#### THORVALD BERG AND DAVID C. REID v. THE UNITED STATES1

(No. C-914.

Decided March 17, 1924)

*On Defendants Demurrer*

*Requisition; contract tor construction of vessel; contract for commissions.*— Where a party has a contract with a shipbuilding-company for the construction of a vessel and a contract with plaintiffs to pay them a commission for securing a charterer *463for said vessel, but before the completion of said vessel the United States requisitions the same, there is no implied promise on the part of the Government to pay said commission to plaintiffs for securing' a charterer for the owner, and there is no taking of plaintiff’s property for which he is entitled to recover in the Court of Claims.

*The RefortePs*statement of the case:

*Mr. Paul Goolesey*for the plaintiffs.

*Messrs. W. L. Gole*and *George H.*Foster, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

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

Plaintiffs on April 4, 1916, obtained for one Wilhelm Jebson, owner of a contract for a tank steamer, a charterer for said tanker, namely, the Huasteca Petroleum Company, upon agreement for a commission of 5 per cent of all hire as paid under the charter or any extension of same. On August 3, 1917, prior to the completion of the tanker the United States Shipping Board Emergency Fleet Corporation issued an order requisitioning the unfinished tanker and the material in the yard for its completion. On October 2, 1917, the Emergency Fleet Corporation entered into a new charter party with the Huasteca Petroleum Company for the vessel at a fixed rate and with provision for purchase by the charterer in event the tanker was not returned to the original owner. In consideration of this latter, the Huasteca Petroleum Company assigned all of its rights under the original charter party to the Fleet Corporation and released the said Fleet Corporation from all claims by reason of the requisition of the subject matter of the charter party. On June 3, 1919, the Emergency Fleet Corporation entered into an agreement with the original owner of the tanker wherein settlement and just compensation were made of all claims of said owner arising out of the requisition. On March 12, 1920, the tanker was sold by the Fleet Corporation to the charterer, the Huasteca Petroleum Company and Pan American Petroleum and Transport Company, of - which company the Huasteca Petroleum Company is a subsidiar}7.

*464That the effect of the requisition order of August 3, 1917, was to take their property, which property is said to be a right or equity in the vessel itself by clause 35 of the original charter party of April 4, 1916; that the existence of the charter party of April 4, 1916, secured by plaintiffs made possible the charter party of October 2, 1917, and that it was likewise due to the existence of the original charter party that, the sale was made; that plaintiffs are entitled to a commission on the charter hire amounting to $105,000 and to a commission on the sale amounting to $83,078, a total of $188,078.

That one of the plaintiffs, David C. Reid, expended in and about the charter party and in fitting the steamer to execute the charter party the sum of $2,500.

Demand of payment and refusal of the Shipping Board is alleged.

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

1

 Appealed.

MEMORANDUM BT THE COURT

1. The defendant did not take any property of plaintiffs. See *Omnia Commercial Co.*case, 261 U. S., 502; *Friend*case, 56 C. Cls., 423.

2. The facts stated do not show an implied contract on the part of the United States to pay the commissions to the broker mentioned in the contract or to compensate plaintiffs.