
    HOWARD INDUSTRIES, INC. v. THE UNITED STATES
    No. 48874.
    Decided September 30, 1953.
    
      
      Mr. Raoul Berger, for plaintiff. Messrs. Friedman, Zoline and Rosenfield, of counsel.
    
      Miss Mary K. Fagan, with whom was Mr. Assistant Attorney Generad "Warren E. Burger, for defendant. Mr. Donald D. Webster was on the brief.
   Howell, Judge,

delivered the opinion of the court:

This is an action instituted by plaintiff, Howard Industries, Inc., under the War Contract Hardship Claims Act, also known as the Lucas Act, for an equitable determination praying for relief from alleged losses suffered in the performance of Contract N0a(s)-1732 entered into with the Navy Department on October 24, 1942, and terminated for the convenience of the Government on July 31,1944.

On January 27,1953, three months prior to trial of plaintiff’s case, a pretrial conference was held with a Commissioner of this court, and it was agreed by the parties that the issues to be tried included the following:

(1) The amount of the net loss sustained by plaintiff on the contract sued upon;
(2) Whether the losses under the contracts in question were incurred without fault or negligence on part of the plaintiff;
(3) Whether and to what extent plaintiff has received relief under the termination agreement entered into between the parties under date of November 18, 1944;
(4) Whether plaintiff filed an adequate request for relief within the meaning of Section 3 of the Lucas Act for losses sustained under Contract 1732 ;
(5) Whether plaintiff’s failure- to submit, in accordance with Section 202 (b) and 202 (c) of Executive
Order 9786, a statement of tbe contract price, of the cost of performance, and of the profit and loss on each contract is a fatal defect in plaintiff’s claim or affects the amount of plaintiff’s claim;
(6) Whether plaintiff’s failure to make a statement in detail as to each loss claimed of the facts and circumstances which caused the loss and of the period or periods of time during which the loss occurred, in accordance with Section 202 (j) of Executive Order 9786, is a fatal defect in plaintiff’s claim or affects the recoverable amount of plaintiff’s claim;
(7) Whether the plaintiff in failing to make a statement, supported by reasonable detail, showing that the loss or losses claimed occurred through no fault or negligence on the claimant’s part, as required by Section 202 (k) of Executive Order 9786, is a fatal defect in plaintiff’s claim or affects the recoverable amount of plaintiff’s claim.

At the subsequent trial before Commissioner Cowen, plaintiff produced one witness — the accountant who had prepared an audit from plaintiff’s books and records in the summer of 1950. After introduction of the audit and the testimony of plaintiff’s accountant, plaintiff’s counsel stated that he had decided not to offer any evidence on the question of plaintiff’s fault or negligence in the performance of the contract in question, since in his opinion the burden was upon defendant to establish in the first instance that plaintiff had been guilty of fault or negligence.

Upon the close of plaintiff’s proof, defendant moved under Rule 49 (b), for a dismissal of the petition on the following grounds:

(a) that the letters and documents which plaintiff relied on as constituting written requests for relief under Contract 1732 were not sufficient within the meaning of Section 3 of the Lucas Act;
(b) that by failing to provide a statement of the contract price, the cost of performance and the profit or loss on each Government contract, and by failing to show the loss sustained on the contract on which the claim was based, plaintiff had not complied with the requirements of the Lucas Act, Executive Order 9786,. or the order of this Court prescribing the procedure to be followed in Lucas Act cases;
(c) that plaintiff, by failing to offer evidence showing that the losses claimed by it were incurred without its fault or negligence, had not met the burden imposed upon it by the Lucas Act or Executive Order 9786; and
(d) that under the settlement agreement of November 18, 1944, plaintiff was paid in full for all losses or uncompensated contract costs for which it had made written requests for relief.

After making detailed findings of fact relative to the evidence offered by plaintiff, the Commissioner recommended that defendant’s motion be granted and the petition dismissed on the ground that plaintiff had failed to discharge the burden imposed upon it in Section 3 of the Lucas Act by showing, with such reasonable accuracy as the books and records would have permitted, the amount of its net loss under the contract on which the claim was based. The Commissioner did not pass on the other grounds for dismissal urged by defendant.

Section 3 of the Lucas Act provides in part as follows:

Claims for losses shall not be considered unless filed with the department or agency concerned within six months after the date of approval of this Act, and shall be limited to losses with respect to which a written request for relief was filed with such department or agency on or before August 1J¡,, 191¡5, * * *. [Italics supplied.]

Plaintiff concedes that it had on file with a department or agency of the Government prior to August 14,1945, a request for relief with respect to only one of its several war contracts, i. e., N0a(s)-1732. Unless plaintiff has shown with reason-' able accuracy, and upon the basis of all the evidence within its possession bearing upon the matter, the amount of the loss it suffered in the performance of Contract NOa(s)-l732, the petition must be dismissed since, on the facts and the law, plaintiff would have shown no right to recover under the provisions of the Lucas Act.

It is plaintiff’s position that since this case comes before the court on defendant’s motion to dismiss under Rule 49 (b), plaintiff’s evidence and all tbe inferences fairly to be drawn from it must be considered by tliis court in the light most favorable to plaintiff. Schad v. Twentieth Century-Fox Film Corp., 136 F. 2d 991, 993. Plaintiff urges that under this rule of law, the record before the court sufficiently establishes (1) that plaintiff suffered a net loss as a result of its performance under all its war contracts with defendant, and (2) that all of such net loss has been properly segregated or allocated to Contract NOa(s)-1732. Plaintiff accordingly requests that defendant’s motion be denied and the case remanded for further hearing before the Commissioner. At the outset we must decide the duty of this court on a motion to dismiss under Rule 49 (b) of this court’s Rules.

Rule 49 (b) provides in part as follows:

* * * Promptly after the plaintiff has completed the presentation of his evidence, the defendant, without waiving its right to offer evidence in the event the motion is not granted, may move the Commissioner for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to recover. If the Commissioner is not clearly convinced that the motion should be granted, he shall overrule the motion and the defendant shall thereupon proceed with the presentation of its evidence. If the Commissioner is convinced, upon a consideration of both the facts and the law, that the motion should be granted, he shall make and file his findings of facts material to the issues raised by the motion and his recommendation for conclusions of law thereon. Thereafter all proceedings shall be the same as in a case where a Commissioner’s report is filed upon the entire evidence produced by both parties. The Court may render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence.
Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * operates as an adjudication upon the merits.

The above rule is based upon Rule 41 (b) of the Federal Rules of Civil Procedure, which reads in pertinent part as follows:

* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 (a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.

