
    HOUDAILLE INDUSTRIES, INC. (FORMERLY KNOWN AS HOUDAILLE-HERSHEY CORPORATION) v. THE UNITED STATES
    [No. 155-53.
    Decided May 8, 1957.
    Defendant’s motion for rehearing overruled October 9, 1957]
    
      
      Mr. Leon D. Batelife for the plaintiff. Mr. Charles Wright, Jr. and Messrs. Beaumont, Smith <& Harris were on the briefs.
    
      Mr. Philip W. Lowry, with whom was Mr. Assistant Attorney General George Goohran Doub, for the defendant.
   Laramore, Judge,

delivered the opinion of the conrt:

This is a suit to recover $420,212.46 claimed to have been expended by plaintiff on account of its contract No. W-7405eng-149 (hereinafter referred to as contract 149) with the Manhattan District of the War Department.

The claim is based upon excess unemployment compensation taxes which plaintiff was required during the years 1947 through 1950 to pay to the State of Illinois by reason of its operation under the oontract of a Government-owned plant at Decatur, Illinois, on a cost-plus-fixed-fee basis. The plaintiff would not have been required to pay these excess taxes were it not for the adverse effects of its employment and unemployment experience under the above contract upon its rates of contribution in the form of taxes for those years. Plaintiff’s rates of contribution were adversely affected during those years because of the substantial employment at the Government-owned plant and the terminations of employment in large numbers beginning in February 1945, and steadily increasing to and beyond the termination of production operations on November 21, 1945. These layoffs ultimately resulted in the filing and payment of claims for benefits to unemployed claimants in substantial numbers pursuant to the provisions of Illinois law. The amount of the claim represents the difference between the sum of the unemployment compensation taxes actually paid by the contractor for the years in question, and the sum of the taxes it would have been required to pay had its operations been confined to its three nongovernmental plants. Plaintiff contends that it would not have had to pay these additional taxes except for the adverse effect of its operations under the Government contract upon its postwar corporate rate of contribution, and that such costs are reimbursable. Suit is brought under the Contract Settlement Act of 1944, 41 U. S. C. 101 et seq.; 58 Stat. 649, on the ground that the contract was terminated on November 21, 1945, within the purview of the terms of that act; and, alternatively, suit is brought on the theory of contract, plaintiff alleging that the amount claimed is reimbursable under the provisions of the contract relying specifically on subsections g, i, m, t, and w of article IX thereof. If the plaintiff is sustained on the former theory it will recover in addition to the amount claimed, interest at the rate of 2% percent per annum, 41 U. S. C. 106 (f), otherwise the recovery will be only for the sum claimed. A third alternative theory, that of accord, is also pursued but is not necessary to the decision of the case.

Defendant disputes plaintiff’s right to recover on any theory and asserts that even if there is otherwise a valid claim, that plaintiff relinquished the right to it on January 25,1950, by virtue of a release executed by it and transmitted to the Government’s representative, a Mr. Hungerford.

Thus, the issues presented to the court for determination in this action are: (1) Did the plaintiff release any valid claim it may have had against defendant by its release executed on January 25, 1950?; (2) Do plaintiff’s claimed expenditures fall within the contractual provisions relative to reimbursable expenses?; (3) Was the contract completed according to its terms, or was it terminated within the meaning of the Contract Settlement Act, supra?; (4) If it should be decided that plaintiff has a valid recoverable claim and that the contract was terminated within the purview of the Contract Settlement Act, supra, from what date or dates is plaintiff entitled to interest ?

In order to resolve these issues it is necessary to review the facts which may be stated as follows:

Plaintiff, a Michigan corporation, prior and subsequent to its performance under contract 149 with defendant, operated three manufacturing plants in the State of Illinois which will hereinafter be referred to as its peacetime plants. A fourth manufacturing plant in that state was set up at Government expense by plaintiff on plaintiff’s land at Decatur, Illinois, pursuant to the terms of the contract and was known as the Garfield Division of Houdaille-Hershey Corporation even though the Government retained title to the buildings. This plant was engaged only in the work called for by contract 149 and certain operations under a related contract, W-7405-eng-55 (hereinafter referred to as contract 55), which is in no way the subject of the claims here in suit.

Contract 149 was of the cost-plus-fixed-fee type. Title I thereof called for plaintiff to design and have a building built at Decatur, Illinois, and procure and install the necessary manufacturing equipment for the production of highly secret materials for the Government. Title II called for the production of a specified number of units of certain classified materials. The cost under both titles was estimated therein. The fixed fee provided for was $200,000 under title I and $650,000 under title II. Production was to start as of February 1, 1944, with completion scheduled for 11 months. Provisions, however, were made for extensions as well as additional fees if more time was needed to complete the contract.

A standard termination provision was contained in article IY giving the Government the right to unilaterally terminate the contract at any time and providing for the payment of expenses under article IX, as well as for payment of the full fee called for by the contract in the event of termination.

Article IX provided for reimbursement of the plaintiff’s expenditures as follows:

1. Reimbursement of Contractors Expenditures. The Contractor shall be reimbursed in the manner hereinafter described for such of its actual costs and expenses in the performance of the work under this contract, as may be approved or ratified by the Contracting Officer. “Actual costs and Expenses” as used in this Article shall include the following only.

Following were some 23 sections spelling out those expenditures specifically reimbursable. Among those were the following within all of which plaintiff claims its expenditures here in suit fall:

g The cost of losses or expenses not compensated by insurance or otherwise (including settlement made with the written consent of the Contracting Officer) actually sustained by the Contractor in connection with the work and found and certified by the Contracting Officer to be just and reasonable unless reimbursement therefor is expressly prohibited; provided that such reimbursement pbn.11 not include any amount for which the Contractor would have been indemnified or compensated by insurance except for the failure of the Contractor to procure' or maintain bonds or insurance in accordance with the requirements of the Contracting Officer.
i Payments from its own funds made by the Contrac-tractor under the Social Security Act and any disbursements required by State and Federal law, including sales and any use taxes, which the Contractor may be required, on account of this contract, to pay on or for any plant, equipment, processes, organization, and materials, supplies or personnel; and, if approved in writing by the Contracting Officer in advance, permit and license fees and royalties on patents used, including those owned by the Contractor.
m Expenditures of the Contractor in connection with the termination of this contract, pursuant to Article IY. t Such other items not expressly excluded by other provisions of this contract as are, in the opinion of the Contracting Officer, to be included in the cost of the work. When such an item is allowed by the Contracting Officer, it shall be specifically certified as being allowed under this subsection.
w. Expenditures of the Contractor in connection with allowances and benefits relative to employment, including those relating to overtime, hospitalization, sickness, leaves, vacations, holidays and the like. * * *

Article IX 2. a and b provided for the manner of payment of the costs and fees of the contractor.

Other articles provided for disputes, accountability of property and the like.

Article XXXIY entitled “Changes” provided in part as follows:

ARTICLE XXXIV. CHANGES
The Contracting Officer may at any time, by written order issue additional instructions, require additional work or services or direct the omission of work or services covered by this contract. If such changes cause a material increase or decrease in the amount or character of the work and services to be done under this contract an equitable adjustment of the amount of the fixed fee to be paid the Contractor shall be made and the contract shall be modified in writing accordingly. * * *

These and other applicable sections of the contract are more fully set out in finding 8.

On the basis of article XXXIY above, six separate amendments were made to contract 149. The essence of the first four of these was to extend the time for performance of the contract and adjust the costs and fees payable. After modification number four, the date of completion called for was February 28, 1946, and the number of units called for was 8,796,000. The amounts of estimated costs and the fixed fees had also been increased considerably over the initially specified amounts.

It was under the contract in this status that plaintiff was operating when on November 21, 1945, the following telegraphic communication from a contracting officer of the Manhattan project in New York City was received at plaintiff’s home office in Detroit, Michigan:

Under provisions of Contract W-7405-eng-149 it is desired that you terminate production operations at the Garfield plant and place equipment in permanent standby condition. You will take all necessary steps to protect Government property and will be reimbursed for this cost in accordance with provisions of the contract.

Subsequent to November 21, 1945, and on December 29, 1945, Supplemental Agreement No. 5 was entered into and signed by both plaintiff and defendant. That supplement provided for adjustments in the costs and fixed fee provisions of the contract as they then stood. It further provided in pertinent part as follows:

WheReas, It is found advantageous and in the best interests of the United States to further modify the said contract for the following reasons:
(a) To terminate production activities under the contract as of 21 November 1945.
(b) To allow for the Contractor to place the plant in a stand-by condition and protect the Government-owned equipment and property against the elements so that the plant can be easily maintained for a two year period of time. * * *

Prior to this supplement there was no provision in contract 149 or the first four supplements thereto requiring plaintiff to place the plant and equipment in a standby condition.

Supplement 6 executed on February 6, 1946, provided for the contract period to be extended to May 31, 1946, to provide for the completion of certain listed operations which were incident to the termination of the contract.

Because of the urgency of the need for the materials called for by contract 149, after its execution plaintiff was required to rapidly expand its working force at the Garfield plant with a peak employment of 4,634 being reached during the week of February 3, 1945. In order to do this, employees were recruited from various parts of the country with their transportation to the place of employment paid. Special arrangements were made to house them and trailer parks as well as other means of temporary housing were utilized. Women in large numbers and off-season agricultural workers were also employed. All in all, over 7,400 employees were used to expedite production during the performance of contract 149. Because of a decreasing demand with the end of the war in sight, the number of employees steadily decreased from the time of peak employment until production was ordered terminated on November 21, 1945, and on that date there were only between 500 and 600 employees.

Prior, however, to the order to cease production, the employees at the Garfield plant on November 14, 1945, went on a “wildcat” strike because of dissatisfaction with the reduction of the workweek to 40 hours and the curtailment of all overtime. The result was a much smaller take-home pay than the employees had been used to during the wartime days of much overtime.

Union officials were advised on November 21, 1945, of the receipt of the above-quoted cease production communication but refused plaintiff’s request to put into the plant a limited number of employees for the purpose of finishing the work in process and placing the plant in a standby condition until their original strike demands were met. After further negotiation, the results of which officials of the Manhattan District were apprised, the following telegram was received from a contracting officer at Oak Ridge, Tennessee, after which the union agreed to allow its members to enter the plant if the plaintiff agreed to comply with the authorization contained therein:

Authorization is granted the Houdaille-Hershey Cor-portation to work all employees six 8 hour days or 48 hours per week. Whose services are required to put the Garfield plant in a standby condition, [sic] Time and one-half payments will be made to personnel normally receiving overtime for work performed on the sixth day of the work week as being in excess of 40 hours and not as such. Employees who have not worked at least 40 hours during the first 5 days of the work week should not be permitted to work on the sixth day. No authorization is available for seventh day work or Sunday work at double time. Should this proposal be acceptable to the contractor and the union the contractor will proceed as rapidly as possible to terminate all employees whose services are not longer needed as this authorization is granted for a limited period only.

Plaintiff agreed to comply with the authorization and, thereafter, on November 26,1945, the picket lines were withdrawn and the strike was considered settled. Many of those who went on strike on November 14, 1945, however, did not return to work and were terminated because, in light of the Government’s order, there was not enough work to warrant employment of all such employees.

Of the more than 7,400 former employees of the plaintiff at its Garfield Division under contract 149, approximately 3,500 filed claims for and were paid benefits under the Illinois Unemployment Compensation Act following the termination of their employment by plaintiff.

After hearings by the Department of Labor of Illinois on the initial claims of these former employees, it rendered a decision that those employees who went on strike were not entitled to recover for the period from November 14, 1945, through November 20, 1945, both dates inclusive, and for the week or weeks in which any part of such period occurred and imposed this disqualification under the provisions of section 7 (d) of the Illinois Unemployment Compensation Act, laws of 1937, approved June 30,1937, effective July 1, 1937, as amended July 18,1949, 1 Ill. Rev. Stat., ch. 48, §§ 217-250, which prohibits the payment of unemployment benefits if the claimant is out of work due to a stoppage of work resulting from a labor dispute at the place of employment. The payment of benefits was permitted to be paid for any period commencing after November 21, 1945. The Department of Labor of Illinois was satisfied that the strike at the company did not continue after that date because of the notification from the Government to the plaintiff to cease production. The determination of the deputy which was affirmed by the Director of Labor of the State of Illinois after a subsequent hearing before him, concluded as follows:

It is the conclusion of the Deputy that on and after November 21, 1945, the co-existence and causality between the stoppage of work and the labor dispute ceased and the unemployment of production and maintenance workers on and after that date was due to a shut-down of production operations rather than to a stoppage of work which “existed because of a labor dispute.”

At all times involved in this case and for more than three years prior to entering into contract 149, the plaintiff, as a corporate employer in the State of Illinois, was and is now subject to the provisions of the Illinois Unemployment Compensation Act, supra, and as such employer, plaintiff was and is required to make contributions to the Department of Labor, Division of Placement and Unemployment Compensation of the State of Illinois, in amounts computed upon its taxable wages in the State of Illinois. “Taxable” wages, or wages on which contributions are required to be paid, include wages of individual workers up to and including $3,000 during any calendar year but not wages in excess of $3,000 for any calendar year. Such contributions become due and are required to be paid quarterly on or before the last day of the month next following the calendar quarter for which such contributions have accrued.

Beginning with the calendar quarter ending June 30,1943, and continuing through the calendar quarter ending June 30, 1946, plaintiff made contributions under the Illinois act in amounts totaling $729,369.89, of which sum $388,748.14 was attributable to taxable wages paid employees at the Garfield Division in connection with employment under contracts 55 and 149. Plaintiff was reimbursed this sum by the Government upon submission of properly documented vouchers under the provisions of each contract. Plaintiff’s claim here does not relate to these amounts in any way.

However, during the period that followed the performance of contracts 55 and 149, the years 1947 through 1950, plaintiff was required to continue to make contributions which were based in part on its employment-unemployment experience under contract 149. The result was that during those years plaintiff paid much greater contributions than it would have had it never entered into contract 149. It is for the difference between that which would have been paid had experience under contract 149 not entered into the computations and that actually paid for which the plaintiff is here suing. That amount as proven on trial is $420,212.46.

Under the Illinois act, in the case of a corporate employer having more than one plant or operating division in the state, the rate of contribution is determined for the corporation as a unit and not for each individual plant or division. The rate of contribution is based upon statistics covering a 36-month period ending June 30 of the year preceding that for which the rate is determined and takes into consideration, among other things, the employer’s employment-unemployment experience for that period. After the rate of contribution is found, it is applied against the “taxable wages” hereinbefore referred to to get the dollar amount of the quarterly contributions. Because of this method of computation, plaintiff’s employment and unemployment experience under contract 149 operated adversely to plaintiff in that determined rate of contribution up until and including the year 1950 resulted in contributions which were higher by the claimed amount than they otherwise would have been.

The contribution rate differential of the plaintiff due to the adverse effects of plaintiff’s employment and unemployment experience under contract 149, plaintiff’s taxable wages and the amount of additional contributions which plaintiff was required to pay for the years 1947 through 1951, inclusive, because of contract 149 are as follows:

The overall result of the amounts of contributions to the State of Illinois during the years 1947 through 1950 is that the plaintiff paid $420,212.46 more in contributions because of its experience under contract 149 than it would have if its contribution rate was based only on the operations of its three normal peacetime plants which would necessarily exclude any experience plaintiff had under contract 149.

In January 1944 the plaintiff employed Frank C. Hunger-ford and placed him in charge of the contracts and claims division of its Garfield Division. He had previously been a civilian engineer with the United States Corps of Engineers when, in January 1944, he obtained a leave of absence to enter plaintiff’s employ where he remained until May 31, 1946, when contract 149, according to supplement number 6, came to an end. He then returned to civilian employment with the Corps of Engineers the following day, June 1,1946, in the capacity of resident engineer at the Garfield plant.

