Wabash Railroad v. United States

Jones, Chief Judge, delivered the opinion of the court: The sole issue in this case is whether certain shipments of material over the plaintiff’s line of railway and connecting lines should be paid for at regular commercial rates rather than on the basis of land-grant freight rates. At issue are 1,839 carload shipments. The major portion of these shipments was from various points in the United States to be delivered to Oak Ordnance Plant, Uliopolis, Illinois. Thirty-two carloads were shipped to the Sangamon Ordnance Plant, Uliopolis, Illinois. — 647 — Fifteen, carloads were delivered to C. H. Atkinson Paving Company, Chillicothe, Missouri. There were some additional shipments, but they are not involved here. All the shipments were delivered by plaintiff at destination. On some of the shipments plaintiff was paid by defendant at land-grant rates. As to others payment by defendant was originally made to plaintiff on the basis of the full commercial rate but upon subsequent audit by the General Accounting Office pursuant to section 322 of the Transportation Act of 1940, 54 Stat. 955, alleged overpay-ments were determined and plaintiff was notified that land-grant rates applied to each shipment. The difference between the land-grant and commercial rates was recouped partly by a refund by plaintiff under protest, and partly by deductions on bills subsequently presented by plaintiff for payment of charges on other shipments not here involved. It is conceded that the shipments were for military use. Section 321 (a) of the Transportation Act, supra, provides for the applicable commercial rates except that such rates should not apply to the transportation of military or naval property of the United States moving for military or naval use. The parties have stipulated that the issue to be finally determined is whether these carload shipments were property of the United States within the meaning of section 321 (a) of the Transportation Act of 1940 at the time such shipments moved over the line of plaintiff’s railroad and the connecting railways. They further stipulated that if the shipments were property of the United States then plaintiff has been lawfully paid on the basis of land-grant freight rates; otherwise, the commercial rates apply. The issue thus turns upon whether these various carload shipments were the property of the United States at the time of the shipment, within the meaning of the Transportation Act. With respect to the shipments made to Oak Ordnance Plant and Sangamon Ordnance Plant, the cost-plus-fixed-fee contracts for the construction thereof each permitted title to the materials purchased thereunder to vest in the United States when acceptance of title was authorized or — 648 — approved by the officer in charge. This right was set out in Article VIII of the contract for Oak Ordnance Plant and in a substantially identical provision of the contract for Sangamon Ordnance Plant. That article read as follows: ARTICLE VIH — TITLE TO WORK 1. Title to all materials, tools, machinery, equipment and supplies for which the A-E-M shall be entitled to reimbursement under Article XI shall vest in the Government at such point or points as the Contracting Officer may designate in writing, provided that the right of final inspection and acceptance or rejection of such materials, tools, machinery, equipment and supplies at such place or places as he may designate in writing is reserved to the Contracting Officer; provided further that, upon such final inspection, the A-E-M shall be given written notice of acceptance or rejection as the case may be. In the event of rejection, the A-E-M shall be responsible for the removal of the rejected property within a reasonable time. In executing this power to designate the point of transfer of title, the contracting officer in charge caused the contractor to insert a clause in its purchase orders to its suppliers to the effect that title should pass to the purchaser at the point of origin. Plaintiff contends that by “purchaser” was meant the cost-plus-fixed-fee contractor. Defendant urges that “purchaser” was intended to mean the United States. The contracts for the supplying of materials to be used in the construction of the Oak Ordnance Plant were awarded to the vendors submitting the lowest bids. Under instructions of the contracting officer, Maj. Glenn E. Hof to, Area Engineer, the Architect-Engineer-Management (A. E. M.) contractors solicited bids on both an f. o. b. shipping point and f. o. b. destination price basis. Major Hofto secured information with respect to applicable land-grant rates and land-grant routings, and, in execution of his power to designate the point of transfer of title, by written instructions in the form of a memorandum or letter, directed the A. E. M. to have the following statement or statements of similar import inserted in and made a part of the purchase orders which are involved in this action: — 649 — Title to materials and supplies purchased hereunder shall pass to the purchaser at [the point of origin,] provided that all materials and supplies purchased are subject to inspection at Illiopolis, Illinois by the Contracting