
    ALBERT MILLER, E. PERCY MILLER, AND F. H. HALLOCK, COPARTNERS, TRADING UNDER THE FIRM NAME AND STYLE OF ALBERT MILLER & COMPANY, v. THE UNITED STATES
    [No. B-121.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Contracts; general agreement; verbal purchases confirmed by formal orders; breach. — In order to keep the price of hay and forage during the war from rising beyond a reasonable figure, and at the same time secure prompt deliveries at training camps, the Government, at conferences between its representatives and representatives of hay and forage dealers generally, including plaintiffs, agreed to discontinue -advertisement and proposal, in lieu thereof follow commercial practices, and to confirm all verbal purchases by formal orders. Circulars covering the various features of tile agreement were mailed to plaintiffs and other dealers, and the plan was put into practice. Helé, that the general agreement so entered into was an essential part of every order placed thereunder, and constituted a valid contract the breach of which was ground for recovery.
    
      The Reporter's statement of the case:
    
      Mr. Robert T. Scott for the plaintiffs. Messrs. Frank Dams, jr., .and WilUam D. Harris were on the brief.
    
      Messrs. John E. Hoover and Qhmies F. Kmcheloe, with whom was Mr. Assistant Attorney General Herma/n J. Galloway, for the defendant. Mr. McGlmre Kelley was on the brief.
    The court made special findings of fact, as follows:
    I. Plaintiffs, Albert Miller, E. Percy Miller, and F. H. Hallock, are partners doing business under the firm name and style of Albert Miller & Company, and engaged in the business of buying and selling hay, straw, oats, and other forage, with their office and principal place of business in the city of Chicago, State of Illinois.
    II. In June, 1917, the Government of the United States, as a necessary incident to its participation in the World War, began to establish a large number of training camps throughout the United States, principally in the West and Southwest. Thousands of horses and mules were required at these camps, with the resultant necessity of large purchases of hay, straw, oats, and other forage for quick delivery. The entry of the Government into the forage market forced the price of forage to an unreasonable level. The ordinary methods of purchasing forage became impracticable, resulting in inadequate supplies of forage at some camps and congestion at others.
    Conferences were held between the duly authorized officers of the Quartermaster’s Department of the United States Army and many of the hay and forage dealers. At these conferences the Government officials solicited the assistance of the hay dealers to keep the price of hay and forage from rising beyond a reasonable figure and at the same time to secure prompt deliveries of adequate amounts of forage wherever required. It was apparent that the Government’s method of advertising for bids for a large quantity of forage for delivery over a long period of time would necessarily force the market to a point deemed unreasonable. No contractor could assume the risk of contracting subject to Government inspection and rejection at destination for distant future delivery at a fixed price when there was no means by which the market could be controlled.
    Under Army regulations in force at that time all commodities were required to be bought on competitive bids, but the regulations provided that if the competitive bids were not satisfactory they could be rejected and in emergency cases purchases could be madfe on the open market. Under the existing emergency the Government adopted the plan of advertising for bids for hay, straw, and other forage, and such bids as were made ¡at prices considered fair and reasonable were accepted. Where the prices were unreasonable, the bids were rejected and the Government went oh the open market and made emergency purchases.
    As a result of the conferences held between the representatives of the Government and the representatives of the hay and forage dealers, it was understood and agreed by and between the Government representatives and the hay dealers among whom were plaintiffs, that the method theretofore followed by the Quartermaster’s Department of purchasing hay by formal advertisement and proposal would be discontinued and that the purchase of forage would be handled on a commercial basis, and according to the rules and custom of the trade which had been established between commercial buyers and sellers of hay and other forage; that the Quartermaster Corps would wire or telephone for quotations when hay was needed and would accept same verbally over the tejephone or by wire and would designate the destination and would confirm the order by formal purchase order; that the Government would have the hay graded at destination by competent inspectors, according to the rules of the National Hay Association; the Government to furnish suitable cars at the point of origin for the transportation of said hay and forage, to give shipping instructions at the time orders were given and to instruct the receiving railroad to place cars for the particular contract.
    The rules and customs of the commercial trade, in so far as they apply to this case, are as follows:
    “ The inspection is to be made by competent and able inspectors, in accordance with the rules of grading existing in the trade, which are the same as the rules of the National Hay Dealers Association.
    “ The inspection shall be made on the day. the car of hay arrives at destination.
    “ If rejection is made the contractor shall be immediately notified, as claims on account of rejection must be made to the original seller within thirty days from the date of sale and within ten days after rejection. Information must be given in the notice of rejection by the person rejecting the hay to enable the contractor and the original seller to determine the reasons therefor.
    “ Partial rejections are not allowed, unless the consent of the shipper has been first secured. The cars must be accepted or rejected in their entirety.
    “ The regrading of hay to a grade lower than that called for in the contract, or the repricing of hay at a price lower than that called for in the contract, is not allowed by commercial custom, unless the consent of the buyer has-been first secured.
    
