#### NATIONAL CONTRACTING COMPANY, A CORPORATION, v. THE UNITED STATES1

[No. B-57.

Decided June 23, 1924]

*On the Proofs*

*Contract; sale of “loaste matter" at Army camps.*— Where the Government agrees to .sell “ waste matter ” at two Army camps at the rate of three cents at one and four cents at the other “per month for each soldier and each person in Government service ” stationed at the particular camp, the failure of the Government *to*turn over to the contractor brass, aluminum, iron, wire, lead, nails, and many other similar articles was not a breach of said contracts.

*The Reporter’s*statement of the case:

*Mr. Raymond M. Hudson*for the plaintiff.

*Mr. M. L.*Blahe, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

*881Tlie following are the facts of the case as found by the court:

I. The National Contracting Company is a corporation duly organized and existing under the laws of the State of Virginia and has its principal office in the City of Norfolk in that State.

II. On August 81, 1917, plaintiff entered into two contracts with the United States Government, one through John T. Knight, Colonel, Q. M. C., U. S. A., covering the embarkation cantonment at Newport News, Va., which included Portlock Classification Yard, Norfolk Engineers Depot, Lamberts Point, Norfolk; Pig Point Munitions Depot, Norfolk; Camp Stuart, Newport News; Camp Hill, Newport News; Camp Morrison, Morrison, United States Army Base, Norfolk County, Va.; and the other through Colonel J. L. Knowlton, Q. M. C., U. S. A., covering Camp Lee, Petersburg, Va., each of the said officers having been duly authorized to execute such contracts in defendant’s behalf. Said contracts and similar contracts for other camps were made and were performed by the contractors therein under the supervision of what was at first designated as the conservation and reclamation bureau of the War Department, but later became known as the salvage bureau.

It was the principal duty of this bureau to gather, reclaim, and conserve worn and otherwise unserviceable articles and materials; and in the course of its operations great quantities of such articles and materials were reconditioned and returned to use by the Government; much was converted into other or different kinds of articles and put to Government use, and some were sold. As illustrations: Discarded uniforms were rehabilitated and furnished to Government labor battalions; old marine campaign hats were worked over into hospital slippers; discarded shoes were repaired and used for troops that remained in the United States; broken riñes and cannon were shipped to ordnance depots and repaired; and worn automobiles and parts were shipped to motor transport depots and repaired.

*882III. The general manager of the plaintiff corporation having been informed of the Government’s purpose to award the contracts, he and his associates went to Washington, and after considerable discussion of details the contracts were executed as stated. During the conference at Washington waste materials were figured in plaintiff’s estimates in arriving at its figures for handling the contracts, and they were closed with the understanding by plaintiff that waste materials of the classes mentioned in Exhibits B and D to the petition were figured in said estimates, and formed a consideration for taking the contracts. *

IY. Under the said contracts there were delivered to the plaintiff by the Government officers and agents at said camp and cantonment such of the garbage and matter designated in section 5 of the contracts; that is, bones, fats, tallows, and other garbage, papei*, bottles, rope, twine, and cans as were desired by the plaintiff, and such others of them as were required by the Government officers to be removed.

On account of a lack, of Government transportation equipment and facilities, some of said waste matter was not collected and delivered to the plaintiff bjT the Government authorities in accordance with the provisions of section 2 of said contracts, but such of these as the plaintiff desired were collected by the plaintiff’s agents themselves from the different points throughout the said cantonment and camp.

Y. At different times during the period covered by said contracts there, were on hand, and not being used, at said embarkation cantonment and Gamp Lee large quantities of Government materials of the kinds named in Exhibits B and D to plaintiff’s petition, as follows: Auto radiators, empty barrels, empty cases, knives, auto parts, bailing wire, brass of different kinds, composition, condemned and other oats and feeds, copper wire and materials, horseshoes, cotton and rubber hose, aluminum of all kinds, inner tubes of all kinds, iron of various kinds, scrap and miscellaneous leather, lead of all kinds, nails of all kinds, mane and tail roachings, rubber, steel of all kinds, stove plates and grates, auto tires, motor-cycle tires, and tubing of all kinds. Some of these materials had been returned from Europe. Some *883of them were fit for use, and were used by the Government in the condition in which they then were; and some were repaired or reconditioned and reused by the Government. There was a Government salvage board organized to look after and salvage such materials.

