#### DANIEL W. HERRMAN v. THE UNITED STATES.

[No. 34752.

Decided January 23, 1922.]

*On the Proofs.*

*Fifth amendment; liability.*— Where a domestic importer has contracted with an English manufacturer for a quantity of coat linings, known in the trade as “ Venetians,” and has been notified, among other importers, by the Government that Army emergency requires that “ all contracts between domestic importers and English manufacturers ” for such goods should be requisitioned for Army purposes, and who thereafter enters into negotiations to dye and deliver such goods to the defendant, and does actually deliver such goods and receive payment therefor, and only protests against the delivery at the ¡price fixed by the Government, and at the amount he receives, it is *97not a taking within the meaning of the fifth amendment to the Constitution, and the Government is not liable for any additional compensation.

*Protest.*— Where a plaintiff protests against an act which he voluntarily performs, he acquires no additional rights by his protest.

*The Reporter's*statement of the case:

*Mr. H. Rosier*Dulany, *jr.,*for the plaintiff. *Dulany d& Shepard*and *Mr. Charles J. Katzenstein*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 was during the different transactions hereinafter described, a citizen of the United States, residing in the City of New York and doing business under the firm name of Herrman, Sternbach and Company, importing coat and suit linings, known in the trade as Venetians, from Bradford, England, where such goods were exclusively manufactured, and where he maintained a branch office.

II. It was a custom of the plaintiff of long standing to purchase large quantities of undyed Venetians a year in advance of the time when they would be needed, to be held in England, dyed, and delivered during the following year.

III. On June 25, 1918, an agent of defendant wrote to dealers, including plaintiff, the following letter:

Clothing and Equipage Div. In answer refer to file No. 423-C & E-C G B-P S.

WAR DEPARTMENT,

Oeeice oe the Quartermaster General oe the Armv, *New York*City, *June 1918.*

From: Acting Quartermaster General.

To: H. Herrman, Sternbach, 25th St. near 4th Ave., New York City.

Subject: Venetians and twills.

1. Army emergency requires that we take over all contracts between domestic importers and English manufac*98tures covering Venetians and twills of a suitable construction for our purposes.

2. We require your purchase memorandum, or certified copy of same, covering all Venetians and twills, as above, due you for delivery from now up to and including October, to be accompanied by samples representing qualities referred to in your contract.

3 All goods are to be held in England until we have taken action on them.

4. Such goods as we select will be taken on a basis of net cost, as shown by your contract, plus 10 per cent.

CottoN Goods Branch, Procurement SectioN, (Signed) By J. H. Tract,

To the above letter the plaintiff, through his manager, replied:

Jtjlt 3rd, 1918.

The Office of the Quartermaster,

General of the Army,

109 East 16th St., City.

(Attention of Mr. J. A. Tracy.)

GeNtlemeN: Referring to file No. 423 O & E CGB PS and in compliance with your request, we are sending you herewith samples of the two numbers of Venetians shown you yesterday.

Of quality 5755 — we have the balance of a contract of 334 pieces (approximately 60/65 yards) 32" Marquise Deluxe, purchased June 6th, 1917, at 19fd. These goods are 404 threads per square inch and weigh about 5.31 ounces per square yard.

Quality 5818 represents 300 pieces of 54" Marquise Deluxe (Approx. 60/65 yards) purchased May 17th, 1918, at 44¿d.

Quality 5786 represents 253 pieces 54" Marquise Deluxe, balance of a contract (approx. 60/65 yards), purchased June 6th, 1917.

On the last two numbers the weight is about 5.18 oz. per square yard and 404 threads per sq. inch.

As explained to you, it is very likely that some of these goods have been shipped prior to the receipt of your requisition.

Quality 5755 — these goods are being held in the Grey-Qual. 5786 — these goods have been particularized in colors and part, if not all, are probably dyeing. Qual. 5818 — 50 pieces of these have been particularized into colors and on the balance no color assortment has been given.

*99Will you be good enough to let us know your decision as regards these qualities at your earliest convenience?

Yours, truly, F. W. Schmidt. FWS: FH.

To this letter the defendant answered:

Clothing & Equipage Div.

WAR DEPARTMENT,

Oeeice oe the Quartermaster General oe the Army,

*New York City, July 15,1918.*

In answer refer to File No. 423 — C&E—CGB—PS.

From: Acting Quartermaster General.

To: H. Herrman, Sternbach & Co., No. 23, East 26th Street

New York City, N. Y.

Subject: Venetians.

1. Referring to your letter of July 3rd, Quality 5755, Army emergency requires that we take over the 334 pieces that you report on hand in Bradford, in the grey, to be dyed by you.