Contract 149 was originally executed with the Manhattan District of the then War Department and the Garfield plant was under its control and ownership. However, on December 31,1946, pursuant to section 9 of the Atomic Energy Act of 1946,42 U. S. C. § 1809, 60 Stat. 765, and Executive Order 9816, it was transferred to the Atomic Energy Commission. Thereafter, the Oak Eidge Operations Office of the Atomic Energy Commission had the authority and the responsibility for administration of contract 149 and for the payment of claims thereunder and it actually paid two claims on contract 149 thereafter.

As of the effectuation of the transfer of the property to the Atomic Energy Commission, Mr. Hungerford became a civilian employee of that Commission but remained assigned to the Garfield plant. In January 1950 while still in the employ of the Atomic Energy Commission, Hungerford came to Detroit with two release forms which he urged plaintiff to sign alleging that the forms were necessary to meet the administrative requirements of the Government and that there was no reason why plaintiff should not sign them because he (Hungerford) knew from his own experience as a former employee of the plaintiff in connection with contract 149, that there were no claims under that contract. He also stated that if there were any unknown claims, they were excepted by paragraph (b) of the release forms. The plaintiff at that time was unaware that the claims which it is now pursuing were reimbursable under the contract and contrary to advice of counsel, signed the forms, under corporate seal, on January 25, 1950. No payment or anything of value was given over by defendant at the time these forms were signed. The release follows:

RELEASE
The work under Contract No. W-7405-eng-149 dated J une 10,1943, between the United States of America and the undersigned contractor, having been completed and finally accepted, the United States of America, its officers and agents, and each of them, are hereby released from all claims and demands whatsoever arising under and by virtue of said contract, except as follows:
fa) Claims in stated or estimated amounts — NONE. (b)_ Any and all claims arising out of the performance of said contract based upon the responsibility of the undersigned Contractor to third parties, not known at the time of executing this release.
Executed this 25th day of January, 1950.

[Corporate seal]

Plaintiff first became aware of the reimbursable nature of the claim now being asserted in the spring of 1951, upon learning of the decisions of the Appeal Board, Office of Contract Settlement in the Certain-Teed Products Corporation, 4 App. Bd. OCS No. 317, p. 157; and the Hercules Powder Company, 5 App. Bd OCS No. 342, pp. 24 and 59, cases while attempting to work out provisions for another cost-plus-fixed-fee Government contract.

The plaintiff then commenced an analysis and examination of its employment records at all of its plants for the purpose of determining the extent that contract 149 adversely affected its contribution rates so as to make a claim for the recovery of the excess payments. The claim was first mailed to the Atomic Energy Commission at Oak Nidge, Tennessee, on August 4, 1952. In reply to this claim the plaintiff was advised by the manager of the Oak Nidge Operations of the Commission that to determine the outcome of the claim it was necessary to make an initial determination as to whether the claim was properly a termination claim, as presented, or whether it was recoverable under the terms of the contract notwithstanding the Contract Settlement Act. In the same communication plaintiff was advised that the claim was being referred to the Contract Board of that office to make that determination and instructed plaintiff to conduct any further negotiations on the matter with Mr. John R. Moore, Chairman, Contract Board, Oak Ridge Operation. A conference was had between plaintiff and that board, the board taking the position that plaintiff should file its claim in voucher form as a reimbursable item under the contract rather than as a termination proposal because it was felt that the contract had not been terminated. Mr. Moore told plaintiff that because of the size of the claim it would after receipt in the form above noted, be forwarded to the General Accounting Office. He also said that the Oak Ridge Operation Office would recommend to the Atomic Energy Commission, in Washington, D. C., that the claim be considered a reimbursable cost under the contract. The plaintiff thereafter submitted its claim in voucher form and omitted any reference to the termination of the contract but attached thereto a memorandum within which plaintiff reserved any rights it may have had under the Contract Settlement Act because of a terminated contract. The Commission thereafter verified the claim and forwarded it with a memorandum dated March 23, 1953, and over the signature of Mr. Vanden Bulck, Assistant Manager to the Controller of the Atomic Energy Commission, Washington, D. C. Mr. Bulck, and the aforementioned Chairman of the Contract Board, Mr. Moore, each of whom was a contracting officer at Oak Ridge and with authority to settle all claims on contracts in amounts not in excess of $500,000, cooperated in the preparation of the memorandum. That memorandum supported the validity of plaintiff’s claim wherein it stated as follows:

* * * For reasons hereinafter stated, and also set out in detail in the contractor’s memorandum in support of the Form 1034 cost voucher, it is our opinion, based on the advice of counsel, that the costs constituting the basis of this claim are reimbursable under the terms of the contract. However, due to the novelty, of the case and the large sum involved, we are suggesting that the claim be submitted to the Comptroller General for an advance determination as to the propriety of payment.

The Chairman of the Atomic Energy Commission on June 8,1953, transmitted the claim to the Comptroller General of the United States who on July 1,1953, by the Acting Comptroller General, in a letter to the Chairman of the Atomic Energy Commission denied the claim by decision No. B-115683. That decision was in turn transmitted to the plaintiff on July 24,1953, whereupon on September 22,1953, the plaintiff made demand for written findings by the Atomic Energy Commission pursuant to section 13 (a) of the Contract Settlement Act of 1944, supra. The Commission subsequently notified plaintiff that it was reiterating its position that the contract was completed rather than terminated and thus was outside the scope of that act. The Commission accordingly refused to submit findings. Section 13 (c) (2) (iii) of the Contract Settlement Act, supra, provides that in the case of failure to deliver such findings, the plaintiff has the right within one year after his demand therefor to initiate proceedings in the Court of Claims in accordance with section 13 (b) of that Act.

To prevent the running of the statute of limitations during the pendency of its claims with the Atomic Energy Commission, plaintiff’s original petition was filed in this court on April 17, 1953, on the basis of its claim under the contract. The subject matter of that original petition is now that which is contained in count II of plaintiff’s second amended petition. On December 11, 1953, within the 1-year limitation above referred to, plaintiff filed its first amendment to its petition, adding as count I a count based upon its termination claim. Pursuant to the Contract Settlement Act, supra, the plaintiff had the option of appealing the agency’s decision to either the Office of Contract Settlement Appeal Board, or the Court of Claims. While it would have been more advantageous from the plaintiff’s point of view to appeal to the Appeal Board because that board had previously decided two cases, Certain-Teed Products Corporation and Hercules Powder Company, supra, squarely on point with the instant one in the favor of the plaintiffs, the plaintiff was unable at this time to appeal to that board as it was abolished by the Act of July 14, 1952, 66 Stat. 627, effective midnight January 13, 1953.

First in the order of consideration must be whether the release executed by plaintiff on January 25, 1950, is of such a nature to bar plaintiff from recovering its claims in this case. While the litigants quite naturally take opposite views of the exception contained in clause (b) of the release here-inbefore quoted, we do not think we have to determine whether plaintiffs claim in this case is of the type intended to have been excluded by that exclusory clause. This because we feel the release in itself is not valid due to a complete lack of consideration.

Defendant argues that the release was executed by plaintiff under seal, and, therefore, no proof of consideration is necessary at common law. Nevertheless, defendant goes on to point out that there was consideration and lists three separate items, each of which it contends represents a sufficient consideration to make the release valid.

First, it points to a paper entitled “Final Acceptance” which was handed to plaintiff immediately after plaintiff executed the release. The final acceptance stated in full follows:

JTNAL ACCEPTANCE
Contract No: W-7405-eng-149
Contractor: Houdaille-Hershey Corporation.
This is to certify that all work required under Contract No. W-7405-eng-149, as amended, has been completed; that the work has been inspected by me or my duly authorized assistants and has been found to comply with the terms and conditions of the purchase instrument and the specifications governing same. Therefore, all work under the contract is accepted on behalf of the United States Government on this 11th day of January, 1950.
[Signed] R. W. Cook,
R. W. Cook,
Contracting Officer

This final acceptance is certainly not consideration for the release, as the record shows without a doubt that the acceptance was not mentioned to plaintiff prior to the time the release was executed and, contrary to the defendant’s assertion, it was not attached to the release when it was executed. Plaintiff did not even know it was going to receive it when the release was signed. We certainly cannot hold a document adequate consideration for the execution of another document when it did not enter into the negotiations and plaintiff was unaware that it would receive it. It was not bargained for by plaintiff. Moreover, the document by its own language accepted the work performed under the contract as of January 11, 1950, a full two weeks before the release was executed. The acceptance also makes no mention of the release. Had this final acceptance been what was bargained for by plaintiff or accepted as a return for signing the release, defendant’s assertion that it is adequate consideration could be sustained but that is not the case here.

Secondly, defendant asserts that a recital in the release itself that the contract was “completed and finally accepted” constitutes sufficient consideration to support the release as the aceptance came from the defendant.

As to this contention, it should be pointed out that the alleged release was signed only by plaintiff, thus the quoted language was plaintiff’s notwithstanding the fact that the defendant prepared it. We fail to see how this recitation by the plaintiff in the release can represent adequate consideration therefor. The language used by the plaintiff did not refer to something which it was accepting as consideration for the release. Plaintiff did not say that the release was executed in consideration of the acceptance by the Government of the work. It stated only that the work was already completed and only referred to that prior acceptance. Moreover, the work under the contract had been accepted almost four years earlier. Therefore, the recital relied upon by defendant can refer only to past consideration, if consideration at all, which the law of contracts treats as no consideration.

In Pneumatic Gun-Carriage and Power Co., v. United States, 36 C. Cls. 71, we said that nothing can be treated as consideration that is not intended as such by the parties. The record in this case shows that the parties in suit not only did not intend the language quoted by defendant to be consideration but that plaintiff objected to it even being in the purported release. Upon being told by defendant’s representative» Hungerford, that he didn’t have the authority to change the wording, plaintiff consented to leaving it in. This, however, would not in itself transform that language into a consideration flowing from the defendant to the plaintiff. It was certainly not intended by either party at that time as being consideration for signing the release.

Thirdly, defendant alleges that a classified material receipt given by defendant to plaintiff thereby relieving plaintiff of responsibility for future safety of certain classified material for which it had been previously responsible constituted adequate consideration for the release. The very simple answer to this argument is that the receipt was given for the return of the classified material itself which classified material was turned over to defendant the day before and not as consideration for the release executed unilaterally by plaintiff. The classified material could have been turned back at any time and without the signing of the release.

The release here in question is not comparable to those releases given in connection with many Government contracts wherein the last payment under the contract is held up until the plaintiff executes the release. In such case, the payment of the last installment constitutes the consideration for the release. Nor does this case involve a situation where the contract calls for a release. In such cases the contract itself is the consideration for the release. In the case at hand, the contract did not provide for the execution of the release and the last payment made to plaintiff under the contract had been made almost three years prior to the execution of the release.

Defendant, nevertheless, insists that since the release was under seal, no consideration is needed and relies on the common law to support this view. To determine the validity of the release in question we must apply the usual rules of contract. The nature, validity and interpretation of contracts are to be governed by the law of the state where the instrument was executed, L. B. Smith Inc. v. United States, 136 C. Cls. 587, and cases cited therein. This court has consistently followed that rule, thus to determine the applicability of the common law rule relied on by defendant we must look to the law of the State of Michigan since it was in Detroit that the release was signed by plaintiff.

Prior to its modification by statute, a seal on an instrument in the State of Michigan was held to import consideration, and no consideration as such had to be shown. That common law rule, however, has been changed by statute and Michigan now operates under the following modification of the significance of an instrument under seal:

Sec. 46. In any action upon a sealed instrument, and where a set-off is founded on any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed. Mich. C. L. 1948, Sec. 617.46.

Thus, it is clear that the status of the seal in Michigan no longer is of import similar to that accorded it under unaltered common law. The seal constitutes only a re-buttable presumption of consideration in Michigan today. The plaintiff in this case, as pointed out above, has adequately rebutted the presumption of consideration.

Moreover, consideration or not, we feel that the subsequent actions of the contracting agency would negate any binding effect the release may have had. After the plaintiff made its initial claim to the Atomic Energy Commission, the Commission did not treat its recovery as being barred by the release. As a matter of fact, from the beginning the Commission thought it was recoverable and so informed the plaintiff. The Commission differed with plaintiff on its assertion that it was a termination claim, but did concede that it was recoverable under the provisions of the contract itself. Mr. Bulck, in his memorandum to the Controller of the Atomic Energy Commission in Washington, D. C., on March 23, 1953, stated that in his opinion the claimed expenditure was a reimbursable item. Mr. Bulck had the duties of, and was considered a contracting officer, and had the authority to settle claims under $500,000. Thus, the subsequent actions of the contracting agency, even if the release could otherwise be considered legally binding, would vitiate the binding effect thereof. If the contracting agency had the authority to accept the release, it must also have had the authority to lift the bar it effected if it so desired. Its subsequent actions indicate that it did just that.

We hold, therefore, that the purported release signed by plaintiff on January 25,1950, is not a bar to its recovery of the claims here in suit, that the seal on the release is ineffectual to support defendant’s contention that it does not have to show a consideration, and that the release is not supported by consideration of any nature.

As hereinbefore noted, the plaintiff in attempting to sustain its subject claim argues in the alternative. Primarily, it argues that the contract was terminated within the purview of the Contract Settlement Act of 1944, supra, and that it is entitled to reimbursement based upon the provisions thereof. Alternatively, it argues that if the contract is considered by the court to have been completed according to its terms rather than terminated, it can, nevertheless, recover under the specific terms of the contract relying on article IX, subsections g, i, m, t, and w thereof which have hereinbefore been quoted in full.

Defendant contends that the contract was not terminated and points to the reply by the contracting agency to plaintiff’s request of November 30,1945, that it be informed of the article of the contract under which cessation of production was ordered. The contracting officer replied to this request on December 1,1945, stating that the action had been taken under article XXXIV of the contract, which is entitled “Changes” and is hereinbefore quoted in full. That section of the contract permitted the Government to unilaterally modify the contract which, up to this time, it did on four occasions. The essence of the defendant’s argument on this issue is, therefore, that the Government’s order of November 21,1945, terminating production was no more than a modification of the contract as it then existed, reducing, so to speak, the amount of material plaintiff was required to supply the Government with from the prescribed number to something-less. We do not feel that the Government can circumvent the provisions of the Contract Settlement Act so easily.

Regardless of the contentions of the parties, we must determine the status of the now completed contract by the substance of the events which stopped production at the Garfield plant on November 21, 1945, and not the form. Thus, the mere fact that the Government said it was merely modifying the contract pursuant to its authority under article XXXIV of the contract does not bar this from being a termination claim if it in fact meets the requirements of the Contract Settlement Act, supra, and the regulations promulgated thereunder.

Section 103 (d) of that act states as follows:

(d) The terms “termination”, “terminate”, and “terminated” refer to the termination or cancellation, in whole or in part, of work under a prime contract for the convenience or at the option of the Government (except for default of the prime contractor) or work under a subcontract for any reason except the default of the subcontractor. [Italics supplied.]

Supplemental Agreement No. 5 of the contract, hereinbe-fore set forth in pertinent part, was entered into shortly after the receipt on November 21, 1945, of notice to cease production and states that it was to the advantage and in the best interests of the United States to terminate production on November 21,1945.

