#### L. VOGELSTEIN & COMPANY v. THE UNITED STATES.1, 2

[No. 33974.

Decided June 13, 1921.]

*On the Proofs.*

*Requisition under National Defense Act; contract; privity.*— Two requisitions for 1,000,000 pounds of copper eacli are placed with the plaintiff for its protection against suits for damages, by its customers for violation of its contracts with them, with the understanding that no copper will be required by the Government under said orders; afterwards, the plaintiff *363voluntarily sells 12,542,857 pounds of copper to a dealer wlio is under contract with the Government to furnish it a great amount of copper. *Held,*that there is no privity between the plaintiff and the United States, and it can not maintain a suit against the Government. .

*Price fixed; market value.*— An agreement is entered into between the copper producers and the War Industries Board fixing the price of copper for four months at 231 cents per pound, and the agreement is approved by the President, effective September 21, 1917, and becomes the market price of copper in the United States for four months thereafter. The plaintiff on that date owns 12,542,857 pounds of copper which it was unable to sell at a satisfactory price, and which it voluntarily sells between September 21, 1917, and February 1, 1918, to another dealer who is under contract with the United States to furnish it copper. *Meld,*that plaintiff can not recover from the Government the difference between the cost of said copper and the price it was sold to said dealer.

*The Reporter's*statement of the case:

*Messrs. Albert G. Reeves*and *Russell H. Robbins*for the plaintiff. *Reeves <& Todd*were on the briefs.

*Messrs. Croidley Wentworth*and *J. Robert Anderson,*with whom was *Mr. Assistant Attorney General Frank Davis, Jr.,*for the defendant.

The following are the facts of the case as found by the court :•

I. The plaintiff is a corporation, duly incorporated on December 30, 1916, under the laws of the State of New York, as. L. Vogelstein & Co. (Inc.), with a capital stock of $5,000,000 divided into 50,000 shares of the par value of $100 each, and having its principal office and place of business in the city of New York, State of New York. The number of the directors and subscribers is given as three each, among who is the name of L. Vogelstein with an allotment of 48,995 shares, but by arrangements with the other stockholders all of the 50,000 shares were issued to him. The powers of the corporation under its charter are very broad, allowing it to carry on a large number and variety of different occupations, either as principal or agent, among which is the right to deal'generally in and with minerals, ores, metals, and metalliferous substances.

*364II. The sole business of the plaintiff at the time of the transactions complained of in the petition, and still is, the purchasing of ores, minerals, and metals, having them smelted and refined, and then selling the refined products to its customers. It is not a mine owner, operator, producer, or refiner, but a dealer only in ores, minerals, and metals.

III. At the close of business on September 20, 1917, the plaintiff had on hand, sold but not delivered, and unsold, 43,851,042 pounds of copper, 34,687,579 pounds of which had been purchased as unrefined copper, under long-term contracts, and 9,163,463 pounds had been purchased as refined copper in the open market. The cost of the entire mass was $11,788,027.17, and the average cost per pound was 26.881977 cents. Of the entire stock of copper on hand on said date, 31,308,183 pounds had been sold at 26.34389 cents per pound. There remained in the ownership and possession of the plaintiff 12,542,857 pounds, which he had been unable to sell at the same price, owing to the fact that an agreement between the producers of copper and the Government fixing the price of refined copper at 23-J- cents per pound would go into effect on September 21, 1917. The difference between the average cost price of the 43,851,042 pounds of copper, 26.881977 cents per pound, and the selling price fixed by said agreement, 23£ cents per pound, was 3.381977 cents per pound. After September 20, 1917, the market price of copper was 231, cents per pound.

IV. There is nothing in the evidence, nor in the records of the plaintiff company, to show the cost price of the 12,542,857 pounds of unsold copper remaining in its ownership and possession on September 20,1917. All of the unrefined copper purchased by the plaintiff was shipped directly to the United States Refining Company of New Jersey under a contract between the plaintiff and said company, and after smelting and refining was shipped, on order of the plaintiff, by said company to plaintiff’s customers. It was impossible for the plaintiff to give, from its records, the cost price of any of the different lots of copper sold by it. It may have sold copper purchased by some other dealer. It only knew how much copper it had in bulk at the x’efinery.

