#### THE ATLANTIC REFINING COMPANY v. THE UNITED STATES

[No. 34448.

Decided January 14, 1924]

*On the Proofs*

*Eminent domain; just compensation; fair market value*— Where private property is taken for public use, just compensation therefor is the fair market value at the time of the taking, with interest thereon at 6 per cent per annum.

*Jurisdiction; Lever Act.*— Where fuel oil and gasoline are taken through procurement orders issued under authority of the Acts of March 4 and June 15, 1917 (39 Stat., 1193; 40 Stat., 182), the Court of Claims is not deprived of jurisdiction because deliveries are made after the passage of the Lever Act, 40 Stat., 276, 279.

*The Reporter’s*statement of the case:

*Mr. Ira Jewell Williams*for the plaintiff. *Mr. Francis ShtmJc Brown*was on the briefs.

*Mr. Fred K.*Dyar, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

*109The following are the facts of the case as found by the court:

I. The plaintiff is, and was during the various transactions hereinafter set out in these findings of fact, a corporation duly incorporated under the laws of the State of Pennsylvania, engaged in the business of buying, selling, and refining petroleum, oil, gasoline, fuel oil, and other jiroducts of petroleum, with its principal office and place of business in the city of Philadelphia, at No. 3144 Passyunk Avenue.

II. On June 28, 1917, a circular letter signed by the Secretary of the Navy was mailed to the plaintiff, notifying it to be prepared to furnish its proportion of the total quantity of fuel oil, Diesel engine oil, gasoline, and distillate required by the Navy for the period ending September 30, 1917, the circular stating that the prices to be paid for such petroleum products as the iilaintiff might be required to deliver would be determined later on, but that advance payments would be- made at the rates specified on an enclosed schedule, which rates would be subject to such increases or decreases as might be decided on later as proper by reason of the ultimate decision with respect to the cost of production plus such reasonable profit as might be allowed.

III. On July 7,1917, the Paymaster General of the Navy sent a telegram to plaintiff stating that he. had been informed by the supply officer at the navy yard at Philadelphia that plaintiff declined to supply fuel oil requested by him under the letter of the Secretary of the Navy of June 28,1917, and called plaintiff’s attention to the acts of March 4, 1917, 39 Stat. 1192, and June 15, 1917, 40 Stat. 182, stating that “ such acts make it mandatory upon suppliers to furnish material in advance of any commercial orders,” and requested immediate specific advice of plaintiff’s intentions with respect to supplying oil and gasoline under said letter.

IV. On July 9, 1917, the plaintiff sent the following telegram to the Paymaster General of the Navy:

“Message received. Secretary’s letter of June 28, 1917, obviously not in compliance with either act you cite, nor did we so imagine when replying thereto. If the President intends in this instance to exercise the extraordinary authority *110conferred by these acts, our counsel advises our management would not be protected unless w;e insist upon compliance with the terms of one or the other of these acts. Even though no present emergency exists we are ready and anxious to cooperate with you.”

V. There was considerable correspondence between plaintiff and the Secretary of the Navy after the dispatch of the above telegram to the Paymaster General, the plaintiff refusing to furnish the petroleum products referred to in the Secretary’s letter of June 28, 1917, upon the ground that the Secretary had no authority to fix the price of such products so as to deprive plaintiff of its rights granted by the acts of March 4 and June 15, 1917, to accept part of the President’s award and bring suit for the difference between the amount accepted and just compensation, and the Secretary insisting upon plaintiff furnishing such supplies.

VI. On July 14, 1917, the plaintiff, through its attorney, sent a telegram to the Secretary, still maintaining that the orders received by plaintiff were not in accordance with either act of Congress, but agreeing to fill the Navy’s “ immediate requirements, as if property' requisitioned, expecting Government will comply with one or other, and in such manner as to cover these and previous deliveries.” On the same day the above telegram was sent deliveries of fuel oil began.

VII. On August 9, 1917, the plaintiff received Navy order N-37. dated August 4, 1917, superseding the letter of the Secretary of June 28, 1917, and containing the same Navy schedule of advanced prices for fuel oil as were forwarded with said letter. The material parts of said order N-37 read:

“ Sir: 1. Pursuant to the provisions of the acts of Congress, naval appropriation act approved March 4, 1917, and tlie urgent deficiency act approved June 15,1917, and acting-under the direction of the President of the United States, an order is hereby placed with you, under the conditions stated in subparagraph (b) (subparagraph (a) is eliminated), to furnish and. deliver material needed by the Navy as listed below. Compliance with this order is obligatory, and no commercial orders shall be allowed by you to interfere with the delivery provided for.

