#### LIGGETT & MYERS TOBACCO CO. v. THE UNITED STATES

[No. D-549.

Decided February 15, 1926.]

*On the Proofs*

*Purchase order; agreement; requisition;*interest.— (1) Where an order is placed by the Paymaster General of the Navy with the plaintiff to furnish and deliver certain products to the Navy, stating therein that said order is obligatory and shall take precedence over all commercial orders, and the plaintiff accepts the order and agrees to its conditions for determining compensation, it is an agreement to purchase and not a requisition under the right of eminent domain.

<2) Under the circumstances recited the plaintiff is entitled to compensation as determined by the agreed conditions, not including interest.

*The Reporters*statement of the case:

*Mr. Chester A. Gioirni*for the plaintiff. *Mr. Adrian*<7. *Humphreys*and *Humphreys da Day*were on the briefs.

*Mr. Dwight E.*Rorer, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff, the Liggett & Myers' Tobacco Company, is a corporation organized and existing under the laws of the State of New Jersey, having an office in the city and State of New York.

II. For a long time and before the war with Germany the plaintiff had been engaged in the manufacture and sale of tobacco products, including cigarettes, smoking, plug, and chewing tobacco of various kinds and brands, and continued in said business during said war and has been, and is now, engaged in that business.

III. On or about the 26th day of August, 1918, and bearing that date, a paper designated as Navy order No. N-4128 was issued out of the Bureau of Supplies and Accounts of the Navy Department at Washington addressed to the plaintiff at 212 Fifth Avenue, New York. The said order was upon a printed form in use in the said bureau, with blanks *694filled in by *the*typewriter, and is in words and figures as follows:

“ 1. Pursuant to the provisions of the acts of Congress,, Naval appropriation act approved March 4, 1917, and the1 urgent deficiency act approved June 15, 1917 (quoted in part on reverse hereof), and acting under the direction of the-President of the United States, an order is hereby placed 'with you under the conditions stated in subparagraph b (subparagraph a is eliminated), to furnish and deliver-material needed by the Navy as listed below. Compliance with this order is obligatory, and no commercial orders shall be allowed by you to interfere with the delivery herein provided for.

“ (a) The price herein stated has been determined as-reasonable and as just compensation for the material to be-delivered; payment will be made accordingly. If the-amount is *not*satisfactory, you will be paid 75 per centum of such amount, and further recourse may be had in the manner prescribed in the aboye-cited acts. Please indicate conditions under which you accept this order by filling in and signing certificate below, returning *original*copy of' order. If you state the price fixed as reasonable is *not*satisfactory, 75 per cent *only*of the unit price will be paid. If payment in full is accepted it will be considered as constituting a formal release of all claims arising under this order..

“(b) As it is impracticable to now determine a reasonable and just conqpensation for the material to be delivered', the fixing of the price will be subject to *later*determination. You are assured of a *reasonable pro-fit*under this order,- and as an advance payment you will be paid the unit prices stated hereon, with the understanding that such advance-payment will not be considered as having any bearing upon the price to be subsequently fixed. Any difference between the amount of such advance payment and the amount finally determined upon as being just and reasonable will be paid to you or refunded by you, as the case may be. The unit price stated herein will not prejudice any future price determination or be considered as a precedent in determining such increases or decreases as may be later decided upon as proper.

“(c) The order *must*be accepted and filled in any event, and if placed in accordance with subparagraph (a), you are only required to indicate below whether the price stated and fixed *is*satisfactory or is *not*satisfactory. If *not*satisfactory, a separate letter of comment and qualification *must*accompany the original order that is to be signed by you and returned. If order is placed under subparagraph *695(b), original is to be signed and returned. Tbe duplicate copy may be retained by you in either case.

“ 2. Deliveries are required to be made, in whole or in part, as soon as possible and before the expiration of the time limit as stated herein. Delivery will be made to As directed by Officer-in-Charge, Pro. *&*Clo. Depot, Brooklyn, N. Y., within- as stated below-, the time allowed for deliveries counting from -.

“ 3. Dealers’ bills are to be sent to Officer-in-Charge, Pro. & Clo. Depot, Brooklyn, N. Y., who is authorized to prepare vouchers in payment.

“ (a) In forwarding bills, the original bill must bear the following certificate: *1*Prices are certified to be those as stated in Navy Order No. —; payment not received.’

