
    THE ENSIGN-BICKFORD COMPANY v. THE UNITED STATES
    [No. B-210.
    Decided February 21, 1925]
    
      On the Proofs
    
    
      Contract; hreach; replacement of materials. — Where plaintiff enters into a contract with the Government to manufacture and deliver certain articles and afterwards the Government enters into a supplemental agreement with plaintiff that if it will furnish certain materials going into the manufacture of said articles the Government will replace the same with materials of equal quality, and the Government replaces the same with defective mater.als, it is a breach of the supplemental agreement and plaintiff may recover the amount of its actual loss.
    
      The Reporter’s statement of the case:
    
      Mr. Charles Welles Gross for the plaintiff. Gross, Gross c& Ilyde were on the briefs.
    
      Mr. Heber II. Rice, with whom was Mr. Assistant Attorney General Robert II. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff, The Ensign-Bickford Company, is a corporation organized under the laws of the State of Connecticut, and is located in the town of Simsbury, county of Hartford, in the State of Connecticut. It is a manufacturer of safety fuses, including detonating fuse known as Cordeau-Bickford.
    II. Under date of March 25, 1918, the Procurement Division of the War Department wrote the petitioner, the Ensign-Bickford Company, the following letter :
    WAR DEPARTMENT, PROCUREMENT DIVISION,
    Oeeice oe the Chief of Ordnance,
    Sixth and B Streets NW.,
    
      Washington, March 26, 1918.
    
    The Ensign-Bickford Company,
    Simsbury, Conn.
    
    Gentuemen:
    Subject: Cordeau-Bickford detonating fuse.
    1. I am directed by the Acting Chief of Ordnance to. secure quotations from you on approximately 1,000,000 ft. of Cordeau-Bickford detonating fuse.
    2. ks we note that this fuse requires grade. 1 powdered T. N. T., it .is requested that your quotation will b.: both inclusive and exclusive of T. N. T., as it is most probabL: that should you secure contract the Government would provide you with the necessary T. N. T.
    3. Kindly advise your usual method of packing this fuse, both for domestic and overseas shipment.
    
      4. If necessary, the Government might also furnish yo,u with necessary lead tubing, and we will appreciate your advising at what price you could purchase this article, at the same time giving us the dimensions of same.
    5. Kindly let us have your proposition in our hands not, later than April 1st.
    Respectfully,
    Explosive Section-,
    C. B. Peters,
    
      Gaft. Ord. R. ¿7.,
    By E. D. SMITH,
    
      Lieut. Ord. R. 0.
    
    III. In reply thereto the plaintiff wrote the Procurement Division a letter, dated March 21,1918, of which the following is a copy:
    MaRCh 27, 1918.
    The Explosive Section, PROCUREMENT Division,
    
      Ordnance Defartment, Sixth d¡ B Streets NW.,
    
    
      Washington, D. G.
    
    (Attention of Lieut. E. D. Smith, Ord. R. C. 471822.)
    Gentlemen: We have your letter of March 25th, file P 4281, in regard to price on approximately 1,000,000 ft. of Cordeau-Bickford Detonating Fuse.
    
      # 1. We presume you have reference to the samé as we have furnished Black & Decker; namely, our regular No. 6 plain Cordeau. If we have your order promptly so that we can contract for the n.cessary lead and T. N. T. and, furthermore, providing the Government will permit us to obtain the necessary supplies of lead and T. N. T., our price to you would be $35.90 per 1,000 ft. net, f. o. b. Simsbury, Conn.
    
      #2. If the. Government furnishes at its own expense the T. N. T.- delivered Simsbury, our price would be $7.80 less than the above; namely, $28.10 per 1,000 ft. net, f. o. b. Sims-bury, Conn. We have based this quotation on T. N.'T. at 60 cents a pound.
    #3. The usual m thod of packing Cordeau is on spools containing approximately 450 to 500 ft. each, two of these spools being packed in %-inch wooden case with sawdust filling. For export these cases are wire strapped. The approximate shipping weight of cases is 130 lb.s.
    
      #4. Our present quotations on lead pipe for the manufacture of Cordeau are 8% cents per lb. The size is what is known as % E., having an exterior diameter of about % 
      inch and an interior diameter of about % inch. It is a special kind of lead, and we would not undertake to make Cordeau from any other variety. We have been purchasing it from the National Lead Company, and we believe them to be the only company from whom this particular grade that we use can be obtained.
    #5. The T. N. T. from which this material is made, is of the very highest grade obtainable; and we have been securing our supply from.the Du Pont Company, shipments being made from their Barksdale, Wis., plant. You will, therefore, recognize the necessity of ample notice so'as to overcome transportation delays. Furthermore, there is considerable delay involved in securing releases of T. N. T. through the War Industries Board.
    #6. As to deliveries, beg to say that we are at the present moment working on an order for the General Engineer' Depot, U. S. Army; and it will probably require two or three months more to complete it. However, we believe that we are well ahead of their actual requirements and have little doubt but that we could assign yoq. what quantities might be absolutely necessary for' the next month or two without materially inconveniencing them; but before actually doing so, we would like to take the matter up with them. After completion of the above referred to order, we could turn out for you, provided our regular method of packing is acceptable, about 10,000 ft. per day.
    Yours very truly,
    The ENsigN-Bigkfoed Co.,
    II. E. Ellswoeth, Treasurer.
    
