#### CLEVELAND CRANE & ENGINEERING CO. v. THE UNITED STATES

[No. B-4.

Decided March 15, 1926]

*On the Proofs*

*Contracts; sale l)y contractor of Government property; settlement under alleged duress.*— (1) Where a contract provides that steel furnished by the Government is to be forged into suitable pieces for shell manufacture, and obligates the contractor to pay for steel which goes into forgings rejected for faulty workmanship, the contractor is not authorized to sell doubtful forgings to a third party and having done so and having signed settlement contracts which are in due course approved by the Board of Contract Adjustment and the Secretary of War, adjusting its compensation, can not obtain a reopening of the settlements made.

(2) Where, under the circumstances recited, the contractor alleges that it was coerced into signing the settlement contracts by intemperate language and threats of criminal prosecution if it refused, and the pressure so exerted was put forth ten days before the signing and in the meantime the contractor had consulted lawyers but on other matters, the facts do not constitute duress upon which the settlement may be reopened.

*The Reporter's*statement of the case:

*Mr. H. Stanley Hinrichs*for the plaintiff. *Mr. Frank S. Bright*was on the briefs.

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

The court made special findings of fact, as follows:

I. The plaintiff is a corporation organized and doing business under the laws of the State of Ohio.

*865II. On January 1, 1918, and April 30, 1918, respectively, it entered into two contracts with the defendant for the manufacture of steel shell forgings. The first of these two contracts called for 140,000 pieces, and the second called for 25,000 pieces. The latter contract was on September 20, 1918, supplemented to include 19,412 additional forgings.

These contracts are set forth in plaintiff’s petition as Exhibits “A,” “B,” and “C,” respectively, and are made a part of these findings by reference.

III. Following the declaration of an armistice between the warring nations, and on or about December 6, 1018, the plaintiff company was notified by the defendant to cease operations under these contracts. The request was promptly acceded to by the plaintiff.

IY. At the time of cessation of work, plaintiff had on hand 10,703 pieces which had been under the terms of the contract temporarily rejected, and designated by the defendant as *“*doubtful forgings ”; that is, forgings which might or might not be machined into the perfection required by the specifications. At a time during the latter part of December, 1918, or early part of January 1919, plaintiff, learning that the Martin Products Company of Cleveland had a contract with the Navy Department for the manufacture of star shells, negotiated with the latter company, with the result that the plaintiff sold to that company approximately 10,300 of the “ doubtful forgings ” at $3.20 per piece. These forgings weighed about 80 pounds apiece and plaintiff planned to pay itself out of the $3.20, $1.95 for its manufacturing costs and profit and with the balance to go into the open market and purchase steel with which to repay the defendant in lieu of the steel used in the doubtful forgings. The market for steel at that time was around $20 per ton as distinguished from the market of $70 per ton at which defendant had purchased the material which had gone into the doubtful forgings.

Y. To the end that all claims arising under war contracts of similar nature in that locality should be settled, a board of adjustment was organized by the War Department designated as the Cleveland District Ordnance Board. The plain*866tiff had claims to be adjusted under these contracts, and this board appointed a subcommittee to investigate the various items of plaintiff’s claim and to make report of same. The plaintiff somehow obtained the idea that the action of the subcommittee was final to all practical purposes and that the subsequent action of the board was to be a formality, but as a matter of fact this subcommittee had no power to bind the board by settlement and did not attempt to do so. It filed its report in due time, with which, we understand, plaintiff had no particular quarrel.

VI. On July 19, 1919, the board met in formal session and considered the report and the claim, heard the statement of C. C. Robbins, plaintiff’s secretary and general manager, and J. B. Shaver, plaintiff’s sales representative, and made its award which differed materially from the report. At this meeting of the board the matter of the sale of these doubtful forgings was discussed and, under the board’s construction of the terms of the contract, was held to have been a conversion of property of the defendant. For that reason plaintiff was charged with the value of the steel which went into these doubtful forgings at the rate which the Government had paid therefor, to wit, $10 per ton. Other items of plaintiff’s claim were not allowed in their entirety, but it was with relation to the item of the doubtful forging that the plaintiff later charged, and in this action now charges, defendant with duress through intimidation and threats, consideration of which will be given later in these findings.