      “ Under commercial custom the actual weight of the hay in the car is controlling. If the consignee claims a lesser weight than that claimed by the consignor he must support his claim by a certified scale certificate. This certificate must be sent to the shipper within five days after unloading' the car, in order that he may make claim against the person from whom he purchased the hay. The time fixed by commercial practice for making such claim is thirty days.
    “ Railroad weights are not accepted as accurate in commercial practice. Unless the hay is actually weighed as above described and evidence thereof given to the shipper, a certified invoice, scale ticket or weight certificate of the person actually weighing the hay when shipped is conclusive on the parties.
    “ Under commercial practice all demurrage accruing against the cars being held for inspection even though the cars are afterwards rejected, is paid by the consignee.
    “ Under commercial custom cars reconsigned by the consignee after receipt at the original destination to another destination are deemed to be accepted by him.”
    
      After the adoption of this plan the Quartermaster Corps advertised that it would buy hay from any person in quantities of five cars or more. All the hay and forage dealers with whom the department proposed to do business, including plaintiff, were informed that this would be the method used by the Quartermaster’s Department in its future dealings with them, and; the plan was embodied in a circular sent by mail to the different hay dealers. This proposal or plan was personally communicated by Major Albert B. Warren, the officer in charge of the buying of hay and grain for the forage branch of the Army, to representatives of plaintiff, and was agreed to by both parties as the basis on which they would transact business in the future. In order to carry out this plan it became necessary for plaintiff and other hay dealers doing business with the Government to make bids on quantity requirements for the various camps. When a contractor was called upon for a bid or submitted a bid and it was accepted it was later reduced by the Government to writing in the form of a letter of acceptance or in the form of a purchase order containing order number, date, shipper’s name and address, grade and quality of the forage desired, the quantity, price per ton, schedule of delivery, and shipping directions. These letters of acceptance and purchase orders were supplemental to the verbal agreement originally entered into. In some cases the offer was oral and confirmed by written order. In other cases both offer and acceptance were written, and in still others the bid was written and was accepted on its face by the proper officer of the Government. There were frequent delays between the time of placing the order and the issuance of the written form; sometimes the hay would be in transit before the purchase order was received, and at other times a blank order would be issued leaving the amount and price blank.
    By the terms of the oral agreement all orders were to cover periods of thirty or sixty days, not over sixty days, for the time of completion, and the Government was to pay eighty per cent of the invoice when it was attached to sight draft with bill of lading and the balance of twenty per cent was to be paid promptly on the inspection, weighing, and unloading of the hay at destination, not to exceed thirty days from the time of shipment. In many cases the Government fell behind in both its twenty per cent and eighty per cent payments. Sometimes the Government was behind as much as sixty days on its eighty per cent payments and often many months on the twenty per cent payments.
    During the period that the hay in question was being shipped the majority of the cars furnished by the Government for the shipment of hay and forage were in poor condition, having leaky roofs and doors. As a result of the condition of the cars some of the hay was damaged in shipment. Under commercial customs where the contents of a car are found damaged by reason of the condition of the car, the buyer is required to immediately notify seller, so that the seller can notify the, railroad company. The railroad company requires that it be given an opportunity to verify statements as to the defectiveness of the car. The buyer must support the statement of damage as to the contents of the car by affidavit, and claims for damage on account of the condition of the car must be made within six months after the arrival of the car at its destination. The Government did not Always report the condition of the cars to the contractor, and as a result of this failure the contractor was prevented from making a claim to the railroad company within the period required.
    III. Prior to February, 1918, officers and enlisted men were detailed to inspect and grade hay. Many of these men had had no previous experience or training in the hay business.' Serious complaints of incompetency and inefficiency were frequently made by the sellers. In February, 1918, George S. Bridge was appointed chief of the forage branch of the United States Army, and remained in that position until the latter part of 1918. For the purpose of securing competent hay and forage inspectors Mr. Bridge established a school at Chicago, where they were to be tested. Many of the men who were assigned to the forage division were unfamiliar with hay and forage. Very few of them had had any experience in inspecting hay and forage, but some of them were reared on farms and had a limited knowledge of the kind of forage produced in their respective localities. Most of the men were sent to the school at. Chicago to be instructed. While in Chicago they were given limited instructions by a competent hay inspector and were sent down on the tracks where hay and forage were being unloaded and watched the inspectors perform their duties. Many of these men were not in Chicago more than two or three days and but few of them were there for a period as long as a week.
