Reporter's Statement of the Case 2. On September 21, 1917, A. C. Downey, Captain, Signal Corps, United States Reserves, by direction of the Chief Signal Officer of the Army, gave plaintiff an order in writing, no. 20005, for "1,000 propellers, for Curtiss OX-5, engines, oak (to be tipped with copper and including box) as per specifications" (enumerating their serial numbers), at $87.65 each, total $87,650, deliveries to be 20 per day commencing September 10, 1917, contract no. 1750 to follow. This order was followed by a formal contract, by and between plaintiff and the said Downey, for and in behalf of the United States, September 25, 1917, numbered 1750, for the material described in order no. 20005 and at the price named therein. Copies of the contract and order are attached to the petition as exhibit no. 1 thereto, and made part of this finding by reference. The propellers required by this order and contract were of the "training" type. Plaintiff delivered directly to the Government upon its direction 900 of these propellers, the last shipment on March 20, 1918, and the nine hundred have been paid for. The balance of 100 were made and shipped at the appropriate stage of completion to the Copper Products Company, Boston, Massachusetts, for copper tipping by the process of electrolysis, plaintiff having been directed to do so by defendant's officers for the purpose of testing the process in use at the Copper Products Company's plant, which they thought might be an improvement over plaintiff's method of copper tipping. The propellers so shipped to the Copper Products Company were held by that company some months, until 99 were returned to the plaintiff, and rejected by the Government inspector solely on the ground that the work done by the Copper Products Company was unsatisfactory. These 99 propellers are still in the hands of plaintiff and have not been paid for. The remaining propeller was, by direction of defendant's officers, shipped by the Copper Products Company to the Curtiss Aeroplane Company for experimental purposes and plaintiff has not been paid therefor. 3. On October 4, 1917, Captain Downey, by direction of the Chief Signal Officer of the Army, again delivered to Reporter's Statement of the Case plaintiff an order in writing, no. 20054 for "1,000 propellers, oak, to be tipped with copper, including box, for Curtiss OX-5 engine", and "1,000 propellers, oak, to be tipped with copper, including box, for Hall-Scott, A-7-A engine", all 2,000 propellers at $87.65 each, total $175,300, to be in accordance with enumerated specification numbers, delivery to be at the rate of 125 per month beginning November 1, 1917, on each set, 250 per month on all. This order was followed by a formal contract October 6, 1917, no. 1846, covering the terms of the order, by and between plaintiff and Captain Downey for and in behalf of the United States. Copies of the order and contract are attached to the petition as exhibit no. 2, and made part hereof by reference. The propellers required by this order and contract were of the "training" type. In the fulfillment of this order and contract plaintiff began using, with the approval of the War Department, preexisting designs, nos. 130 and 151, the design of the propeller being determined by the type of engine used. On February 8, 1918, plaintiff was instructed by the Department to substitute design no. 8-25, which was a Government design, on the propellers for the Hall-Scott A-7-A engine. February 12, 1918, this order was countermanded. On March 28, 1918, by wire, confirmed the following day by letter, the Department ordered the use of design 13706 on Hall-Scott A-7-A engines, and asked for the number of propellers that plaintiff would have to complete under the old design. The propellers in process under the old design could not in practice be altered to conform to the new design. May 9, 1918, plaintiff was by telegram instructed by the Signal Office, War Department, to "cancel all incomplete shipping instructions on order twenty thousand fifty-four except instructions seventh covering twelve OX fives Langley." May 13, 1918, E. T. Farley, 1st lieutenant, A. S., Sig. R. C., by direction of the Chief Signal Officer of the Army, wrote to plaintiff as follows: 1. With reference to Signal Corps Order No. 20054, you are advised that all uncompleted shipping instructions are hereby cancelled, with the following excep Reporter's Statement of the Case tion: Instructions issued under date of May 7, 1918, covering twelve propellers of the OX-5 type to Langley Field, Hampton, Va. 2. It is requested that you immediately furnish this office with a list showing all propellers shipped, giving consignees, dates of shipments, and quantities shipped, together with the unshipped balances. At or about this time defendant's officers instructed plaintiff to suspend operations on all training propellers for four months as the output was exceeding their requirements. On Order No. 20054, Contract No. 1846, plaintiff delivered to defendant 906 propellers. Of the 906 propellers delivered 820 were accepted and paid for by the defendant. Plaintiff endeavored to obtain shipping instructions for the balance of 1,094 propellers under this contract, and shipping instructions were refused by the defendant's officers. The balance of 1,094 have not been paid for. Shipping instructions were refused because airplanes for training purposes were not being manufactured rapidly enough to absorb the output of training propellers and training propellers were being accumulated faster than they could be used. The balance of 1,094 propellers are now on hand at plaintiff's plant. 