“(a) The price herein stated has been determined as reasonable and as just compensation for the material to be *111delivered; payment will be made accordingly. If the amount is not satisfactory, you will be paid 75 per centum of such, amount, and further recourse may be had in the manner prescribed in the above-cited acts. Please indicate conditions under which you accept this order by filling in and signing certificate below, returning original copy of order. If you state the price fixed as reasonable is not satisfactory, 75 per cent only of the unit price will be paid. If payment in full is accepted, it will be considered as constituting a' formal release of all claims arising under this order.

“ (b) As it is impracticable to. now determine a reasonable and just compensation for the material to be delivered, the fixing of the price will be subject to later determination. You are assured of a reasonable profit under this order; and as an advance payment you will be paid the unit prices stated hereon, with the understanding that such advance payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable will be paid to you or refunded by you, as the case may be. The unit price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later decided upon as proper.

“(c) The order must be accepted and filled in any event, and if placed in accordance with subparagraph (a), you are only required to indicate below ivhether the price stated and fixed is satisfactory or is not satisfactory. If not satisfactory, a separate letter of comment and qualification must accompany the original order that is to be signed by you and returned. If order is placed under subparagraph (b), original is to be signed and returned. The duplicate copy may be retained by you in either case.”

On August 16, 1917, the plaintiff received Navy order N-17, dated August 9, 1917, also superseding the Secretary’s letter of June 28, 1917, and also containing the naval schedule of advance price for fuel oil, and the material parts of Navy order N-17 are identical with those of Navy order N-37 quoted above.

On June 24, 1918, the plaintiff received Navy orders N-3065 and N-3084, both dated June 15,1918, and both containing Navy schedules of advance prices, N — 3065 for fuel oil and N-3084 for gasoline. The material parts of N-37 *112quoted above are contained in both N-3065 and N-3084, and in addition to such quotation both contain this provision:

“(d) This order is issued in accordance with requirements of and in thorough cooperation with, the United States Fuel Administration. ”

All of the above orders were signed by the Paymaster General of the Navy by direction of the Secretary of the Navy.

The plaintiff refused to accept said orders N-17, N-37, N-3065, or N-3084, or any of them, declaring that it was unwilling to furnish the petroleum products ordered under paragraph (b) of said orders, but that it was willing to furnish the same under paragraph (a) of said orders. The plaintiff at all times denied the right of the Navy Department to determine the just compensation for such products, and claimed the right to receive the prevailing market rates and the right to sue in court for just compensation as provided by the acts of March 4, 1915, 39 Stat. 1192, and June 15,1917, 40 Stat. 182.

VIII. Naval order N-4912, dated October 11, 1918, was addressed to plaintiff and signed by the Paymaster General of the Navjr by direction of the Secretary of the Navy, but when it was received, or what action was taken with regard to it, either by plaintiff or the Navy Department, does not appear from the evidence. N — 4912 was accompanied by “ Specifications and conditions applying on east coast deliveries,” which contained, among other things, the quantity of fuel, stated 500,000 barrels, to be delivered at Philadelphia, and a schedule of prices per barrel. The material parts of N-4912 read as follows:

“ Sir : 1. In accordance with the provisions of the acts of Congress, national defense act approved 3 June, 1916, food control act approved August 10, 1917, naval appropriations act approved 1 July, 1918 (quoted in part on back of this page), and acting under the direction of the President of the, United States, by virtue of the authority vested in him by the Constitution and laws of the United States, an order is hereby placed with you under the conditions stated in sub-paragraph- (b) (subparagraph (a) is eliminated and not a part of this agreement), to furnish and deliver material or services needed by the Navy as in - sheets attached. *113Compliance with this order is obligatory, and shall take precedence over all commercial orders or contracts placed with you.

“ (A) The price herein stated has been determined as just compensation for the material to be delivered or service to be rendered. If satisfactory to you, payment will be made accordingly and acceptance of this price will be considered as constituting a formal release of all claims arising under this order. If the price is not satisfactory and you so manifest below in writing, you will be paid 75 per cent only of the designated amount. Further recourse may be had by suit against £ the United States to recover such further sum as added to the said 75 per cent shall make up such amount as will be just compensation therefor.’

