#### ST. LOUIS TIN & SHEET METAL WORKING CO. v. THE UNITED STATES

[No. B-185.

Decided May 24, 1926]

*On the Proofs*

*Dent Act; authority of officer to contract.*— To be enforeible under tbe Dent Act an informal contract with the Government must have been made with an officer of the United States duly authorized to contract.

*The Reporter's*statement of the case:

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

*Mr. Edwin S.*McCrary, 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 having its principal place of business at St. Louis, Mo., and since filing this suit, through proper court procedure as evidenced by affidavit of the secretary of the State of Missouri filed herein, has changed its name to St. Louis Can Co.

II. About June 12, 1918, Lieutenant Graham, of the subsistence division at Washington, D. C., called a meeting at Chicago of manufacturers of tin cans, and, among other *278manufacturers, the plaintiff was instructed by Lieutenant Graham to attend said meeting.

III. At the time the said meeting was called Lieutenant Graham was in charge of the hard-bread division, Quartermaster Corps, and was the principal spokesman and gave instructions to said can manufacturers.

IV. The purpose of calling this meeting in Chicago was to secure hard-bread tin cans for supplying the soldiers in the field. At the time of this meeting the defendant was in most urgent need of an enormous quantity of such tin cans. The defendant had used all efforts to increase the supply among eastern manufacturers, and not being able to obtain sufficient supplies among the eastern manufacturers it became necessary to call this meeting in Chicago for the purpose of obtaining the aid of the western manufacturers. At the time of this meeting the demand of the defendant for hard-bread tin cans was very large.

V. The defendant, through Lieutenant Graham, who had full authority to give instructions to the said manufacturers, including the plaintiff, advised the said manufacturers at said meeting that the defendant was in urgent need of the largest possible production of tin bread cans that they could produce, and that there were sufficient orders on hand already for all that they could possibly produce.

VI. The plaintiff was thereupon instructed by Lieutenant Graham to immediately return to its home and prepare for the greatest possible production it could produce, to begin to produce immediately by hand methods as fast as it could and at the same time to procure machinery as fast as it could and to lay in supplies in order to obtain the greatest possible production, and that it should get the production that he demanded even if it had to work night and day and Sundays and abandon all commercial business, and it was further instructed by Lieutenant Graham that if it did not make every possible effort in the way of making preparations to run its plant to the limit of production the Government would commandeer its plant and take it over and operate it.

VII. Plaintiff was further instructed and advised by Lieutenant Graham that it should not wait for written *279orders but that they should proceed immediately and that written orders would come along from time to time later and continue to come to cover its production as fast as it was able to produce.

VIII. In compliance with the said instructions the said plaintiff proceeded to its plant, purchased machinery and supplies and made every possible preparation to obtain the largest possible production. In order to comply with the said instructions it was necessary for the plaintiff in addition to ordering machinery and equipment to lay in large supplies of material, and on account of the condition of the mills to put in orders for material 60 to 90 days in advance.

IX. Pursuant to said orders plaintiff abandoned all of its commercial business and devoted its entire plant to manufacturing the said cans and running its plant to full capacity, but upon the signing of the armistice plaintiff was instructed by the defendant to cease manufacturing and to submit its claims for whatever loss it would suffer by reason thereof, and thereupon plaintiff submitted its claim for its loss on material purchased, being the difference between the purchase price and the then prevailing market price. The price which the plaintiff paid for the tin plate which it had on its hands at the time of the signing of the armistice was $5.65, and the market price at that time was $4.75. The price paid for solder was .39% per pound and the market price at that time was .2965 per pound. By reason of this drop in the price of the tin plate and solder the negotiating officer for the defendant allowed the plaintiff as loss on the tin plate 33% per cent and as loss on the solder 25 per cent, the tin plate and solder to be retained by the plaintiff.

X. The plaintiff proceeded to use all of said tin plate and solder in its commercial business and did not keep a separate account of how such material was used or finally disposed of in its commercial business. It is not possible to ascertain from the way plaintiff kept its books and accounts whether plaintiff had a loss or a profit on any one or all of its commercial contracts upon which it used up said material.

XI. After the passage of the Dent Act the plaintiff presented its claim to the Secretary of War through the board of contract adjustment for its loss upon that part of the *280excess of tin plate and solder for which it had not been paid, amounting, as set out in that claim, to $11,975.94. This is the same claim for which suit is herein brought for $14,-996.59, and which plaintiff has reduced by dropping two items, so that the amount herein sought to be recovered is $13,581.47. The claim of the plaintiff was disallowed by the Secretary of War.

XII. The items making up the claim of the plaintiff have not been proved. And the amount of the loss upon tin plate remaining in plaintiff’s hands in excess of the amount when payment was made has not been shown. The plaintiff did use all of the materials in filling its commercial contracts.

XIII. The plaintiff received contracts from the Government for 2,850,000 cans, of which it completed and delivered 1,176,043, and for which it was paid in full. The plaintiff was also paid for raw material on hand and material in process not in excess of the amounts required to complete the contracts. The plaintiff, in addition to the raw material on hand, and which was paid for by the United States, had commitments for a number of packages of tin plate, which as early as November 12, 1918, the plaintiff made arrangements to have cut to commercial sizes and to come in black plate.

The court decided that plaintiff was not entitled to recover.

Hat, *Juclge,*

delivered the opinion of the court:

This case arises under the Dent Act, 40 Stat. 1272, and is for the amount of $13,581.47 by reason of an agreement alleged to have been entered into between the plaintiff and the United States.

In the first place it does not appear that the officer of the United States who is alleged to have made the contract had any authority to contract on the part of the United States, or to incur any liability on the part of the Government for or on account of the bread tins or the materials for their manufacture.

Under the decision in *Baltimore & Ohio R. R. Co.*v. *United States,*261 U. S. 592, the plaintiff has no right to recover.

*281The evidence shows that the materials were used by the plaintiff in its commercial business, and if there was any loss suffered by the plaintiff it is not shown what the loss was.

The petition of the plaintiff must be dismissed. It is so ordered.

Graham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.