The Joint Termination Begulations promulgated pursuant to the Contract Settlement Act by the War and Navy Departments, 10 C. F. R. § 800 et seq. (1944 Supp.), which were subsequently made applicable to the Atomic Energy Commission by Executive Order No. 10216, February 23, 1951, 16 Fed. Beg. 1815; Atomic Energy Bulletin OB-182, October 16, 1950, contains the following provisions:

216.1 When Reductions Permitted.
(a) Certain War and Navy Departments prime contracts contain a special “Changes” article which authorizes the Government, under certain conditions, to reduce by a change order the quantity of supplies to be delivered under the contract. Such a reduction is a method of termination * * *.
(b) Where a reduction in the quantity of supplies to be delivered under a prime contract appears likely to involve substantial of complicated problems regarding termination inventories or claims by subcontractors, such reduction should ordinarily be effected as a partial termination pursuant to the termination article contained in the contract. * * *
216.2 Compensation for such reductions. * * *
(c) * * * Since such, reduction constitutes a termination under the Act, the prime contractor will be entitled to appeal from such findings or sue in accordance with Section 13 of the Act. J. T. E. 216-1, 216-2; 10 C. F. E. 1944 Supp. 842-216-1, 842-216-2. [Italics supplied.]

The language of supplement 5 seems to make clear that the contract in question was terminated at the Government’s convenience, as specified in the definition of “termination” contained in section 103 (d) quoted above, thereby placing the contract squarely within the provisions of the Contract Settlement Act, supra.

Whether that be so or not, it is apparent that the Government’s argument that the contract was simply modified under the Changes article cannot be sustained in light of the above-quoted section of the Joint Termination Eegulations which specifically makes a reduction in the amount of material called for by a contract a method of termination. While subsequent supplements allowed the work in process to be completed and provided for a contract completion date, the overall situation on November 21, 1945, was that there had been effected a reduction in the amount of materials the plaintiff had to supply the Government with under the contract. This is exactly the type of situation anticipated by the Joint Termination Eegulation 216.1 above quoted. The effect of the Government’s action was, at the very least, a partial reduction in the amount of production called for by the contract which, according to section 103 (d) above, constitutes a termination for the purposes of the act.

We hold, therefore, that plaintiff’s contract was terminated within the meaning of the Contract Settlement Act of 1944, supra.

We further hold that expenditures of the nature here sued for are expressly provided for by the terms of the contract and, therefore, the plaintiff is entitled to recover the amount claimed.

Subsection i of article IX of the contract, hereinbefore quoted, explicitly covers the type of expense in question. That section says that any disbursements required to be made by the contractor by state law on account of the contract relative to personnel, among other things, is a valid reimbursable expense under the contract. The contributions which the plaintiff in this case made to the State of Illinois were certainly required by that State’s law and, if not paid, plaintiff would have subjected itself to certain penalties called for by the state statutes.

Subsection m is applicable and plaintiff would be entitled to recover thereunder since, as previously noted, we have decided that the contract was terminated. This subsection is reciprocal with article IY 3. b which provided for the payment of expenditures in accordance with article IX in the event of termination of the contract.

Subsection t of the same article IX also covers the expenditures in question. It is a catchall clause providing for the payment of all items of expense not expressly excluded by other provisions of the contract. While the subsection specifies that the payment of such additional expenses is contingent upon the contracting officer’s opinion that they should be included' in the cost of the work, we feel that it nevertheless applies to the claims mider consideration since a contracting officer of the Atomic Energy Commission assigned to handle the claims relative to contract 149 and with authority to settle claims under $500,000 stated orally and in writing that in his opinion the claims were reimbursable under the provisions of the contract. The only reason the claims were not paid thereafter is that the Comptroller General refused to certify their payment.

The defendant contends, however, that even if the contributions here in question are considered to be reimbursable, there is no authority for their reimbursement after the contract had expired according to the terms of the supplements thereto. We feel there is absolutely no merit to this argument. The expenses arose on account of plaintiff’s operation under the contract and the fact that the amount of the expenditures could not be determined until after performance under the contract had been fulfilled makes them no less reimbursable.

The defendant also makes another argument to the effect that the strike which commenced at the Garfield plant on November 14,1945, never ended and because of this plaintiff should be barred from recovering the amounts claimed as it should have contested the payment of unemployment compensation benefits that were awarded to employees after November 21, 1945, and which resulted in the assessment of higher contribution rates against the plaintiff. In answer to this we can only reiterate what the Department of Labor of the State of Illinois concluded after hearings on the applications of the former employees of plaintiff for unemployment benefits, to wit, the unemployment of the workers after November 21, 1945, was due to a shutdown of production operations rather than the strike. Moreover, the record shows that plaintiff did have a legal representative at the hearings on the employees’ applications.

The defendant makes other assertions which we feel are completely without merit and, therefore, will not be discussed since they will in no way effect our decision as outlined above.

We feel constrained at this point, however, to note that we have taken full cognizance of the Certain-Teed and Hercules decisions, cited supra, which result in an extension of the doctrine of Federal Cartridge Corporation v. United States, 111 C. Cls. 372, and we are in complete agreement with those cases.

In the Federal Cartridge case recovery was sought for taxes plaintiff was required to pay on account of its performance under a cost-plus-fixed-fee contract with defendant the liability for which occurred during the performance of the contract. Recovery was allowed by this court.

The Certain-Teed and Hercules cases present situations almost identical with the one before the court in the instant suit in that they were claims for the reimbursement of unemployment compensation taxes paid under the respective state laws in years subsequent to the termination of the contracts and the liability for which arose after the termination. The appeals Board in those cases allowed the recovery of the claims on the basis of the Federal Cartridge decision.

We feel that the board was correct in extending the doctrine of Federal Cartridge to a situation where the liability for the taxes paid as a result of performance under the Government contract arose after the termination. As in the instant case, so long as the expenditure arose on account of the contractor’s performance under the contract, and the expenditure is not otherwise excluded from payment by other provisions, the mere fact that liability cannot be determined until after the termination or completion date of the contract is no reason to penalize the contractor to the extent of its subsequent payments which are attributable to the Government contract.

The only matter left for our consideration is the question of interest. Since we have decided that the contract in question was terminated within the purview of the Contract Settlement Act, supra, the contractor is entitled to interest in accordance with section 106 (f) of that act. That section of the act gives the contractor the right to “interest on the amount due and unpaid from time to time on any termination claim under a prime contract that the rate of 214 percent per annum for the period beginning 30 days after the date fixed for termination and ending on the date of final payment.”

Interest on the payments in this case would not commence to run 30 days after the termination of the contract since they were not due and the contractor had not yet paid them at that time. The payments fell due at the end of each calendar quarter in the years subsequent to the termination of the contract and were paid by plaintiff as they became due. Therefore, interest will begin to run on each of the quarterly payments which together comprise the sum total of the claim in suit, $420,212.46, on the date of payment and will continue to run until actually paid.

Accordingly, judgment will be entered for plaintiff in the amount of $420,212.46, plus interest at the rate of 2% percent per annum to run from the date of payment by plaintiff of each of the individual payments which went to make up that sum and interest will continue to run until paid.

It is so ordered.

Madden, Judge, and Littleton, Judge, concur.

Whitaker, Judge,

dissenting in part:

The original contract called for production of classified materials during a period of 11 months beginning February 1,1944. Under the authority granted the contracting officer by article XXXIY of the contract, the scope of the contract was extended from time to time to call for a total of 8,796,000 units, and the time for its performance was extended to February 28,1946.

But, before February 28, 1946, the contract was changed again, this time, on December 29, 1945, so as to cease production of further units, and to put the plant in standby condition, so that production of further units could be resumed when desired. This requirement to put the plant in standby condition was a new requirement, not theretofore incorporated in the contract.

Then, on February 6,1946, a little over a month later, the contract was again changed to provide for the completion of certain listed operations, and the contract period was extended to May 31, 1946. This was three months later than its prior completion date of February 28, 1946.

All of the changes were agreed to in writing by plaintiff.

The amended contract was completed according to its terms and full settlement was made, except for the costs now in suit.

There was, therefore, no termination of the contract. As changed, it was completed.

It had been extended four times to increase the number of units to be produced and to extend the time for its performance. In reducing the number of units to be produced, the contracting officer was acting pursuant to the same contractual authority he had exercised when he increased the number to be produced. He was exercising the same authority when he directed the contractor to put the plant in standby condition. And he was exercising the same authority when he extended the term of the contract to a date beyond the last previous expiration date, to permit completion of certain listed operations.

This is not a case where a contract was unexpectedly terminated in the midst of its performance, thus disrupting the plans of the contractor and leaving it with materials and equipment on hand for which it had no further use. It was a change made in the work to be performed, which required, not a shortening of the contract time, but an extension of it.

In my opinion, it does not come within the terms of the termination provisions of the Contract Settlement Act, supra, but, rather, under the “changes” article of the contract, as recognized by the contractor’s agreement to all the changes made.

For the reasons stated, I do not think the contractor is entitled to interest; otherwise I concur.

Jones, Chief Judge, concurs in the foregoing dissent.

FINDINGS OE EACT

The court having considered the evidence, the report of Commissioner William E. Day, and the briefs and argument of counsel, makes the following findings of fact:

1. Plaintiff, Houdaille Industries, Inc., is and during all the times mentioned in this action has been a corporation organized and existing under and by virtue of the laws of the State of Michigan, having its principal office, until August 1, 1955, in the city of Detroit, Michigan, and since then in the city of Buffalo, New York. On November 30, 1955, the plaintiff’s name was formally changed from Houdaille-Hershey Corporation to the name referred to above.

2. At all times involved in this action and for more than five years prior to entering into the prime contracts with the United States hereinafter referred to, the plaintiff owned and operated, and still owns and operates, manufacturing plants in several States of the United States including three such plants in the State of Illinois, one located at Decatur, Illinois, one located at North Chicago, Illinois, and one located at Chicago, Illinois, which plants are sometimes hereinafter referred to as plaintiff’s normal peacetime plants.

The Garfield Division of the plaintiff, hereinafter referred to, located at Decatur, Illinois, was organized and existed as such from sometime in 1943, following the execution of Contract W-7405-eng-149, until about June 30, 1946. It was created for the purpose of enabling performance of the W-7405-eng-149 contract and the related Contract W-7405-eng-55, and was used for no other purpose. During the period the Garfield Division was in existence, the plaintiff operated four plants or divisions in the State of Illinois, its three peacetime plants in addition to the Government-owned Garfield plant. The Garfield Division of the plaintiff was constructed on land owned by the plaintiff but later sold to the defendant.

3. The principal peacetime line of products of the plaintiff consists of automotive products including, but not limited to, shock absorbers, bumpers, locks, brake levers, bumper guards, air cleaners and stampings, and these are the types of products made during peacetime in the three plants of the plaintiff located in the State of Illinois.

4. The plaintiff’s claim in this case is for that portion of the unemployment compensation taxes or contributions which the plaintiff, as a corporate employer in the State of Illinois, was required to pay and did pay to the State of Illinois, pursuant to the provisions of the Unemployment Compensation Act of that State, for the years 1947, 1948, 1949, and 1950, which it would not have been required to pay except for the adverse effects of its employment and unemployment experience under the W-7405-eng-149 contract, hereinafter referred to, upon its rates of contribution for such years. Plaintiff’s rates of contribution were adversely affected for the four years indicated because of the substantial employment at the Garfield Division, the terminations of employment in large numbers beginning in February 1945, and steadily increasing to and beyond the termination of production operations on November 21, 1945, resulting in the filing and payment of claims for benefits to unemployed claimants, in substantial numbers pursuant to the provisions of the Illinois Act. The net amount of the plaintiff’s claim for the years 1947,1948,1949, and 1950, due to its adversely affected rates of contribution, is the sum of $420,212.46.

5. On April 21,1943, the plaintiff, acting by an authorized official, and the defendant, acting by a contracting officer of the Manhattan District of the War Department, entered into a written negotiated secret contract designated as Contract No. W-7405-eng-55, hereinafter referred to as “Contract 55.” This was an actual cost-type contract pursuant to which the plaintiff was to be reimbursed for its actual costs and expenditures not exceeding $1,000,000 but without fee or profit to the plaintiff. It covered generally the performance of design, development, and consulting work in the plaintiff’s peacetime plant at Decatur, Illinois, in contemplation of the later volume production by the plaintiff under separate contract of a vital material necessary in the manufacture of the atomic bomb. It also included the setting up of a pilot plant and its operation in the production of test material.

6. On June 10,1943, the defendant, acting by a contracting officer of the Manhattan Engineer District of the United States Engineer Office of the then War Department, prepared and sent to the plaintiff a letter contract (classified “secret”), No. W-7405-eng-149, hereinafter sometimes referred to as “Contract 149,” which was accepted by the plaintiff, acting through an authorized official, on June 20, 1943, providing among other things for the procurement (including the design thereof when necessary) and installation of the necessary manufacturing equipment to be utilized in facilities to be furnished by the Government, so as to produce a stated quantity of a very vital and theretofore unknown material of a highly secret and classified nature containing process properties to be specified by the contracting officer or his duly authorized representative, and for the preparation for operation and the operation of the Government-owned plant and facilities to the best of the plaintiff’s ability and in conformity with the specifications and directions, furnished by the contracting officer or his duly authorized representative, to produce an approximately stated quantity of units of the material. This letter contract provided that it would be supplemented by a more formal contract between the parties to be entered into on or before September 15, 1943, and provided for payment for work to be done thereunder not to exceed the sum of $1,000,000. This letter contract was from time to time supplemented by Supplements Nos. 1 through 7, inclusive. The supplements to the letter contract extended the time within which the formal contract was to be executed, Supplement No. 6 extending that period to January 31, 1944, and increasing the authorized expenditures under the letter contract, as supplemented. Supplement No. 7 to the letter contract, dated January 4, 1944, authorized an increase in the maximum amount reimbursable thereunder from a sum not to exceed $1,000,000 to a sum not to exceed $15,000,000.

7. On January 21, 1944, but effective as of June 10, 1943, the plaintiff and the defendant, acting through a contracting officer of the Manhattan District, entered into a written secret negotiated cost-plus-fixed-fee contract covering generally design, procurement and supervision of installation of equipment, design of buildings, and supply of product.

This was the confirmation by the parties of the letter contract and supplements referred to in the foregoing finding. It bore the express written approval of Major General Leslie E.. Groves, who was in command of the Manhattan project during the war.

