#### CHARLES L. GUSS AND E. W. MOWREY, TRADING AS GUSS & MOWREY, v. THE UNITED STATES

[No. D-328.

Decided December 7, 1925]

*On the Proofs*

*Dent Act; evidence as to contract.*The court finds no agreement to purchase or orders issued to supply goods. See opinion.

*The Reporter's*statement of the case:

*Mr. M. Walton Hendry*for the plaintiffs.

*Mr. Heber H.*Rice, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

A motion of the defendant to dismiss on grounds of *res adjudicata*was overruled February 16, 1925, 60 C. Cls. 380.

*302Upon submission of the case on its merits the court made special findings of fact, as follows:

I. From May, 1918, to January, 1919, Edwin W. Sparks was procurement officer for burlaps and linings under the C. & E. Division of the War Department, with stations at New York and Washington. He was engaged in buying for the Quartermaster Department burlaps and linings, consisting of canvas padding and jute padding, and had authority from the Secretary of War to purchase and enter into agreements for the purchase of said materials.

II. Plaintiffs were engaged during the war in the importation and sale of the above-named materials, and during the summer and autumn of 1918 solicited business from the Government through said Sparks, whose negotiations with the plaintiffs appeared as follows:

III. Some time prior to June 8, 1918, plaintiffs had ordered certain manufacturers in Scotland to make up for them about 420,000 yards of 22-inch arsenal jute canvas padding.

IY. On or about June 8 and July 17, 1918, plaintiffs had interviews or communications with Sparks with the view of selling this material to the Government. , Sparks would not agree to purchase such material so long as it was outside of the borders of this country, and refused to place any orders for same. Submarine sinkings, embargoes, and other delays rendered delivery of foreign goods uncertain, and plaintiffs admitted that they were unable to guarantee deliveries of such unshipped material. Plaintiffs were told that when the material arrived if it came up to requirements and they offered it to the Government, “ we would give it the best consideration.” Likewise, in the latter part of July or early in August, 1918, plaintiffs endeavored to sell to the Government about 35,000 yards of 24-inch jute canvas padding, which was to be imported, but Sparks made the same reply as was given in regard to the aforesaid material.

V. On or about July 8, 1918, plaintiffs sold to the Government through Sparks 80,000 yards of said material, which plaintiffs had just received from abroad. This sale was covered by written order at that time. Just prior to the written order plaintiffs were concerned as to whether *303the sale would be consummated, and plaintiffs indicated to Sparks that “ if we can’t get an order number, we shall hare to offer these goods elsewhere,” whereupon Sparks gave to the plaintiffs over the phone a definite order number, which was to be used upon the written order covering-same. Thereupon plaintiffs proceeded to make the deliveries and thereafter received payment for same from the Government. Likewise, on or about October 1, 1918, plaintiffs sold to the Government through Sparks approximately 39,000 yards of the same material, and this was paid for by the Government.

All purchases of such goods made by Sparks on behalf of the Government were covered by written orders.

VI. With reference to said 420,000 yards and 35,000 yards of material, respectively, upon which this suit is based, Sparks refused at that time and thereafter to issue any orders to cover such goods, as there was no assurance that thejr would even reach this country, and did not enter into any agreement to purchase. It was not known what quantity, if any, of the material would arrive in the United States or when or where. No definite quantity of goods was offered by plaintiff, and it was not known what its condition on arrival would be.

The Government had no difficulty in obtaining a sufficient quantity of such goods in this country to fill the demand of the Govermnent within the time required.

Most of the 420,000 yards and the 35,000 yards of material ordered from Scotland by plaintiffs in the summer of 1918, as aforesaid, failed to reach the United States until early in 1919, after the armistice. The emergency having passed, plaintiffs, upon receipt of said shipments after the armistice, were unable to place any orders for same with the Government. Also, the market for jute canvas padding declined after the cessation of hostilities, by reason of which large quantities of such goods were left upon plaintiffs’ hands and had to be subsequently disposed of at a loss. Plaintiffs alleging that they had an informal agreement with Sparks for the purchase of these goods on behalf of the Government, presented their claim under the Dent Act before the *304Secretary of War, who denied liability and disallowed the claim.

The court decided that plaintiffs were not entitled to recover.

Graham, Judge,

delivered the opinion of the court:

The facts are fully set out in the findings. Plaintiffs claim that the Government contracted to purchase certain quantities of arsenal jute canvas padding at a certain price per yard. Plaintiffs had previously ordered this material to be manufactured in Scotland, but at the time it had not arrived in the United States. At the time of the alleged contract it was not known how much of this material would arrive in the United States, nor when or where it would arrive, nor in what condition it would be after arrival. Portions of it after arrival in the United States were jmrchased by the United States Government on a written order in each instance. The Government refused to take and receive other portions, including, some that did not arrive until after the armistice. Plaintiffs claimed to have suffered a loss by reason of this refusal of the Government to take and pay for it.

The only question is, Was there a contract?

The findings clearly show that the representative did not enter into any agreement to purchase and refused at the time of the alleged purchase and thereafter to issue orders for supplying goods as claimed. No contract has been shown which obligated the Government to pay.

The petition should be dismissed, and it is so ordered.

Hay, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.