VII. On July 26, 1919, J. B. Shaver, plaintiff’s sales representative, was in the city of Washington on legal business not connected with this claim, and found it necessary in connection therewith to consult Messrs. H. Stanley Hinrichs and F. S. Bright, attorneys of record and of counsel in this case. ■ Mr. Shaver told these attorneys that his company had another matter in which they might be employed, but it appears that neither the details nor the nature of this claim were spoken of at that time.

VIII. After the award or settlement referred to in Finding VI was reduced to writing, plaintiff was notified that *867the contracts were ready for signature, and on July 29, 1919, the settlement contracts were duly signed.

The contract of January 1, 1918, being what was termed an informal contract because signed by proxy, was settled by what was called a statutory award under the act of March 2, 1919, and is as follows:

Statutory Award Form I

Claim No. O-BC-1322 War-Ord. G-10144 — 541-A

Award of Secretary of War under the act of Congress entitled “An act to provide relief in cases of contracts connected with the prosecution of the war, and for further purposes.” (Approved March 2, 1919.)

1. It appearing to the satisfaction of the Secretary of War that an agreement was entered into in good faith between the Cleveland Crane *&*Engineering Company, the claimant, and R. P. Lamont, Lt. Col., Ordnance Department, U. S. A., an officer or agent acting under the authority, direction, or instruction of the Secretary of War, on or about the 1st day of January, 1918, during the emergency arising from the declaration of war with the German Empire and prior to November 12th, 1918, for a purpose connected with the prosecution of the war; that the agreement had been performed in whole or in part, or expenditures had been made, or obligations incurred by the claimant on the faith of such agreement, prior to November 12th, 1918; that the agreement had not been executed in the manner prescribed by law; that the said agreement is within the provisions of the above-entitled act of Congress; that the nature, terms, and conditions of said agreement are set out in “Form C,” Certificate of the Claims Board of the Ordnance Department, No. O-BC-1322, dated May 23d, 1919, on file in the War Department; that the claimant presented his claim to the Secretary of War before June 30th, 1919; that there have heretofore been delivered by the claimant and accepted by the United States under said agreement 128,291 five-inch steel shell forgings of the fair aggregate value of $250,167.45, said sum paid or to be paid; that the sum of $27,907.00 paid by the claimant to the United States Government will adjust and discharge such agreement upon a fair and equitable basis, and that the settlement agreed upon under this award does not include prospective or possible profits on any part of the agreement beyond the goods and supplies delivered to and *868accepted by the United States thereunder and a reasonable remuneration for expenditures and obligations or liabilities necessarily incurred in performing or preparing to perform said agreements.

2. The Secretary of War hereby awards to said,claimant the sum of $2,382.70, which sum together with the payment by the contractor to the United States Government of the sum of $27,907.00 shall be in full adjustment payment and discharge of said agreement, payment of which has been tendered..

3. The payment to the United States under this award shall operate to vest in the United States title to the property described in Schedule A, hereto attached.

4. Under this award a deduction in the sum of $28,687.29 in favor of the United States has been made, and in lieu thereof the Secretary of War hereby awards to the claimant the property listed on Schedule B, hereto attached, and this award shall operate to vest title to such property in the claimant.

5. Under this award a deduction in the sum of $1,602.41 in favor of the United States has been made covering an overpayment in said sum to the contractor by the United States.

6. Under this award no deduction has been made by reason of advances heretofore made by the United States.

7. Under this award no deductions have been made for scrap retained by contractor nor by reason of allowance to the United States for property retained by contractor.

Kecommended by Cleveland Ordnance District Claims Board.

By J. S. Covell, *Chairman.*

Dated July 29th, 1919.

The Cleveland Ceane & Engineeeing Co.

C. C. Bobbins,

*Claimant.*

Dated July 29th, 1919.

Schedule “A”

Cleveland Claim No. 457

The following property in the claim of the Cleveland Crane & Engineering Company on contract G-1014-541-A passes to and becomes the property of the United States Government upon the settlement of this contract.

*869The contract of April 30, 1918, being a formally executed contract, a separate settlement contract was drawn as follows:

Settlement Contract

Form la

This contract made this 29th day of July, A. D. 1919, between the Cleveland Crane & Engineering Company, a corporation organized and existing under, and by virtue of, the laws of the State of • Ohio, and having an office at Wicldiife, Ohio, party of the first part (hereinafter called “ contractor”), and the United States of America, by A. O. Ellis, Capt. Ord. Dept., U. S. A. (hereinafter called “ contracting officer ”), acting by direction of the Chief of Ordnance, United States Army, and under authority of the Secretary of War, party of the second part;

Whereas a certain contract was entered into between the United States and the contractor numbered War-Ord. P-5339-1982-A, dated April 30th, 1918 (hereinafter called “ original contract,” which term also includes, wherever used herein, all agreements or orders, if any, supplementary to said contract, except this agreement); the total number of finished units or amount of work delivered or accepted on or before the date of this contract and under and in performance of the original contract, is 40,767 five-inch steel shell forgings.