*365Y. After tbe presentation of a report by the Federal Trade Commission on the cost of the production of copper, the War Industries Board of the Council of National Defense called before it the copper producers of the country, and gave notice to the public of such meeting in order that all interests might be represented and nobody excluded. After discussion between the copper producers, represented by a committee, and the War Industries Board, a voluntary agreement was reached, with the approval of the President, a memorandum of which reads as follows:

“After investigation by the Federal Trade Commission as to the cost of producing copper, the President has approved an agreement made by the War Industries Board with the copper producers fixing a price of twenty-three and one-half cents per pound f. o. b. New York, subject to revision after four months. Three important considerations were imposed by the board. First, that the producers would not reduce the wages now being paid, notwithstanding the reduction in the price of copper, which would involve a reduction of wages under the ‘ sliding scale ’ so long in effect in the copper mines; secondly, the operators shall sell to the Allies and the public copper at the same price paid by the Government, and will take the necessary measures, under the direction of the. War Industries Board, for the distribution of the copper to prevent it from falling into the hands of speculators who might increase the price to the public; and third, the operators pledge themselves to exert every effort necessary to keep up the production of copper to the maximum of the past so long as the war lasts.

“ The War Industries Board felt that the maintenance of the largest production should be assured, and that a reduction in wages should be avoided. The stipulation that the present wages shall not be reduced compels the maintenance of the highest wages ever paid in the industry, which, without such stipulation, would be reduced under the sliding scale with the reduction made in the price of copper. Within this year copper has sold as high as 36 cents per pound, and the present market price would be higher than it is had it not been well known for some weeks that the Government would fix the price.

“ The principal copper producers throughout the country have evinced a most patriotic spirit, and for weeks have promptly supplied every request of the Government for copper, without awaiting decision as to price, and agreeing to accept the price which the board would ultimately fix. *366The proper departments of the Government will be asked • to take over the mines and plants of any producers who fail to conform to the arrangement and price, if any such there should be.

“Approved by the President, September 21, 1917.”

VI. For the purpose of carrying into *effect*the agreement between the copper producers and the Government of September 21,1917, a meeting of copper producers was called by the Commissioner of it aw Materials of the War Industries Board for September 28,1917, the minutes of which read:

“A meeting of the copper producers was called at the instance of Mr. B. M. Baruch, Commissioner of Raw Materials of the War Industries Board, and was held at 120 Broadway, New York City, on Friday, September 28th, 1917, at 10.30 a. m. The following persons were present: Messrs. Joseph Clendenin, Charles Earl, S. Rosenstamm, L. Vogelstein, Julius Loeb, Julian Beaty, M. H. Crego, T. Wolfson, Sidney Jennings, Charles . Nichols, W. Parsons Todd, G. W. Drucker, James McDonald, and H. M. Brush. Mr. Eugene Meyer, jr„ of the Committee on Raw Material, Council of National Defense, was also present. By unanimous consent Mr. Clendenin acted as chairman and Mr. Brush as secretary of the meeting.

“ Messrs. Clendenin and Wolfson reported to the meeting the result of the negotiations between the representatives of the United States Government and the representatives of the copper producers, which led to the agreement fixing the price of copper referred to in the statement made public by the President September 21, 1917, and suggested the necessity of a committee to act for- the copper producers in the premises in view of the problems of production, distribution, consumption, and the like, that would arise. Mr. Eugene Meyer, jr., gave the meeting the benefit of his views as to the need for such a committee and an outline of what he considered would be its proper functions and authority.

“On motion duly made and seconded and unanimously adopted a committee, to be known as *‘*the copper producers committee,’ composed of Joseph Clendenin (chairman), To-bias Wolfson, James L. McLean, and R. L. Agassiz, was chosen to act for the copper producers in carrying out the agreement made on their behalf with the* War Industries Board, set forth in the statement made public by the President, September 21, 1917, to cooperate with the War Industries Board and the commissioner of raw materials, in securing due performance of the agreement, and, under the *367direction of the War Industries Board, to' take the necessary measures to that end.

