be discussed later in the opinion.

Faced with the order to remove its operations from pier 13, the plaintiff, on April 10, 1942, exercised an option to purchase a plant site at Glen Cove, Long Island, and on May 9,1942, submitted a plan to Metals Eeserve whereby the Defense Plant Corporation would buy plaintiff’s Glen Cove site, build a plant thereon, and rent it to the plaintiff. On June 16, 1942, the plaintiff and the Defense Plant Corporation (DPC) entered into an “Agreement of Lease,” in which it was agreed, among other things, that (1) DPC would purchase the Glen Cove site, (2) plaintiff would construct and equip the plant, (3) DPC would expend an amount not to exceed $360,000 (subsequently increased to $675,203.93) for the construction of the plant and the purchase of the site, (4) title to the site and the plant would be vested in DPC, (5) DPC would lease the site and the plant to the plaintiff, (6) plaintiff would have an option, on certain terms and conditions, to buy the site and the plant, and have the rent paid to DPC applied to the purchase price.

After completing the removal of its operations from the pier on September 17, 1942, the plaintiff continued to refine and process tungsten for Metals Reserve at the new Glen Cove plant. The Government stipulated in this case that plaintiff “incurred a loss in the sum of $130,877.16 in removing its machinery, equipment and material from the plant on Pier 13, Staten Island, New York, and that no part of such loss has been repaid to * * * [plaintiff] nor has it been otherwise reimbursed therefor * * The original August 1, 1941, contract with Metals Reserve was amended on February 15, 1943. On November 6, 1943, this contract, as amended, was revoked and a new contract was substituted. Thereafter, further contracts were entered into with Metals Reserve and the RFC extending into 1949. The plaintiff was paid over $2,700,000 for its services under these defense and wartime tungsten refining contracts with the Government; but the record does not indicate whether plaintiff made an over-all profit. The plaintiff ultimately purchased from DPC the Glen Cove plant, which it still owns.

The plaintiff’s claim against the United States arises out of the Army’s acquisition of pier 13 and consists of (a) the loss represented by the unamortized portion of the fixtures and equipment that could not be moved from the pier, and (b) the transportation, labor, and overhead costs incurred in removing from the pier to the Glen Cove site the movable portion of the fixtures and equipment.

The plaintiff has predicated its claim for relief on several independent grounds. They are: (1) The Government, through various departmental officials, promised to pay the expenses of removing the tungsten operation from the pier to a new location. (2) The Government is liable for the action of the War Department in obstructing and rendering more difficult the performance of plaintiff’s tungsten contract with the Government-owned Metals Eeserve Company. (3) The Government is liable as a condemnor for the loss of property and the expenses involved in removing the plaintiff’s tungsten operation.

1. The plaintiff has attempted to show that the Government promised, expressly and by implication, to pay the cost of removal. When the attention of the War Department, which instituted the condemnation proceeding, was directed to plaintiff’s tungsten contract, it advised plaintiff on February 11, 1942, that the plaintiff’s request to continue tungsten operations on the pier had been approved; and on February 25,1942, the War Department further advised that the length of time it would be permitted to stay had not as yet been determined, but that plaintiff would be promptly advised as soon as a decision was reached. Thereupon, several government agencies whose concern was the procurement of strategic materials and the financing of various aspects thereof, such as the War Production Board (WPB), the NFC, the Army and Navy Munitions Board (Munitions Board), the Defense Plant Corporation (DPC), and the Department of Commerce, gave consideration to the problem of the continuance of plaintiff’s operations. Accordingly, the Munitions Board, at the instance of the WPB, inquired of the War Department and the Army concerning the possibility of plaintiff’s being permitted to remain permanently upon the pier.

Subsequently, on March 10, 1942, the Munitions Board advised the WPB by memorandum that the Army had definitely determined that “in view of the urgent necessity for secrecy in regard to troop movements and the urgent need for this particular pier [13] for large vessels”, it was “absolutely essential to move this plant to some other location”, and that under the circumstances the Army felt that plaintiff’s plant was “of very minor proportions.” This memorandum further advised that the Munitions Board felt that “it would be to the interest of our war effort to expend a reasonable amov/at of money and more this enterprise to some other location” because of “the importance of tungsten * * * in our program.” [Emphasis supplied.] The memorandum concluded with the statement that “it was never the [War Department’s] intention to allow this enterprise to continue indefinitely but that they would be given a reasonable length of time in which to move the same to another location.” On March 27, the plaintiff’s president conferred with officials of the Munitions Board concerning the expenditure by the Government of a reasonable amount of money in moving the tungsten operations to another location. It was at this conference that the Chairman of the Munitions Board allegedly promised to pay the removal costs.

After considering the entire record, we are constrained to hold that the statements attributed to the Chairman of the Munitions Board did not constitute a promise to pay the removal costs but, rather, were merely an expression of willingness to assist the plaintiff in obtaining payment from the appropriate Government agency. The plaintiff was advised at the conference that the matter of reimbursement of removal costs was not within the Munitions Board’s jurisdiction; and the plaintiff’s subsequent communications to the Munitions Board, the War Department, and various other Government agencies, requesting assurances that the removal cost would be paid, clearly indicate that the plaintiff understood that no Government agency or official had in fact promised payment.

With respect to the alleged implied contract to pay removal costs, we cannot find adequate support in the record for the plaintiff’s contention that Government agents directed plaintiff to expand its plant on pier IS with knowledge of the losses that plaintiff might incur. Furthermore, the money expended by plaintiff subsequent to the commencement of the condemnation proceedings was not a substantial amount, and the record does not indicate whether this money was expended for plant expansion or was used merely for ordinary maintenance and upkeep.

Presumably, the plaintiff would have been justified in ceasing its tungsten operations under its contract with Metals Reserve when the condemnation proceedings were initiated in February 1942 (see Restatement, Contracts § 460 (1932)), and there can be no doubt that the Government accepted and paid for processed tungsten during plaintiff’s uninterrupted continuance of its operations on the pier until the middle of September 1942. But we do not believe that the Government thereby impliedly promised to pay the removal costs in addition to the consideration stipulated in the written contract with Metals Reserve. On the contrary, it is obvious that the plaintiff, by its repeated attempts to secure assurances that removal costs would be paid, understood that, although payment had been recommended by the Munitions Board, no Government agency had made any promises.

