
    416 F. 2d 1263
    CLIFTON PRODUCTS, INC. v. THE UNITED STATES
    [No. 359-57.
    Decided October 17, 1969]
    
      
      H. Blaokmer Johmson, attorney of record, for plaintiff.
    
      "Lawrence 3. Smith, with, -whom was Assistant Attorney General William D. Ruclcelshaus, for defendant. .
    Before 'Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton, and Nici-iols, Judges.
    
   Per Curiam :

This case was referred to Trial Commissioner George Willi with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 57(a) [since September 1, 1969, Buie 134(h)]. The commissioner has done so in an opinion and report filed on June 12,1969. On August 25,1969, the parties filed a joint motion stating that they did not intend to except to the commissioner’s report and moved its adoption by the court. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law* as hereinafter set forth, it hereby grants the motion of the.parties and adopts the report as the basis for its judgment in this case without oral argument. Therefore, it is concluded that’plaintiff is entitled to recover $44,567.44 on its claim and that defendant is entitled to recover $16,726.67 on its counterclaim. Offsetting defendant’s recovery against plaintiff’s recovery, judgment is entered for plaintiff in the net amount of $27,840.77.

OPINION OE COMMISSIONER

Willi, Commissioner:

In 1939, plaintiff, a family-owned corporation, built a plant in Painesville, Ohio, for the processing of beryllium. At the onset of World War II, plaintiff was primarily engaged in the production of beryllium oxide for sale to the fluorescent lamp industry. Since beryllium was regarded as a strategic material in short supply, the Government was anxious that plaintiff increase its productive capacity. Thus, in late 1942, plaintiff was commissioned by the War Production Board to draw up plans for the expansion of its plant. It did this and in due course the Government, by the Defense Plant Corporation, a subsidiary of the Keconstruction Finance Corporation (EFC), spent almost $290,000 on a 7,600 square foot addition to plaintiff’s plant plus the equipment required to produce beryllium metal, beryllium oxide, and beryllium alloys. The facility and equipment representing this investment were designated “Plancor 1716,” and on March 16, 1943, plaintiff entered into a lease under which it was to operate and maintain the Government’s facility for the sole purpose of producing beryllium products for the Government and for designated suppliers of the Government. The lease was to run until July 1, 1948, unless earlier terminated by appropriate notice, and rent was fixed at a stated percentage of plaintiff’s sales of all beryllium products, whether produced in its own facility or in Plancor 1716.

At about the same time as the arrangements for Plancor 1716 were conceived and implemented, the Government also became interested in undertaking a project for the reclamation of beryllium scrap metal. It shortly determined to build a second plant on plaintiff’s property for this particular purpose. Again, it commissioned plaintiff to draw up plans and equipment specifications. This second Government facility on plaintiff’s property, unlike the first, was not physically connected to plaintiff’s original plant. It was built as a separate building (though served by a common source of utilities), containing approximately 21,000 square feet, and representing a total investment by the Government of more than $210,000. This facility was designated “Plancor 1911,” and on October 4,1943, plaintiff entered into a lease with the Defense Plant Corporation to operate the plant for the sole purpose of producing beryllium copper ingots from beryllium scrap metal. Absent earlier termination on notice, the lease ran until September 30,1948, and as annual rent, plaintiff was to pay a specified percentage of the Government’s investment in the facility. Shortly after this plant commenced operations, its function was rendered obsolete by technological improvements in the fabrication of beryllium end products that reduced the beryllium content of waste scrap to the point where reclamation was no longer economically feasible.

The claims and counterclaims now presented for decision all arise out of the status of the two Plancors between the end of World War II and May 1956, when they were finally sold to a commercial chemical concern.

This court has heretofore disposed of one of the claims on which suit was brought. The court held barred by limitations plaintiff’s claim that the Government had breached its lease agreements on the two Plancors, both of which contained rent-liquidation purchase option clauses, when the Atomic Energy Commission (AEC) built and operated its own beryllium plant at Luckey, Ohio, in 1949, and therefore stopped buying beryllium products from plaintiff. Clifton Products, Inc. v. United States, 144 Ct. Cl. 806, 169 F. Supp. 511 (1959).

Plaintiff’s two subsisting claims are, first, that the Government breached a 1949 letter agreement to sell it the Plan-cors for $136,000 and, second, that the Government owes it reimbursement for the expenses that it incurred in maintaining the Plancors from 1948 until they finally were sold to another party in May 1956, after over six years of fruitless purchase negotiations with plaintiff.

In addition to resisting plaintiff’s two claims, defendant filed a counterclaim for unpaid rent on the Plancors.

In support of their respective positions, the parties compiled a voluminous evidentiary record. Though the central facts are relatively few, and generally decisive of the issues presented, they are submerged in a total factual theme that forms a long and sometimes meandering trail that is fully charted in the findings of fact accompanying this opinion. Repetition here will be limited to those factual essentials deemed dispositive of the several liability questions.

The Breach of Contract Claim

The alleged breach of the 1949 letter agreement of sale was introduced into the lawsuit by an amended petition filed after the-court decided against the plaintiff, on,its. claim -based on the AEC beryllium, plant.

- After, the amended pleadings were in, defendant filed a motion for ^partial summary judgment on the breach count added by amendment. Plaintiff cross-moved on the same count and after briefs were filed, and-by order and without oral argument, the court denied the parties’ motions and remanded the case for trial.

In ruling as it did in its order, the court rejected defendant’s contentions that the breach claim was 'barred by the general six-year limitation provision of 28 TJ.S;C. § 2501 and by the doctrine of laches. In urging the same propositions again,-. defendant has added nothing of significance to its -earlier presentation,

Plaintiffs breach claim is without merit because, as a matter of fact-, no Government breach of the 1949 agreement ever occurred. The evidence compellingly demonstrates that plaintiff was never ready and willing to implement the agreement.

• As will be later detailed in discussion of defendant’s counterclaim for back rent, in 1945 plaintiff entered into revised leases- on the Plancors, oriented to civilian production. In 1949 plaintiff was tenanting all of Plancor 1716 and a small portion of Plancor 1911 when, on November 7, the General Services Administration (GSA), who by that time had succeeded to jurisdiction over the plants on the Government’s -behalf, sent- plaintiff a letter detailing the terms and conditions under which it would sell both plants for a base price of $186,000. The letter is set forth in full in finding 11, infra. On ■December 9, 1949, plaintiff’s president formally signified acceptance of the terms of the letter..

'Paragraph 5 of the GSA agreement letter provided:

Alb monies ,due the Government from Clifton Products, Inc., as of the effective date of the sale must be paid prior to closing .of the transaction. This includes all rentals now in arrears.

Compliance with this requirement of total liquidation of rent arrearages proved to be the ultimate barrier to consummation of a sale to plaintiff,

Even before tbe matter of back rent loomed as tbe overriding obstacle to plaintiff’s purchase of tbe plants, it equivocated as to fulfillment of its acceptance of the GSA proposal.

In March 1950, plaintiff wrote GSA requesting that “ * * * action on tbe purchase of Plancors 1716 and 1911 be delayed by Clifton Products, Inc. to June 30,1950 * * * in view of the present lack of definition of our contractural [sic] relationship with the U.S. Atomic Energy Commission.” (Finding 14.) Plaintiff’s president explained in his testimony that at the time of this request for deferral plaintiff was attempting to secure some AEC contract work to be performed in the Plancors. Without that work, he candidly acknowledged, plaintiff had no use for the plants! On May 4, 1950, GSA replied to plaintiff’s letter and requested confirmation that the closing would occur not later than the June 30 date specified by plaintiff. On May 9, 1950, plaintiff replied, stating in part: “At the moment, we believe, that by June 30, there will be sufficient definition of contracts to per mit us to complete our negotiations with you. Meanwhile, we would be pleased to have the opportunity to examine a draft of the final purchase plan contract which will be based upon our tentative agreement.” [Emphasis added.] On June 15, 1950, GSA, in reply, sent plaintiff a draft of a proposed deed and mortgage and again requested that the closing occur by July 1 or shortly thereafter. By August 25, 1950, plaintiff still had not replied to this letter or otherwise communicated with GSA with respect to a closing. Though plaintiff adduced no evidence justifying its failure to follow through with its purchase arrangements, as scheduled, the record strongly suggests that it was during this period that the matter of outstanding rent delinquencies assumed prominence in plaintiff’s purchase aspirations. On or about July 12, 1950, plaintiff’s president advised GSA that plaintiff was unable to pay a rent arrearage of approximately $2,600 on the two Plancors and requested GSA’s intercession with AEC to assist it in collecting an account receivable allegedly owed by AEC. (Finding 59.) Moreover, plaintiff never made any more rent payments on either of the Plancors after’July 1950. (Findings 56,82.)

The evidence is uncontradicted that from the time that the 1949 letter agreement of sale was executed until approximately August 25, 1950, GSA was not only willing to close the sale in accordance with the terms of that agreement but frequently pressed plaintiff to fix a closing date. (Finding 22.) That agreement, it is undisputed, called for conveyance of the properties to plaintiff free of any restrictions as to their future use or disposition.

On or about August 25, 1950, after the Korean outbreak, the Munitions Board of the Department of Defense called on GSA to furnish it with an inventory of all Government-owned facilities so that a determination could be made as to need of them for defense purposes. GSA included Plancors 1716 and 1911 on the list that it sent the Munitions Board. They were listed among properties that had not been conveyed but were subject to outstanding sales commitments. Because of the Munitions Board action, GSA also notified its Chicago field office to take no further action to dispose of Plancors 1716 and 1911. Prior to receipt of this directive, GSA, Chicago, wrote plaintiff to advise that it had never received a reply to its June 15 letter forwarding the draft form of deed and mortgage. Upon receipt of that letter, plaintiff requested a meeting with GSA representatives in Chicago. The meeting was held in early September, and in the course of discussion relating to the 1949 letter agreement plaintiff was advised that in view of recent developments with the Munitions Board the terms of sale would have to include the so-called National Security Clause which had been promulgated April 1,1950. 15 Fed. Beg. (Part 2) 1870. In essence, this provision requires that the purchaser of a designated Government plant agree that upon 120 days’ notice he will reconvert to the production of specified defense items for which the plant was originally designed. Apart from the obligation to effect such reconversion upon notice, the Clause imposes no restrictions on the use that the buyer can make of the plant in the meantime. 82 C.F.B. § 118.103-1 (Bevised 1950). At the meeting plaintiff refused to agree to GSA’s proposal that the National Security Clause be included in the terms of sale. Met with this refusal, GSA’s representatives called on plaintiff to take a firm position as to whether or not the 1949 letter agreement remained a binding contract. Plaintiff declined to do this at the meeting but agreed that it would do so by letter promptly thereafter. (Finding 27.) Pursuant to this understanding, on September 14,1950, plaintiff wrote GSA a letter that stated in part: “In accordance with our conversation of September 12, we agree that the purchase plan of the above captioned plancors should be indefinitely deferred pending better definition of the utilization of facilities and buildings and release by the Army Navy Munitions Board.” (Finding 28.) GSA regarded this statement as too equivocal concerning the viability of the 1949 agreement and requested a more specific statement from plaintiff as to whether it currently regarded the agreement as a binding commitment. (Finding 29.)

By a letter dated September 22, 1950, plaintiff said in reply : “It is our opinion that we reached an agreement with the Cincinnati Regional Office accepting a negotiated total price and the terms for the purchase of these plancors. However, we had only received a draft of the proposed purchase contract for consideration prior to the time of the discontinuation of the Cincinnati Regional Office. Thus all negotiations and the signing of the purchase contract were incomplete, and under such circumstances we do not feel obligated to continue with the purchase plan. We hope, however, that this plan can be held in abeyance pending further developments from all quarters, and that the negotiations can be renewed using as a basis the ‘meeting of minds’ reached with the Cincinnati Regional Office.” [Emphasis added.] (Finding 30.)

This clear and considered statement of repudiation by plaintiff effectively and permanently relieved defendant of further obligation under the 1949 letter agreement. 4 Corbin, Contracts, § 975, at 916 (1951).

Notwithstanding the above-described events of September 1950, plaintiff continued occupying the leased portions of the Plancors without payment of rent and, until early 1956, remained in virtually constant negotiation with GSA directed to a purchase of the plants. The highlights of these negotiations are detailed in findings 31 through 47. Although plaintiff’s contention is that its purchase efforts were frustrated, at least until 1952, by GSA’s improper insistence on inclusion of the National Security Clause, it is unmistakably clear from tbe evidence that the real stumbling block was the matter of unpaid rent — a liability that necessarily increased in size- as time went on. Thus, each of the unsuccessful purchase offers made ’by plaintiff provided, in'effect, for forgiveness of rent arrearage as a part' of the consideration to be given by the Governmeht in return for a lump-sum purchase price with-extended financing. (Findings 36,39,42 and 43.) ' ■ .

Finally, in late 1955 after.almost five years of unproductive-sales negotiations with plaintiff, GSA notified it to vacate, the Plancors for nonpayment of rent. Promptly thereafter plaintiff’s president entered into negotiations with the Lubri-zol Corporation, a petroleum additive firm that had been plaintiff’s principal customer since 1950. As a result of these negotiations, plaintiff gave Lubrizol an option to buy its own properties 'for $100,000 and then undertook to assist Lubrizol in persuading GSA to sell it the two Plancors on a private, negotiated basis. (Findings 48, 49.) GSA would not do this because at the time it lacked statutory authority to sell the properties by that method. Instead, GSA publicly advertised the Plancors for sale by sealed bid. At the opening, on May 15,1956, Lubrizol was high bidder at $105,501, and the plants were sold to it. Lubrizol then exercised its option to buy plaintiff’s properties. (Findings 49, 50.) Plaintiff voiced no objection to GSA’s sale of the Plancors to Lubrizol and,.in fact, undertook to assist the latter in buying them.

The .evidence, is clear that defendant breached no contract, express or implied, with plaintiff in dealing with the Plan-cors. as it did. •

The Oownterolaim for Unpaid Bent

Defendant has counterclaimed'for allegedly'unpaid rent on the two Plancors in the amount of $83,686.58, the bulk of which relates to Plancor 1716, the facility that the Government -built onto plaintiff’s own plant to form an integrated unit for the manufacture of beryllium products.

■As heretofore noted,’ plaintiff stopped paying the Government rent in niid-1950 though it continued to tenant-the Plan-cors until May 1956. Accordingly, aside from plaintiff’s fallacious contention that it became a purchaser in possession by virtue of the 1949 letter agreement with GSA and therefore as- a matter of law was not obliged to pay rent, it is undisputed, even by plaintiff’s former president, that unpaid rent is due the defendant. The real question goes to the amount of the arrearage and that issue turns on the construction of the relevant lease language.

Since -defendant’s counterclaim was asserted prior to July 18,1966 (28 U.S.C.'§§ 2415, 2416 as enacted by P.L. 89-505, 89th Cong., 2d Sess., 80 Stat. 304), it is not subject to the bar of limitations or the defense of laches. United States v. Summerlin, 310 U.S. 414, 416 (1940).

I

Plancor'1716

Plaintiff’s wartime lease on Plancor 1716 required it to use the premises only for the production of beryllium products for the account of the Government or its designated suppliers. Since the assets comprising this Plancor were functionally and physically integrated .with plaintiff’s own plant to form a single production unit, rent on the Government’s property was fixed by reference to a stated percentage of total sales of products produced by the facility at large. No distinction was made among products, based upon the extent to which the production process actually involved either the Government’s or the plaintiff’s portion of the total facility.

