
    THE BARRETT COMPANY v. THE UNITED STATES
    
    [No. A-107.
    Decided February 16, 1925]
    
      On the Proofs
    
    
      Contract; termination; just compensation. — Where plaintiff enters into an agreement with the Government to construct a building and equipment for it, and to manufacture an article therein for use by the Navy, the cost of construction to be the estimated cost presented to and approved by the Navy Department, the plaintiff is limited in its cost of construction to the estimates so approved, and any cost of construction incurred outside of said approved estimates is not part of just compensation upon the. termination of the contract by the Government.
    
      Same; prospective profits. — Where a contract is terminated under the power conferred upon the Secretary of the Navy in pursuance of the act of June 15, 1917, and in accordance with the terms of the contract itself, there can be no recovery of prospective profits.
    
      
      The Reporter's statement of the case;
    
      Mr. William B. King for the plaintiff. Messrs. Clarh McKercher and H. L. Stoviell, and King & King and Miller & Otis were on the briefs.
    
      Messrs. Dan Jachson and Percy M. Cox, with whom was Mr. Assistant Attorney General Robert E. Lovett, for the defendant. Mr. George E. Foster was on the brief.
    Motion for new trial overruled May 4, 1925.
    The following are the facts as found by the court:
    I. The plaintiff is a corporation duly incorporated under the laws of the State of New Jersey, with its principal business office in the city of New York, State of New York.
    II. On June 17,1918, plaintiff entered into a contract with the Paymaster General of the Navy, representing the Secretary of the Navy, to construct a plant at Frankford, Pa., for the Navy, with a capacity sufficient to produce at least 225,000 gallons per month of xylol from distillation of special solvent naphtha furnished by the Navy, provided the Navy would advance to plaintiff a sum equal to the approved estimated cost of said plant, the said plant to be an annex to the existing distillation plant and equipment of plaintiff, and to be an entirely separate unit, except as to such parts of the equipment for supplying electric power, steam, water, and light as would not be distinctly separable from the existing plant and equipment of plaintiff. The estimated cost was to be submitted to the Navy for approval prior to the execution of the contract, and was to consist of two parts: (a) “An itemized estimate to cover the cost of said separate unit plant and equipment, (b) an itemized estimate to cover the cost of such parts of the said plant and equipment needed for the supply of electric power, steam, water, and light as will not be distinctly separate from existing plant and equipment of the Barrett Co.,” one-half of the sum to be advanced to be paid at the time of the execution of the contract and the balance two months thereafter. The said plant and equipment to be ready for operation within five months from the date of the contract, and to be continued in operation until it shall have delivered 2,700,000 gallons of xylol to E. I. du Pont de Nemours & Co.
    A copy of the original contract, attached to the petition as Exhibit A, except subparagraph 5 of paragraph 16 relating to indemnity for use of patented inventions, which was stricken out before its execution, is made part of this finding by reference thereto.
    The xylol provided for in the contract was to be employed in the manufacture of trinitroxylol for use in mine barrage in the North Sea and was a new product requiring knowledge and skill in its manufacture.
    The plaintiff, as required by the contract, submitted prior to its execution itemized estimates of the cost of the plant provided for therein. The estimate of cost of the separate unit and equipment (a) was $192,547.50, and the estimated cost of the part of the plant needed for the supply of electric power, steam, water, and light to said unit, which could not be separated from the existing plant and equipment of plaintiff (b) was $60,773.32, a total of $253,321.12. The itemized estimates of the cost of said plant, $253,321.12, included and provided for the cost of overhead expenses and liability insurance.
    The estimates of the plaintiff were approved by the Navy Department and one-half of the estimated cost of the plant, $126,660.56, was advanced to plaintiff on the execution of the contract and the remainder, as provided by paragraph 6 of the contract, two months thereafter.
    III. On May 18, 1918, the Navy Department mailed the following notice to plaintiff: “ The offer of the Barrett Co. for the construction and operation of a plant for the production of metaxylol from special solvent naphtha is in general satisfactory to the Navy. Formal contract is in course of preparation containing such modifications of detail in the company’s offer as may be mutually acceptable to the interests concerned. Pending the receipt of this contract the company is authorized and directed to proceed immediately upon the construction of the plant referred to.”