In addition, the record in this case shows that plaintiff relinquished any contractual rights it might have had to payment of removal costs. On May 9, 1942, the plaintiff proposed, as a solution to the problem raised by the condemnation, that the Government buy the plaintiff’s Glen Cove site, build a new plant thereon, and rent it to the plaintiff. In outlining this proposal, the plaintiff stated that “Wah Chang Trading Corporation will, of course, bear the cost of the removal of the plant facilities from Staten Island to Glen Cove and make claim therefor against the City of New York or the War Department with the help of your goodselves.” The clear implication of this statement is that if the proposal were accepted the plaintiff would forego any claims against the Government for removal costs, except those attributable to the Government in its capacity as a condemnor. The Government accepted the plaintiff’s proposal with this understanding.

2. This court has held that it is “an implied provision of every contract, whether it be one between individuals or between an individual and the Government, that neither party to the contract will do anything to prevent performance thereof by the other party or that will hinder or delay him in its performance.” George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 94 (1947). See also United States v. Peck, 102 U.S. 64 (1880); 6 Williston, Contracts § 1293A (Rev. Ed. 1937); Restatement, Contracts § 315. Unquestionably, from the standpoint of cause and effect the War Department’s condemnation of the pier rendered more costl\ plaintiff’s performance of the tungsten contract with Metab Keserve.

Within the rule that prevention of performance by thi other party constitutes a breach of contract there has been carved out the exception or qualification “that the United States as a contractor cannot be held liable directly or indirectly for the public acts of the United States as a sovereign.” Jones v. United States, 1 Ct. Cl. 383, 385 (1865). [Emphasis supplied.]

The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. * * * In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defendants. [Emphasis supplied.]

This doctrine received the approval of the Supreme Court in Horowitz v. United States, 267 U.S. 458 (1925).

As a practical test for determining the Government’s liability “whenever the public and private acts of the government seem to commingle,” this court has stated that

a citizen or corporate body must by supposition be substituted in * * * [the Government’s] place, and then the question be determined whether the action will lie against the supposed defendant. ;[For example], if the enactment of a law imposing duties will enable the claimant to increase the stipulated price of goods he has sold to a citizen, then it will when the United States are defendants, but not otherwise. (See Deming v. United States, 1 Ct Cl. 190 (1865).] If the removal of troops from a district liable to invasion will give the claimant damages for unforeseen expenses, when the other party is a corporate body, then it will when the United States form the other party, but not otherwise. This distinction between the public acts and private contracts of the government * * * we now desire to make so broad and distinct that hereafter the two cannot be confounded; and we repeat, as a principle applicable to all cases, that the United States as a contractor cannot be held liable directly or indirectly for public acts of the United States as a sovereign.

We do not believe it is unfair to deny the plaintiff any advantage from having the Government as its defendant, since it merely places the plaintiff on an equal footing with others whose non-Government contracts might also have been frustrated by the condemnation. The question of whether the Government is liable as a condemnor will be dealt with later in the opinion.

The plaintiff, while accepting the doctrine formulated in Jones v. United States and sanctioned by the Supreme Court in Horowitz v. United States, argues that the courts have interpreted Horowitz as inapplicable to isolated and non-general acts of sovereignty. It relies on the statement in Horowitz that

* * Whatever acts the Government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. * * * Though their sovereign acts performed for the general good may work injury _ to some private contractors, such parties gain nothing by having the United States as their defendants.” [Quoting from Jones v. United States, 1 Ct. Cl. at 384.]

Although the guidelines indicated here are not susceptible to mechanical application, we are persuaded that the temporary taking of the 55 acres on Staten Island, including plaintiff’s interest in pier 13, for the purpose of facilitating and guarding the secrecy of troop movements in time of war was a “public and general” act of sovereignty “performed for the general good” within the meaning of the Horowitz doctrine, and that under the circumstances it is impossible to say that the condemnation was “so arbitrary and unreasonable as to remove it from the category of sovereign acts which do not constitute breaches of implied terms in the contracts of the United States.” Ottinger v. United States, 123 Ct. Cl. 23, 48 (1952). See also Barnes v. United States, 123 Ct. Cl. 101 (1952); Borg-Warner Corp. v. United States, 117 Ct. Cl. 1 (1950), cert. denied 340 U.S. 946; J. B. McCrary Co. v. United States, 114 Ct. Cl. 12 (1949); Boss Electric Construction Co., Inc. v. United States, 111 Ct. Cl. 644 (1948).

The cases cited by the plaintiff in which this court granted recovery do not support a contrary result. In Sunswick Corp. v. United States, 109 Ct. Cl. 772 (1948), cert. denied 334 U.S. 827, the Government agreed in the contract to compensate the contractor for extra wages paid by a change order initiated by the Wage Adjustment Board. Cf. United States v. Binghamton Construction Co., 347 U.S. 171 (1954).

In Gerhardt F. Meyne Co. v. United States, 110 Ct. Cl. 527 (1948), the contractor sought to recover the cost of road maintenance made necessary by the Government’s closing of the entrance to a road over which the contractor had planned to haul its materials to the job site. This court, in granting relief, found that the Government made a “direct promise” in the contract specifications that the road was available and that plaintiff’s bid was based on this representation. We held in Qerhardt F. Meyne Co. that “Defendant cannot enter into a binding agreement that it will not exercise a sovereign power, but it can say, if it does, it will pay you the amount by which your costs are increased thereby.” This rule has no application to the case at bar, since we find that the Government did not in fact promise to compensate for the losses arising from the condemnation.

3. We now reach the question of whether the Government is liable under Federal condemnation law. The plaintiff filed a claim in the original condemnation proceeding, but it was subsequently withdrawn. This court is able to pass on that claim now only by virtue of the specific terms of the private act authorizing this suit. In considering this aspect of the case, we are confronted at the outset with the now well-settled rule that “when there is an entire taking of a condemnee’s property, whether that property represents the interest in a leasehold or a fee, the expenses of removal or of relocation are not to be included in valuing what is taken.” United, States v. Westinghouse Co., 339 U.S. 261, 261 (1950). This is but a variation of the rule against allowance for “consequential losses” in Federal condemnation proceedings. United States v. Petty Motor Co., 327 U.S. 372, 377-379 (1946). We find nothing in the act authorizing this suit which would indicate that the Congress intended to deny the Government the benefit of this rule. Since the Government took the whole of the plaintiff’s lease— which was to run only until November 30, 1942, with no right of renewal — it cannot be held liable as a condemnor for the “expenses of removal or of relocation.” Neither is the Government liable under Federal condemnation law for a frustration of plaintiff’s contract with Metals Reserve. Omnia Co. v. United States, 261 U.S. 502 (1923).