During the war years, with the combined operation functioning in the manner envisioned when the Government made its investment, and with the Government taking - the total output of the facility, the landlord-tenant relationship in the so-called scrambled facility went smoothly. At least the manner in which rent was determined created no serious problems. :

When the war ended, the Government’s demand for beryllium products materially diminished. Because, of the consequent effect on its operations, plaintiff initiated discussions with representatives of the RFC looking toward a revised le,ase arrangement under which the Plancor could be utilized for civilian production such as the manufacture of beryllium oxide for the fluorescent lamp industry, plaintiff’s principal activity before the war.

On October 25, 1945, following preliminary discussions, plaintiff wrote RFC to request “an interim agreement” under which for the use of the facility it would pay a rental of 5 percent of its net sales and would be free to use the plant for civilian production. (Finding 53.)

By a telegram of November 5, 1945, RFC approved the substance of plaintiff’s proposal. (Finding 54.) Regarding rent, the telegram stated: “As rental for the use of such facilities your company shall pay to RFC five percent of net sales of all products manufactured or furnished by your company through the use of said facilities * * [Emphasis added.]

A relatively minor portion of the counterclaim (approximately $2,500) fails as a matter of proof. (Finding 68.) Unlike the original lease on Plancor 1716, the 1945 revision imposed no rent on sales of products manufactured entirely in plaintiff’s facilities. To the extent that the counterclaim asserts rent liability on such sales, it must be overruled.

Most of the additional rent obligation with which plaintiff is charged on Plancor 1716 arises after 1950 and depends on the meaning accorded the language of the Government’s telegram, defining sales taxable for rent purposes as those involving products derived from “the use of said [Plancor 1716] facilities.”

The quoted words, according to defendant, mean that cognizable sales included all items whose manufacture involved any use at all of any part of the Government’s property even though such use be consistently minimal.

Until 1950, the precise meaning of the pertinent language did not 'bécome an issue because plaintiff was using the Plancor for its intended purpose, the processing of beryllium. When the 1945 revision became operative, plaintiff resumed its principal prewar activity, the manufacture of beryllium oxide for sale to the fluorescent lamp industry. As it had been before the war, this again 'became the backbone of plaintiff’s business. The Plancor was functionally well-suited to such an operation. The 'landlord-tenant relationship went reasonably well until human safety considerations prompted the AEC to ban the processing of beryllium on plaintiffs premises, both in plaintiff’s facilities and in Plancor 1716. (Findings 64, 65.) This permanent embargo forced plaintiff to look to other endeavors with which to occupy its plant land personnel. In early 1950, it began doing contract custom work for the Lubrizol Corporation, the petroleum additive manufacturer that ultimately bought both the Plancor’s and plaintiff’s plant in 1956. (Finding 66.) Although the custom work involved some research and development projects, in the main it entailed conversion processes performed on raw material supplied by Lubrizol. Moreover, the work was done entirely with plaintiff’s own equipment or equipment furnished by Lubrizol. In some instances, the equipment was operated in the floor area of Plancor 1716, and this was the extent that the Government’s property was involved in the production process, none of its equipment being used for that purpose. (Findings 66, 68.) The Lubrizol work was plaintiff’s principal activity after 1950 and steadily increased in volume. After 1953, when plaintiff finished the last of its research and development contracts for AEC, Lubrizol was its only customer.

Defendant’s counterclaim proceeds on the theory that plaintiff’s total revenues from Lubrizol are subject to the full 5 percent rental charge under 'the 1945 agreement because, to the extent that production of the items involved entailed the use of floor space in Plancor 1716, the payments received were for “products manufactured or furnished * * * through the use of [the Plancor’s] facilities” within the meaning of the lease language. (Finding 67.) For the reasons tihat follow, that is not a reasonable construction of the rental provision. Though plaintiff was not entitled to regularly use any part of the Government’s property rent-free, it is not chargeable with rent on permanently idle equipment rendered useless for its intended purpose by the Government’s own directive in the form of the AEC mandate. 6 Corbin, Contracts, §1356, at 475-477 (1962). This is especially so where, as here, the lion’s share of the rent charge sought to be collected was based on that equipment.

At the trial, defendant adduced extensive testimony from a former RFC executive whose supervisory position primarily concerned rental of Government facilities both for wartime operation and in the reconversion era. Moreover, on 'behalf of EFC, this individual personally approved the lease arrang-ement here involved. EFC’s policies and practices in this connection are detailed in finding 55.

Basically, EFC’s overriding objective in arriving at a rental charge was to achieve a specified annual rate of return on the Government’s investment in each of the various types of capital assets that comprised the manufacturing facilities that it provided for leased operation by private industry. The target rates were (1)5 percent per year on cost of land and buildings, (2) 12 percent per year on cost of general machinery and equipment, and (3) 25 percent per year on cost of special tooling. Where a facility was built as a separate production unit and not as an addition to an existing privately owned plant, rent was based directly on Government investment and charged as a fixed fee.

In the case of so-called “scrambled” facilities such as Plan-cor 1716, where the Government spent money to augment and increase existing production of particular items rather than to create a new and autonomous production unit, EFC concluded that rent liability should be cast in terms of a fixed toll per unit of product produced by the merged facilities. Though for reasons of administrative convenience EFC preferred this format for rent-billing purposes, the policy objective was to achieve essentially the same rent return as charged directly in the case of separate Government-owned plants.

Where rent was charged in the form of a fixed percentage of total product sales, the percentage used was determined by first calculating the total annual rental charge that would be required to yield the various rates of return on investment that the Government assigned to the several types of assets comprising its total outlay. Next, a projection or forecast of the scrambled facility’s annual production and sales was made. The percentage used in the lease agreement simply represented the proportionate part of each anticipated sale ■that in a year’s time would aggregate the desired return on facility investment.

Accordingly, the evidence shows that whether the rent provisions of a lease indenture were drawn in terms of a fixed annual charge or as a stated percentage of product sales, the substance and intended purport were the same, i.e., a charge payable to the Government by a private operator for the use of an assemblage of capital equipment adapted to the production of one or more salable products. In short, a percentage-of-sales iental agreement was no less a lease of an associated complex of individual assets than was an agreement calling for rental at a fixed fee.

The fact that the NFC’s fixed, albeit unpublished, policy for scrambled facility reconversion leases called for the payment of rent on all sales of products whose manufacture involved any part of the Government’s property is not in conflict with the proposition that such leases were drawn in contemplation of a general use of the leased property. The policy simply meant that a lessee would not be heard to claim rent exemption or mitigation with respect to a particular sale or group of sales on the ground that manufacture of the products involved did not partake extensively of the Government’s property. This says no more than that a rental arrangement subject to daily or weekly variation would be so erratic as to be impractical. Clearly, however, the policy envisions the situation where minimal facility usage is the relative exception, not, as here, the almost invariable rule that persisted for five and one-half years after 1950, during which period the evidence shows that plaintiff’s activity was basically limited to use of the floor space in the Plancor.

The Government’s total investment in Plancor 1716 was $289,143.41. Of this amount, $53,000 (approximately 18%) represented building, and the remainder was for equipment acquired and used to process beryllium. (Finding 65.) "With a rental charge based on an annual percentage levy on each of the several components of the entire investment, the" lease must be construed to comprehend at least a reasonable use of the facility generally. The effect of defendant’s view is to assess plaintiff with rent on idle equipment as a surcharge or penalty for using floor space in the building.

Aparkfrom the plain implications of the manner in which the rent charge was formulated, the intent of the lease language employed is evident from the prevailing circumstances at the time the 1945 revision was negotiated. Plaintiff’s prewar business bad been tbe processing of beryllium for the fluorescent lamp industry. With the slackening of Government demand for such products, plaintiff planned to revert to its former clientele, and this is what it successfully did. Of course, it requested freedom to make other civilian products as well, but the fact is that reentry into the beryllium oxide market for the civilian trade proved to be the backbone of its business until terminated by the 1949 AEC ban. The facilities of Plancor 1716 were adapted to and useful for this purpose. Thus, when the 1945 bargain was struck, the surrounding circumstances were such that it can only reasonably be concluded that the parties were negotiating a lease for a production facility, not for a building shell that fortuitously had many assorted pieces of equipment in it. The rental charge should reflect that understanding.

The foregoing considerations combine to show that a reasonable interpretation of the lease language, if not the only permissible one, is that the full 5 percent rental charge presupposed a generally regular and reasonably complete utilization of the whole of the Government’s property. Under familiar principles, that interpretation is to be preferred where the language under review was chosen by the Government and merely assented to by plaintiff by its use of the facility. 3 Corbin, Contracts, § 559, at 262 (1960). Application of that principle is particularly appropriate in the absence of corroborative evidence from defendant in support of its contrary view.

There remains the matter of specifically determining plaintiff’s unpaid rent obligation on Plancor 1716 according to the 1945 rent provision as construed herein.

After mid-1951, plaintiff realized small amounts of revenue from operations other than its contract work for Lubrizol performed altogether with non-Government equipment. Since such revenues, albeit small, were generated by the use of something more in Plancor 1716 than mere floor space, they should be taxed with the full 5 percent rental charge. In addition, in respect to the Lubrizol work, the Government is entitled to receive the 5 percent rate of return on investment that it ascribed to the asset that plaintiff used, i.e., the $58,000 building. Thus, plaintiff’s rental charge for the period following July 31, 1951, is the sum of (1) 5 percent on all sales revenues received from other than Lubrizol, plus (2) $2,650 per year on account of the Lubrizol contract -work that utilized the Government’s floor space. (Finding 68.)

In summary, as to Plancor 1716, defendant claims a gross rental due of $98,905.67. It is undisputed that plaintiff paid rent of $45,847.34 on the Plancor, leaving a remaining balance due of $53,058.33. As revised in accordance with the determinations herein, the gross rent obligation amounts to $55,169.77. Defendant’s rent claim on Plancor 1716 is therefore sustained to the extent of $9,322.43.

II

Plancor 1911 and the Detroit Electric Furnace

As earlier noted, Plancor 1911 was built on plaintiff’s property with Government funds as a separate facility designed especially for the reclamation of beryllium-bearing scrap metal. Because technological advances in the fabrication of items made from such metal drastically reduced scrap wastage, reclamation became economically unfeasible shortly after completion of the facility. Since it embodied a single-purpose function and design, the Plancor became an idle plant and remained such until May 1945, when UFO’s Defense Plant Corporation acceded to plaintiff’s request to rent 3,500 square feet of floor space in the building plus the use of a Detroit Electric Furnace located in the building. (Findings 73, 74.) Pent as to both items was specified as a percentage of the Government’s investment in them.

Whereas the revised rental provision for Plancor 1716 was adopted as an amendment to plaintiff’s original lease (finding 54), the new agreement as to Plancor 1911 displaced the original lease, which was formally and totally terminated effective November 8,1945. (Finding 75.)

Except for the period from May 1951 through 1952, when by agreement it occupied an additional 2,500 square feet of the Plancor, plaintiff used the 3,500 square feet of leased floor space from the time of its 1945 rental agreement until May 15, 1956, when the Plancor was sold. The rental rate applicable to that space is not disputed. It results in a total rent obligation of $11,996.95, the amount of defendant’s claim.

Though rent on the furnace, like the floor space, was expressed in terms of a percentage on the Government’s investment, plaintiff’s 1945 lease agreement was -unclear as to whether rent liability was conditioned on actual usage. Subsequent exchanges between the parties concerning the lease disclosed a common understanding that the rent charge was payable only on usage. (Findings 78, 79, 101.) It appears that EFC’s assent to this construction was largely influenced by the fact that plaintiff was only using a few of the component parts of the furnace and those only infrequently. On the basis of the agreed rate of return on the Government’s total furnace investment, charged only for the period of actual usage of the component parts, the evidence shows that plaintiff is chargeable with total furnace rent of $1,638.19.

In summary, plaintiff’s gross rent obligation on Plancor 1911 totals $13,635.14, $11,996.95 for floor space and $1,638.19 for the furnace. Against these liabilities, plaintiff paid a total of $6,230.90, its last payment having been made in July 1950. Therefore, defendant’s counterclaim for rent relative to Plancor 1911 is sustained in the amount of $7,404.24, the remaining balance of rent due. (Finding 85.)

Accordingly, defendant’s total counterclaim for rent due on both of the Plancors is upheld in the amount of $16,726.67, consisting of $9,322.43 for Plancor 1716 and $7,404.24 for Plancor 1911.

The Claim for Custodial Expenses and Insurance Coverage

Plaintiff claims a right to reimbursement of the expenses that it incurred for protection and maintenance of the Plancors and the premiums paid for the property damage insurance that it carried on them. Any recovery due on the merits must, of course, be limited to such expenses as were incurred within six years preceding assertion of the claim in this court. 28 U.S.C. § 2501.

In disputing this claim defendant does not deny that plaintiff furnished the custodial services and insurance coverage for which, reimbursement is sought. Liability is- denied on other grounds.

Plaintiff’s claim for expense reimbursement with respect to Plancor 1716 is without merit as to both protection and maintenance and insurance coverage. For the six-year- period in question, plaintiff occupied the Plancor under the terms of the November 1945 revision to its original lease. Essentially, the revision amounted to a new rent provision plus an adoption of all of the other terms of tlie original lease. (Finding 54.) Under the original lease, plaintiff expressly assumed the obligation and expense of providing protection and maintenance as well as insurance coverage for the Plancor. Since the 1945 revised lease remained in force throughout plaintiff’s subsequent occupancy of the premises,' it cannot be relieved of the expense burden, of the items in question.

The situation as to Plancor 1911 differs in certain material respects. The differences alter the result oh recovery of protection and maintenance expenditurés but not insurance premium expense.

The original lease on Plancor 1911 contained the same provisions as that on 1716 concerning plaintiff’s protection, maintenance, and insurance responsibilities. Effective November 8, 1945, however, the 1911 lease was fully and formally terminated. The termination, as such, unqualifiedly, ended plaintiff’s custodial and insurance obligations. In addition, the document by which RFC acknowledged and im-, plemented the termination affirmatively advised plaintiff: that it need no longer insure the premises, except as it desired to do so for its own reasons. (Findings 75,76.)

Both the May 26, 1945 lease agreement, covering .3,500 square feet of Plancor 1911 floor space plus the Detroit Electric Furnace, gnd the November 19, 1946 reaffirmation, of the same agreement (necessitated by the intervening termination of the original lease) specifically defined plaintiff’s custodial and insurance obligations and expressly limited those obligations to the leased property. (Findings 74, 79.) The latter agreement remained unchanged and in force as the governing lease indenture throughout the balance. ,of-plaintiff’s tenancy of the Plancor. Apart from the written lease agreements, at no time after November 8, 1945, the termination date of the original lease, was plaintiff ever directed or requested by anyone connected with the Government to insure the unleased portion of Plancor 1911. Accordingly, it must be held that in providing such coverage plaintiff acted as a volunteer who may not now insist on payment for a benefit that was not only unauthorized by the recipient but specifically disclaimed in advance.

The expense reimbursement claim for protection and maintenance services on Plancor 1911 is controlled in part by the same documents applicable to insurance coverage.

Again, the starting point is the original 1943 lease that expressly placed the protection and maintenance expense burden for the entire Plancor on plaintiff. That the formal and complete termination of that lease in November 1945 was generally understood as ending plaintiff’s custodial responsibilities on the Plancor is demonstrated by the fact that in April 1946 EFC commissioned plaintiff, for a $2,500 fee, to place Plancor 1911 in a standby or moth-balled condition. (Finding 90.) Further, at approximately the same time, EFC entered into a written agreement with plaintiff to provide protection and maintenance services for the unleased portion of the Plancor on a monthly fee basis. From April 1946 through October 30,1948, EFC paid plaintiff $7,269.09 under this agreement. (Finding 91.)

■ As earlier noted, during the period that EFC was paying plaintiff to protect and maintain the bulk of the Plancor, plaintiff was leasing a small fraction of the total floor space and one piece of equipment, the electric furnace. The lease agreements of May 1945 and November 1946 expressly confined plaintiff’s custodial responsibilities to the property that it was leasing. In terms, the latter agreement gave either party the absolute right of termination upon 10 days’ notice to the other.