    The greater part of the hay on which the applicants were tested in Chicago was timothy hay, while the Government bought, and the inspectors were frequently called upon to inspect, alfalfa, prairie, red top, and other kinds and grades of hay. Some of the men examined in Chicago and found to be the best fitted for inspectors were afterwards put on other duties. The inspectors were transferred to different camps. As a general rule, men from the western country were put in eastern camps and men from the eastern country were put in western camps.' As a result' inspectors familiar with one kind of hay were sometimes sent to camps where the Government received grades and kinds with which they were not familiar. On account of the constant movement of troops there was a continuous changing of inspectors. Many of the inspectors were incompetent, and as a result of the incompetency many mistakes were made.
    At times there was a great congestion of hay at some of the camps, and when hay was not needed many cars were rejected that were up to grade and in accordance with the specifications. On the other hand, when a camp was in need of hay it frequently occurred that inferior grades of hay were passed by the inspectors and accepted by the Government.
    At times cars were accepted by one Government inspector, forwarded to a different camp, and there rejected by another Government inspector. In some cases where cars were rejected the shipj)er was able to get reinspection and the hay would be accepted. In a number of cases cars of hay were rejected at camps, moved into terminal markets, and sold to commercial concerns either on the grade originally sold to the Government or a higher grade.
    The Government very seldom gave the contractor reason for rejection, except that it was not up to grade or sometimes was unfit for use, which reasons, under commercial custom, were not comprehensive enough to enable the contractor to make a claim against the seller. At times inspection slips and other necessary data were sent in very late, and sometimes were never sent to the Chicago office, consequently the contractor received no notice of rejection or’repricing and regrading of the cars. Frequently the contractor would not be notified of the regrading, repricing, or the rejection of hay until many months had elapsed. In the meantime he had made the final settlement with the shipper and would have no recourse against him.
    On account of the isolated location of the camps to which hay was shipped there was seldom any central hay market to which the rejected hay could be sent. It had to be shipped to some near-by town, where the demand was limited and the price lower. In some cases it had to be stored for a considerable length of time until a buyer could be found.
    IY. Plaintiff shipped to the Government several thousand cars of hay and other forage. Of this number several hundred cars were rejected. Out of this number one hundred and ninety-three cars were up to grade and the rejections were erroneous and improper. Plaintiff sustained a loss of $38,317.22 by reason of these improper rejections.
    ■ Y. The hay covered by four purchase orders, which included two hundred and seventy-four cars, was sold and delivered to Camp Custer, Michigan. Camp Custer is six miles from Battle Creek and off the main line of the railroad. On cars delivered on these four purchase orders the Government deducted from final payment voucher to the plaintiff a switching charge of $6 on each car. Afterwards the Government denied liability to the railroad to pay such switching charge and did not pay it. However, it never made a refund to the contractor. The amount thus collected from the contractor as a switching charge, which was never paid to the railroad and which is still held by the Government, is $1,644.
    VI. Throughout the period covered by the contracts between plaintiff and the Government, the Government, on account of the scarcity of cars secured and furnished cars of any size for the shipment of hay on Government orders, which plaintiff had to use. There was no agreement or understanding between the contractor and the Government that the hay was to be loaded in cars of a certain size, or that cars were to be loaded to what is commonly called the minimum carload weight. Although plaintiff loaded the cars to their physical capacity the Government charged the contractor with freight on the difference between the actual weight and the minimum weight from the original point of shipment to final destination, together with a war tax on this freight.
    Notices of these deductions on account of not loading the cars up to the minimum weight did not come to the contractor until payment was made on the twenty per cent voucher, which was many months after the hay had been received at its destination. The amount of minimum or penalty freight charges which were deducted, together with the war tax assessed in this manner, was $3,824.46.
    VII. Certain contracts provided for a freight-rate basis on a certain and definite amount. In cases where the contractor shipped from a point carrying a lower freight rate he was entitled to the difference, and where he shipped from a point carrying a greater freight rate he was required to pay the difference. In a few instances the contractor shipped from a point carrying a lower freight-rate basis than that specified in the contract, and the Government charged the contractor with the higher rate, amounting to $490.32.
    VIII. Seven cars of hay were shipped by plaintiff and delivered to the Government for which no payment was made. It does not appear from the evidence whether these cars were rejected or what became of them. The contract price of these seven cars was $1,498.81.
    IX. Some of the purchase orders carried the provision that all demurrage accruing against cars held for inspection would be paid by the Government, while others contained no such provisions. In some cases the cars were held for inspection longer than allowed by the railroad^ and the Government deducted $1,176.27 demurrage charges from moneys otherwise due the shipper.
    