“ 4. If this order is based on deliveries f. o. b. works, your material can not be shipped except under orders from the naval inspecting officer for your district, and then only under a Government bill of lading to be furnished by that officer, in which case transportation charges must not be prepaid.

“ 5. The conditions appearing on the reverse side hereon are made a part of this order.

“ Beference: P and C letter 30 July, 1918, File *48231/BC;*P and C letter 21 Aug., 1918, File 47365/18C; Approp. Prov. Navy 1919-20.

“ 30,000 plugs ‘ Star ’ brand chewing tobacco. Each plug to weigh 16 ounces. 150,000 tins £ Velvet ’ brand smoking tobacco, packed 2 ounces net per tin. 287,500 packages ‘ Chesterfield ’ brand cigarettes, packed 20 cigarettes per package. 1,000,000 packages ‘ Piedmont ’ brand cigarettes, packed 16 cigarettes per package. 800,000 packages ‘ Fatima ’ brand cigarettes, packed 16 cigarettes per package.

“ These quantities are the estimated Navy requirements for period to 1 December, 1918. The Navy does not guarantee to purchase the above-stated quantities and reserves the right to increase or decrease these quantities in conformity with the requirements ox the Navy during the above-stated pediod. Shipment will be made only on receipt of an order from the officer in charge, provisions & clothing-depot, based on this Navy order.

“ It is further stipulated that any proportion of the Navy’s requirements will be furnished tax paid or in bond, as directed by the officer in charge, provisions & clothing depot.

“ Domestic or export cases are to be supplied as ordered by the officer in charge, provisions & clothing depot, Brooklyn, N. Y.

“ Inspection at point of delivery.

*696“PROVISIONAL PRICES

“ ‘ Star brand chewing tobacco, *domestic tax paid*$0.49 net per ping, f. o. b. destination. *In bond*$0.38 net per plug, f. o. b. factory.

“ ‘ Velvet ’ brand smoking tobacco, *domestic tax paid*$0.09 net per tin, f. o. b. destination. *In bond*$0,075 *net*per tin, f. o. b. factory.

“c Chesterfield ’ brand cigarettes *domestic tax paid*$0.09 met per package, f. o. b. destination. *In bond*$0,055 net per package, f. o. b. factory.

“1 Piedmont ’ brand cigarettes, *domestic tax*paid, $0.07 .net per package, f. o. b. destination. *In bond*$0.04 net per package, f. o. b. factory.

“‘ Fatima ’ brand cigarettes, *domestic tax*paid $0.10 net per package, f. o. b. destination. *In bond*$0.07 net per package, f. o. b. factory.

“ *Domestic tax paid*shipments to be made on prepaid •commercial bills of lading.

“ *In bond*shipments to be made on commercial bills of lading, freight prepaid and added to the invoice as an additional item.

“ War tax exemption certificates will be furnished by the -officer in charge and are to be used on all shipments.

“ Payments will be made only by the officer in charge, provisions & clothing depot, Brooklyn, N. Y.

“ By direction of the Secretary of the Navy.

“ Samuel McGowan,

“ *Paymaster General of the Navy.*

“ The above order is accepted subject to the conditions in .■subparagraph b above.

“Liggett & Myers Tobacco Co.

“By C. W. Toms, *Vice President.*

“ Witness:

U_ _ ?>

On the reverse side of said printed form appeared extracts from the act of March 4,1917, and the act of June 15, .1917, as follows:

“ (b) That in time of war, or of national emergency arising prior to March first, nineteen hundred and eighteen, to be determined by the President by proclamation, the President is hereby authorized and empowered, in addition to .all other existing provisions of law: ■

“ First. Within the limits of the amounts appropriated ■.therefor, to place an order with any person for such ships *697or war material as the necessities of the Government, to be determined by the President, may require and which are of the nature, kind, and quantity usually produced or capable-of being produced by such person. Compliance with all such orders shall be obligatory on any person to whom such order is given, and such order shall take precedence-over all other orders and contracts theretofore placed with, such person.