“(B) As it is impracticable to now determine just compensation for the material to be delivered or services rendered, the fixing of the price will be subject to later determination. You are assured of just compensation under this order, and pending the determination of the final price, you will be paid the provisional price stated hereon, with the. understanding that such price paid will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such payment and the amount finally determined upon as just compensation will be paid to you or refunded by you, as the case may require. The provisional price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later decided upon as proper.

“ 2. This order must be accepted and complied with in any event, and if placed in accordance with subparagraph A you are only required to indicate below whether the price stated and fixed is satisfactory or *is not*satisfactory. If *not*satisfactory, a separate letter of comment and qualification must accompany the original order that is to be signed by you and returned. If the order is placed under subpara-graph B, original is to be signed and returned. Do not make any alterations in the Navy order. The original must be signed with the name of the firm or company over the *actual signature*of an ‘ officer of the company ’ or ‘ member of the firm,’ with the official capacity of the *signer*indicated. The duplicate copy is to be retained by you in either case.”

The evidence shows that no fuel oil or gasoline was either requested or furnished under order N-4912.

IX. Every notice served by the Navy Department on plaintiff to furnish the petroleum products involved in this *114suit referred to one or the other of naval orders N-17, N-37, N-3065, or N-3084. The plaintiff while agreeing to furnish the fuel oil and gasoline demanded in said notices, protested in reply to each notice against furnishing the same under paragraph (b) of said orders, and specifically reserved the right to sue in the courts for just compensation as provided by the acts of March 4, 1917, and June 15, 1917.

X.' Under the conditions described in Findings II to IX, the plaintiff furnished to the Navy, beginning deliveries on July 14, 1917, and ending March 19, 1919, 79,918,894 gallons of fuel oil and 130,167 gallons of Diesel oil, a total of 80,049,061 gallons of oil. The market value of the fuel oil at the time of delivery was $5,983,733.98 and Deisel engine oil $11,064.25. The terminal charges required of and paid by plaintiff in delivering said oil amounted to $28,440.51. The total market value of said oil at the time of delivery, including terminal charges, amounted to $6,023,238.74. The amount of gasoline delivered within the same period was 1,580,585.5, the market value of which at the time of delivery was $387,397.41, and the terminal charges required of and paid by plaintiff in making such deliveries were $162.45. The total market value of said gasoline, with terminal charges added, amounted to $387,559.86. There was paid to plaintiff for fuel and Diesel engine oil at the different dates of delivery sums aggregating $4,695,907.19 by the proper disbursing officer of the Navy, and for gasoline at the different dates of delivery of same sums aggregating $333,397.25. The total market value of all oil and gasoline delivered.by plaintiff to the Navy during the period beginning July 14, 1917, and ending March 19, 1919, with terminal charges added, amounted to $6,410,798.60, the total payments made by the Government to. plaintiff at the dates of the different deliveries of fuel oil, Diesel engine oil and gasoline amounted to $5,029,304.44, leaving a balance of $1,381,494.16 on March 19, 1919.

XT. On January 23, 1919, the plaintiff received a letter from the Paymaster General, dated January 10, 1919, fixing the prices of the petroleum products theretofore furnished to the Navy as aforesaid as the just compensation to which plaintiff was entitled. The plaintiff thereupon notified the *115proper officer of tlie Government that the prices set forth in said letter were not satisfactory, and that- it elected to sue the United States for such amount as added to payments theretofore made would be just compensation.

Thereafter the plaintiff, in April, 1919, brought three separate suits, against the United States in thq District Court for the Eastern District of Pennsylvania for just compensation. Two of the suits, Nos. 5990 and 5992, were for compensation for petroleum products delivered prior to August 10, 1917, and the third, No. 5994, was for compensation for such products delivered after August 10, 1917.. In the two suits for compensation for deliveries made prior to August 10, 1917, Commander John M. Hancock, officer in charge of the purchase of supplies and material for the Navy, among other things, made the following affidavit:

“ Deponent avers that as to the items set forth in the plaintiff’s claim the court is without jurisdiction, jurisdiction as to such claims being exclusively in the Court of Claims.”