“ On motion duly made and seconded and unanimously adopted Mr. H. M. Brush was chosen to act as secretary of the committee.

“ It was requested that Mr. Clendenin send advice to Mr. Baruch of the action of this meeting of the copper producers.

“The representatives present were asked to submit to Mr. Brush, secretary of the committee, prior to noon Saturday, September 29th, a statement of their estimated stock of copper on hand October 1st, together with their estimated Íroduction of copper for each month, October, November, December, 1917; January, 1918; together with a further statement covering all outstanding sales due as of October 1, 1917, for delivery prior to February 1, 1918. This information was to be assembled and submitted to a meeting of the committee to be held 11 a. m., Monday, October 1st.

“There was no objection raised to the statement that it was the sense of the meeting that all marketable copper, beginning with October 1st, should be placed at the disposal of the U. S. Government and its allies.

“Upon the plea from Mr. Eugene Meyer, jr., that the Government was in immediate need of about 12,000,000 lbs. copper, the producers agreed that Mr. Wolfson, secretary of the advisory committee, should receive instructions from the Ordnance Department to ship immediately 12,-000,000 lbs. copper, and several of the producers present agreed to receive such instructions in quantities agreed upon from Mr. Wolfson.

“It was suggested that a meeting of the principal consumers of copper should be called for Tuesday afternoon next, October 2nd.

“Upon motion duly made and seconded the meeting adjourned.

“ H. M. Brush, *Secretary*

The plaintiff was present at this meeting and placed in nomination the persons who were elected members of the Producers’ Committee. He raised no objection at this meeting to furnishing copper at the price fixed in the agreement between the producers and the War Industries Board and approved by the President on September 21,1917.

VII. During the meeting on September 28, 1917, Mr. Eugene Meyer, jr., who was present at the request of the Commissioner of Raw Materials of War Industries Board, *368and who had with him a number of mandatory requisitions for about 12,000,000 pounds of copper, signed by the Secretary of War, and drawn up under the provisions of sections 120 and 123 of the act of June 3, 1916 (39 Stat., 213, 215), commonly known as the National Defense Act, distributed the said orders among producers and dealers present; two for 1,000,000 pounds of copper each were handed to the plaintiff. This was done at their request in order that said producers and dealers might be protected from suits for damages for breaches of their contracts with their private customers, and not because the Government intended to procure copper under such orders. The orders were all identical except as to the person addressed, and the amount of copper to be furnished. The two orders, given to the plaintiff read:

WAR DEPARTMENT,

*Washington, Septetniber 87, 1917.*To L. VoGELSTEIN & COMPANY,

*48 Broadway, New York, New York.*

Under the provisions of the act providing for the national defense, passed by Congress and approved June 3,1916, and particularly under sections 120 and 123 thereof, and in the exercise of all other powers vested in the President bv the Constitution and the laws of the United States, as the Chief Executive thereof and as commander in chief of the Army and Navy thereof, created or called into being by the existence of a state of actual war and by the extraordinary exigencies and requirements thereof, the President of the United States, acting through me, Newton D. Baker, Secretary of War, hereby places an order with you for the following : One million (1,000,000) lbs. prime electrolytic copper, to be 99.9% pure and not under 99.88% pure, as provided by the standards of American Society of Testing Materials.

This order shall take precedence over all other orders and contracts placed with you by any individual or individuals, firm, association, company, or corporation whatsoever, except preexisting’ orders of class A-l as defined in Circular No. 1 of the Priorities Committee of the War Industries Board of the Council of National Defense, issued under date of September 21, 1917.

Delivery of the copper under this order is to be completed at any time within sixty (60) days from the date of this order, and the entire quantity is to be considered obligated and held subject to receipt of shipping instructions. Detailed *369shipping instructions affecting all of this material, or partial amounts aggregating the total involved, will be prepared and issued by the Gum Division, Ordnance Department, whose instructions you are to honor.