The Third Circuit Court of Appeals in the Schad case, supra, has held that on a motion under Rule 41 (b) the function of the court is the same as on a motion to direct in a jury case; that the court does not weigh the evidence but merely decides whether there is evidence which would support a judgment for the plaintiff. (This view is expressed in the Shad case relied on by plaintiff.) Several other circuits adhere to a different view, however, which appears now to represent the weight of authority, i. e., that the judge, in an action tried by the court without a jury, is the trier of the facts; that his function is not the same on a motion under Rule 41 (b) as on a motion for a directed verdict where the jury is the trier of the facts, and that the judge should weigh the evidence, draw the proper inferences therefrom, and, if he finds the evidence insufficient to make out a case for the plaintiff, render a decision for the defendant on the merits. We agree with this view. An excellent analysis of the function of the court in passing upon a motion under Rule 41 (b) is contained in the court’s opinion in United States v. United States Gypsum Co., 67 F. Supp. 397 (D. C. D. C. 1946), reversed on grounds other than those with which we are concerned herein, 333 U. S. 364. In that case the defendant had moved for dismissal of the petition under Rule 41 (b) and the Government, plaintiff therein, had contended, as does plaintiff herein, that the sole question presented to the judge by such a motion was one of law, i. e., whether the plaintiff’s evidence, and all the inferences fairly to be drawn from it, “considered in the most favorable light”, make out a prima facie case for relief. Such a contention had prevailed in the Schad case relied on by plaintiff herein, but Chief Judge Stephens, speaking for the court in the Gypsum Co. case, supra, specifically disagreed with this view, as have courts of several other circuits, and stated in part as follows:

The so-called prima facie case rule governing the action of judges in jury trials rests upon the established division of functions, in such proceedings, between jury and judge, whereby the jury tries the facts and the judge determines the law. The judge, before verdict, has no function as to the facts except in the limited sense of determining whether there is “a case for the jury.” If there is substantial proof of the elements of the plaintiff’s charge, the case must go to the jury, even if the judge, if he were the trier of the facts, would himself decide the case against the plaintiff. Putting it otherwise, a judge in a jury trial does not withdraw a case from the jury on a defendant’s motion at the end of the plaintiff’s case unless the judge can fairly say that no reasonable juryman could find for the plaintiff. [Citing cases.]
But in an action tried without a jury the judge is the trier of both the facts and the law. This fundamental distinction between jury and non-jury trials should not be ignored; and if the reason for the jury trial practice does not exist in non-jury trials, where the judge is the trier of the facts, the jury trial practice ought not to be applied but should give way in favor of a practice consistent with the actual function of the judge in non-jury cases and consistent with the spirit of the Federal Buies of Civil Procedure. Bule 1 expressly provides that the rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Therefore, a court should dispose of a case at the first opportunity which is appropriate under the rules and in accord with the rights of the parties. 'When a court sitting without a jury has heard all of the plaintiff’s evidence, it is appropriate that the court shall then determine whether or not the plaintiff has convincingly shown a right to relief. It is not reasonable to require a judge, on motion to dismiss under Bule 41 (b), to determine merely whether there is a prima facie case, such as in a jury trial should go to the jury, when there is no jury — to determine merely whether there is a prima facie case sufficient for the consideration of a trier of the facts when he is himself the trier of the facts * * * A plaintiff who has had full opportunity to put on his own case and has failed to convince the judge, as trier of the facts, of a right to relief, lias no legal right under the due process clause of the Constitution, to hear the defendant’s case, or to compel the court to hear it, merely because the plaintiff’s case is a prima facie one in the jury trial sense of the term, (pp. 417, 418.)

The court concluded that under a 41 (b) motion, it was the duty of the court to weigh the evidence in the same manner as if both sides had introduced evidence and closed, and, after drawing the proper inferences therefrom, to render a decision on the merits for the defendant if it found the evidence insufficient to make out a case for the plaintiff. See also Allred v. Sasser, 170 F. 2d 233; Defense Supplies Corp. v. Lawrence Warehouse Co., 67 F. Supp. 16, aff’d. 164 F. 2d 773, set aside on other grounds, 168 F. 2d 199.

Applying the principles laid down in the Gypsum Oo. case, supra, we shall first determine whether the record made by plaintiff is sufficient to establish with reasonable certainty and on the basis of all the available evidence, the amount of loss suffered by plaintiff in the performance of Contract NOa(s)-1732 with respect to which we shall assume, without deciding, that it had a proper request for relief pending prior to August 14,1945.

Between December 1,1940, and November 30,1944, plaintiff was engaged in work on five different government war contracts totaling more than $10,000,000 in sales, and on non-government work totaling more than $958,000 in sales. (Finding 21.) One of the government contracts was a cost-plus-a-fixed fee contract with the Army, the others were all Navy contracts. The first Navy contract was completed in 1942. (Finding 4.) The next Navy contract, No. NOa(s)-1732, was entered into in 1942 and was for NH-l airplanes (blind-flying trainers) at a unit price of $16,972.99, and separate parts to 25 percent of the dollar value of the plane. The number of planes called for was changed several times, the final total being 320 planes. In 1943 Contract NOa(s)-236 was entered into for the manufacture of 50 GH-2 (ambulance passenger cargo) planes at a unit price of $14,570.22, and separate parts to 20 percent of the dollar value of the planes. After manufacturing a number of these planes, plaintiff protested to the Navy that the unit price per plane was too low and resulted in substantial losses. On April 3, 1944, a formal fixed-price-contract, No. NOa(s)-1287, was entered into for the same type of GH-2 plane (80) at a unit price of $19,700 and separate parts to 25 percent of the dollar value of the planes. (Findings 7 and 26.)

On July 31,1944, Navy Contracts 236,1287, and 1732 were terminated for the convenience of the Government and a new contract, No. NOa(s)-4395, was negotiated in which the three terminated contracts were all consolidated. Portions from that consolidated contract are set forth in Finding 10. Pursuant to the Contract Settlement Act of 1944, plaintiff and the Government entered into a supplemental agreement on November 18, 1944, for the full payment and complete settlement of all the contractor’s rights and the Government’s obligations under the three contracts as consolidated.

The settlement agreement provided for the payment to the contractor of $4,012,827, less offsets for the balance of advances amounting as of October 3, 1944, to $3,871,395.43, or the payment of the net sum of $141,431.57, plus various other amounts in connection with the settlement of the Navy contracts.

It is plaintiff’s contention that after and notwithstanding the above settlement, it suffered an over-all net loss for which the settlement did not compensate it of $183,573.69 and that the evidence in this suit provides a reasonable basis for allocating dll of that loss to its operations under contract NOa (s)-l732 with respect to which it had on file a proper request for relief.

Plaintiff’s records were not kept so as to show the costs incurred on each of the Navy contracts nor on plaintiff’s private business. The sales journals, however, showed the amount received on sales for private account and on sales to the Government, as well as the number of planes delivered each year under each government contract.

Plaintiff’s accountant determined the approximate amount of costs applicable to private business by determining the ratio of non-government sales to total sales and prorating the total costs between the two accounts on that ratio. After making that allocation, plaintiff’s accountant next determined that the total net loss on the four Navy contracts (after allowing for amounts paid under the settlement agreement) amounted to $364,096.96. From this figure he deducted the $180,523.21 fee received by plaintiff under the Army contract and arrived at the sum of $183,573.69 as the net loss incurred during the four-year period of performance of the four Navy contracts.

Plaintiff did not attempt to show the number of planes delivered under each contract although such information was available from the sales journals. Frequent changes in specifications and unit prices during 1943 and 1944 would have made it difficult for plaintiff to ascertain the exact prices received for the planes delivered under each of the contracts, but the original unit prices shown in the three contracts were readily available.

The usual books and records for a company such as plaintiff’s were complete and in existence for the period involved in this suit. In addition to ledgers and journals, there were a number of file boxes containing the original records concerning work under these contracts, including checks, purchase invoices, sales invoices, etc. These boxes were arranged in order and there was a catalog of the papers contained in the different file boxes. Plaintiff’s accountant testified that he was able to find original records to verify entries in ledgers or journals in each instance where he decided to make a check.