8. Contract 149 contains the following provisions, among others:

Title I
ARTICLE I-A. STATEMENT OE THE WORK
The Contractor will in the shortest possible time procure the necessary equipment and, where the same is not procurable in the open market, design and construct or have constructed the necessary equipment; to design a building at Decatur, Illinois, for the purpose of receiving such manufacturing equipment; supervise the installation of the manufacturing equipment.
ARTICLE I-B. ESTIMATES
It is estimated that the cost of work under this Title I will be approximately Ten Million Four Hundred Nine Thousand One Hundred Seventy Dollars ($10,-409,170) but it is expressly understood’ that neither the Government nor the Contractor guarantees the correctness of such estimate.
ARTICLE I-C. CONSIDERATION
As consideration for the Contractor’s undertakings under this Title I the Contractor shall receive the following :
1. Reimbursement for costs incurred under this Title I as provided for in Article IX hereof.
2. A fixed-fee of Two Hundred Thousand Dollars ($200,000).
Title II
ARTICLE II-A. STATEMENT OE THE WORK
Prepare for operation of the plant by acquiring and training the necessary personnel therefor to acquire the necessary raw material and to operate the plant and produce approximately eight and one half million units of * * * material.
ARTICLE II-B. ESTIMATES
It is estimated that the cost of work under this Title II will be approximately Thirteen Million Three Thousand Two Hundred Fifty Dollars ($13,003,250) but it is expressly understood that neither the Government nor the Contractor guarantees the correctness of such estimate.
article ii-c. consideration
As consideration for the Contractor’s undertakings under this Title II, the Contractor shall receive the following:
1. Eeimbursement for costs incurred under this Title II as provided for in Article IX hereof.
2. A fixed-fee of Six Hundred Fifty Thousand Dollars ($650,000).
ARTICLE in. PERIOD OP PERFORMANCE
The work which the Contractor is to do under this contract shall commence on or about 10 June 1943, and production of the material required under Title II shall commence on or about 1 February 1944 and shall be completed within eleven months thereafter. It is understood and agreed that the above schedule is contingent on the Contractor obtaining the necessary facilities and supplies, and the Contractor does not guarantee that the production of the material required hereunder can be accomplished in the time specified above. However, the Contractor will exert every effort to meet the time requirements as specified above. In the event the Contractor through no fault of his own cannot manufacture the material required under Title II hereof before March 31, 1945 and the Government desires the Contractor to continue operation, a supplemental agreement will be entered into to provide for further operation and an additional fixed-fee will be agreed upon.
ARTICLE IV. TERMINATION
1. The Government may terminate this contract at any time by a notice in writing from the Contracting Officer to the Contractor. Such termination shall be effective in the manner and upon the date specified in said notice and shall be without prejudice to any claims which the Government may have against the Contractor, or to any claims which the Contractor may have against the Government. Upon receipt of such notice, the Contractor shall, unless the notice directs otherwise, immediately discontinue all work and the placing of all orders for materials, facilities, and supplies in connection with performance of this contract and shall proceed to cancel promptly all existing orders and terminate all subcontracts insofar as such orders and/or subcontracts are chargeable to this contract.
2. If this contract is terminated for the fault of the Contractor, the Contracting Officer may enter upon the premises and take possession, for the purpose of completing the work contemplated by this contract, of any or all materials, supplies, and appliances which may be owned by or in the possession of the Contractor and which have been obtained specifically for performance of this contract, and all options, privileges, and rights pertaining to this contract, and may complete or employ any other person or persons to complete said work.
8. Upon the termination of this contract, full and complete settlement of all claims of the Contractor arising out of this contract shall be made as follows:
a. The Government shall assume and become liable for all obligations, commitments, and claims that the Contractor may have theretofore in good faith undertaken or incurred in connection with said work, the cost of which would be reimbursable in accordance with the provisions of this contract; and the Contractor shall, as a condition of receiving the payments mentioned in this Article, execute and deliver all such papers and take all such steps as the Contracting Officer may require for the purpose of fully vesting in the Government, the rights and benefits of the Contractor under such obligations or commitments.
b. The Government shall reimburse the Contractor for all expenditures made in accordance with Article IX and not previously reimbursed.
g. The Government shall reimburse the Contractor for such further expenditures after the date of termination for the protection of Government property and for accounting services in connection with the settlement of this contract as are required or approved by the Contracting Officer.
d. The obligation of the Government to make any of the payments required by this Article shall be subject to any unsettled claims in connection with this contract which the Government may have against the Contractor.
e. No settlement hereunder shall prejudice the Contractor’s rights to reimbursement with respect to claims subsequently found or determined to have been incurred in the performance of this contract and not known or determined at the time of such settlement.
/. In the event of termination under this Article the Contractor shall be paid any of the unpaid balance of the fixed fee agreed upon.
****.***
ARTICLE VIII. GOVERNMENT FACILITIES
A. The Contractor grants unto the Government license to construct upon its premises a suitable building for the manufacture of the material hereunder. This building will at all times be and remain the property of the Government and may be removed by the Government at any time within six months after the termination of this contract, and the Contractor further agrees that the Government shall at all times until the removal of such building have the right of egress and ingress to said building.
B. The Government will build, in accordance with designs prepared by the Contractor, a suitable factory building on premises owned by the Contractor at Decatur, Illinois and install under the supervision of the Contractor the manufacturing equipment procured and/ or designed by the Contractor.
C. The Contractor will furnish for use under this contract, without any charge except the cost of dismantling, shipping, and reassembling as provided in Article IX, Paragraph v, certain motor Generator sets listed in Exhibit B. attached hereto. It is understood and agreed that, in connection with these motor generator sets, should the Contractor require their use in connection with other work of the Contractor, the Contractor may give notice to the Contracting Officer of the date when it desires to remove such motor generator sets, which date shall be sufficiently far in advance to give the Contracting Officer the necessary time to replace the motor generator sets to be removed, with other equipment which will be needed to replace the sets so removed.
ARTICLE IX. COST OF THE WORK
1. Reimbursement for Contractor’s Expenditures.
The Contractor shall be reimbursed in the manner hereinafter described for such of its actual costs and expenses in the performance of the work under this contract, as may be approved or ratified by the Contracting Officer. “Actual costs and Expenses” as used in this Article shall include the following only.
a. All labor, materials, tools, machinery, equipment, supplies, services, utilities, power and fuel, for either temporary or permanent use for the benefit of the work, including the training of operating personnel.
b. All purchase orders and subcontracts made in accordance with the provisions of this contract, including all expenditures incurred in accordance with Article XL
g.Transportation, loading, unloading and storage charges on materials, tools, supplies and equipment.
d. Transportation and traveling expenses to the site of the work of all necessary personnel for the prosecution of the work, and return therefrom when such services are no longer required; expense of procuring labor and expediting the production and transportation of materials, tools, machinery, equipment and supplies.
e. Expenses of procuring, or endeavor to procure personnel.
/. Actual expenses incurred by the Contractor under this contract for such bonds and insurance policies as have been approved or required by the Contracting Officer.
g. The cost of losses or expenses not compensated by insurance or otherwise (including settlement made with the written consent of the Contracting Officer) actually sustained by the Contractor in connection with the work and found and certified by the Contracting Officer to be just and reasonable unless reimbursement therefor is expressly prohibited; provided that such reimbursement shall not include any amount for which the Contractor would have been indemnified or compensated by insurance except for the failure of the Contractor to procure or maintain bonds or insurance in accordance with the requirements of the Contracting Officer.
h. The cost of reconstructing and replacing any of the work or property destroyed or damaged not covered by insurance; the expenditures under this item must have the written authorization of the Contracting Officer in advance.
i. Payments from its own funds made by the Contractor under the Social Security Act and any disbursements required by State and Federal law, including sales and any use taxes, which the Contractor may be required, on account of this contract, to pay on or for any plant, equipment, processes, organization, materials, supplies or personnel; and, if approved in writing by the Contracting Officer in advance, permit and license fees and royalties on patents used, including those owned by the Contractor.
j. If the Contractor or any representative thereof shall be required to travel, the Government will reimburse the Contractor for such transportation including Pullman where necessary, and will pay an allowance of Six Dollars ($6.00) per day for each day that a representative of the Contractor remains in travel status, in lieu of all other expenses. Transportation by automobile on such required travel shall be reimbursed at the rate of Five Cents ($0.05) per mile as representing the actual cost of such transportation.
h. All travel shall be, however, authorized or approved in writing by the Contracting Officer. Should any representative of the Contractor remain in a travel status in excess of six (6) days at any one time, not including the time actually consumed in travel, the cost of such excess travel shall be at the expense of the Contractor unless otherwise ordered in writing by the Contracting Officer.
1. Disbursements incident to payment of payrolls including but not limited to cost of disbursing cash, necessary guards, cashiers and paymasters. If payments to employees are made by check, facilities for cashing checks must be provided without expense to the employees, and the Contractor shall be reimbursed therefor.
to. Expenditures of the Contractor in connection with the termination of this contract, pursuant to Article IY.
n. The actual cost of removal of the equipment and restoration of the Contractor’s facilities as provided in Article XII.
o. Expenditures by the Contractor to reimburse other employers for salaries and wages paid by them to their employees released and engaged in the performance of the Contractor’s undertakings hereunder; the pro rata share of welfare and other employee relations benefits accruing to the employee during a period for which he is loaned; Federal and State Social Security taxes paid on such borrowed personnel by such employers.
p. Accounting (including salaries and other expenses) in connection with special audits of accounts for the Government in connection .with the work hereunder.
q. Expenditures by the Contractor for the perform-anee of the work hereunder, for long distance telephone calls, telegrams, cablegrams and radiograms exclusive of taxes thereon, incurred by the Decatur and New York Offices.
r. All costs of establishing and maintaining facilities, equipment and personnel for protection against fire and other hazards and for guarding the security of the work.
s. All expenditures for which reimbursement has not been made pursuant to the Letter Contract No. W-7405 eng-149 dated 10 June 1943, and supplements thereto, which Letter Contract is superseded hereby.
t. Such other items not expressly excluded by other provisions of this contract as are, in the opinion of the Contracting Officer, to be included in the cost of the work. When such an item is allowed by the Contracting Officer, it shall be specifically certified as being allowed under this subsection.
u. Salaries of employees of the Contractor engaged exclusively on the work provided hereunder, as approved in writing by the Contracting Officer. In case the full time of any such employee of the Contractor is not applied to the work, his salary shall be included in this item only in proportion to the actual time applied thereto.
v. The Cost of shipping generators mentioned in the preceding article from their present location to Decatur, Illinois and back to the place where they came trom including the cost of dismantling, crating, and reassembling of said generators.
2. a. Beimowrsement for cost. The Government will currently reimburse the Contractor for expenditures made in accordance with the provisions of this contract upon certification to and verification by the Contracting Officer of the original signed payrolls for labor, the receipted invoices for material, and such other documents as the Contracting Officer may require. Generally reimbursement will be made monthly but may be made at more frequent intervals if conditions so warrant. The Contracting Officer may withhold all or any part of the final reimbursement payment until receipt of the property accounting, and the patent disclosure and designation required hereunder.
b. Payment o>f the fixed-fee. The fixed-fee as set out in Title I shall be paid in four equal installments. The first installment when the work under Title I is 25% complete, the second when 50% complete, the third when 75% complete and the last when 100% complete.
The fixed-fee as set out in Title II shall be paid, in thirteen equal monthly installments of $50,000 commencing February 1,1944. In the event all of the * * * material required hereunder is produced in a shorter period of time, the final payment shall be made when all of the material has been produced and delivered.
‡ ‡ ‡ ‡
ARTICLE XIV. ACCOUNTABILITY EOR PROPERTY.
WitiÚEi sixty (60) days after the termination of the subject work, the Contractor shall render an accounting, in accordance with the instructions of the Contracting Officer, of all property the disposition of which is governed by Articles XII and XIII.
% * * jH *
ARTICLE XXX. DISPUTES
Except as otherwise specifically provided in this contract, all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail a copy thereof to the contractor at his address shown herein. Within 30 days from said mailing the contractor may appeal in writing to the Secretary of War, whose written decision or that of his designated representative or representatives thereon shall be final and conclusive upon the parties hereto. * * *
* * * * *
ARTICLE XXXIV. CHANGES
The Contracting Officer may at any time, by written order issue additional instructions, require additional work or services or direct the omission of work or services covered by this contract. If such changes cause a material increase or decrease in the amount or character of the work and services to be done under this contract an equitable adjustment of the amount of the fixed fee to be paid the Contractor shall be made and the contract shall be modified in writing accordingly. Any claim for adjustment under this Article must be asserted within 30 days from the date the change is ordered. Nothing provided in this Article shall excuse the Contractor from proceeding with the prosecution of the work as provided herein, nor any claim therefor because of any errors and/or omissions made in computing the estimated cost of the work under this contract or where the actual cost varies from the estimated cost.
ARTICLE XXXV. ALTERATIONS
The following changes were made in this contract before it was signed by the parties hereto:
(1) Subdivision w is added to Paragraph 1 (Reimbursement for Contractor’s Expenditures) of Article IX as follows:
w. Expenditures of the Contractor in connection with allowances and benefits relative to employment, including those relating to overtime, hospitalization, sickness, leaves, vacations, holidays and the like. * * *

9. Contract No. 149 was supplemented or modified by six separate written amendments, the first on August 1, 1944, and the sixth on February 6, 1946. By the second amendment the period of performance as stated in article III was extended to June 30, 1945, in order to enable the plaintiff to produce the quantity of the required product. The estimated cost of the work in article II-B was increased from $13,003,250 to $16,536,000. Article II-C was also amended by adding $150,000 to the fixed fee to the plaintiff to be received by it at the rate of $50,000 per month for the months of April, May, and June, 1945. Modification No. 3 dated May 10, 1945, provides in material part as follows:

Whereas, It is found advantageous and in the best interests of the United States to further modify said contract for the following reason:
Continued operation is required in order to enable the Contractor to manufacture the quantity of Product * * * needed.
Now, therefore, The said contract, as modified, is further modified in the following particulars but in no others:
1. In Article III, as amended, the date of June 30, 1945 is extended to December 31, 1945.
2. It is hereby understood and agreed that both the estimated cost of the work as set forth in Article II-B, as amended, will be adjusted and the increase in the fixed fee under Article II-C, subparagraph 2, as amended, will be subject to future negotiations as soon as a definite production program, prescribed by the Contracting Officer, is available.

Modification No. 4, dated July 1,1945, provided for building alterations, changes in certain equipment for the continuation of production of the product. The estimated cost under title I was increased from $10,409,170 to $10,734,-644.50. The fixed fee under article I-C was increased by $15,000.

The estimated cost of the work under title II was increased from $16,536,000 to $23,868,806. The fixed fee under article II-C was increased from $800,000 to $1,120,000, the additional $320,000 fixed fee to be paid to the plaintiff at the rate of $50,000 for each month of July and August 1945, $45,000 in September 1945, and $35,000 per month to be paid for each month from October 1945 through February 1946. The period of performance was extended from December 31, 1945, to February 28, 1946. The statement of the work was changed by Modification No. 4 to read as follows:

Prepare for operation of the plant by acquiring and. training the necessary personnel therefor to acquire the necessary raw material and to operate the plant and produce approximately Eight Million Seven Hundred Ninety-six Thousand (8,796,000) units of * * * material. > Upon completion of production of said Eight Million Seven Hundred Ninety-six Thousand (8,796,-000) units of * * * the Contractor shall produce approximately Nine Hundred Ten Thousand (910,000) Finished Tubes, plus Nine Hundred Seventy Thousand (970,000) Backing Sheets which will have been carried through the production steps leading up to and including annealing and trimming.

10. As finally modified, the contract provided for an estimated cost under title I of $11,434,644.50 with a fixed fe8 under that title of $215,000, and in addition an estimated cost under title II of $23,331,383.50 with a fixed fee under that title of $1,090,000.

11. The Manhattan Engineer District is the name assigned to that special project of the Corps of Engineers of the former War Department charged with the duty during World War II of coordinating activities having to do with the research, development, and manufacture of nuclear weapons for military purposes, having its headquarters at Oak Eidge, Tennessee, with an office at New York City. Contracting officers were located at both places and contractual documents were executed on behalf of the defendant at both places.

12. The plaintiff entered upon the performance of Contract 55 at its peacetime plant located at Decatur, Illinois, and in all respects fully performed and discharged its obligations thereunder until on or about July 31,1944, at which time the Government terminated said contract for its convenience by notice in writing to the plaintiff dated July 31, 1944, pursuant to the provisions of article III of Contract 55, which was the termination article substantially similar to article IV of Contract 149. Upon the termination of Contract 55, the employees thereunder were transferred to and became employees under Contract 149 at plaintiff’s Garfield Division at Decatur, Illinois. There was never any production at the so-called “pilot plant” provided for under Contract 55 because of the change in the specifications of the material. The employees under Contract 55 were salaried, professional, technical and expert personnel in various lines doing experimental and research work preliminary to anticipated production work to be done under the supply Contract 149. The maximum number of employees who at any time performed services under Contract 55 did not exceed 200. The last employment under that contract was in the month of June 1944. The plaintiff makes no claim in this action under Contract 55, its claim in this action being limited to Contract 149.