4. In the fall of the year 1917, plaintiff's plant was located in Baltimore, Maryland, and was entirely in leased buildings. In or about September 1917, plaintiff began the erection of a plant in Baltimore on the Key Highway. This plant will hereinafter be termed the Key Highway Plant. In December 1917 the Key Highway Plant was nearing completion. It consisted of one story with basement onequarter of the area thereunder, the main floor area being 30,000 square feet. It was built of concrete with walls principally of glass, concrete pilasters being in between the sash, and the roof was provided with numerous openings for sky light. Its structure was such that it would support another story. Building a one-story factory building sufficiently strong to support additional stories was sound practice and not unusual. 5. Toward the last of December 1917, and when the Key Highway Plant was structurally about completed, Edward L. Ryerson, Jr., lieutenant, Signal Corps, head of the Propeller Section, Equipment Division, Office of the Chief Sig Reporter's Statement of the Case nal Officer, War Department, and charged with arrangements for the production and procurement of propellers for the Air Service, including negotiations for the procurement of lumber used in connection with the manufacture thereof, visited the Key Highway Plant for the purpose of informing himself as to plaintiff's facilities for the manufacture of propellers. At Lt. Ryerson's request plaintiff's president, Spencer Heath, conducted him over the plant. Lt. Ryerson expressed himself as pleased with the general appearance of the place, but said that it was not of sufficient capacity to manufacture the number of propellers the War Department would order from the company, and inquired if another story could be added. Upon being told that it could and that the skylight openings could be closed up, making a satisfactory floor out of the roof, Lt. Ryerson urged Heath to make the addition, to devote the entire floor space of the two stories to operations and provide the necessary office space separately therefrom. After some argument, Heath, insisting that the company would have to be given sufficient Government business to justify the additional space, and Lt. Ryerson, insisting that such business would be forthcoming, promised Lt. Ryerson to make the addition and immediately arranged with the contractor who had already erected the basement and first floor to add another story, necessary elevators, and extra office space. Plaintiff completed the erection of the Key Highway Plant, including the addition, in the summer of 1918, and moved into it about August 1, 1918. While the additional construction was going on and until the work was well in progress Lt. Ryerson kept in frequent personal contact with Heath asking to be informed as to the state of the work. 6. The Key Highway Plant, as thus enlarged, required machinery and equipment in excess of that appropriate to the building as first constructed. This included elevators, a battery of upright boilers, additional kilns for the drying of lumber, and machinery in about twice the amount needed for a one-story building. 78975-37-cc-vol. 83 Reporter's Statement of the Case The original plant was equipped with eight masonry kilns of the box type, and when the floor space was doubled plaintiff installed eight additional kilns of curtain type on top of the other kilns. In order to dry the lumber furnished by the Government, as hereinafter related, Lt. Ryerson, upon plaintiff's representation that it was necessary to make provision to dry the lumber then being shipped to it by the Government, endeavored to procure additional kiln facilities outside plaintiff's premises. He was unable to do so and insisted upon plaintiff's adding to its facilities sufficient kilns to take care of the lumber that was then being delivered, or would be delivered, to plaintiff by the Government for the manufacture of airplane propellers. Heath objected that his outlay was already considerable and that there was a limit beyond which he could not be expected to go. Lt. Ryerson continued to urge upon Heath the necessity of additional kiln facilities and told him that it would be necessary to provide adequate dry kiln capacity in order to dry kiln the lumber, that Cutler curtain kilns had been approved by the inspection department, and that he had better go ahead and provide them. Plaintiff thereupon erected 12 Cutler curtain kilns adjacent to the other 16 kilns at the Key Highway Plant, under the direction of a kiln expert attached to the War Department, and they were operated at all times under this expert's control and direction. 7. February 8, 1918, Lt. Ryerson, by direction of the Chief Signal Officer, advised plaintiff by letter as follows: Subject: Mahogany. 1. In connection with the supply of mahogany lumber we have arranged for the purchase of 152,000 feet of Central American mahogany from the Otis Manufacturing Company of New Orleans, material to be propeller stock 8" and up in width, not over 5% to be under 9" and 8′ and up in length firsts, seconds, and selects, not more than 25% selects. This material is being bought by the Signal Corps at $270.00 per thousand, f. o. b. New Orleans, for material 8" to 17" in width and $300.00 per thousand, f. o. b. New Orleans, for material 17'' in width and over. |