In contending that the record shows that all of the net loss in question was allocable to contract N0a(s)-1732, plaintiff has had to indulge in a number of asumptions entirely unsupported by any evidence and which, we think, were susceptible of actual proof. Plaintiff says that it is reasonable to conclude on the record that it made money on contract 1287, and lost on contracts 236 and 1732. Plaintiff has not proved whether or not it made or lost money on contract 1287. Furthermore, on the record before us, it would be as reasonable to conclude that most or all of the net loss finally resulting from its war contracts was attributable to contract No. 236 as to No. 1732.

If no records were in existence from which a reasonably accurate basis for an allocation of loss could be shown, we would be inclined to look with more favor upon reasonable assumptions if justified by all the facts and circumstances with respect to the matter of allocation of losses. Here, however, plaintiff admits that it has reasonably complete and available records and plaintiff has neither produced nor used those records in the proof of its case. The statute places upon plaintiff the burden of proving the amount of the loss incurred on the contract which is the basis for its claim, and where a problem of allocation is involved, plaintiff must prove by means of the best evidence available a sound basis for the allocation contended for. This the plaintiff has not done and accordingly the record contains no evidence from which the court can even approximate the amount of plaintiff’s loss, if any, under the contract on which the claim is based. Any attempt to do so on the basis of the record in the case would be pure speculation and a guess. Since this is basic to plaintiff’s right to recover under the Lucas Act, it appears that upon the facts and the law, plaintiff has shown no right to recover and its petition must be dismissed under Eule 49 (b).

In view of our holding that plaintiff has failed to establish with any reasonable certainty the amount, if any, of the loss incurred on the contract made the basis of its claim, it is not necessary for us to discuss in detail the defendant’s other grounds for dismissal of plaintiff’s suit. However, we wish to discuss briefly plaintiff’s contentions with respect to the burden of proving the contractor’s freedom from fault and negligence under the Lucas Act. The Act provides that war contractors may recover for losses incurred “without fault or negligence on their part in the performance of war contracts or subcontracts.” From the plain language of the act, it appears to us to be clear that the burden of proof in the first instance, and the risk of nonpersuasion were on the plaintiff. It is true, as plaintiff points out, that such proof might well be very perfunctory until the defendant had produced its evidence of plaintiff’s negligence. It is also true that a 'prima facie case of lack of fault or negligence may be held to be established, if, on the completed record, it does not appear that plaintiff was negligent. McCracken v. Curwensville Borough, 309 Pa. 98; 163 Atl. 217, 222. In the instant case, however, plaintiff has not been content to let the record speak on tbe matter of fault or negligence. Plaintiff alleged in its petition freedom from fault or negligence. In pretrial proceedings before a Commissioner of this court, plaintiff’s counsel stated tbat be would produce a witness, familiar with the company’s operations under the contracts who would testify that the work had been performed in an efficient manner and without negligence. At the trial of the case, plaintiff announced that it would produce no such witness or any other evidence on the question of fault or negligence. Thus, on the basis of the plaintiff’s own statement, we must assume that the record contains nothing from which we might find or even infer the non-negligent character of plaintiff’s work, and thus we have no alternative but to hold that plaintiff has failed to assume the initial burden imposed upon it by the Act. While the burden of establishing a prima, facie case of freedom from fault or negligence in some of these Lucas Act cases may be slight, the statutory requirement that only those plaintiffs may recover whose losses were not due to their negligence, is an important one. As pointed out by plaintiff, Congress could have clearly placed the initial burden on defendant by putting this requirement in the form of a proviso or exception barring recovery where fault appeared, but Congress did not do so. The statute as a whole is a generous and equitable one and we see nothing inequitable in the requirement that plaintiff itself establish a prima facie case of its freedom from negligence with respect to the losses it now wishes to recoup from the Government. In addition to this, we think that in proceedings for relief such as the Lucas Act granted, it is right and just that the claimant should be required to show freedom from fault or negligence with respect to the claimed loss.

Plaintiff’s petition will be dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court having considered the evidence, the report of Commissioner Wilson Cowen, and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiff is an Illinois corporation with its principal place of business in Chicago.

2. Howard Aircraft Corporation, an Illinois corporation, was engaged in furnishing work, supplies, and services between September 16, 1940, and August 14, 1945, under contracts hereinafter described and entered into with the War Department and the Navy Department. Prior to August 14, 1945, both the War Department and the Navy Department were authorized to enter into contracts and amendments or modifications of contracts under Section 201 of the First War Powers Act.

3. By an amendment to the charter of Howard Aircraft Corporation, the corporation’s name was changed on March 7,1946, to Howard Industries, Inc.

4. On November 18, 1941, Howard Aircraft Corporation entered into a written contract, designated as Contract NOa(s)-92172, with the Navy Department, whereby plaintiff agreed to manufacture six GH-1 airplanes, known as primary training airplanes, for a fixed price of $152,383.80. On January 21, 1942, a supplemental contract was made, providing for the manufacture of an additional twenty-four GH-1 airplanes at a unit price of $15,523.72. With separate parts included, the total fixed price supplemental contract amounted to $409,826.21. The airplanes provided for by this contract were completed and delivered to the Navy.

5. On May 22,1942, a letter of intent, No. NXs-5986, was given to Howard Aircraft Corporation by the Navy Department to signify the intention of the Navy Department to enter into a formal contract with Howard Aircraft Corporation for the manufacture of 175 NH-1 airplanes, which were known as blind-flying training planes. The formal fixed price contract was entered into on October 24, 1942. The original number of Contract NXs-5986 was later changed to N0a(s)-1732. The formal fixed price contract provided for the manufacture of 175 NH-1 airplanes at a unit price of $16,972.99, and separate parts to 25 percent of the dollar value of the plane. By letter dated December 22, 1942, the number of airplanes was increased by 300 to bring the total to 475. By letter of March 31,1944, the number of airplanes was decreased by 155 to bring the adjusted total to 320 airplanes.

6. A letter of intent, No. NXs-7242, was given to Howard Aircraft Corporation by the Navy Department to signify the intent of the Navy Department to enter into a formal contract with Howard Aircraft Corporation for the manufacture of fifty GH-2 airplanes, which were known as ambulance passenger cargo planes. The formal fixed price Contract NOa(s)-236 was entered into on February 27, 3943, and provided for the manufacture of fifty GH-2 airplanes at a unit price of $14,570.22, and separate parts to 20 percent of the dollar value of the planes.

7. On June 23, 1943, a letter of intent, No. NOa(s)-1287 was given to the Howard Aircraft Corporation by the Navy Department to signify the intention of the Navy Department to enter into a formal contract with the Howard Aircraft Corporation for the manufacture of 150 GH-2 airplanes. By letter of August 14, 1943, the number of airplanes was increased by 200 to bring the total to 350 airplanes. By letter of March 31,1944, the number of airplanes was reduced by 270 to bring the adjusted total down to 80 airplanes. The formal fixed price Contract NOa(s)-1287 was entered into on April 3, 1944, and provided for the manufacture of 80 GH-2 airplanes at a unit price of $19,700, and separate parts to 25 percent of the dollar value of the planes.

8. On April 3,1942, Howard Aircraft Corporation entered into a written cost-plus-a-fixed-fee contract with the War Department, providing for the manufacture of 600 PT-23 airplanes at an estimated cost of $4,939,560 plus a fixed fee of $292,497.84. After 350 airplanes had been produced and completed, the contract was terminated for the convenience of the War Department on November 26,1943.