13. Following the execution of Contract 149, the plaintiff entered upon the performance thereof and proceeded to create a new operating division located in the city of Decatur, Illinois, which division or plant was designated as, and became known as, the Garfield Division of Houdaille-Hershey Corporation, consisting of the Government-owned facilities at that location, solely for the purpose of performing the work required under titles I and II of Contract 149. In the performance of the work under Contract 149, the plaintiff proceeded to design a building to be constructed at Decatur, Illinois, upon premises owned by the plaintiff and to procure the necessary equipment, and where the necessary equipment was not procurable in the open market, proceeded to design and have constructed the necessary equipment, which was installed by the plaintiff in the Government-owned buildings at Decatur, Illinois, for the manufacture of the classified material. The construction of the specially designed buildings was accomplished in greater part under a prime contract between the defendant and George M. Fuller Construction Company. The contract with George M. Fuller Construction Company for the construction of the buildings was terminated prior to the completion of the buildings, and the balance of the construction work was supervised and accomplished by the plaintiff pursuant to supplement No. 1 to Contract 149. Production of supplies pursuant to title II of the prime contract commenced in the specially designed buildings known as the Garfield Division of the plaintiff sometime in the year 1944, prior to the completion of the buildings.

Sometime during the early part of 1944, after a considerable amount of machinery and processing equipment had been acquired and installed by the plaintiff and still other similar equipment ordered, the Kellex Corporation, which was the design contractor for the defendant with respect to the specifications of the highly secret material to be produced at the Garfield Division which had never theretofore been produced, changed the process for the manufacture of the material and the specifications of the material, making it necessary to change some of the manufacturing equipment which was not adaptable to the new process and to dispose of much of the machinery and processing equipment which had theretofore been acquired and installed by the plaintiff and to start over again with respect to the acquisition and installation of the necessary manufacturing equipment, all of which delayed the commencement of volume production at the Garfield Division.

14. Contract 149 carried a high priority among war contracts, both as to available manpower and allocation of funds for its performance. The change in the process of making the secret material by the design contractor early in 1944, resulted not only in delaying the plaintiff in getting into volume production, but also required the use of more hand labor than would have been required by the original process, resulting in substantially increased employment over that originally contemplated. Once the process of manufacture was agreed upon, accelerated production schedules were furnished to the plaintiff in an attempt to make up the time which had been lost due to the change in process of manuf ac-turing tbe material and in order that the Government’s overall program' might be kept in proper coordination. This resulted in a rapid expansion of the work force at the Garfield Division of the plaintiff and the reaching of a peak of employment in less than a year after production started. The plaintiff entered upon- the performance of Contract 149, as amended and supplemented, and produced the secret material called for thereunder until on or about November 21, 1945. The employees required to perform the contract were recruited from various sections of the country. Women workers were employed in large numbers. Agricultural workers were employed in off-seasons. When necessary to obtain workers from distant points, their transportation costs and that of their dependents and household goods were paid to the site of the work and return to the point of hire. The influx of workers was such that special arrangements had to be made to house them, including house-trailer parking arrangements and other forms of temporary housing.

15. Plaintiff’s Garfield Division was operated on an integrated basis, having no connection with any of the plaintiff’s other plants in the State of Illinois or elsewhere. It had its independent organization, with separate employment offices, separate accounting department, separate payroll records, separate bank accounts, separate employment records, separate security organization, and other complete but separate and distinct divisional records. There was no exchange of material or personnel between the plaintiff’s Garfield Division and the other plants operated by the plaintiff in the State of Illinois or elsewhere.

16. At all times involved in this case and for more than three years prior to entering into Contract 149, the plaintiff, as a corporate employer in the State of Illinois, was and is now subject to the provisions of the Illinois Unemployment Compensation Act, laws of 1937, approved June 30, 1937, effective July 1, 1937, as amended, and as such employer, plaintiff was and is required to make contributions to the Department of Labor, Division of Placement and Unemployment Compensation of the State of Illinois, in amounts computed upon its taxable wages in the State of Illinois. “Taxable” wages, or wages on which contributions are required to be paid, include wages of individual workers up to and in-eluding $3,000 during any calendar year but not wages in excess of $3,000 for any calendar year. Such contributions become due and are required to be paid quarterly on or before the last day of the month next following the calendar quarter for which such contributions have accrued. Under the Illinois Act, contributions are calculated on an employer basis and not on a plant or operating division basis. Under the provisions of the Illinois Act, a corporate employer is considered and treated as a single entity or single employer for purposes of determining such employer’s rate of contribution notwithstanding the fact that the corporate employer may have several plants or operating divisions in the State. Under the Illinois Unemployment Compensation Act, two factors are used in determining an employer’s rate of contribution for a given year:

(1) The employer’s “benefit wage ratio.”

(2) The “State experience factor.”

The “benefit wage ratio” is computed in the following manner: When a worker on and after July 1, 1941, is paid benefits which, when added to benefits previously paid for the same benefit year, equal or exceed three times his weekly benefit amount for that benefit year, his wages during his base period immediately become benefit wages. “Base period” means the 12-consecutivermonth period ending December 31, immediately preceding the first day of a benefit year. The “benefit year” means the 12-consecutive-month period beginning April 1. An employer’s “benefit wages” under the Illinois Act with respect to any one worker includes only the first $1,575 of wages in the base periods 1944 to 1948, inclusive, provided that when wages became benefit wages between April 1, 1945, and June 30,1945, such benefit wages cannot exceed $1,375, and only the first $1,975 of wages in the base periods 1949 and thereafter. The “benefit wage ratio” of each employer in the State is a percentage equal to the total of his benefit wages for the 36-consecutive-calendar-month period ending June 30 of the calendar year immediately preceding the calendar year for which a rate is being determined, divided by his total taxable wages for the same 36-month period. The “State experience factor,” the other factor in determining an employer’s rate of contribution for a given year, depends upon the condition of the unemployment trust fund of the State. The total benefits paid from the State’s account in the unemployment trust fund during the 36-consecutive-calendar-month period ending June 30 of the calendar year immediately preceding the calendar year for which a rate is being determined is termed the “loss experience.” The “loss experience” less all repayments to the State account in the unemployment trust fund during the same 36-consecutive-calendar-month period divided by the total benefit wages of all employers for the same 36-month period, after adjustment to the nearest multiple of one percent, constitutes the “State experience factor” for the year or years in question which is applicable to all employers alike in the State of Illinois in the determination of contribution rates. The “State experience factor” is determined for each calendar year by the State Director of Labor. Once the “benefit wage ratio” and the “State experience factor” are determined, the contribution rate for the year in question is ascertained by reference to a table set out in the Illinois Act, as amended. An employer’s contribution rate for each year is determined by the Director of Labor, and written notice of this contribution rate determination is mailed to each Illinois employer some time prior to the end of the first quarter of each year. This contribution rate, applied to the employer’s taxable wages for the year in question, fixes and determines the dollar-and-cents amount of the employer’s annual contributions. The plaintiff’s contribution rates for the calendar years 1947 to 1950, both inclusive, are dependent upon and determined from plaintiff’s employment and unemployment experience in the State of Illinois, sometimes referred to as the employer’s “merit rating” or “experience rating,” and statewide statistics for a 36-month period ending June 30, preceding each of such calendar years. The plaintiff’s employment and unemployment experience under and in connection with its performance under Contract 149 at its Garfield Division was a factor in and adversely affected the plaintiff’s rate of contribution for the calendar years 1947 through 1950, both inclusive, and it was not until after the year 1951 that the plaintiff’s employment record and experience under Contract 149 was completely eliminated as a factor in the determination of the plaintiff’s rate of contribution in the State of Illinois. The mathematical calculations involved in the detennination of the plaintiff’s rate of contributions, inclusive and exclusive of the effects of its experience under Contract 149, for the years 1947 through 1950, both inclusive, as hereinafter stated, accurately reflect the application of the foregoing provisions of the Illinois Unemployment Compensation Act.

17. All wages paid by the plaintiff at its Garfield Division prior to the fourth quarter of 1943 are attributed to Contract 55. Beginning with the fourth quarter of 1943, through the first half of 1944, while both contracts were active, a segregation has been made of the total taxable wages paid by the plaintiff at its Garfield Division as between Contract 55 and Contract 149 and the correct total of taxable wages for that period assigned to Contract 149 under which the plaintiff’s claim is asserted. There was no employment under Contract 55 after the first half of 1944. Thereafter all employment at the Garfield Division was under Contract 149. There was no employment by the plaintiff at the Garfield Division after the first half of 1946. All benefit wages relating to employment at the Garfield Division for the period covered by the plaintiff’s claim have been adjusted to reflect the elimination of benefit wages attributable to former employee-claimants under Contract 55. The statistics upon which the plaintiff’s claim is based are limited to Contract 149, and the computations involved in the determination of the amount of the claim accurately reflect the application of the provisions of the Illinois Unemployment Compensation Act and establish the adverse effects of plaintiff’s experience under Contract 149 upon its rates of contribution for the years 1947 to 1950, both inclusive.

18. The total number of employees of the plaintiff at its Garfield Division and at its three peacetime plants in the State of Illinois as of the 15th of each month, for the period beginning with the month of April 1943, through the month of June 1946, together with the total taxable wages in the State of Illinois and the related amount of taxable wages attributable to Contract 149 and to plaintiff’s three peacetime plants in the State of Illinois, is set out in the following schedule by calendar quarters:

19. Altogether during performance of Contract 149, over 7,400 employees were hired and thereafter their employment was terminated. As may be seen from the foregoing tabulation, the number of employees increased to the peak month of January 1945. The peak in employment under the contract was reached during the week of February 3,1945, when 4,634 employees were on the payroll. Turnover of employment was high. From the point of peak employment in February 1945, the number of employees steadily decreased. After May 1946, there were no maintenance or production employees on the payroll.

20. Of tbe more than 7,400 former employees of the plaintiff at its Garfield Division under Contract 149, approximately 3,500 filed claims for and were paid benefits under the Illinois Unemployment Compensation Act following the termination of their employment by the plaintiff, the results of which are reflected in the Statements of Benefit Wages subsequently prepared and sent to the plaintiff by the Department of Labor of the State of Illinois. Benefit wages were charged to the account of the plaintiff for the following periods by the Department of Labor, Division of Placement and Unemployment Compensation of the State of Illinois, based upon the plaintiff’s employment in that State as follows:

21. The plaintiff’s rates of contribution as an employer in the State of Illinois were determined by the Department of Labor, Division of Placement and Unemployment Compensation of the State, for the years 1945 to 1951, both inclusive, to be the percentage rates indicated below, based upon the indicated benefit wage ratios and State experience factors, which rates were paid by the plaintiff:

Determined by Department of Labor, Division of Placement and Unemployment Compensation of the State of Illinois

22. If the adverse effects of plaintiff’s employment and unemployment experience at its Garfield Division in connection with its performance under Contract 149 had not been experienced or if the effects of that experience are now eliminated from the plaintiff’s corporate totals of taxable wages and benefit wages for the various periods involved so that the controlling statistics are limited solely to plaintiff’s employment and unemployment experience at its three Illinois peacetime plants, plaintiff’s rates of contribution under the Illinois Unemployment Compensation Act for the years 1947 to 1951, both inclusive, would have been as follows, rather than the rates the plantiff was required to pay, based upon the indicated benefit wage ratios and State experience factors:

23. The contribution rate differentials of the plaintiff as an employer in the State of Illinois due to the effects of plaintiff’s performance under Contract 149, plaintiff’s taxable wages, and the amounts of additional contributions which plaintiff was required to pay for the years 1947-1951, inclusive, because of its employment experience under Contract 149, are as follows:

24. For the year 1945 there was a contribution rate differential of .3 percent favorable to plaintiff’s operations at its three peacetime plants in the State of Illinois, due to plaintiff’s employment experience under Contract 149. The taxable wages at plaintiff’s three peacetime plants in the State of Illinois for the year 1945 amounted to $4,279,396.04 which, multiplied by the favorable contribution rate differential of .3 percent, results in the credit to the defendant of $12,838.19 shown in the foregoing tabulation. There were no contribution rate differentials, favorable or unfavorable, for the years 1943, 1944, 1946, and 1951, due to plaintiff’s experience under Contract 149.

25. During the period of plaintiff’s performance at the Garfield Division under Contracts 149 and 55, the plaintiff as an employer in the State of Illinois was required to and did make contributions to the Department of Labor of the State of Illinois, pursuant to the provisions of the Unemployment Compensation Act of that State. During the period of such performance, beginning with the calendar quarter ending June 30, 1943, through the calendar quarter ending June 30, 1946, the plaintiff was required to and did make such contributions aggregating the total sum of $729,-369.89, of which the sum of $388,748.14 was attributable to taxable wages paid to employees at the Garfield Division in connection with employment under Contracts 55 and 149, and the balance of $340,621.75 was attributable to taxable wages paid to employees at plaintiff’s three peacetime plants in the State of Illinois. Plaintiff was reimbursed by the Government the amount of such contributions attributable to employment under Contracts 55 and 149 during performance under such contracts upon the submission of properly documented vouchers under each contract. Plaintiff’s claim in this case does not include any of the contributions which it was required to make and did make during the foregoing period.

26. During the period following the performance under Contracts 55 and 149, the plaintiff as an employer in the State of Illinois was required to and did continue to make contributions to the Department of Labor of the State of Illinois based upon its taxable wages paid to employees in that State. The total amount of such required contributions during the periods stated below, the amount thereof attributable to the adverse effects of plaintiff’s employment experience under Contract 149, and the amount thereof attributable to plaintiff’s peacetime plants in the State of Illinois, based upon plaintiff’s previous employment experience in that State, are as indicated below:

27. After the war the plaintiff received on behalf of its employees the Army-Navy “E” Award for excellence in the production of war equipment. This was conferred at public ceremonies by Major General Leslie It. Groves, the commanding officer of the Manhattan Engineer project, who was directly in charge of the production of the atomic bomb.

28. From the time production started in the Garfield plant during the first half of 1944 until production stopped, certain operations had to be maintained on a continuous basis, 24 hours a day, 7 days a week. Prior to August 1945, some workers worked 6 and 7 days a week and 60 or 70 hours a week, and were paid overtime for the hours in excess of 40 hours per week. Operations were on the basis of three daily shifts of workers. Following the dropping of the first atomic bombs and the end of hostilities in World War II, in August 1945, there was not the same urgency for production of the material at the Garfield plant at the rate which had theretofore prevailed. The Government, beginning in August 1945, revised the production schedules to be observed by the plaintiff thereafter to reduce the rate of production and stretch the production of the additional material desired over a longer period than had originally been contemplated. It was also the objective of the Government at that time to place the Garfield plant on a 40-hour week so as to avoid overtime payments to employees. As a result of these production schedules, calling for production at a lower rate, the plaintiff, in addition to discharging further numbers of employees in August 1945, reduced the workweek of employees to 40 hours. This resulted in a substantial reduction in the “take-home” pay of employees below the amount they had theretofore received, and caused dissatisfaction and unrest among employees. This situation with respect to employment existed on October 17, 1945, at which time the unions constituting the exclusive bargaining representatives of the production and maintenance workers made certain demands upon the plaintiff for adjustment in the basis of their compensation including time-and-one-half for all work on Saturdays as such, double time for all work on Sundays as such, and a 30 percent increase in wages for those employees working only 40 hours a week. The employees had also demanded that they be permitted to work 48 hours a week. There were some negotiation meetings between the negotiating committee of the unions and representatives of the plaintiff with respect to these demands, but no agreement was reached. These union demands, along with some others, were again presented to the plaintiff on November 8, 1945. These union demands were the subject of further meetings between the bargaining committee of the unions and representatives of the plaintiff on November 8 and November 14, 1945. At these meetings plaintiff’s representatives stated to the union representatives that wage adjustments were regulated by and subject to wage and salary stabilization laws and regulations then in effect, and could not be made without the prior approval of designated Governmental agencies. This was not satisfactory to the employees. Soon after the meeting on November 14, 1945, was concluded at or about 11 o’clock in the morning, the employees quit their work and left the plant. By 3:30 that afternoon the plant was closed. This walkout by the employees was a “wildcat” strike, not having been authorized or approved by the representatives of the certified unions involved. Picket lines were immediately formed at the entrances to the plant which prevented production and most maintenance employees from entering the plant.