“(d) That whenever the United States shall cancel or modify any contract, make use of, assume, occupy, requisition, or take over any factory or part thereof, or any ships; or war material, in accordance with the provisions of paragraph (b), it shall make just compensation therefor, to'be determined by the President, and if the amount thereof so-determined by the President is unsatisfactory to the person entitled to receive the same, such person shall be paid fifty per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as added to said fifty per centum shall make up-such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code.

“ The President is hereby authorized and empowered,, within the limits of the amounts herein authorized- — ■

“ (a) To place an order with any person for such ships- or material as the necessities of the Government, to be determined by the President, may require during the period, of the war and which are of the nature, kind, and quantity usually produced or capable of being produced by such-, person.

“ Compliance with all orders issued hereunder shall be-obligatory on any person to whom such order is given, and such order shall take precedence over all other orders and contracts placed with such person.

“ Whenever the United States shall cancel, modify, suspend, or requisition any contract, make use of, assume, occupy, requisition, acquire, or take over any plant or part thereof, or any ship, charter, or material in accordance with the provisions hereof, it shall make just compensation therefor, to be determined by the President; and if the amount’ thereof, so determined by the President, is unsatisfactory to-the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined, by the President and shall be entitled to sue the United. States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just.. *698compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code.

“ The President may exercise the power and • authority hereby vested in him, and expend the money herein and hereafter appropriated through such agency or agencies as he :shall determine from time to time.”

Following these extracts there was also on the reverse side -of said printed form certain “ conditions ” with subheadings, as follows:

“ SPECIFICATIONS

“ 1. The article or articles furnished or services performed under this order must conform in all respects to the requirements of the specifications as indicated hereon, the ‘ Conditions,’ and ‘Deliveries,’ contained herein. In any case where the specifications do not provide to the contrary, all workmanship and materials entering into the manufacture ■or construction of the material delivered must be of the very .best quality and manufacture.

“ INSPECTION

“ 2. The material delivered or service rendered shall be subject to inspection and examination by the officer or officers authorized by the Navy Department, and will not be accepted unless conforming in all respects to the requirements ■of the specifications. If the specifications direct inspection before shipment, the shipment must not be made until the material has been inspected and orders given for shipment by the inspection officer, unless specifically authorized by the bureau concerned.

“ ADDRESS CORRESPONDENCE

“ PAYMENTS

“ 4. Upon presentation of the customary bills, deliveries <or services will be inspected and vouchers covering same will 'be passed as soon as practicable — the Government reserving the right to make payments only when all the articles or services embraced in any one class or item, or the entire urder, have been delivered or performed and accepted when such action is considered for its best interests.

“ PATENT RIGHTS, ETC.

*699!$s “tag CAR # í|í ❖ *

“ SHIPPING MEMORANDA

* * * *

“ †. Each delivery must be accompanied by truckman’s receipts, bills of lading, or shipping invoices, in duplicate, giving name of dealer, number of this order, and class, and a full statement of. quantities, weights, packages, etc. Duplicate dealers’ bills, giving the same identifying information, including prices, etc., must also be rendered to the supply officer of the yard concerned prior to or at the time of each delivery.

“ DELIVERIES

*i'fi** * sjs *

“caution-

' RAIL DELIVERY *

WATER DELIVERY

' DRAY DELIVERY

’YARD APPLIANCES * *

•RESPONSIBILITY PRIOR TO ACCEPTANCE * * *

“ DELIVERIES IN YARD HOURS * * *

“ REJECTED ARTICLES * * *

“ 9. The above instructions and those on the opposite side must be carefully followed to avoid delay after delivery. If any matters are not understood, they may be referred to the Bureau of Supplies and Accounts for instructions.”

The descriptions of the different kinds of tobacco and the provisional prices stated, following paragraph 5 of the order, are upon a typewritten sheet pasted to and attached to the printed order.

*700IY. Upon receipt of the said order on or about August 31, 1918, plaintiff made indorsement thereon that the above order “is accepted, subject to the conditions in subpara-graph b above,” and returned the original of said order to the Bureau of Supplies and Accounts of the Navy Department.

