Opinion of the Court

within such a short length of time that it was hardly to be assumed that coal would have already been delivered upon the order, he wrote the Secretary of the Navy indicating the desire of the company to comply with the order of the Secretary, but specifically reserving the question of price to be paid. The first delivery had been made on the 16th of June, the day after the receipt of the order, and four days before the writing of the letter by the president, but this was a quite unusual occurrence, being the result of a hurried call from the navy yard at Norfolk which the plaintiff was able to comply with because it happened to have coal on the cars at that point which had been received for application on other orders, but which it was willing to divert in order to supply the apparently urgent needs of the Navy, and it would, it seems to us, be an entirely too narrow construction to hold that this delivery antedating the president's letter foreclosed the transaction on the basis of the Secretary's order and the letter of the sales manager. If such were to be the construction, that condition at least would be applicable only to this first delivery, for the president's letter indicating that he as the representative of the company and its stockholders was imposing the conditions indicated in his letter "before the matter goes further." But upon the whole transaction we are of the opinion that the parties are to be deemed to have entered into a contract for the furnishing of this coal with the price in abeyance under such circumstances as entitled the plaintiff to be paid the fair market value therefor.

In the consideration of this matter the parties seem to have eliminated from their calculations the freights which the plaintiff paid for the transportation of the coal from the mines to the place of delivery, and which were repaid to the plaintiff, and to have considered the case purely from the standpoint of the value of the coal, exclusive of freight, which results in a f. o. b. mines price. Of course, the value of the coal at the place of delivery necessarily included the transportation expenses in getting it there; but to harmonize ourselves with the theory of the record we have found the value of the coal upon the basis stated, therefore offsetting as against that value the amount which the Gov

Reporter's Statement of the Case

ernment paid the plaintiff for the coal at $2.24 per gross ton, eliminating also from that side of the account the freights paid. This under the findings entitles the plaintiff to a judgment for $164,589.95, and we have so ordered.

GRAHAM, Judge; HAY, Judge; BOOTH, Judge; and CAMPBELL, Chief Justice, concur.

LOUISVILLE & NASHVILLE R. R. CO. AND ATLANTIC COAST LINE R. R. CO., LESSEES OF THE GEORGIA R. R. & BANKING CO., DOING BUSINESS AS THE GEORGIA RAILROAD, v. THE UNITED STATES

[No. A-7. Decided December 7, 1925.]

On Plaintiffs' Motion for New Trial

Railroad rates; protest; estoppel.-Where carrier presents its bill to the Government in the amount correctly due, the mere receipt by the carrier therefrom of a lesser amount, in the absence of facts indicative of acquiescence, will not defeat its right to recover the difference, whether the amount so paid was received under protest or not. See 60 C. Cls. 636.

The Reporter's statement of the case:

Mr. F. Carter Pope for the plaintiffs.

Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. Perry W. Howard was on the brief.

This case was retried on plaintiff's motion, the original decision being rendered May 4, 1925, 60 C. Cls. 636. Upon the second trial the facts were found as formerly except as to Finding XI, which was amended to read as follows:

XI. From plaintiff's bills No. 50011 and 50011-A deductions were made by the disbursing officers to adjust them to the comptroller's ruling of June 12, 1916, that in troop movements the Government was entitled to transportation of 150 pounds per man for baggage, whether it was for individual or general use. These deductions amounted to $1,162.34, and of this sum $981.53 was for the transportation of Gov

Opinion of the Court

ernment property not used by enlisted men individually. The balance of said sum, $180.81, is stated in the said stipulation of counsel to be "withdrawn from the case without prejudice."

Bill 48584-A was restated by plaintiffs under protest at the request of the disbursing officer in the sum of $357.30, which was paid by the disbursing officer. The restated bill omitted freight charges on a number of articles designated in the Government bill of lading as public property, amounting in accordance with the tariff to $42.56. The evidence does not show that such property was used by individual enlisted men. The restated bill also omitted charges of $138.03 for transportation of certain other articles described in the bill of lading as "checkable baggage." No claim was made for either amount to the accounting officers.

