#### D. C. STIMSON, TRADING AS J. V. STIMSON & CO., v. THE UNITED STATES

[No. C-979.

Decided January 17, 1927]

*On the Proofs*

*Contract; propellers and gunstoolc Hitches; advisory*eommumeation.— Where at the request of the Director of Aircraft Production plaintiff, who is cutting walnut lumber for the Government graded for propellers, cuts his logs so as to make the balance of them available for gunstock flitches for which the Government promises him a ready sale, the request and the compliance therewith do not constitute an agreement by the Government to purchase the said flitches, and the plaintiff, upon cancellation of a contract for walnut lumber (entered into subsequent to said request) and his acceptance of the terms of cancellation, can not recover the loss sustained through inability thereafter to sell at a profit the material left on his hands. See *Amiclo*v. *United States,*61 O. Cls. 121.

*716
      *The Reporter’s*statement of the case:

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

*Mr. Ralph G. Williamson,*with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a citizen and a resident of the State of Kentucky, and in the year 1918, and at all other times herein mentioned, plaintiff was engaged in the business, of manufacturing hardwood lumber at Owensboro, in the State of Kentucky, under the firm name and style of D. C. Stimson, trading as J. Y. Stimson and Company.

II. During the year 1918 plaintiff was engaged in manufacturing walnut propeller material for aeroplanes, under certain contracts with the United States, which contracts were fully performed and are not material in the consideration of the facts involved in this action.

On or about August 8,1918, plaintiff received a letter dated August 7, 1918, from the office of the Director of Aircraft Production, as follows:

“ It is imperative that such mills as are cutting propeller walnut for the Bureau of Aircraft Production should make available for sale to mills who have gunstock contracts from the Ordnance Department that part of the log which does not produce desirable propeller walnut. These gunstock flitches would be *2y2*inches in thickness and of a grade that will produce an average of one clear, gunstock for every ten feet board measure of flitch. This grade of flitches can not be produced where propeller material is taken from all four faces of the log. Therefore, this section asks its contractors to manufacture their logs by taking propeller material from two opposite faces of the log only and then converting the balance of the log into 2%-inch flitches. And it is better not to undertake to cut propeller lumber from 12-inch and 13-inch logs. They are too small for the purpose and it merely ruins the gunstock flitch to undertake it.

“If by cooperating, as outlined above, you will produce these flitches that will cut gunstocks on the 10-foot basis, the Ordnance Department Production Division will find a ready sale for same at a price of $80.00 per thousand per square feet board measure f. o. b. a near-by gunstock mill.

“ Please advise if you will so cut your logs in the future.”

*717Said letter was signed “Materials Department Foreign and United States. By: J. C. Wickliffe, Hardwood Section.”

III. Under date of August 15,. 1918, plaintiff addressed a letter to J. C. Wickliffe, War Department, Bureau of Aircraft Production, as follows:

“Your favor of the 7th instant received regarding gun-stock flitches. Will advise that we will cut as near as possible 10-foot pieces according to the dimensions required.

“We can not always tell what will make gunstock, but we will use our very best judgment in complying with your request and we will cut the aeroplane stock and the gunstock flitches to the best advantage we can, considering the logs we have cut.

“ We would like to have you send us a scale of prices that you have that we should pay for these logs. Some of our logs have been costing us too much money. This is just recently, but on some logs we have made no profit, but take a chance of a loss.”

IY. Under date of September 28,1918, the Director of Aircraft Production sent to plaintiff order number 710317 for 100,000 feet (approximately) walnut lumber, graded in accordance with specification number 15030-B, at $310.00 per 1,000 feet; 30,000 feet to be ready for inspection October 1, 1918; 35,000 feet November 1,1918; and 35,000 feet December 1,1918. Said order was signed “ F. D. Schnacke, Capt. A. S. A. P.” A copy of said order is filed with plaintiff’s petition, herein marked “ Exhibit A,” and is made a part hereof by reference.

Y. Following this order, formal contract number 4866, bearing date of October 1, 1918, was entered into by and between the United States, represented by F. D. Schnacke, Capt. A. S. A. P., and the plaintiff, by the terms of which contractor obligated himself to furnish to the Government the material described in order number 710317 at the price and in accordance with the terms stipulated in said order. This contract was approved October 9, 1918, by authority of the Director of Aircraft Production. Authorization of June 7, 1918, A. C. Downey, Lt. Col. A. S. A. P.

YI. On December 28, 1918, a second supplemental contract was entered into between the plaintiff and the United States, represented by O. R. Ewing, Capt. A. S. A. P., *718which contract was approved December 30, 1918, by A. C. Downey, Lt. Col. A. S. A. P. The material parts of said supplemental contract are as follows:

“ Whereas heretofore, on the 1st day of October, 1918, the parties hereto did enter into a contract bearing the contract No. 4866 covering order No. 7T0317 (which order was dated September 28, 1918) and called for the purchase, by the Government, from the contractor, of approximately 100,000 feet of walnut lumber at a price of $310.00 per thousand feet; and * * *

*“*Whereas the contractor has heretofore delivered to the Government, pursuant to the terms of aforesaid contract, 78,647 feet of lumber for which the Government has duly paid the contractor; and