29. On November 16, 1945, a conciliator of the United States Conciliation Service met with the plaintiff and union representatives, but no agreement was reached.

30. An important part of the Garfield Division operations was known as the atmosphere plant. It could not be closed down at once but required a gradual closedown operation. The striking workers realized this and permitted a limited number of workers to assist the plaintiff in the closedown operations of the atmosphere plant. This plant was fully closed down by November 19, 1945. This fact was reported by the plaintiff’s officials to a contracting officer of the Manhattan project in New York City who sent the following telegram to the plaintiff at Detroit, Michigan, on November 21,1945:

Under provisions of Contract W-7405-eng-149 it is desired that you terminate production operations at the Garfield plant and place equipment in permanent standby condition. You will take all necessary steps to protect Government property and will be reimbursed for this cost in accordance with provisions of the contract.

31. The acting area engineer (the defendant’s resident engineer) at the Garfield Division on November 21, 1945, handed a letter of that date to the plaintiff’s plant manager, quoting the above telegram and authorizing the issuance of a public statement in the following terms:

The War Department has today instructed Houdaille-Hershey Corporation to cease all operations of the Garfield Division plant and to place the plant in permanent standby condition.
This action is predicated by several factors. For the past several weeks the plant has been manufacturing spare parts for one of the Atomic Energy Plants. It had been planned to operate the Garfield plant on this basis until January or February. However, recent operating experience of the Atomic Energy plant has indicated that the planned quantity of spare parts will not be required.
Because of the work stoppage at the Garfield plant that started last Wednesday it has been necessary to take major items of equipment out of service. It would prove too costly and time consuming to attempt to replace this equipment in operation for the relatively short production program that remained.

32. On the same day referred to above, a meeting was held with representatives of the union at which they were advised of the impending public announcement of the termination of further production at the Garfield Division. The announcement was read to the union representatives who told plaintiff that until the employees got the concessions they were seeking by the strike, no one would be permitted through the picket line to place the entire plant in standby condition.

33. On November 26, 1945, the area engineer stationed in the Garfield plant, who was also a representative of the contracting officer under Contract 149, received a telegram from a contracting officer located at Oak Ridge, Tennessee, reading as follows:

Authorization is granted the Houdaille-Hershey Corporation to work all employees six 8 hour days or 48 hours per week. Whose services are required to put the Garfield plant in a standby condition, [sic] Time and one-half payments will be made to personnel normally receiving overtime for work performed on the sixth day of the work week as being in excess of 40 hours and not as such. Employees who have not worked at least 40 hours during the first 5 days of the work week should not be permitted to work on the sixth day. No authorization is available for seventh day work or Sunday work at double time. Should this proposal be acceptable to the contractor and the union the contractor will proceed as rapidly as possible to terminate all employees whose services are no longer needed as this authorization is granted for a limited period only.

The plaintiff’s labor relations director at the Garfield plant was furnished a copy of that telegram on November 26,1945, and he arranged for a meeting with union representatives on the same day, at which he advised them of and discussed the contents of the telegram. The union representatives agreed that if the plaintiff would comply with the authorization contained in that telegram, the picket lines which were still at the entrances to the plant would be removed and the employees required by the plaintiff would be permitted to enter the plant. The plaintiff agreed to act in accordance with the authorization. As a result of this meeting, the strike was settled. The picket lines were removed on November 26, 1945. Beginning November 27, 1945, employees in reduced numbers returned to finish supplies which were in the process of manufacture on November 21, 1945. Such supplies in process were completed in January 1946. There was no production of material commenced after November 21, 1945. Employees needed to place the plant in standby condition returned to work on November 27,1945. Beginning November 27, 1945, all needed employees were back at work on the basis of a six-day week. Employees not then needed were terminated by direction of the Government. The plant was placed in standby condition. Because of the telegraphic notice from the Government dated November 21, 1945, the employment of certain employees on the payroll on November 14, 1945, was terminated because there was not enough work thereafter to warrant the continued employment of all such employees.

34. On November 21, 1945, the acting area engineer stationed at the Garfield plant and a representative of the contracting officer wrote the plaintiff’s representative at the Garfield plant a letter reading as follows:

This office has been informed that the following quoted telegram has been sent today by the Area Engineer, New York Area, to Mr. Don S. Devor, Vice-President of Houdaille-Hershey Corporation.
“Under provisions of Contract W-7405-Eng-149, it is desired that you terminate production operations at the Garfield plant and place equipment in permanent standby condition. You will take all necessary steps to protect government property and will be reimbursed for this cost in accordance with the provisions of the Contract.
Lt. Col. James C. Stowers.”
In accordance with the above it is requested that all unaccomplished Purchase Orders and Subcontracts be cancelled effective 21 November 1945, with the following exceptions:
For Warehouse Facilities — Subcontract No. 9 and 29.
Laundry Service (First Aid) — Subcontract No. 12.
Boiler Inspection — Subcontract No. 27.
Parking Facilities — Subcontract No. 35.
Catering (Cafeteria) — Subcontract No. 22.
Coal (Boiler House) — Purchase Order No. P-10405.
Standby Storage (Product) — Subcontract No. 53.
The above exceptions are to be cancelled as soon as is practicable.
No further obligations will be incurred after 21 November 1945 except for the protection of government interests, disposition of government property and terminal administrative expense.
Approval shall be furnished by delegated personnel of the Contracts and Claims Department of the Prime Contractor for incurring expenses after date of 21 November 1945 for which reimbursement will be claimed from the government.

35. On November 27,1945, the area engineer and contracting officer wrote the plaintiff at Detroit, Michigan, a letter reading in part as follows:

Confirming our telegram to you of 21 November 1945, all work under Contract No. W-7405 eng-149 will cease except such as is necessary for placing the equipment in standby condition so that it may be utilized again as required by the Government.
It is understood that the cessation of production under the above listed contract was effected 21 November 1945. You will immediately take all steps necessary to close unused building openings against the elements. The equipment located outside the building should be moved inside insofar as possible and that equipment that is to remain outside should be protected from the elements. All unused water and steam lines that are subject to freezing should be completely drained.
You are requested to furnish this office a complete inventory of all material in process, indicating its stage of completion. You are further requested to furnish this office a listing of your inventory of operating supplies.
You will terminate all outstanding subcontracts except such as may be necessary for the proper protection of the Government plants and placing m standby condition all Government equipment. You will furnish this office with a list of any patents or patentable processes which may have been discovered in the course of this work according to provisions of Article XY of the contract.
You will be reimbursed for the costs of the above work in accordance with the provisions of Article IX of the contract, except that you will receive no fee for the work done subsequent to the 21st day of November 1945. Adjustment of fixed-fee will be subject to negotiations. $ $ $ $ *

36. On November 30, the plaintiff sent a telegram from Detroit, Michigan, to the area engineer and contracting officer in New York, reading as follows:

Receipt acknowledged of your telegram of November 21 and your letter of November 27, 1945, regarding termination of production operations at Garfield plant under Contract W-7405-Eng-149. Essential that you advise us immediately as to article of contract under which above notice is given. In meantime action is being taken in accordance with your instructions.

On December 1,1945, the contracting officer replied to the plaintiff’s telegram of November 30, 1945, by one reading as follows:

Reurtel action is being taken under Article Thirty Four of Contract W-7405-Eng-149.

37. The termination of operations at the Garfield plant was not related in any way to the fault of the plaintiff. In other words, there was no default in performance under Contract 149 by the plaintiff on November 21, 1945, or at any other time.

38. On December 26, 1945, the plaintiff sent the following letter to the contracting officer:

The above contract [Contract W-7405-Eng-149] was terminated by your telegram effective November 21, 1945, and, according to your wire of November 30,1945 termination was being effected under Article 34.
It is our opinion that the extent of the termination makes provision of Article 4, Section f, applicable in this instance, and that the balance of the fees under this contract for the months of December 1945, January and February 1946, amounting to $105,000.00, are due this corporation.
In view of the fact that there exists a difference of opinion as to the applicable article effecting this termination and, consequently, the amount of the fee to be paid on account of termination, it is the disposition of our corporation to cooperate with you in this respect.
The fee which we are willing to accept for operating the plant for the remaining three months of the contract amounts to $75,000.00 total, or
$25,000.00 for December 1945
$25,000.00 for January 1946
$25,000.00 for February 1946
We estimate the cost of putting the plant in standby condition will amount to $700,000.00, and we estimate that the cost of terminating existing contracts will amount to $2,000,000.00. These figures are exclusive of the cost of administration pertaining to the above.
In addition to the above we will be carrying full responsibility in the matter of terminations of contracts, historical reports, final reports, disposition of documents, disposition of surplus property, settlements, etc., the cost of which, of course, is to be borne by the Government in accordance with the terms of the contract.
It is our opinion that it will require approximately one year subsequent to February 28, 1946 to effect the complete termination of this contract and the fee which will be paid to the company during that period will be negotiated during the month of February, 1946.
I also wish to confirm to you the information which I gave you on my last visit relative to the operation of the plant in standby condition. It is our express wish that we be relieved of any further operations in connection with the Garfield Division, effective 28 February 1946.
I also wish to confirm to you, in accordance with a survey of the property which is now being prepared, the sales price of $91,000.00 for the land on which this plant is located.

39. On November 21, 1945, when the telegram from the contracting officer was received by the nlaintifL the plaintiff had not produced all of the materials and supplies called for by Contract 149, as amended by Supplemental Agreement No. 4, nor were the total quantities called for thereafter produced. Following receipt of that telegram from the contracting officer, the plaintiff proceeded immediately to terminate all outstanding formal subcontracts and purchase orders under contract 149 with the exception of eight which were continued in effect for varying lengths of time, but none beyond May 31, 1946; prepared and submitted final patent clearance reports, prepared records and reports with respect to inventories, storage and disposition of classified records; arranged for sale of Government-owned surplus and excess material; arranged for the disposition of personal property belonging to the Government; and placed the plant in standby condition. The terminated formal subcontracts numbered approximately 35 or 40, and the terminated purchase orders for materials and supplies numbered between 300 and 350. The plaintiff proceeded to settle claims under such terminated subcontracts and purchase orders. Certain quantities of material were in the process of manufacture and in various stages of completion on November 21, 1945. No new production of material was started after November 21,1945.

40. On and prior to November 21,1945, when the telegram from the contracting officer was received by the plaintiff, the defendant had on hand more of the completed material and supplies being produced at the Garfield plant than was required for the then current processing operations at the Oak Ridge plant. The planned or estimated requirements for the material being produced at the Garfield plant proved to be greater than the Government’s actual requirements. This resulted in part from the fact that the material produced and delivered had a much longer period of usefulness in actual operations at Oak Ridge than had been anticipated when the planned requirements were fixed. This combination of circumstances resulted in the stockpiling of such material when completed, both at Oak Ridge and at the Garfield plant, on and prior to November 21,1945. Sometime prior to November 21,1945, but after production had started at the Garfield plant, research scientists at Columbia University had undertaken for the defendant and were in the course of perfecting an improved process for making an improved product, designed to better serve the purpose in the Oak Ridge manufacturing process than the product then being produced at the Garfield plant. The quantity of completed material produced at the Garfield plant and on hand at Oak Ridge on November 21, 1945, was considered by the Government on that date to be sufficient to satisfy the Oak Ridge requirements until such time as the new and improved material could be produced.

The termination of production operations on and after November 21, 1945, did in fact serve the convenience of the Government. The Government did not enter into a contract with any other contractor to produce that quantity of material which the plaintiff failed to produce because of the telegram from the contracting officer dated November 21, 1945.

41. On December 29,1945, following the exchange of telegrams and letters which began on November 21, 1945, the plaintiff, by an authorized officer, and defendant, by a contracting officer, entered into Supplemental Agreement No. 5 to Contract 149 which, among other things, reduced the estimated cost of the work under title II, as stated in article II-B, as amended, from $23,868,806 to $23,331,383.50 and reduced the amount of the fixed fee provided for in article II-C, paragraph 2, as amended, from $1,120,000 to $1,090,-000. This Supplement No. 5 provides that the net decrease in the fixed fee in the amount of $30,000 should be distributed over the months of December 1945, January and February 1946, so that the fixed fee payable in each of those months should be the sum of $25,000 rather than the sum of $35,000, as theretofore provided. This reduction in the fixed fee was the result of the contracting officer’s letter dated November 27, 1945, which stated, “adjustment of fixed fee will be subject to negotiations”, and plaintiff’s reply dated December 26,1945. This Supplement No. 5 also provides for an increase in the estimated cost of the work under title I as stated in article I-B, as amended, from $10,734,844.50 to $11,434,644.50, an increase of $700,000. This Supplement No. 5 further provides in pertinent part as follows:

Whereas, It is found advantageous and in the best interests of the United States to further modify the said contract for the following reasons:
(a) To terminate production activities under the contract as of 21 November 1945.
(b) To allow for the Contractor to place the plant in a stand-by condition and protect the Government-owned equipment and property against the elements so that the plant can be easily maintained for a two year period of time.
$ $ $ * #
1. Article I-A — Statement of the Work, as amended, is hereby modified by adding the following paragraph at the end thereof:
“The Contractor shall protect Government-owned equipment and plant from excessive deterioration brought on by exposure to the elements, and prepare the plant so that it can be easily maintained by minimum forces for a period of two years, in accordance with plan approved by Contracting Officer on 28 December, 1945.” * $ $ ‡ *
3. Article II-A Statement of the Work
The following paragraph shall be added to this Article:
“It is recognized that due to this termination the materials herein specified have not been completed but that as of the date of termination there are materials in various stages of production. The Contractor shall, to the best of his ability, reclaim these materials and process them in an effort to produce as nearly as possible the quantity of finished materials herein specified.”

Prior to December 29, 1945, there was no provision in Contract 149 or any of the supplements thereto requiring the plaintiff to place the plant and equipment in standby condition.

42. On February 6, 1946, the parties entered into Supplement No. 6 of Contract 149 in the following terms:

This supplemental agreement, entered into this 6th day of February 1946, by and between the United States oe America, hereinafter called the Government, represented by the Contracting Officer executing this agreement, and Houdaille-Hersi-iet Corporation, hereinafter called the Contractor, Witnesseth that :
Whereas, on the 21st day of January, 1941, the parties hereto entered into Contract No. W — ‘7405 eng-149 for the procurement, design of equipment, design of buildings, and supply of Product FM; and
Whereas, manufacturing operations ceased as of the 21st day of November 1945; and
Whereas, it was necessary for the Contractor to continue to supervise the maintenance of the buildings and the disposition of personal property owned by the Government and the restoration of parts of the property which were under subcontract; and
Whereas, the Contractor needs additional time to settle terminated Purchase Orders and prepare final reports on patent clearances to make the necessary inventory of classified records and documents; and
Whereas, the contract period would end on February 28,1946, and the contractor does not have sufficient time to complete all the records and reports required.
Now, therefore, said contract as previously modified, is hereby further modified in the following particulars but no others:
1. The period of time under this contract for the completion of the following:
(a) Settlement of all terminated Purchase Orders.
(b) Preparation and submission of final report for patent clearances.
(c) Inventory, storage and disposition of classified records and reports.
(d) Sale of Government owned surplus and excess material.
(e) Plant standby maintenance.
(f) Restoration of trailer camps and parking lot.
(g) Disposition of personal property belonging to the Government.
(h) Return of the Contractor’s equipment.
is hereby extended to and including the 31st day of May, 1946.
2. That during the period as indicated in the preceding paragraph, the contractor would be reimbursed for all costs in accordance with the provisions of the contract, but the contractor will receive no fee for any work performed by it during such period.