2. You are to inform us of the actual cost price of these goods and an order will be sent you covering them, with an allowance of 6 per cent to cover the casing and putting-up charges, and 10 per cent profit.

3. Qualities 5818 and 5786 we release as too light for our purpose.

By authority of the Acting Quartermaster General.

Cotton Goods Branch, Procurement Section, By J. H. Tract.

IV. The plaintiff purchased the 32-inch Venetian in England June 6, 1917, at 19| pence per yard, the goods being, in the grey, and the price mentioned included the cost of dyeing them. During negotiations with the procurement agent relative to the price which would be paid for goods by the Government the plaintiff stated that there was an expense to him on account of maintaining an office in England, and it was agreed that 2 per cent should be added to the said price on that account. The procurement agent fixed the price at which the goods would be taken at $0.4609 per yard, arrived at by adding the 2 per cent for office expense to the 19f pence per yard and by adding 6 per cent for casing and putting up and 10 per cent profit. This figure made the amount for the Venetian delivered by plaintiff in England the sum of $9,865.91.

*100V. Plaintiff later received the following order:

Purchase order authorized July 20, 1918.

1. Date: August 6, 1918.

2. From quartermaster at: Quartermaster General’s Office, Clothing and Equipage Division, Contracting Branch, 109' East 16th Street New York, N. Y.

3. To: Name, H. Herrman, Stembach *&*Co., address *25*E. 26th Street, New York City; factory name, H. Herrman, Sternbach & Co.; and location, Bradford, England.

4. Deliver the following articles: 32" finished Venetian.

Total quantity: Approximately twenty thousand (20,000) yards.

Unit price: Forty-six and nine hundredths cents ($0.4609) per yard; to include the cost of commercial packing.

*7.*Total price: Approximately $9,218.00.

8. F. o. b. delivery point: F. o. b., cars, Bradford, England.

9. Schedule of deliveries: To be completed by August 31, 1918.

10. Shipping directions: To be furnished by the depot quartermaster at New York, N. Y.

Authorization No.: MPA-2102; RQ 1205-CE-40.

12. Order No.: 4173-N.

Specifications: 32" finished black Venetian as *per*sample submitted by the contractor ; quality *5755.*

14. Proof of delivery: The contractor shall accompany each invoice made upon this order with a certificate to be made by the purchasing officer for the United States of America, located in London, England, certifying that the material or merchandise referred to in such invoice has been delivered to and received by such purchasing officer, and that such materials or merchandise so received is in all respects like the sample to be annexed to such certificate.

15. File No.: 423.3-CE-C.

16. Branch No.: CG-1649.

17. Remarks to D. Q. M.: To be used for Overseas Service coat lining and contractor is required to state same on invoices and packages. Goods bought finished. Please acknowledge receipt of order.

(Signed) S. W. Shaffer,

*Captain, Q. M. B.*C., *Purchasing Quartermaster.*

VI. After the issuance of the order mentioned in Finding V, the plaintiff caused the goods to be dyed in England and delivered f. o. b. cars at Bradford to an agent of the *101Government. At the time of this delivery to the Government the plaintiff had a number of outstanding contracts to furnish 54-inch Venetians. The plaintiff at that time had no contracts to furnish 32-inch Venetians.

The plaintiff delivered 333 pieces (21,4Q5f yards) of 32-inch Venetians and was paid therefor at the rate of $0.4609 per yard. He protested against the ■ price that was fixed prior to making said delivery, and at the time of receiving the payment, which amounted to $9,865.91, he protested against receipt of the same as a full or just compensation for the goods. His protests were made before as well as after the delivery. He was informed prior to the order dated August 6, 1918, that if the goods were not delivered they would be commandeered and he be remitted to his rights under such a proceeding.

VII. Before war with Germany was declared there was little demand for Venetians and they were comparatively cheap. After the war began the demand became very great and practically all of the 32-inch Venetians on the market were purchased by the Government. At the time the plaintiff’s 32-inch Venetians were delivered to the Government there was none on the market. The plaintiff purchased some 54-inch Venetians in July, 1918, at Bradford, England, at 232 shillings per piece, the market price, which with the added charges for dyeing and handling, at the average rate of exchange February 28, March 31, and April 30, 1919, amounted to $1.2954 per yard, from which plaintiff attempted to deduce a market rate of $0.7671 per yard for 32-inch Venetians. The Government in June, 1917, bought some Venetians in New York and paid therefor 77 cents per yard.

VIII. Claim for $6,567.28 (the difference between 21,405| yards of 32-inch Venetians at 77 cents per yard and the 46.09 cents paid by the Government) was presented to the Board of Contract Adjustment of the War Department and rejected, and upon appeal to the Secretary of War the decision of the Board was approved on October 5,1920.

