#### WILLIAM C. ATWATER & COMPANY, INCORPORATED, v. THE UNITED STATES.

[No. 34215.

Decided November 21, 1921.]

*On the Proofs.*

*Contract; quantity estimated; quantity needed.*— The Questions involved in this case are essentially the same as those in *Willard, Sutherland & Co. v. United States, ante,*p. 413, and the petition was dismissed upon the authority of that case.

*The Reporter's*statement of the case.

' *Mr. Karl Knox Gartner*for the plaintiff. *Balcer da Baker*were on the briefs.

*Mr. Alexander H.*McCormick, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff is and has been at all times herein mentioned a corporation of the State of New York engaged in the business of shipping Pocahontas smokeless coal and coke, having its office and principal place of business at No. 1 Broadway, New York City, and operating branch offices in Boston, Norfolk, Cleveland, Bluefield, London, and elsewhere.

*459II. In the spring of 1916 the Navy Department, being desirous of procuring contracts for coal for that department for the next ensuing fiscal year, to be delivered in varying quantities at different stations, issued its invitation for bids in the form of a schedule numbered 9485, containing general specifications and conditions and printed forms of proposals for deliveries in stated quantities at ten different ports or stations. Included therein and designated as “ class 18 ” was a form of proposal for the furnishing of 600,000 tons of steaming coal to be delivered f. o. b. vessels or barges under chutes at respective piers, Hampton Roads, Virginia.

The general specifications contained the following provisions under the subhead “ Quantities estimated ”:

“ It shall be distinctly understood and agreed that it is the intention of the contract that the contractor shall furnish and deliver any quantity of the coal specified. which may be needed for the naval service at the places named during the period from July 1, 1916, to June 30, 1917, irrespective of the- estimated quantities stated, the Government not being obliged to order any specific quantity.

“ The estimated quantities have been arrived at from the records of previous purchases. While they represent the best information obtainable as to the quantities which will be required during the period covered by the contract, they are estimated only and are not to be considered as having any bearing upon the quantity which the Government may order under the contract.”

Under the subhead “ Reservations ” appeared the following:

“ The Government reserves the right to reject any or all bids, and in accepting any bids for the different ports of delivery named the right is also reserved to make such distribution of tonnage among the different bidders for suitable and acceptable coals for the naval service as will be considered to be for the best interests of the Government.”

Under the subhead “ Notes ” appeared the following:

“ *(a)*Bids on less than the entire quantity of coal specified under each class will be received and considered. Such partial bids *must*state the amount of tonnage it is proposed to furnish, subject to the other conditions of these specifications.

*“(b)*Contractors will not be held responsible for fulfillment of their contracts during any war in which the United *460States may be engaged and which may affect them, or if prevented from doing so by strikes or combinations of miners, laborers, or boatmen, accidents at the mines, or interruption or shortage of transportation. In such cases the obligation to deliver coal under their contracts will be canceled to an extent corresponding; to the extent or duration of such war, strikes, combinations, accidents, interruption, or shortage, and no liability shall De incurred by the contractors for damages resulting from their inability to fulfill their contracts on account of the aforementioned cases.”

III. The plaintiff on said form submitted its proposal for the furnishing of 200,000 of said 600,000 tons at $2.80 per ton and was notified of the acceptance of its proposal to furnish said amount. On June 5, 1916, a contract numbered 26488, and made a part of the petition herein by reference as Exhibit A, was entered into between the parties. The contract in its physical construction was made up largely of portions of the general specifications, notes, etc., and the printed proposals contained in said schedule numbered 9485, which were clipped therefrom and pasted on and thus made a part of the contract, and the paragraphs quoted in Finding II were thus made a part thereof.

IY. On March 26,1917, plaintiff was informed by the Paymaster General of the Navy that it has been ascertained that the quantity estimated in its contract would be exceeded by about ten per cent. In reply to this communication the plaintiff expressed its surprise, stated that it had not bid on tonnage in excess of 200,000 tons, called attention to heavy curtailment in production at its mines, due to shortage of cars and labor, because of which it ha„d only been able to deliver 75 per cent of other contracts, in view of which it was felt by its operatives that they had met in full their obligations to the Government by delivering 100 per cent of the 200,000 tons during the contract period. In reply thereto the Paymaster General of the Navy cited quoted provisions of the contract as authority for the requiring thereunder of an additional tonnage over and above the 200,000 tons, stated that the excess tonnage required was being prorated and the same requirements were being made of other contractors, and that the contract price must apply to the total requirements during the fiscal year.

