#### LOUISVILLE BEDDING COMPANY v. THE UNITED STATES1

[No. B-178.

Decided February 4, 1924]

*On the Proofs*

*Procurement order; deliveries thereunder; aeeeptmce of price stated; protest.*— Where plaintiff receives a procurement order from the War Industries Board to furnish certain articles at a specified price, and delivers such articles to the Government and accepts the price stated in the order, his protest against the adequacy of the price does not give him the right to recover a greater amount.

*The Reporter’s*statement of the case:

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

*Mr. Barrett F. Brown,*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 a corporation duly organized and existing under the laws of the State of Kentucky engaged in the manufacture of mattresses and of buying and disposing of cotton linters.

II. On the dates of May 27, 1918, and July 10, 1918, the War Industries Board issued two bulletins, and sent copies of same to all members of the National Association of Bedding Manufacturers. The plaintiff was a member of the association and received copies of said bulletins, which are as follows:

In your reply refer to-.

War INdustrxes Board,

(B. M. Baruch, chairman) Washington, *May 87, 1918.*

*To dealers in and users of cotton linters;*

For your information and guidance you are advised, on May 2, the price-fixing committee of the War Industries Board fixed a base price of $4.67 per cwt. f. o. b. points of production for all linters then on hand and to be produced *227until August 1, 1919. This action was made necessary by tlie increasing requirements due to war conditions.

While no shortage of linters exists at the pi-esent moment, the operation of the new Government powder plants now nearing completion will about double the linter requirements ; therefore, it becomes imperative that all existing stocks ’and all future production of linters be requisitioned for explosive purposes.

The armies and navies of the United States and the Allies must be furnished an ample supply of ammuniti'on, and any diversion of linters, irrespective of grade, to other channels would handicap the Government to just that . extent.

All linters that have not voluntaiúly been tendered the Government at the price fixed for munition linters will be commandeei'ed as the actual needs develop, and the commandeering process itself will give ample opportunity for the owners of special high-grade linters cut for mattresses and other industries to establish the value of their product in each individual case.

It is the purpose of this section to help out the mattress and other manufacturers using cotton linters in rounding out their business and completing existing contracts for finished products, but each case will necessarily have to be handled separately and adjusted on its merits.

We inclose herewith a questionnaire which we will ask that you fill out and X'etUrn to Geo. R. James, chief, cotton and cotton products section, War Industries Board, Room 917, Council of National Defense, Washington, D. C., at the eaidiest possible moment.

Yours very ti’uly,

Geo. R. James,

*Chief, Cotton and Cotton Products Section.*

In your reply refer to mattress linters.

WAR INDUSTRIES BOARD (B. M. Baruch, chairman),

*Washington, July 10,1918.*

*To manufacturers of, dealers in, and users of cation linters:*

It having been deemed necessary for the Government to take over all the cotton lintei-s now in existence, irrespective of grade or ownership", arrangements have now been made for the purchase of mattress or high grade linters which were produced prior to May 2nd, 1918, at the actual value of the commodity.

*228Through the- cooperation of the U. S. Bureau of Markets and cotton and cotton products section of the War Industries Board, three samples of linters have been selected representing types of linters on which prices have been suggested which are considered fair and- equitable, both to owners of the linters and the Government.

The Du Pont American Industries Co., of Wilmington, Del., as the purchasing agency for the Ordnance Department is authorized to buy the linters as follows:

A type of linters designed as “ A *”*grade, suggested price 100 per pound.

A type of linters designated as “ B” grade, suggested price 70 per pound.

A type of linters designated as “ C ” grade, suggested price 51/20 per pound.

All prices to be f. o. b. points of location.

It is suggested that by agreement between the inspector acting for the purchasing- agency of the Ordnance Department and the owners of the linters purchase can be made on the basis above suggested, but it must be understood that the prices named are not obligatory or by authority of the War Industries Board, but are, in the opinion of. the representatives of the U. S. Bureau of Markets and the cotton and cotton products section of the War Industries Board, acting as a committee, fair and just prices that should be paid for these three selected grades.

. In the event agreement can not be reached between the inspector and the owner, then the Ordnance Department maji- exercise its right to commandeer, which process gives the owners opportunity to establish the actual value of their commodity in each instance.

All linters below the grade represented by; type “ C ” shall be considered munition linters, and the price of $4.61 per hundred pounds f. o. b. points of production established as of May 2nd, 1918, by the price-fixing committee of the War Industries Board shall apply.

There shall be only one grade (munition type) of linters manufactured during the 1918-19 season, and all purchases will be made by the Procurement Division of the U. S. Ordnance Department.

YourS very truly,

(Signed.) Geo. B. James,

*Ohief Cotton and Cotton Products*Section,

*War Industries Board.*

On July 16, 1918, there was forwarded to the plaintiff by the Du Pont American Industries, Inc., the agent of the United States the following:

*229CONTRACT

Purchase Cont. No. U. S. 2632.