43. Certain of the former employees of the plaintiff at the Garfield Division whose employment was terminated effective November 21, 1945, filed claims for benefits under the Illinois Unemployment Compensation Act. Hearings were held on such claims by a deputy of the Department of Labor of the State of Illinois extending over several months. In the month of March 1946, the deputy rendered a written Labor Dispute Decision in which he determined:

* * * that all production and maintenance workers in employment with the Garfield Division of the Hou-daille-Hershey Corporation, 800 E. Kenwood Street, Decatur, Illinois, up to November 14,1945, are ineligible for benefits from November 14, 1945 to November 20, 1945, both dates inclusive, and for the week or weeks in which any part of such period occurred. This disqualification is imposed under the provisions of Section 7 (d) of the Illinois Unemployment Compensation Act.

Section 7 (d) of the Illinois Unemployment Compensation Act is as follows:

(d) For any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed, provided, that this subsection shall not apply if it is shown that (1) He is not participating m or financing or directly interested in the labor dispute which caused the stoppage of work and (2) He does not belong to a grade or class of workers of which immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute ; provided, that if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment or other premises.

The deputy determined that former employee-claimants were eligible for benefits under the Illinois Unemployment Compensation Act for the period on and after November 21, 1945, stating as the reason for such determination that:

A résumé of the facts, however, shows that a stoppage of work “which existed because of a labor dispute” did not continue at the company, on and after November 21, 1945. On the latter date, the company received notice of the cancellation of all its production work, and also instructions to cease all production operations and place its plant and production facilities in a “stand-by” condition. The facts further show that the company began laying off its employees effective November 21, 1945; and on and after that date was concerned merely with retaining a small number of employees to convert its plant and facilities to a “stand-by” or maintenance basis. It is the conclusion of the Deputy that on and after November 21, 1945 the co-existence and causality between the stoppage of work and the labor dispute ceased and the unemployment of production and maintenance workers on and after that date was due to a shut-down of production operations rather than to a stoppage of work which “existed because of a labor dispute.”
$ $ $ $ $

Ninety individual claimants who had been determined to be ineligible for benefits from November 14,1945, to November 20, 1945, both dates inclusive, and the plaintiff with respect to the determination allowing benefits on and after November 21, 1945, appealed to the Director of Labor of the State of Illinois. A hearing date for the appeals was set for June 26, 1946, in Decatur, Illinois. The plaintiff received notice of and had a representative present at the hearings on the appeals before a representative of the Director of Labor. Plaintiff’s representative opposed the payment of benefits to any of such claimants. On October 28,1946, the representative of the Director of Labor issued a report in which he recommended that the prior determination of the deputy be affirmed, with one inconsequential exception, and the Director of Labor affirmed the deputy’s determination.

44. Section 9 of the Atomic Energy Act of 1946 (60 Stat. 765; 42 U. S. C. 1809) provides in part as follows:

Sec. 9. (a) The President shall direct the transfer to the Commission of all interest owned by the United States or any Government agency in the following property:
(1) All fissionable material; all atomic weapons and parts thereof; all facilities, equipment, and materials for the processing, production, or utilization of fissionable material or atomic energy; all processes and technical information of any kind, and the source thereof (including data, drawings, specifications? patents, patent applications, and other sources (relating to the processing, production, or utilization of fissionable material or atomic energy; and all contracts, agreements, leases, patents, applications for patents, inventions and discoveries (whether patented or unpatented), and other rights of any kind concerning any such items;
(2) All facilities, equipment, and materials, devoted primarily to atomic energy research and development; and
(3) Such other property owned by or in the custody or control of the Manhattan Engineer District or other Government agencies as the President may determine.
* * * * *

On December 31, 1946, the President issued Executive Order 9816, providing in part as follows:

By virtue of the authority vested in me by the Constitution and the statutes, including the Atomic Energy Act of 1946, and as President of the United States and Commander in Chief of the Army and the Navy, it is hereby ordered and directed as follows:
1. There are transferred to the Atomic Energy Commission all interests owned by the United States or any Government agency in the following property:
(a) All fissionable material; all atomic weapons and parts thereof; all facilities, equipment, and materials foi the processing, production, or utilization of fissionable material or atomic energy; all processes and technical information of any kind, and the source thereof (including data, drawings, specifications, patents, patent applications, and other sources) relating to the processing, production, or utilization of fissionable material or atomic energy; and all contracts, agreements, leases, patents, applications for patents, inventions and discoveries (whether patented or unpatented), and other rights of any kind concerning any such items.
(b) All facilities, equipment, and materials, devoted primarily to atomic energy research and development.
2. There also are transferred to the Atomic Energy Commission all property, real or personal, tangible or intangible, including records, owned by or in the possession, custody or control of the Manhattan Engineer District, War Department, in addition to the property described in paragraph 1 above. * * *

45. From the date of Executive Order 9816, the Oak Eidge Operations Office of the Atomic Energy Commission has had the authority and the responsibility for administration of Contract 149, as amended and supplemented, and settlement and adjustment of all claims thereunder including termination claims. Thereafter all transactions between the plaintiff and the Atomic Energy Commission with respect to Contract 149 were handled through the offices of the Atomic Energy Commission at Oak Eidge, Tennessee, including payment of vouchers covering reimbursable costs, the return of classified records and documents by the plaintiff, release of the plaintiff as contractor from responsibility and accountability for Government-owned property under the provisions of article XIV on February 18,1947, and notice to the plaintiff of patent clearance dated November 16, 1948.

In the case of the inactive Manhattan Engineer District contracts transferred to the Atomic Energy Commission, pursuant to section 9 of the Atomic Energy Commission Act of 1946 and Executive Order 9816, there was no specially designated contracting officer assigned to such contracts or any of them, including Contract 149. There were, however, certain specially designated officials of the Atomic Energy Commission at Oak Eidge, Tennessee, who had delegations of authority comparable to that of a contracting officer in the military branches of the Government as to all such transferred inactive Manhattan Engineer District contracts, including Contract 149, which delegations of authority constituted them contracting officers with sufficiently broad powers to permit execution of contracts, supplements to contracts, and settlement of contract claims.

John E. Moore, Chairman of the Contract Board, and C. Yanden Bulck, Assistant Manager of the Atomic Energy Commission at Oak Eidge, Tennessee, were two such specially designated officials having the authority of a contracting officer, each having a delegation of authority with respect to claims under Contract 149 and other contracts up to and including the sum of $500,000. S. E. Sapirie, Manager of the Atomic Energy Commission at Oak Eidge, Tennessee, was such a specially designated official having the authority of a contracting officer and a delegation of authority with respect to claims under Contract 149 and other contracts up to and including the sum of $5,000,000.

Contract 149, as amended, does not contain a provision defining the term “contracting officer.”

■ 46. Between September 1949 and January 1950, the plaintiff had returned to the Atomic Energy Commission its copy of Contract 149 which at that time was still classified “secret.” It had not then been seen by the plaintiff’s chief accounting officer who was, however, generally familiar with Government cost-plus-fixed-fee contracts.

47. The last payment to the plaintiff under the contract was made by the defendant on or about May 20,1947, except for an item of $83 for demurrage charges which was paid August 25,1947. There is no evidence of any payment made to the plaintiff or offered by the defendant pursuant to Contract 149 after that date.

48. Frank C. Hungerford, chief of plaintiff’s contract and claims division for the Garfield Division at Decatur, Illinois, had terminated and settled on behalf of the plaintiff all subcontracts and purchase orders, which was the last work under Contract 149, by May 31,1946. He had been a civilian engineer with the United States Corps of Engineers prior to January 1944, when he obtained a leave of absence from the Corps of Engineers to enter the plaintiff’s employ.

On June 1,1946, Hungerford returned to civilian employment with the Corps of Engineers as the resident engineer at the Garfield plant. By January 1947, the Atomic Energy Commission had cognizance of the Garfield plant, and Hun-gerford became a civilian employee of that Commission.

49. In January 1950, Hungerford, who was still stationed at Decatur as an employee of the Atomic Energy Commission, received copies of forms of release with instructions to take them to plaintiff’s offices at Detroit for execution by plaintiff. He arrived at Detroit on January 23, 1950, with an assistant, and after first addressing himself to some files which were in plaintiff’s possession requiring more than a full day to inventory and pack for shipment to Oak Ridge, Tennessee, presented the forms of release for both Contract 55 and Contract 149 to the plaintiff’s officers for execution by them. There was also handed to such officers a paper dated January 11,1950, entitled “Final Acceptance”, for each contract referred to above.

Plaintiff’s attorney, who is counsel of record in this case, was present, and though he counseled against execution of the forms of release, one for each contract was signed by the plaintiff’s vice president.

The paper entitled “Final Acceptance” is quoted in full below:

Final Acceptance
Contract No.: W-7405-eng-149.
Contractor: Houdaille-Hershey Corporation.
This is to certify that all work required under Contract No. W-7405-eng-149, as amended, has been completed; that the work has been inspected by me or my duly authorized assistants and has been found to comply with the terms and conditions of the purchase instrument and the specifications governing same. Therefore, all work under the contract is accepted on behalf of the United States Government on this 11th day of January, 1950.
[Signed] E. W. Cook,
E. W. Cook, Contracting Officer.

The paper entitled “Final Acceptance” as to Contract 55 was identical except as to the contract number.

The paper entitled “Eelease” is quoted in full, except as to signatures, as follows:

Eelease
The work under Contract No. W-7405-eng-149 dated June 10,1943, between the United States of America and the undersigned contractor, having been completed and finally acepted, the United States of America, its officers and agents, and each of them, are hereby released from all claims and demands whatsoever arising under and by virtue of said contract, except as follows:
(a) Claims in stated or estimated amounts — None.
(b) Any and all claims arising out of the performance of said contract based upon the responsibility of the undersigned Contractor to third parties, not known at the time of executing this release.
Executed this 25th day of January, 1950.

The paper entitled “Release” as to Contract 55 was identical except as to contract number.

Both papers entitled “Release” were executed under seal on January 25,1950. No payment was made at that time by the defendant, nor was anything of value given over by the defendant at the time the release forms were executed.

The paper forms entitled “Final Acceptance” were not mentioned by Mr. Hungerford on January 25, 1950, and they were not delivered to plaintiff until after the meeting with Mr. Hungerford on January 25,1950.

The plaintiff and defendant had the common intent and understanding that all unknown claims of the plaintiff of any nature if reimbursement was provided for in Contract 149 were excepted from the provisions of the purported release.

50. In the spring of 1951, the plaintiff was engaged in negotiation of a cost-plus-fixed-fee contract with officials of another department of the Government. In considering contractual provisions for inclusion in that contract, it came to the attention of officers of the plaintiff that in certain other cases where reimbursement under Government cost-plus-fixed-fee contracts had been sought for the amount of unemployment compensation contributions resulting from the employer’s experience under such contracts, such reimbursement had been allowed.

Since it then had no copy of Contract 149, the plaintiff by letter in April 1951, requested the Atomic Energy Commission to furnish it with a copy. This was done on April 10, 1951. '

51. Thereafter, the plaintiff commenced the preparation of its claim. On October 23, 1951, plaintiff’s counsel sent the following letter to the Atomic Energy Commission at Oak Ridge:

Will you please furnish us with the name of the contracting officer or the contracting agency to which claims arising under the above contract should be presented.
Some time after the execution of this contract, responsibility for the administration thereof was apparently taken over by the Atomic Energy Commission from the War Department, which transfer creates some doubt in our minds as to the proper procedure for presenting claims.

Mr. John R. Moore, Assistant to Assistant Manager, Oak Ridge Operations of the Commission, replied by letter of October 26,1951, as follows:

This will acknowledge your letter of October 23rd requesting the name of the contracting officer or agency to which claims arising under the above contract should be presented.
Responsibility for the administration of this contract now rests with the Atomic Energy Commission and any claims or related questions thereunder should be addressed to the Manager, United States Atomic Energy Commission, Oak Ridge, Tennessee.

52. The plaintiff, on May 27, 1952, wrote a letter to the Manager, Oak Ridge Operations, reading in part as follows:

We would like to request the opportunity of conferring with the proper representatives of the Atomic Energy Commission at Oak Ridge for the purpose of discussing a claim of Houdaille-Hershey Corporation, as Contractor under Contract No. W 7405 ENG 149. Operations under that contract were performed by Houdaille-Hershey Corporation, Garfield Division, during World War II in a Government-owned plant at Decatur, Illinois.
The claim involved is for reimbursement for excess unemployment compensation taxes paid by the Contractor to the state of Illinois due to operations under the above contract.

53. As a result of the letter quoted in part above, a conference was arranged at Oak Ridge, Tennessee, between the plaintiff’s representatives and representatives of the Atomic Energy Commission. Plaintiff’s counsel led the discussion for the plaintiff, and Mr. John R. Moore, who was then Director of the Contract Division at Oak Ridge, was the spokesman for the' Commission. The conference was held June 12 and 13, 1952. The nature and basis of plaintiff’s claim, generally, were discussed, and plaintiff’s representatives were told to submit any claim which the plaintiff might have in written form.

54. On August 4,1952, the plaintiff mailed to the Manager, Oak Ridge Operations of the Atomic Energy Commission, a final termination settlement proposal under Contract 149, the effective termination date of which was stated to be November 21,1945. The claim was stated under two items:

1. Extraordinary operating costs totaling $389,320.33; and

2. Interest provided by section 6 (f) of the Contract Settlement Act of 1944.

Under item 1, there appeared a separate paragraph as to each of the years 1947, 1948, 1949, and 1950, for excess unemployment compensation taxes which the contractor was required to and did pay to the State of Illinois in connection with the commercial operations in that State resulting from the contractor’s operations under Contract 149 and the termination thereof.

Detailed supporting schedules showing the derivation of the claim were included.

55. The Manager, Oak Eidge Operations of the Commission, acknowledged receipt of the claim by letter of August 12,1952, as follows:

I wish to acknowledge receipt of your letter of August 4,1952, presenting your Settlement Proposal, in the net amount of $389,320.33, for reimbursement of excess unemployment compensation taxes incurred by you subsequent to cessation of operations under your Contract No. W-7405-Eng-149 with Manhattan Engineer District.
It appears that it will be necessary to make an initial determination as to whether the claim is properly for consideration as a settlement of a “termination” claim under the Contract Settlement Act of 1944, or whether it is to be considered as a claim for reimbursement under the provisions of the contract without regard to the Contract Settlement Act. I have asked the Contract Board of this office to make that initial determination and to conduct any further negotiations on this matter. You may address further communications to Mr. John E. Moore, Chairman, Contract Board, Oak Eidge Operations.
You will be given an opportunity to meet with the Contract Board in support of your claim prior to any final decision. The Contract Board will advise you if any further information is desired in support or explanation of the claim. You are, of course, free to furnish any supplemental information at any time. The Memorandum furnished in support of your claim is being filed with the claim.
You may be assured that this matter will have our prompt attention.