    HEE/LA .
    IY. On March 26, 1918, the Production Division wrote The Ensign-Bickford Company, inquiring as to grade, melting point, and granulation of T. N. T. to be shipped to The Ensign-Bickford Company, of which letter the following is a copy:'
    CFB/nm
    Maeoh 26, 1918.
    ENSigN-Bickfoed Co.,
    Salisbury, O own.
    
    Subject: Shipment of T. N. T.
    GentlemeN: 1. Your letter of March 13th, addressed to the War' Industries Board, has been referred to this department for reply. We are requesting that 20,000 pounds of T. N. T. be shipped to your plant at Simsbury, Conn. We are not familiar with the kind of T. N. T. required. Will you kindly advise the grade, giving the melting point and granulation?
    By order of Acting Chief of Ordnance.
    Respectfully,
    C. F. Backus,
    
      Major, Ord. B. 0.
    
    V.In reply to the letter' specified in the last paragraph plaintiff wrote to the Production Division a letter stating the requirements of the petitioner as to the grade of T. N. T. for the manufacture of Cordeau, a copy of which is as follows:
    Maech 28, 1918.
    Major C. F. Backus,
    
      Gun Section, Production Div.,
    
    
      Seventh & B Streets, Washington, D. 0.
    
    
      - Dear Sir: Your letter of March 26th, your file MG 471868/737. We use high melting point T. N. T. 80.5° C. Granulation must be a degree of fineness to pass through 12-mesh sieve; must conform to the Government specifications for commercial refined T. N. T.
    It is necessary that we have, for the manufacture of Cor-deau, the highest grade of T. N. T., such as has always been furnished us by the Du Pont Powder Company from their plant at Barksdale, Wis. In releasing 20,000 lbs. of T. N. T.. can it not be done through the Du Pont Powder Company, specifying “the same as shipped to the Ensign-Bickford Company on former shipments.”
    Yours very truly,
    The ENSigN-Bickeord Co.,
    J. K. BraNDON,
    
      Assistant Secretary.
    
    VI. Under date of August 9th, 1918, the War Department of the United States entered into a contract with plaintiff, known as War Order P 132A-2324 T. W., for the manufacture by petitioner and sale to the United States of 396,-779 feet of Cordeau-Bickford fuse, deliveries thereof being-specified as 'follows:
    146,779 feet to be delivered between August 15th and September 15, 1918, and 250,000 feet between September 15th and October 15th, 1918, with the right to anticipate these deliveries.
    VII. Subsequently, by letter dated September 9, 1918, the Department advised plaintiff that it would require a total of 550,000 feet instead of 396,779 feet and that an amendment for the additional 163,221 feet for delivery between October 15th and November 15, 1918, was in preparation and would be mailed to it, and such amended order or contract was subsequently delivered under the actual date of October 21, 1918.
    VUE. One of the constituent parts of such Cordeau-Bick-ford fuses is trinitrotoluol, a high explosive commonly and popularly known as T. N. T. and so designated in contracts and orders and thus hereinafter designated.
    IX. The foregoing order from the Government was made and accepted on the basis that the T. N. T. to be used in the manufacture of such Cordeau-Bickford fuse thus ordered was to be furnished by the Government at its expense and was to be T. N. T. of the best quality made by the E. I. du Pont de Nemours & Company (hereinafter called the du Pont Company) at its Barksdale, Wisconsin, plant.
    X. Owing to the conditions then existing in 1918 the United States was delayed in securing from the du Pont Company and furnishing to plaintiff the T. N. T. to be used by it in manufacturing the Cordeau-Bickford fuse called for by the contract above referred to. Accordingly the United States, through the War Department, subsequent to the acceptance of said orders requested plaintiff to use its own supply of T. N. T. then on hand and in stock previously purchased by it for manufacturing such fuse for its regularly commercial trade, and plaintiff subsequently agreed with the procurement division of the Ordnance Department that it would do so upon the understanding that the United States would later furnish to it, without cost, to replace plaintiff’s stock thus depleted the same quantity of T. N. T. which plaintiff should use in filling said contract, such T. N. T. to be furnished by the Government to be of the same quality which the plaintiff had purchased from the du Pont Company for its own trade. This agreement for the replenishing of plaintiff’s stock thus to be depleted was originally made verbally with H. E. Ellsworth, treasurer of the Ensign-Bickford Company, at the office of the Ordnance Department in Washington, following a letter from the Ensign-Bickford Company, dated August 28, 1918, to Lieutenant E. R. Moody, of the explosive section, of which the following is a copy:
    
      August 28, 1918.
    Lieut. E. R.. Moody,
    
      Explosive Procurement Div. Ord. Dept.,
    
    
      Washington, D. G.
    