9. Under a written agreement dated July 24, 1945, a copy of which is annexed as Exhibit E to plaintiff’s complaint, the War Department contract and plaintiff’s termination claims thereunder were settled.

10. Three of the four above-described contracts between Howard Aircraft Corporation and the Navy Department, i. e., Contracts Nos. 236,1287, and 1732 were terminated for the convenience of the Government on July 31, 1944. On the same date, the contracting parties entered into a negotiated contract, No. NOa(s)-4395, in which Contracts Nos. 236, 12’87, and 1732 were consolidated. The consolidated contract, in evidence as Plaintiff’s Exhibit 4, provided that the Government would advance to the contractor from time to time such sums as were requested by it and approved by the Navy and that the funds so advanced would be used by the contractor solely for the payment of such expenditures as were approved by the contracting officer. The consolidated contract contained the following recitals:

whereas, the Government and the contractor have heretofore entered into Contracts NOa(s)-236, NOa(s)-1287 and NOa(s)-1732, as amended, calling for delivery by contractor of Models GH-2, GH-3, and NH-1 airplanes and spare parts therefor and other articles incidental thereto; and
whereas, the said contracts, as amended, have been terminated in their entirety by the Government for its convenience; and
whereas, the Government has from time to time advanced certain moneys to the contractor to enable it to perform the said contracts, the said advance payments having all been made through a single controlled Pool Account; and
whereas, upon the termination of the said contracts there did not remain in the said Pool Account sufficient funds, nor did the contractor have funds of its own, to enable the contractor to perform certain functions required under the contracts and the termination provisions thereof and for which the contractor is entitled under the contracts to be compensated, relating to (a) completion and packing for shipment of certain substantially completed spare parts needed by the Navy for its war aircraft program; (b) preservation, inventorying and disposition of surplus property on which the Government has a lien or in which it has an interest by virtue of the advances heretofore made and the advance payment and termination provisions of the contracts; and (c) the termination proceedings; and
whereas, the contracting officer has made a determination pursuant to the First War Powers Act of 1941 and the Contract Settlement Act of 1944 that this contract, providing for a new advance payment to the contractor, to be liquidated out of sums to become due to the contractor pursuant to this agreement, will facilitate the prosecution of the war by making available certain spare parts which could not otherwise be readily completed or shipped to Naval activities where such parts are needed, and will facilitate the termination proceedings and the orderly disposition of such surplus property and the protection of the Government’s interest therein;

11. Pursuant to the Contract Settlement Act of 1944, Howard Aircraft Corporation and the Government entered into a supplemental agreement on November 18,1944, for the full payment and complete settlement of all the contractor’s rights and of the Government’s obligations and liabilities under Navy Contracts Nos. 286,1287, and 1732, and the consolidated Contract No. 4395. A copy of the settlement agreement is in evidence as Plaintiff’s Exhibit 8.

12. On February 7,1947, within six months after the date of approval of the Lucas Act (August 7,1946), plaintiff duly filed with the Bureau of Aeronautics, Navy Department, its claim under that Act. The claim, which is in evidence as Plaintiff’s Exhibit 8 was for the amount of $235,882.34. In the claim, plaintiff asserted that it had sustained a loss of $408,426.95 under Navy Contracts Nos. 236, 1287, and 1732, and that it had realized a profit of $172,544.61 on the Army contract. In the claim, plaintiff did not refer nor submit any information with respect to Navy Contract NOa(s)-92172 (Finding 4).

13. By a decision dated December 10, 1947, plaintiff’s claim was denied in whole by the Navy Department, acting through the Navy Department War Contracts Belief Board. A copy of the decision is annexed to plaintiff’s complaint as Exhibit C. The decision read in part as follows:

Under date of 16 December 1943, 17 December 1943 and 28 May 1943 (See Exhibits Cl, C2 and C3 of the claim), claimant made requests for relief by way of increase in contract prices. Each of such requests were denied because the contemplated termination for the convenience of the Government of the contracts involved, which terminations were made effective as of 31 July 1944, precluded the exercise of the authority to amend contracts without consideration “to further the prosecution of the war”. However, Contract NOa(s)-4395, dated as of 31 July 1944, provided additional financing to meet post termination expenses of claimant, and the Supplemental Settlement Agreement, dated 18 November 1944, executed pursuant to the Contract Settlement Act of 1944, provided for the payment by the Government to claimant of the sum of $174,810.88, which was requested in claimant’s letter of 28 May 1943 and $1,337,000.00, which was in excess of the aggregate amounts requested by claimant’s letters of 16 and 17 December 1943.
We are of the opinion that the denial by the contracting officer of claimant’s requests for relief by way of increase in contract prices constituted final action upon such requests. Accordingly, under paragraph 2’04 of the Executive Order, which provides in part: “No claim * * * shall be received or considered * * * if final action with respect thereto was taken * * the claim must be denied. In the matter of the claim of Ziebarth-Jaeger Joint Adventure dated 23 October 1947 we held that such a denial by a contracting officer was final action upon the request and the claim under the Act was denied. Moreover, the amounts requested by claimant were provided for in the Supplemental Settlement Agreement, dated 18 November 1944, executed pursuant to the Contract Settlement Act of 1944, rather than by an amendment without consideration under Section 201 of the First War Powers Act.
Section 3 of the Act provides in part that: “a previous settlement under the First War Powers Act, 1941, or the Contract Settlement Act of 1944 shall not operate to preclude further relief otherwise allowable under this Act” (emphasis supplied). Counsel for claimant, at the hearing, contended that, under this portion of Section 3, the Supplemental Settlement Agreement of 18 November 1944 does not preclude the Board from granting relief under the Act. The Act is clear that such previous settlement does not preclude relief, provided such relief is otherwise allowable under the Act. However, in this case, claimant made no written request for relief subsequent to the settlement under the Contract Settlement Act of 1944, and final action was taken upon the requests which were made prior to such settlement as set forth in paragraph 2 above. Thus, the claim is not “otherwise allowable”. Further, the amounts sought by claimant in its requests for relief were allowed in the Supplemental Settlement Agreement of 18 November 1944. Thus, although the requests for amendments without consideration upon which claims under this Act must be predicated were denied by the final action taken by the contracting officer, claimant in fact received the amounts requested by it.

14. There is no evidence that any action has been taken with respect to the five Government contracts, above described, under the Renegotiation Act or that the losses claimed under the contracts affected the computation of the amount of excess profits determined in any renegotiation agreement or order. There is no showing that any relief is proposed to be granted plaintiff by any other department or agency of the United States under the Lucas Act.

