#### LEWIS NIXON v. THE UNITED STATES

[No. D-175.

Decided May 12, 1924]

*On Defendant's Demurrer*

*Dent Act; agreement implied in fact; authority of agent.*— Whe''e the petition does not show an agreement express or implied in fact, with an officer or agent acting under the authority of the Secretary of War or the President, and within the scope of his authority, there can be no recovery under the Dent Act, 40 Stat., 1272.

*The Reporters*statement of the case:

*Mr. John A. L. Campbell*and Taylor, *Oashey <& Moore*for the plaintiff.

*Messrs. Barrett F. Brown*and *William F.*Norris, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

That claimant, proprietor of the Nixon Fulgent Products Company, was awarded a contract to furnish the Government with a specified quantity of rifle lights, signal lights, position lights, and a large order of aeroplane flares and smoke torches, which contract was completed and was settled in full.

Prior to the armistice, contracts were being negotiated between claimant and the Ordnance Department for large quantities of some of the articles covered by previous contracts, and particularly for large quantities of 35-millimeter cartridges.

From the beginning of the negotiations between claimant and the Ordnance Department he was urged by various officials of said Department to provide facilities to increase his production of pyrotechnics. One officer said: “ We want all you can make; we want you to put in a plant to take care of an enormous greater production, because this is only a small portion of what we need.” Another said: “ We want ever so much more. This is only the beginning, and we are going to give you further orders.” *685From these statements and correspondence with the officials, claimant was led to believe that he would be called upon to manufacture large quantities of the 35-millimeter cartridges, and that he should do everything in his power to arrange his plant and equipment in such manner that the production of cartridges would be increased by a greater percentage within the shortest space of time.

Claimant further states that during the late summer and fall of 1918 he equipped his buildings and added improvements thereto to make them habitable and comfortable for his employees, and to enable him to meet anticipated orders that he was told he would receive by the Army officers in charge of the pyrotechnic program.

A claim for these expenditures was disallowed by the Contract Board of Adjustment, which disallowance was confirmed by the Secretary of War.

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

memorandum by the court

The petition does not show a contract, express or implied, in accordance with the requirements of the Dent Act, 40 Stat., 1272. This act authorizes compensation for expenditures made upon the faith of an “ agreement, express or implied,” entered into by a plaintiff with an officer or agent acting under the authority of the Secretary of War or the President, and acting within the scope of his authority when such an agreement was not executed in the manner provided by law. See *Baltimore*& *Ohio R. R. Co.*Case, 261 U. S. 592, 596. The implied agreement contemplated by the Dent Act must be an actual agreement; that is, an agreement “ implied in fact,” founded .upon a meeting of the minds. See *Baltimore & Ohio R. R. Co.*Case, *supra*(p. 597) and also *Baltimore c& Ohio R. R. Co.*Case, 261 U. S. 385, 386.

The petition is dismissed.