In the suit for compensation for deliveries made after August 10, 1917, the same officer, among other things, made the following affidavit :

“Defendant denies that' the materials were requisitioned under authority vested in the President by the food control act of August 10, 1917, and is advised and believes, and therefore avers, that jurisdiction as to the plaintiff’s claim is exclusively in the Court of Claims.”

Thereupon plaintiff entered a rule for judgment in default of a sufficient affidavit of defense, but said rule was discharged in June, 1919, upon the ground that a summary judgment could not be entered in Pennsylvania against the United States.

XII. Thereafter negotiations were carried on between the plaintiff and the Government, with a view on the part of the Government to having the claim transferred to a jurisdiction more convenient for its defense, and on the part of the plaintiff to secure the additional payment admitted by the Paymaster General of the Navy to be due, as a result of which the Attorney General recommended that if plaintiff would discontinue its suits in the district court and *116bring a new suit in the Court of Claims for just compensation the Navy would pay the plaintiff the additional amount admitted to be due.

On June 30, 1919, the plaintiff and the Paymaster General entered into the following agreement, which was approved by the Department of Justice:

“ Subject: Agreement in regard to Navy Orders 17, 37, 3065, and 3084.

“Sirs; With reference to your letter of 28 June, 1919, authorizing Mr. Edwin It. Cox to sign on behalf of your company, without prejudice to either party, an agreement under which'the Navy will pay you a sum or sums on account of deliveries pursuant to Navy requisitions (Navy orders 17, 37, 3065, and 3084), so as to make the total payments equivalent to the final prices fixed by the Navy in its letter of 10 January, 1919, and with reference to the recommendation of the Attorney General that such an agreement be made on condition that the Atlantic Refining Company discontinue its suits against the United States in the United States district court in Philadelphia without prejudice to either party and file a new suit in the Court of Claims, the Navy Department agrees in modification of the above referred to Navy orders to pay as soon as possible to the Atlantic Refining Company such additional sums on account covering said deliveries under the commandeering orders as will make, added to the payments already made, the total sum resulting from applying to the quantities delivered the prices applicable as stated in the Navy’s letter of Jañuary 10, 1919, fixing under the said Navy requisitions the final prices (as understood by the Navy under the terms of the laws involved).

“ The Atlantic Refining Comía any agrees to take no further steps in the present suits and to discontinue its suits above referred to and to file a new suit in the Court of Claims and to pursue it therein unless that court decides that it has no jurisdiction.

. “ This agreement is entered into without prejudice to' the rights of the Atlantic Refining Company to recover the balance or balances claimed by it to be just compensation for all materials above referred to and without prejudice to any defense of the Navy Department to such action.”

XIII. On July 19,1919, the Paymaster General forwarded to plaintiff a check for $637,587.89, being the balance admitted by him to be due to the plaintiff. No part of the amount named in said check was for additional payment for. *117gasoline, the price of gasoline specified in the letter of the Paymaster General of January 10, 1919, having been the same as that theretofore paid to plaintiff, and according to the schedule of prices in said letter, nothing more was due the plaintiff for gasoline. ■

The plaintiff thereafter discontinued its suits against the Government in the district court, and on February 2, 1922, brought its suit in the Court of Claims.

XIV. The plaintiff delivered to the Navy on board its vessels from July 14, 1917, to August 7, 1917, both dates inclusive, 498,154 gallons of fuel oil, the market value of which at the date of delivery was $37,363.33, which, together with the sum of the terminal charges, plaintiff was required to pay in making such deliveries, $771.63, amounted to the sum of $38,134.96. The Paymaster General of the Navy paid to plaintiff upon the delivery of such oil and gasoline, as advance payments, the sum of $26,796.98, leaving a difference between the market value of said fuel oil plus terminal charges and the advance payments, so made, of $11,337.98 on March 19, 1919. The Paymaster General of the Navy on July 19, 1919, made an additional payment of $4,113.51 on said oil delivered as aforesaid.

