Hardt v. Heller Bros. Co., No. 9508.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMARIS, McLAUGHLIN, and O'CONNELL, Circuit
PartiesHARDT et al. v. HELLER BROS. CO.
Decision Date19 November 1948
Docket NumberNo. 9508.

171 F.2d 644 (1948)

HARDT et al.
v.
HELLER BROS.
CO.

No. 9508.

United States Court of Appeals Third Circuit.

Argued October 5, 1948.

Decided November 19, 1948.


R. Sturgis Ingersoll, of Philadelphia, Pa. (Frederic L. Ballard, Jr., and Ballard, Spahr, Andrews & Ingersoll, all of Philadelphia, on the brief), for appellant.

Hirsh W. Stalberg, of Philadelphia, Pa. (Harry Shapiro, Edward Stone, and Shapiro,

171 F.2d 645
Conner, Rosenfeld & Stalberg, all of Philadelphia, Pa., on the brief), for appellees

Before MARIS, McLAUGHLIN, and O'CONNELL, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This diversity case is an appeal from a judgment of the district court sitting without a jury, which awarded compensation to appellees for their services on a quantum meruit basis in and about the procuring of a Certificate of Necessity for the appellant. The lower court found the fair value of appellees' services to appellant in connection therewith to be $45,000 and that appellees were entitled to six per cent interest on the principal sum from July 3, 1941. The interest down to the date of the judgment amounted to $16,575 and brought the total of the judgment to $61,575.

The fact finding by the trial court that a contract of employment did exist between appellees and appellant, though strongly contested below, is not attacked on this appeal. The sole dispute pertains to the amount of compensation allowed.

Certificates of Necessity were part of the national wartime emergency program. They were authorized by Section 124 of the Internal Revenue Code, 54 Stat. 999, Oct. 8, 1940, P.L. 801, 76th Cong., and amendments thereto, 26 U.S.C.A. § 124, known as "The Tax Amortization Law." They were issued to qualified manufacturers. They certified that a contemplated increase in facilities was necessary in the interest of national defense and allowed an annual deduction of 20% of the cost at the election of the taxpayer. This permitted amortization of such facilities in five years, which period under the program's theory would exhaust their prospective use. The certificates were designed to provide reasonable protection against bankruptcy at the end of the effort to the manufacturer undertaking "the rapid expansion which the national defense required for an activity of uncertain duration." Report of the Under Secretary of War, Feb. 15, 1945. The certificates were issued by either the War or Navy Departments. The instant matter came under the War Department. Prior to the issuance of a certificate, the application was investigated by the Office of Production Management and the Army-Navy Munitions Board.

Near the beginning of the year 1941, the appellant, Heller Brothers Company, which had then been engaged in the manufacture of steel for many years, was desirous of expanding into war work. Arthur H. Hunter was a steel salesman for Heller Brothers. He had a contract with his employer allowing him 50% of the profits on orders secured by him. He also had control of a patented line of steel products. He was very much interested in the expansion program. Prior to any connection of appellees with the matter he, with other personnel of the appellant, had prepared an application for a Certificate of Necessity on behalf of Heller Brothers. A New York firm of engineering consultants was assisting in this. The application had not been filed with the War Department.

On or about February 10, 1941, Hunter had a conference with appellees. He claimed that this had to do with a contemplated joint expansion of Heller Brothers and a new corporation of his own. The latter was to take over his personal contracts, purchase steel from Heller Brothers, fabricate it and in turn sell it to the trade. Hunter said that he was to see to it that appellees' expenses were taken care of and that their services were to be paid for by giving them stock in his new company. Hardt said that the only agreement was that he and Hartzell were to obtain for Heller Brothers a Certificate of Necessity in the sum of $1,500,000 and a Reconstruction Finance Corporation loan in the same amount. He stated that then or later Hunter did promise them stock in the new company but that he was not impressed with the idea and that the engagement of Hartzell and himself was for Heller Brothers. At two later conferences with Arthur Heller, Treasurer of appellant, present, Hardt testified that it was mutually agreed that he and Hartzell would be suitably compensated by appellant. Immediately following the first of those two conferences appellees entered upon their duties. As to what they did the trial court in its finding Number 23 found that: "On behalf of

171 F.2d 646
defendant, plaintiffs made a thorough study and examination of the plant, equipment, organization, personnel, history, finances, and a capacity of the defendant; compiled relevant data, made many trips to Newark and Washington; conferred frequently with defendant's officers and with government officials in Washington whose duty it was to pass on the application for a Certificate of Necessity; prepared and submitted requisite information to these officials in Washington; planned and directed the presentation of defendant's application."

