
    GEORGE S. WOLBERT, RECEIVER OF THE NEAFIE & LEVY SHIP AND ENGINE BUILDING COMPANY v. THE UNITED STATES
    [No. 15009 Congressional.
    Decided January 8, 1940]
    
      Mr. Frank F. Nesbit for the plaintiff. Mr. Justin L. Edgerton was on the briefs.
    
      Mr. Assistant Attorney General Francis M. Shea for the defendant. Messrs. Arthur Cobb and William W. Scott were on the brief.
   Williams, Judge,

delivered the opinion of the court:

This case comes before the court upon a reference by Senate Resolution 269, of June 21, 1910, 61st Congress, 2d Session, referring plaintiff’s claim, with numerous others, under Senate Bill 8533. The Senate bill proposed to appropriate $371,066.37, as the difference between the actual cost of constructing the vessels involved and the amount paid plaintiff under the contract.

The petition alleges that the actual cost for the construction of the vessels was $1,225,714.98, which involved an actual loss to the plaintiff of $355,452.60, for which amount the court is asked to make a favorable finding. We have found as a fact (Finding 12) that the actual cost of the construction of the vessels was $974,083.94, and that the amount received was $870,262.38, or a loss of $103,821.56. This loss is determined on the basis of the report of the commissioner of the court to whom the case was referred and to whose report neither the plaintiff nor the defendant filed exceptions.

While the builders of the Bainbridge, Barry, and Ghawncey sustained a loss of $103,821.56, plaintiff’s claim for reimbursement in that amount is neither a legal nor equitable one in a juridical sense. This loss was not caused from any breach of contract, none being alleged in the petition filed herein, and none being established by the facts. Any compensation to which plaintiff may be entitled rests entirely in the discretion of Congress. It is therefore ordered that the facts as decided and determined by the court be reported to the Senate of the United States for whatever action Congress in its wisdom may deem just and proper. It is so ordered.

LittletoN, Judge; GeeeN, Judge; and Whaley, Chief Justice, concur.

Whittakee, Judge, took no part in the decision of this case.  