The parties apparently tried the case before the trial commissioner on the assumption that the plaintiff’s loss of property incurred as a result of the condemnation should be treated as one of the “expenses of removal or of relocation.” The Supreme Court, however, made it clear in United States v. General Motors Corp., 323 U.S. 373, 383-384 (1945), that a tenant’s property rights in “fixtures and permanent equipment” are distinct, not only from the “right of occupancy”, but from the “expenses of removal”.

Without question, the record shows there was a taking of the plaintiff’s right of occupancy and a temporary taking of the fixtures and equipment from the time plaintiff left the premises, September 17, until the expiration date of the lease, November 30, 1942, for which the plaintiff is entitled to compensation. United States v. General Motors Corp., 323 U.S. 373. On July 5, 1960, pursuant to order of reference, the parties filed a stipulation, which is contained in the Supplemental Report of the trial commissioner, whereby it was agreed that the value of plaintiff’s right of occupancy from September 17, 1942, to November 30, 1942, was $1,-196.71; and that the rental value of the fixtures and permanent equipment not removed, from September 17, 1942, to November 30, 1942, was $2,546.95. This stipulation on the question of valuation is adopted by the court.

Plaintiff is therefore entitled to recover the sum of $3,-743.66, and judgment will be entered for plaintiff in that amount, with interest thereon as part of just compensation at the rate of 4 percent per annum from November 30, 1942, to date of payment.

It is so ordered.

Dtjrfee, Judge; Laeamoee, Judge; Maddest, Judge, and Whitaker, Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner S. E. Gamer, and the briefs and argument of counsel, makes findings of fact as follows:

1. This action was brought on March 28, 1955, pursuant to Private Law 997, 83d Cong., 2d Sess., c. 1251, 68 Stat. A288 (1954), reading as follows:

An Act to confer jurisdiction upon the United States Court of Claims to hear, determine and render judgment on the claim of Wah Chang Corporation against the United States.
Be it enacted by. the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding any statute of limitations, lapse of time, or any prior court decision on this claim by any court of the United States, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment on the claim of Wah Chang Corporation against the United States for compensation for loss of property and for removal expenses incurred as a result of the acquisition in the year 1942 by the United States for military purposes of pier numbered 13, New York foreign trade zone, Staten Island, New York, which had theretofore been leased by said Wah Chang Corporation and upon which the said Wah Chang Corporation had erected and maintained a tungsten processing plant.
Sec. 2. Suit upon sucb claim may be instituted hereunder not later than one year after the date of the enactment of this Act: Provided, however, That nothing contained in this Act shall be construed as an inference of liability on the part of the United States Government.
Approved September 1, 1954.

2. Plaintiff is now, and at all times hereinafter mentioned was, a corporation duly organized and existing under the laws of the State of New York, having its principal place of business in New York City.

3. A lease, the term of which commenced on December 1, 1940, was entered into by National Reconditioning Company, Inc., an affiliate or subsidiary of plaintiff, with a corporation named New York Foreign Trade Zone Operators, Inc., for the occupancy by National of approximately 3,600 square feet of space on Pier No. 13, Stapleton, Staten Island, New York. The pier was owned by the City of New York, and held by the Foreign Trade Zone Corporation under an arrangement with the City. The lease recited that National was to use the space “for the manipulation of Tungsten Ore.” Both National and plaintiff were in the business of processing and refining tungsten ore. The lease provided:

* ‡ $ This lease shall run until November 30,1942 and may be terminated at the option of either party upon sixty (60) days notice thereafter and upon filing of written notice of intention to terminate.

A plant for the processing and refining of tungsten ore was established on the leased space, with plaintiff furnishing the machinery, the engineers, and the technical management of the operation.

4. By section 5 of the Act of June 25,1940 (54 Stat. 572, 573), the Reconstruction Finance Corporation was authorized, when requested by the Federal Loan Administrator, and upon certain other conditions, to create or organize a corporation or corporations with power to (1) acquire certain strategic and critical materials as defined by the President and (2) to purchase and lease land, to build plants for the manufacture of arms and implements of war, and to lease such plants to private corporations to engage in such manufacture. Pursuant to tlie first such authorization, the Metals Reserve Company was organized and vested with the power to acquire tungsten, and pursuant to the second, the Defense Plant Corporation was created.

5. By a letter proposal to Metals Reserve, dated July 30, 1941, which was accepted on August 1, 1941, it was agreed that plaintiff (under its then corporate name of Wah Chang Trading Corporation) would handle and process certain tungsten ore for Metals Reserve upon specified terms. The undertaking would require plaintiff to enlarge its plant on pier 13, which was the only tungsten refining plant plaintiff had. The payment for plaintiff’s services was calculated, on a tonnage basis, so as to produce an estimated annual income of $391,000 for each of the following three years “in order to provide for amortization and a fair return on capital invested, in addition to the recovery of ordinary and necessary operating costs.” Plaintiff stated that: “Our plant, as you are aware, is located at the Foreign Trade Zone, Staten Island, and will become worthless when the defense program is completed.” The agreement further provided:

$ m % * * At any time during the period of amortization, Metals Reserve Company shall have the right to advance for our account, or to contribute, the payment necessary to complete the amortization requirements. At the end of the three-year period for amortization of the cost of machinery and erection of the plant, a revised schedule will be agreed upon between Metals Reserve Company and this Corporation, whereby the charges for treatment and separation will be proportionately reduced, or, Metals Reserve Company shall have the option in any event at the end of the three-year amortization period to rent and operate for its account the plant, its machinery and equipment, on a year to year basis, at a nominal rental of $1.00 per year without paying charges to us for treatment and separation. Further, we agree that, during the period of amortization, and for such period as such plant may be leased to your Company, we shall not, without your written consent, dispose of the plant, machinery and equipment, or destroy, demolish, impair, or part with, or remove the machinery and equipment necessary in the operation thereof.

6. The agreement as embodied in plaintiff’s letter of July 30, 1941, grew out of an earlier proposal made by plaintiff on June 10, 1941. On June 17, 1941, plaintiff, evidently anticipating the successful conclusion of the negotiations with Metals Eeserve, sought the rental of additional space on the pier to accommodate the contemplated enlargement of the plant and the expanded operations. The additional space, constituting 11,957 square feet, was turned over to plaintiff by the lessor on August 18, 1941, and the rental therefore commenced on that day. All the terms of the original lease, including its expiration date, applied to the additional space. Thereafter plaintiff, by a considerable investment, commenced enlarging its plant and performing its contract with Metals Eeserve.