. The price' to be paid for this material, in accordance with the adoption of a fixed price for copper by the President of the United States, shall be twenty-three and one-half (23^c) cents per lb. f. o. b. New York basis.

Shipments will be made on Government bills of lading. To facilitate prompt payment of invoice it is desirable that deductions for freight allowance shall be made from the face of the invoice.

The copper to be delivered under this order will be paid for by the Ordnance Department after inspection at the receiving point. Invoices and correspondence regarding this order should be addressed “ Gun Division, Office of the Chief of Ordnance, 1330 F Street, Washington, D. C.”

Yours, truly,

NewtoN D. Baker,

*Secretary of War.*

VIII. It was understood and agreed between the producers and dealers in copper (including the plaintiff) and the United States that no copper would be required by the United States under the mandatory orders referred to in Finding No. VII, but that the 12,000,000 pounds of copper named in said requisitions would be obtained in the usual way through the contracts between the United States and the United Metals Selling Company, which were entered into from time to time, beginning with April 6, 1917, in the following form:

These articles of agreement entered into the 1st day of November, 1917, by and between the United Metals Selling Company, a corporation organized and existing under and by virtue of the laws of the State of Delaware, and having its general office at No. 42 Broadway, New York, N. Y., the party of the first part (hereinafter called the contractor), and the United States of America, by Jay E. IToffer, colonel, Ordnance Department, United States Army (hereinafter called the contracting officer), acting by and under the authority of the Chief of Ordnance, United States Army, and under the direction of the Secretary of War, of the second part:

Witnesseth, whereas a state of war exists between the United States of America and the Imperial German Government, constituting a national emergency.

*370Now, therefore, under the provisions of section 120 of an act of Congress relating to national defense, approved June 3, 1916, and pursuant to all other laws of the United States and Executive orders of the President of the United States, or head of its departments under which the requirements of advertisement for proposals are dispensed with, and contracts in the form hereof duly authorized, and in consideration of the mutual agreements herein contained, the said parties have agreed and by these presents do agree to and with each other as follows, viz:

*Copper.*— Article I. The contractor agrees to make and deliver to the United States 65,000,000 pounds, more or less, of electrolytically refined copper, or, at its option, Prime Lake copper, 99.9 per cent pure, and in any event either Prime Lake copper or electrolytic coppér is to be not less than 99.88 per cent pure, in accordance with the standards of the American Society tor Testing Materials. The United States agrees to pay for the copper herein contracted for, all upon the terms and conditions in this contract set forth.

*Deliveries.*— Article II. The contractor agrees to deliver to the United States the copper -herein contracted for on cars or on lighters at or near plants represented by the contractor, deliveries to begin on or before November 1, 1917, in accordance with shipping instructions of the contracting officer, and to be completed on or before January 20, 1918. Such deliveries will be f. o. b. cars and on lighters at or near plants, providing such plants are on the Atlantic or Pacific seaboards. Should the copper be shipped -from refineries in the interior of the United States, such as from Great Falls, Mont., or- the Lake plants in Michigan, the contractor will pay the carload lot freight rate prevailing at the time of shipment from such plant to New York, N. Y. Should the contractor be required to make delivery by lighter, the United States will pay for such lighterage service at the prevailing market rates. The contractor agrees to make shipments from such plants as will be most advantageous to the Government’s interests, both in the matter of freight and time required for delivery.

The contractor shall deliver the copper herein contracted for to the United States in regular commercial shapes, such as ingot cakes, wire bars, and ingot bars, in accordance with the schedules of the several refineries. Should billets or other extra heavy cakes be called for or be required by the United States, the contractor will be paid the extra charge applying thereto in the particular plant furnishing copper in such'shapes. _

*371Time being of the essence, the contractor undertakes to increase the production to such a maximum rate as facilities and equipment permit.

The performance of this contract shall have precedence over all work for parties other than the United States. The contractor shall from time to time, and whenever requested so to do by the contracting officer, furnish to the contracting officer statements and reports on the progress of the work and any factors bearing on deliveries.