On or about the 9th day of September, 1918, the Bureau of Supplies and Accounts by Samuel McGowan, Paymaster General of the Navy, addressed a letter to the plaintiff on the subject of modification of Navy order N-4128, to the effect that said Navy order be modified to include the paragraph: “Any orders issued by the Quartermaster, Marine Corps, Washington, D. C., for the brands of tobacco specified in this Navy order are to be executed and billed at the prices stated thereon. Shipping instructions will be issued and payment will be made by the Quartermaster, Marine Corps, Washington, D. C.” This modification was received by plaintiff on September 12, 1918. On October 14, 1918, another modification of the original order was issued from the Bureau of Supplies and Accounts, addressed to plaintiff and duly feceived by it, in the form of a letter which stated that said Navy order was modified to provide for the delivery and acceptance of certain packages of cigarettes at stated provisional prices, namely, “Fatima” brand cigarettes and “ Piedmont ” brand cigarettes, and that the modification would not have any bearing on the cigarettes already shipped in accordance with the original Navy order. The original of the letter was to be signed and returned to the Bureau of Supplies and Accounts, Navy Department, Washington, D. C. At the bottom of said letter was written : “ Navy order N-4128 is hereby accepted as modified above.” This is signed by the plaintiff by its vice president and duly witnessed.

Y. On or about the 22d of November, 1918, a further modification of Navy order N-4128 was issued out of the Bureau of Supplies and Accounts, addressed to plaintiff, stating that the said order was modified to provide for delivery of the following additional quantities of tobacco, more or less, as required during the period from December *7011, 1918, to February 28, 1919, namely: 75,000 plugs “ Star ” chewing tobacco, 400,000 packages “ Chesterfield ” cigarettes, 2,000,000 packages “ Piedmont ” cigarettes, and 1,000,000 packages “ Fatima ”" cigarettes, and adding: “ The above quantities are estimated only and shipment is to be made only on receipt of order from Officer-in-Charge, Fleet Supply Base, South Brooklyn,” and that all conditions stipulated in the original Navy order or any modification authorized heretofore were likewise applicable to this modification. It was requested that the original letter modifying this Navy Order be signed and returned, and the same was returned as follows: “Navy order N-4128, as modified above, is hereby accepted.” (Signed by the plaintiff by its vice president and witnessed.)

VI. The plaintiff furnished under said order and modifications thereof and delivered at various dates between and including September 9, 1918, and November 23, 1918, to the Navy Department, and between the dates of September 30, 1918, and November 22, 1918, delivered to the Marine Corps large quantities of the different brands of tobacco products called for by said order and modifications thereof, which, at the provisional prices stated in said order and modifications, amounted to the sum of $423,893.96, and was paid at said prices for the same between the dates of September 9 and November 23, 1918. The prices at which the said tobacco products were invoiced by plaintiff when the shipments were made amounted in the aggregate to $483,504.30, and said sum was the fair and reasonable value of said products. An itemized statement of the date of invoice, numbers and amount, appears in claimant’s Exhibit E to its petition, which is here referred to and made a part of this finding by reference. The difference between the reasonable value of the said products and the amount that plaintiff has been paid therefor is the sum of $59,610.34.

On or about the 20th day of February, 1919, plaintiff received a letter from the Navy Department canceling the original Navy order N-4128 as modified, and no further orders or deliveries were made after that.

*702VII. On or about the 4th day of December, 1920, the Bureau of Supplies and Accounts addressed a communication to plaintiff, which received the same, as follows:

“ Based on the Federal Trade Commission’s report, and with the concurrence of the Army and Marine Corps, the Navy has established the following final prices for tobacco required under Navy order N — 4128, and this Navy order is hereby modified to apply under the terms and conditions of subparagraph A thereon, subparagraph B being eliminated. (Here follows names of the different tobacco products and the final price.)

“ The above final prices are all f. o. b. factory. For any shipment on which freight was paid by the company, credit for the actual amount paid will be allowed by the Navy on presentation of properly substantiated invoices. These-final prices have been determined on a basis of cost plus a reasonable return on investment. In determining costs, the cost of leaf tobacco has been computed at the average price of stock on hand, all selling expense and various minoi items, such as donations, excess-profits taxes, etc., being eliminated. Profit on the above cost of production has been allowed to permit of a return of 10 per cent on capital investment, including common and preferred stock, but eliminating outside investments and intangibles, such as good will, etc.

“ On this basis the records of the Navy show the account of the Liggett & Myers Tobacco Company under this Navy order to stand as follows: [Here follows an itemized statement of the quantity delivered to the Navy and Marine-Corps, provisional price paid, total amount paid, price now fixed, and total; these figures result in a balance due the-Navy of about $5,000.]