    Upon receipt of the above notice the plaintiff immediately proceeded to secure material for the construction of said plant, and the separate unit for the distillation of naphtha described as Schedule A was completed about September 19. 1918, at a cost of $284,882.66, and the electric, steam, water, and light plant was about 50 per cent completed at a cost of $52,897.53, a total of $337,780.19, or a cost of $84,459.07 more than the estimates submitted by plaintiff. The cost of engineering and overhead included in the estimate of $253,321.12 was $17,229.40.
    The increased cost of construction was due to increases in the cost of labor and materials, and a change in construction from steel and brick to reinforced concrete and brick due to inability to secure steel and to certain changes in the tanks as originally proposed in order to increase the capacity. None of these changes were either directed, authorized, or approved by the Navy Department, but it does appear that the department had knowledge of the changes and made no objection thereto.
    IY. The plaintiff began the production of xylol on September 19, 1918, and from that date to November 19, 1918, produced and delivered, in accordance with the terms of said contract, 191,330 gallons.
    While work was in progress the Paymaster General of the Navy mailed a letter, dated November 18, 1918, to plaintiff, which reads:
    “Subject: Discontinuance of work under contract 38925.
    “Reference: Telephone conversation with Mr. J. W. Jayne
    November 16, 1918.
    “ Sirs : Confirming the telephone conversation referred to above, the Navy directs that the manufacture of xylol under .contract 38925 be discontinued as soon as the distillation of material in the stills of the Navy plant at the time of the telephone conversation referred to has been completed. It is further directed that the company do not maintain readiness in any way to continue work under the said contract, and that no further unnecessary expense be incurred for the account of the Navy.
    “Any unnecessary construction work remaining to be completed under the terms of contract 38925 will not be undertaken, and the fact that the Navy will receive a partly finished plant shall be considered in the final adjustment to be made with regard to the contract. The company is to use its best judgment in determining to what extent construetion work is to be stopped, and if in doubt will consult the cost inspector at 17 Battery Place.
    “ From finished xylol now oh hand at Frankford, Pa., and belonging to the Navy, the Barrett Co. is authorized to supply the immediate demands of commercial users. The disposal of such xylol to commercial firms shall be handled under the same terms as the disposal of Navy by-products under contract 38925, except that wherever possible Navy tank cars will be used in making shipments as long as such tank cars are available. As in the case of the disposal of by-products, the disposal of xylol to commercial firms shall be handled in conjunction with and subject to-the approval of the cost inspector'. No preference whatever, as between commercial user's making application for such material, shall be shown, and all shall be treated alike.
    “ It is suggested that the Barrett Co. forward the Navy as soon as convenient suggestions for adjustment of the said contract, to be considered in the event of future cancellations.”
    Thereafter the Government failed to furnish any further supplies of special solvent naphtha for distillation into xylol by plaintiff, and as a result of such failure work under said contract was terminated.
    All the power conferred on the President by the act of March 4, 1917, 39 Stat. 1193, and by the section entitled “ Emergency shipping fund ” in the act of June 15, 1917, 40 Stat. 182, was delegated by him by Executive order of August 21, 1917, emergency legislation page 176, to the Secretary of the Navy, “in so far as applicable to and in furtherance of the construction of vessels for the use of the Navy and of contracts for the construction of such vessels, and the completion thereof, and all power and authority applicable to and in furtherance of the production, purchase, and requisitioning of materials for construction of vessels for the Navy and of war materials, equipment, and munitions required for the use of the Navy, and the more economical and expeditious delivery thereof. The powers herein delegated to the Secretary of the Navy may, in his discretion, be exercised directly by him, or through any other officer or officers who, acting under his direction, have authority to make contracts on behalf of the Government.”
    