7. Shortly prior to January 26,1942, plaintiff learned that the Army was contemplating taking over a certain area, including pier 13. Plaintiff’s president immediately conferred with officials of Metals Eeserve and the Federal Loan Administration (which, up to February 24, 1942, exercised its functions with respect to Metals Eeserve matters) about the effect that plaintiff’s removal from the pier would have upon the contract. As a result of the conference, the Deputy Loan Administrator, on January 26,1942, wrote to the War Department about the matter. Plaintiff urged Metals Ee-serve to attempt to obtain permission from the Army for plaintiff to remain on the pier despite the Army’s operations thereon, but, if this proved to be impossible, to advise plaintiff as soon as possible, since preparations would have to be made immediately to find a suitable site, build a new plant, and move the machinery, if operations under the contract were to continue without interruption. In the latter event, plaintiff urged Metals Eeserve to secure from the War Department permission to remain on the pier until such arrangements could be made.

8. On February 7, 1942, a petition in condemnation was filed at the request of the Secretary of War in the United States District Court, Eastern District of New York, for the acquisition, for a term of two years, of the use and occupancy of approximately 55 acres of land, including pier 13. Plaintiff was named as a defendant in, and was made a party to, the proceeding, as was National Reconditioning. In addition, 27 other defendants were named, including the City of New York and the Foreign Trade Zone Operators, the landlords. The War Department gave notice to all parties within the area involved to deliver possession to the Army.

9. As a result of the War Department’s attention being directed to plaintiff’s contract, as set forth in finding 7, it advised plaintiff on February 11, 1942, that its request to continue its operations on the pier had been approved, and on February 25, 1942, the Department further advised that the length of time it would be permitted to stay had not as yet been determined, but plaintiff would be promptly advised as soon as a decision would be reached. Thereupon, several Government agencies whose concern was the procurement of strategic materials and the financing of various aspects thereof, such as the War Production Board, the Reconstruction Finance Corporation, the Army and Navy Munitions Board, the Defense Plant Corporation, and the Department of Coimnerce (which, after February 24, 1942, by Executive Order 9071, succeeded to the functions of the Federal Loan Administration relating to Metals Reserve) gave consideration to the problem of the continuance of plaintiff’s operations. At the time there was a critical need for tungsten in the war effort, and these agencies were anxious to avoid any disruption in plaintiff’s activities. Accordingly, the Army and Navy Munitions Board, at the instance of the War Production Board, inquired of the War Department and the Army concerning the possibility of plaintiff’s being permitted to remain upon the pier permanently. However, on March 10, 1942, the Army and Navy Munitions Board, by memorandum, advised the War Production Board that the Army had definitely determined that “in view of the urgent necessity for secrecy in regard to troop movements and the urgent need for this particular pier for large vessels”, it was “absolutely essential to move this plant to some other location”, and that, under the circumstances, the Army felt that plaintiff’s plant was “of very minor proportions.” The memorandum further advised that the Army and Navy Munitions Board felt that “it would be to the interest of our war effort to expend a reasonable amount of money and move this enterprise to some other location” because of “the importance of tungsten * * * in our program” but that in its opinion “such operations could be conducted just as well at another point.” The memorandum concluded with the statement that “it was never the [War Department’s] intention to allow this enterprise to continue indefinitely but that they would be given a reasonable length of time in which to move the same to another location.”

Plaintiff was immediately informed of the Army’s decision, a copy of the memorandum being sent to it by the Department of Commerce.

The War Department granted plaintiff a three-month period in which to remove its operations.

10. On March 11, 1942, the Department of Commerce requested the War Department to give further consideration to the question of permitting plaintiff to remain on the pier permanently but that, if this were not possible, to permit plaintiff to remain at least eight months, which period of time would be necessary to enable it to move to a new location without interruption to its operations, instead of the three-month period theretofore granted. By letter of March 21, 1942, the Under Secretary of War advised that the Army had concluded that “this operation must be removed from Pier 13 not later than October 1, 1942. This action is based on most urgent military necessity requiring the full use of all of the former New York Foreign Trade Zone Piers.” The letter went on to state that the October 1 removal date was a few weeks less than the eight months requested, but that “if every effort is promptly made to comply with the removal order, and it should turn out that a slight additional time is needed within which to successfully complete operations, I will' endeavor to secure the necessary extension.”

11. On March 24, 1942, plaintiff, by letter to the Department of Commerce, acknowledged receipt of the Army and Navy Munitions Board memorandum of March 10, 1942, referred to in finding 9, thanked the Department for its cooperation “even though the decision of the War Department has made it necessary for us to move from Staten Island”, and stated that it was actively seeking a new site. It stated that: “As soon as we have something definite mapped out we will come to you for your assistance in reference to priorities as well as expenses for moving and other matters in connection with this situation.” On or about the same date, it also wrote to Metals Reserve indicating the difficulties involved in moving and reinstalling the machinery and equipment, and stating:

# * * * * Although the Army and Navy Munitions Board “feels that it would be to the interest of our War Effort to expend a reasonable amount of money and move this enterprise to some other location,” we wish assurance as to when and where we will be paid with this “reasonable amount of money” which naturally should cover the actual cost. ¡I: * * *

On March 25,1942, it also wrote the Under Secretary of War that to comply with the Army’s removal order by October 1,1942:

* * * it is necessary that we build our new plant immediately and in such a way that it will accommodate machinery and equipment from the present plant without any interruption in our operations which are so necessary to the war production effort. To accomplish this we bespeak your granting us the cost of the removal expenses, and an A-l-A priority for materials and equipment necessary for the new plant. Permit us to state briefly the problems involved:

COST OF REMOVAL

Though the Army and Munitions Board “feels that it would be to the interest of our war effort to expend a reasonable amount of money and move this enterprise to some other location”, we nevertheless lack assurance as to when and where we will be reimbursed with this “reasonable amount of money” to cover our removal expenses. We are informed that we should file our claim with the court, decision on which may take weeks if not months. If we are going to comply with your order to move before October 1, 1942, we will have to proceed immediately with the execution, and we cannot proceed unless we are assured that the expenses will be reimbursed.