The foregoing summarizes the background and prevailing status of the plant protection and maintenance situation as it existed in the fall of 1948.

On November 1, 1948, Government jurisdiction over the Plancors shifted from EFC to the War Assets Administration (WAA), an agency established for the specific purpose of disposing of the many plant facilities that the Government had established for war production. (Finding 96.) This particular action was a part of the overall program for liquidation of Government-owned defense plants on a nationwide scale. There is neither evidence nor argument that WAA’s succession to NFC’s landlord status for these Plancors had, or was intended to have, any effect on the terms and conditions of plaintiff’s continued occupancy of the premises under the lease in force at the time. As to Plancor 1911, the relevant lease in effect was the November 19, 1946, letter agreement. (Finding 79.)

On October 28, 1948, because of the impending transfer of the Plancors to WAA, RFC notified plaintiff that the protection and maintenance fee agreement was terminated as of October 31,1948.

On September 10, 1948, preparatory to its nominal takeover of the Plancors, WAA presented plaintiff with separate inventory schedules of the various items of property comprising each of them. As to each plant, the lists were footed by a certification over the place for signature on behalf of the plaintiff. For Plancor 1911 the certification warranted that the accompanying inventory lists “* * * accurately reflect property for which the undersigned is accountable under the Lease Agreement and Amendments thereto with Reconstruction Finance Corporation, dated October 4, 1943 as assigned to the War Assets Administration.” (Finding 93.) Plaintiff’s president signed the Plancor 1911 lists as presented, including this certification.

Though not squarely urged by defendant, it will be seen that the language quoted above is at the heart of the asserted defense to plaintiff’s expense reimbursement claim. Thus, the defense is not presented on the basis of the purport and effect of the quoted language but on the claim that by its subsequent conduct, plaintiff evidently accepted the interpretation that WAA placed on that language. Since the express terms of the certification do not purport to create any new accountability or responsibility in plaintiff for plant property but only to declare existing obligations under a specific lease that was nonexistent at the time, the obliqueness of defendant’s approach is understandable though not convincing.

There is absolutely nothing in the record to suggest that the inventory certification was either offered to or endorsed by plaintiff as an alteration of the lease under which it occupied Plancor 1911 at the time. As defendant would have it, merely by signing the inventory papers, plaintiff was agreeing, contrary to its lease and contrary to the custodial arrangement under which it had been operating with BFC, to assume the responsibility and expense of protecting and maintaining the entire building and all of the equipment in Plancor 1911 even though it was renting only 3,500 square feet off the -21,000 square feet of the building’s total, floor space and only one piece of its equipment. Nowhere does defendant offer the slightest suggestion as to the consideration that flowed to plaintiff in return for its alleged assumption of such a new and substantial burden. In fact, the record discloses none. For example, there, was never any indication that WAA’s willingness to continue the November 19,1946 lease agreement, with its 10-day termination provision, was conditioned upon plaintiff’s reciprocal agreement to care for the Government’s unleased property.

The related events following the September 10,1948 inventory certification are summarized below.

On November ^, 1948, plaintiff wrote WAA, acknowledging its awareness of the shift of Plancor jurisdiction to that agency and requesting billing instructions for its monthly charges for providing protection and maintenance. (Finding 96.)

The stance adopted by WAA in responding to plaintiff’s inquiry, and thereafter adhered to by the agency, is disposi-tive of plaintiff’s entitlement under this claim.

The substance of WAA’s reply letter of November 5,1948, amounted to an affirmative directive to plaintiff to protect and maintain the entire Plancor. (Finding 97.) From plaintiff’s standpoint, the directive became no less compelling when WAA coupled it with the assertion that plaintiff would have to provide the services at its own expense because it assumed this obligation when it certified to the accuracy of the inventory data on September 10. .For liability purposes, the significant point is that WAA made it clear that it wanted all of the Plancor protected and maintained.

Certainly WAA was within its rights in declining to either revive the custodial fee arrangement under which plaintiff had operated with RFC or to initiate some new plan of compensation for the services. But the agency was not content to simply notify plaintiff that it would not pay for custodial services rendered in the future, leaving plaintiff, thus forewarned, free to provide or withhold such services according to its own dictates in the matter. Instead, WAA went on to tell plaintiff that it had to provide the services. This is what plaintiff proceeded to do, advising WAA by a. letter of November 11, 1948, that it had not assumed new and additional custodial responsibilities simply by acknowledging the inventory accounting. (Finding 98.)

As earlier noted, defendant finesses the merits of the inventory certification question in favor of urging that plaintiff must be held to have accepted WAA’s interpretation, as advanced in its November 5 letter, because on two occasions thereafter plaintiff did not except to a restatement of that same position in the inspection reports of two WAA engineers. (Findings 100, 101.) The specifics of the two later occurrences do not support defendant’s implication.

The first inspection report, dated January 10, 1949, was prepared by a WAA engineer who had surveyed the 1911 premises on December 29, 1948, for fire safety. Included in his report were statements to the effect that plaintiff was obliged, by reason of the earlier inventory certification, to provide protection and maintenance. (Finding 100.) For all that appears, these expressions were simply a reflection of a personal opinion that the engineer reached on his own.

The second report, also dated January 10, 1949, was prepared by another WAA engineer who had made a general condition survey of the 1911 premises that day. Unlike the first report, this one was signed by plaintiff’s president under the caption “REPORT CONCURRED IN BY LESSEE.” (Finding 101.) In format the report was of the printed form type. After correctly specifying the pertinent terms of the existing operating lease (as contained in the letter agreement of November 19,1946), the report proceeds to a caption styled “LEASE TERMS FOR P&M.” In that connection the engineer noted plaintiff’s reimbursement contract with RFC. Next, under caption “OBLIGATION OF TENANT” the engineer added “Lessee signed Exhibit C assuming accountability for real and personal property, on 9-10^48.” Finally, the engineer completed the caption “OBLIGATION OF WAA” with the notation “None specified.” At most, these statements add up to the proposition that after WAA took over the Plancor, the risk of loss or damage to plant property was on plaintiff. They do not signify any contention, much less agreement, that plaintiff was to actively and currently protect and maintain the entire plant property.

Accordingly, the engineering reports, both individually and cumulatively, fall far short of establishing the kind of estoppel by implication on which defendant relies to defeat the claim for reimbursement.

The conclusion that persuasively emerges from all of the evidence on this question is that WAA definitely wanted the plaintiff to render the same custodial services to the Government’s property that it had performed for RFC, but it did not want to pay for them. In short, WAA wanted the benefits but not the expense burden of plaintiff’s arrangements with RFC. The expedient means of achieving this best-of-both-worlds result, WAA apparently concluded, was the inventory certification that plaintiff signed. For the reasons previously stated, that action cannot, on the merits, reasonably be accorded the significance that WAA attributed to it. With the certification argument appropriately put to rest, the remaining essentials are simply that plaintiff was called upon to render valuable services to the Government’s property ; it did so, and it follows that it is entitled to be reimbursed the expenses that it incurred in fulfillment of the Government’s wishes. 3 Corbin, Contracts, § 566, at 306-308; § 567, at 323-324 (1960).

Preparatory to trial of this case, defendant audited plaintiff’s books and records. The audit revealed that from July 31, 1951 (six years prior to the institution of suit) to May 15, 1956, when it vacated the Plancors, plaintiff had spent a total of $208,531.99 for what the auditor deemed protection and maintenance. (Finding 103.) Neither plaintiff’s records nor other evidence adduced at trial provide the basas for directly apportioning this total expenditure among plaintiff’s own plant and the two Plancors. In such circumstances, and considering the character of the services involved, a reasonable method of apportionment is one based on the proportionate floor space square footage that each of the facilities bore to the total square footage of all three. In addition, such an allocation must allow for the square- footage of Plancor 1911 that plaintiff had under lease and for which it was thereby responsible.

One further;refinement is necessary in recognition of the fact that throughout the period in question Plancor 1911 was a predominantly idle facility, whereas Plancor 1716 and plaintiff’s, ad joining plant were in use. Included in the auditor’s total expense figure were the items of $58,764.95 for heat, light, and power and $19,564.51 for repairs and replacements on auxiliary equipment. To a substantial ;degree, neither of these types of expenses is engendered by a substantially idle plant. Accordingly, they are eliminated from the expenses to be spread over the three facilities.

An allocation made in the manner described above discloses that plaintiff spent $44,567.44 to protect and maintain the un-leased portion of Plancor 1911 from July 31,1951 to May 15, 1956. Since it provided the services underlying this expense at the behest of the Government, it is due reimbursement. It is recognized that tlié allocation method applied herein produces larger monthly expense figures than those experienced when plaintiff was performing the services under its reimbursement contract with RFC. The difference is logically attributable to the significantly increased age of the plant during the period covered by the current claim.

The end result of the foregoing dispositions of the several claims in suit is that plaintiff is entitled to a net judgment for $27,840.77, consisting of $44,567.44 for protection and maintenance expense reimbursement less $16,726.67 back rent due the Government on its counterclaim.

FINDINGS on Fact

1. Plaintiff, Clifton Products, Inc., is a corporation organized in June 1939 by Charles E. Windecker and his brother, Robert, both chemical engineers, and their sister, for the purpose of developing beryllium products, beryllium being an extremely light metal of considerable strategic importance during wartime. Charles E. Windecker became secretary-treasurer of the corporation and his brother, president. When Robert Windecker died from beryllium poisoning in 1943, Charles E. Windecker became the corporation’s president.

2. In 1939, plaintiff constructed a plant in Painesville, Ohio, for the processing of beryllium. By 1943,. the total facility represented an investment of approximately $206,000 in land, buildings, equipment, and engineering and development work. The plant covered 16,481 square feet.

3. At the onset of World War II, plaintiff was engaged in producing beryllium oxide and selling it to the fluorescent lamp industry. Plaintiff was interested in expanding its plant and facilities, but was unable to obtain the necessary wartime priorities. In late 1942, the Beryllium Section of the War Production Board requested plaintiff to make, and it thereafter made, complete plans for the expansion of its plant.

4. On March 16, 1943, plaintiff entered into a lease agreement" with Defense Plant Corporation (a corporation created by Reconstruction Finance Corporation “RFC”) for a facility covering 7,607 square feet which became known as “Plan-cor 1716.” This facility was constructed at a total cost to defendant- of $289,143.41, representing $53,000 for the building and the balance for equipment, blancor 1716 was physically connected to plaintiff’s original plant by a common wall and its own equipment and defendant’s equipment were commingled. This Plancor was designed to produce beryllium oxide, beryllium metal, and beryllium alloys. The term of the lease on this Plancor was to end July 1,1948. Under the terms of the lease, plaintiff was required, at its own expense, to protect and maintain the leased property in good condition, ordinary wear and tear excepted, and to maintain adequate property damage insurance coverage on it.

5. On October 4,1943, plaintiff entered into a second lease agreement with the Defense Plant Corporation for another facility which became known as “Plancor 1911.” This Plan-cor covered 21,130 square feet and was designed and equipped for the sole purpose of .producing beryllium copper ingots from beryllium copper scrap, and was completed in March of 1944 at a total cost to defendant of $210,078.02, representing $150,500 for building and the balance for equipment. Plancor 1911 was, except for utilities, a separate facility adjacent to plaintiff’s own plant and Plancor 1716. Subject to prior termination by either party upon 10 days’ written notice, the term of this second lease was to end September 80, 1948, and it imposed the same obligation on plaintiff, as lessee, with respect to protection and maintenance of the leased property and insurance coverage on it.

6. Plaintiff expended a substantial amount of its own funds in designing the Plancors, assembling the equipment for them, supplying heat, light, and power, research and development work, and engineering services.

7. Plancor 1716 began to produce beryllium metal late in 1943 and beryllium oxide in the summer of 1944. The production of beryllium metal was of limited duration, ending in June 1944. Plaintiff ultimately learned that whereas defendant had originally intended to moderate the Oak Nidge reactor with beryllium, it later changed its plans and used graphite instead.

8. Under a contract with Metals Reserve, plaintiff collected beryllium copper scrap from which it produced some samples of secondary beryllium copper in Plancor 1911. Defendant soon abandoned this project of reprocessing beryllium copper scrap as uneconomical. Under a revised Metals Reserve contract, plaintiff packaged the beryllium copper scrap and sold it back to producers of beryllium copper. Thereafter plaintiff’s active use of Plancor 1911 was confined almost exclusively to the performance of various research and development work under contract with the Atomic Energy Commission (AEC).

9. With the conclusion of World War II in 1945, the usefulness of the two Plancors for the purposes designed and built diminished rapidly. This led to alterations in the leases on the facilities and to the matter of plaintiff’s efforts to purchase them outright. The claims presented for decision arise out of these several developments.

Plaintiff claims damages for the Government’s alleged breach of a 1949 agreement to sell it the plants and also claims that it is entitled to reimbursement of its expenses of protecting, maintaining and insuring the facilities from July 31,1951 to May 15,1956.

The defendant, in turn, asserts an affirmative claim for allegedly due and unpaid rent on the facilities from 1944 to May 15,1956.

For convenience, the findings of fact that follow will, insofar as possible, be grouped according to the claim to which they relate.

Breach of Contract to Sell the Plancors

10. At various times during the period of approximately 1946-1949, plaintiff’s president, Mr. Charles E. Windecker, held discussions and conducted negotiations with officials of the General Services Administration (GSA) regarding the purchase by plaintiff of Plancors 1716 and 1911.