      Y. From the xylol produced and delivered as required by the terms of the contract in September, October, and November, 1918, the Government paid plaintiff profits aggregating $7,195.59. The evidence shows that by-products of xylol were produced and sold by plaintiff. It fails to disclose the amount or the receipts therefrom.
    VI. By paragraph 16 of said contract the plaintiff was required to, and did, furnish a surety bond in the penal sum of $270,000 at a cost of $2,700, conditioned on the faithful performance of its contract, and was reimbursed therefor in the sum of $191.23 of the payments aforesaid, leaving the sum of $2,508.67 not reimbursed.
    VII. The contract provided (paragraph 10) : “ Fires and accidents: It is understood that the Barrett Co..now anticipates no difficulty in securing complete insurance, and that it will use its best endeavors to secure and will assume the cost of insurance against all fires and accident risks, including both life and property, in so far as insurance is obtainable in commercial companies. Should it be impossible to obtain complete protection by such insurance, it is understood that the Barrett Co. will reduce accordingly the price to be paid for xylol by the Navy.” In compliance with the above provision of the contract, the plaintiff took out fire and other insurance for the protection of said plant and paid premiums thereon in the sum of $9,810.26, of which $733.15 was the cost of premiums from October 1 to November 19, 1918. Plaintiff was reimbursed therefor in the sum of $695.18 for the payments aforesaid, leaving a balance of $9,115.08. After the termination of the contract, the sum of $5,124.13 was returned to plaintiff by insurance companies, leaving a balance of $3,990.95.
    The plaintiff in its itemized estimates for the construction of the plant, approved by the Navy and paid to plaintiff in the sum of $253,321.12, included items of liability insurance amounting to $2,211.54.
    VIII. From June 1, 1918, until the termination of said contract the plaintiff carried on certain experimental and research work in order to secure the production of the quality of xylol required by the Navy under said contract, said work costing $3,932.60. Plaintiff was reimbursed therefor in the sum of $278.75 by the payments aforesaid, leaving the sum of $3,653.85 not reimbursed.
    IX. After the termination of said contract plaintiff was obliged to handle and unload special solvent naphtha and other Government materials, to remove waste material, and to put the plant in proper condition for due preservation at a cost of $905.82. It was reimbursed therefor in the sum of $64.21 on the payments aforesaid, leaving the sum of $841.61 not reimbursed.
    X. From books and papers turned over by plaintiff to several public accountants certain results have been obtained, one that if the plaintiff had been allowed to complete the contract, and to have produced and delivered 2,700,000 gallons of xylol, instead of 191,330 gallons, it would have realized on the unproduced part, 2,508,670 gallons, a profit of $73,792.66. These calculations were made from about seven (7) fer centum of the records of production of the whole contract if it had been performed, and the result thus obtained as to the ninety-three (93) per cent unperformed was problematical and uncertain.
    XI. The contract provided in paragraph 2, among other things, that “ all by-products and residues obtained from said special solvent naphtha, excepting such as the Navy may wish to retain, shall become the property of the Barrett Co. as a part of its profit; Provided, however, that (1) The said company shall not use said by-products and residues otherwise than for disposal to third parties without the written consent of the Navy. (2) There shall be credited to the account of the Navy, within 60 days after the time of such disposal to third parties, 90 per cent of the disposal value of all such by-products and residues as become the property of the Barrett Co. in accordance with the provisions of this clause, less a charge of 1 cent per gallon for rental of containers used for shipment. (3) The Navy shall give the Barrett Co. at least 90 days’ notice in writing of its intention to retain possession of any such by-products and residues.”
    From books and papers furnished them by plaintiff, the same public accountants who made the computations for Finding X, estimated the net profits to plaintiff from byproducts from the uncompleted portion of the contract— the distillation of 2,508,670 gallons of special solvent naphtha — at $8,237.20. These estimates were based on the estimated sales of all by-products under the entire contract, less actual sales. The amount of actual sales is not stated.
    •XII. On March 26, 1919, the plaintiff presented the following claim to the Navy Department:
    CLAIM ON ACCOUNT ON NAVY CONTRACT NO. 38925
    Contract
    allowance Expended
    $192, 547. 80 $285, 711.82 Schedule A.
    60,773. 32 52, 348.15 Schedule B.
    253, 321.12 338, 0*9. 97
    253, 321.12
    84, 738. 85 A. Overexpended_
    7, 500. 00 B. Unapportioned overheads during eohstruction.
    C. Premium on bond_$2, 700. 00
    Less credit earned (191,330X.011)_ 191.33
    2, 508. 67
    4,783. 25 D. Release from 25% payment clause with credit of earned amount (2%<iX191,330 gals.)_
    E. Insurance for operating period_$4, 686.13 Less credit earned (191,330X.0036334)__ 695.18
    3, 990. 05
    575. 00 P. Unloading cars and handling material, and maintenance of plant after suspension_
    15, 000. 00 G. Compensation for use of organization and knowledge in design of plant, experimental work done, and services of administrative offices not included in plant overheads-
    