15. Although plaintiff’s complaint is based on the net loss sustained under Navy Contracts 236, 1287, and 1732, plaintiff does not contend that Howard Aircraft Corporation filed written requests for relief with the Navy Department prior to August 14, 1945, on any of the Government contracts except Navy Contract No. 1732. Contract No. 1732 contained, among others, the following provisions:

SectxoN 2 — PRICE Adjustment
The total price stated in Section 1 is subject to adjustment for changes in labor and material costs, provided that the aggregate upward adjustment, if any, shall not exceed ten percent (10%) of such price. Adjustments will be made in accordance with the following procedure:
(a) Labor:
(1) The proportion of the contract price represented by labor subject to adjustment in price (“labor cost”) is accepted as thirty percent (30%) of the contract price, or $1,116,000.00.
(2) The labor cost determined in (1) is hereby divided into labor cost quotas for each quarterly period of the contract, as follows:
(Quota)
First Quarter_ $122,000
Second Quarter- 366,000
Third Quarter_ 366, 000
Fourth Quarter- 262,000
1,116,000
The quota for each quarterly period will be the predetermined value given above whether or not the actual cost of labor is above or below the quota.
(3) The labor cost shall be related to the average hourly earnings of labor in the aircraft manufacturing industry as compiled monthly by the United States Department of Labor, Bureau of Statistics. The Navy Department will determine the ratio of such hourly earnings for each month to the hourly earnings for the month of August, 1942, as a base, expressed as a percentage of such base figure and calculated to the nearest one-tenth of one percent. The average of the monthly percentages for each quarterly period of the contract will be applied to the labor cost quota for such quarterly period, as given in paragraph (2) above. The amount by which the resulting sum exceeds or is less than the labor cost quota for the period will be used to adjust upward or downward, as the case may be, the total contract price set forth in Section 1.
(b) Material:
(1) The proportion of the contract price represented by material subject to adjustment in price (“material cost”) is accepted as approximately twenty-eight percent (28%) or the contract price, or $1,056,000.
(2) The material cost determined in (1), exclusive of the cost of materials for the purchase of which the contractor has firm commitments (including options) in the estimated amount of $633,000, is hereby divided into material cost quotas for each quarterly period of the contract, as follows:
First Quarter_$172,000
Second Quarter_ 165, 000
Third Quarter_ 86, 000
The quota for each quarterly period will be the predetermined value given above whether or not the actual cost of materials is above or below the quota.
(3)The material cost shall be related to the index number of wholesale prices for the non-ferrous metals, Metals and Metal Products Group, compiled monthly by the United States Department of Labor, Bureau of Statistics. The Navy Department will determine the ratio of such index number for each month to the index number for the month of August, 1942, as a base, expressed as a percentage of such base figure, and calculated to the nearest one-tenth of one percent. The average of the monthly percentages for each quarterly period of the contract will be applied to the material cost quota for such quarterly period as given in paragraph (2) above. The amount by which the resulting sum exceeds or is less than the material cost quota for the period will be used to adjust upward or downward, as the case may be, the total contract price set forth in Section 1.
(c) General:
The labor and material cost quotas will not be altered on account of delays in the completion of performance unless an extension in the delivery time is authorized by the Department, in which case cost quotas revised by the Navy Department for the extended period of the contract will be used. Such revised cost quotas will provide the bases for further adjustments under subsections (a) and (b) hereof.
Adjustments in the contract price on account of changes in labor and material costs as provided for herein and settlement therefor will be deferred until completion of the contract, except for the purposes of Section 3 hereof; provided, however, that the Navy Department may make partial payments on account of such increases as may accrue from time to time, subject to such requirements as a condition precedent to such payments as the Contracting Officer may prescribe.
The Navy Department reserves the right to substitute for either or both of above-mentioned standards for labor and material costs any other method of computation, index or standard should it appear at any time in the judgment of the Contracting Officer (subject to an appeal by the contractor to the Secretary of the Navy) that the specified standards do not reflect equitably the increase or decreases in costs of material or labor under the contract; provided, however, that the Secretary of the Navy may appoint a board to revise the method of calculating adjustments in the contract price on account of changes in labor or material costs, and the contractor will be bound by the findings of such board upon approval thereof by the Secretary of the Navy.
Section 3 — Redetermination oe Price
After the contractor has manufactured and delivered a total of fifty (50) complete airplanes under the terms of this contract, the contractor will submit to the Navy Department (Bureau, of Supplies and Accounts), a complete breakdown of its costs of manufacture established in accordance with the principles for determining costs set forth in the Section hereof entitled “Termination”. On the basis of such cost figures, projected on an equitable basis for the whole number of airplanes under the contract, determination shall be made by the Bureau of Supplies and Accounts of the average cost of producing an airplane hereunder. If such average cost plus ten percent (10%) thereof shall be less than the fixed price of an airplane as provided in Section 1 hereof, adjusted for changes pursuant to the Section entitled “Changes” and adjusted in accordance with the principles set forth in Section 2 for changes in labor and material costs, such fixed price as provided in Section 1 hereof shall be reduced by the amount of such deficiency. Such reduced price shall be applicable to each of the airplanes theretofore delivered and then deliverable under this contract. The aggregate price payable for the spare parts, Item 2 of Section 1, shall also be reduced proportionately, the intent of the foregoing provisions being that the contractor shall not realize in the performance of this contract a profit in excess of ten percent (10%) of cost.

16. In that portion of its complaint which related to written requests for relief which had been filed with the Navy Department plaintiff referred to Exhibits C-l, C-2, C-3, and C-4, which were attached to the complaint. The complaint also alleged that many other requests for adjustment in price had been filed with the Navy Department.

Exhibits C-l, C-2, and C-3 consist of letters dated December 17, 1943, December 16, 1943, and May 28, 1944, respectively, from Howard Aircraft Corporation to the Navy Department, regarding Contract No. 1732, while Exhibit C-4 is a letter from Howard Aircraft Corporation to the Navy Department with respect to Navy Contracts Nos. 236 and 1287. Plaintiff relies on only one of these letters; namely, the letter of December 17,1943, attached as Exhibit C-l to the complaint, as constituting a request for relief as a matter of grace within the meaning of the Lucas Act. Said letter of December 17, 1943, read as follows:

Chief,
Bureau of Supplies and Accounts,
Navy Department,
Washington, D. C.
Reference. Contract NO (a) (s) 1732.
Formerly NXS(a)5986.
Subject: Redetermination of price.
Deab Sm: The following computation of operating deficit under subject contract is submitted as a suggested basis for redetermi-nation of price:
Cost of 166 airplanes produced and sold, December 1, 1942, to November 1,1943 (see Schedule)_$3, 511,116.98
Proceeds from sales_ 2,833,979.89
Deficit_ 688,137.09
Less possible recovery under contract escalator clause- 80, 653.00
Net deficit_ 607,484.09
Add: Reasonable profit allowance for performance under contract_ 361,116. 70
Total requested as an adjustment of contract price for period_ 958, 600. 79

17. In addition to the foregoing letter, plaintiff contends that Howard Aircraft Corporation made written requests for relief as a matter of grace with respect to Navy Contract No. 1732 in a letter dated December 28, 1943, to the Navy Department and in a written proposal which Howard Aircraft Corporation submitted to the Navy under date of September 29,1944.

The letter of December 28, 1943, was sent by the Finance Manager of Howard Aircraft Corporation to the Chief of the Bureau of Supplies and Accounts, Navy Department, Washington, D. C., and read as follows:

Subject: Redetermination of price.
Reference: Contract NOa(s) 1732 (formerly NXs-5986).
Deab Sir : The following computation of operating deficit under subject contract is submitted as a suggested basis for redetermination of price:
Period 12-1-42 to 11-1-43:
Cost of goods sold as disclosed by Navy audit- $2, 929,449.44
Administrative salaries and general expense— 230,028. 61
Total operating costs_ 3,159, 478. 05
Proceeds from sales_ 2, 822, 979. 89
Total operating loss_ 336,498.16
Add: Reasonable profit allowance for performance under contract- 292,944.94
Total_ 629,443.10
Deduct: Adjustment under contract escalator clause_ $80, 653. 00
Balance requested as an allowance of contract price for period_ 548,790.10
This request will supersede any and all computations previously filed by Howard Aircraft Corporation.