*Delays not due to contractor's fault.*— The contractor will not be held responsible for delays in delivery due to the delay of the United States in inspecting, or by other delays due to causes beyond the control and without the fault of the contractor, but, simultaneously with the removal of such causes for delay, the contractor shall proceed with the performance of this contract, due allowance for such delay having been made. The contractor agrees, in view of the emergency necessitating this contract, to use its best endeavors to remove such cause for delay.

*Contractor will marie and ship the copper.*— The contractor at its own expense shall suitably mark the copper and load the same on cars or on lighters, and at the cost of 5ie United States after delivery shall ship the copper to any point in the United States, making all arrangements for transportation, all according to the instructions of the contracting officer.

*Purchase price.*— Article III. The sum of $0,235 f. o. b. cars New York basis, hereby fixed as the purchase price of each pound in weight of the copper, delivered and accepted, will be paid by the United States to the contractor as follows :

*Payments.*— (1). Upon the certificate of the inspecting and receiving officer, showing delivery and acceptance, the United States will pay the sum of $0,235 for each pound in weight of the copper delivered and accepted as soon as practicable after such certification.

*Prompt payments.*— To facilitate prompt payments the United States may attach a disbursing officer to the main office or plant of the contractor. No payments by the United States shall act to prevent the United States from later disputing the validity thereof under this contract.

*Inspection.*— Article IY. All materials furnished under this contract, the plant, machinery, tools, and equipment, all workmanship and the copper shall be at all times subject to inspection by the officers or agents of the Ordnance Department or persons designated by the Chief of Ordnance or the contracting officer, and the contractor shall furnish *372reasonable facilities and assistance for all such inspection, and whatever of the copper does not in all respects fulfill the requirements of the contract shall be rejected.

Should any disputes arise as to the copper delivered being in accordance with specifications, a sample of the copper shall be submitted for analysis to Ledoux & Co., or to Dr. Lucius Pitkin, for determination of the analysis. If they are unable to act, an umpire mutually agreeable to the United States and the contractor shall act, or the contractor and the United States shall request the president of the Chamber of Commerce of New York City to name a chemist or metallurgist of recognized standing to act as such umpire. The fees and expenses involved in such analysis shall be paid by the party in error. Should there b@ a default in the quality of the copper received, the contractor shall bear the expense of shipment to and from the point of delivery.

At the option of the contracting officer, inspection of the copper at the mill of the contractor may be waived.

The contractor agrees to immediately replace, without cost to the United States, all copper so rejected. The contracting officer may withhold out of payments to be made hereunder on any account an amount sufficient to cover the cost thereof until proper replacement of rejected copper.

Material, *etc., to be kept unincumbered.*— Article Y. The contractor hereby, for the consideration named, waives and releases all lien or right of lien now existing or that may hereafter arise for work or labor performed or materials furnished or for any other reason or cause under this contract, under any lien laws, State or Federal, upon any material, supplies, and the like, coming into its possession which it is herein contemplated shall presently or ultimately become the property' of the United States; and the contractor agrees not to create or suffer to be created any mortgage, lien, pledge, attachment, or other incumbrances upon any such materials, supplies, or other property in its possession, and in the event that such mortgage, pledge, lien, attachment, or incumbrance is created the contractor agrees to pay and discharge or, if it disputes the validity of the claim out of which such incumbrance arises, immediately to bond the same to the end that all property shall at all times be and remain free from all incumbrance.

*This contract not assignable.*— Article VI. This contract sha.11 not, nor shall any right to receive payment or any other interest therein, be transferred or assigned by the contractor to any person, firm, or corporation without the consent of the Secretary of War.

The contractor shall make all subcontracts, purchases, payments, and arrangements for performing this contract in *373its own name and for its own account, and shall not bind or purport to bind the United States except as the contracting officer shall otherwise direct in writing.

*Subcontracts must be assignable and refer to this contract.*— The contractor shall, unless otherwise directed by the contracting officer insert in every contract hereafter made for increased facilities, component parts, labor, material, supplies, and the like or otherwise relating to the performance of this contract, a provision that such contract may be assigned by the contractor and that it relates to a “main contract” between the contractor- and the United States.