    Dear Sir: Since telegraphing you on August 23rd, we 471 82 have your letter of August 22d, File P ~2140~ s^a^nS that war order P-13274-2324-tonnage weight is a contract for 396,779 feet Cordeau-Bickford fuse with us.
    If we had the packing specifications or a letter from you, stating that it is satisfactory to make shipments of regular stock, we could commence shipping at any time, but you will recall that you preferred to furnish the trinitrotoluol, and in consequence we agreed on a price of $28.10 per 1,000 feet f. o. b. Simsbury. If we send shipments from our present stock how shall we arrange about replacements ?
    Furthermore, up to date we have not received any instructions as to the exact packing specifications and tests to which the material will be subjected by the local inspector.
    Yours truly,
    The Ensign-Bickford Co.,
    (Signed) H. E. Ellsworth, Treasurer.
    
    XI. Confirmation of the verbal agreement was made in a letter from plaintiff to Lieutenant Moody, dated September 3,1918, of which the following is a copy:
    Sept. 3, 1918.
    Lieut. E. II. Moody,
    
      Explosives Section, Procurement Division,
    
    
      Ordnance Department, Washington, I). O.
    
    (Attention of Lieut. J. S. Keir.)
    Dear Sir: With reference to Cordeau contract P-13274-2324 TW and Lieut. Keir’s letters of August 26th and 30th on this subject, beg to advise that we understand everything now and are ready to make shipment of part of the order just as soon as we receive word from you that it will be satisfactory to take stock Cordeau with the understanding that the T. N. T. which you are to furnish on this contract may be used by us on our commercial orders to replace the quantity which has entered into the fulfillment of your contract. If on receipt of this letter, you will wire us to ship stock Cordeau, we will understand that you accept this condition and then we will go ahead with shipments.
    Yours truly,
    The ENSigN-Bickford Co.,
    (Signed) H. E. Ellsworth, Treasurer.
    HEE/LA
    
      Nil. As requested in that letter, the procurement division telegraphed plaintiff on September 5, 1918, as follows:
    WASHINGTON, D. C., Sept. 5,1918.
    
    The Ensign-Bickeord Co.,
    Simsbury, Oonn.:
    
    Stock Cordeau satisfactory. Condition mentioned in your letter September third accepted.
    PROCUREMENT DIVISION, No. 19022,
    HU/LA Army Ordnance.
    
    2:00 PM*
    XIII. And this agreement was further confirmed by a letter from plaintiff to Capt. C. S. Yeomans, of the Inspection Division, dated September 6, 1918, of which the following is a copy:
    Sept. 6, 1918.
    Capt. C. S. Yeomans,
    
      Inspection Division, Ordnance Dept.,
    
    
      % P. & F. Corbin, New Britain, Conn.
    
    (Attention of Lieut. Beall.)
    Dear Sir: In regard to our telephone conversation yesterday morning on the subject of order for Cordeau contract P-1327A-2324r-TW, beg to advise that we have received a wire from Washington stating that it will be satisfactory for us to ship stock Cordeau with the understanding that the Government will release to us an amount of T. N. T. equivalent to what enters into the product we ship on this order. We are therefore prepared to commence shipment at once under the direction of your Mr. Schreiber.
    Yours truly,
    The Ensign-Bickeord Co.,
    (Signed) H. E. Ellsworth, Treasurer.
    