*461On April 17, 1917, tbe plaintiff called attention to the “ Relief clause ” in the contract “ Notes (5),” (Finding II), submitted a statement as to available car supply, and maintained that on that basis it was only obligated to deliver up to April 1, 1917, 148,357 tons, whereas it had actually delivered to said date 160,377 tons, a claimed excess of 12,020 tons, and stated that “ the total of 220,000 tons above referred to is subject to the reduction of 12,020 tons, making the actual tonnage deliverable by us under our contract 207,980 tons.” To this communication the Navy Department replied by letter of April 30th insisting that the ten per cent additional must be delivered under the contract, and in reply to the claim based on transportation conditions (under note (&) of the contract) informed the plaintiff that—

“ It can not be recognized that you are entitled to any relief on account of such shortage of equipment as may have been experienced,, as, in this respect, the Navy is accorded preferential treatment and this department has not failed to obtain the cars required by its suppliers when requests for cars to move Navy tonnage have been received.”

Replying to this letter of the Navy Department the plaintiff stated that it did not agree with the Navy Department, but admitted that the Navy Department had for some time been accorded preferential treatment in the matter of cars and conceded that the preferential arrangement be related back to January 1,1917, and on that basis stated that “ The total of 220.000 tons requisitioned by the department under our contract is therefore subject to reduction to the extent of 8,219 tons, making the actual tonnage deliverable under the contract 211,781 tons.” On April 26,1917, the Navy Department informed the plaintiff that it was entirely impracticable for the department to recede from its request for the ten per cent additional over the estimated quantity in the contract. On May 22,1917, the plaintiff, acknowledging an assignment to it of 10.000 tons to be delivered at Lamberts Point between June 1 and 10, stated the condition of its contract, showing 204,430.19 tons delivered and assignments to barges of 2,650 tons, a total of 207,080.19 tons, and stating that “ The above assignment .added to this tonnage will make a total of 217,080.19 tons, leaving 2,920 tons still- to go all rail.”

*462On June 2, 1917, plaintiff wired the department referring to recent telegrams and saying:

“We beg to call attention to department’s notice to us under date March twenty-sixth we would be required to deliver contract tonnage plus ten per cent, *eighty-two hundred nineteen tons of which by reason of short car supply we are delivering under protest.*With completion of your requisition for ten thousand tons May twenty-first, two hundred and twenty thousand tons will have been delivered, being eighty-two hundred nineteen tons in excess of tonnage required to complete contract.”

V. The plaintiff delivered to the Navy Department 219,990 tons of coal, being 19,990 tons in excess of the estimated quantity stated in the contract; 211,781 tons (being 220,000 tons, less 8,219 tons) were billed at $2.80 per ton, the contract price, and the remainder was billed at $6.25 per ton. All was paid for at the contract price, but the plaintiff protested acceptance of the contract price for the excess over- 211,781 tons. At the time the amount of coal over 200,000 tons was delivered to the Navy Department the market value thereof was $6.50 per ton; 19,990 tons of coal then furnished by the plaintiff to the Navy Department were worth in the market $73,964.48 in excess of the contract price therefor;

DowNet, Judge,

delivered the opinion of the court:

This case as presented is in essential respects like and must be controlled by the case of Willard, *Sutherland & Company*v. *United*States, ante, p. 413, and detailed discussion will, therefore, not be deemed necessary.

The chief difference is found in the fact that this plaintiff seems to have conceded the right of the defendant to require them to furnish an additional quantity of coal over and above the estimated quantity stated in their contract, but claimed that under another clause of 'the contract they were relieved from furnishing 8,219 tons, and as to that only they demanded the market price. If the case were presented here on the basis of the contention thus made, we would have difficulty in finding merit in it, but that theory is abandoned and the claim made here, as in the *Sutherland*case, is for the market price for all coal furnished in excess of the estimated 200,000 tons. The effect upon plaintiff’s case, as presented, of *463some of the facts found as to its attitude during the progress of the contract and its complete departure now from its claimed rights then, both in theory and amount, might be discussed but, apparently, no good purpose could be served. Upon the authority of the *Sutherland ease,*the plaintiff’s petition must be dismissed.

Graham, *Judge;*Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.