“ If the deliveries stated in above tabulation do not agree-with deliveries shown by the company’s records, it is requested that the Navy be advised, in order that all questions-of fact in this respect may be reconciled.

“ From the amount of $4,968.44, which is the amount due-the Navy on deliveries made to the Navy less the amount due the company on deliveries made to the Marine Corps, is to be deducted any freight prepaid by the company. Check, for the balance should be mailed to the Bureau of Supplies and Accounts, Navy!' Department, Washington,' D. C., together with the original of this letter signed as satisfactory or not satisfactory in the spaces provided below.

“ If the final prices herein fixed as just compensation are-not satisfactory, claim should be made for the additional. *703amount desired in the manner prescribed by law as quoted, in the original Navy order.”

VIII. On the receipt of this letter the plaintiff addressed a letter to the Paymaster General of the Navy under date of December 7, 1920, as follows:

“We beg.to acknowledge receipt of your letter of December 4 — Subject Final Price Determination, Beference Navy Order N-4128, dated August 26, 1918.

‘‘The settlement which you propose on account of our claim against the Navy Department for the balance due us-is unsatisfactory, and can not be accepted.

“ We should be pleased for you to send us at your earliest convenience a statement in detail, giving the costs of each brand and each style of packing as determined by you, and also your method of determining the profit on each brand and each style of packing. Your prompt attention will be greatly appreciated.”

The court decided that' plaintiff was entitled to recover $59,610.34.

Campbell, *QJvief*Justice-,

delivered the opinion of the court:

It is conceded by the Govermnent that the plaintiff is entitled to. payment for its tobacco products at the prices stated in its invoices of the same after crediting payments, already made, although they are larger than the provisional prices stated in the Navy order. The one question for decision is whether plaintiff is entitled to interest upon this, balance, admittedly due. The plaintiff contends that it should “ recover interest as a part of the measure of just compensation guaranteed by the Fifth Amendment,” because-it claims that its tobacco products were taken or requisitioned in virtue of the act of March 4, 1917, 39 Stat. 1193,, and the act of June 15,1917, 40 Stat. 182.

It is to be observed at the outset that the statute, section. 177, Judicial Code, provides that no interest shall be allowed on ány claim up to the time of the rendition of judgment, thereon by the Court of Claims unless upon a contract ex-pressingly stipulating for the payment of interest. Amendments to this section authorize the allowance of interest in judgments for taxes erroneously or illegally assessed or *704collected. Revenue act of 1921, 42 Stat. 316. A claim for interest was accordingly denied where property was taken by the United States without the institution of condemnation proceedings. See *North American Transportation & Trading Co., case,*253 U. S. 330. The taking in such case implies a promise to pay and the right of action in this •court is based upon this implied contract, *Great Falls Mfg. Co. case,*112 U. S. 645, but is not founded on the Fifth Amendment. *North American Transp. Co. case, supra; Klebe case,*263 U. S. 188, 191. Nor is it to be overlooked that the liability of the United States for interest is not merely limited by section 177, but does not exist at all in the absence of statutory authority to allow interest, unless an exception is to be found in cases to be referred to later on.

It is settled upon grounds of public convenience that ■“ interest is not to be awarded against a sovereign government unless its consent to pay interest has been manifested by an act of its legislature or by a lawful contract of its executive officers.” See *United States*v. *North*Carolina, 136 U. S. 211, 216; *Sherman*case, 98 U. S. 565, 567; *Angarica*v. *Bayard,*127 U. S. 251, 260. This common-law rule exempting the United States from liability for interest has been adopted by Congress in section 177, Judicial Code. See *North American Transportation & Trading Co. case, supra*(p. 336). In consenting that the Government may be sued in the Court of Claims the Congress can place such conditions as it sees fit upon the exercise of the privilege or upon the authority of the court. A party availing himself of it accepts all the terms and limitations of the statute that authorizes the suit. *McElrath case,*102 U. S. 426, 440. If even purely formal conditions be attached to the Government’s consent to be sued those conditions must be complied with. *Rock Island, Arkansas & Louisiana Railroad Co. case,*254 U. S. 141, 143; 54 C. Cls. 22. This section 177 is taken from the act of March 3, 1863, 12 Stat. 765, which is the first act conferring power on the Court of Claims to render final judgments from which appeals would lie. Prior to that time the original act establishing the court (act of *705February 24, 1855, 10 Stat. 612)- bad conferred power to bear and determine claims and report its action to Congress.