After Navy Contracts 236, 1287, and 1732 had been terminated and during the pendency of the negotiations which culminated in the execution of the settlement agreement (Finding 11), Howard Aircraft Corporation, under date of September 29,1944, submitted to the Bureau of Aeronautics, Navy Department, Washington, D. C., the contractor’s settlement proposal and related data affecting the Government contracts which had been performed by Howard Aircraft Corporation. The contractor’s settlement proposal listed gross charges of $7,198,252.02 with an allowance for offset of $5,374,133.42 representing the balance of advances as of July 31, 1944. The net amount proposed for payment in settlement was $1,824,118.60. There was included in the total charges figure ($7,198,252.02) the sum of $2,875,365.27, representing completed planes and parts which had been delivered to the Government but not yet paid or applied on advances.

The contractor’s settlement proposal had attached thereto a number of supporting schedules including Schedule D which covered additional costs claimed in the total sum of $2,043,442.51. These costs were all allocable to Navy Contract 1732 except a portion of the “Education and Training” item totaling $10,723.08 and applicable to all three contracts.

The statement which accompanied said Schedule D read as follows:

1. In order to carry out the Navy Contracts it was necessary to develop an employee education and training program. During the fiscal year ending November 30, 1943, $31,243.72 was spent on general, welding, inspection, and assembly, training for new employees. Turnover of personnel required the continuance of the program into the fiscal year ending November 30, 1944, until the program was halted by termination. The benefits of such a program accrue after completion of the training program and continue to the completion of the contract. As a result of termination, it is felt that the benefit of the program from December 1, 1943, to the date of termination was not realized by the company and that compensation for the amount of $10,723.08 is due the company. The $31,243.72 expended from December 1, 1942, to November 30, 1943, has been absorbed as a proper contract charge, the benefit of which accrued to the company.
2. Price and operating history of Howard contracts with the Navy Department must be briefly reviewed in explanation of the claim for uncompensated costs on Contract N0a(s)-1732. In November 1940, the. Navy negotiated a purchase of six planes then being built for commercial customers at the commercial price of $21,942.80. When on November 1941 Contract NOs 92172 was executed, the price of $15,523.72 per plane was developed against the price of $21,942.30 by deducting cost of CFE which became GFE under that contract. Later when NOa(s)-1732 was executed 24 October 1942, the unit price of $16,972.29 was largely developed by reference to these earlier prices modified only by shifts from GFE to CFE adjusted for minor design changes. When the contract was modified on 22 December 1942 to increase the number of planes to 475, price readjustment was effected similarly. Therefore, while the mere repetition of figures in this range appears to have created the illusion that these prices should bear a proper relation to costs, the facts do not bear out the assumption. During the fiscal years ending November 30, 1940 and 1941, when the base commercial price of $21,942.30 was in effect, the company sustained substantial losses for the volume of business being done.
Early in the operation of Contract NOa(s)-1732, two things became abundantly clear to both the company and the Navy. First production schedules could not be met by continued operation of the Chicago facility where the cost history on the plane had been accumulated. A move of the assembly line to the St. Charles plant with much heavier overhead and a completely untrained crew was imperative. Second, costs were greatly in excess of price and contract revision was imperative. Pressure was applied by the Navy early in 1943 aimed at solving the first of these problems. The second was to be approached later after production was on schedule and costs could be determined.
Immediate steps were taken by the Directors. Sanderson and Porter, a highly regarded firm of management engineers, were employed to ascertain the facts and make recommendations. An Executive Committee was appointed consisting of Mr. Daniel Peterkin, Jr., Mr. Lloyd McBride, and Mr. F. B. Evans. A general manager, Mr. Boy A. Watkins, was hired and given the job of bringing production up to schedule. In the summer of 1943, Mr. B. D. DeWeese was .replaced as President by Mr. Daniel Peterkin, Jr. These changes produced the results requested by the Navy and by October 1943, production had reached scheduled levels.
Such changes had not produced corresponding success in developing suitable cost data for contract revision. Navy cost studies had been inconclusive and the Navy Department and the company were sufficiently uncertain of what costs should be so that an incentive contract permitting payment of up to $23,000 was under discussion during the Fall with a so-called target set at $16,100 cost plus 7% profit.
Howard Aircraft was uncertain about the effect of such a contract and the Navy Department sent its consultant, Mr. Eobert Porter to Howard in December, January and February, to report on the possible effects of such contract changes. He reported to the company that such a contract would still leave Howard from 2y2 to 314 million short of being able to repay its advance. It is believed that he reported similarly to the Bureau. He advised Howard to delay completion of a contract, get the auditors to cost planes produced during the previous fiscal year, and present a counterproposal for consideration.
Meanwhile, the Executive Committee had continued its efforts toward reorganization. Mr. Kenneth W. Eowe was brought in in January as Assistant to the President. The Assistant Treasurer, Mr. William Byrne was released in February and arrangements were made to employ Mr. Frank D. Peel as Comptroller to join the staff on March 6, 1944. Mr. Eoy A. Watkins was dropped January 15,1944, and Mr. E. H. Huff was appointed Works Manager.
On February 18,1944, a productive plan was submitted to the Executive Committee by Mr. Eowe and Mr. Huff. It was immediately forwarded to the Bureau of Aeronautics where we were later advised that it was being favorably received. An appointment was made for company officials to discuss price readjustment with the Contracting Officer on March 8, 1944, in Washington. The termination developments prevented this conference from achieving its objectives. The data, however, was filed at a conference later in March when discussions were resumed on the price of the GH-2 in Contract NOa(s)-1287. It was summarized again in Howard Letter 4 April 1944 to Bureau of Aeronautics for the attention of Lt. Cmdr. Kempner. That letter proposed a price of $19,700 for the GH-2 which was accepted in Contract NOa(s)~1287. The corresponding price for the NH-1 would be $20,320.69 with GFE radio, or $22,437.33 with CFE radio.
The total set in the claim of $1,648,886.31 is the amount the contractor would have been paid over and above actual receipts had termination not prevented the revision of Contract NOa(s)-l732. Detail of the computation is set forth below:
175 planes @ $22,437.33_$3,926, 532.75
145 planes @ $20,320.69_ 2,946,500.00
Income from sale of planes- 6,873,032. 75
Actual income under contract_ 5,224,146.44
Claimed as uncompensated- 1,648, 886.31
3. Had such revision been accomplished, income from planes would have amounted to 131.56% of actual income. A similar adjustment would have occurred in the price of spare parts. Income from spares under Contract N0a(s)-1732 totals $1,216,201.28. The uncompensated amount claimed is 31.56% of that figure, or $383,833.12.

The settlement agreement reached by the parties on November 18, 1944 provided for the payment to the contractor of $4,012,827.00 less the offset for the balance of advances amounting to $3,871,395.43 as of October 3, 1944, or the net sum of $141,431.57, plus various other sums in connection with the settlement of the Navy contracts.