*Labor disputes.*— Aticle VII. In the event that labor disputes shall arise directly affecting the performance of this contract and causing or likely to cause delay in making the deliveries upon the date or dates specified the contractor shall address a written statement thereof to the Chief of Ordnance for transmission to the Secretary of War with the request that such dispute be settled, providing such information and access to information within the control of the contractor as the Secretary of War shall require, and it is stipulated and agreed that the Secretary of War may thereupon settle or cause to be settled such dispute, and the contractor agrees to accede and comply with all the terms of such settlement. If the contractor is thereby required to pay labor costs higher than those then prevailing in the performance of this contract prior to such settlement, a fair addition to the contract price of the article shall be made therefor; but if such settlement reduces the labor costs of the contractor, a fair deduction shall be made from the contract price, all as may be determined by the contracting-officer. No claim for addition or deduction shall be made unless the same has been ordered in writing.

*Officials not to benefit.*— Article VIII. No Member of or Delegate to Congress or Resident Commissioner, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit that may arise therefrom; but this article shall not apply to this contract so far as it may be within the operation or exception of section 116 of the act of Congresss approved March 4, 1909 (35 Stat., 1109).

*Prison labor.*— Article IX. No person or persons shall be employed in the performance of this contract who are undergoing sentences of imprisonment at hard labor which have been imposed by the courts of the several States, Territories, or municipalities having criminal jurisdiction.

*374*Disputes to he referred, to Chief of Ordnance.*— Article X. Except as this contract shall otherwise provide any doubts or disputes which may arise as to the meaning of anything in" this contract shall be referred to the Chief of Ordnance for determination. If, however, the contractor shall feel aggrieved at any decision of the Chief of Ordnance upon such reference, it shall have the right to submit the same to the Secretary of War, whose decision shall be final.

*Notice.*— Article XI. Notice under this contract when not actually given to the contractor shall be deemed to have been sufficiently -given to and received by the contractor, when mailed in a sealed postpaid wrapper addressed to the United Metals Selling Co., 42 Broadway, New York, N. Y.

“ *Contracting officer*” *defined.*— Article All. This contract may be executed in any number of counterparts, all of which together shall constitute one original contract. Wherever the term *“*Contracting officer ” is used in this contract the same shall be construed to mean his successor or successors, his duly authorized agent or agents, or anyone designated by the Chief of Ordnance, from time to time, to act as contracting officer.

In witness whereof the parties hereto have caused this contract to be executed under their seals (in sextuplicate) by their respective officers, duly authorized the day and year first above written.

Signatures:

[seal.] Ukited Metals Selling Company,

*Contractor.*

T. M. Woleson, *Vice Pres.*

United States op America,

By Jay E. Hopper,

Colonel, *Ordnance*Department, *U. S. Army,*

*Contracting Officer.*

By Chas. N. Black,

*Lieut. Colonel, Ordnance Department, N. A.*

Witnesses:

C. W. Welch,

*Secretary.*

W. S. Clarke.

IX. The plan adopted for obtaining the copper by the Government was for the War or Navy Department to send an order to the United Metals Selling Company directing it to ship a certain number of pounds of copper to some specified party on bills of lading forwarded with the order. *375This- order was sent to the producers’ committee, which returned it to the United Metals Selling Company with the name of the producer or dealer on whom the order should be made endorsed thereon. Thereupon the United Metals Selling Company placed its own order with the producer or dealer named by the producers’ committee, requesting that it “please ship” a certain number of pounds of copper to a designated party at a certain time on the attached bills of lading, giving the numbers of the same, arid also the number of the contract with the Government against which the order was issued, and stating the price to be paid as 23| cents per pound. No order was placed with the United Metals Selling Company by the Government unless there was a contract with the company against which it could be charged. Sometimes an order would be sent in advance of the contract, but the contract would always follow. Each order was identified with a specific contract.

