#### CHANNON-EMERY STOVE CO. v. THE UNITED STATES1

[No. C-1052.]

*On the Proofs*

*Contract; implied agreement; additional materials.*— A request by an agent of tbe Government for information as to tbe price at wbieb plaintiff could furnish certain articles in excess of tbe number contracted for, not followed by an order, a shipment, or a delivery, does not raise tbe implication of an agreement to pay for such additional articles.

*38
      *The Reporter's*statement of the case:

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

*Mr. Louis R.*MehUnger, with whom was *Mr. Assistant Attorney General Hemiam, J.*Galloway, for the defendant. *Mr. Perry W. Howard*was on the brief.

Decided June 1, 1925.

Motion for new trial overruled October 26, 1925.

The following are the facts as found by the court:

I. Plaintiff is a corporation duly organized under the laws of the State of Illinois, with its principal place of business in Quincy. It is the sole owner of the claim mentioned in the petition.

II. In the year 1917 plaintiff was engaged in the manufacture of stoves and ranges at said place of business and was then employed in manufacturing 185 steel ranges for the United States upon written orders from the Cantonment Division of the War Department at Washington, which had been duly issued to and accepted by the plaintiff. These 185 ranges were finally shipped and were paid for in full at the agreed price.

III. On September 24, 1917, while plaintiff was still engaged in the manufacture and delivery of the 185. ranges, above mentioned, Col. I. W. Littell, an officer of the United States then in charge of the Cantonment Division at Washington, wired the plaintiff as follows:

“ Advise by wire how soon j^ou can ship additional order twenty-five number forty-two twenty-four Cesco hotel ranges, duplicates of our previous order, including bake-pan sets with each range. Advise price.”

This telegram, on its receipt by plaintiff, was replied to by the latter on September 25th, as follows:

“ Referring your telegram twenty-four, we can ship twenty-five to fifty ranges complete with pans by October third at two naught six dollars and eighty-five cents if ordered at once.”

On September 26, 1917, Colonel Littell acknowledged receipt of plaintiff’s wire of the 25th, as follows:

“ Your telegram September twenty-five that you can ship additional order of twenty-five to fifty ranges complete *39with pans by October third, our Inspector Shinn wired today that final shipment of present order to Fort Riley would not be possible before September twenty-nine, account labor trouble. This shipment must be made not later than the evening of September twenty-seven. Personal tracer to accompany car and deliver same to cantonment by October first. Otherwise cannot place additional order. Answer immediately.”

IY. On September 30 the plaintiff again wired Col. Littell as follows:

“Car ranges arrived at Camp Funston eight thirty this morning. Glad to keep our promise. You did not definitely state number of additional ranges. Please advise.”

No reply was made by Colonel Litteli or any other agent of the defendant to plaintiff’s said telegram of September 26, 1917. No order was ever issued for the said additional ranges referred to in the foregoing telegram and referred to in the petition, nor were any of said additional ranges ever ordered by, shipped, or delivered to defendant or anyone for defendant.

The court decided that plaintiff w.as not entitled to recover.

Writ of certiorari denied.

MEMORANDUM BY THE COURT

The plaintiff seeks to recover for failure of the defendant to accept certain additional ranges. It appears that there was a contract between the parties whereby the plaintiff was to deliver 185 steel ranges to the Government. It was while this contract was in process of performance that the agent of the Government called upon plaintiff to know the price at which it could furnish some additional ranges. While plaintiff stated the price, it does not appear that the matter was ever concluded by an order for the ranges. They were not ordered; they were not shipped or delivered. There was no agreement between the parties that they should be shipped.

Graham, Judge,

took' no part in the decision of this case.