Whereas the furnishing and delivery of further articles of work, under said original contract, will exceed the present requirements of the United States; and

Whereas it is in the public interest to terminate said original contract, as herein provided, and the execution of this contract is in the financial interests of the United States; and

Whereas pursuant to the original contract, the contractor has incurred expenses and obligations for the purpose of furnishing and delivering articles or work remaining undelivered under said original contract; and

Whereas the contractor is willing to accept termination of said original contract and to forego such profits as might have accnied to it from the completion of said original contract and to except this contract in lieu of said original contract and any and all claims and demands of every nature whatsoever arising, or which may arise, out of said original contract; and

Whereas the contractor is willing to waive any and all rights that it may have under the provisions of the orig*870inal contract to a specified notice of termination or to continue the performance of said contract to any extent after the receipt of such notice of termination.

Now, therefore, in consideration of the premises and of the mutual covenants herein contained it is agreed between the parties hereto as follows:

1. This contract supersedes and takes the place of said original contract, which is hereby terminated, and the contractor hereby releases the United States from any and all claims, of every nature whatsoever, arising out of said original contract, except that all articles or work delivered and accepted on or before the date of this contract, under and in pursuance of said original contract, and not yet paid for, shall be paid for in accordance with the provisions of said original contract, as if it had not been terminated.

2. The contractor shall furnish and deliver and the United States shall accept and pay for no more articles or work agreed to be delivered under said original contract except to the extent provided for in paragraph 1 hereof.

3. The United States shall forthwith pay to the contractor the sum of three thousand two hundred seventy six and 33/100 dollars ($3,276.33) in full and final compensation for all articles or work delivered, and for all services rendered and all expenditures incurred by the contractor, under the original contract, and in the full satisfaction of any and all claims or demands in law or in equity, which the contractor, his successors, representatives, agents or assigns, may have growing out of or incident to said original contract; and said contractor hereby expressly agrees that settlement when made shall constitute a complete termination of every question or claim, legal or equitable, liquidated or un-liquidated, by or on behalf of the contractor, pertaining to or growing out of said original contract.

4. The United States reserves all its rights under the original contract to recover any payments improperly made and to enforce the liability of the contractor and surety for defects in articles or work done, which may hereafter appear.

5. Title to all property specified on Schedule “A,” hereto annexed, and made a part hereof, shall vest in the United States immediately upon execution of this agreement. All such property shall, in so far as practicable, be kept by the contractor separate and apart from property belonging to the contractor and shall be properly cared for by the contractor and shall be marked by the contractor in such manner as the contracting officer may direct. The contractor shall make such disposition of said property for the account of the United States as the contracting officer may direct.

*8716. This agreement shall not become a valid and binding obligation of the United States unless and until the approval of the Claims Board of the Ordnance Department has been noted at the end of this instrument.

7. The United States hereby sells to the contractor all of the property specified on Schedule B hereto annexed. Delivery of said property shall be made to the contractor promptly after the execution of this agreement. Allowance in favor of the United States has been made for said property as per item two of the award.

8. It is expressly agreed by the contractor that in case he is unable to produce or deliver all of the property, as listed on Schedule A, he will reimburse the Government for the value of the units found to be short, which valuation shall not be less than the value of the same allowed the contractor in this settlement.

9. It is specifically understood and agreed by and between the parties hereto that all reference hereinbefore made in regard to the termination of the original contract, dated April 30th, 1918, shall be construed to mean that said original contract is terminated in every respect, with the following exception, to wit: That the claim of Anderson & Gustafson, of Cleveland, Ohio, for fuel oil, amounting to the sum of $4,512.73, as Set forth on form eight (8) sheet three (3) line twenty-nine (29) and referred to in the staff'report on page six (6) is reserved for further consideration and adjustment by and between the parties hereto.

Tn witness whereof, the parties hereto have caused this agreement to be duly executed in quintuplicate by their authorized officers as of the day and year first above written.