    HEE/LA
    Copy to Mr. F. W. Schreiber.
    XIY. The local inspector stationed at plaintiff’s plant by the Ordnance Department at that time was Mr. F. W. Schreiber, and he is the person referred to by that name in the foregoing letter.
    XV. In pursuance of this distinct and separate agreement, plaintiff out of its own stock used in filling such Government order 7,526 pounds of best quality T. N. T. then owned by it.
    XVI. All the T. N. T. made by the du Pont Company ■for the plaintiff’s use in its trade, including that which plaintiff owned at that time and which it used in the completion of said Government contract, was refined by the carbon tetra chloride method, which was the method used by the du Pont Company at its Barksdale plant in the manufacture of the best quality of T. N. T. known as Grade I, for many years prior to December 7,1917, on or about which date a change was made as hereinafter set forth in Finding XVIII.
    XVII. The T. N. T. used by the plaintiff to fill said Government order was T. N. T. of the highest quality, made by the du Pont Company at its Barksdale plant refined by the carbon tetra chloride process.
    XVIII. Without the knowledge of the plaintiff but with the approval of the War Department given on December 7, 1917, the du Pont Company changed the method of refining T. N. T. made by it for the United States Government by discontinuing the use of carbon tetra chloride as the solvent for refining T. N. T. and adopting the sodium sul-phite process known as the cellite process for such refinement of T. N. T. made by it for the Government. The approval of War Department above referred to was contained in a letter from the Ordnance Department to the du Pont Company, dated December 7, 1917, of which the following is a copy:
    WAR DEPARTMENT, INSPECTION DIVISION,
    Oeeice oe the Chief of Ordnance,
    Seventh and E Streets NW.,
    Washington, December 7,1917.
    
    [Address reply to War Department, inspection section Gun Division, Office of Chief of Ordnance, Albemarle Bldg., Twenty-fourth Street and Broadway, New York]
    In replying refer to No. N471.868/44 du Pont fh/ql Subject: T. N. T. manufactured by the sulphite wash process.
    E. I. dh Pont de Nemours & Company,
    
      996 du Pont Building, Wilmington, Delaware.
    
    (Attention Mr. E. G. Buckner, V. P.)
    Sirs : 1. This office has been informed by your Mr. Bryan and Mr. Marshall that, due to certain difficulties which have been experienced with the sulphuric acid wash process at Barksdale which was formerly devoted to the sulphuric acid wash process manufacture of T. N. T. over to a method of purification using sodium sulphite. It is the understanding of this ofiice that this process has been used successfully abroad and, in some places, in this country.
    2. This is to inform you that this office will not object to the use of the sodium-sulphite method of purification of T. N. T. provided the T. N. T. so purified meets with the specifications laid down in the contract which you have with the Ordnance Department, U. S. Army.
    B. W. DuNN,
    
      Lieut. Gol., U. S. Army, Retired,
    
    By F. II. Miles, Jr.,
    
      Major, Ordnance Dept., TJ. ÍS. A.
    
    
      Inspr. Powder <& Explosives.
    
    XTX. Later the Government shipped to the Army inspector of ordnance at the plant of the plaintiff at Simsbury, Connecticut, two lots of T. N. T.
    One of said lots was shipped September 14, 1918, from the Barksdale plant of the du Pont Company, consigned to the Army inspector of ordnance at the plaintiff’s plant at Sims-bury, Connecticut, and consisted of 25,326 pounds, grade 2, as stated in the invoice in the possession of the Government. The foregoing shipment consisted of T. N. T. known as grade 2, and was not of the best quality, although it satisfied the revised Government specifications for T. N. T. issued following the approval of December I, 1911, above referred to, which revised specifications were issued by the Ordnance Department under date of March 30, 1918, and read as follows : “Acid as sulphuric acid — not more than 0.01 per cent.”
    The second lot consisted of 9,800 pounds shipped September 19, 1918, from the Sandy Hook general supply ordnance depot, consigned to the Army inspector of ordnance, at plaintiff’s plant, Simsbury, Connecticut, and this shipment consisted of T. N. T., Grade I, which was of the best quality.
    These two shipments, aggregating 35,126 pounds, were stored separately from the plaintiff’s stock in a separate magazine at plaintiff’s plant in Simsbury.
    In making these shipments the Government furnished to plaintiff a quantity of T. N. T. vastly in excess of. plaintiff’s requirements, and in so doing the Government did not differentiate in the quality. The invoice for the larger shipment, .consisting of grade 2, was never furnished to plaintiff and it did not know of the difference in grade, but relied upon the information which had been furnished to it by the Procurement Division by letter addressed to the petitioner, dated 'August 30, 1918, that the T. N. T. which was being shipped was that made by the du Pont Company at their Barksdale plant and believed to be of the grade of T. N. T. which the plaintiff had been accustomed to using, of which letter the following is a copy:
    'JSK/ep
    Tel. War Br. 1336.
    WAR DEPARTMENT,
    Office of the Chief of Ordnance,
    Procurement Division,
    
      Washington, August SO, 1918.
    
    Attention of Lieutenant Keir, explosives.
    Ensign-Bickford Co.,
    
      Simsbury, Oonn.
    