18. On January 8, 1944, prior to the date the Navy contracts were terminated, plaintiff wrote the defendant a letter which related to the re-determination of the price for Contract No. 1732 and submitted several schedules of supporting information. The letter is in evidence as Plaintiff’s Exhibit 14. Although no explanatory testimony was submitted in connection with the letter, it was apparently designed to supplement the information which plaintiff had submitted in the letter of December 28, 1943 (Finding 17). The unit price provided for in Contract No. 1732 was $16,972.99 and the data submitted with the letter of January 8,1944, indicated that during the period between December 1, 1942, and October 31, 1943, plaintiff had manufactured 157 airplanes under that contract at a unit cost of $17,897.42. The unit price provided for in Navy Contract No. 236 was $14,570.22, and the information submitted in the letter of January 8, 1944, indicated that in the period beginning December 1,1942, and ending October 31,1943, plaintiff had manufactured eight airplanes under that contract at a unit cost of $14,944.35. One of the schedules attached to the letter was a tabulation showing that plaintiff’s operating deficit, applicable to Contract No. 1732, was $322,353.65 for the period beginning December 1,1942, and ending October 31, 1943.

19. As required by the Court’s order relating to procedure in Lucas Act cases, plaintiff prepared and furnished to defendant’s counsel an audit based on the books and records of Howard Aircraft Corporation. Thereafter, the defendant made an examination of plaintiff’s books and records and furnished plaintiff with schedules reflecting the results of that examination.

On January 27,1953, three months prior to trial, a pretrial conference was held, at which time it was agreed that the issues to be tried included the following:

(1) The amount of the net loss sustained by plaintiff on the contract sued upon;
(2) whether the losses under the contracts in question were incurred without fault or negligence on part of the plaintiff;
(3) whether and to what extent plaintiff has received relief under the termination agreement entered into between the parties under date of November 18,1944;
(4) whether plaintiff filed an adequate request for relief within the meaning of Section 3 of the Lucas Act for losses sustained under Contract 1732;
(5) whether plaintiff’s failure to submit, in accordance with Section 202 (b) and 202 (c) of Executive Order 9786, a statement of the contract price, of the cost of performance, and of the profit and loss on each contract is a fatal defect in plaintiff’s claim or affects the amount of plaintiff’s claim;
(6) whether plaintiff’s failure to make a statement in detail as to each loss claimed of the facts and circumstances which caused the loss and of the period or periods of time during which the loss occurred, in accordance with Section 202 (j) of Executive Order 9786, is a fatal defect in plaintiff’s claim or affects the recoverable amount of plaintiff’s claim;
(7) whether the plaintiff in failing to make a statement, supported by reasonable detail, showing that the loss or losses claimed occurred through no fault or negligence on the claimant’s part, as required by Section 202 (k) of Executive Order 9786, is a fatal defect in plaintiff’s claim or affects the recoverable amount of plaintiff’s claim.

20. Aside from the letters and documents which are referred to in other findings, the only evidence offered by plaintiff was the testimony of plaintiff’s accountant and the audit which he prepared from plaintiff’s books and records. The audit, which was completed about July 14, 1950, is in evidence as Plaintiff’s Exhibit 12.

21. Howard Aircraft Corporation maintained its books on the fiscal year basis, running from December 1 to November 30 of each year. Work on the five Government contracts involved here was performed during the period between December 1, 1940 and November 30, 1944. After July 1, 1944, when the Navy Contracts Nos. 1732,236, and 1287 were terminated, the principal activities of Howard Aircraft Corporation consisted of the work incident to the settlement of the terminated contracts.

During the four-year period, Howard’s volume of business with the Government, designated in the audit as sales, amounted to more than $10,000,000, while its total sales on nongovernment business amounted to more than $958,000.

The audit prepared by plaintiff consists of profit and loss statements covering the four Navy contracts for the four fiscal years mentioned, with an adjustment for the profit or loss resulting from the settlement of the terminated Navy contracts. The audit contains supporting schedules for the principal items in the profit and loss schedules, and it comprises an allocation of the principal items of expense between Government business and nongovernment business.

22. After the Navy contracts were terminated, the books and records of Howard Aircraft Corporation were stored in the basement of a factory in Geneva, Illinois, but during the preparation of the audit they were brought to and stored on the second floor of a building in Eacine, Wisconsin.

When he began the preparation of the audit, plaintiff’s accountant found that the general ledger and general journals of the Company, including cash books, voucher registers, sales registers, expense ledgers, accounts receivable ledgers and subcontractors’ ledgers, were complete for the entire period involved. In addition to the ledgers and journals, there are also a number of file boxes containing the original records, such as checks, purchase invoices, sales invoices, and similar records. The file boxes were arranged in good order, and there was a catalog of the papers contained in the different file boxes. Plaintiff’s accountant utilized the original records on a spot-check basis to verify the accuracy of the entries in the ledgers and journals. Although some question was raised as to whether all of the original records were intact, the evidence shows that plaintiff’s accountant was able to find original records to verify entries in ledgers or journals in each instance where a check was made.

23. Plaintiff’s accountant did not make an audit of the records of Howard Aircraft Corporation with respect to the contract entered into with the War Department (Finding 8). Since that was a cost-plus-a-fixed-fee contract, he determined that only the fee paid would affect the total profit or loss on all Government business and, therefore, he treated the fee paid by the War Department as a profit and deducted it from the amount of the loss sustained in the performance of the four Navy contracts in order to arrive at the amount of net loss claimed.

24. During the four-year period covered by plaintiff’s audit, Howard Aircraft Corporation was engaged in the manufacture of airplanes and parts for private account, as well as for the Government under the contracts referred to above. Howard did not maintain its records in such a way as to show the costs of performing the four Navy contracts separately from the costs incurred on private business, nor the costs incurred on each of the four Navy contracts. However, the sales journals reflected the amount of sales for private account and the amount received on sales to the Government. The sales journals also contained information showing the number of airplanes delivered each year under each Government contract.

In order to determine the amount of costs applicable to private business separately from costs applicable to the four Navy contracts, plaintiff’s accountant determined the ratio of nongovernment sales to total sales and prorated the total costs between the two accounts on that ratio. He then added to nongovernment costs certain expenses which were definitely classified as belonging to the nongovernment category.

After making the allocation, plaintiff’s accountant determined that the total net loss on the four Navy contracts, after allowing for the amounts paid under the settlement agreement, amounted to $864,096.96. From this figure, he deducted the $180,523.27 fee received under the Army contract and arrived at the sum of $183,573.69, which represents the net loss incurred during the four-year period in the performance of the four Navy contracts.

The evidence does not establish, either exactly or approximately, the amount of the net loss sustained or the profit realized in the performance of each of the four Navy contracts. Thus the evidence does not provide any basis for arriving at a reasonably correct approximation of the amount of plaintiff’s net loss, if any, under Contract No. 1732, the contract upon which plaintiff’s claim is now made.

25. In making the profit and loss statements for the years ending November 30,1941 and November 30,1942, plaintiff’s accountant included the number of airplanes and the price received for each such airplane that was delivered in 1941 and 1942 under Navy Contract 92172, which was performed during those years. However, the profit and loss statements for the fiscal years ending November 30,1943 and November 30, 1944, show only the total number of airplanes delivered and the total price paid by the Navy. There is no breakdown as to the number of airplanes delivered under each Navy contract or the price received per airplane. Although some additional time would have been required to make the tabulation from the sales journals, plaintiff could have ascertained and shown in its audit the number of airplanes delivered under each Navy contract during the fiscal years 1943 and 1944.