Officer who executed and is defined in the Contract No. W1103-eng-3600, within a reasonable time, and the purchaser reserves the right to reject any materials or supplies which do not pass such inspection. _ In the event of rejection [the vendor] shall be responsible for the removal of rejected property within a reasonable time. On shipments made before receipt of routing instructions from the Area Engineer, _ ship on commercial ladings inserting thereon notation “To be exchanged for Government Bills of Lading at destination.” Meantime, route via Illinois Central care Illinois Terminal to Illiopolis. All the shipments to the Oak Ordnance Plant consisted of materials which were purchased on an f. o. b. shipping point basis. On the reverse side of the purchase orders which were prepared by the employees of the cost-plus-fixed-fee contractors and approved by Major Hofto, was a printed statement that the order was placed for the benefit of and was assignable to the United States Government. It was further stated that if and when such assignment was made to and accepted by the United States Government, the seller agreed that as a part of the consideration of the order it would and thereby did release the buyer from all liability incurred by buyer for goods delivered and work done prior to such assignment, as well as subsequent thereto. It was further stated that the seller’s sole right to payment in accordance with the order after date of any such assignment, would be against the United States Government. Whether plaintiff can recover in this action is dependent upon the interpretation that is to be given to the word “purchaser” as used in the provisions regarding the purchase of the property. When the invitation to bid, the orders themselves, and the various documents set out in findings 13, 14 and 15 are construed as a whole, we have no doubt that the Government is entitled to the land-grant rates. The purpose of Major Hofto in issuing the written memorandum set out in finding — 650 — 15 was to effect the saving which would result to the Government by the transportation of the materials at land-grant rates. When it appeared that a saving could be achieved by ordering the materials f. o. b. shipping point and having them shipped by rail at land-grant rates the lowest bidder was ascertained by adding the purchase price at vendor’s plant to the transportation charges at land-grant rates. The contractor in purchasing the materials acted largely for the Government. It was a cost-plus-fixed-fee contract and the materials were purchased on behalf of the Government. The contracting officer ascertained both the land-grant and commercial rates, and also looked up the routing to find the lines of shipment which would be subject to land-grant rates. He did this for the purpose of effecting the savings which would result to the Government by the transportation of the materials at land-grant rates. When all the circumstances and the steps that were taken are considered together, it is manifest that for the purposes of the rates it was intended that the shipments should be made as Government property. Atlantic Coast Line Ry. Co. v. United States, 127 C. Cls. 724, 119 F. Supp. 171. To implement this intention the contracting officer had first to make sure that title would pass from the sellers. Thereupon he could exercise his right to assert title in the Government. The purchase orders were directed to the sellers and, by inserting the language quoted, the contracting officer sought primarily to achieve a legal effect upon the sellers, that is, to divest them of their titles. The use of the word “purchaser” was perfectly adequate for this purpose. In these circumstances we think the land-grant rates were properly applied. What we have said applies to shipments to the Sangamon Ordnance Plant which was subject to substantially the same requirements and conditions. There is more difficulty in reference to the shipments of machinery. Fifteen carloads of rented machinery and equipment were transported from the subcontractor’s place at Chillicothe, Missouri, to White Horse, Yukon Territory, — 651 — Canada, and upon completion of the project back to Chilli-cothe by way of Seattle, Washington. The War Department paid the subcontractor the rental rate prescribed for the period during which the rental equipment was transported over the lines of the railway and its connecting carriers from Seattle, Washington, to Chillicothe, Missouri. Thus rent was paid on the equipment during the period of transportation. The question is whether for the purposes of section 321 (a) of the Transportation Act of 1940 this material was the property of the United States and therefore entitled to land-grant rates. There is no doubt that the title to the property did not pass to the United States. It remained at all times in the C. H. Atkinson Company but during the entire period covered by both the transportation and use it was under lease to the United States Government and the Government had complete control of it. We believe that the term “property of the United States” is broad and comprehensive enough to include any and all types of property rights. The