    Subject: T. N. T. for Cordeau-Bickford fuze.
    Gentlemen: 1. Supplementing our conversation of this morning; I am informed by the production division that the T. N. T. shipped for.the Cordeau-Bickford fuze is that which is made by the du Pont Company at their Barksdale, Wis., plant.
    2. It is thought that this is the grade of T. N. T. which you are accustomed to using and the one to which you had reference this morning.
    3. Replying to your letter of August 28th on this same subject: It is thought that telephone conversation of this morning has cleared up any points which may be in doubt.
    By direction of the Chief of Ordnance.
    Respectfully,
    Explosive Section,
    (Signed) C. B. Peters,
    
      O. K. J. S. K., Major, Ord. Deft. U. S. A.
    
    NX. Out of these shipments, in accordance with agreement, 1,526 pounds were withdrawn and used by the petitioner for its own purposes in the manufacture of Cordeau for the commercial trade to replace its own T. N. T. previously used as above stated on the Government contract, in reliance upon the express representation of the United States that such T. N. T. was made by the du Pont Company at its Barksdale plant and was of the same best quality as T. N. T. made by the du Pont Company for the petitioner.
    XXI. In using said T. N. T. supplied by the Government, plaintiff used it without knowledge or suspicion that it was not in every way of the best quality and manufactured and refined by the same methods always used by the du Pont Company in making T. N. T. for the petitioner, to wit, by the carbon tetra chloride process; and plaintiff then had no knowledge that the du Pont Company were using another method of refinement for T. N. T. made on Government order.
    XXII. Later in April, 1919, as a result of complaints from commercial customers of the plaintiff company in various parts of the United States, it was discovered that the T. N. T. thus supplied by the United States to replace plaintiff’s own stock as above stated was defective in that the use of T. N. T. refined by the cellite process caused deterioration in the quality of the fuse, and for that reason the Cordeau-Bickford fuse manufactured with the T. N. T. supplied by the United States and refined by the cellite process became insensitive with age and failed to detonate properly through the regular connections when used by the trade. This deterioration did not become evident until it had aged.
    XXIII. It was not until such complaints were being received from plaintiff’s customers that it, upon analysis and inquiry of the du Pont Company, discovered that most of the T. N. T. supplied by the United States as aforesaid was not of the same best quality as that supplied by the du Pont Company to plaintiff, but was refined by different process, to wit, by the cellite process. This defect was a latent defect which could not be and was not ascertained upon receipt of the shipment of the T. N. T. at the plant of the plaintiff.
    XXIV. The tests made by plaintiff after the receipt of such complaints disclosed that of the balance of T. N. T. still on hand after' the withdrawal of 7,526 pounds, as alleged in Finding XX, 17,800 pounds were found not to be up to plaintiff’s required standard of quality and were returned to the United States, and 10,134 pounds were found to have been refined by the carbon tetra chloride process, and by agreement with the Government this latter amount was purchased by the plaintiff company for its own use as hereinafter stated in Finding XXXIII.
    XXXV. Cordeau-Bickford fuse as manufactured by the plaintiff contains approximately 13.01 pounds of T. N. T. in each 1,000 feet of fuse. At this rate 7,526 pounds would make 575,822 feet of Cordeau-Bickford fuse, of which the plaintiff still had in stock 293,579 feet when the defect was discovered, divided as follows:
    Feet
    Countered Cordeau_281,183
    Plain Cordeau_ 12,396
    Excluding all Cordeau fuse manufactured and shipped to the trade before discovery of deterioration, the loss to the petitioner is computed as follows:
    
      (a) 13.07 pounds of T. N. T. per 1,000 feet Cordeau at the agreed price of 18 cents per pound equals $2.35 per 1,000 feet as the cost of T. N. T., which amounts to_ $689. 91
    (5) Labor and materials other than T. N. T. expended in manufacturing 293,579 feet, at $18.22 per 1,000 feet- 5,349. 01
    (c) Additional labor and materials expended by the petitioner in countering 281,183 feet, at $2.00 per 1,000 feet_562. 37
    Total claim, excluding Cordeau manufactured and shipped to the trade before discovery of the deterioration _6, 601.29
    In addition to the foregoing loss, for which claim is made, plaintiff has been obliged to expend a large sum of money in making good to the trade the loss incurred by ‘it through the purchase of defective fuse made from the T. N. T. supplied by the Government, as above stated.
    XXVI. The plaintiff’s claim for the foregoing amount, less credits as hereinafter set forth, was presented under date of April 28, 1919, within the period prescribed by the act of Congress entitled “An act to provide relief in cases of contracts connected with the prosecution of the war, and for other purposes,” approved March 2,1919.
    XXVII. Upon this claim a report was made to the Bridgeport district claims board, dated July 8, 1920, recommending that the claim be paid, of which report the following is a copy:
    