Bill 46429 was presented to the disbursing officer for $1,006.70 for the transportation of military impedimenta, including livestock, at proper tariff rates, to which feeding charges of $10 were later added. The disbursing officer restated this bill in the sum of $10. The sum of $1,006.70 was omitted by him on the ground that the Government was entitled to free transportation of the property in that amount at the rate of one baggage car for every 25 mer in the troop movement. The restated bill was mailed to plaintiffs, signed by them, and returned with the statement that we will accept settlement on this basis under protest, pending definite advice from the Railroad Administration regarding checkable baggage." The restated bill was presented in the sum of $10 to the disbursing officer and paid in that amount. The balance of the bill, $1,006.70, has not been paid. No adjustment of this bill was made by the accounting officers.

66

The court decided that plaintiffs were entitled to recover, in part.

CAMPBELL, Chief Justice, delivered the opinion of the

court:

The petition as amended and the supplemental petitions seek to recover on account of certain deductions made fron

Opinion of the Court

plaintiffs' bills for transportation services by either disbursing officers or accounting officers of the Government in settlement of these bills. The basis of the claim is stated in the pleadings to be that the deductions were made "on the ground that the Government was entitled to the free transportation of 150 pounds of freight per man and to the free use of baggage cars in the proportion of one car to every 25 men" in the movement of troops and military impedimenta. It has been decided by this court that the Government is not entitled to the free use of a baggage car for each 25 men in the troop movement. See Missouri Pacific Railroad Co. case, 56 C. Cls. 341. The findings of fact set forth an agreement, called "Interterritorial military arrangement," between the Government and certain transportation companies which was in effect when the services in question were performed and this arrangement regulates the rights of the parties upon the other phase of the claims made in the petition.

The case comes before the court again upon plaintiffs' motion for a new trial or to amend the findings, which latter is, under the rules, the equivalent of a motion for a new trial. When originally decided there had been decided two cases involving deductions; one of them was for deductions made by an auditor in what is termed "direct settlement." See St. Louis, Brownsville & Mexico R. R. Co. case, 59 C. Cls. 82, and the other involved deductions by disbursing officers where protests were stamped on the bills. See Southern Pacific Co. case, 59 C. Cls. 36. See also Western Pacific Co. case, 59 C. Cls. 67. Both kinds of settlements appear in the instant case, and in the judgment rendered on May 4, 1925, the rule announced by the Supreme Court in St. Louis, Brownsville & Mexico Ry. Co., decided April 27, 1925 (268 U. S. 169), was applied to the claims which had been reduced by the auditor. As to the deductions made by disbursing officers the court followed its own ruling in the other two cases just mentioned, which were upon appeal to, but undecided by, the Supreme Court. Since that judgment was rendered, however, the Supreme Court has reversed the judgments in these cases also. See Southern Pacific Co. case, 268 U. S. 263; Western Pacific Co. case, 268

Opinion of the Court

U. S. 271. It must therefore be accepted as settled that where a transportation company's bill for services performed is presented in the amount correctly due and deductions are made from it by either the accounting officers on direct settlement or by a disbursing officer, the mere receipt by the carrier of the lesser amount, in the absence of facts indicative of acquiescence, will not defeat its right to recover the amount properly due, whether the amount paid by the one or the other of the officials was received under protest or not. This requires the allowance of some items disallowed in the former hearing.

One item insisted upon by the plaintiffs is that deductions to the amount of $1,402.40 were made from its bill No. 50011, the court's finding being that the deductions were $1,162.34. It appears that there is a stipulation to the effect that this item claimed in the petition should be $1,236.59, it also being said that the stipulation is based upon the reports of the Treasury Department and the accounting office. It is needless to repeat what has so often been said that the court does not hesitate to look into the evidence in the case, even though a stipulation be filed. The suggestion in the stipulation that the figures were based upon the reports not only authorized an axamination of the record, if such authorization was necessary, but it invited the same. The conclusion reached was that the proper amount was $1,162.34 and not $1,236.59. The court's finding is confirmed by a report made by the Comptroller General's office in answer to the court's request for the correct figures. One small item stated as a deduction of $99.21, involving a shipment from Sunbury, it is properly stipulated by plaintiffs, should be $94.96, making a difference of $4.25. This small amount is referable to an erroneous rate charge, and deducting it from the amount shown by the Comptroller General's report and from the evidence in the record as the court construed it, the court's conclusion is found to be correct. This sum of $1,162.34 includes an item of $180.81, which in the stipulation is" withdrawn from the case without prejudice." Deducting this item leaves $981.53 as the recoverable amount.