*“*Whereas the furnishing and delivery under said original and supplemental contracts of the remaining 21,353 feet of lumber would exceed the present requirements of the United States, thereby making it to the interest of the Government to cancel the undelivered portion thereof, and amend said original contract as herein provided:

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

“Article I

“ The contractor agrees to accept cancellation of and shall not furnish and deliver to the United States, and the United States shall not accept and pay for the 21,353 feet of lumber remaining undelivered under said original contract, and to that extent said original contract is hereby canceled, rescinded, and annulled. * * *

“ARTICLE II

“ The United States and the contractor for himself, his successors, heirs, legal representatives, and assigns, do hereby mutually remise, release, and forever discharge each other from all and all manner of debts, dues, sum or sums of money, accounts, reckonings, claims, and demands whatsoever due, or to become due in law or in equity, by reason of, or arising out of, or with respect to the articles of work hereby canceled, and this agreement shall constitute full and final settlement of all questions and claims growing out of this cancellation.”

VII. Following the receipt of the letter dated August 7, 1918, plaintiff began to increase its stock of walnut logs *719out of which material for the propeller order and gunstock flitches could be manufactured. A different grade of logs was used from that required for propeller stock. The proportions between aeroplane and gunstock material in a log were one to three and one-half. Plaintiff continued to buy logs until September, 1918. By reason of the letter dated August 7, 1918, plaintiff bought approximately 300,000 feet of walnut logs in addition to the quantity required under the propeller order.

VIII. In response to plaintiff’s letter dated August 15, 1918, the hardwood section of the Bureau of Aircraft Production furnished to plaintiff a list of firms who were in the market for lumber for gunstock flitches. Previous to the ■cancellation of the propeller contract, plaintiff had sold to these firms approximately 100,000 feet of flitches and at the time of the cancellation of the propeller contract plaintiff had on hand approximately 203,000 feet of logs, of which 125,000 feet were suitable for propeller stock and 78,000 for ;gunstock flitches.

IX. The logs purchased by plaintiff cost on an average .about $110.00 a thousand feet. Subsequent to the cancellation of the propeller contract and after the armistice the value of walnut timber declined rapidly. There was no ready market for the material that plaintiff had on hand, and he was compelled to and did cut the logs into lumber and use the same for furniture. The market value of the logs was from $45.00 to $55.00 per thousand. The difference between the cost of the logs and the market value of the same was approximately $60.00 per thousand.

X. Subsequent to the cancellation of contract No. 4866 plaintiff did not deliver or offer to deliver any gunstock flitches to the United States. No evidence was offered showing what it would have cost the plaintiff to produce gun-stock flitches.

The court decided that plaintiff was not entitled to recover.

Booth, *Judge,*

delivered the opinion of the court:

This is a Dent Act case. Plaintiff rests a contention for a ■-contractual liability upon two letters passed between the *720parties on August 7, *1918,*and August 15, 1918. The Board of Contract Adjustment declined to find a contract upon this evidence, and it is difficult to perceive wherein the board was in error. Plaintiff was engaged during 1918 under certain contracts in furnishing to the Bureau of Aircraft Production certain specified quantities of propeller walnut lumber. While so engaged the bureau, by the letter of' August 7, 1918, advised a method of sawing walnut logs whereby the propeller lumber could be advantageously sawed from the logs in a certain way and the remaining portion of the log made available for gunstock fiiehes, therein asking for the plaintiff’s cooperation in this respect, at the same time assuring plaintiff that the Ordnance Department Production Division would find for plaintiff a ready market for the gun-stock flitch lumber at $80 per thousand square feet. On August 15,1918, the plaintiff acceded to the bureau’s request. The claim now made is that by reason of this correspondence the plaintiff was compelled to purchase an abnormal amount of logs to meet the exact requirements of the bureau in this x’espect, and upon the cancellation of its partially performed contract of September 28,1918, the defendant did not furnish a market for its surplus logs at $80 per thousand square feet or purchase them on Government account.

It is manifestly impossible to deduce a contract from the correspondence or the conduct of the parties. The wording of the correspondence, as well as the ordinary and usual meaning of the language used, does, not even remotely suggest contractual relations. The defendant was not purchasing logs for gunstock flitches. The bureau was offering to and did use its good offices in finding a profitable market for the unused portion, of the plaintiff’s logs. When the war ceased the market ceased, and the war prices for walnut timber declined. For this condition of affairs the defendant assumed no liability. No authority to make the contract is shown if it were possible to construe the letters as a contract.

In addition to this, the plaintiff fully performed all contracts with the defendant as to propeller lumber, except formal contract of September 28, 1918, afterwards known as No. 4866. This contract was canceled by formal agree*721ment on December 28, 1918, following the armistice. The cancellation contract goes into detail, specifies quantities, and fully covers the existing situation of the parties. Article II of this agreement discloses a full and unreserved release and complete settlement of all claims of whatever nature and kind growing out of the contractual relationship of the parties, a final settlement of all differences.

In our opinion, aside from all else that has been said, the plaintiff, by the execution of this instrument in good faith and with full knowledge of the consequences, absolutely precluded itself from asserting this claim. The case is without merit, and the petition will be dismissed. It is so ordered.

Moss, *Judge;*Gkaham, *Judge;*Hat, *Judge;*and Campbell, *Chief Justice,*concur.