      jfd.
    July 8, 1920.
    From: D. McIntyre.
    To: B. H. Smith, representative, Bridgeport district claims board. '
    Subject: Claim of Ensign-Bickford Company.
    1. We submit herewith claim of the Ensign-Bickford Company, of Simsbury, Conn., in connection with their contract P 13274^2324 Tw.
    2. This claim is for 293,579 ft. of Cordeau manufactured by the Ensign-Bickford Company and which they now have in stock at their plant.
    3. It is claimed by the Ensign-Bickford Company that this Cordeau was manufactured from an inferior grade of T. N. T. furnished them by the United States Government to replace some Cordeau taken from their own stock. The total amount of Cordeau manufactured from this T. N. T. furnished by the Government was 575,822 ft., of which 282,243 ft. had been shipped to their trade. For this they are making no claim. They only make claim for what they have in stock at the present time.
    Original amount of this claim-$6, 647. 52
    Final amount of claim_ 4,477.17
    A salvage offer of $300 is made by the contractor on the Cordeau they now have in stock, as they claim that the lead used in the manufacture of this Cordeau would be the only material which they could make use of.
    4.I have investigated this claim amounting to $4,477.17 and think it fair and just, and recommend that it be paid.
    D. MclNTYRE,
    
      Claim No. O-BO §319.
    
    XXVIII. Under date of July 29, 1920, the Bridgeport district ordnance office reported to the ordnance section of the War Department Claims Board, of which report the following is a copy:
    Ordnance Department,
    Oeeice of Ordnance District Chief,
    The District Claims Board, 945 Main Street,
    
      Bridgeport, Conn., July %9,19W.
    
    From: Claims representative, Bridgeport district ordnance office.
    To^Mr. C. J. Clark, ordnance section, War Department Claims Board, Washington, D. C.
    Subject: Ensign-Bickford Company.
    
      1. We are transmitting herewith claim of Ensign-Bick-ford Company, which w.e talked over when you were in Bridgeport.
    2. There is one point which I do not think has been brought out clearly enough; that is, that the contractor msed his own stock of T. N. T. to make the delivery of fuse that was so urgently needed by the Government.
    3. Before he accepted the order, he had it understood, both by telephone message and in correspondence, which is in this file, that the Government would replace T. N. T. of the same quality as he has been accustomed to use. If this had been clone there would have been no claim.
    4. This contractor has always been very fair in his dealings with the Government and believe that he is entitled to this amount, which is not the entire amount of his loss but only the value of the fuse remaining on hand.
    B. H. Smith,
    
      Claims Representative
    
    
      Bridgeport District Ordnance Officer.
    
    XXIX. Under date of September 1, 1920, the ordnance section of the War Department Claims Board advised the Bridgeport district ordnance office that the action of that board in rejecting the claim of plaintiff was because of lack of jurisdiction, on the ground that it was a claim growing out of a contract fully performed and paid for, and that the claim of the contractor arose out of the sale of material to him (as they believed) by the Salvage Board, to whom the claim should be presented. This was due to a confusion of plaintiff’s claim which was based solely on the agreement to replace the material furnished by plaintiff with the order ?-13274^-2324 TW under Avhich the United States was to furnish the T. N. T. required to make the Cordeau.
    XXX. Later the representative of the Bridgeport district ordnance office and Mr. Fitzrandolph, a member of the Salvage Board, visited the plaintiff’s plant at Simsbury, attempted to settle this matter as suggested in the letter of September 1, 1920, above referred to, and as the result of that visit a further report from the Bridgeport district ordnance office was made to the War Department Claims Board under date of December 28, 1920, supporting the claims of plaintiff; finding that the T. N. T. in question was manufactured by a different process, which deteriorated in lime and was therefore not in accordance with the contract conditions, and that the damage had been clearly shown, of which report the following is a copy:
    BostoN AND Seaview Avenues,
    
      December 28,1920.
    
    From: Claims representative, Bridgeport district ordnance office. *
    To: Ordnance section, War Department Claims Board, Washington, D. C.
    Attention: Mr. C. J. Clark.
    Subject: Ensign-Bickford Company — Contract P 13274-2324 Tw.
    1. Would refer you to your letter on this case of September 1, copy of which is inclosed for your information.
    2. Would advise that Mr. Fitzrandolph and the writer went to Simsbury to attempt to settle this matter as outlined in your letter. Mr. Fitzrandolph is a member of the salvage board and head of the materials branch, and when the Bridgeport claims board was in existence was member of that board, being manager of the artillery ammunition section.
    3. We were unsuccessful in coming to any agreement and ■came away with a slightly different impression of the circumstances.
    4. The contractor’s version of the claim is'given in the accompanying letter, and I wish to call your attention to a few of the points which were brought out at the meeting.
    5. The claim does not arise from the sale of the 10,134 pounds of T. N. T. which the contractor inspected and accepted. It is to be noted that this amount which was purchased is only a few hundred pounds more than the lot shipped to them from Sandy Hook of 9,800 pounds. In other words, when they inspected the surplus T. N T. at their plant and accepted 10,134 pounds, they took over this Sandy Hook lot and only a few hundred pounds more, and they are still satisfied with its quality.
    6. The loss occurred prior to this sale and has nothing whatever to do with it.. The Government entered into contract to return to them T. N. T. of equal quality to that used for the manufacture of fuse which was so badly needed while the war was still in progress. This is shown clearly by previous evidence submitted.
    7. The T. N. T. was shipped from Barksdale, and when this was not delivered the Bridgeport office was instrumental in obtaining the shipment from Sandy Hook, which arrived first.
    