machinery was to be used exclusively for the United States and was under the complete control of the United States Government during the entire period of transportation and use. The Government was responsible for any damage that might have occurred during the entire period. Fidelity and Deposit Co. v. Arenz, 290 U. S. 66, 68; Northern Pacific Ry. Co. v. United States, 330 U. S. 248, 257. From the opinion in the latter case we quote the following: * * * But it is a familiar rule that where there is any doubt as to the meaning of a statute which “operates as a grant of public property to an individual, or the relinquishment of a public interest,” the doubt should be resolved in favor of the Government and against the private claimant. Slidell v. Grandjean, 111 U. S. 412, 437. See Southern Ry. Co. v. United States, 322 U. S. 72, 76. That rule has been applied in construing the reduced rate conditions of the land-grant legislation. Southern Pacific Co. v. United States, 307 U. S. 393, 401; Southern Ry. Co. v. United States, supra. That principle is applicable here where the Congress, by writing into § 321 (a) an exception, retained for the United States an economic privilege of great value. — 652 — We hold that the United States Government had a property right in the machinery and equipment within the meaning of section 321 (a) of the Transportation Act of 1940. We conclude, therefore, that in each case here in question the property shipped was military or naval property of the United States moving for military or naval use within the meaning of section 321 (a) of the Transportation Act of 1940. Hence the carrier was entitled to be paid only the land-grant rate on these shipments. The petition is dismissed. Laramore, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Commissioner Wilson Cowen, and the briefs and argument of counsel, makes findings of fact as follows: 1. The plaintiff and its connecting carriers are all common carriers by rail for hire. 2. The only issue in this case is whether or not certain carload shipments described in the petition were property of the United States within the meaning of Section 321 (a) of the Transportation Act of 1940 at the time such shipments moved over the lines of plaintiff railroad and the connecting rail carriers. Each of the shipments in issue moved for a military or naval and not for a civil use. If the shipments were property of the United States, then plaintiff has been lawfully paid on the basis of land-grant freight rates; otherwise, the commercial freight rates apply. 3. Pursuant to Eule 38 (c), the trial of this case was limited to the question of liability of the United States to pay the commercial freight rates. 4. By agreement of the parties, certain of the shipments initially included in plaintiff’s petition have been eliminated from this case. There are 1,839 carload shipments at issue, of which the following shipments were delivered to Oak Ordnance Plant, Illiopolis, Illinois: A. 1652 cars of crushed stone from Lehigh Stone Company, Lehigh, Illinois; — 653 — B. 69 cars of crushed stone from Material Service Corporation, Thornton, Illinois, or Landers, Illinois; C. 4 cars of asbestos wall board from Keasbey-Matti-son Company, Ambler, Pennsylvania; D. 11 cars of cement from Universal Atlas Cement Company, Buffington, Indiana; E. 60 cars of cement from Alpha Portland Cement Company, Marquette Cement Manufacturing Company, and Lehigh Portland Cement Company, LaSalle, Illinois, or Oglesby, Illinois. F. 10 cars of cement from Medusa Portland Cement Company, Dixon, Illinois. The following shipments were delivered at Sangamon Ordnance Plant, Illiopolis, Illinois. A. 23 shipments of cast iron pipe from United States Pipe & Foundry Company, North Birmingham, Alabama, or Bessemer, Alabama; B. 9 shipments of cast iron pipe from American Cast Iron Pipe Company, North Birmingham, Alabama. Fifteen shipments were delivered tó C. H. Atkinson Paving Company, Chillicothe, Missouri. 5. All of the shipments at issue were delivered by plaintiff at destination. Plaintiff and its connecting carriers transported the shipments in accordance with the bills of lading tendered to them. 6. Subsequent to delivery by plaintiff of the shipments in issue, plaintiff presented the Government bills of lading covering these shipments to the Finance Officer, United States Army Transportation Branch, Washington, D. C., for payment. Plaintiff was paid by defendant on some of these bills at land-grant rates. With respect to other bills, payment by defendant was originally made to plaintiff on the basis of the full commercial rates, but upon subsequent audit of these bills by the General Accounting Office pursuant to Section 322 of the Transportation Act of 1940, alleged overpayments were determined and plaintiff was notified that land-grant rates applied on each shipment. Recovery of these alleged overpayments was made by making demand upon plaintiff for refund in the amount of such alleged overpayments, plaintiff making such refunds under protest, or by deducting amounts from bills subsequently presented by plaintiff for — 654 — payment of charges on other shipments not involved in this case. 7. All railroads, and