11. These discussions and negotiations culminated in the following letter to plaintiff, dated November 7,1949 .*

GENEKAL SERVICES ADMINISTRATION
War Assets
Regional Office IV
704 Race Street
Cincinnati 1, Ohio
November 7, 1949
In reply refer to:
RCI-PIN/Minnioh :rk
Clifton Products, Inc.
Post Office Box 186
Painesville, Ohio
Attention: Mr. Charles E. Windecker
Re: Plancors 1716 and 1911
Clifton Products, Inc.
Painesville, Ohio
Gentlemen:
The General Services Administration, War Assets, on August 30, 1949, revised on October 24, 1949, and confirmed in conference with the Clifton Products, Inc., on November 2,1949, has approved the sale of the facilities of Plancors 1716 and 1911 to Clifton Products, Inc., Post Office Box 186, Painesville, Ohio, for the sum of $136,000.
This sale is made subject to the following terms and conditions:
1. Terms: 10% cash on closing, balance evidenced by a 15-year mortgage payable in equal monthly principal payments. The entire unpaid balance of the purchase money from date of closing to bear interest at the rate of 4% per annum until paid, and shall also be payable monthly.
2. Title instruments to be delivered on a date to be mutually agreed upon and title transferred by quitclaim deed and bill of sale, without warranty, express or implied. General Services Administration, War Assets, shall make, execute and deliver all such instruments of conveyance, assignment, and transfer as will fully and effectually vest in the purchaser all right, title, and interest of the Government without warranty of title, express or implied, in and to all the property, facilities, rights, and assets of the subject plancors.
3. Sale of subject plancors shall be on an “as is, whereis” basis.
4. The effective date of sale shall be the date of closing.
5. All monies due the Government from 'Clifton Products, Inc., as of the effective date of the sale must be paid prior to closing of the transaction. This includes all rentals now in arrears.
6. All sums now due from Clifton Products, Inc., to its officer-stockholders (together with any further advances to facilitate the down payment on their proposed purchase, etc.) may be paid in the regular course by Clifton Products, Inc., so long as mortgage and interest payments on the purchase money mortgage (or mortgages) are current, and if not current, then there shall be no payment to officers-stockholders until the mortgage indebtedness is made current.
7. The mortgage securing the balance of the sale price shall cover all real property as outlined and described in the Warranty Deed dated September 17, 1948, from the Clifton Products, Inc., to the Deconstruction Finance Corporation as recorded in Volume 256, Pages 451 et seq. of Deeds, recorded in Lake County, Ohio.
8. So long as any part of the purchase price remains unpaid, Purchaser shall maintain insurance on both plancor facilities in such companies as War Assets, General Services Administration, may approve, and in such amounts as, exclusive of any co-insurance, shall be sufficient to pay in full the amount of the then unpaid balance. Fire and extended insurance covering loss clauses shall be made payable to the Treasurer of the United States for the account of all interests. Policies evidencing such insurance shall be delivered to War Assets for safe keeping.
9.From and after the effective date of sale, the Government shall have no further financial responsibility with regard to rehabilitation or maintenance of the subject properties.
10. From and after the effective date of sale, Purchaser to pay when due any and all taxes, assessments, and charges which may be levied or assessed by any public authorities against the premises or any part thereof.
11. Compliance with the requirements of War Assets Administration Begulation 5, including amendments thereto.
12. Clearance by the Department of Justice that proposed disposition is not violative of antitrust laws of the United States, if required by the Office of the General Counsel.
18. Acceptance of the restrictions of Executive Order 9908 dated December 5, 1947, entitled “Beserve of Source Material in Certain Lands Owned by the United States.”
14. It is understood and agreed by the parties hereto, and the Purchaser, by the acceptance hereof, signifies his full knowledge with respect thereto, that the property which is the subject of this sale may be in a contaminated condition and may constitute a dangerous instrumentality. The Purchaser therefore agrees, with the purchase of such property, to assume all costs of and liability for all personal injuries and property damages arising out of the process of decontamination, and further agrees to indemnify, defend, and save the General Services Administration and the United. States of America harmless against any and all liability, claims, costs of action on suits due to, arising out of, or resulting from, immediately or remotely, the contaminated condition, decontamination, use, and/or operation of the property either before, during or after decontamination by the Purchaser or by any other persons. The Purchaser further agrees that, in the event of a resale or other disposition of the property covered hereby, or any part or portion thereof, any and all subsequent transferees will assume the same liability and. agree to indemnify the General Services Administration and the United States of America in the same manner, in writing, as a condition of any and all such further transfers.
15. So long as any portion of the mortgage indebtedness remains unpaid the Purchaser to submit quarterly financial statements compiled by the Company itself in reasonable detail to the holder of the WAA mortgage. Annual statements for purchaser’s fiscal year to include a signed copy of the complete pamphlet report of independent accountants, with the cost thereof to be borne by the Company.
16. Any other legal requirements deemed necessary by the Office of the General Counsel.
Pursuant to the agreement reached in our conference on November 2, 1949, if the terms and conditions as set forth in the foregoing paragraphs are satisfactory to your Corporation, please indicate your acceptance in the space provided on the duplicate copy attached to this letter and return to this Administration at your earliest convenience.
Very truly yours,
(S) Melville C. Robinson
Melville C. RobiNSON
Chief, Industrial Real Estate Disposal Division

12. On December 9,1949, plaintiff’s president executed the following certificate of acceptance:

This will acknowledge our receipt of the notification of award as stated above and our acceptance of the terms and conditions of the same this 9 day of December 1949.
CLIFTON PRODUCTS, INC.
By D. E. WlNDECKER
President
Title

13. Subsequent to December 9, 1949, plaintiff’s president had various conversations with Mr. Melville C. Robinson of GSA relative to setting a closing date.

14. By letter dated March 22,1950, plaintiff wrote GSA as follows:

Pursuant to a conference with Mr. Robinson and Mr. Logan in Washington, we request that action on the purchase of Plancors 1716 and 1911 be delayed by Clifton Products, Inc. to June 30,1950.
This action is requested in view of the present lack of definition of our contractural [sic] relationship with the U.S. Atomic Energy Commission. We believe that delay to June 30, 1950 will be reasonably adequate for a more definitive position.
Very truly yours,
CLIFTON PRODUCTS, INC.
(<S) C. E. Windecker
C. E. Windecker.

15. The “present lack of definition of our contractural [sic] relationship with the U.S. Atomic Energy Commission,” referred to in the letter of March 22, 1950, was explained by plaintiff’s president, Mr. Windecker, at the trial. Plaintiff had been negotiating for a contract with AEC. Neither the monetary scope of the AEC project nor the design of the project had, at this time (1950), been determined. If plaintiff did not get the contract, it did not want the plant Plancor 1716); it needed the contract to provide justification for ownership of the additional facilities. Its intent at that time with respect to buying the plant was dependent upon the successful consummation of the potential contract with AEC, and, as of June 1950, it had not gotten that contract. Because it was negotiating with AEC for this contract, because it contemplated that the work under the AEC contract would use portions of Plancor 1716, and because if it did not get the AEC contract it did not need these facilities (Plancor 1716), it requested that action on the purchase of the Plancors be delayed to June 30, 1950.

16. On May 4, 1950, the GSA wrote plaintiff as follows:

This has reference to your letter of March 22, 1950, addressed to Mr. Irving Gumbel, Chief, Chemical and Metals Branch, Real Property Disposal Division, General Services Administration, Liquidation Service, Washington, D.C., and to our several conversations on the same subject.
We have discussed this matter with our Washington office and they have, notwithstanding the fact that the deal was originally negotiated by them, placed any responsibility for further action with the Cincinnati Regional Office.
We are fully cognizant of the reasons you have had to delay the closing of this sale and are anxious to cooperate with you in any way possible consistent with good business practice, but do believe that a firm date should be set at which time the closing can be effected.
In your letter to Mr. Grumbel dated March 22, 1950, you request that action on the purchase of these plancors be delayed to June 80,1950.
It has occurred to us that as of this date conditions may have changed to the extent that an earlier closing is possible, but if not, will you please advise us that it is your intention to effect this closing not later than June 30,1950, without any further delay.

17. By letter dated May 9, 1950, plaintiff replied to the above letter of May 4,1950, from GSA stating, in pertinent part, as follows:

Since my visit with you we have made some progress on contracts required for the utilization of the above mentioned facilities. At the moment, we believe, that by June 30, there will be sufficient definition of contracts to permit us to complete our negotiations with you. Meanwhile, we would be pleased to have the opportunity to examine a draft of the final purchase plan contract which will be based upon our tentative agreement.

18. By letter dated June 15, 1950, the GSA transmitted to plaintiff, which plaintiff acknowledges receiving, a rough draft of the deed and mortgage proposed to use for the transaction.

19. The last paragraph of the aforesaid letter of June 15, 1950, to plaintiff stated as follows:

After you have checked the documents, I should appreciate your having your attorney furnish this office with an okey [sic] covering the deed, purchase money mortgage, and the exhibits covering the personal property so that we may place these instruments in final form and be in a position to close this case sometime during the week of July 1st. In the event this time for closing is not convenient with you, I would then ask that you decide upon a definite date shortly thereafter and I will endeavor to see that the case is prepared for closing on that date.

20. The Cincinnati, Ohio, office of GSA had been handling the foregoing matters with plaintiff. In approximately August 1950, it was absorbed by the Chicago office of GSA and by letter dated August 25, 1950, that office wrote plaintiff as follows:

The Cincinnati Regional Office of General Services Administration has been absorbed by the Chicago Regional Office of General Services Administration.
We note that on June 15,1950, Mr. Thomas M. Logan forwarded to you certain drafts of documents intended to be used in completing the disposal of captioned Plan-cors. There is no record of any reply to said letter by you or your Counsel in the files. Will you therefore, please assist us by informing us as to whether you or your Counsel have replied to said letter, and if so, please furnish us with a copy of your reply. If you have not replied, you are earnestly requested to do so immediately and give us the information requested.

21. Between December 1949 and August 1950, Mr. Win-decker had various meetings and conferences with Mr. Melville C. Robinson, the head of the GSA Industrial Real Estate Disposal Division who had signed on behalf of GSA the original proposal letter of November 7, 1949 (set forth in full in finding 11, supra), about setting a closing date. At the trial, Mr. Windecker agreed that GSA letters of May 4, 1950 and June 15, 1950, constituted requests for him to set a closing date.

22. From the end of 1949 to approximately August 25, 1950, GSA was ready and willing to convey the Plancors to plaintiff under the terms, and at the price, set forth in the letter of November 7, 1949. In the average case, such sales were closed in about sixty (60) days; this one had “dragged on” for eight to nine months, and GSA was anxious to have the sale completed.

23. On or about August 25, 1950, after commencement of hostilities in Korea, GSA, Washington, D.C., was requested by the Munitions Board to submit for review a list of surplus Government industrial facilities, not already sold, so that the Board could determine whether any of the facilities were needed for national defense purposes. Pursuant thereto, these properties, i.e., Plancors 1716 and 1911, were placed on a list of facilities, sent by GSA to the Munitions Board, as to which GSA advised that binding legal commitments for their conveyance had been made but as to which no transfer instrument bad been executed or delivered as a result of tbe Board’s request. GSA placed a “freeze” upon sucb transfer of ownership pending screening of these facilities by the Munitions Board to ascertain if they were needed for national defense. The aforesaid transactions took place between the Munitions Board and GSA in Washington, D.C. At about the same time, the Washington office of GSA notified its office in Chicago of the “freeze” and directed that no further action be taken to complete the disposal of these facilities.

24. As noted in finding 20, supra, the Chicago office of GSA had written plaintiff at about the same time, August 25, 1950, relative to the drafts of the deed and mortgage to be used in the closing. This letter was sent by the Regional Counsel’s office in Chicago, whereas the Washington office of GSA dealt with Mr. Joseph A. Burke, the then Deputy Regional Director, and these several actions took place at approximately the same time. By this time, GSA had received and was receiving indications from plaintiff that it did not intend to complete the transaction. GSA had been trying to get Mr. Windecker to set a closing date but had been unable to do so.

25. Following receipt by plaintiff of the GSA letter dated August 25, 1950 (finding 20, supra), Mr. Windecker telephoned the Chicago office of GSA and requested a meeting in Chicago with GSA representatives, which subsequently took place in early September 1950.

26. At this meeting of September 1950, the agreement as set forth in the November 7,1949 letter (finding 11, supra), was discussed. Mr. Windecker, plaintiff’s president, testified that at this meeting he was advised by GSA that the contract would have to include the “National Security Clause.” Plaintiff did not wish to have the clause in the contract and did not agree that it should be included. At this point, Mr. Windecker and the Government “were at loggerheads” and “were completely at odds” because the Government wanted the clause in the contract and he refused to agree to it.

27. Also discussed at the September 1950 meeting was the matter of plaintiff’s position relatiye to the contract, and plaintiff was asked to advise GSA of its position. Apparently Mr. Windecker stated at the meeting that he would send GSA a letter in this regard, for on September 15,1950, Mr. Burke, the Deputy Regional Director, wrote Mr. Windecker as follows:

With reference to your recent visit, we are looking forward to receipt of the letter which you stated would be sent and which would outline your position in connection with the sale of the subject plancor to you.

28. By letter dated one day prior thereto, September 14, 1950, plaintiff had written GSA, Chicago, in part as follows:

In accordance with our conversation of September 12, we agree that the purchase plan of the above captioned plancors should be indefinitely deferred pending better definition of the utilization of facilities and buildings and release by the Army Navy Munitions Board.

29. By letter of September 18, 1950, GSA, Chicago, wrote plaintiff in part, as f ollows:

Thank you for your letter of September 14, outlining your proposal for rental of the subject plancors.
It was our understanding of your conversation during your recent visit here, that your company did not consider itself obligated to purchase the subject plancors. It was also our understanding at that time that you would be willing to reduce this understanding to writing. However, your letter.of September 14 fails to mention such an understanding and therefore in order that the matter may be entirely clear a supplemental letter to this of the 14th will be appreciated.

30. By letter dated September 22, 1950, plaintiff wrote GSA, Chicago, as follows:

In response to your letter of September 18, and in accordance with your suggestion, we present the following re-statement of our understanding regarding the obligation to purchase subject plancors.
It is our opinion that we reached an agreement with the Cincinnati Begional Office accepting a negotiated total price and the terms for the purchase of these plancors. However, we had only received a draft of the proposed purchase contract for consideration prior to the time of the discontinuation of the Cincinnati Regional Office. Thus all negotiations and the signing of the purchase contract were incomplete, and under such circumstances we do not feel obligated to continue with the purchase plan. We hope, however, that this plan can foe held in abeyance pending further developments from all quarters, and that the negotiations can foe renewed using as a basis the “meeting of minds” reached with the Cincinnati Regional Office.

31. On February 1,1951, the Munitions Board wrote GSA, Washington, D.C., the following letter:

This refers to R-Ohio-117, Plancor 1716, 'and R-Ohio-27, Plancor 1911, Clifton Products, Painesville, Ohio, which was reviewed in accordance with Public Buildings Service Circular No. 1, Supplement No. 3. R-Ohio-117 is a plant designed for production of Beryllium Alloys and Beryllium oxide. It had an original cost of $290,000. R-Ohio-27 is a plant for reclamation of beryllium from scrap. It had an original cost of $207,000. Both properties were 'built on lessee’s land and utilities are supplied by adjacent private plant. The equipment remains intact in both plants. It is understood binding commitments have been made to sell both properties without the National Security Clause. ‘Since, however, these properties 'are useful for the production of beryllium alloys and beryllium oxide, which will be in very short supply in an emergency, you are requested to attempt to get the purchaser’s agreement to include the National Security Clause in the sale.

32. By letter dated February 27, 1951, GSA, Chicago, wrote plaintiff as follows:

With reference to the matter of purchase by your company of the subject plancors, please be advised that we have been requested to seek your agreement to the inclusion of the National Security Clause in the instrument of transfer. A copy of this clause is attached. (Sec. 113.103 and 113.103-1).
This Administration is ready to complete the disposal of the subject facilities for the sum of $136,000, on the terms previously agreed upon 'and also subject to the aforesaid National Security Clause.
Will you please advise?

33. The National Security Clause referred to in finding 26, supra,) was published in the Federal Register on April 1, 1950. 15 Fed. Reg. 1870. The clause provides for the purchaser of excess industrial property from the United States to maintain it in sucb a condition that it can b© converted to production of a designated end product within a period of 120 days. It provides that the plant may be used for civilian production, and the machinery and equipment needed for the military production stored'and new machinery substituted, the basic requirement 'being only that it can be reconverted to production of the needed military item or items. The clause does no t require that the whole plant 'be put in “moth balls” and kept locked or otherwise shutdown. The clause provides for the negotiation of a contract with the owner for production of the defense end item in the event of its need for national security; or if, for any of the reasons set forth therein, such a contract is not entered into or can not be agreed upon, for the Government to take over the operation of the plant and pay appropriate rental compensation. The clause also contains a disputes provision. In essence, the clause sets forth a complete set of provisions and procedures for making it possible for the property to be used, in the event of a national emergency, for the production of needed defense items with appropriate production for the monetary interests and rights of the purchaser of the plant.

34. By letter dated May 15, 1951, GSA, Chicago, wrote plaintiff as follows:

Acknowledgment is made of your letter of May 14. Any. date convenient to you is satisfactory for the discussion in Chicago in connection with the proposed sale of the subject facility. Please advise the date you expect to be in Chicago.
With regard to disposing of any of the equipment, separate and apart from the plancor, please be advised that this is considered inadvisable at this time in view of the application of the National Security Clause to both plancors.
It will be appreciated, however, if you will let us know whether inclusion of the National Security Clause in the sale is satisfactory to you in the event the sale is consummated. It is necessary to inform our Washington office of your concurrence or non-concurrence in this request.