       109, 529. 32
    By direction of the Paymaster General of the Navy the following letter, dated May 9, 1919, was mailed to and received by plaintiff:
    “Subject: Contract 38925, regarding company’s claim by reason of cancellation.
    “Reference: (a) Your letter March 26,1919; (b) your letter April 24,1919; (c) your letter May 3,1919.
    “ Síes : Careful consideration has been given to the claim of your company as submitted to this office with your letter reference (a) and it is noted, as per reference (c), in connection with the settlement of this contract that you definitely refuse to make the Navy any offer for the plant.
    
      “ It is believed proper to. allow the following items:
    Item C. $2, 508.67
    Item D. 4,783.25
    Item E. 3, 990.05
    Item E. 575.00
    “ With respect to item (A), however, in the sum of $84,-T38.85, this sum can not be allowed, as it is not believed the same or any part thereof is properly chargeable to the Navy.
    “From the record the facts show that the plant was to be constructed by the Barrett Co. for an amount which should represent estimates made by the Barrett Co. and approved by the Navy. The arrangement was covered by the contract, which stated the approved estimate to be in the sum of $253,321.12, which sum was thereupon immediately advanced by the Navy to the Barrett Co. This sum represented the amount for which the Barrett Co. was obligated to build the xylol plant. The very scheme of the arrangement was such that the Navy was not concerned with whether the plant cost more or less to construct than the approved estimated price paid, so long as the requirements agreed upon as items of the estimate were included in the. construction and equipment work. The parties dealt at arms length and the bargain was closed with respect to the plant at the figure named, the chances being assumed by both the Navy and the Barrett Co. as to which of the parties got the better end of the bargain, which no one could determine definitely until all work was entirely completed.
    “ The Barrett Co. contends that one of the specific causes for the increased work is due to the fact that the company was compelled to use reinforced concrete rather than steel and that, also, the tanks which were mentioned in the cost estimates were required to 'be changed in order to handle the production work contemplated. However this may be, it seems that the agreement was definite to build a certain xylol plant and the difficulties of construction or errors in judgment are in no way attributable to the Navy, and, in fact, by the very nature of the agreement was a matter in which the worry and concern over difficulties in this regard was up to the company.
    “Item (B) which represents unappropriated overheads during the construction is not allowable for the same reasons as assigned to item (A).
    “ With respect to item (G), which is not allowed, it would seem that the use of the company’s organization, knowledge, experimental work, and services in designing the plant, etc., was in the contemplation of the parties at tíjie time the question of building the plant on certain approved estimates was being considered and that these items were properly-included in such estimates.
    “In answer to the company’s contention that the Navy received all of the benefits from the services included under this item (G), it is to be remembered that the company must have received benefits in the way of development, experiment, and also some actual monetary returns on the xylol produced prior to the discontinuance of the work and accepted under the contract.
    “The Navy feels from a fair interpretation of the contract between itself and the Barrett Co., the question of plant construction and installation of equipment was and is a matter separable from the question of deliveries of xylol and the Navy’s discontinuance of the acceptance of such deliveries. With this view in mind, it is not believed proper to make allowance for any items as contained in the company’s claim other than those stipulated in the second paragraph of this letter.
    . “Following this line of thought and in view of the fact that the company definitely refuses to make the agreed offer for the plant, the Navy is unable to comply with the company’s request to be released from the clause in the contract whereby the Barrett Co. guarantees to offer to the Navy a sum equal to 25 per cent of the estimated cost of the plant; and for this reason the sum of $4,788.25, item (D), which the company credited to the Navy in its statement of claim, is allowed as a credit to the company.”