      X. Certain of the contracts called for hay f. o. b. Chicago. Some of this hay was shipped to points other than Chicago and there rejected. In order to get the benefit of the through rate from point of origin to destination the Government required plaintiff to reconsign the cars at Chicago. The through rate was less than the two local rates would have been. The contractor gave the Government credit for the local rate from original point to Chicago, but the Government deducted the reconsigning charges at Chicago. Contractor made a claim against the Government for the difference between local and through rates. The depot quartermaster at Chicago agreed in writing that if contractor would withdraw his claim for refund of the difference between local and through rates the Government would refund to him the reconsigning charges at Chicago. By doing this the Government gained more than if it had paid the local freight rate. This proposition was accepted by plaintiff in writing, but the Government has never refunded the charges. The amount that the Government agreed to refund is $3,565.39.
    XI. Certain shipments of hay were purchased by the Government f. o. b. Canadkn points. There was an import duty on hay from Canada. In some instances this import duty wa^s paid by plaintiff at the time the hay was brought into this country. In other instances the Government paid the duty but deducted the amount from its final payments to contractor. The amount of import duty paid by plaintiff on shipments of hay bought f. o. b. Canadian points and the amount of import duty paid by the Government and deducted from the amount of final payments to contractor was $281.71.
    XII. The Government appointed weighers, many of whom were enlisted men, to weigh all shipments of hay at the time they were received at the camps. Many of the men who did the weighing had not had any experience before entering upon their duties as weighers. Weights were arrived at in many ways. Some few of the camp,s had track scales and some camps were without any scales. Sometimes the cars were weighed coupled and while moving over the scales. Some camps used small standard scales, weighing individual bales and then averaging the whole. Still others would weigh a few truck loads or wagon loads and average the car. At times, where they had no scales, they took the minimum car weight without weighing the car. It frequently happened in camps where they had track scales that the forage officers found the invoice weights would be less than the scale weights, in which case they would take the invoice weights. In other instances, if the railroad weights' were less, they would take the railroad weights.
    On shipments covered by one hundred and two purcha.se orders where the hay had been weighed at the time of shipment by competent and experienced weighers, the Government weights at the place of destination were incorrect and ■less than shipper’s weights. The Government deducted for the difference between the weights as furnished by the contractor and as claimed by the Government weighers. The amount deducted ,on the one hundred and two shipments was $10,423.33.
    XIII. The claim sued on in this action was filed with the Secretary of War -under the Dent Act, but the claims board refused to entertain jurisdiction on the ground that the purchase orders were formal contracts within the meaning of section 3744 of the Revised Statutes.
    The court decided that plaintiffs were entitled to recover $38,317.22 set forth in Finding IV, $1,644 set forth in Find-, ing V,$3,824.46 set forth in Finding VI, $490.32 set forth in Finding VII, $1,498.81 set forth in Finding VIII, $1,176.27 set forth in Finding IX, $3,565.39 set forth in Finding X, $281.71 set forth in Finding XI, and $10,423.33 set forth in Finding XII, aggregating $61,221.51.
   Moss, Judge,

delivered the opinion of the court:

•With the advent of the United States into the World War the necessity at once arose for the establishment of training camps throughout the country, which called for the allocation of a tremendous number of horses and mules for military use at the various camps. The regular method then in practice by the Government of advertising for bids for large quantities of forage for delivery over a long period of time was found to be impracticable. It was not possible under that method to maintain at all times at-each of-the camps an adequate supply at reasonable prices. In an effort to devise a better scheme for the purchase of such forage supplies conferences were held by officers of the War Department with a number of the more important hay dealers of the country, plaintiff being among the number, and it was agreed that all supplies of hay, straw, and other forage would be purchased by the War Department according to the same method employed by private concerns and under the usual and customary rules of the National Hay Dealers Association. These customs and rules are set forth in Finding II. It was also agreed between the War Department and representatives of the Hay Dealers Association that all orders were to cover periods of thirty or sixty days for the time of completion, and that eighty per cent of the invoice when attached to sight draft with the bill of lading would be paid, and that the balance of twenty per cent would be paid on the inspection, weighing, and unloading at the point of destination, not to exceed thirty days from date of shipment. It was further agreed that defendant would furnish pars at appropriate places for the loading of the hay, and that instructions would be given the railroad company, on the line on which the shipper had delivered his hay, that cars be placed for that particular contract. The entire agreement is established in the record by the uncontradicted testimony of authorized representatives of the Government and confirmed by representatives of plaintiff who participated in the conferences. Circulars were sent to plaintiff and to all other contractors covering the essential features of the agreement, and all subsequent purchases were made in accordance therewith. Under the usual practice following the adoption of the new method, after a contractor had submitted a bid, and it had been accepted, it was later confirmed in writing by the defendant in the form of a letter of acceptance or a purchase order. Purchase orders contained the order number, the date, the shipper’s name and address, the grade and quality of the forage desired, the quantity and price per ton, the schedule of delivery and shipping directions. Defendant has invoked the provisions of section 3744, Revised Statutes, and insists that the purchase order with certain addenda, which will later be mentioned, constituted the contract, and that no other agreement or understanding may be considered in determining the rights of the parties. It must be remembered that the agreement under discussion was the result of numerous conferences between officials of the War Department and representatives of the large hay dealers of the country, including plaintiff. Prices of hay under the method of competitive bidding had advanced to an abnormal' level with certain prospects of still higher prices. The situation in that respect could not be controlled. It was also practically impossible to maintain an adequate supply at all times at each of the camps. The occasion was extraordinary. It was in this situation that the assistance of the leading hay dealers was solicited. The technical' hindrances of governmental regulations, entirely adequate in times of peace but insufficient in the emergency then existing, were summarily removed and the usual and customary rules of commercial trade — rules which were the outgrowth of years of experience in trading among individuals and private concerns — were adopted. It is stated in defendant’s brief that every purchase order contained the statement that all circulars, specifications, and samples, pertaining to such purchase orders, and put forward by the War Department, or any of its agencies, would constitute a part of the contract. It is undoubtedly true that the vast majority of the purchase orders did contain such a statement. We have not searched the record to ascertain whether or not the statement was contained in each and every purchase order, and there is no direct testimony on this point. Assuming counsel’s statement to be correct, the .agreement, by express terms, became a part of every contract involved herein, for these circulars, as stated above, embodied the essence of the agreement. However that may be, the contract in controversy has been fully performed, and in determining the rights of the parties in this controversy, consideration must be given to said agreement as an essential part of the contract. Clark v. United States, 95 U. S. 542, cited with approval by the Court of Claims in the case of Swift & Co. v. United States, 59 C. Cls. 415, in a discussion of the same general principle as that involved here, the decision in which was affirmed by the United States Supreme Court, 270 U. S. 124. (See also St. Louis Hay Co. v. United States, 191 U. S. 159.)