35. By a letter of May 21, 1951, plaintiff responded to GSA’s letter of May 15,1951 as follows:

We have just completely studied the National Security Clause forwarded to us with your letter of February 27, and find that we are definitely not in concurrence with the inclusion of this clause in the purchase plan for the above captioned plancors.
This reaction we have because of the following: First, there is no portion of the Government equipment involved which is adaptable or warranted for further service with respect to its original purpose. Second, it will be necessary for us to fully utilize all parts of the Government property (exclusive of equipment) in order to carry out and complete the purchase plan. Third, the readaptation of the space used will without question be more important to national security than would be the rehabilitation of the space for its original or intended purpose. Fourth, there has been to date no intimation of any branch of Government service that there will be a requirement for materials or services in the equipment as originally built.
From the above it can be readily seen that the inclusion of the National Security Clause in the purchase plan would make impossible the carrying out of said plan. We would suggest June 11, as a possible meeting time in Chicago.

36. Under cover of a letter dated October 5,1951, plaintiff forwarded GSA a proposal, of the same date, for the purchase of the two Plancors. The proposal included the following:

I.We reiterate our offer to purchase Plancors 1716 and 1911 as per the letter of November 7,1949, a copy of which is enclosed.
‡ $
III. We accept the inclusion of the National Security Clause, based upon the following conditions:
1. That we shall be permitted to make changes to facilities according to Schedule (A).
2. That we be permitted to sell certain equipment according to Schedule (B) to make space available for other work.
3. That there shall ‘be certain other conditions as specifically outlined below.
IV. We propose that rentals due General Services Administration for the above captioned Plancors aggregate a sum not to exceed $9,400.00 and further propose as follows :
a. That this amount shall be considered as part and parcel of the negotiated purchase plan.
b. That, in view of our acceptance of the inclusion of the National Security 'Clause that this payment be deducted from the total due under the purchase plan and specifically deducted from the amount of the down payment.
V. The above is presented for acceptance or rejection by General Services Administration prior to December 1,1951.

37. GSA transmitted plaintiff’s purchase proposal to the Munitions Board and received the following letter from the Board in reply under date of November 26, 1951:

This is in further reply to your letter of 31 May 1951 asking for our comments on the proposal by Clifton Products, Inc. to purchase, subject to a limited Security Clause, Plancors 1716 and 1911.
You are hereby authorized to dispose of Plancors 1716 and 1911 to Clifton Products, Inc., subject to the National Security Clause, as agreed to in the 5 October 1951 proposal by Clifton Products, Inc. If Clifton Products monetary proposal is acceptable and the sale is consummated, we would appreciate receiving three copies of the final instrument of transfer.

38. On December 4, 1951, plaintiff extended the deadline for action on its purchase proposal of October 5, 1951 to January 4,1952. GSA did not accept the proposal.

39. On January 17, 1952, plaintiff wrote GSA to advise that it was amending its October 1951 purchase offer by increasing the price from $136,000 to $150,000.

40. On February 1,1952, GSA wrote the Munitions Board to request that it be permitted to sell the Plancors free of the National Security Clause and by a letter of March 21, 1952, the Munitions Board granted the GSA request.

41. Plaintiff’s president conferred with Mr. Burke of GSA at plaintiff’s offices on May 8, 1952, concerning purchase of the Plancors. In the conference Burke, on behalf of GSA, rejected plaintiff’s $150,000 offer and the following day wrote plaintiff a letter confirming the rejection and noting the understanding that plaintiff was to submit a new offer comprising the same terms and conditions as the one rejected except that tbe purchase price was to be $200,000 and the National Security Clause excluded.

42. In a letter of May 21, 1952 to GSA, plaintiff acknowledged GSA’s rejection of its $150,000 offer and revised the offer in the respects mentioned in the preceding finding except that it added the further modification that there was to be no down payment. After a further interchange of correspondence, GSA, by a letter of August 27, 1952, advised plaintiff that it would not agree to waive the requirement for a down payment.

43. By a letter of November 19, 1952, plaintiff submitted a detailed offer for purchase of the Plancors and settlement of all rent claims for $200,000. While this offer was under consideration by GSA, its Audit Division calculated plaintiff’s back rental obligations to be more than $60,000. Though plaintiff acknowledged that it owed some unpaid rent, it denied that its liability was anywhere near as large as GSA contended. At a conference of May 4,1953, GSA invited plaintiff to submit its own computations of unpaid rent that it owed. Despite its expressed willingness to do this, plaintiff still had not done so by January 11, 1954, when it wrote GSA reducing its offer from $200,000 to $136,000.

44. Finally, on March 26,1954, plaintiff stated its position as to rent arrearages in the following letter to GSA:

Pursuant to agreements made during our conference of Friday, March 12, in Mr. Burke’s office, we present the following outline of our position with respect to rentals due General Services Administration from the beginning to March 31,1954.
The rental herein admitted is based upon the following factors, being a factual amount, carefully figured. No transcript is enclosed, though our worksheets are open for your inspection at any time. First, we consider that all rental due to January 1, 1950 has been paid in full. We shall therefore consider only the period from January 1,1950 to March 31,1954. Second, that the basis for the rental of Plancor 1716 only is based upon 5% of net sales calculated as follows:
a. 100% for products produced with all Government apparatus in Government owned buildings.
b. 0% for all products produced in all Clifton owned apparatus in Clifton owned buildings.
c. X% based upon tbe closest possible estimate where facilities and buildings owned by both Clifton Products and the Government were used.
By the above method we accounted for $139,667.96 of net sales, 5% of which amounts to $6,983.40.
Rentals for 1911 have been based upon square feet of floor space used, plus a yearly percentage of the original cost of furnace apparatus, figured at a daily rate to account for down time. Prior to 1951 we had averaged about 3500 square feet of floor space used. In May of 1951, we occupied about 2500 additional square feet of floor space on behalf of the Atomic Energy Commission. This space to date has been used only intermittently and we feel obligated for rental only for that time during which the plant was used and not tor the standby geriods since title to this equipment was vested in the overnment (The Atomic Energy Commission). We arrive at $3,740.85 for ordinary space rental, $1,740.00 for intermittent space rental, and $2,628.00 for rental of the furnace transformer only. Thus we have a total of $13,526.25, total rent due for both Plancors 1716 and 1911. This figure as far as we are concerned is exact and final, and under no circumstances would we admit to any further obligation for occupancy or use of Government property at our plant site.
It was verbally agreed at the time of the conference, that it was highly desirable to determine the amount of our admitted obligation to General Services Administration, prior to further negotiations for the purchase of this property. It was also further agreed that the amount of this admitted obligation is to be a point of consideration toward further negotiations for the purchase of this Government property, and that only in case of the failure of these negotiations shall the amount of this admitted obligation become due and payable.

On June 8, 1953, GSA sent plaintiff a 'bill for unpaid rent on the Plancors totaling $63,112.13 as of December 31, 1952.

On August 9, 1954, plaintiff wrote GSA as follows:

At the time of the meeting of March 12, it was the writer’s opinion that the rental figure arrived at by Mr. Kaufmann and your staff of auditors, was without logical basis and completely unreasonable. It is also our opinion that there is no other reason for the large difference between Mr. Kaufmann’s figure and that presented in our letter of March 26.
Since there is no agreement on past rental due there is also no basis for the continuance of any of our past offers to purchase this property, likewise it is our opinion that a negotiated price, if approached in the same manner, will be as difficult to reach as is the rental. Further, it is our opinion that our past offers have 'been greatly in excess of a maximum public sale value, which we would predict to be under $100,000 for the entire property.
In spite of the above, we are still as desirous of acquiring Plancors 1716 and 1911 as we have ever been, whether by negotiation or public sale, and above all, we earnestly hope that an equitable settlement of rental due may be reached at an early date.

Plaintiff and GSA never reached agreement as to the amount of unpaid rent.

45. On June BO, 1955, the statutory authority of GSA to make sales of surplus property by negotiations, without advertising, expired and was not renewed until August 3,1956. The authority to make such sales had been conferred upon it on June 30,1949, by Section 203(e) of the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, 40 TJ.S.C.A. § 483(e) (1952 ed.). The statute provided that this authority expired December 31,1950 {ibid.). It was successively extended, with hiatuses, as follows:

On July 12, 1952, the Act was amended to extend the expiration date from December 31, 1950 to June 30, 1953. 66 Stat. 593, § l(i).

On August 8, 1953, it was amended to extend the expiration date from June 30, 1953 to June 30, 1954. 67 Stat. 521.

On July 14, 1954, the expiration date was extended from June 30,1954 to June 30,1955.68 Stat. 474.

On August 3,1956, the expiration date was extended from June 30,1955 to July 31,1958.70 Stat. 1020.

46. By letter dated October 7,1955, the real estate firm of Ostendorf-Morris Company, Cleveland, Ohio, transmitted to plaintiff an appraisal, prepared by it at plaintiff’s request. It was made for the purpose of determining the current fair market value of the three facilities involved herein, namely, Plancor 1716, Plancor 1911, and Clifton Products, Inc. The appraisers concluded that the current fair market value of the aforesaid properties was as follows:

Clifton Products, Inc_$100, 000
Plancor 1716_ 28, 000
Plancor 1911_ 70,000

47. By a letter of November 22,1955, GSA notified plaintiff to vacate the Plancors by December 31,1955, for nonpayment of rent. This deadline was extended at plaintiff’s request until the Plancors were sold in May 1956, to the Lubrizol Corporation.

48. In January 1956, plaintiff’s president and the president of Lubrizol, a nearby petroleum product additive manufacturer for whom plaintiff had been doing contract custom work since 1950, met and began discussions concerning Lubri-zol’s purchase of plaintiff’s plant plus the two Plancors. Lubrizol’s business had expanded and prospered and it had need for additional productive capacity. In these discussions plaintiff agreed to sell its properties to Lubrizol for $100,000. Once this agreement was reached between the two firms, they approached GSA together in an attempt to consummate a private purchase of the Plancors by Lubrizol. GSA could not agree to such an arrangement because of the statutory ban on negotiated sales then applicable.

49. Lubrizol had no interest in either the Plancors without plaintiff’s property or in plaintiff’s property without the Plancors. Thus, on March 20,1956, it secured an option from plaintiff to purchase its properties for $100,000 by or before June 30, 1956. With this option in hand, Lubrizol then tried unsuccessfully to persuade GSA to sell the Plancors at public auction. Even though Lubrizol offered a $90,000 upset price if GSA sold the properties in this manner, GSA refused and insisted on selling the Plancors by sealed bid. Accordingly, in April, GSA advertised the properties for public sale by sealed bid in various Ohio newspapers, including the local paper in Painesville where the facilities were located. Plaintiff’s president was aware of these ads. As advertised the sealed bids solicited for the Plancors were opened May 15, 1956, and tbe plants were sold to Lubrizol, as the high bidder, for $105,501.

50. Following its purchase of the Plancors, Lubrizol exercised its option to purchase plaintiff’s facilities.

51. At no time did plaintiff either demand performance by the defendant under the 1949 $136,000 letter agreement with GSA or object to the defendant’s public sale of the Plancors to Lubrizol.

Defendant's Claim, for Unpaid Bent, Plancor 1716

52. Plaintiff’s original lease on Plancor 1716 (Paragraph Twenty-two) provided that the lessee could not use the facility for any purpose other than furnishing defendant or defendant’s suppliers with beryllium products. Production of such products was the sole purpose for which the Plancor was designed and equipped. The lease also specified (Paragraph Thirteen) rental as 8.5 percent of plaintiff’s net sales of such products. Subsequent amendments to the lease increased this rental figure to 10 percent and, in April 1944, to 11 percent. The sales base to which these various percentages were to be applied for purposes of determining rent liability was specifically defined in Paragraph Thirteen of the lease as including all of the lessee’s sales of beryllium products, whether or not manufactured in or by the facilities of Plancor 1716. Thus, rent liability was imposed on: “Lessee’s net sales (whenever made) of all beryllium manufactured, produced and/or furnished in whole or in part by Lessee (whether through the use of the facilities herein provided for, or through the use of any other plant or facilities now owned or hereafter acquired by Lessee) during each year of this lease * *

53. On October 25, 1945, plaintiff wrote NFC the following letter:

Ee: Plancor 1716
We will be pleased to have Eeconstruction Finance Corporation write an interim agreement covering the operation of the above plancor effective at the earliest possible date.
We would also be pleased to have this interim agreement set up with rental on a basis of 5% of our net sales and, if possible, retroactive to the cessation of hostilities. We feel that the above would be a fair trial basis for our operation.
In addition to the above, we would like to be relieved of any stipulation by Reconstruction Finance Corporation that our work be confined to the production of Beryllium products, it being understood that facilities will be maintained in a condition assuring the resumption of production according to the original installation if such resumption is warranted.

54. The RFC responded to plaintiff’s letter by the following telegram of November 5,1945:

HM100 200/199 1 EXTRA GOVT=FI WASHINGTON DC NOV 5 548P
C E WINDECKER=
= CLIFTON PRODUCTS INC=
PAINESVILLE OHIO
=REURLET OCTOBER 25,1945. RFC CONSENTS TO USE OF FACILITIES PROVIDED UNDER PLANCOR 1116 FOR CIVILIAN PRODUCTION PROVIDED (A) THE FACILITIES WILL BE MAINTAINED IN A CONDITION ASSURING THE RESUMPTION OF THE PRODUCTION OF ITEMS CONTEMPATED [sic] BY THE AGREEMENT OF LEASE IF AND WHEN SUCH RESUMPTION IS WARRANTED, (B) AS RENTAL FOR THE USE OF SUCH FACILITIES YOUR COMPANY SHALL PAY TO RFC FIVE PERCENT OF NET SALES OF ALL PRODUCTS MANUFACTURED OR FURNISHED BY YOUR COMPANY THROUGH THE USE OF SAID FACILITIES, WHICH RENTAL SHALL BE IN LIEU OF THE RENTALS PROVIDED IN PARAGRAPH THIRTEEN OF THE AGREEMENT OF LEASE, AS AMENDED, (C) THIS CONSENT OF RFC SHALL BE TERMINABLE BY RFC OR YOU [sic] COMPANY UPON THIRTY DAYS WRITTEN NOTICE, (D) OPTION PERIOD PROVIDED IN PARAGRAPH FIFTEEN OF THE AGREEMENT OF LEASE AS AMENDED, SHALL COMMENCE FROM THE DATE OF THIS CONSENT, (E) EXCEPT AS OTHERWISE BASED [sic] ALL TERMS AND CONDITIONS OF THE AGREEMENT OF LEASE SHALL REMAIN IN FULL FORCE AND EFFECT INCLUDING, BUT WITHOUT LIMITATION, TERMINATION AND SERVICING PROVISIONS THERE OF AND (F) THE USE OF SAID FACILITIES BY YOUR COMPANY PURSUANT TO THIS CONSENT SHALL CONSTITUTE YOUR AGREEMENT TO THE TERMS AND CONDITIONS HEREOF=
A T HOBSON SECRETARY RECONSTRUCTION FINANCE CORP.

