American Smelting Refining Co v. United States, 221

• Decision Date: 15 May 1922
• Docket Number: No. 221,221
• Citation: 259 U.S. 75,66 L.Ed. 833,42 S.Ct. 420
• Parties: AMERICAN SMELTING & REFINING CO. v. UNITED STATES
• Court: U.S. Supreme Court

259 U.S. 75

42 S.Ct. 420

66 L.Ed. 833

AMERICAN SMELTING & REFINING CO.

v UNITED STATES.

No. 221.

Argued April 25, 1922.

Decided May 15, 1922.

Messrs. Wm. B. King and Geo. A. King, both of Washington, D. C., and Charles Earl, of New York City, for appellant.

Wm. C. Herron, of Washington, D. C., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a claim for $512,515.50, being the price of 20,500,620 pounds of copper at 26 cents a pound less payments received at 23 1/2 cents. The petition was dismissed by the Court of Claims on demurrer. The facts alleged are as follows. The Government had some correspondence with the United Metals Selling Company ending in an order or proposal for 30,000 metric tons of copper for the French Government to be delivered on or before June 1, 1918. To this the Company replied on March 26, 1918, that the Copper Producers Committee had divided the handling of copper and had given the export business to the American Smelting and Refining Company. The letter requested that the order be changed to apply to the last-named company and concluded 'they tell us that it will quite fit in with their operations to handle this present order along with the other shipments.' Thereupon, on March 28, 1918, a letter was written by the Ordnance Department to the American Smelting & Refining Company, 'to advise you that the Procurement Division is prepared to procure from you 30,000 metric tons (66,138,000 pounds) of copper at a price of 23 1/2 c. per pound net, f. o. b. New York basis. Deliveries are to be completed on or before June 1, 1918'; shipping instructions to be taken up with the Supply Division, Ordnance Department; with further particulars not material and ending, 'Your acceptance of this letter is requested pending issuance of formal contract which will go forward in a few days.' The representative of the claimant seems to have delayed an answer in the hope of adjusting one or two details but on April 11, wrote:

'We have your favor March 28th * * * and take pleasure in accepting your letter as above pending issuance of formal contract which we hope to receive in the near future.'

The copper except the 20,500,620 pounds, was delivered before July 2, 1918, has been paid for and no question is raised about it. But it was practically impossible to deliver this last amount until after that date and no shipping orders for it were received until a later time. It was delivered finally and the claim for the advanced price is based upon the facts and arguments that we shall state.

At the time when the order was accepted the Price-Fixing Committee of the War Industries Board, an agency of the Council of National Defence, had fixed the price of copper at 23 1/2 cents per pound f. o. b. New York, under the Act of August 29, 1916, c. 418, § 2, 39 Stat. 619, 649 (Comp. St. §§ 3115a-3115e), and the authority of the President. On July 2, 1918, the price was advanced to 26 cents per pound. The National Defence Act of June 3, 1916, c. 134, § 120, 39 Stat. 166, 213 (Comp. St. §§ 3115f-3115h), had author ized the President in time of war 'in addition to the present authorized methods of purchase or procurement, to place an order' for material required made compliance with such orders obligatory under a penalty, and gave them precedence. The compensation paid was to be fair and just. The position of the claimant is that although the language of contract was used, it was yielding to the requirements of the statute and is entitled to the fair price that the statute promised. The fair price, it contends, for copper delivered after the change of July 2, is 26 cents, because the delay is alleged to have been due to the...