      8. Both lots of T. N. T. were put into Government storage and some 7,000 pounds were withdrawn by authority of that contract, which provided for the reimbursement to the contractor of stock used from their own stores. It is this stock which was withdrawn from the Government warehouse, manufactured into commercial fuse, and shipped to their trade which occasioned all the trouble. It later developed that the lot from Barksdale was manufactured by a. different process, which deteriorated in time and therefore was not in accordance with the contract conditions.
    9. It is the opinion of the writer that if the claims board have not jurisdiction in such a case that the papers should be forwarded to some Government department which has authority to grant relief, as the damage done is, in our opinion, clearly shown.
    B. H. Smith,
    
      Claims Representative, Bridgeport,
    
      District Ordnance Office.
    
    XXXI. Under date of December 29, 1920, the War Department Claims Board declined to reopen its decision that it lacked jurisdiction and suggested that the contractor endeavor to obtain an adjustment of its claims through the manufacturing or material section.
    XXXII. Later the claim was submitted to the manufacturing division of the Ordnance Department, which replied that the claim should be submitted to the district claims board or ordnance claims board, which was done and a reply was received from the Treasury Department, Office of Auditor for the War Department, which ruled that as the claim involved elements and facts in dispute to such an extent that the merits of the claim upon the evidence submitted could not be determined and adjusted the claim was disallowed by that office, and thereafter the plaintiff addressed the Secretary of War in the premises and in reply the Assistant Secretary of War advised it that “ If the decision of the comptroller is not in accordance with the law and the facts an adequate and speedy remedy for the redress of the wrong done you is extant in the Court of Claims.”
    XXXIII. As a partial offset to said claim plaintiff in paragraph XVIII of its petition has averred and admitted that after the discovery that most of said Cordeau was defective for the reasons above alleged, it tested and ac-cex^ted for its own uses 10,134 pounds of T. N. T. thus supplied by the Government, as stated in finding XXIV hereof, for which, except as above stated, it is obligated to the Government at the agreed price of 18 cents per pound, or $1,824.12, and the United States advised plaintiff that the payment for this material thus accepted might be held up, until presentation of plaintiff’s claim on the same contract for defective Cordeau-Bickford fuse due to the defective T. N. T. as above stated; and also that said claim is subject to the further offset of $300, the amount agreed upon between the United States and plaintiff as the salvage value of the lead contained in the defective fuse which could be salvaged by it, which defective fuse had no other value than the salvage value of the lead.
    The court decided that plaintiff was entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

The essential facts of this case are these: On August 9, 1918, the United States entered into a contract with the plaintiff for the manufacture and sale to the United States of 396,779 feet of Cordeau-Bickford fuse, and subsequently by letter of September 9, 1918, the United States advised the plaintiff that it would require 550,000 feet of said fuse. One of the constituent parts of such Cordeau-Bickford fuse is trinitrotoluol, commonly known as T. N. T. The T. N. T. to' be used in the manufacture of said fuse was under the terms of the contract to be furnished by the United States and was to be T. N. T. of the best quality made by the dn Pont Company at its Barksdale, Wis., plant.

The United States was delayed in securing from the du Pont Co. and furnishing the plaintiff the T. N. T. to be used in the performance of the contract. The United States, through its War Department, and subsequent to the execution of the contract, requested the plaintiff to use its own ’T. N. T. then on hand and previously purchased by the plaintiff for use in its commercial trade. The plaintiff agreed to furnish the said T. N. T. for use in the performance of its contract with the Government if the United States would agree, on its part, to later furnish to the plaintiff the same quantity and, quality of T. N. T. which the plaintiff should use in performing its contract with the Government. To this the United States agreed. In pursuance of this agreement the plaintiff out of its own stock used in performing this contract with the Government 7,526 pounds of best quality T. N. T. then owned by it.