Provision is made in tbe act of March 3, 1863, for interest upon judgments appealed from by the Government and affirmed by the Supreme Court of the United States, and then follows a proviso in section 7 of the act to the effect that no interest shall be allowed on any claim up to the time of the rendition of judgment “unless the contract expressly stipulates for the payment of interest.” It thus appears that the same act which authorized judgments and appeals excludes in terms any right to include interest in the judgment, and therefore that not only does the general rule of law prevent the allowance of interest against the United States, but the statute conferring power to render judgments forbids such allowance where interest is not expressly stipulated for in the contract. But there, are provisions in a number of statutes enacted during the period of the World War conferring jurisdiction upon this court to ascertain the value of property taken by the Government where the owner is dissatisfied with the action of the President or other authorized agency designated to determine the just compensation which the statutes in such cases declare shall be made to the owner.

In actions brought here in virtue of these acts the rule of law and section 177 adverted to are not applicable. They come here and the court proceeds in them because of the particular statute under which the property is authorized to be taken and by which provision is made for the determination of just compensation. 'In that class of cases “ the owner’s right does not depend on contract, express or implied.” *Seaboard Air Line Ry.*case, 261 U. S. 299, 304. The suit in this court is a part of the authorized procedure initiated by the United States for the condemnation of the property. See *Seaboard Air Line Ry. case, supra.*In the case just cited it appeared that the property was taken under section 10 of the Lever Act, and it was therefore not within the jurisdiction of the Court of Claims. But in the later case of *Brooks-Scanlon*Corporation, 265 U. S. 106, appealed *706from this court the claim was predicated upon a requisition or taking, exercised under the act of June 15, 1917, 40 Stat. 182, which directs that just compensation shall be made, to be determined by the President or by some agency to whom he may delegate the power. If the amount so determined by the President is unsatisfactory to the person entitled to receive the same the act provides that such person is to be paid 75 per cent of the amount so determined and “ shall be entitled to sue the United States to recover such further sum as added to said 75 per cent will make up such amount as will be just compensation therefor in the manner provided for by section 24, paragraph 20, and section 145 of the Judicial Code.” Adopting the rule laid down in the *Seaboard Air Line Ry. case*upon the question of interest the court in this *Brooks-Scanlon Corp,*case, say: “And, if the taking precedes the payment of compensation, the owner is entitled to such addition to the value at the time of the taking as will produce the full equivalent of such value paid contemporaneously. Interest at a proper rate is a good measure of the amount to be added.”

When in conformity to the statute suit is brought in the Court of Claims by a party dissatisfied with the' President’s determination the court is to ascertain the “ just compensation ” which the party entitled should receive. There is nothing in the act which forbids the President taking account of the delay in payment and finding that the owner should be allowed such additional sum as will produce the full equivalent of such value paid contemporaneously, and the suit authorized in this court being a part of the plan for awarding this just compensation is in effect a continuation of the proceeding initiated by the United States for the condemnation of the property. See *Seaboard Air Line Ry.*case, *supra.*To read into the act authorizing this procedure the provision of section 177 might be to impair the very purpose of the act — the securing of just compensation to the person whose property has been taken. While the court is not authorized to include interest on its judgments in the cases coming under its general jurisdiction, it is authorized to include interest in cases brought here properly as part *707of the procedure for condemnation initiated by the Government. Brooks-Scanlon *Corp. case, supra.*

In the instant case, there was no taking or requisition by the Government of plaintiff’s property. The- so-called requisition order was nothing more than an offer by the Navy Department to buy tobacco products to be manufactured and delivered at subsequent dates, which order was accepted by the plaintiff. Certain unit prices were stated in the order as being those that would be paid until by a later determination a reasonable and just price would be determined upon, the plaintiff in any event being “ assured of a reasonable profit under this order.” The products were furnished and the plaintiff was systematically paid these unit prices. It invoiced the goods at a different price, which produces the difference here sued for and to which admittedly it is entitled as being the fair and reasonable value of the tobaccos delivered. Plaintiff, however, now claims interest in addition to this principal sum. In identically the same kind of cases no interest has been allowed. See *Reynolds Tobacco Co.*case, 60 C. Cls. 328. *American Tobacco Co.*case, 58 C. Cls. 717. Plaintiff’s right to sue in this case must be based upon section 145, Judicial Code, and the court can not ignore the statute already adverted to, which forbids the allowance of interest.