    The following letter, signed by the Paymaster General of the Navy, dated March 11, 1920, was mailed to and received by the plaintiff:
    “ Subject: Contract 38925 — Barrett Co.’s claim and disposition of Navy owned property.
    “Reference: (a) Claim of the Barrett Co. under date of March 26,1919; (b) company’s letter of January 10,1920; (c) supplies and accounts’ letter, 115-19, 38925, January 14, 1920.
    “ Sirs : Report of tentative appraisal and final cost examination in connection with construction and production under contract 38925 has been received by the Bureau of Supplies and Accounts. The report of the board of appraisal shows the work of construction originally contemplated under Schedule A to have been completed, while that under Schedule B has been approximately 50 per cent completed. In accordance with this report there is due the Navy a refund of 50 per cent of the advance made to the company on account of Schedule B.
    “While the report of the cost inspector substantiates the cost reported by the company, no evidence is found to support the company’s claim for reimbursement' of costs in excess of the original estimate upon which the Navy advance was based. In fact the record of profit from production rather supports the view that the company 'was fully cognizant of the probable profit for the entire contract and increased the specifications on its own initiative and responsibility accordingly. The claim for this excess is therefore disallowed.
    “The items (b) and (g),cundistributed overhead,’are not allowed, the estimates upon which the Navy advance was based and the final cost determined being inclusive of all overhead and direct cost.
    “Item (c), ‘Premium on bond,’ is disallowed, the Comptroller of the Treasury, in decision of October 11, 1918, having held such reimbursement to contractors illegal.
    “Item (d) is properly due the Navy for amortization to be covered by final disposition of the- plant.
    “Items (e) and (f), ‘Insurance and handling charges,’ have been allowed as a charge to the Navy.
    “ The proposal submitted by the company for the purchase of the Navy share of Schedule A, at approximately $84,000, is rejected pending further proposal in regard to Schedule B and final settlement.
    “ The board of survey, appraisal, and sale for the fourth naval district at Philadelphia, Pa., has been requested to communicate with the company in regard to the final settlement and is authorized to receive such proposal as may be submitted. It is requested that correspondence on this subject be directed to that board.”
    XIII. Paragraph 9 of the contract provided :
    “The entire plant and equipment contemplated herein shall be the property of the Navy Department.
    “Immediately upon the conclusion of this contract the Barrett Co. guarantees that it will offer the Navy, for the separate unit plant contemplated under paragraph (a) of Section 1 above, 25 per cent of its original approved estimated cost; and that at the same time it will' also offer the Navy, for the portion of the plant and equipment contemplated under paragraph (b) of said Section 1, 25 per cent of its original approved estimated cost. Whether or not the Navy accepts either one or both of said offers, it is understood and agreed that the Navy shall have the right to rent for Government use only, on a fair and just basis, such real estate and plant equipment, together with such rights of way and user rights as will be necessary for the proper operation of said plant for the production of xylol or the removal of said plant from the premises of the Barrett Co., if 'its ownership is retained by the Navy and operation is not intended.”
    A supplemental contract was entered into between the plaintiff and the Acting Paymaster General on December 1, 1920, for the purchase of said plant for the sum of $115,-806.66, but the price afterwards agreed upon and paid was $110,000. The equipment for distilling, which was almost new at the date of sale, was similar in general respects to those used in a number of plants in the country for distillation of coal-tar products. The plaintiff was engaged in distillation of coal-tar products at least as late as July 7, 1922. In 1921 the purchased plant was used by plaintiff for experimental purposes.
    The supplemental contract, dated December 1, 1920, is attached to the original petition as Exhibit B and is made part of this finding by reference thereto.
    The court decided that plaintiff was entitled to recover, in part.
    
