#### MAX M. HOROWITZ v. THE UNITED STATES.1

[No. C-13.

Decided March 19, 1923.]

*On Defendant's Demurrer.*

*Contract; embargo on shipments; delay.*— Where plaintiff enters into a contract with the United States to purchase certain merchandise and after payment for the same and its sale by plaintiff to another party, plaintiff directs its shipment by freight and the agents of the Government attempt to ship the same by freight, but owing to an embargo laid by the Government on the shipment of such merchandise by freight, they were unable to do so and finally shipped the same by express, at which time, by reason of such delay, the price had fallen *190and the purchaser refused to take the goods, and plaintiff was compelled to sell them at a loss, he is not entitled to recover his loss as the embargo was lawfully imposed and affected all such contracts alike.

*The Reporter’s*statement of the case:

*Messrs. D. E. Rorer*and *W. F.*Norris, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the demurrer.

*Mr. Raymond M. Hudson*opposed.

The material allegations of the petition, to which defendant demurs, are as follows:

About December 20, 1919, plaintiff negotiated with the Government for and bid on certain silk, and on December 22 was notified that the Washington Ordnance Salvage Board approved the sale to plaintiff of said silk, whereupon the plaintiff paid the Government $5,000, and on February 6, 1920, another $5,000. It was agreed between the parties that the Government would ship the silk by freight after receiving instructions to so do from plaintiff.

On February 16, 1920, plaintiff paid the balance of the purchase price and notified the Ordnance Salvage Board in writing to ship the silk at once by freight.

On February 18 said board notified plaintiff in wilting that it had ordered the silk shipped according to instructions to the Cambridge Silk Co., care Joseph Schultz & Bros., by freight.

From February 16, 1920, up to March 4, 1920, the said silk was not shipped as promised, nor was plaintiff notified until March 4 of such nonshipment; that the silk had been sold by plaintiff to the Cambridge Silk Co. on or about January 31, 1920; and that from said date until March 4 the price of such silk declined about 25 per cent in the New York market. That when the silk arrived in New York on or about March 12 the consignee refused to accept it.

The said silk had not been shipped, as agreed upon, for the reason that the Government through the Bailroad Administration had prior to March 1,1920, placed an embargo on shipments of silk by freight, and the shipment of silk for plaintiff had been held up, and afterwards the Gov-*191eminent shipped the silk to the consignee by express, who refused to accept the same because of the delay of the Government and the drop in prices.

That by reason of the Government’s breach of contract in placing an embargo and failing to ship the silk either by express or freight, and the decline in the meantime of the price of silk, plaintiff was forced to sell said silk for $10,811.84, less than the price the consignee had agreed to pay for same, for which amount he prays judgment.

The defendant’s demurrer was sustained and the petition dismissed, with the following

1

 Appealed.

MEMORANDUM

BY THE COURT.

The petition in this case does not allege a cause of action. It is nowhere alleged that the embargo established was in anywise contrary to law, and it does not appear that the defendant otherwise failed to observe its obligations under the contract of sale. The plaintiff directed the manner of shipment, and specifically pointed out how it should be carried out. The defendant in good faith endeavored to comply with the plaintiff’s directions, but was forestalled in so doing by the establishment of an embargo, and it will not avail the plaintiff to simply allege the fact of the existence of an embargo established by the United States Railroad Administration. No authorities have been cited to sustain the plaintiff’s contention. The case is governed by the principles discussed in *Deming's case,*1 C. Cls. 190.