Plaintiff is suing for the recovery of $66,580.89 set forth in its petition as follows: Erroneous rejections, $39,-268.32; erroneous switching charges, $1,644; failure to furnish adequate cars, $3,824.46; delayed settlements, $512.26; excessive freight charges, $490.32; erroneous freight charges, $1,980.55; contracts on which payments were not made, $1,498.81; erroneous demurrage charges and war tax, $1,192.38; reconsigning charges, $3,565.39; erroneous deductions for variations in grade, $2,025.04; erroneous duty deductions, $281.71; and weight shortages, $10,297.65.

The chief item in point of amount is the alleged improper rejection of hay on the ground that it did not come up to the grade called for in the contract. Plaintiff’s original records made concurrently with each transaction have been introduced into the record. It is shown that, as a rule, the hay was inspected prior to shipment and was graded as meeting the requirements of the contract. It was again inspected and regraded at the Chicago' tracks by other inspectors and was certified as to quality and grade. In each instance the inspection was made by admittedly competent and efficient hay inspectors. This evidence was supplemented in many instances by the inspectors themselves who, with the aid of the original records, were enabled to testify as to the grade and quality of the hay, and have stated that it was of the grade required under the contract. The evidence offered by the Government, in support of its contention that the rejected hay did not accord with the grade called for in the contract, is unsatisfactory. In frequent instances the Government inspector testified that at a certain camp hay had been rejected because not up to the grade — that no hay which came up to the grade had been rejected by him, but on specific inquiry as to whether or not he had rejected any hay shipped by plaintiff, he was unable to give an affirmative answer. In all instances in which the hay rejected was identified by the witness as hay shipped by plaintiff, the court has eliminated same from plaintiff’s claim. The contention of plaintiff that many of the Government inspectors were inexperienced, unskilled, and inefficient is amply sustained by the evidence. The record shows that in numerous instances hay which had been rejected was resold by plaintiff as of the grade called for in the contract, and at prices equal to or greater than the prices obtaining under the contract. On a certain purchase order calling for delivery of No. 2 timothy hay, a number of cars were rejected. In the number was one car which was rejected as “musty, unfit for feed.” The contract price was $27 per ton. After rejection, it was sold for $33 per ton, and this in the face of knowledge by the purchaser that it had been rejected by the Government. Another rejected car was regraded by an official board of trade inspector at Chicago at one grade higher than the contract called for. Still another car of timothy was rejected as containing fifty per cent grass. It was inspected after rejection by an experienced hay inspector, and was found to contain not over twenty-five per cent grass, which under the Government’s specifications is permissible in No. 2 timothy. It was sold for $3 per. ton in excess of the contract price. These are merely a few typical examples which might be multiplied many times tending strongly to sustain plaintiff’s contention that rejections of hay sold and shipped by plaintiff were erroneous and unjustifiable. Plaintiff is entitled to recover on this item the sum of $38,317.22.

Plaintiff is also entitled to recover the sum of $1,644 under the following facts: Two hundred and seventy-four cars of hay were consigned to Camp Custer, Michigan, which is six miles off the main line of the railroad. The Government deducted from the final payment on this shipment a switching charge of $6 per car. Thereafter, the Government denied liability to the railroad company for such switching charges, and did not pay same, and has not refunded same to plaintiff.

In certain instances the plaintiff shipped from a point carrying a lower freight rate than that specified in the contract, and the Government charged against plaintiff the higher rate, and this item, amounting to $490.32, plaintiff is entitled to recover.

Seven cars of bay were shipped by plaintiff and delivered to the Government for which no payment was ever made. Plaintiff is entitled to recover on this item $1,498.81.

According to commercial custom demurrage against cars being held for inspection is paid by the consignee, whether afterwards accepted or not. The Government agreed to this custom, and it was incorporated in many of the purchase orders. Certain deductions, however, were made on account of demurrage and war tax, arising under such circumstances. There is due plaintiff, on account of this item, $1,176.27.