55. Tlie chief policy officer concerned with issuance of the telegram quoted in the preceding finding testified at the trial. He explained that at the time it was the policy of the RFC to encourage interim leasing of Government-owned Plancors, such as those involved in this case, as a means of reconversion of the economy to a civilian basis. The RFC was not concerned with the sale of these properties since it had been determined that disposal was to be handled by an agency created especially for that purpose. As lessor, the aim of RFC was to secure a rental that would yield it specified annual rates of return on each of the general categories of investment in the Government-owned properties. The target rates were 5 percent on the initial cost of land and buildings, 12 percent on the initial cost of machinery and equipment, and 25 percent on the initial cost of special tooling. Where the Government-owned facilities were physically separate from and independent of privately owned contractor facilities, annual rents were charged on the basis of investment yields. In the case of so-called scrambled facilities, such as Plancor 1716, it was the RFC’s practice to attempt to translate the percentage-of-investment rent charge into a fixed percentage of the contractor’s net sales of total production. Thus, RFC’s aim in charging plaintiff a rental for Plancor 1716 of 5 percent of the net sales of products produced through use of the facility was to achieve the 5, 12, and 25 percent annual rates of return on the Government’s several categories of investment in the Plancor. So far as the evidence discloses, RFC did not follow the procedures in this case that it invariably applied in those instances where it followed the percentage-of-sales rental approach. The first procedure apparently not followed in this case was one that called for investigation of the lessee’s projected production by an EFC auditor and an attorney. The object of such an investigation was to forecast future sales revenue so that a percentage-of-sales figure could be determined that was calculated to produce the annual investment returns that EFC sought. Neither such an investigation nor the negotiation with the lessee that was to follow it occurred with respect to plaintiff and Plancor 1716. Secondly, EFC policy called for periodic follow-up investigations by its personnel, after the interim lease was consummated, to determine whether the target rates of return on investment were actually being realized. Although EFC retained jurisdiction over Plancor 1716 for three years after the November 1945 telegram, there is no indication in the evidence that any surveillance of the adequacy of the rent arrangement or consultation with the plaintiff occurred. Finally, although it was established EFC policy that percentage-of-sales rent charges were to apply, in the case of scrambled facilities, to sales of all products whose production touched any part of the Government facility, that policy was conveyed only by word-of-mouth and there is no evidence that plaintiff was ever advised of it.

56. From the inception of its operations under the original 1943 lease of Plancor 1716 through July 1950, plaintiff paid the Government total rent on the facility of $45,847.34. Plaintiff made no rent payments on this Plancor after July 1950.

57. Paragraph 5 of the offer to purchase the Plancors for $136,000, ratified by plaintiff’s president on December 9, 1949, provided:

All monies due the Government from Clifton Products, Inc., as of the effective date of the sale must be paid prior to closing of the transaction.

58. On June 15, 1951, plaintiff wrote GSA the following letter:

Pursuant to the agreement made during our meeting of June 11, we wish to reaffirm our offer to purchase the above subject plancors. This offer will be exactly according to the offer of October 24, 1949, which was approved by General Services Administration on November 2, 1949. This offer is made only if General Services Administration will waive the inclusion of the National Security Clause in the instrument of transfer.
We enclose a copy of the letter of November 7, 1949, which defines the terms and conditions of the agreement of October 24,1949.
After we have received confirmation on the waiver, our first attention should be directed to paragraph 5 of the enclosure, in connection with which it should be noted that our existent rental agreement has become rather non-specific with respect to the amount of rental to be paid. The rental amount must therefore be negotiated and agreed to by both parties prior to the closing of the purchase agreement.
We shall be very happy to have your suggestions on the above and will look forward to the receipt of your next communication.

59. On July 12, 1950, GSA’s Cincinnati Regional Office transmitted the following memorandum, concerning collection of plaintiff’s rent arrearages, to GSA, Washington:

We are advised by Mr. C. E. Windecker, President of Clifton Products, Inc., that his company is unable to pay to this agency a total of $2597.99, delinquent rent made up as follows:
Plancor 1716
Amount $935.39 for period 4/1/49 through 12/31/49 (subject to additional rent for any production over and above minimum rental from 1/1/50 through 6/30/50.
Plancor 1911
Amount $1662.60 for period 11/5/46 through 6/30/50.
The Real Property Management Division of this office has been attempting to collect the above mentioned delinquent rent for quite sometime. Mr. Windecker states that his inability to pay is due to a failure on the part of the New York Operations Office of the Atomic Energy Commission to pay to Clifton Products, Inc., approximately $11,000, which Mr. Windecker claims that AEC owes for work performed by our debtor. We are also advised that this $11,000 would be unencumbered by Clifton Products, Inc., if it were in their hands.
Will you kindly contact the. Atomic Energy Commission, presenting to them the matter of the delinquent rental owing to this agency and indicating that GSA cannot collect its debts from Clifton Products until AEC shall have discharged its alleged obligations to the same concern.
We shall appreciate any stimulating action which you will be able to take in this connection.

60. On August 2, 1951, Joseph A. Burke of GSA wrote plaintiff as follows:

We have received advice from our Washington office to the effect that the Munitions Board desires disposal of the subject facilities to be held in abeyance for approximately (6) months, during which period the interested Defense Agencies expect to determine the need for the original products of these facilities.
It is therefore essential that there be full payment of the present rentals due and that satisfactorily mutual arrangements be made for the payment of rental by your company for the use of the facilities as they are now constituted.
We would therefore appreciate receiving your remittance for the past due rentals and we suggest that you forward to us your lease offer.

61. On August 9,1951, plaintiff replied to the Burke letter a,s follows:

We are in receipt of your letter of August 2, with respect to Plancors 1716 and 1911.
Judging from past experience, if a decision on requirements is not available now there will be little change in the circumstance in six months.
With respect to “full payment of present rentals due” we are somewhat at a loss as no agreement has ever been reached as to a method or amount of payment due. The rental agreement applies only to the production of beryllium, and there has been no beryllium production in a primary sense on which rentals could 'be payable. Some beryllium materials have been processed and refined for special requirements using only isolated portions of the equipment. It would appear, however, that past due rentals present the only real problem, and that a lease offer will be rather simple to present.
We are quite naturally very anxious to avoid the establishment of a complicated and difficult liability, and would appreciate your immediate suggestion as to a meeting for negotiation of all lease conditions.

62. At one point the Government apparently shared plaintiff’s view, expressed in the letter quoted in the preceding finding, that rent on Plancor 1716 was payable only on sales of beryllium products. For example, on October 31,1949, the War Assets Administration wrote plaintiff the following letter:

Please refer to our letter of July 29, 1949, and our follow-up of August 23, in which we requested that an accounting be furnished us indicating the net sales of beryllium by your company for the periods April 1 to July 1, in compliance with provisions of the lease agreement. We would also appreciate receiving an accounting for the last period, July 1 to October 1. _
_ Will you please furnish us this information at once, so that we may adjust our records to reflect the current status of your account.

63. As noted in finding 9, supra, plaintiff’s business was seriously affected when the wartime demand for its beryllium products no longer existed. At the time that the 5-percent-of-sales lease was concluded with RFC in 1945, plaintiff was able to reasonably anticipate utilization of the beryllium processing facilities of Plancor 1716 for the production of beryllium oxide for the fluorescent lamp trade that it had serviced before the war. Plaintiff, in fact, successfully utilized the Plancor for this purpose until it was compelled to stop for safety reasons.

64. It became evident in 1947 that there were fatally serious human toxicity problems associated with the commercial manufacture of beryllium products. This condition forced plaintiff to discontinue its production of beryllium oxide which it had been selling to the fluorescent lamp industry. This activity had represented the largest segment of plaintiff’s business. In July 1948, the Atomic Energy Commission declared plaintiff’s facilities, including the Plancors, unsafe for further production of beryllium items. Plaintiff thereupon completely terminated such production and its beryllium processing was thereafter limited to various research and development projects under contract with AEC. Different phases of the contract work, involving the production of fused beryllium oxide, were performed in each of the Plancors with safety-approved equipment furnished by AEC in all instances. This contract activity was never extensive and ended completely in 1953.

65. The practical effect of the permanent AE'C embargo on beryllium processing at Plancor 1716 was to rule out the single use for which the facility had specifically been designed and equipped by the Government. The building, of course, remained useful as a building but, as noted in finding 4, supra, its cost represented only a small portion ($53,000) of the Government’s total investment ($289,143.41) in the Plancor. While some of the equipment was adaptable to other uses, the fact remains that the use for which it was not only initially purchased but leased by the plaintiff in 1945 was totally and permanently foreclosed.

66. After the enforced termination of commercial beryllium operations, plaintiff endeavored to find other types of work with which to utilize its plant facilities. As a result of these efforts, it began in early 1950 to do various work on a contract custom basis for the Lubrizol Corporation of Cleveland, Ohio, the large manufacturer of chemical additives for petroleum fuels that was to ultimately purchase the Plancors from the Government. (Findings 48-50, supra.) Lubrizol’s business expanded greatly during the period 1950-56 which overtaxed its own productive facilities. Plaintiff’s work for Lubrizol consisted primarily of conversion processes on raw materials furnished by Lubrizol. In addition, plaintiff performed some research and development work for Lubrizol. Plaintiff’s volume of work for Lubrizol increased progressively and from 1951 forward such work comprised substantially all of plaintiff’s plant activity aside from the diminishing volume of AEC contract work which ended in 1953. The evidence shows that while some of the Lubrizol work was performed in the Government-owned Plancors, especially Plancor 1716, it was done altogether with equipment either owned by plaintiff or supplied by Lubrizol.

67. In calculating the rental due from plaintiff on Plancor 1716, defendant applied the 5-percent-of-net-sales rate to all products that touched any part of the Plancor, building or equipment, in the course of manufacture. Under this approach, defendant’s computed rent liability on Plancor 1716 is as follows;

Period oí sales Total sales Total subject to rental Rental rate Rental due
Percent
1-1-44 to 1-11-44. $175.60 $176.60 8H $14.93
I-1M4 to 3-31-44. 6,961.80 6,958.90 10 695.89
4-1-44 to 9-30-44. 26,689.35 23, 950. 60 11 2, 634.57
10-1-44 to 9-30-45. 72,003.90 45,310.47 11 4,984.15
10-1-45 to 11-4-45. 8,761.17 2,494.60 11 274.41
II-5-45 to 9-30-46.-. 167,225.33 116,660.37 5 5,833.02
10-1-46 to 9-30-47. 263,771.35 100,656.04 5 9,527.80
10-1-47 to 9-30-48. 296,334.82 198,592.87 5 9,929.64
10-1-48 to 9-30-49. 93,712.83 27,017.13 5 1,350.86
10-1-49 to 9-30-50. 150,026.97 11,708.44 5 585.42
10-1-50 to 7-30-51. 286,342.86 81,822.45 5 4,091.12
7-31-51 to 9-30-51. 119,903.74 47,270.76 -5 2,363.54
10-1-51 to 9-30-52. 339,331.42 140,569.19 5 7,028.46
10-1-52 to 9-30-53. 253,672.26 165,122.48 5 8,256.12
10-1-53 to 9-30-54. 488,669.84 418,767.64 5 20,938.38
10-1-54 to 9-30-55. 284,277.28 233,791.56 6 11,689.58
10-1-55 to 5-15-56. 227,181.50 174,155.62 5 8,707.78
Total 1-1-44 to 5-15-56- . 3,085,042.00 1,884,924.72 . 98,905.67

It is seen from the above that for purposes of its counterclaim, defendant bas charged plaintiff with additional rent on Plancor 1716 totaling $8,603.95 for the period January 1, 1944 through November 5,1945. This additional rent is based on sales data taken from plaintiff’s books and records. Except to a minor degree in the fiscal year ended September 30,1945, plaintiff adduced no evidence contrary to that on which the additional rent prior to November 5, 1945 is based.

68. The evidence shows that certain of the products included in defendant’s rent computations, as detailed in Defendant’s Exhibit III-A, did not involve Plancor 1716 at all. Illustrative of such products are Chlorinated Eicosene, LC-7; Balform D, LC-8; Crude Octyl & Heptyl Phenol, LC-10; and Indopol Phenol, LC-12. In addition, the computations charge full rental on several items produced entirely with plaintiff’s equipment or equipment furnished by Lubri-zol with only some floor space of Plancor 1716 being involved in the productive process. Examples are Magnesium Oxide; Wax Phenol, LC-1; Barium Octohydrate, LC-3; Octyl Phenol, LC-5; Heptyl Phenol, LC-5; and Wax DPO, Addex, LC-6. Eevising defendant’s computations to exclude sales of products that did not involve Plancor 1716 at all and to charge only an annual 5 percent of the Government’s building investment (i.e., $2,650 per year) on account of production that utilized only floor space produces tbe following rent liability:

Period of sales Total sales Total subject to rental Rental rate Rental due
1-1-44 to 1-11-44._ $175.60 $175.60 m% $14.93
I-12-44 to 3-31-44. 6,961.80 6,958.90 10% 695.89
4-1-14 to 9-30-44... 26,689.35 3,950.00 11% 2.634.57
10-1-44 to 9-30-45.. 72,003.90 4,256.47 11% 4,868.21
10-1-45 to 11-4-45. 8,761.17 2,492.60 11% 274.19
II-5-45 to 9-30-40.. 167,225.33 116,660.37 5% 5,833.02
10-1-46 to 9-30-47. 263,771.35 190,556.04 5% 9,527.80
10-1-47 to 9-30-48.. 296,334.82 198,592.87 5% 9.929.64
10-1-48 to 9-30-49.. 93,712.83 13,197.38 5% 659.87
10-1-49 to 9-30-50.. 150.026.97 10,602.44 5% 530.12
10-1-50 to 7-30-51.. 286.342.86 47,311.60 5% 2.365.58
7-31-51 to 9-30-51.. 119,903.74 3,373.20 5%+$2,650 2,818.66
10-1-51 to 9-30-52.. 339,331.42 16,905.34 5%+$2,650 3,495.27
10-1-52 to 9-30-53.. 253.672.26 16,038.00 5%+$2,660 3,451.90
10-1-53 to 9-30-54.. 488,669.84 782.95 5%+$2,650 2.689.65
10-1-54 to 9-30-55.. 284.277.26 8.00 5%+$2,650 2,650.40
10-1-55 to 5-15-50.. 227,181.50 1,641.38 5%+$2,650 2,730.07
Total 1-1-44 to 5-15-56. 3,086,042.00 693,503.74 . 55,169.77

69. Although the general subject of plaintiff’s unpaid rent obligations was invariably referred to throughout almost the entirety of its purchase negotiations with the Government, primarily GSA, the evidence shows that it was not mitil the very latter stages of those unfruitful negotiations that either party reduced its position as to the extent of plaintiff’s liability to specifics. Thus, it was not until June 8, 1953 that the Government presented its first bill for allegedly unpaid rent to plaintiff. With only the explanatory notation, “Rental due the Government in accordance with Lease Agreement as of December 31, 1952, on the following Plancorsplaintiff was billed by GSA for $53,650.13 on Plancor 1716 and $9,462.00 on Plancor 1911. So far as the record discloses, the specific manner in which the 1945 rental agreement was applied to plaintiff’s operations, in order to produce the alleged past due rental figure for Plancor 1716, was never presented to the plaintiff.

70. As detailed in finding 44, supra, in a letter of March 26, 1954 to GSA, plaintiff set forth its interpretation of the 1945 agreement which resulted in an unpaid rent balance of $6,983.40 on Plancor 1716 as of March 31,1954.

71. By a letter dated July 15, 1955, GSA transmitted to plaintiff a bill for rent allegedly due on the two Plancors for the period December 31, 1952 through June 30, 1955, in the total amount of $139,558.43. The bill was accompanied by a breakdown statement showing $106,396.56 of the total attributable to Plancor 1716 and the remainder, $33,161.87, to Plancor 1911. These totals for each facility were itemized, without explanation as to their underlying basis, as follows:

1716
Rental to 12/31/52 previously billed- $53,650.13
Hess: Insurance Proceeds_ 4, 300. 00
- $49,350.13
Rental:
1/1/53 to 9/30/54_ 46,664.67
10/1/54 to 3/31/55_ 7,805.26
3/31/55 to 6/30/55_ 2,576.50
- 57, 046.43
Total Rent due as of 6/30/55. 106,396. 56
1911
Rental to 12/31/52 previously billed- 9,462. 00
Rental:
1/1/53 to 9/30/54_ $19,958.75
10/1/54 to 6/30/55_ 3,741.12
- 23, 699. 87
Total Rent due as of 6/30/55- 33,161. 87
Total rent due on Plancors 1716 and 1911 as of 6/30/55_ 139, 558. 43

72. On September 26, 1955, plaintiff filed Civil Action No. 32129 against GSA in the United States District Court for the Northern District of Ohio. The complaint, in two counts, sought a declaratory judgment as to plaintiff’s rent obligations respecting Plancor 1716 and a money judgment for $209,565.04. On March 30, 1956, the defendant filed a motion to dismiss for lack of jurisdiction, the suit being against the Government for an amount in excess of the District Court’s $10,000 Tucker Act jurisdiction, and on July 3, 1956, pursuant to a stipulation, the suit was dismissed without prejudice.