The Cleveland CRANE & EngineeRing Co.,

*Contr actor.*

By C. C. Bobbins.

United States *of*America,

By A. O. Ellis,

Captain, *Ord. Dept., U. 3. A.*

*Contracting Oftcer.*

Witnesses:

T. S. MacDonald,

D. J. Needham.

Schedule “A”

The following property in the claim of Cleveland Crane and Engineering Company on contract P-5339-1982-A passes to and becomes the property of the United States Government upon the settlement of this contract.

*872Spare parts for 350 ton press as follows:

1 B-1973 pull back piston.

1 packing gland.

1 B-1972 pull back piston.

No. 3026 chrome vanadium steel.

Miscellaneous tool equipment for machinery operating tools of press equipment.

Warranty

State oe Ohio,

*County of Cuyahoga:*

The undersigned being first duly sworn, warrants the foregoing property to be free and clear of any and all in-cumbrances.

C. C. Bobbins.

Sworn to before me and subscribed in my presence this 29th day of July, 1919.

[seal.] Thomas S. MacDonald,

*Notary Public.*

Schedule “B”

The following property in the claim of the Cleveland Crane and Engineering Company on contract P-5339-1982-A passes to and becomes the property of the contractor herein upon the settlement of this contract.

2,220 five-inch common steel shell forgings — 188,345 lbs.

Affidavit

I do solemnly swear that the foregoing is an exact copy of a contract made by me personally with the Cleveland Crane & Engineering Company; that I made the same fairly without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the contractor, or to any other person; and that the papers accompanying include all those relating to the contract, as required by the statute in such case made and provided.

A. O. Ellis, *Captain,*

*Ordnance Department, Ü. S. Army,*

*Contracting Officer.*

Subscribed and sworn to before me this 30th day of July, A. D. 1919.

[seal.] HaRry L. Eastman,

*Notary Public.*

My commission expires October 18, 1919.

*873Contracting officer’s certificate

I hereby certify that I have satisfied myself of the authority of the person signing the contractor’s name to this agreement to bind it in the matter, and I have waived the filing of evidence of such authority as permitted so to do by Army Regulations.

A. O. Ellis, *0captain,*

*Ordance Deyartment, U. JS.*Army,

*Contracting Officer.*

Award

Oednance Department,

Cleveland District Claims Board,

*Dated July S®, 1919.*

Matter of Settlement of Claim of The Cleveland Crane & Eng. Company, a corporation organized and existing under and by virtue of the laws of the State of Ohio, Contractor.

War-Ord-No. P-5339-1918-A.

On reading and considering the verified statement of claim and supporting accounts and papers of the above-named contractor submitted herein, dated March 5,1919; the verified staff report herein, dated -; and on hearing and considering the testimony and arguments, and examining the evidence submitted herein, it is

Found:

1. The United States shall forthwith pay to the contractor the sum of three thousand two hundred seventy-six and 33/ 100 ($3,276.33) dollars, made up as follows:

ALLOWANCES

No. Amount Amount

1. Unworked direct materials-

2. Indirect materials-$3,197.02

3. Worked direct materials- 435.11

' 4. Direct labor and overhead expense- 423. 54

5. Commitments for material or service- 614. 03

6. Claims for other compensation-

a. Machinery, buildings, and equipment— 13, 597.92

b. Salary of watchman- 1, 226. 61

c. Identification badges for employees-^— 158.50

Total of contractor’s claim-$19,652. 73

*874DEDUCTIONS

Line

No. Amount Amount

1. Claims of the United States against tlie contractor arising out of or incident to the prime contract, or for loans in connection therewith_ None.

2. Amount due to the United States, being the fair value of property transferred to the contractor in this settlement_$6, 917. 78

3. Scrap, if retained by contractor, from. worked materials_ None.

4. Allowance to the United States for fair value of property retained by contractor in this settlement. (Sometimes called salvage value)_ 9,458.62

Total deductions_$16, 376.40

Balance due contractor_ 3,276.33

2. Delays in delivery or performance under the contract to which this award relates have been carefully investigated and it is found that they were not due to the fault of the contractor, have resulted in no damage to the United States, and no deductions should be made from the contractor’s compensation because of such delays.