The letter went on to itemize and estimate the “expenses for removal” as totaling $189,920, and stated: “Your authorization of this expenditure will enable us to start immediately execution of your order.” It also requested the War Department to grant it a high materials priority rating for the construction of a new plant. On the same day it wrote a similar letter to the Department of Commerce stating that it was making every effort to comply with the removal order and that: “Our success depends on the cooperation the Army gives us, namely the authorization of payment of the cost of removal and the highest effective priorities obtainable.” It also stated “We have found a location and we shall proceed immediately with construction.” It similarly estimated its removal costs and stated:

* ‡ * * * The above costs are figured on a minimum basis and will have to be available if we are to move before October 1st without interruption of present operations. You can understand that the expense involved in removal must come from somewhere. Although the Army and Navy Munitions Board has said that “it would be to the interest of our war effort to expend a reasonable amount of money and move this enterprise to some other location” assurance is still needed by us as to when and where this “reasonable amount of money” will be paid to cover our actual cost. If we must await the decision of a court, which may take weeks or even months, as we are told, we cannot make a single move. We desire to comply at once with the War Department’s order before October 1st, but to act immediately we must have assurance of reimbursement by the War Department for all expenses involved.
We have addressed a letter to Under-Secretary of War, Judge Patterson, along these lines as per the enclosed copy, and we will appreciate it if you will expedite the decision on our behalf.
May we point out that our removal cannot be approached in the same manner as that of other parties who have only cargo in the Foreign Trade Zone. Ours involves a plant — a specially built plant — exclusive of cargo on the pier. The War Department may be right in not paying expenses for the removal of cargo on the pier. But a plant, especially built as is ours, with a laboratory, furnaces, machinery, equipment, plumbing, electrical installations, monorail system, ore bins, and so on, is entirely different from a cargo-in-warehouse situation.

M: * * * * It also sought the Department’s aid in securing the necessary priorities, and stated “We will not discontinue our present operations.”

12. On March 26,1942, the Department of Commerce wrote to plaintiff advising that the Army and Navy Munitions Board had promised to give plaintiff’s problem prompt attention. On the same day, the Department wrote to the Board advising that plaintiff would remove from pier 13 but that: * * * * #

Before completing arrangements for setting up this plant at some other location, Mr. Li requires assurance that the actual cost to him of the removal of this plant and establishing it at another location will be promptly paid him upon the presentation of satisfactory proofs.
As you know, this plant is of strategic importance in our war effort as we are importing considerable low grade tungsten concentrates which are being treated by tliis plant. 5|C 5$< }{i *

The Department requested that the Board promptly give consideration to the question of reimbursement. The following day, March 27, it wrote an identical letter to the Under Secretary of War. Also, on March 27, plaintiff’s president conferred with officials of the Army and Navy Munitions Board about the matter. At the conference, plaintiff was advised by the Chairman of the Board that the matter was not within the Board’s jurisdiction but that the Board would assist in obtaining an early decision from the War Department. The day after the conference, March 28, plaintiff’s president wrote to the Chairman of the Board, stating in part:

$ $ $ $ $ Our position, as I presented it to you, may be briefly outlined as follows:
1. We bow to the decision of the Army and Navy Munitions Board and will move our plant from Pier 13, Staten Island, on or before October 1,1942.
2. To comply with the War Department order it is necessary that we build our new plant immediately and
in such a way it will accommodate machinery and equipment from the present Staten Island plant without any interruption in our operations which are so necessary to the war production effort.
3. Our plant at Staten Island, is specially built in with machinery, equipment and furnaces. Removal of same will cost money. As per our letter to Judge Patterson dated March 25th, our removal cost is estimated at approximately $140,000. This cost to be incurred by us because of your commandeering our plant site can be and will be substantiated by vouchers and invoices from contractors and suppliers.
4. Your memorandum of March 10th to Mr. Frederick Eaton stated that “it would be to the interest of our war effort to expend a reasonable amount of money and move this enterprise to some other location.” We have no assurance as to when and where we will receive this “reasonable amount of money.” We cannot very well await the decision of the Claims Board or Court as is suggested elsewhere, as such decision may take months if not years. If our tungsten work were not so vitally needed in the war effort, we could wait but as the war program urgently needs our tungsten, and compliance with the War Department removal order is imperative, it is impractical to await a court’s decision.
We understand that the Under-Secretary of War Judge Patterson has the right to authorize the expenditure of such removal. You will be doing the tungsten industry and our war program a great service if arrangements can be made with the Under-Secretary of War to give us such assurance. This will enable us to go ahead immediately with the signing of the lease or the purchase of the property of the new plant and to proceed with the construction of plumbing, electrical lines, foundations and frame structures of machinery and the erection of furnaces, etc., etc. * % H« * *

An almost identical letter, under the same date, was written to the War Department. Also on the same day (March 28) the War Department wrote plaintiff acknowledging receipt of plaintiff’s letter of March 25, referred to in finding 11, and stating that: “The matters presented by you will receive the most careful consideration and you will be promptly advised as soon as a decision has been reached.” Similarly, on March 31, the Chairman of the Army and Navy Munitions Board acknowledged .receipt of plaintiff’s letter of March 28, hereinabove set forth, and stated that the matter referred to in plaintiff’s letter “is receiving our earnest attention” and that “within a very few days” he hoped to let plaintiff “have some definite advice along the lines desired by you.”

13. On April 9, 1942, plaintiff, still not being advised as to whether its removal costs and expenses would be reimbursed, sent telegrams to the Special Assistant to the Secretary of Commerce, the Under Secretary of War, and the Chairman of the Army and Navy Munitions Board, all urging a decision concerning plaintiff’s removal problem. Plaintiff stated that three of five desirable plant sites had been purchased by others, that options which plaintiff had on the other two were expiring that day and the following day, and extensions could not be secured. The telegram to the Department of Commerce stated:

* WILL VOLT APPROVE OUR PROCEEDING IMMEDIATELY TO PURCHASE PLANTSITE TODAY AND MOVE IN ACCORDANCE WITH OUR LETTER TO YOU OP MARCH 25TH. IP WAR DEPARTMENT WILL REIMBURSE THE ACTUAL COST SUPPORTED BY VOUCHERS AS REQUESTED OUR ACTION NOW WILL NOT ONLY SAVE TIME BUT ALSO ASSURE THE CONTINUITY OP I TIE TUNGSTEN PLANT WHICH IS SO IMPORTANT. IP ON ACCOUNT OP LEGALITY THE WAR DEPARTMENT CANNOT REIMBURSE EXPENSES IT WILL BE NECESSARY POR SOME GOVERNMENT AGENCIES TO MAKE GOOD THE COMMANDEERING. WHAT WE WANT IS SOME WORD OP ASSURANCE PROM YOU, A GOVERNMENT REPRESENTATIVE, THAT WE WILL BE PROTECTED SHOULD FOR EXAMPLE THE WAR HAPPILY END TOMORROW AND THE EMERGENCY CEASE WITH IT. KINDLY REPLY BY WERE.