XV. The plaintiff delivered to the Navy on board its vessels, at different dates, from August 14, 1917, to March 19, 1919, both dates inclusive, 79,421,090 gallons of fuel oil and 130,167 gallons of Diesel engine oil. The market value of said fuel oil at the time of delivery was $5,946,370-65, and the market value of the Diesel engine oil was $11,064.25, a total of $5,957,434.90. The terminal charges paid by plaintiff on delivering said oil amounted to $27,668.88, which, added to the market value of said oil, $5,957,434.90', made a total of $5,985,103.78. Between the same dates there was delivered by plaintiff to the Navy 1,580,585.5 gallons of gasoline of the market value at the time of delivery of $387,397, adding to which terminal charges of $162.45 paid by plaintiff, it amounts to $387,559.86, which sum, added to the market value of the fuel and engine oil and terminal charges, makes a total of $6,372,663.64. There was paid to plaintiff by the Paymaster General of the Navy at the times of delivery as advance'payments on said fuel and engine oil *118tlie sum of $4,669,110.21, and on the gasoline at the times of delivery the sum of $333,397.25, a total of $5,002,507.46 advance payments, leaving a, difference of $1,370,156.18 between the market value of said oil and gasoline plus terminal charges and said advance payments on March 19, 1919.

On July 19, 1919, there was paid to plaintiff' by the Paymaster General of the Navy an additional payment of $633,-474.38 on said oil and gasoline delivered between August 14, 1917, and March 19,1919.

Booth, Judge,

delivered the opinion of the court:

This case has had an unfortunate, and in some respects a singular, career. On April 19, 1919, the plaintiff company brought, three separate suits against the United States in the United States District Court for the Eastern District of Pennsylvania, seeking recovery for the amounts involved in the present suit. Two. of the suits, Nos. 5990 and 5992, were for the recovery of all petroleum products supplied and delivered by the company prior to August 10,1917. The third suit, No. 5994, sought similar redress for supplies delivered subsequent to August 10, 1917. The defendants challenged the jurisdiction of the court in the premises, supporting their contention by an affidavit of defense sworn to by Commander Hancock, in which he avers, among other things, that jurisdiction to hear and determine the cases is vested by law in the Court of Claims. Following this, conferences and negotiations between the parties culminated in a stipulation whereby the plaintiff company agreed to dismiss the foregoing suits and commence the present one in this court. Manifestly, this stipulation, as asserted by counsel, was for the benefit and convenience of the defendant, as it removed the controversy to Washington, where all the records, proofs, and papers concerning the transactions were of easy access and availability. When the case finally came on for trial in this court the defendant challenged the jurisdiction of the court, predicating its contention on the passage of the tenth section of the Lever Act, 40 Stat. 276, asserting exclusive jurisdiction in the United States district court to determine the case. *United States*v. Pfitsch, 256 U. S. 547.

*119Upon tlie facts then, as they now appear, the court, having upon its OAvn motion set aside and vacated its former judgment, a judgment rendered upon a misconception and misunderstanding of the attitude of the parties with respect to the case, and in view of the brief filed by the plaintiff company subsequent to said decision, must take the case and dispose of the same upon the present record.

The plaintiff company, as its name imports, is engaged in refining and selling products of petroleum, among others fuel oil, engine oil, and gasoline. On June 28, 1917, the Secretary of the Navy dispatched a letter to the plaintiff notifying the company “ to be prepared to furnish its proportion of the total quantity of fuel oil, engine oil, gasoline, and distillate required by the Navy for the period ending September 30, 1917.” The price to be paid for the quantities furnished was not then determined, but the company was assured of certain advance payments in accord with a schedule of prices enclosed in the letter, subject, however, to increase or decrease as the department might finally determine, the Navy Department assuming the position that the right existed to fix the price on a cost-plus basis.