E. No member of the Cleveland District Ordnance Claims Board has any interest in this contract.

4. The settlement in accordance with the foregoing findings, subject, however, to the approval of the Ordnance Claims Board, shall be in full satisfaction of any and all claims or demands in law or in equity which the contractor, its successors, representatives, agents, and assigns, has or may have growing out of or incident to the contract herein-above mentioned, and such settlement shall constitute a complete termination of every question or claim, legal or equiptable, liquidated or unliquidated, pertaining to or growing out of said contract except that all articles of work delivered and accepted heretofore under and in pursuance of the original contract and not yet paid for shall be paid for in accordance with the provisions of said original contract.

5. We, the Cleveland District Ordnance Claims Board, have verified and caused to be verified to our satisfaction the contractor’s statement of fact as to expenditures made, commitments outstanding, material on hand, or other items charged, and do hereby certify that, to the extent that the same were allowed by us in the settlement as hereinabove stated in detail, such items were verified to our satisfaction. There are no known claims of the United States against the contractor arising out of or incident to the original contract *875which are not covered in reaching the foregoing determination.

Cleveland District Ordnance Claims Board,

ByF. *J.*Scobell, *Chairman.*

We (will) accept the conclusions and amount stated in the foregoing award.

The Cleveland Crane &

Engineering Company,

[seal.] Per C. C. Bobbins,

*Seo'y and Gerúl Mgr.*

Certified a true copy.

IT. S. Houser,

*First Lieut., Ord. Dept., U. S. A.*

October 15, 1920.

IX. By telegram of August 4-, 1919, an interview was arranged for August 6 between plaintiff’s representative and the attorneys before referred to, and Mr. Shaver brought the company’s records of the controversy and went exhaustively into the details with these attorneys on August 6 and 7. The result of this preliminary examination appeared to convince plaintiff’s attorneys that the terms of its contract of January 1 and April 30 did not deprive plaintiff of the right to sell these doubtful forgings, and that there was neither grounds for criminal prosecution or for civil actions for conversion, and that plaintiff was obliged to pay only for the then value of the steel which had gone into these doubtful forgings so sold. These attorneys seemed further convinced that inordinate pressure had been brought to bear on plaintiff in order to obtain its signature to the settlement contracts.

X. Having such convictions these attorneys on the same day attended the office of the Ordnance Claims Board in the city of Washington, the duty of which board ivas to affirm or deny the action of the local claims boards similar to the one acting in the district of the city of Cleveland. They there were referred to an unidentified officer of the Army. He informed them that the action of the Cleveland district board was not considered final until approved by the Ordnance Claims Board of Washington, and that prior to that approval plaintiff might withdraw its signature to the *876settlement contracts. That this was the procedure was testified to as a fact by another witness.

They were, however, referred by the officer to Mr. Dwight D. Graves, recorder of the Ordnance Claims Board, but not a member thereof. Mr. Graves confirmed the statements which the officer had made, but after examination of his own records asserted that the facts were different than the attorneys represented them to be, and that the plaintiff had had no right to sell the doubtful forgings. He told them that the plaintiff was accused of taking Government property and that if the charge could be sustained the Cleveland board could give the plaintiff an even more unfavorable settlement. His advice was not to withdraw the signature from the settlement contracts as that would require the case to be re-referred to the Cleveland board, but that if the signature was not withdrawn the Ordnance Claims Board at its hearing would consider the company’s contractual rights and remedy all errors.

XI. Adhering to their original convictions, however, the attorneys advised Mr. Shaver that the plaintiff should withdraw its acceptance of the settlement contracts and appeal for a reopening of its case. To that end two letters were prepared by the attorneys to be delivered to the plaintiff by Mr. Shaver for its signature. One letter was in effect a power of attorney to F. S. Bright and the other was to the Ordnance Claims Board asking for a reconsideration of.. the claims. These letters are as follows:

Cleveland, Ohio, *August 7,1919.*

F. S. Beight, Esq.,

*Colorado*Bunding, *WasMngton, D. C.*

*•*Dear Sir: We are handing you herewith a communication to the Ordnance Claims Board asking leave to withdraw our acceptance of the settlement hereinbefore made in the matter of claini No. 457 (G1014-541A) contemplating a settlement of items in controversy under contracts between this company and the Ordnance Department of the United States Army, dated January 1 and April 30, 1918.

In the event that the Ordnance Claims Board shall refuse to permit us to withdraw our acceptance of said settlement, we desire to withdraw the claim from said board and prosecute the matter before the Court of Claims. This letter is *877intended as authority to you as our attorney to withdraw the claim from said board in the event that said board shall decline, to reopen the settlement.