The following day, April 10, 1942, in a letter to Metals Be-serve, plaintiff’s president stated that only one plant site now remained upon which its option expired that day, that he would wait “until the last minute” to receive a response to the telegrams of the previous day, and that:

* * * If I do not hear from either of them, I think the safest way for me will be to buy the property and proceed with the moving so that our operations will not be interrupted. In these days of war, someone has to make a quick move; we have only 5y2 months remaining and materials are most difficult to secure.

On the same day, plaintiff exercised the option, and so advised the Department of Commerce by telegram. The property was located in Glen Cove, Long Island, N.Y.

14. On April 18, 1942, plaintiff sent a letter to the Under Secretary of War stating that it was “still urgently awaiting your decision and reply” and that:

This is the status of the situation:
1. Though we have not yet had your decision, because of the urgency of action, we have proceeded with the purchase of the plant site. This is the first step in removal.
2. Next is the purchase of equipment and material. We wish to inform you that we have not yet received priority and therefore further progress in the matter of procuring equipment and materials virtually is at a standstill.
In view of the above, it will be very difficult if not impossible for us to move in the remaining five months. For this reason we beseech you to expedite the decision and aid us in getting promptly the necessary priority, or we may fall down on the job which we certainly do not want to happen in view of the importance of the war effort. *****

A letter containing the identical statements was also sent to the Army and Navy Munitions Board the same day.

15. On April 22,1942, the Under Secretary of War wrote to plaintiff as follows:

Deference is made to your telegram dated April 9, 1942, in connection with the optioning of an alternative site for the relocation of the tungsten plant at Hoboken, New Jersey.
Under a well-settled rule of law, it would be impossible for the War Department to include in the acquisition cost of this property such items as moving expenses and other factors attributable to relocation. Efforts are being made, however, to obtain a favorable solution to the problem of relocating your plant through the cooperation of such other government agencies as may be in a position to offer assistance.
You will be advised promptly of any determination that may be reached in this regard.

The same day, plaintiff’s president conferred with officials of the War Department, who repeated the Department’s con-elusion as expressed in the letter, and explained the Department’s relationship to plaintiff’s various problems. The following day, April 23, the Department confirmed the results of the conference and the advice given thereat by a letter from the Office of the Under Secretary reading as follows:

I am directed by the Under Secretary of War to acknowledge the receipt of your letter to him dated April 18, 1942, in regard to the removal of your Tungsten Plant from Pier 13, Staten Island, in which you refer to your letter of March 25, 1942, concerning the same subject.
You were advised on March 30,1942, that your letter of March 25 was receiving attention, and shortly thereafter Colonel Dinsmore of this office discussed the situation by telephone with your Mr. Li and explained the relationship of this office to the entire matter.
It is evident, however, that you are under some misapprehension concerning the position and authority of this office in this connection for which reason the entire situation will be briefly reviewed.
The use by the War Department for military purposes of Pier 13, Staten Island, on which your Tungsten Plant is located, has been obtained by condemnation proceedings which were instituted under the supervision of this office.
The decision that military necessity requires the removal of your Tungsten Plant from Pier 13 was made by the Secretary of War and not by this office and this office is without authority to revoke or modify that decision.
The sole responsibility of the War Department in the condemnation proceedings is to the owner of Pier 13, namely the City of New York, which in turn may be responsible to its own tenants for damages sustained by them and legally recoverable. Your Corporation must therefore look to the City of New York, and not to the War Department for any damages to which it may be entitled by reason of the termination of its tenancy as a result of the condemnation proceedings.
It is understood that your Corporation has been engaged in processing tungsten for the Metals Reserve Corporation and that the Metals Reserve Corporation desires you to continue to operate for that purpose. In order to do so you must set up your plant in a new location. Although sympathetic toward your continued operation, the War Department’s interest in that connection is indirect only.
The War Department has no legal authority to defray the expense of moving your plant to a new location, and no funds available for that purpose. Since it is understood that the Metals Eeserve Corporation is interested in your continued operation in a new location, negotiations necessary to that end should be conducted with the Metals Eeserve Corporation and not with the War Department. As a matter of fact it is understood that the Metals Eeserve Corporation now has the subject under consideration.
The only agency authorized to grant you priority ratings for materials is the War Production Board, and all correspondence on that subject should be addressed to the War Production Board. The War Department has no such authority. It is understood that the War Production Board now has under consideration your application in this connection.
It is customary for the War Production Board. to consult the Army and Navy Munitions Board concerning priority ratings for projects having to do with strategic and critical materials and there has been some correspondence in that connection concerning your project.
The Army and Navy Munitions Board undoubtedly will recommend to the War Production Board such priority ratings as may be required to enable you to duplicate in a new location your present tungsten processing capacity possibly with some reasonable expansion, but present compelling needs for essential defense materials will preclude priority ratings for the purpose of creating capacity in excess of present and reasonable anticipated requirements. ijt % % % %

Similarly, the following day, April 24, the Chairman of the Army and Navy Munitions Board wrote plaintiff as follows: ‡ $

I understand that a letter explaining in detail the situation in regard to the above matter was written to you by the Office of the Under Secretary of War on April 2S? 1942, and that the subject was discussed at length with your Mr. Li by representatives of that office on April 22nd.
In substance, you were advised that any compensation for the termination of your present lease must be borne by the City of New York, any financing of new installations should be discussed with the Metals Eeserve Corporation, and decision on your application for pri-prities must be made by the War Production Board.
The Army and Navy Munitions Board is prepared to recommend to the War Production Board such priority ratings as may be required to enable you to duplicate in a new location your present tungsten plant, possibly with some slight expansion, but the Army and Navy Munitions Board lacks authority to take final action on any of the matters indicated above.

