Vogelstein Co v. United States

• Decision Date: 21 May 1923
• Docket Number: No. 269,269
• Citation: 262 U.S. 337,67 L.Ed. 1012,43 S.Ct. 564
• Parties: L. VOGELSTEIN & CO. Inc., v. UNITED STATES
• Court: U.S. Supreme Court

262 U.S. 337

43 S.Ct. 564

67 L.Ed. 1012

L. VOGELSTEIN & CO. Inc.,

v UNITED STATES.

No. 269.

Argued March 5, 6, 1923.

Decided May 21, 1923.

Messrs. A. G. Reeves, of New York City, F. D. M. McKenney, of Washington, D. C., and Russell H. Robbins, of New York City, for appellant.

Mr. Alfred A. Wheat, of New York City, for the United States.

Mr. Justice BUTLER delivered the opinion of the Court.

Between September 28, 1917, and February 1, 1918, the United States obtained from appellant 12,542,857 pounds of copper and paid 23 1/2 cents per pound therefor. By its petition, appellant asks judgment for $424,196.54, being 3.381977 cents per pound, in addition to the price paid. The Court of Claims made findings of fact, and as a conclusion of law held that appellant was not entitled to recover, and dismissed the petition. From that judgment this appeal is taken.

The Court of Claims found that the market price of copper was 23 1/2 cents per pound. The United States insists that payment of the market price was just compensation. The appellant claims that there was no express contract of sale, that the copper was taken pursuant to mandatory orders, and that it did not waive its right to just compensation. It submits that the finding of the Court of Claims that after September 20, 1917, the market price of copper was 23 1/2 cents per pound, must be read as referring to a mere fiat price fixed by the United States, and that it does not mean the market price as fixed by supply and demand and other elements in normal trading in copper. It asserts that the necessary costs of the copper to it was 26.881977 cents per pound, and demands that price.

It appears from the findings that appellant purchased ores, minerals, and metals, had them smelted and refined, and sold the refined products. It was not a mine owner, operator, producer, or refiner. On September 20, 1917, at close of business, it had on hand 43,851,042 pounds of copper. It had purchased 34,687,579 pounds as unrefined copper under long-term contracts, and 9,163,463 pounds as refined copper in the open market. The average cost to appellant was 26.881977 cents per pound. Out of the stock then on hand, it had sold 31,308,183 pounds at 26.34389 cents per pound. There remained 12,542,857 pounds.

It further appears that, some time before September 21, 1917, an agreement was made by the War Industries Board with copper producers, fixing a price of 23 1/2 cents per pound for copper, and this agreement was approved by the President on that date. September 28, 1917, Vogelstein, who controlled appellant, attended a meeting of copp r producers and government representatives, and placed in nomination the persons who were chosen at that meeting as members of a committee to act for the copper producers in carrying out the agreement of September 21st, and to co-operate with government representatives in securing performance of the agreement and to take the necessary measures to that end. The United Metals Selling Company was the sales agent for copper producers, and the plan adopted for obtaining the copper for the United States was for the War and Navy Departments to send orders and shipping directions to the Selling Company. The orders were sent to the producers' committee, which returned them to the Selling Company with the name of the producer or dealer on whom the orders should be made. Thereupon the Selling Company placed its own order with the producer or dealer named, requesting the shipment to be...