Since the Navy made frequent changes in the specifications and unit prices during 1943 and 1944, it would have been an unusually difficult task for plaintiff’s accountant to ascertain within a reasonable time the prices received for the airplanes delivered under each of the Navy contracts during those years. However, the unit prices originally provided for in Navy Contracts Nos. 1732, 236, and 1287 were readily available and while the prices actually received would have provided a more accurate basis for allocation, plaintiff could have made a reasonably correct computation of the los3 sustained or profit realized on each Navy contract by utilizing the original unit prices and the information in the sales journals as to the number of airplanes delivered under each Navy contract. It is a fair conclusion from the evidence that an allocation made from such figures would have produced a result as accurate as that obtained by plaintiff in allocating the total costs between Government and nongov-ernment activities.

26. As indicated in the quoted matter in Finding 10, the Government had advanced certain moneys to Howard Aircraft Corporation to enable it to perform Navy Contracts Nos. 236, 1287, and 1732. These advance payments were deposited in a pool account under the control of the Navy and disbursed for purposes approved by the Navy through checks countersigned by one of its officers. In the settlement agreement of November 18, 1944 (Finding 11), the Government agreed:

(a) To pay Howard Aircraft Corporation, in addition to the amounts previously paid under the three contracts, the sum of $4,012,827, less the amount of $3,871,395.43, which represented the unliquidated advance payments made to the contractor and interest thereon to October 3, 1944, or the resultant cash sum of $141,431.57;
(b) to pay the contractor the sum of $9.54 per day for a specified period, which sum represented the difference between the interest due Howard under the Contract Settlement Act and the interest that had accumulated in favor of the Navy on account of the advance payments made to the contractor;
(c) to provide Howard Aircraft Corporation with the funds required to pay the termination claims of subcontractors listed in schedules attached to the agreement;
(d) to provide Howard Aircraft Corporation with the funds needed to pay the amounts of retroactive vacation pay to its employees; and
(e) to reimburse Howard Aircraft Corporation in an amount not to exceed $20,000 for accounting, clerical, legal and other expenses incurred in the termination and settlement of the three contracts.

The amounts received by Howard Aircraft Corporation under the settlement agreement, as determined by plaintiff’s accountant, are set forth in Schedule F of plaintiff’s audit. The first entry on Schedule F shows that the credit which Howard Aircraft Corporation received by virtue of the cancellation of the unliquidated advance payments made by the Navy amounted to $3,666,210.22 or $205,185.21 less than the amount specified in the settlement agreement. Plaintiff’s accountant had a copy of the settlement agreement at the time the audit was prepared. No evidence was presented to explain the discrepancy between the settlement agreement and plaintiff’s audit as to the amount of the unliquidated advance payments.

Because of the diminishing balance of advances due to the application of the value of delivered planes completed and assets taken over from time to time after termination of the Navy contracts (July 31, 1944), the difference between the balance of unliquidated advance payments shown in the settlement and the figure shown in plaintiff’s audit, should not affect the net gain or loss under the settlement agreement.

27. Plaintiff’s accounting under the settlement agreement resulted in net recoveries from all three Navy contracts of $1,332,275.90. This amount was $491,842.70 less than the $1,824,118.60 proposed by plaintiff in its settlement proposal. Since plaintiff’s proposal included $2,043,442.51 which was nearly all applicable to contract No. 1732 (Finding No. 17), it appears that plaintiff recovered at least $1,500,000 under that contract even assuming that all other items in its proposal were allowed in full.

Navy Contract NOa(s)-236 called for 50 planes of the GH-2 type at $14,570.22. After manufacturing a number of these planes, plaintiff protested to the Navy that the unit contract price was too low and resulted in substantial losses. The unit price in No. 236 was not amended, but a new contract NOa(s)-1287, for GH-2 planes was issued April 3, 1944 at a unit price of $19,700 per plane. This price represented an increase over the unit price in Contract No. 236 of $5,129.78 per plane for the same type of plane, or a difference and possible loss of $256,489 on all 50 planes called for by contract 236.

28. Plaintiff elected not to offer any evidence on the question of fault or negligence, stating that the burden is upon the Government to establish that there was fault or negligence on the part of the contractor in the performance of the contracts.

29. Promptly after the presentation of plaintiff’s evidence, the defendant moved, under Eule 49 (b), for a dismissal of plaintiff’s petition on the following grounds:

(a) That the letters and documents which plaintiff relies on as constituting written requests for relief under Contract 1732 are not sufficient within the meaning of Section 3 of the Lucas Act;
(5) that by failing to provide a statement of the contract price, the cost of performance and the profit or loss on each Government contract, and by failing to show the loss sustained on the contract on which the claim is based, plaintiff has not complied with the requirements of the Lucas Act, Executive Order 9786, or the order of this Court prescribing the procedure to be followed in Lucas Act cases.
(c) that plaintiff, by failing to offer evidence showing that the losses claimed by it were incurred without its fault or negligence, has not met the burden imposed upon it by the Lucas Act or Executive Order 9786; and
(d) that under the settlement agreement of November 18,1944, plaintiff was paid in full for all losses or uncompensated contract costs for which it had made written requests for relief.

30. As shown by the preceding findings, there were four Navy contracts and one Army contract under which plaintiff furnished work, supplies, and services between September 16,1940 and August 14,1945, but plaintiff’s claim is now based on Navy Contract No. 1732, which is the only contract with respect to which plaintiff claims that written requests for relief as a matter of grace were filed with the proper department or agency before August 14,1945.

Section 3 of the Lucas Act provides that consideration of claims for losses shall be limited to losses with respect to which a written request for relief was filed with the proper department or agency or on or before August 14,1945. Although Howard’s books were not kept in a manner that would enable plaintiff to show the exact costs incurred on each Government contract or the exact costs incurred on private business separately from the cost of performing the Government contracts, the books were sufficiently complete to enable plaintiff to establish, with reasonable accuracy, the net profit or loss on each Government contract in the same way that plaintiff arrived at the amount of profit or loss on private business separately from that on Government business. On the basis of the evidence presented by plaintiff it is reasonable to conclude that a substantial portion of plaintiff’s claimed net loss of $183,573.69 resulted from its operations under contract NOa(s)-286. What, if any, portion of the plaintiff’s loss was attributable to contract No. N0a(s)-1732, is not established by the record.

Plaintiff has failed to discharge the burden imposed upon it in Section 3 of the Lucas Act by showing, with such reasonable accuracy as the books would have permitted, the amount of its net loss under the contract on which the claim is based.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that, as a matter of law, the plaintiff is not entitled to recover, and the petition is therefore dismissed. 
      
       Successor to Howard Aircraft Corporation in whose name the various contracts mentioned herein were entered into.
     
      
       Public Law 657, 79th Cong., 2d Sess., Ch. 864, 60 Stat. 902, as amended by Section 37 of Public Law 773, 80th Cong., 2d Sess., 41 U. S. C., § 106, Note. (1946 Ed. Supp. V.)
     
      
       Section 2 (b) of the Lucas Act provides: “Every claimant under this Act shall furnish to the department or agency concerned any evidence within the possession of such claimant bearing upon the matters referred to in subsection (a) of this section.”
     
      
       The planes under contract NOa(s) — 1287 were later changed to GH-3, but the unit price stipulated at $19,700 called for type GH-2 planes at the time the contract was issued on April 3,1944.
     