It does not appear what part of said materials were or were not then fit for use by the Government, or could or could not be made fit for such use by repairing or reconditioning them, or what part was or was not then or subsequently used by the Government nor what part of said materials was produced at said camps. It does not appear what were the quantities, condition, or value of said materials at said times and places, nor does it appear what part of the several classes of materials specified in said Exhibits B and D to plaintiff’s petition was “ waste matter,” either within the trade meaning or within the usual and commonly understood meaning of that term. It does not appear what, if any, of the materials mentioned in Exhibits B and D and at said camps was declared or designated waste matter by any duly authorized agency of the Govern • ment.

The figures stating amounts in the accounts Exhibits B and D to the petition were based on the figures obtained by the plaintiff’s attorney from another case which arose at Camp Chillicothe. The plaintiff made repeated unsuccessful attempts to obtain the amounts received by the Government for these materials at the Embarkation Cantonment and at Camp Lee. Its attorney was able to get the figures covering Camp Chillicothe, which was the camp involved in the other case mentioned wherein the contractor was paid by the War Department for certain materials deemed waste. The number of men shown in that case as being at Camp Chillicothe and the amount of material which was sold by the Government at that, camp was the basis upon which plaintiff’s figures in said Exhibits B and D were made.

According to figures available to plaintiff Camp Lee had more men than Camp Chillicothe, and plaintiff’s claim for Camp Lee is approximately the same as that filed by the *884contractor covering Camp Cliillicothe. According to figures available to plaintiff the port of embarkation had, in the number of men stationed and those in transit as estimated by plaintiff, five times the number that were at Camp Cliillicothe, and upon this basis plaintiff’s figures in said Exhibit B were made.

VI. Materials 'of the kinds specified in said Exhibits B and D and for which claim is made in this suit were not delivered to the plaintiff except some “ negligible ” quantities of some of them that from time to time had been erroneously thrown into the receptacles with the garbage and with other materials mentioned in section 5 of the contracts by the Government agents or employees during the early part of the contract period before such agents or employees could be trained and gotten to properly separate the materials.

VII. During or about the year 1921 the plaintiff corporation surrendered its charier and terminated its corporate existence, and this suit is being prosecuted in the course of the closing up' of the business of the corporation.

VIII. The plaintiff has at all times been loyal to the Government of the United States, and has at no time given aid or comfort to its enemies.

1

 Appealed.

MEMORANDUM I5Y THE COURT.

The plaintiff’s two contracts were for the waste matter at Camp Lee and at the embarkation cantonment. Payment for the waste matter was to^ be at the rate of three cents at the one camp and four cents at the other “per month for each soldier and each person in Government service ” at the particular camp. Manifestly the contract referring to “ waste matter” did not contemplate the varied assortment of materials set forth in Exhibits B and D to the petition, which from time to time was gathered in or assembled at these places. The basis of payment, so much per man per month, rebuts any such conclusion as is contended for by plaintiff. The contracts mention certain articles of waste matter, and it is to be noted that they cover all waste matter produced at the camps. It can not be reasonably concluded that the *885varied assortment of articles set forth in Exhibits B and D estimated by plaintiff to be of the value stated were included as waste matter produced at the camps.

On the other hand, if the contention could find support there is no evidence upon which a judgment could be rendered. The amount of the materials stated in Exhibits B and D is not shown, but is stated on the basis of certain similar materials found at a distinct camp not connected with either of the camps named in plaintiff’s contracts. Nor is its value or its market value proved. The court can not be expected to guess at these things. A large amount of the materials in question had a salvage value and was treated accordingly. A reading of the list shows it was never contemplated that materials to the stated value of $251,000 (claimed by plaintiff) would be turned over to it under a provision that it would pay three or four cents per man per month for the “ waste matter ” at the camps. Large quantities of the waste matter mentioned in section 5 of the contracts were delivered. There is no contention that all of the waste matter was not received, except the materials made the subject of the claim.

The quantities of the materials which the plaintiff claims as “ waste matter ” within the terms of the contracts are stated in Exhibits B and D to the petition. These exhibits show on their face, and it is otherwise found as a fact, that the quantities stated are mere estimates. Brass, aluminum, millions of pounds of iron, lead, nails, and many other articles, are claimed as waste matter and the quantities are estimated on the basis of what was found at a prior date to have been at another camp, Camp Chillicothe. They were never designated or set apart as waste matter. They were utilized or disposed of by the Government.

The breach relied on by the plaintiff is the failure or refusal of the Government to deliver the waste matter. It must show there was a breach and the damages incident thereto. We do not think it has done either, and the values of materials in estimated quantities as stated in Exhibits T) and B do not take the place of positive proof.

The petition should be dismissed.