56. After informal discussion between staff employees at Oak Eidge, a conference was arranged there between Mr. John E. Moore and representatives of the plaintiff to begin on November 13,1952. Plaintiff’s counsel, its secretary, and its chief accounting officer were present. Mr. Moore, for the Commission, was present at the conference as also were the Director of the Financial Division, the Chief of the Audit Section, and two members of the legal staff at Oak Eidge. The position taken by the Commission through Mr. Moore, as its spokesman, was that the plaintiff should file its claim as a reimbursable item under the contract rather than as a termination proposal because the Commission staff felt that the contract had not been terminated. Mr. Moore further stated that the plaintiff’s claim would be submitted to the Comptroller General of the United States due to the large amount of the claim. He said, however, that the Oak Eidge Operations Office would, after the computations contained in the claim had been verified, recommend to the Atomic Energy Commission, Washington, D. C., that the claim be considered a reimbursable cost under the contract.

57. Following that conference, the plaintiff prepared its claim in the form of a public voucher on Standard Form 1034 with supporting computations and schedules in the total sum of $389,320.33, omitting reference to the matter of termination and omitting a claim for interest. The plaintiff’s claim in such form was sent to the Atomic Energy Commission at Oak Eidge on December 1, 1952, with a letter of transmittal stating in part as follows:

We first discussed this claim with representatives of the Commission at a meeting in Oak Eidge on June 12 and 13, 1952. While we have always been inclined to the view that this contract was terminated rather than completed, we were not sure whether the claim should be filed on the theory that the contract had been terminated or on the theory that it had been completed. Eep-resentatives of the Commission had not had an opportunity to review the contract documents and the circumstances involved in closing out the contract prior to this meeting, and for that reason were noncommittal as to the position of the Commission with respect to termination or completion of the contract. It was made clear, however, that the contractor would have to decide that question for itself.
Following this meeting the contractor prepared and filed with the Commission a termination Settlement Proposal in the amount of $389,320.33, taking the position that the contract had been terminated on November 21, 1945 and that the contractor was entitled to reimbursement of the costs claimed as a termination claim. This Settlement Proposal was mailed to the Commission on August 4,1952.
We again met with representatives of the Commission in Oak Ridge on November 13,1952, at which time we discussed the procedure for disposing of this claim. We were advised at this meeting that the Commission concurred with the contractor as to the reimbursability of the items of cost involved under the provisions of the contract, and that no dispute existed between the Commission and the contractor on that point. It was explained to the contractor, however, that the Commission did not consider the claim properly presented as a termination claim inasmuch as the Commission took the position that the contract had been completed. It was pointed out at that time that if the contractor wished to have the claim considered further that it prepare and present it to the Commission on a Form No. 1034 cost voucher.
As a result of this position of the Commission, the additional material referred to above has been prepared and filed with the Commission.
As matters stand, upon your receipt of this letter you will have in your files a Settlement Proposal presented by the contractor on the basis the contract was terminated, and also a Form No. 1034 cost voucher for the same items of cost, both in the same amounts. The contractor, obviously, has only one claim for these costs and expects payment of only the voucher or the Settlement Proposal. The contractor agrees that if and when reimbursement is made to the contractor under either the Settlement Proposal or the Form No. 1034 cost voucher, that it will withdraw the other claim and furnish the Government with a receipt in full.
Since there are at least two possible theories for presenting this claim, the contractor does not feel that it should be compelled to elect at its peril one or the other of these two theories. For this reason the contractor feels that it must present this Form No. 1034 cost voucher without prejudice to its rights under the Settlement Proposal mailed to the Commission on August 4,1952. In other words, the contractor reserves all of its rights under that Settlement Proposal, including the right to maintain the position, if it should later be required to do so, that the contract was terminated.

58. Upon receipt of the claim referred to in the preceding finding, Mr. Moore referred it to the Oak Nidge Finance Division for verification. The Finance Division, sometime prior to March 1953, conducted its examination of the supporting schedules and computations, and reported to Mr. Moore that the basic records adequately supported the figures claimed and that the claim had been properly prepared.

59. During trial of this case, the plaintiff offered in evidence additional schedules increasing the amount of its claim by $30,892.13. Such schedules were received in evidence and had been compiled as the result of the identification of approximately 200 former Garfield Division employees who had become claimants under the Illinois Compensation Act but who had not been considered in the schedules as originally submitted to the Commission by the plaintiff.

60. On March 12,1953, the Assistant Manager, Oak Nidge Operations of the Commission, sent the following letter to the plaintiff:

Nefer to your letter of December 1,1952, in connection with your claim for reimbursement for excess unemployment compensation taxes under Contract No. W-7405-Eng-149, wherein you requested a statement from the Commission that there is no dispute between the Commission and IIoudaille-Hershey Corporation as to this claim within the meaning of the so-called “Disputes” article (Article XXX) of subject contract.
In response to your request, this is to inform you of our understanding that there is no dispute within the coverage of Article XXX of the contract between the Commission and Houdaille-Hershey with regard to the claim now under consideration and referred to above. Thus, the Commission considers that the administrative procedures required by the contract to be followed in the event of a dispute are not applicable to this claim.

61. John N. Moore, Chairman of the Contract Board, and C. Vanden Bulck, Assistant Manager, each of whom was a contracting officer at Oak Nidge, participated in the preparation of a memorandum to Don S. Burrows, Controller of the Atomic Energy Commission, Washington, D. C. The memorandum, which was dated March 23, 1953, and was signed by Mr. Vanden Bulck, reads as follows:

Attached is the voucher of Houdaille-Hershey Corporation, together with supporting papers, by means of which the corporation has presented its claim for reimbursement in the amount of $389,320.33 under subject contract. For reasons hereinafter stated, and also set out in detail in the contractor’s memorandum in support of the Form 1034 cost voucher, it is our opinion, based on the advice of counsel, that the costs constituting the basis of this claim are reimbursable under the terms of the contract. However, due to the novelty of the case and the large sum involved, we are suggesting that the claim be submitted to the Comptroller General for an advance determination as to the propriety of payment.
The claim is based upon excess unemployment compensation taxes which Houdaille-Hershey was required to pay to the State of Illinois by reason of its operations under Contract No. W-7405-Eng-149 with Manhattan District for the operation of a plant at Decatur, Illinois, on a CPFF basis. Although work under the contract was completed in 1946, the taxes involved were for the years 1947,1948,1949 and 1950. Briefly, the foundation of the claim is the fact that the cessation of work at the Government-owned plant at Decatur, Illinois, operated by Houdaille-Hershey for Manhattan District, resulted in a large number of claims for unemployment benefits being asserted by employees of Houdaille-Hershey, formerly employed at the Government plant, which fact, under the Illinois law, caused an increase in the contractor’s rate of contribution for subsequent years. In other words, the amount of the claim represents the difference between the sum of the unemployment compensation taxes actually paid by the contractor for the vears in question, and the sum of the taxes it would have been required to pay had its operations been confined to its three commercial (non-governmental) plants in Illinois. (For a detailed statement concerning these factual matters, and a discussion of the Illinois Act, refer to Houdaille-Hershey’s memorandum). It is the Contractor’s contention that it would not have had to pay these additional taxes except for the adverse effect of its operations under subject contract upon its post-war corporate rate of contribution, and that such costs are reimbursable under the contract.
If these costs are reimbursable, it would seem to be under Paragraph 1 (i) of Article IX of Contract No. W-7405-Eng-149 (copy attached), which reads as follows:
“Payments from its own funds made by the Contractor under the Social Security Act and any disbursements required by State and Federal law, including sales and any use taxes, which the Contractor may be required, on account of this contract, to pay on or for any plant, equipment, processes, organization, materials, supplies or personnel; and, if approved in writing by the Contracting Officer in advance, permit and license fees and royalties on patents used, including those owned by the Contractor.”
The Contractor contends that these costs may reasonably be construed to be “disbursements required by State * * * law * * * which the Contractor * * *” has been “* * * required, on account of this contract, to pay on or for * * * personnel.”
In regard to the law on the question, what authority there is favors reimbursement. In two decisions squarely in point, the Office of Contract Settlement Appeals Board (established by the Contract Settlement Act of 1944) held in favor of reimbursability. The two cases are: Hercules Powder Company v. Army, O. C. S. Appeal Board, Proceeding No. 342, 5 C. C. F. p. 51, 724 (1950), and Certain-Teed Products Corp. v. Army, O. C. S. Appeal Board, Proceeding No. 317, 4 C. C. F. p. 51, 436 (1950).
In the Certain-Teed case, reimbursement was allowed for excess unemployment compensation taxes paid to the State of Texas for the years 1947,1948, and 1949, as the result of operations under a government CPFF contract terminated in 1945. The Texas unemployment compensation law and the contractual provision held to authorize reimbursement are similar to those involved in the Houdaille-IIershey claim. In holding that the Contractor should be reimbursed for the payment of such excess taxes, the Board considered the fact that the taxes were payable for a period subsequent to the performance of the contract, but rejected the Government’s contention that this fact distinguished the case from earlier “War Risk Amendment” cases decided in favor of the Contractor.
The holding in the Certain-Teed case was followed in the Hercules Powder Company case, cited above, the latter case arising in the State of Virginia, and involving a similar situation. The Board held that the Contractor should be reimbursed in the amount of $170,-109.42 plus interest for excess taxes paid for the years 1947,1948 and 1949. The contract had been terminated in 1945.
Both of the above cases are based upon the doctrine laid down by the Court of Claims in Federal Cartridge Corporation v. United States, 77 F. Supp. 380, 111 Ct. Cls. 372 (1948), one of the so-called “War Risk Amendment” cases. In this opinion may be found a full discussion of the meaning of a contractual provision almost identical with that already quoted from the Houdaille-Hershey contract. The Cartridge case was followed in several later decisions (see Houdaille-Hershey memorandum for citations), each of which involved, as did the Cartridge case, costs incurred during the period of performance under the contract, rather than costs incurred in subsequent years as in the Certain-Teed and Hercules cases, as well as in the present claim.
It should perhaps be noted that all the cases discussed above involved terminated contracts, as opposed to completed contracts. While our position is that the_ IIou-daille-Hershey contract was not terminated within the meaning of the Contract Settlement Act, 41 U. S. C. Secs. 101-125, inclusive, it is believed that, insofar as the merits of the claim are concerned, this difference is inconsequential.
As previously indicated, there appears to he no material difference between Houdaille-Hershey’s position and that of the Contractors involved in the Certain-Teed and Hercules cases discussed above.
Another question requiring consideration concerns the validity of a release signed by the contractor, a copy of which is included in the accompanying papers. It ap-Eears that, although the work under the contract had een completed and finally accepted in 1946, and the contractor reimbursed for all known claims, a representative of the Commission called at the contractor’s Detroit office in January, 1950, for the purpose of obtaining a release in connection with the contract. The contract did not require a release to be given, and there is no evidence that the Government gave up anything in return for the execution of the unilateral instrument. The only language in the instrument which might be construed as referring to consideration is the recital of the “work having been completed and finally accepted”. Since such completion and acceptance had occurred four years prior to the date of execution of the release, January 25, 1950, the recital may only be construed as referring to “past consideration ”, which the law of contracts treats as no consideration at all.
Therefore, in view of the general rule requiring consideration to make a valid contract (a release is considered to be a contract of a special sort), the release instrument would appear to be a nullity because of lack of consideration.
Even if consideration should be found, the exception in the release would remain as an obstacle to any claim of effectiveness. The exception reads as follows:
“b. Any and all claims arising out of the performance of said contract based upon the responsibility of the undersigned contractor to third parties, not known at the time of execution of this release * * *” (Emphasis added.)
Before determining whether the claim was “known” at the time the release was signed, it is necessary to consider the meaning of the word “claim”. The United States Supreme Court has defined a claim as “a right to demand money from the United States”. (Emphasis added.) Hobbs v. McLean, 117 U. S. 567, 575, a case construing the Federal Assignment of Claims Act. For several other decisions in which a claim is defined as a “right,” see U. S. v. Ferguson, 78 Fed. 105; Dulaney v. Scudder, 94 Fed. 10; Manning v. Leighton, 26 Atl. 260; Richmond Postal Credit Union v. Booker, 195 S. E. 653; Supera v. Moreland Sales Corporation, 82 P. 2d 963.
It may be presumed that the contractor knew at the time of execution of the release that it had been and was being required to pay the excess taxes. On the other hand, it is claimed by Houdaille-Hershey that they had no knowledge at that time of the fact that such costs might be reimbursable under the contract. In view of the fact that the Certain-Teed and Hercules cases were decided subsequent to execution of the release, this contention appears reasonable. The fact that the contractor had not previously submitted a 1034 voucher covering the claim is some additional evidence that it was unaware of any “right” to reimbursement.
In view of the distinction drawn by the courts between a “claim” (right) and its basis (in this case, the fact of payment of the excess taxes), if Houdaille-Her-shey did not in fact know of the right to reimbursement, it may properly be concluded that it did not know of the claim. Therefore, it would be a claim excepted from the operation of the release.
Our audit branch has verified the correctness of the contractor’s figures relating to taxes paid, breakdown of such taxes to be attributed to the Government contract, etc., which have been submitted in support of the voucher.
Due to the fact that at least part of this claim will be barred early this year by the statute of limitations, the expediting of an early decision by the Comptroller General is requested.
In the event this claim is determined to be proper for payment, advice is requested as to the procedure to be followed, source of funds, etc.

62. The Chairman of the Atomic Energy Commission on June 8, 1953, transmitted the claim to the Comptroller General of the United States for action upon it by that official. On July 1,1953, the Acting Comptroller General by letter to the Chairman of the Atomic Energy Commission denied the claim by decision No. B-115683 which is in evidence as Commissioner’s exhibit No. 1.

63. The decision by the Acting Comptroller General was transmitted to the plaintiff by letter of July 24, 1953.

64. On September 22, 1953, the plaintiff made a formal written demand for written findings by the Atomic Energy Commission pursuant to section 13 (a) of the Contract Settlement Act of 1944.

65. On November 13, 1953, Mr. Moore, as Director, Contract Division at Oak Ridge, wrote the following letter to the plaintiff:

Please refer to your letter of September 22, 1953, re above subject, which was accompanied by your formal written demand for findings by the Commission pursuant to the provisions of the Contract Settlement Act of 1944. Receipt thereof was acknowledged by our letter of September 25,1953.
With regard to the aforementioned demand for written findings by the Commission pursuant to Section 13 (a) of the Contract Settlement Act of 1944, we again reiterate our position that the contract in question was completed rather than terminated, and is thus outside the scope of that Act. Therefore, in keeping with this view which we take of the manner in which the contract was closed out, we must respectfully decline to comply with your demand for written findings.

66. The plaintiff’s petition herein was filed April IT, 1953. On December 11, 1953, the plaintiff was permitted to and did file its first amendment to its petition by which it added a count based upon its claimed entitlement to reimbursement as a termination claim pursuant to the Contract Settlement Act of 1944.

67. The plaintiff is the owner of the claim herein made, and no part thereof has been paid.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States the sum of four hundred twenty thousand, two hundred twelve dollars and forty-six cents ($420,212.46), plus interest to be computed at the rate of 2y2 percent per annum, to run from the date of payment by plaintiff of each of the individual payments which went to make up the aforementioned sum and to continue to run until paid. 
      
      The complete formula used by the state of Illinois in determining the contribution rate is explained in full in finding 18.
     
      
       See footnote 2, p. 380.
     
      
       The asterisks are shown to indicate one of the deletions from the classified exhibit, made at the time of declassification of such exhibit.
     
      
       On a stipulation of settlement by the parties it was ordered on February 6, 1958, that the judgment be compromised and a new judgment was entered for plaintiff for $415,000.
     