*102Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff was an importer of goods known as Venetians, and in the summer of 1917 had contracted for the purchase of a quantity of these goods from a manufacturer at Bradford, England, and they were held there for plaintiff in their undyed condition. On the 25th day of June, 1918, an officer in the Clothing and Equipage Division of the Quartermaster’s Department, acting under proper orders, addressed a communication to a number of importers and dealers “in Venetians and twills,” including plaintiff, which stated that Army emergency required the taking over of “ all contracts between domestic importers and English manufacturers covering Venetians and twills of a suitable construction” for Army purposes; that there was required the importers’ purchase memorandum covering the goods due for delivery up to October, these to be accompanied by samples representing qualities referred to in the contracts; that all goods were to be held in England until action was taken by the department mentioned; and that such goods as were selected- would be taken on a basis of net cost, shown by the contract, plus 10 per cent.

The plaintiff replied on July 3rd to this notice by submitting a number of samples of Venetians, and stated that, among others, he had the balance of a contract for 32-inch Venetians, purchased June 6, 1917, at 19-| pence, which were being held in the grey. On July 15th the same officer wrote plaintiff that “ Army emergency required ” the taking over of the Venetians that he had reported on hand in Bradford in the grey, and to be dyed by him, and further that plaintiff was to inform the department of the actual cost price of these goods, and that an order would be sent him covering them, with an allowance of 6 *per*cent to cover the “ casing and putting up charges ” and 10 per cent profit. The plaintiff called upon the procurement agent and objected to the price, urging among other things that the maintenance by him of an office in England entailed additional expense. It was agreed between these parties that 2 per cent additional would be allowed because of the expense of the office maintained by plaintiff in England. *103This brought the price to 19.T625 pence. Plaintiff protested against the allowance of only 10 per cent profit. On August 6, 1918, plaintiff received an order to deliver the 32-inch Venetians at the unit price of $0.4609 per yard “to include the cost, of commercial packing,” delivery to be f. o. b. cars at Bradford, under shipping instructions to be furnished by the depot quartermaster at New York. As to proof of delivery, the order stated that “the contracts shall accompany such invoice made under this order” with a certificate by- the United States purchasing officer located at London that delivery had been made. Later the plaintiff, having first had the goods dyed to conform to tire sample he had exhibited to the Government’s procurement agent, caused deliveries to be made of the goods f. o. b. cars at Bradford in accordance with the order. He was paid therefor at the rate of $0.4609 per yard, this price being the cost of the goods in the grey to plaintiff, as has been stated, and included the cost of dyeing, with 2 per cent added to the price for office expense, 6 per cent added for packing or casing, and 10 per cent for profit. The plaintiff protested against the latter item, and protested that the total amount paid to and received by him was inadequate and was not just compensation. The plaintiff had been informed by the procurement agent that unless he turned over the contracts desired his goods would be “ commandeered.” Manifestly, the agent who was seeking the goods for the Army needs had no right to fix the price at which the importers should deliver their contracts or their goods, but it is also true that the plaintiff could, by a course of dealing with such agent, settle or agree upon the price.

It may be true, as plaintiff apparently claims, that he delivered the goods in England, where they were when the negotiations began, because he thought he had no other recourse, but that claim does not alter the law or the facts that he made deliveries upon procurement order which stated the price, and that before making these deliveries he undertook to dye the goods and negotiated for the cost of casing and an additional allowance because of office expense. He had been informed at the outset of the price which the *104procurement agent expected to pay, and the circular giving that information was, in effect, a proposal to buy at the stated price. If this sum was not acceptable to plaintiff, the law did not require him to accept it. Finally, the goods were delivered f. o. b. cars in Bradford, England, after having been dyed by plaintiff and packed by his representative under an order which stated the terms. In these circumstances his protest over the percentage of profit allowed him becomes ineffective. Whether the goods, then in England, could have been “commandeered” over plaintiff’s objection we need not decide. He did not protest against delivering them, but he. facilitated their delivery without putting the procurement agent, or those authorized to do it, to the necessity of “ commandeering ” them. His mere protest of the price is not sufficient. *Gibbons*case, 8 Wall. 269; *Willard, Sutherland & Co.,*56 C. Cls. 413.

It may be added that if the plaintiff’s right of action were conceded it would yet result that there can be no recovery, because there is no satisfactory proof of the value of the goods. These were in England, and while there is some rather vague testimony as to the value of 32-inch Venetians in New York about the time of the *negotiations*with plaintiff, that value, if proven, would not be sufficient to show what the value was of the contracts for goods on the other side of the ocean.

We conclude that the petition should be dismissed. And it is so ordered.

Graham, *Judge;*Hat, *Judge;*DowNey, *Judge;*and Booth, Judge, concur.