Defendant's Claim for Unpaid Bent Plameor 1911 and Detroit Electric Furnace

73. As noted in finding 5, supra, Plancor 1911 was designed and equipped for the sole purpose of reclaiming beryllium, in the form of beryllium copper ingots, from beryllium scrap. This operation became obsolete shortly after its inception because of improved techniques that drastically lowered the beryllium content of the scrap to be reprocessed. As earlier noted, the original 1943 lease under which the plant was operated contained a clause giving either party the right to terminate upon 10 days’ written notice to the other.

74. By letters of April 25 and May 14, 1945, plaintiff requested permission of the Defense Plant Corporation to use 3,500 square feet of space in Plancor 1911 and a Detroit Electric Furnace contained therein for the production of items other than the beryllium products to which plaintiff was limited under the original lease. Defense Plant Corporation responded with the following letter of May 26,1945:

Deference is made to your letters of April 25 and May 14, 1945, requesting the consent of this Corporation to the use of a Detroit Electric Furnace and approximately 3500 square feet of space in the building acquired under the Agreement of Lease 'between your Company and this Corporation dated October 4, 1943, for the production of a commodity other than that contemplated by said Agreement of Lease, as amended.
Pursuant to paragraph TWENTY-TWO of the aforesaid Agreement of Lease, this Corporation hereby consents to the use of said Detroit Electric Furnace and approximately 3500 square feet of space in said building for the production of fused beryllium oxide for refractory purposes for sale to the Government or suppliers of the Government, as well as to others for commercial use, subject to the following conditions:
1. Except as herein otherwise specifically provided, the use of said furnace and space shall be subject to all of the terms and conditions of the aforesaid Agreement of Lease and, with respect to said furnace and space, your Company shall continue to have all obligations and responsibility provided for in said Agreement of Lease.
2. As rental for such use of said building space, your Company shall pay, quarter-annually, to this Corporation an amount equal to 1(4 percent of the total cost to this Corporation of said space. As rental for the use of said furnace for the production of fused beryllium oxide for the Government or suppliers of the Government, your Company shall pay, quarter-annually, to this Corporation an amount equal to 3 percent of the total cost of said furnace, multiplied by the percentage that sales of such oxide to the Government or suppliers of the Government bears to your total sales thereof during each quarter-year. As rental for the use of said furnace for the production of such oxide for sale to parties other than the Government or suppliers of the Government, your Company shall pay to this Corporation, quarter-annually, an amount equal to 4y2 percent of the total cost of said furnace, multiplied by the percentage that your sales of such oxide to parties other than the Government or suppliers of the Government bears to your total sales thereof. The above rental, with respect only to said furnace and building space, shall be in lieu of the rental payable under paragraph THIRTEEN of said Agreement of Lease. Each rental payment shall be accompanied by a statement, indicating the volume of your sales to parties other than the Government or suppliers of the Government, as compared with sales of such oxide for military use.
3. The use of said furnace and space for the above purposes shall not, in any way, interfere with the production of beryllium copper ingots, as contemplated by said Agreement of Lease.
4. The consent hereby given may be terminated by this Corporation, at any tune, upon thirty (30) days’notice to your Company.
The use of said furnace and building space for the above purposes, pursuant to the consent hereby given, shall constitute an acceptance by your Company of the conditions herein set forth and an agreement to comply therewith.
It is requested that you furnish this Corporation with the DPC inventory number of said furnace as soon as practicable.

75. By a letter dated October 25,1945, plaintiff gave notice of termination of the original lease on Plancor 1911. RFC replied by the following letter, dated January 16, 1946:

Reference is made to your letter of October 25, 1945, giving notice of termination under Paragraph TWELVE of Agreement of Lease entered into between Defense Plant Corporation and Clifton Products, Inc., dated as of October 4,1943, as amended.
Paragraph TWELVE of said Agreement of Lease, as amended, provides that said lease shall terminate ten days after receipt of the notice, which notice was received on October 29, 1945.
You are advised that the War Production Board has consented to such termination, and this Corporation, as successor to Defense Plant Corporation, has interposed no objection thereto. Therefore, said Agreement of Lease, as amended, automatically terminated at the close of business on November 8, 1945, subject to all of its terms and conditions, and to the provisions of Exhibit “A” enclosed herewith and made a part hereof.
It is our understanding that you have waived all of the option and purchase rights granted to you by Paragraph FIFTEEN of said Agreement of Lease, as amended.

76. The Exhibit “A” referred to in the preceding finding and transmitted to plaintiff as an enclosure with the letter set forth therein, provided as follows:

EXHIBIT “A”
1. Insurance coverages as provided by said Agreement of Lease (as amended) need not be continued subsequent to the effective date of termination, and prorated cancellation of all insurance coverage provided by you may be arranged accordingly. Reconstruction Finance Corporation, as successor to Defense Plant Corporation, does not contemplate continuation of such coverages at its expense, but it has no objection to the continuance of such insurance at your expense if you care to do so in order to cover any responsibilities that you have with respect to said property.
Plowever, if use of the facilities is continued for other purposes, with the approval of this Corporation, insurance presently in force must not be canceled. If insurance is continued as herein provided, you should make specific arrangements with underwriters, since it has been agreed that, otherwise, underwriters’ liability shall cease concurrently with the lease termination, and the Insurance Section of the Reconstruction Finance Corporation should be advised of the action taken.
In the event of cancellation, we desire to retain all canceled or revised insurance policies, and it is requested that cancellation be effected by execution of a canceled policy certificate or similar instrument which will be provided by underwriters. You are specifically authorized to execute such forms as our Agent, and are requested to send a signed copy of each release to the Insurance Section, Reconstruction Finance Corporation, Washington 25, D.C.'
2. The termination of the Agreement of Lease (as amended) is without prejudice to any right or claim that may be now or hereafter asserted by Reconstruction Finance Corporation as successor to Defense Plant Corporation against Lessee arising out of said Agreement of Lease (as amended), or arising out of the right, title or interest of Reconstruction Finance Corporation as successor to Defense .Plant Corporation, in and to the facilities included under said Agreement of Lease (as amended), or in or to any property or interest therein acquired, or agreed to be acquired but not as yet acquired, with funds of Defense Plant Corporation or Reconstruction Finance Corporation, in connection with said Agreement of Lease (as amended), or otherwise.

77. On October 11, 1946, RFC sent plaintiff the following letter concerning the rental of a portion of Plancor 1911 and the Detroit Electric Furnace:

Under date of January 16, 1946, Mr. A. T. Hobson, Secretary of this Corporation, directed a letter to your attention terminating the agreement of lease under the captioned Plancor as at the close of business November 8,1945.
Under Paragraph 22 of the Agreement of Lease, Lessee agrees that it will not, without the prior written consent of Defense Plant Corporation, use subject site, buildings and machinery, for any purposes except for the manufacturing, production, and/or furnishing by Lessee of beryllium ingots.
Our records disclose that under dates of April 25 and May 14,1945 you directed letters to Mr. G. F. Buskie of the Washington Office requesting the consent of this Corporation to the use of a Detroit Electric Furnace and approximately 3,500 square feet of space in the building acquired under the agreement of lease between your Company and this Corporation dated October 4,1943 for the production of a commodity other than contemplated by said agreement of lease, as amended.
Under date of May 25, 1945, Mr. Buskie directed a letter to your Company consenting to the use of the Detroit Electric Furnace and approximately 3,500 square feet of space in said building for the production of fused beryllium oxide. This consent as granted did not affect the terms and conditions of the agreement of lease and was merely a modification of one of the terms thereof.
Under these circumstances, Mr. Buskie’s consent of May 26,1945 automatically terminated with the termination of the agreement of lease on November 8, 1945.
Since you have continued to use the 3,500 square feet of plant space subsequent to the effective date of termination of the agreement of lease, our Washington Office requests that we obtain from you a letter, in triplicate, requesting permission for the continued use of the space retroactive to the day following November 8, 1945, the termination date.
It is suggested that your request be prepared under the same terms and conditions as set forth in Mr. Buskie’s letter of May 25,1945.
Upon receipt of your x-equest as outlined, it will be transmitted to our Washington Office for coixsideration and instructions.

78. On October 15, 1946, plaintiff responded to the letter quoted in the preceding finding as follows:

Pursuant to your request of October 11th, we request that the rental of space in Plancor 1911 buildings be continued subsequent to November 8, 1945 indefinitely, according to the terms as set forth in a consent letter by Mr. B. F. Buskie, dated May 26,1945.

79. By a letter of November 19, 1946, RFC replied to plaintiff’s letter of October 15,1946 as follows:

A copy of your letter dated October 15,1946, to Loan Agency of Reconstruction Finance Coi’poration, 'Cleveland, Ohio, is attached to a memorandum from C. G. Pearman, Assistant Chief, Plant Servicing Division, Office of Defense Plants, to James G. Boss, Chief Counsel, Office of Defense Plants, Reconstruction Finance Corporation.
You request the rental of space under Plancor 1911 buildings subsequent to November 8, 1945, according to the terms as set forth in a consent letter by Mr. B. F. Buskie of May 26,1945.
In compliance with your request Reconstruction Finance Corporation consents to yonr nse of approximately 3,500 square feet of space in the building acquired under the Agreement of Lease between your Company and this Corporation, dated October 4, 1943, such consent to use being retroactive to November 8, 1945, the date of the termination of said Agreement of Lease, on the following conditions:
1. As rental for the use of said building space your Company shall pay monthly rental at the rate of %2 of one per cent of this Corporation’s expenditures in connection with the acquisition of said building space, this rental to be paid within ten (10) days after the end of any month in which such space is used by your Company.
2. This consent may be terminated 'by this Corporation or your Company upon ten (10) days notice and will automatically terminate and be cancelled upon the consummation of any purchase or lease of said facilities from War Assets Administration.
3. You will continue to have all of the obligations of said Agreement of Lease with respect to the care, maintenance, insurance and taxes on said space and will deliver said facilities to Reconstruction Finance Corporation or War Assets Administration upon the termination of this consent in the same condition as when acquired, making due allowance for ordinary wear and tear.
4. Your use of said facilities pursuant to this consent shall constitute the acceptance by your Company of the conditions herein set forth and agreement to comply therewith.

80. On April 12, 1948, RFC wrote plaintiff as follows:

The Interim Consent of November 19,1946, signed by Mr. A. T. Hobson, provided only for the continued use of the approximately 3500 square feet of storage space in the captioned Plancor and made no mention of the Detroit Electric Furnace, which was referred to in Mr. Buskie’s consent letter of May 26, 1945. The reason for this being that Mr. Windecker’s letter of October 15, 1946, made no specific mention of the furnace.
However, you have continued to use the furnace and have paid rent quarterly to this Agency for such use in accordance with the rental terms set up in the Buskie letter above mentioned. It is noted that the rental paid falls far short of the usual one percent a month received for facilities of this kind. The furnace cost $18,834.91, which would indicate a monthly rental of $188.35.
When Examiner J. B. Colvard visited your plant on April 8, 1948, he found that you are using only some of the accessory parts of this furnace; namely, the transformer, the electric cables from it to the electrode holders and the electrode holders. These are being used in the operation of a stationary type of furnace constructed by yourselves as 'being better suited to the requirements of your operations than the complete rotating furnace described in the Buskie letter.
Under the circumstances it is possible the one percent per month on the total cost of the furnace may be excessive. Therefore, it is requested that you furnish a clarifying statement as to the intent of Mr. Windecker’s letter of October 15, 1946, with a proposal giving your idea of adequate rental for said furnace based on actual use.

81. By a letter dated December 14, 1948, plaintiff advised RFC as follows concerning the computation of rent payable on Plancor 1911 and the Electric Furnace:

Confirming our recent conversation with your Mr. Widener in connection with our letter of October 22nd, concerning use and rental of electric furnace equipment located in the above noted plancor, we offer the following as further clarification of the letter referred to above.
In Mr. Ronan’s letter of July 17th the caption Plancor 1716 was used. It is our belief that this caption should have also included Plancor 1911 as it not only covers the arrangement of rentals to be paid on beryllium oxide produced in Plancor 1716, which in turn was transferred to Plancor 1911 for the production of fused beryllium oxide. We refer to the first paragraph of the letter of July 17th where reference is made to a conference between our Mr. Windecker and representatives of R.F.C. in Washington concerning our use of the Detroit electric furnace. It is stipulated that R.F.C. consented to the use by our company of the furnace and approximately 3500 square feet of space acquired under Plancor 1911 for the production of fused beryllium oxide. It is further stipulated in that paragraph that the payment of rental was calculated to return annually to the corporation an amount equal to 18% of the total profit of said furnace to the extent it is used for such production.
We would clarify this latter statement, namely to the extent it is used for such production, by stating that it was agreed between Mr. Windecker and representatives of your corporation at the time of his conference in Washington that rental was to be paid only for the days that the furnace was used in this production. It further states in that first paragraph, and we quote, “the payment of rental respectively calculated to return annually to this corporation amounts equal to 5% and 12% of the costs thereof.” In explanation of this quotation we would state that the 5% refers to the use of space for all purposes and the 12% refers to the use of said furnace for production for the Government or suppliers of the Government.
When we have computed our rental based upon number of days used, we have calculated same on the number of pounds or percentage of total production sold to the Government or suppliers of the Government,_ and sales made to others than the Government or suppliers of the Government using one-fourth of the two percentages stipulated in that paragraph, namely one-fourth of 12% or one-fourth of 18%.
We trust that the foregoing statement on our part will be sufficient to further clarify this matter to the satisfaction of all concerned.

82. Through July 1950, plaintiff paid a total of $6,230.90 as rent on the leased footage of Plancor 1911 and the Detroit Electric Furnace. Plaintiff made no further rent payments on these facilities thereafter, ‘although it continued to occupy 3.500 'square feet of the plant and intermittently used parts of the furnace.

83. Although plaintiff proposed a new rental arrangement to GSA in September 1950, there is no evidence that the proposal was ever accepted. Moreover, the evidence does not show that the 1945 rental arrangement with NFC was ever formally terminated.

84. By a letter of March 26, 1954 to GSA, set forth in full at finding 44, supra, plaintiff acknowledged that from May 1951 through all of 1952, it had used an additional 2.500 square feet of plant floor space. Further, plaintiff acknowledged that as of March 31, 1954, it owed a total of $8,108.85 in unpaid rent on the leased floor space and the furnace.

85. Applying the rental rate specified in the parties’ May 1945 agreement to plaintiff’s use of Plancor 1911 floor space and the Detroit Electric Furnace for the period May 26, 1945 to May 15, 1956, results in a total floor space rental liability of $11,996.95 and a furnace rental liability of $1,-638.19. T!he evidence supports these liability figures.