      
       Appealed.
    
    
      
       Correct amount $119,095.82.
    
   Booth, Judge,

delivered the opinion of the court:

The Navy Department during the war needed and sought to obtain larger quantities of xylol. The source of supply was limited, and while the process of extracting xylol from naphtha was not in all respects perfected, it had been successfully done and xylol sold on the market. The Barrett Co., the plaintiff herein, was engaged in this identical busi- • ness, but was not in a position to meet the demands of the department because of limited facilities and much curtailed output. The department wanted at least 225,000 gallons of xylol a month. To this end negotiations were entered upon between the plaintiff and defendant, culminating on June 17, 1918, in a contract, by the terms of which the plaintiff was to enlarge its existing plant and construct a new one sufficient in size and equipment to distill the desired quantities of xylol from naphtha, the naphtha to be furnished by the defendant. The plaintiff was to estimate the cost of such a plant and necessary equipment, and upon the approval of such an estimate the defendant agreed to advance to the plaintiff one-half the amount of the estimated cost at the time of the execution of the contract and the balance in two months thereafter. The entire construction work was to be completed and ready to distill xylol within five (5) months from the date of the agreement. The plant, as provided by the contract, in view of the payment of cost by the Government, was to become the property of the Government subject to its user and control for governmental purposes. The plaintiff agreed to offer 25 per centum of its original estimated cost for the plant when the contract expired, an offer the defendant had an option to accept or reject. The plaintiff submitted its estimated cost of plant, viz, (a) $192,547.50 as cost of the separate unit of construction and equipment, and (b) $60,773.32 as cost of the part of the plant necessary for the supply of electric power, steam, water, and light. This last item of cost was made necessary because of the additions to the existing plant in the above regard, and which obviously could not be definitely segregated from its then light, steam, etc., plant at the time in operation and sufficient in size and capacity to meet the plaintiff’s normal requirements. The above estimates, totaling $253,321.12, were approved. The money was paid in accord with the contract. It was accepted by the plaintiff and the construction program was proceeded with. The plaintiff incurred an additional expense of $84,459.53 in the course of the construction. The separate unit, i. e., the building and equipment, was completed about the middle of September, 1918, at a cost of $284,-882.66. The electric, steam, light, and water plant was near to half completion, at a cost of $52,897.63, when suspension orders were received.

The first item in suit is for the recovery of this additional expenditure. It is conceded that the case and the result is determined by the case of Russell Motor Car Co. v. United States, 261 U. S. 514. The judgment to be awarded must come within the rule as to just compensation. The right conferred upon the defendant by the act of June 15, 1917, 40 Stat. 182, was the specific power and authority to “ modify, suspend, cancel, or requisition ” any existing contract. The contract herein was terminated November 18, 1918. However, by this act we do not understand that the granted authority to terminate in any particular varied the plain provisions of the existing contract. It is true the plaintiff, because of emergency conditions, determined to go beyond its express warrant of authority and incur added expense in the construction of the desired plant, but the contract itself contemplated no such increased expense, and there were manifestly no contractual obligations imposed upon the plaintiff to do what it did do. But, says the plaintiff, except for the exercise of the right of termination, the additional expense of construction would have been amortized in the total profits received upon completion, and therefore becomes a sum indispensably necessary to make the plaintiff whole. Apparently a sufficient answer is the assumption of such risk by the plaintiff. The right to terminate under the statute was part of the contract, and an unauthorized expense incurred depended for reimbursement upon the contingency of its exercise. What the plaintiff did, over and above the limitations of its contractual obligations and rights, it did of its own free will and assumed the hazards of recouping the same out of its final profits in the event the contract proceeded to conclusion.