16. Thereafter, plaintiff’s president had several discussions with officials of Metals Beserve, in which Metals Reserve also took the position that it would not assume plaintiff’s claim. However, various alternatives were explored, such as (1) Metals Reserve’s building the new plant and plaintiff’s renting it, (2) Metals Reserve’s advancing approximately $480,000 to plaintiff to finance the construction of the plant by plaintiff and its removal costs, with plaintiff’s filing a claim against the City of New York for the removal expenses and assigning the claim to Metals Reserve so that any payment made by the United States in the condemnation proceedings on account of such expenses would inure to the benefit of Metals Reserve, and (3) Metals Reserve’s purchasing plaintiff’s facilities and then compensating plaintiff for its services on a cost-plus basis. Finally, by letter of May 9,1942, plaintiff made the following proposal to Metals Reserve:

***** After careful consideration of all the problems arising from the necessity of vacating the Staten Island plant, we have arrived at a tentative proposal which is outlined below.
1. We suggest that Defense Plant Corporation acquire the land together with the building thereon located at Glen Cove which we have recently purchased. As yet we have not received title to this property inasmuch as the Title Guaranty and Trust Co. have not completed the search of the title. This site was obtained at a very low figure, in fact much below the local tax assessment value.
2. We suggest that Defense Plant Corporation build the structures required for the concentration plant, chemical laboratory, and warehouse and make such land improvements as may be necessary. Details of these requirements were outlined in our letter of April 30th.
3. Wah Chang Trading Corporation would rent the real estate as described in paragraphs 1 and 2 from the Defense Plant Corporation at an annual rental of one-third the total cost of the property incurred by Defense Plant Corporation. Assuming such cost to be $360,000, the annual rental woud be $120,000.
4. Wah Chang Trading Corporation would lease the property from Defense Plant Corporation from October 1,1942, to July 30,1944, which is the expiration date of the Metals Eeserve-Wah Chang Trading Corporation contract of July 30, 1941. Should this contract be renewed, Wah Chang Trading Corporation will renew the lease for a period of 14 months. In this event, Wah Chang Trading Corporation will have paid rent equal to the entire investment in the property made by Defense Plant Corporation.
5. Wah Chang Trading Corporation shall have the option of acquiring the property from the Defense Plant Corporation at any time subsequent to October 1, 1942, and at a price not to exceed the total cost of such property less the amount of rent already paid on such property by Wah Chang Trading Corporation.
6. Wah Chang Trading Corporation will, of course, bear the cost of the removal of the plant facilities from Staten Island to Glen Cove and make claim therefor against the City of New York or the War Department with the help of your goodselves.
In our opinion the above proposal is operative and fair. It is our understanding that in this instance Metals Eeserve Company guarantees the Defense Plant Corporation against loss from its investment.
A summary of the financial feature of our proposal is shown below:
Cost of site and building_$360, 000
Rent from October 1,1942, to July 31,1944_ 220,000
Unliquidated cost_ 140,000 In event of renewal of tbe Wah Chang Trading Corp. and Metals Reserve Company contract (July 30, 1941) — rent from July 31,1944, to October 1, 1945_ 140,000
Cost to be liquidated_ 0
If this general proposal meets with your approval, it is urgently requested that you use your good office to expedite the arrangements that are to be made with the Defense Site Corporation and the Defense Plant Corporation so that the order of the Army to vacate our present premises at Staten Island not later than October 1, 1942, can be complied with. We have less than five months left and we must have these buildings constructed quickly enough to receive the machinery and equipment from the Staten Island plant. We respectfully urge you to give this matter your prompt attention.

As set forth in finding 4, Defense Plant Corporation was an EFC entity. As plaintiff’s tentative proposal contemplated the financing and building of the new plant by Defense Plant Corporation, plaintiff, by letter of May 11,1942 to the Chairman of the EFC forwarded a copy of its May 9 letter to Metals Eeserve, outlined the problem and its proposal, and requested the Chairman, if he approved, to expedite action. In this letter, plaintiff stated, among other tilings: “We will pay all costs of removal, since the War Department claims lack of legality to reimburse * *

17. Plaintiff’s proposal became the subject of further conferences between plaintiff’s president and officials of Metals Eeserve, at which plaintiff again agreed that, if Defense Plant Corporation purchased the site from it at a proposed figure, and built a plant thereon, with plaintiff paying rent thereon on the basis previously set forth in its letter of May 9, and with plaintiff being given an option to purchase, with the rent paid to be applied to the purchase price, it would forego its claim as against Metals Eeserve, it would assume the moving costs, and would also assume the costs of attempting to recover them from the City of New York or the War Department. On this basis, Metals Eeserve, on May 29,1942, formally recommended to Defense Plant Corporation that favorable consideration be given to plaintiff’s proposal.

18. On June 9, 1942, National Eeconditioning Company, Inc. assigned to plaintiff (1) all of National’s right, title and interest to any award in the condemnation proceedings, growing out of National’s lease on the pier space, as well as to any damages to which National was entitled, and (2) all of National’s interest in the lease.

19. On June 12, 1942, Defense Plant Corporation (DPC) by resolution of its Board of Directors, formally authorized the execution of an agreement with plaintiff providing for the expenditure of $360,000 for the purchase of the Glen Cove site from plaintiff and the construction of a tungsten refining plant thereon. On June 16,1942, plaintiff and DPC entered into an “Agreement of Lease”, in which it was agreed, among other things, that (1) DPC would purchase the site, (2) plaintiff would construct and equip the plant, (3) DPC would advance the necessary construction funds, not to exceed $360,000, (4) title to the site and the plant would be vested in DPC, (5) DPC would lease the site and plant for a term commencing June 16, 1942, and ending July 1, 1947, with an automatic extension to July 1, 1949, subject to the right of either party to terminate the lease if the plant was no longer needed for national defense purposes, (6) the rent would be payable quarterly and calculated pursuant to a specified formula, and (7) plaintiff would have an option, on certain terms and conditions, to purchase the site and plant.

20. Plaintiff completed the removal operations from the pier on September 17, 1942, and by letter of September 18, 1942, so advised the Under Secretary of War, further stating that “This successful removal under emergency war conditions was greatly facilitated by your understanding of our problem and the assistance given to us by you and your Department, and we wish to take this opportunity to express our kindest thanks.” On September 21, 1942, plaintiff sent similar letters to B.FC and Metals Deserve.