Summary of Defendant's Claims for Unpaid Rent

86.Plaintiff’s unpaid rent obligations on Plancor 1716, Plancor 1911, and the Detroit Electric Furnace total $16,-726.67. This figure is derived in the following manner:

Rental due for Plancor 1718- $55,169.77
Rental due for Plancor 1911- 11, 996. 95
Rental due for Detroit Electric Furnace— 1, 638.19
Total liability- $68,804. 91
Less payments made by plaintiff:
Plancor 1716 rent_ 45, 847. 34
Plancor 1911 and Detroit Electric Furnace rent- 6,230. 90
Total payments_ 52,078.24
Balance due- 16,726.67

Plaintiff's Claim for Reimbursement of Protection and Maintenance Expenses and Insurance Expense on the Plancors

87. Under the express terms of the original leases on both of the Plancors, plaintiff assumed the responsibility and expense of maintaining and insuring the leased premises.

88. The revised Lease of Agreement of November 1945, under which plaintiff rented Plancor 1716 throughout the period in suit, specifically continued in force those portions of the original lease under which plaintiff assumed the obligation and expense of protection and maintenance and insurance coverage.

89. As noted in finding 75, supra, the original lease on Plancor 1911, under which plaintiff had the same maintenance and insurance obligations as it had with respect to Plancor 1716, was formally terminated as of November 8, 1945. Moreover, unlike the revised lease concluded in November 1945 as to Plancor 1716, neither the initial interim lease of May 1945 (finding 74) nor the November 1946 reaffirmation of that lease (findings 78 and 79), both pertaining to 3,500 square feet of floor space in Plancor 1911 and its Detroit Electric Furnace, imposed any obligation on plaintiff, either by reference to the original lease or otherwise, with respect to the maintenance or insurance protection of the unleased portions of the Plancor’s building and equipment.

90. On March 15, 1946, EFC wrote to plaintiff, soliciting a proposal from it for the cost of placing Plancor 1911 and the equipment located in it in a standby condition. On April 18, 1946, plaintiff and the EFC executed an agreement covering this work at an estimated cost to the EFC of approximately $2,500.

91. By a letter of May 2, 1946, EFC accepted plaintiff’s proposal to provide protection and maintenance services for Plancor 1911, plaintiff to be reimbursed monthly for its actual out-of-pocket expenses of providing the services. From April 19, 1946 through October 30, 1948, plaintiff was paid $7,269.09 under this arrangement with EFC. At no point in the negotiations preliminary to the May 2, 1946 letter agreement covering the performance of protection and maintenance services for the account of EFC did the parties ever refer to insurance coverage to be maintained by plaintiff as a part of the services to be rendered by it under the agreement. Plaintiff never asked EFC for reimbursement of any premium expense and insurance was not included among the services specifically enumerated by the letter agreement to define plaintiff’s obligations thereunder.

92. On October 30, 1947, EFC wrote plaintiff as follows:

Ee: Plancor 1911
Clifton Products, Inc.
Painesville, Ohio
P & M
We acknowledge your letter of October 27,1947 with invoices for protection and maintenance of the captioned plancor from July 15 through September 30, 1947 attached.
We wish to advise that even though WAA is responsible for protection and maintenance of the captioned plancor subsequent to 12:01 A. M., July 16, 1947, they have not assumed custody and accountability as of this date. They have, however, agreed to issue to this Agency an authorization covering the payment for protection and maintenance services. The invoices referred to above will be processed immediately upon receipt of tlie WAA authorization.
We also have at hand your invoice to WAA for P & M service for the period July 15 to July 31 addressed to WAA and also your letter to WAA dated October 27, 1947 requesting action on this invoice. We are marking this invoice void, inasmuch as it is a duplication of the invoice submitted to this Agency for payment and attached to your letter of October 27.
We hope to make arrangements with WAA in the near future whereby they will assume custody and accountability of the entire plancor and will handle their own protection and maintenance, [Emphasis added.]

93. On September 10,1948, for each of the Plancors, plaintiff signed a certificate that accompanied schedules listing buildings and equipment on hand at that date. As to Plancor 1911, the certificate that plaintiff signed read as follows:

The undersigned hereby certifies that the enclosed APEs covering the Eeal Property (Schedule 1 B, Page 1; Schedule II A and 2 B, Pages 2, 3 and 4; Schedule 20, page 5; Schedule 2 C-l, Page 6; Schedule 2D, Page 7), and related forms SPB-ls numbered 1911-A-l through 1911-A-9 inclusive, and supporting APEs attached thereto accurately reflect property for which the undersigned is accountable under the Lease Agreement and Amendments thereto with Eeconstruction Finance Corporation, dated October 4, 1943 as assigned to War Assets Administration.

94. As noted in finding 75, supra, the lease referred to in the certificate quoted in the preceding finding had been formally and finally terminated on November 8, 1945.

95. By a letter of October 28,1948, EFC advised plaintiff that protection and maintenance services on the Government Plancors were to be discontinued effective midnight October 31,1948.

96. On November 2, 1948, plaintiff wrote the War Assets Administration as follows:

We have been informed by Mr. E. E. Duncan of the Eeconstruction Finance Corporation, Cleveland Office that our agreement with them for plant protection and maintenance on Plancors 1716 and 1911 would be discontinued as of October 31,1948, midnight. Mr. Duncan informs us that your administration is accepting accountability and responsibility for these properties as of 12:01 A.M. November 1,1948.
We would therefore request that you advise us as to what procedure we should follow in submitting monthly charges for plant protection and maintenance of the plancors referred to. Your early attendance to this matter will be appreciated.

97. WAA replied by the following letter of November 5, 1948:

Replying to your letter dated November 2, 1948, regarding the information given to you by Mr. Duncan of RFC, please be advised that same is correct, and that this Administration has accepted custody of these plancors from RFC as of November 1,1948.
In regard to your second paragraph, requesting advice as to procedure to be followed in submitting monthly charges for plant protection and maintenance, we refer you to the Exhibits signed by you under date of September 10, 1948, under which you assumed full accountability for the real and personal property set forth therein on each of the subject plancors. Inasmuch as you have accepted the full accountability for these facilities the matter of protection and maintenance is one for your own attention. Your assumption of accountability entails all necessary protection and maintenance operations, in order to permit you to render an accounting of the real and personal property at such time as you are relieved of accountability. [Emphasis added.]

98. On November 11,1948, plaintiff wrote WAA as follows:

We have received your letter of November 5th concerning plant protection charges on Plancors 1716 and 1911. We would submit further detailed information as follows.
In our arrangements with Reconstruction Finance Corporation we had not been submitting any charges on Plancor 1716. Our agreement with them covered only Plancor 1911, and then only that portion for which we had not assumed any responsibility inasmuch as our interim lease agreement covers only two specific items, namely, 3,500 square feet of floor space, and the use of one piece of apparatus, to wit, a Detroit Electric Furnace. In our arrangement with Reconstruction Finance Corporation it was agreed that we would offer plant protection and maintenance on the remaining property of the plancor not covered by our lease agreement.
We feel that the only reason for our signing the accountability certificates was based upon the desire of the Atomic Energy Commission that visual inventory be waived by War Assets Administration. Thus, we do not believe that accountability and protection were assumed by us in signing these certificates, therefore, we wish to continue the arrangements as with Keconstruction Finance Corporation prior to the transfer of this property to War Assets Administration.

99. On December 20, 1948, plaintiff sent WAA a bill for $324.10 for protection and maintenance on Plancor 1911. By a letter of December 23, 1948, WAA returned the bill to plaintiff and denied liability for the charges, referring to the WAA letter of November 5, 1948, and the accountability certificates signed September 10, 1948, previously described.

100. On December 29, 1948, a WAA engineer made a fire protection and maintenance survey of Plancor 1911 for his agency. In his January 10, 1949 report of that inspection, the engineer noted that he had been accompanied on his physical survey of the plant by plaintiff’s vice president, E. T. McGowan. The report does not indicate that any of the statements contained in it were based on statements made or information supplied by McGowan. The report includes the following two passages concerning protection and maintenance:

The original conditions of this lease were as follows:
Lease (dated October 4, 1943) of portions of site, ■buildings and machinery, expired September 30, 1948. At present the plancor is under interim permit and negotiations are in process with Washington for a new contract of either sale, lease or grant. Maintenance and protection assured under a signed exhibit on file in this office.
* * * ‡
Services and utilities are described in Exhibit C, which was signed by the Clifton Products, Inc., under date of September 10, 1948, obligating the present occupant for all P & M expenses involved.
‡ ‡ ‡

So far as the record discloses, the engineer’s stated impressions respecting protection and maintenance obligations were altogether his own. The exhibit referred to in the above quotations from the report is the certification described in finding 93, supra.

101. On January 10, 1949, another WAA engineer, B. B. Pope, made a condition survey of Plancor 1911. His report, of the same date, concludes with the signature of plaintiff’s president under the caption “EEPOET CONCUEEED IN BY LESSEE.” The names of plaintiff’s president and vice president were listed under the form heading “THE FOLLOWING EEPEESENTATIYES OF THE LESSEE OE PUECHASEE WEEE INTEEVIEWED OE PAE-TICIPATED IN THE SURVEY.” No evidence was adduced showing either the extent or nature of the participation indicated by the preceding notation. Page 2 of the completed 11-page form sheet report appears as follows:

SECTION 3 — TEEMS OF THE LEASE OE TEEM SALE.
A. DATE OF LEASE 11-19-46 (letter), EXPIEATION on 10 days notice Eff. 11-8-45
CANCELLATION CLAUSE
By either party on 10 days notice or any purchase or lease of said facilities from WAA by Lessee or others.
EENEWAL No termination except as provided above.
B. DATE OF PUECHASE -
FINAL PAYMENT DUE -
C. POETION SOL© OB LEASED Use of space in building and one furnace when required.
BEAL PEOPEETY 3500 sq. ft., PEESONAL PEOPEETY see below Lessee has letter permission from EFC Cleveland to rent Detroit Electric Furnace on daily basis. Eent $188.35/mo. on Govt, production and $288.53 when operating for others.
SALE TEEMS
Quarter year for space only.
D. EENTAL $249.37 PEE (MO.) (YBr). IF EENTAL IS BASED ON PEECENTAGE OF SALES SHOW PEECENT BATE - % PEE -
E. PEODUCTS MANUFACTUEED — None; used for A.E.C. Eesearch only. (Beryllium products-originally)
F. LEASE TERMS FOR P&M Lessee was reimbursed for P&M service prior to acceptance of custody by W.A.A. on 11-1-48. Reimbursement was by R.F.C. with WAA funds.
OBLIGATION OF TENANT Lessee signed Exhibit O assuming accountability for real & personal property, on 9-10-48.
OBLIGATION OF WAA None specified

102. Following WAA’s rejection of its December 20, 1948 protection and maintenance billing (finding 99, supra), plaintiff submitted no further bills to the Government for these items until February 7, 1956, at which time it sent GSA a bill for the total amount of $232,368.03, consisting of $209,565.04 for protection and maintenance on Plancors 1716 and 1911 from November 1948 through June 30, 1955, and $22,802.99 for insurance coverage on the same plants from October 1943 to June 30, 1955. Defendant has never made any payment pursuant to this billing. At all times after November 5, 1948, the Government was aware that plaintiff was providing protection and maintenance services for the unleased portion of Plancor 1911. At no time during the same period did the Government advise plaintiff that it was at liberty to discontinue such services.

103. In undertaking to evaluate plaintiff’s claim for reimbursement of costs incurred by it for providing protection and maintenance services for the two Plancors, the defendant examined the books and records that plaintiff maintained in the regular course of business. That examination disclosed that during the period July 31, 1951 to May 15, 1956, plaintiff made the following expenditures for each of the purposes indicated: $40,970.49 — firemen’s salaries; $28,-793.36 — indirect labor; $58,764.95 — 'heat, light, and power; $18,149.15 — repairs 'and replacements on buildings; $19,-564.51 — repairs and replacements to auxiliary equipment; $39,954.75 — watchmen’s salaries; $1,181.19 — road maintenance; $1,153.59 — yard maintenance. Defendant regarded these expenditures, totaling $208,531.99, as pertaining to protection and maintenance for purposes of its audit examination.

Neither plaintiff’s books and records nor any other evidence adduced at trial indicated directly the facility to which all or any particular part of the enumerated expenditures related. The evidence does show, however, that during the period covered by these expenditures the use and occupancy status of Plancor 1911 was significantly different from that of both 1116 and plaintiff’s own facility. As elsewhere noted, in April 1946, plaintiff placed Plancor 1911 and its equipment in a standby or moth-balled condition at the direction and for the account of NFC. Except for one piece of equipment, the Detroit Electric Furnace, and a small portion of its floor space, 3,500 square feet most of the time, the facility remained in an unused standby status at all times thereafter. Except for the performance of some AEC research and development contracts, the last of which was completed in 1953, plaintiff used the minimal space that it rented primarily for storage. Because of these circumstances, a proper allocation to Plancor 1911 of its just share of the total outlays verified by defendant requires that certain caJtegories of those expenditures be eliminated as, in the main at least, inapplicable to Plancor 1911. Elimination, for these reasons, of the items of $58,764.95 for heat, light, and power and $19,564.51 for repairs and replacements -on auxiliary equipment, both of which types of expenses are ordinarily and logically generated by operational activities, leaves a total expenditure of $130,202.53 to be apportioned 'among the three facilities, the two Planeors and plaintiff’s own plant.

The three facilities contained a total of 45,218 square feet of floor space consisting of 21,130 square feet for Plancor 1911, 7,607 square feet for Plancor 1716, and 16,481 square feet for plaintiff’s own plant, to which Plancor 1716 was physically attached. Accordingly, Plancor 1911 represented 46.7% of total plant floor space. On the basis of proportionate square footage, $57,804.58, or 46.7% of $130,202.53, is protection and maintenance expense allocable to Plancor 1911 for the entire period involved. A further refinement is necessary to reflect plaintiff’s tenancy of a portion of 1911 throughout the period. Pursuant to the original agreement of May 26, 1945, as later reaffirmed on November 19, 1946, plaintiff leased 3,500 square feet of Plancor 1911. Moreover, from May 1951 through December 1952, plaintiff rented an additional 2,500 square feet of the Plancor. Again applying a proportionate square footage basis of expense allocation requires that for the period July 31, 1951 to January 1, 1953, 28.4% of Plancor 1911’s total share of protection and maintenance expenses should be borne by plaintiff as lessee of that percentage of the Plancor’s total space. From January 1, 1953 to May 15, 1956, when plaintiff leased only 3,500 square feet of floor space, the percentage of total expense to be borne by it is 16.6. Considering only the types of expenses logically related to the protection and maintenance of Plancor 1911 as a largely idle facility and attributing to it an aliquot share of such expenses in proportion to its share of the total area protected and maintained result in the following amounts, representing plaintiff’s expenditures for the protection and maintenance of the unleased portion of Plan-cor 1911 during the period July 31,1951 to May 15,1956:

Plancor 1911
7/31/51 to 12/31/51-$3, 749. 01
1952 _ 8,277.62
1953 - 9,641.81
1954 - 9,641.81
1955 - 9,641.81
1/1/56 to 5/15/56_ 3, 615. 68
Total 7/31/51 to 5/15/56_ 44, 567. 74

104. During the period July 31, 1951 to May 15, 1956, plaintiff spent a total of $1,912.72 on premiums for property insurance on Plancor 1911. Allocating this expense on the same leased and unleased square-footage basis employed with respect to the apportionment of protection and maintenance expense detailed in the preceding finding, the total amount of property insurance expense allocable to the unleased portion of Plancor 1911 is $1,478.19.

CONCLUSION or Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover the sum of $44,567.44. It is further concluded that defendant is entitled to recover on its counterclaim the sum of $16,726.67, which is to be offset against plaintiff’s recovery. Therefore, it is adjudged and ordered that judgment be entered for the plaintiff in the net amount of $27,840.77. 
      
      
         This amendment to the Act also provided for reports of negotiated sales to Congress, the following language being added to the statute: "Provided, That an explanatory statement shall be prepared and submitted to the appropriate committees of Congress and a copy preserved in the file of all cases where negotiated disposal occurs.”
     