The facts furnish no support for the contention that the tobacco products were requisitioned or that the order in question was obligatory. If it had been obligatory there was no necessity for its acceptance. *American Smelting Co. case,*259 U. S. 75, 79; 55 C. Cls. 466, 471. But it was accepted, and thereby the plaintiff expressly contracted to furnish the products ordered at a price which would later be determined — not alone by the paymaster of the Navy, but by agreement if the parties should agree. Upon their failure to agree the right to sue upon the contract is given by section 145. See *Federal Sugar Ref. Co. case,*60 C. Cls. 184, 197; *Herrman case,*57 C. Cls. 96; *Consolidation Coal Co. case,*60 C. Cls. 608, 621; *Bogert’s case,*2 C. Cls. 159. The order states that pursuant to the provisions of the naval appropriation act of March 4, 1917, and the urgent de*708ficiency act of June 15, 1917, and “ acting under the direction of the President ” it is placed with plaintiff “ under the conditions stated in subparagraph (b)” and that compliance with the order is obligatory. It speaks of “material ” needed by the Navy, but manifestly the order can not extend the authority conferred by the acts mentioned. It does not appear in this case that the President assigned his powers under the act of June 15, but we know from other cases that he did authorize the Secretary of the Navy to act. Assuming, for the purposes of this case, such authority in the Secretary, it by no means follows that the great powers conferred by these'acts were extended to the paymaster of the Navy and by him to orders issued by the quartermaster, Marine Corps, as the original order or one of its modifications directs.

It is to be observed that the act of March 4, 1917, 39 Stat. 1192, defines the “ war material ” concerning which an order could be placed and likewise provides the course that may be pursued in case of refusal or failure to comply with the authorized order. This at least implies that the order could be refused, in which case the President could take possession of the “ factory ” or any part of it and use the same for the production of the ships or war material. Sub-paragraph “ fourth ” authorizing the requisition or taking-over for use by the Government of any factory or part of it is limited to the period ending March 1, 1918. This act-does not contain the provision that does appear in the act of June 15, 1917, whereby the President may exercise the power and authority thereby vested in him through such agency or agencies as he should determine from time to time. 40 Stat. 183. There is a provision in the act of March 4 that where “ war material ” is requisitioned or taken over, the President shall determine just compensation for it, and if the party entitled be dissatisfied with the amount so determined he shall be paid 50 per cent of the amount so determined by the President and can sue for an additional sum in the Court of Claims. But the order in question does not proceed upon the theory of the payment of 50 per cent when determined, nor of 75 per cent as mentioned in the act of June 15. It proceeds upon the theory of the *709payment of a stated .provisional price which might have been accepted and been acceptable to both parties. As a matter of fact the plaintiff was paid as and when deliveries were made largely more than 75 per cent of the invoice prices upon which its bills were based.

If there were reasonably some question as to whether the order should be treated as a requisition or the taking of property of the citizen on the one hand, or a contract for its purchase on the other hand, it would seem that it should-be treated as a contract because the Government is not to be presumed to exercise the harsher method of eminent domain when the same results can be gained by the ordinary methods of contract. *Bogert’s case,*2 C. Cls. 160, 164. It would be going much farther than the court feels justified in going to hold that an order for tobacco products to be made and delivered in the future is a taking or a requisition of such products. It remains to be said, in view of the references to it in plaintiff’s brief, that the facts as stated in the findings in the *American Tobacco Co.*case, *supra,*were stipulated. No question arose as to interest and it was conceded that the court should determine the amount due for the tobaccos furnished. When, however, the court is asked to make findings or deductions as a basis for a liability that may not exist it requires-evidence of the essential facts and does not feel bound by stipulated deductions in the absence of proof.

The court will give judgment for the fair and reasonable value of the tobacco products, but will not allow interest. And it is so ordered.

GRaham, *Judge;*Hat, *Judge;*Downey, *Judge;*and Booth, Judge, concur.