21. In effecting the removal, plaintiff was required to abandon machinery and equipment which could not be moved and which had an unamortized and undepreciated value totaling $81,502.34. In dismantling, and then later reassembling at the new site, that part of the plant which could be moved, it incurred labor costs totaling $24,646.21. The actual cost of transporting the movable facilities and equipment, including the ore, totaled $18,194.69. Overhead expenses allocable to these items totaled $6,533.92. Thus, plaintiff incurred costs, expenses, and losses due to the removal totaling $130,877.16.

The value of the plaintiff’s right of occupancy from the time it vacated the premises, September 17,1942, to the date of the expiration of the lease, November 30, 1942, was $1,196.71. The rental value of the fixtures and permanent equipment not removed, from September 17,1942, to November 30,1942, was $2,546.95.

22. Plaintiff filed a claim in the condemnation proceedings for the expenses and losses it incurred in being required to move from the pier. The claim filed was in the amount of $306,726.28, but it was later reduced to $216,541.57. Prior to the hearings, the United States and the City of New York reached an agreement whereby rent for the two-year period covered by the condemnation proceedings was set at $840,000. It was also agreed that the City would accept full liability and responsibility for all claims for compensation which might be established by former tenants or others asserting interests in the premises, in excess of $30,000, with the United States assuming responsibility for claims less than $30,000. Hearings on the various claims were held on January 22, 25, and 26,1943, in the District Court for the Eastern District of New York. During the course of the hearings, plaintiff concluded that it would not be possible for it to recover, and it requested leave to withdraw its claim. The court granted its request. The final order and judgment in the proceedings setting forth the withdrawal of plaintiff’s claim, (as well as one filed by National Eeconditioning), without costs was entered on February 23,1943.

23. After the complete removal of its operations from the pier on September 17, 1942, plaintiff continued to refine tungsten ore for Metals Reserve at the new plant at Glen Cove, operating on a 24-hour day and a 7-day week schedule under additional contracts with Metals Reserve.

As set forth in finding 5, the amount paid to plaintiff for its services performed on the pier plant included an amount to cover amortization of plaintiff’s investment in its plant. However, the early removal of the plant did not permit complete amortization, as set forth in finding 21. After the move to Glen Cove, plaintiff’s contract with Metals Reserve was amended on February 15, 1943. On November 6, 1943, the contract, as amended, was revoked and a new contract was substituted in its place to expire on July 31,1944. Thereafter further contracts were entered into by Metals Reserve and RFC with plaintiff’s operations thereunder extending into 1949.

The record does not indicate whether plaintiff made an oyer-all profit and if so, the amount thereof, on all of its defense or wartime tungsten refining contracts entered into with Metals Reserve, or on all of its RFC tungsten agreements extending up to May 15,1949. On all of plaintiff’s contracts with Metals Reserve and RFC commencing with the original contract dated August 1, 1941, referred to in finding 5, and extending to May 15, 1949, plaintiff was paid $2,723,061.89 for its services. Plaintiff has duly performed all the terms and conditions of these contracts to be performed by it. After plaintiff’s original lease agreement with Defense Plant Corporation in which, as set forth in finding 19, Defense Plant agreed to expend $360,000 for the construction of the new plant, the agreement was, due to increased construction costs and the need for enlarging the plant, amended from time to time to provide for a total RFC commitment of not to exceed $675,203.93. This did not include machinery and equipment for the plant, which were furnished by plaintiff. Plaintiff ultimately purchased the Glen Cove plant from Defense Plant Corporation and still owns it.

24. After plaintiff withdrew its claim in the condemnation proceedings in January 1943, as set forth in finding 22, it made claim against Metals Reserve or RFC by letter dated February 16,1943. The claim was denied on March 1,1943. Again in 1944 and 1947, in connection with further extensions of its lease on the plant, plaintiff, without success, sought reconsideration of its claim. On October 4, 1949, plaintiff again made claim in the amount of $140,000 against the RFC. By letter of November 30, 1949, the RFC replied:

* * * that we still cannot find any basis for approval of this claim and therefore we must again decline it. Our Office of War Activity Liquidation and our Legal Division are agreed on this. The record shows that the arrangement was that Wah Chang would pay the cost of dismantling and removing its facilities from the Foreign Trade Zone to the Glen Cove plant and would look for reimbursement to the War Department or the City of New York. At no time did RFC or any of its subsidiaries agree, even by implication, to reimburse Wall Chang for this expense.
If we could approve claims solely on the ground of a job well done, yours would surely be so approved. But since other considerations are controlling, we must regretfully request that you regard this denial of Wah Chang’s claim as final.

On December 2,1949, plaintiff requested reconsideration, but, by letter of December 28, 1949, the claim was again denied, the letter stating that there was “no basis for payment of this claim by this Corporation, either as a matter of contract or under the Contract Settlement Act of 1944 or other similar legislation. This is in line with the position our Legal Division has consistently taken in the matter.” The letter also declined plaintiff’s request that RFC “refer the matter to the Department of the Army” because:

* * * that would seem to imply that we feel some liability rests upon that Department. However, if you and your legal counsel should decide to urge your claim elsewhere, all information on the case that is available fo> us will be promptly furnished to the claimee upon its request.
In view of your past dealings with us, I hope it is unnecessary to assure you that your claim has received the most careful and sympathetic consideration here and that we would have paid it long since if any basis for payment by this Corporation existed.

Thereafter, plaintiff sought congressional relief, the first bill, a relief one, being introduced in 1951, resulting in the passage of the Private Act set forth in finding 1.

CONCLUSION OK 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 is entitled to recover, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of three thousand seven hundred forty-three dollars and sixty-six cents ($3,748.66), with interest thereon as part of just compensation at the rate of 4 percent per annum from November 30, 1942, to date of payment. 
      
       The Defense Plant Corporation was created by the RPC (pursuant to section 5 of the Act of June 25, 1940, 54 Stat. 573) to purchase and lease land, to build plants for the manufacture of armaments, and to lease these plants to private corporations.
     
      
      
        Jones v. United States, 1 Ct. Cl. at 384-385.
     
      
      
        Jones v. United States, 1 Ct. Cl. at 385.
     
      
       267 U.S. at 461.
     
      
       Assuming, as plaintiff contends, that plaintiff's lease would in all probability have continued without cancellation by either party for a period of time extending beyond the Government's temporary 2-year taking in condemnation, this fact added nothing to the plaintiff’s legal rights as a tenant, “and legal rights are all that must be paid for.” United States v. Petty Motor Co., 327 U.S. at 380, fn. 9.
     