Tours truly,

Cleveland, Ohio, *August 8, 1919.*

Ordnance Claims Board,

*War Department, Washington, D. 0.*

Gentlemen: In the matter of Claim No. 457, filed through the Cleveland District Claims Board (G1014— 541A), contemplating a settlement of items in controversy under contracts between this company and the Ordnance Department, United States Army, dated January 1 and April 80, 1918, we earnestly desire, and therefore ask leave, to withdraw our acceptance of the settlement heretofore made, and ask that the claim be reopened.

The settlement was accepted by this company without any legal advice whatsoever, and in the belief that the terms of said settlement (which were never considered fair or equitable by this company) were the only ones to which the Government would assent, and in the belief that it was necessary for us to act within three days after the contract of settlement was presented to us.

An official of this company went to Washington, fully intending to take up the matter with our attorneys on Saturday, July 26; but, because of unexpected developments in connection with another case which required immediate settlement, was tmable to take up this case. We have now, however, been advised by our attorneys that the settlement heretofore made is unfair and inequitable, and directly contrary to our contractual rights. As we now understand those rights the said settlement was made under a misapprehension of the facts, and was based upon misinformation as to what wére our rights and obligations in the premises. We believe that upon a reconsideration of the claim it will be apparent to the Government that an entirely different settlement is required to meet the ends of justice.

Respectfully,

XII. The plaintiff did not sign or return these letters and did nothing with respect to the claim until August 9, 1919, when it sent the following telegram to its attorneys:

Wicklifee, O., *Aug. 9, 1919.*

F. S. Bright,

*Colorado Bldg., Wash., D. C.:*

Items in controversy between Government and ourselves were exhaustively negotiated with local board of Cleveland *878which assured us no more favorable settlement would be made. This fact, coupled with your statement that the Washington board intimated that if we ask for a reopening of the settlement more onerous terms might be imposed upon us, induces us to hesitate before asking that the settlement be reopened. It seems to us, though, that the Government officers should not desire to force upon us an inequitable settlement and this telegram authorizes you to request the claims board at Washington to permit you as our attorneys to present points of law and see that considerations which are proper to be urged in our behalf are brought to their attention.

Cleveland Ceane & Engineeeing Co.

11.17A

XIII. This telegram was taken the same day to the office of the Ordnance Claims Board at Washington by Attorney Hinrichs and shown to Mr. Graves, the recorder. Mr. Graves told Mr. Hinrichs that the Ordnance Claims Board had not yet approved the settlement contracts and that this telegram would be a sufficient application in itself for a hearing on the merits of the settlement. Thereafter Mr. Hin-richs made frequent trips to the office of the ordnance board for the purpose of ascertaining the status of the appeal.

Through inadvertence the telegram was not presented to the Ordnance Claims Board by its recorder, and on August 20 and 23, respectively, these settlement contracts were, as a matter of form, approved and the plaintiff so notified. Plaintiff in turn immediately notified Attorney Hinrichs, who at once called upon Mr. Graves and reported that fact to him. Mr. Graves informed Attorney Hinrichs that the case was still in such a position that any error could be amended. For the purpose of keeping himself informed as to the status of the case Attorney Hinrichs made frequent trips to Mr. Graves’s office, on one of which he was asked to prepare a brief outline of the questions of law involved, which outline was prepared and delivered to the committee under date of October 18, 1919.

XIY. The board at Washington considered the points made in the attorney’s letter of October 18, 1919, above referred to and concluded not to reopen the settlement unless *879there appeared to be errors in computation, fraud, or duress and for the purpose of satisfying itself on these points sent a representative on October 31, 1919, to Cleveland to investigate. This representative found no such irregularities, in his opinion, and so reported to the board at Washington. The board thereupon decided it was without power to alter its settlement contracts and so ordered by letter dated November 4, 1919.

An appeal to the Board of Contract Adjustment was made, and after a hearing had been had thereon, at which plaintiff was represented, and allowed to present evidence, this board, under date of June 8, 1920, refused to reopen the case, and denied relief.

The court decided that plaintiff was not entitled to recover. Counterclaim allowed.