The application above mentioned is the one which was prepared by Hunter. From the testimony it was not changed by appellees in any respect. They did file it on April 5, 1941. After examination of it, the Army and Navy Munitions Board found that it contained insufficient information, that it had not been submitted in triplicate as required and that it lacked the requisite number of appendix copies. Appellant was advised to submit further information. This was attended to under the supervision of appellees and presented to the Board on or about June 5, 1941. The certificate was issued July 3, 1941 as of June 25, 1941. Regarding this, Major Neufeld, present chief of the Army Tax Amortization Branch, a witness in the case, testified that "since the certificate was issued on the basis of that information, there is no doubt that had that information been originally with the application why the certificate would have gone through without fail."

Though after the Certificate of Necessity was issued, Heller Brothers Company did not carry out its intended development and only expended $114,575.23 under the certificate, we do not see that those facts mitigate against the value of appellees' services, especially since it has not been suggested that appellees were in any way responsible for appellant's later course of conduct.

As seen from the above finding of the district court, appellees did put in a large amount of time on their endeavors. They kept no records of this or of their expenses and it is impossible from the testimony to ascertain just how much of that time was given to the certificate matter. While it can be accepted that the portion so devoted was sizable, the record does not bear out their contention that it was "three or four months." It is asserted on their behalf that the time spent is perhaps one of the least important factors in fixing their compensation. Whatever may be its value in that respect, it is obvious from the trial proceedings that considerable of...

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6 practice notes
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...State Medical Society, 1952, 343 U.S. 326, at page 339, 72 S.Ct. 690, at page 698, 96 L.Ed. 978; Hardt v. Heller Bros. Co., 3 Cir., 1948, 171 F.2d 644, at page 648. We may not refuse to recognize findings or escape the conclusions to which they lead merely because of differences in personal......
  • United States v. Hughes, No. 24101
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1969
    ...appeals. It concluded that mandamus was not appropriate since "we have neither actual nor potential jurisdiction to review the order." 171 F.2d at 644. The First Circuit took a broader view of "potential jurisdiction" in In re United States, supra. Because an order allowing a criminal defen......
  • United States v. Thompson, Crim. No. 2129-70
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 31, 1973
    ...supporting memorandum furnishes sufficiently detailed descriptions of the services to warrant that finding. Cf. Hardt v. Heller Bros. Co., 171 F.2d 644, 648 (3d Cir. 1948); Kuhn v. Princess Lida of Thurn & Taxis, 119 F.2d 704, 708 (3d Cir. 1941).361 F. Supp. 885 If the legal or factual diff......
  • Randolph Laboratories v. SPECIALTIES DEVELOP. CORP., 11219-11222.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 24, 1954
    ...Co., 6 Cir., 1938, 100 F.2d 326, certiorari denied 308 U.S. 581, 60 S.Ct. 101, 84 L.Ed. 486, and Hardt v. Heller Bros. Co., 3 Cir., 1948, 171 F.2d 644. We accordingly proceed to consider the amount of the damages to which Specialties is entitled. This amount is to be based upon what would b......
  • Request a trial to view additional results
6 cases
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...State Medical Society, 1952, 343 U.S. 326, at page 339, 72 S.Ct. 690, at page 698, 96 L.Ed. 978; Hardt v. Heller Bros. Co., 3 Cir., 1948, 171 F.2d 644, at page 648. We may not refuse to recognize findings or escape the conclusions to which they lead merely because of differences in personal......
  • United States v. Hughes, No. 24101
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1969
    ...appeals. It concluded that mandamus was not appropriate since "we have neither actual nor potential jurisdiction to review the order." 171 F.2d at 644. The First Circuit took a broader view of "potential jurisdiction" in In re United States, supra. Because an order allowing a criminal defen......
  • United States v. Thompson, Crim. No. 2129-70
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 31, 1973
    ...supporting memorandum furnishes sufficiently detailed descriptions of the services to warrant that finding. Cf. Hardt v. Heller Bros. Co., 171 F.2d 644, 648 (3d Cir. 1948); Kuhn v. Princess Lida of Thurn & Taxis, 119 F.2d 704, 708 (3d Cir. 1941).361 F. Supp. 885 If the legal or factual diff......
  • Randolph Laboratories v. SPECIALTIES DEVELOP. CORP., 11219-11222.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 24, 1954
    ...Co., 6 Cir., 1938, 100 F.2d 326, certiorari denied 308 U.S. 581, 60 S.Ct. 101, 84 L.Ed. 486, and Hardt v. Heller Bros. Co., 3 Cir., 1948, 171 F.2d 644. We accordingly proceed to consider the amount of the damages to which Specialties is entitled. This amount is to be based upon what would b......
  • Request a trial to view additional results

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