The plaintiff company declined to furnish the supplies under this order, and as a result of its action received on July 7, 1917, a telegraphic communication from the Navy Department calling its attention to the acts of March 4,1917, 39 Stat. 1192, and June 15, 1917, 40 Stat. 182. On July 9, 1917, the plaintiff company responded to the above message, insisting that the defendant comply with one or the other of the above statutes, and emphasizing the fact that the order of June 28,1917, complied with neither. The plaintiff company was anxiously concerned about its rights to compensation under the acts of March 4 and June 15, 1917. It did not want to be put in the attitude of assenting to any lawful authority upon the part of the defendant to irrevocably fix the price of the supplies called for. It was obviously willing to supply the wants of the defendant under the foregoing statutes, wherein its rights to payment therefor were fully protected. A rather prolonged correspondence between the parties finally culminated in specific orders for supplies from the Navy Department to the plaintiff com*120pany, in each of . which it is expressly stated that the supplies ordered are procured under the acts of March 4, 1917, and June 15, 1917. It is true that following the express order and recital of the laws under which it was issued the department elaborated its position and set forth its construction of the scope and operation of the statutes as affecting the case and delineated its rights as to the result of the passage of the statutes. Nevertheless, the procurement order had its origin in the rights conferred upon the defendant in virtue of the passage of the foregoing statutes and no one has disputed this fact and no one may, for except in one instance, where supplies were procured and delivered, the procurement orders antedated the passage of the Lever Act. It is true that the great bulk of the deliveries were subsequent to the passage of the Lever Act, but, except as indicated above, the deliveries were simply a compliance with the prior procurement orders, the plaintiff all the while protesting its unwillingness to be bound by the defendant’s exposition of its rights under the statutes referred to in section (b) of the procurement order.

The decisions of the Supreme Court in the cases of *United States*v. *New River Collieries*Co., 262 U. S. 341, and *Houston Goal Co.*v. *United*States, 262 U. S. 361, simplify the case and leaves the single debatable issue of jurisdiction. As to all supplies procured and delivered prior to August 10, 1917, no question of jurisdiction arises. Obviously as to these transactions no other statutes save the acts of March 4 and June 15, 1917, were applicable. Procurement orders and deliveries subsequent to this date are said by the defendant to come under the Lever Act, and indispensably so because the Lever Act operated as a repeal *pro tanto*of the former statutes referred to. The plain, unmistakable terms of every pi'ocurement order, irrespective of date, under which supplies were furnished and delivered, emphasizes the fact that the defendant was acting under the laws of March 4 and June 15, 1917. No express terms in the Lever Act assert a repeal of former emergency war legislation, and it is difficult by comparison to imply a repeal when the scope and field of operation of the laws in nowise conflict. The contemporaneous history of war legislation negatives a con*121tention that Congress intended to make uncertain the power and authority of the President to requisition and procure supplies for the support of the Army and Navy and the successful prosecution of the war. The contrary intent prevailed, and Congress repeatedly sought to grant the widest authority and power. The mere fact that legislation toward this end repeated the subjects of the power and enlarged the authority theretofore given is not sufficient to warrant us in holding a partial repeal of preexisting laws on the same subject matter by implication, where in both instances the remedy provided for relief in case of dissatisfaction is ample and complete and the requirements of the fifth amendment to the Constitution fully met.

Congress having granted the authority and provided a remedy, it is difficult to perceive an intent to materially alter the remedy alone, in the midst of war, and create the incident confusion in the large number of instances where the power had been exercised in good faith under prior laws. In the absence of a more direct expression from which such an intent might reasonably be implied, we hesitate to so hold. The rule of law is directly to the contrary. In this case the officers of the Government invoking the law expressly purported to act under laws other than section 10 of the Lever Act. The requisitions were made under statutes passed anterior to the Lever Act, except in one instance, and the mere fact that deliveries occurred after the passage of the later law is not, in our opinion, sufficient to change the character of a transaction begun and concluded under a former valid law. The Supreme Court in the *Pfitsch case,*supra, ivas considering a requisition made under section 10 of the Lever Act long after its passage, a positive assertion of authority under its express provisions. The opinion recognizes the concurrent jurisdiction provided by section 24, paragraph 20, and section 145 of the Judicial Code as subsisting under the acts of March 4, 1917, and June 15, 1917, and is apparently limited to requisitions under section 10 of the Lever Act. No suggestion is found in the opinion that the power and authority to requisition is limited to section 10 of the Lever Act, and no statement that it is sufficienly compre*122hensive to include requisitions made under other valid and contemporaneous laws.

This transaction in all its detail was inaugurated under existing law. The power exerted was justified under the terms of the act of June 15, 1917. The plaintiff company furnished the supplies under that impression, and certainly in a completed dealing of this character we would not be expected to go over and segregate each particular delivery made and again audit the accounts of the parties. Assuredly the tenth section of the Lever Act contemplated no such procedure.

On the authority of *Seaboard Air Line Ry. Co.*v. *United States,*261 U. S. 299, the plaintiff is entitled to a judgment for $743,906.27 with interest thereon at the rate of six per centum per annum from July 19, 1919. It is so ordered.

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