X. The first contract entered into between the United States and the United Metals Selling Company was dated April 6, 1917, and called for the delivery of 20,000,000 pounds of copper, at 16.6739 cents per pound. The succeeding contracts were those of April 21, 1917 for 25,100,000 pounds at 16.6739 cents per pound; July 21, 1917, for 7,733,389 pounds at 23| cents per pound; October 15, 1917, for 11,593,345 pounds at 23£ cents per pound; October 26, 1917, for 13,500,000 pounds at 23^ cents per pound; November 1, 1917, for 65,000,000 pounds at 23| cents per pound,; January 20, 1918, for 100,000,000 pounds at 23£ cents per pound; February 1, 1918, for 50,000,000 pounds at 23| cents per pound; March 20, 1918, for 50,000,000 pounds at 23| cents per pound. The total number of pounds of copper the said company agreed to deliver to the United States was 343,336,734. The number of pounds delivered by the said company in accordance with the procedure set out in Finding IX, from September 21, 1917, to February 1, 1918, the period during which the copper out of which this suit arose was delivered, was in round numbers 283,000,000 pounds.

XI. Orders were placed by the United Metals Selling Company with the plaintiff in accordance with the procedure *376described in Finding IX at various times between September 21,1917, and February 1, 1918, for different amounts of coppers. The plaintiff thereupon issued its orders to the United States Metals Kefining Company to ship the copper as requested by the order of the United Metals Selling Company on the bills of lading furnished with said order. During the period from September 21,1917, to February 1,1918, the plaintiff shipped through the said refining company to the parties named by said Selling Company in its orders, among other copper, the 12,542,857 pounds which remained unsold in its possession and ownership as described in Finding II, and received therefor from the said United Metals Selling Company compensation at the rate of 23J cents per pound. The difference between the cost of said 12,542,857 pounds of copper at 26.881977 cents per pound, the rate at which the whole mass of copper, 43,851,042 pounds, on hand September 20, 1917, was purchased, and at 23.5 cents per pound, the rate at which the said 12,542,857 pounds of copper were sold to the Unitetd Metals Selling Company by plaintiff, was $424,196.54. There were shipped b3>r plaintiff during the same period on one of the same orders as the 12,542,857 pounds, 458,803 pounds to the United Metals Selling Company, concerning which no claim is made, because it was copper purchased at 23£ cents per pound, and there was no loss.

XII. The United Metals Selling Company at the time of the transactions complained of in the plaintiff’s petition was a corporation duly incorporated and existing under the laws of the State of Delaware and having its general office at No. 42 Broadway, New York City. The powers of the company under its charter were broad. It was authorized to mine, buy, sell, and deal in copper and other metals. The company, however, in its business confined itself almost exclusively to acting as sales agent for copper-producing companies.

XIII. The Council of National Defense was created by section *2 of the act of August 29, 1916 (39 Stat., 649, 650) *“*for the coordination of industries and resources for the national security and welfare,” and its organization was completed March 3, 1917. It consisted of the Secretaries of *377War, Navy, Interior, Agriculture, Commerce, and Labor. It had very extensive powers, among which was authority to organize subordinate bodies for its assistance in special investigations, and in pursuance thereof, by resolution of March 31, 1917, it organized the General Munitions Board, by one clause of which it provided that “such committee shall have no authority at this time to issue purchase orders, make contracts, or bind the Government in its purchases; all these things to be done as at present by the respective departments.” By resolution of July 28, 1917, the council organized the War Industries Board to supersede and take the place of the General Munitions Board.

NIY. The evidence fails to show that either the Council of National Defense or the War Industries Board ever placed, or attempted to place, any mandatory orders under the act of June 3, 1916, with the plaintiff, or ever entered into, or attempted to enter into, any contracts with the plaintiff to obtain copper or any other metal. .

1

 See also 55 C. Cls., 490.

2

 Appealed.

CONCLUSION OE LAW.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the plaintiff is not entitled to recover, and its petition is therefore dismissed.

Judgment is rendered against the plaintiff in favor of the United States for the cost of printing the record in this cause, the amount thereof to be entered by the clerk and collected by him according to law.