DU PONT AMERICAN INDUSTRIES, INC.,

Memphis, *Term., July 16, 1918.*Bought of Louisville Bedding- Co., address, Louisville, Ky., the following material:

Quantities, bales Description Price per pound f. o. b. cars 1,200 Mattress ¡inters To be determined after inspection

Location of above:

500 bales stored. Memphis Terminal, Memphis, Tenn.

700 bales stored in Louisville, Ky.

T ,. . i . , ,, . [during soon as possible

. i , Inspection: to be inspected bybnyer|w1-^^°_

Bales to be arranged and made ready for thorough inspection without delay or expense to buyer.

Drafts, etc.: All drafts shall be drawn at sight, free of exchange, on du Pont American Industries, Inc., Memphis, Tenn., regardless of destination of shipment, with such papers and documents thereto attached as shall be directed in the buyer’s shipping instructions; and the payment of drafts is contingent upon the faithful fulfilling of these instructions.

Shipping instructions: Shipping instructions, giving full particulars, details, and disposition will be mailed the seller from Memphis immediately upon receipt and approval of the inspector’s report.

This contract executed in triplicate; please sign and return two copies immediately.

(Signed) du Pont American 'Industries, Inc.,

*Buyer.*

PerM. E. Woodson.

Accepted:

*Seller.*

Per-.

The plaintiff did not sign this paper, but on August 10, 1918, addressed the following letter to the agent of the United States:

*230Louisville Bedding Company,

*Louisville, Ky., August 10, 1918.*

DU PONT AMERICAN INDUSTRIES, INC.,,

*Memphis, Tenn.*

(Attention A. K. Burrow.)

Dear Mr. Burrow : Your letter of the 8th. received.

I regret that I was not in position to answer it the same day it come in here, but I was out of the city.

Now, in reference to the 500 bales of linters there in Memphis, will say that if the entire lot can be classed in as C grade at 5%^ Per lb., we will agree-to this proposition and arrange to have the stock transferred to, you at the earliest possible time. The storage period for the year ends with this month, and, of course, if we have to re-store it for another year, it will be considerable expense, both insurance and storage charge, and ive want the matter settled either one way or the other between now and the first of September. We suppose, however, it can be fixed up in a few days.

Awaiting your answer with much interest, we are, Yours truly,

Louisville Bedding Company, Per M. P. Kelley, *President.*

And the following letter dated August 14, 1918:

Louisville Bedding Company, *Louisville, Ky., August Ilf., 1918.*du Pont American Industries,

*Memphis, Tenn.*

Gentlemen: Your letter of the 13th received.

We immediately telegraphed the Memphis Tenn. Ass’n as you will note from copy of our letter to them herewith.

If there is any delay whatever in them getting this stock ready for you to inspect please telegraph us, and we will either come down there or try to get some personal representative in Memphis to look after this matter.

You are right in assuming that this stock ivas all made at the same mill and is of uniform grade. We do not think that you would have any difficulty whatever in passing it through as all one grade,. We do not think that there will be any “ B ” in the lot. However, there may be. We doubt it.

- We note what you say in reference to the compressing, and will bear this in mind when we make a bill for the linters.

We are right anxious to get this matter handled at once so that we may avoid additional storage and insurance and *231at the same time get the money, which we are needing in the business.

Tours truly,

Louisville BbddiNG CompaNY, Per MilbueN P. Kelley, *President.*

III. After these letters were written the plaintiff shipped to the agent of the United States 500 bales of cotton linters weighing 271,254 pounds, which were graded as of class C, and for which the plaintiff accepted a check for $15,168.27, which it cashed; 271,254 pounds of cotton linters at *5y2*cents per pound would be $15,168.27. The plaintiff protested against the price paid. The 500 bales of cotton linters cost the plaintiff the sum of $24,052.10. The plaintiff is now suing for $8,883.83, the actual cost price, and for $2,405.21, a ten per cent profit on the cost. There is no evidence of the market price of the linters at the time of their delivery to the Government.

IY. The plaintiff presented this claim to the Secretary of War, who rejected it.

1

 Appealed.

MEMORANDUM BY THE COURT

The fact that the plaintiff protested against the price of the linters paid it by the Government does not alter the fact that it made deliveries upon a procurement order which stated the price ivliich it ivas to receive for the linters; nor does it alter the fact that plaintiff accepted payment for the linters at the price fixed. Indeed, the plaintiff in its letter of August 10,1918, says “ if the entire lot can be classed in as grade C at *5y2*cents per pound we will agree to this proposition and arrange to have the stock transferred to you at the earliest possible time.” This ivas an acceptance of the proposal to buy the plaintiff’s linters at a stated price. The plaintiff made no protest against the delivery of the goods; on the contrary it facilitated their delivery.

The plaintiff did not take advantage of the invitation of the Government contained in its bulletin of July 10, 1918:

“In the event agreement can not be reached between the inspector and the owner, then the Ordnance Department may exercise its right to commandeer, which process gives *232the owners opportunity to establish the actual value of their commodity in each instance.”

As a matter of fact the plaintiff did agree as to the price, delivered the goods, and accepted the money. *Herrman*v. *United States, 57*C. Cls. 96, 103.

The petition is dismissed.