It is not asserted that the contract supports the plaintiff’s contention. The contention is predicated entirely upon the theory of just compensation. We have been unable to resolve the issue in plaintiff’s favor. The just compensation to which the plaintiff is entitled, under the cases heretofore considered by the court, is limited to the stipulations of the contract, which by its terms imposed obligations and reciprocal rights and privileges upon the parties to the contract. Meyer Scale & Hardware Co. v. United States, 51 C. Cls.. 26; College Point Boat Corp. v. United States, 58 C. Cls. 380; affirmed by Supreme Court, January 19,1925, 267 U. S. 12. The contract fixed the status of the parties thereunder. If one goes beyond its terms it is difficult to perceive how financial obligations to pay more than is agreed to be paid can be inferred on the single theory that the defendant in the exercise of a lawful right terminated all further proceedings under the same and is held thereafter to account for no more than just compensation. In view of the cases cited the just compensation to be awarded must be a loss lawfully resulting from a performance of the contract according to its terms, and may not embrace one occasioned by the contractor’s departure from the contract, although considered by the contractor at the time as expedient and in ‘promotion of the rapid completion of the whole contract. As a matter of fact, the plaintiff purchased the plant and equipment, paying therefor $110,000. The supplemental contract so states. No claim was made, so far as the record discloses, for this item of expense at the time of the sale, and if allowed this item would enable the plaintiff to obtain a modern distillation plant for $25,540.93, which admittedly cost the Government $253,321.12. The record exhibits the unusual state of affairs wherein a contractor, in the course of adjustment of losses due to a termination of its contract, purchases a plant from the Government, paying' therefor a very substantial sum, concluding the transaction without claim for a reduction of purchase price on account of increased expenditures. In many respects this transaction alone would be sufficient to preclude the recovery claimed for this item of loss. It was a final adjustment of losses with respect to this particular controversy. The plaintiff acquired the plant and paid the agreed purchase price, and in all ways conformed to the articles of agreement.

Finding X reflects the record on the subject of anticipated profits. The plaintiffs insist upon a judgment of sufficient proportions to cover anticipated profits. The contract provided (par. 7) that it should continue in full force and effect until 2,700,000 gallons of xylol shall have been delivered to E. I. du Pont de Nemours & Co. The contention is advanced that this is an unusual provision in an unusual contract, and is the equivalent of a guaranty that the contract shall survive until the full amount of xylol is delivered, and that granting the unquestioned right of cancellation under the statute, nevertheless this positive assurance as to time limit in the contract creates equities in favor of the plaintiff which may not be ignored in ascertaining just compensation. In other words, the measure of just compensation under the peculiar state of affairs is to include anticipated profits. The Supreme Court in the case of Russell Motor Oar Go., supra, expressly determined adversely to plaintiff’s contention. We are unable to differentiate the rule there announced from the rule applicable to the record in this case. To concede to plaintiff the contention made with respect to this item would be giving to the authorized act of cancellation the legal effect of a breach of the contract by defendant and all its attendant consequences. It would, in effect, take from the statute all it wras designed to accomplish, and virtually entail upon the court the necessity of eliminating it from the contract. Quoting from the opinion of the Supreme Court relating to a contention identical with the one now advanced, the following was said: “ It is contended further that even if the action of the Secretary of the Navy was warranted by the statute the car company was nevertheless entitled to have included as just compensation its anticipated profits. This contention confuses the measure of damages for breach of contract with the rule of just compensation for the lawful taking of property by the power of eminent domain. In fixing just compensation the court must consider the value of the contract at the time of its cancellation, not what it would have produced by way of profits for the car company if it had been fully performed.” Russell Motor Car Co. v. United States, supra. With this established rule before us, we think the contention is devoid of merit.

The plaintiff is entitled to a judgment under Findings VI, VII, VIII, and IX for $10,995.08. The defendant seemingly concedes the allowance of the above items. In any event, we believe they come within the cases decided by the Supreme Court, and to this amount the plaintiff is justly entitled.

Judgment is awarded the plaintiff for $10,995.08. It is so ordered.

Grai-iam, Judge; Hat, Judge; Downey, Judge; and Campbell, Chief Justice, concur.  