
    UNITED STATES BEDDING COMPANY v. THE UNITED STATES.
    
    [No. B-435.
    Decided April 30, 1923.]
    
      On Defendant's Demurrer.
    
    
      Dent Aot; averments of •petition; contract. — Where the averments oí a petition do not show a contract, express or implied, on the part of the United States to pay the plaintiff for articles claimed to have been commandeered by the Government, the plaintiff is not entitled to recover under the Dent Act.
    
      The Reporter's statement of the case:
    
      Mr. W. F. Norris, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the demurrer.
    
      Mr. Raymond M. Hudson opposed.
    The material allegations of plaintiff’s petition, to which defendant demurs, are as follows:
    That on the 27th of May, 1918, plaintiff, a Minnesota corporation, had on hand 700 bales of cotton linters. That on the aforesaid date the United States through the War Industries Board issued a compulsory order requisitioning all existing stocks of linters and stating therein that it becomes, imperative that all existing stocks and all future production of linters be requisitioned for explosive purposes and forbidding plaintiff and all others to sell such cotton linters to anyone but the Government.
    That the United States through its agent, the Du Pont American Industries (Inc.), requisitioned the said 700 bales of cotton linters from the plaintiff, inspected and classified them as class C, and directed them to be consigned to the United States War Department. That the Government fixed the price at $5.50 per hundredweight f. o. b. point of production and only allowed plaintiff $20,548.60 for the linters.
    Plaintiff refused the price so fixed and refused to ship or deliver the said linters and held the same to be commandeered. The 700 bales had cost plaintiff $32,392.78. The withdrawal from sale of said linters as aforesaid, under said compulsory order and requisition, was a talring of same by the Government without agreement and without consent of plaintiff and over its protest.
    But for said orders and regulations of the United States, plaintiff could and would have sold said linters to private parties for $32,392.78 or more in July and August, 1918. That in November, 1918, the United States issued an order releasing all linters held under prior orders and regulations, thus flooding the market so that plaintiff could not sell said linters at cents per pound, or any other price, and is entitled to recover $11,744.18 with interest from November, 1918.
    The petition of the plaintiff was dismissed, with the following
    
      
       Appealed.
    
   MEMORANDUM

BT THE COURT.

(1) The averments do not show a contract, express or implied, whereby the Government agreed to pay for the linters.

(2) There was no taking or appropriation by the Government of the plaintiff’s linters.

(3) The plaintiff refused the Government’s price for its linters and “ held same to be commandeered,” and this course was not adopted by the Government.

(4) The order “releasing all linters” gives no right of action.  