Booth, *JucLge,*

delivered the opinion of the court:

The plaintiff in this case seeks to reopen settlements made ■ in writing between the Government and itself respecting munition contracts cancelled after the armistice. The plaintiff concedes the force o'f the settlements so made, but challenges their finality upon the grounds of duress. Two contracts were entered into between the plaintiff and the Government, one on January 1, 1918, the other April 30, 1918. The subject matter of both undertakings obligated the plaintiff to forge from steel furnished by the Government a large number of pieces capable of being subsequently machined into shells. The contract provided in terms for inspection of the completed pieces before acceptance and for rejection of all pieces due to faulty workmanship. In the clause of the contract relating to inspection there was a provision providing for doubtful forgings and those rejected for minor defects due to surface conditions. Doubtful forgings — the pieces! around which this controversy centers — were, as their name implies, pieces which might or might not, despite imperfections, have been ultimately machined into shells. If after they were forwarded to the manufacturer of shells they were converted into shells the plaintiff was to receive the contract price therefor; if the *880attempt failed, the plaintiff was to bear the cost of freight and machine work done thereon.

When the contract was on December 6, 1918, cancelled and work thereon suspended the plaintiff had on hand 10,-703 pieces designated by the inspector as doubtful forgings. In the latter part of December, 1918, or early in January, 1919, the plaintiff sold to the Martin Products Company, of Cleveland, Ohio, 10,300 pieces out of this lot of doubtful forgings and received therefor $3.20 per piece, the plaintiff contemplating at the time to reimburse itself for the cost of forging the pieces, i. e., $1.95 each, and with balance of the funds go into the open market and purchase sufficient steel to replace the full quantity furnished by the Govermnent from which the doubtful forgings had been forged. Steel at this time was selling for $20 per ton, whereas the Government had paid $70 per ton for the steel so furnished.

In order to properly adjust the rights of the plaintiff and the Government under the cancelled contracts, as well as all other contracts similar in character, the War Department organized the Cleveland District Ordnance Board, and to this board the plaintiff presented its claims. On July 19, 1919, at a meeting of the board the plaintiff’s claims were discussed and considered. The plaintiff was represented and its side of the case fully stated. The members of the board entertained the opinion that what the plaintiff did in disposing of the doubtful forgings as above set forth was not only contrary to the terms of the contract but contrary to law, the board finally holding that what was done by the plaintiff amounted to a conversion of Government property and held it responsible to the Government for the full amount of the steel consumed in the doubtful forgings at $70 per ton, thereby denying the plaintiff the right to substitute the steel purchased for that purpose at $20 per ton.

In the discussion incident to this particular item of the settlement the plaintiff alleges that the members of the board coerced it into acquiescing in the terms of the same by the use of language of an intemperate character and *881positive threats of criminal prosecution if it refused. We have gone carefully into all that was said and done, and are unable to concur in plaintiff’s allegations. The proof does not sustain duress. The negotiations which finally culminated in the settlement contracts were initiated by the parties on July 19, 1919. The pressure exerted, which it is said deprived the plaintiff of its free agency, was put forth at this precise time; but the plaintiff did not sign the settlement contracts until July 29, 1919, ten days after the alleged compulsion, and in the meantime plaintiff had consulted lawyers in Washington with regard to other matters, failing to mention or seek advice from them with reference to a matter involving substantial property rights and freedom of contract. In addition to this, there was room from the terms of the contract for an insistence upon the part of the board that the settlement with respect to this item was just and equitable. The contract obligated the contractor to pay for the steel furnished by the Government which went into forgings rejected for faulty workmanship. The plaintiff by disposing of the forgings rendered it impossible for the Government’s representative to know whether those forgings might eventually have been machined into shells; in fact, the absence of the forgings from the material on hand prevented a consideration of their status in the settlement to be made.

While we entertain no doubt of the complete innocence of the plaintiff in selling the same, there was no contractual authority to do it. The material was furnished by the Government. It was the property of the Government, the plaintiff being obligated to do no more than forge it into suitable pieces for shell manufacture. *Hartsville Oil Mill*v. *United*States, 60 C. Cls. 712; *Mason*v. *United*States, 17 Wall. 67; *American Smelting & Refining Co.*v. *United*States, 259 U. S. 75.

The settlement contracts notwithstanding plaintiff’s then insistence of duress were approved by the Board of Contract Adjustment and finally by the Secretary of War. We believe the plaintiff has failed to establish duress, and are in *882accord with the findings of the board and the Secretary of War.

Judgment for the United States on its counterclaim for the amount due the United States under the settlement contracts in the sum of $8,338.94 is awarded. It is so ordered.

Graham, *Judge;*Hat, *Judge;*Downey, *Judge;*and Campbell, *Chief Justice,*concur.