Certain contracts designated Chicago as the f. o. b. point. A large number of cars shipped on these contracts came from different points outside of Chicago. Plaintiff paid the freight from the point of origin to Chicago, the defendant paying freight from Chicago to the camp. The through rate from the point of origin to the camp was lower than the aggregate of the two local rates. In order to receive the benefit of the lower rate from Chicago to the camp, the Government required plaintiff to reconsign the shipment at Chicago, instead of paying the local freight to that point, and then shipping as though Chicago was the point of origin. In order to accomplish this end, it was necessary to pay a reconsigning charge, which, in some instances, plaintiff paid direct to the railroads, and in other cases defendant paid and deducted same from money due plaintiff. The parties agreed in writing that the Government would pay, and the plaintiff would accept the sum of $3,565.39 in full satisfaction of plaintiff’s claim growing out of this controversy. No part of same has been paid and plaintiff, is entitled to recover said sum.

Certain hay was sold by plaintiff f. o. b. Canadian points, for delivery at camps in the United States. In some instances plaintiff paid the import duty, although it was under no legal obligation to do so. The Government refused to take into account such payments of duty in final payment for this hay. In other instances the Government paid the duty and deducted the amounts from its final payments to plaintiff. Under this class of shipment the Government was obligated to pay all import duties. The amount involved in this item is $281.71, and plaintiff is entitled to recover same.

The agreement provided that the hay sold to the Government was subject to inspection at destination by competent inspectors, as to both grade and weight, in accordance with the commercial rules of the trade, actual weight to control. On shipments covered by one hundred and two purchase orders, the Government weights were less than plaintiff’s weights, and this difference was charged against plaintiff, and deducted, from time to time, from sums due plaintiff. This hay was weighed before shipment, and plaintiff has introduced its original records, as in the question of “ erroneous rejections” hereinabove discussed, showing the actual weights under each purchase, and this evidence is supplemented in several instances by the testimony of the weighers themselves, all tending to support plaintiff’s contention that the weights were correct. The inaccuracy of the weights at the point of destination is established by the overwhelming weight of the evidence, and is completely confirmed by the positive testimony of Government officials directly concerned with the transactions in controversy. Plaintiff is entitled to recover for amounts deducted on account of said difference in weights the sum of $10,423.33.

On account of the scarcity of cars, the Government secured and furnished for use by plaintiff cars of any size. There was no agreement that the hay was to be shipped in cars of a certain capacity or that cars were to be loaded to what is commonly understood in commercial usage as the minimum carload weight. Plaintiff loaded all cars to their physical capacity. The Government charged plaintiff with freight on the difference between actual weight and the so-called minimum weight from the point of shipment to final destination, together .with the war tax. Notices of such deductions did not reach plaintiff until payment was made on the twenty per cent vouchers, many months after the hay had been received at its destination. This was improper, and plaintiff is entitled to recover on this item the sum of $3,824.46.

In spite of the difficulties and disagreements which finally resulted in this law suit the new method proved a distinct success from the standpoint of the Government. An adequate supply was at all times maintained at each of the camps. The general price level was substantially reduced. Hay that cost the Government $28 and $30 per ton under the competitive-bid system was thereafter purchased for $12 per ton. There was saved the Government, according to the estimate of Government officials, not less than a million dollars a month.

There were argued with this case two other cases, Dyer & Company, B-119, and Shofstall Hay & Grain Company, B-120, involving precisely the same issues, and submitted on the evidence in the three cases. The high character and business integrity of the plaintiff in each of these cases is attested by the uncontradicted testimony of Government officials connected with the transactions involved in this litigation. The determinative facts on the more important questions involved were supplied by these Government officials.

A comprehensive statement of the situation is found in a decision of the Board of Contract Adjustment of the War Department in a claim of the Carlisle Commission Company (decisions of the War Department, Vol. VII, p. 1011) in Avhich the facts were identical and the same contract or agreement was involved. The decision is printed as an appendix to plaintiff’s brief. The statement is as follows: “The contracting officers intended and endeavored at all times-to carry out the terms of the oral agreement, which was the real subsisting contract; but were prevented from doing so by the force of circumstances beyond their control, and before they could establish an efficient organization for the perform\ance of the Government obligation, hostilities ceased.” (Our italics.) Plaintiff’s claim in the Carlisle case was allowed and paid.

Plaintiff is entitled to judgment, and it is so ordered.

Green, Judge; Graham, Judge; and Booth, Chief Justice, concur.  