There were two process for refinement of T. N. T.: One the carbon tetra chloride process, the other the cellite process. The T. N. T. bought and used by the plaintiff in filling the Government contract was T. N. T. refined by the carbon tetra chloride process by the du Pont Company at its Barks-dale plant.

Later the United States shipped to the Army inspector of ordnance at the plant of the plaintiff two lots of T. N. T., one lot of 25,236 pounds, grade 2, and not of the best quality. The other lot was of 9,800 pounds of T. N. T., grade 1 and was of the best quality. These two shipments aggregating 35,126 pounds were stored separately from the plaintiff’s stock in a separate magazine.

In making these shipments the United States furnished to the plaintiff a quantity of T. N. T., quality in excess of its requirements, and in so doing the United States did not differentiate in the quality of the T. N. T. The plaintiff was in entire ignorance of the difference in grade, the United States having informed the plaintiff on August 30, 1-918, that the T. N. T. so shipped was made by the du Pont Company at its Barksdale plant, and was of the same quality of T. N. T. which the plaintiff had furnished the Government. To replace the quantity of T. N. T. furnished by the plaintiff 7,526 pounds were withdrawn by the plaintiff out.of these shipments and used by it in the manufacture of fuse for its commercial trade. In using the said T. N. T. so furnished plaintiff by the United States the plaintiff had no knowledge that it was not the best quality of T. N. T. and had no way of acquiring knowledge to that effect. The defect in the T. N. T. was a latent defect and could not be detected until it had aged.

In April, 1919, as a result of complaints frtim customers of the plaintiff it was discovered that the T. N. T. thus supplied by the United States to replace the T. N. T. furnished the United States by the plaintiff was defective, and caused deterioration in the quality of the fuse, and the fuse manufactured with the T. N. T. supplied by the United States became insensitive with age and failed to detonate properly. The fuse manufactured from this T. N. T. furnished by the United States was and is of no value whatever. The plaintiff manufactured and has on hand 293,579 feet of Cordeau fuse made with the T. N. T. so furnished by the Government.

Its claim is for $686.91, the cost of T. N. T., and $5,349.01 labor and materials other than T. N. T. expended in manufacturing 293,579 feet of fuse; in all, $6,601.29. (See Finding XXV.) There is to be deducted from this amount $300 salvage value of lead, and $1,824.12, the agreed price for 10,134 pounds of T. N. T. bought by plaintiff from the United States.

It is well settled that the principles which govern inquiries as to the conduct of individuals, in respect to their contracts, are equally applicable when the United States is a party. (United States v. Smith, 94 U. S. 214-217; Smoot's case, 15 Wall. 36.)

The contract which we are considering is valid and binding on the United States as well a.s upon the plaintiff. If there has been a breach upon the part of the United States the United States is liable in damages for the breach on the same principles and to the same extent as a private party, for which a suitable remedy is provided by law in the jurisdiction conferred upon this court. (Chicago and Northwestern By. Co. v. United States, 104 U. S. 680-685.)

There can be no doubt from the facts found that the United States breached its contract with the plaintiff by their failure to replace the quality of T. N. T. which they had agreed to do, and as a consequence of this the plaintiff has suffered damage. In order for the plaintiff to recover its damages must be the direct and proximate result of the injury complained of, and must be proven with certainty.

The damages complained of in this case resulted directly from the action of the United States’in failing to supply the quality of T. N. T. which it had agreed to supply. The T. N. T. so supplied by the United States was of no value to the plaintiff, and its agreed price of $689.91 was a loss which the plaintiff can recover.

The labor and other materials expended in the manufacture of the fuse manufactured from the T. N. T. furnished by the United States was lost because of the failure of the United States to comply with their contract. Because of the latent defect in the T. N. T. the plaintiff could not know when it manufactured the fuse that it would be a total loss; and having the right to rely upon the agreement that the T. N. T. furnished by the United States wa.s to be of the best quality, the plaintiff incurred the loss as a direct result of the failure of the United States to keep its agreement. The losses so incurred by the plaintiff flowed from the defects of the T. N. T. furnished by the United States, and strict justice demands that the damages so resulting from the breach of the contract by the United States 'must be paid by them.

A judgment will be entered for the plaintiff.

It is so ordered.

Booth, Judge, and Downey, Judge, concur.

Campbell, Chief Justice,

concurring:

In my opinion, the Government is liable in this case as upon a warranty, and I concur in the judgment. See Dushane v. Benedict, 120 U. S. 630, 636; Williams v. Perotta, 95 Conn. 529, 531; Johnston Mfg. Co. v. Wilson Thread Co., 269 Fed. 555, 557; Gascoigne v. Cary Brick Co., 217 Mass. 302, 305; Griffin v. Metal Products Co., 264 Penn. State 254.

Ghaham, Judge, dissents.  