"The United States of America, hereinafter referred to as plaintiff, brought suit against Shepard Engineering Company, a Missouri corporation, with principal place of business at St. Louis, Missouri, hereinafter referred to as defendant, and William H. Banks Warehouses, Inc., an Illinois corporation, hereinafter referred to as Banks. Plaintiff in Count 1 of its Amended Complaint seeks to replevin certain aluminum circles it alleged to be in the possession of the defendants. In Count 2 plaintiff sought judgment against defendant Shepard Engineering Company alone, for damages for conversion of certain aluminum circles. By stipulation the cause was dismissed as to defendant Banks. Various pre-trial conferences were had, requests for admissions were made, agreements and stipulations were made for the supplying of the record with various contracts and exhibits and the cause is now before the Court upon plaintiff's Motion for Summary Judgment against defendant supported by the evidence and admissions in the record.
"The aluminum circles which were replevied under Count 1 of plaintiff's Complaint were sold, by agreement, for the sum of $1,737.12, which amount was deposited and is in the Registry of the Court. There was further stipulation and agreement by plaintiff and defendant that, in the event the issues are found for the plaintiff upon the Motion for Summary Judgment, plaintiff and defendant would either enter into a stipulation as to the value of the remaining aluminum circles in controversy or would offer proof thereon, in the event of disagreement, so that the Court could enter a complete and final judgment for a definite amount to be determined upon Count 2 of the Complaint.
"The facts and admissions in evidence, which the Court will hereinafter set forth, shall constitute the finding of facts herein and are as follows:
"On June 26, 1953, plaintiff contracted with Diamond Building Products Corporation, an Ohio corporation, hereinafter referred to as Diamond, for the production of aluminum napalm bombs under Contract No. DA30-070-CML-414. The contract * * * embraced the provisions of U. S. Standard Form No. 32, found in Title 41 U.S.C.A.Appendix, Sec. 54.21.
"On June 1, 1954, Diamond entered into a contract with defendant for the production of components of such bombs and in which Diamond agreed to furnish the materials used in the manufacturing of `nose caps' and `tail cones' for said bombs.
"The contract between plaintiff and Diamond shall hereinafter be referred to as the prime contract. The contract between Diamond and defendant shall hereinafter be referred to as the subcontract. The prime contract provided for sub-contracts and sub-contracts agreed to be subject to the terms and agreements of the prime contract.
"On or about October 1, 1954, plaintiff and Diamond amended the prime contract by Supplemental Agreement No. 10, referred to as General Provisions 36, which amendment among other things, provided as follows:
`(b) Upon the making of any partial payment under this contract, title to all parts, materials, inventories, work in process and nondurable tools * * * shall forthwith vest in the government; and title to all like property thereafter acquired or produced * * * shall vest in the government forthwith upon said acquisition or production; * * *.\'1
"Diamond placed various orders for aluminum circles with Kaiser Aluminum Company and directed shipment thereof to defendant as per Diamond's agreement with defendant. Defendant contracted with Banks for warehouse facilities for the storage of the aluminum circles in question and Banks issued its warehouse receipts and received and stored the shipments in field warehouses upon the premises of defendant after October 6, 1954.
"At a pre-trial conference on October 16, 1959, sic, it was agreed between the parties that plaintiff made its first partial payment to Diamond on October 6, 1954.
"The partial or total amounts plaintiff paid Diamond, or the amount that Diamond may owe defendant, are not material to the issues of this cause. For, it is sufficient to constitute consideration, when plaintiff made any partial payment under the terms and conditions of the amendment to the prime contract and prior to Diamond's receipt of possession of the aluminum circles, and such, this record discloses, were the facts.
"On October 20, 1955, Diamond was adjudicated a bankrupt by the United States District Court for the Northern District, Eastern Division, of Ohio, and its business was discontinued. A trustee was appointed who took charge of the assets of Diamond and plaintiff filed a reclamation petition. The trustee's petition to sell the aluminum circles in question was dismissed by the Court and subsequent to that this suit was instituted by plaintiff.
"The findings have heretofore disclosed the replevin of certain of the aluminum circles, which were sold by agreement and the proceeds deposited in the Registry of the Court; this pertains to Count 1 of plaintiff's Complaint. The remainder of the aluminum circles, the subject matter of Count 2 of plaintiff's Complaint, had been sold and the proceeds converted by defendant.
"Conclusion.
"It is this Court's conclusion that with the Motion and supporting evidence before it, the issues as to title of the aluminum circles in question can be determined and that the amount due upon Count 2 of the Complaint can be left to subsequent stipulation or determination.
"It is this Court's further conclusion that plaintiff, by its partial payments, had title to the aluminum circles directed by Diamond to be shipped to defendant, which aluminum circles came into possession of defendant under the terms of its sub-contract with Diamond.
"It is this Court's further conclusion that defendant had no rights herein paramount to those rights had by Diamond under the terms of the prime contract; and that the amendment of the contract between Diamond and plaintiff determined the fixing of title to the aluminum circles in question, irregardless of and paramount to any sub-contract agreement between Diamond and defendant.
"It is further the conclusion of this Court that plaintiff's title vested as of the time of its partial payment and continued thereafter throughout all time involved in this litigation; that defendant's possession of the aluminum circles in question was possession only and cannot defeat plaintiff's title; that defendant's sale and conversion of the proceeds of some of the aluminum circles in question entitles plaintiff to an accounting and adjudication of the fair market value thereof.
"A judgment shall be entered sustaining plaintiff's Motion for Summary Judgment finding that plaintiff is entitled to the aluminum circles in question and entering judgment upon Count 1 in the amount of $1,737.12, now in the Registry of this Court. The judgment shall further find the issues for plaintiff upon Count 2 finding that plaintiff is entitled to the aluminum...
