
    W. A. MERRILL SONS AND COMPANY, INC., A CORPORATION, v. THE UNITED STATES
    [No. 44114.
    Decided June 5, 1944.
    Plaintiff’s motion for new trial overruled October 2, 1944]
    
      Mr. Fred B. Rhodes for plaintiff.
    
      Mr. James J. Sween&y, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant.
    
      Mr. Newell A. Clapp was on brief.
   Littleton, Judge,

delivered the opinion of the court:

The questions presented are (1) whether plaintiff filed a claim under the claims settlement act of June 16, 1934 (48 Stat. 975), and, if so, (2) whether plaintiff incurred the claimed increased costs of $7,127.39 as a result of the enactment of the National Industrial Recovery Act.

The facts are hot in dispute. Finding 7 shows that this suit is the only demand that has been presented by plaintiff to the Government and that plaintiff has never presented a claim or demand under section 4 of the act of June 16, 1934, to the War Department or to the Comptroller General for reimbursement of a sum representing the 230 a net ton of coal handled by it as the sales agent of the Enterprise Coal Mining Company under a contract between plaintiff and the White Star Coal Company (see findings 6 and 10). The only claim ever made to the Government in connection with this 23$ a ton, which plaintiff claims herein was an increased cost resulting from enactment of the N. I. R. A., was made by the White Star Coal Company to the War Department, not under the act of June 16, 1934, sufra, but under the White Star Company’s contract with the Government (see finding 8).

Under the terms of the proviso in section 1 of the act of June 28,1938, quoted in finding 9, we do not have jurisdiction to hear and determine the claim presented by plaintiff.

The petition must be dismissed. It is so ordered.

Madden, Judge; WhitakeR, Judge, and Whaley, Chief Justice, concur.

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