their predecessors and successors in interest, participating in the transportation of the shipments involved which received grants of land from the United States in aid of construction or which operated lines of railroad constructed with the aid of grants of land by the United States, and all carriers, and their predecessors and successors in interest, receiving land grants with which the route or routes of movement of the shipments in issue were equalized by agreements with the United States, had prior to the time that the shipments at issue were made, filed with the Secretary of Interior of the United States releases of their claims in compliance with Section 321(b) of Part II, Title III of the Transportation Act of 1940, and such releases were approved by the Secretary of Interior prior to the movement of the shipments in question. 8. Each of the carriers participating in the transportation of the shipments in issue was a party to and participated in tariffs duly filed specifying the applicable commercial rates for transportation of said shipments. 9. The majority of the shipments in issue consisted of materials used in the construction of the Oak Ordnance Plant, Uliopolis, Illinois, during the years 1942 and 1943. These materials were acquired, handled, shipped, and paid for in accordance with the procedure set forth in paragraphs 5 through 11 of Cost-Plus-Fixed-Fee Contract No. W-1103eng-3600, dated February 26,1942, between the War Department, Corps of Engineers, and Bates and Rogers Construction Corporation and Charles W. Cole and Son, architect-engineer-management contractors, pursuant to which the aforementioned Oak Ordnance Plant was constructed. 10. Certain salient provisions of the above contract pertaining to the issue of title to materials used in the construction of Oak Ordnance Plant are set forth below: ARTICLE IV — STATEMENT OF CONSTRUCTION SERVICES 1. The A-E-M shall, in the shortest practicable time, furnish the services, labor, materials, tools, machinery, equipment (including installation of equipment not pro — 655 — cured by the Consultant on an installed basis), facilities and supplies not furnished by the Government and do all things necessary for the construction of that portion of the project not performed by the Government or performed under the contracts contemplated by Section 2 of Article II, all in accordance with the approved drawings and specifications. Notwithstanding .any other provision of this contract, except in connection with the installation of equipment, and materials, the A-E-M shall not subcontract any of the construction work covered by this Article unless approved by the Contracting Officer. ARTICLE V—STATEMENT OE MANAGEMENT SERVICES 1. The A-E-M shall furnish management services to .assure the satisfactory completion of the project. Such services shall include, among other functions, the preparation of contract documents, and scheduling such contracts as to units of work, time of completion, and other salient phases so as to assure the orderly prosecution of the work. Such services shall also extend to the scheduling and/or purchasing of items of materials and equipment to avoid any delays in the prosecution of the work hereunder. The A-E-M shall advise and consult with the construction contractors on this project and shall direct and supervise their work, subject to the provisions of Article XVII; and shall, subject to the direction of the Contracting Officer, procure and store materials and equipment for use in connection with the project. * * * * * ARTICLE VIII-TITLE TO WORK 1. Title to all materials, tools, machinery equipment and supplies for which the A-E-M shall be entitled to reimbursement under Article XI shall vest in the Government at such point or points as the Contracting Officer may designate in writing, provided that the right of final inspection and acceptance or rejection of such materials, tools, machinery, equipment and supplies' at such place or places as he may designate in writing is reserved to the Contracting Officer; provided further that, upon such final inspection, the A-E-M shall be given written notice of acceptance or rejection as the case may be. In the event of rejection2 the A-E-M shall be responsible for the removal of the rejected property within a reasonable time. * * * * # — 656 — ARTICLE XI — COST OF THE WORK General * * * * * 3. Reservations by Government * * * b. The Government reserves the right to pay directly to common carriers any or all freight charges on construction plant, materials and supplies. * * * # ARTICLE XV — SPECIAL REQUIREMENTS 1. The A-E-M hereby agrees that he will: ***** o. Reduce to writing, unless this provision is waived in writing by the Contracting Officer, every contract in excess of two thousand dollars ($2000) made by him for the purpose of the work hereunder for services, materials, supplies, machinery, equipment, or for the use thereof; insert therein a provision that such contract is assignable to the Government; make all such contracts in his own name, and not bind nor purport to bind the Government or the Contracting Officer thereunder. No E urdíase in excess of five hundred dollars ($500) shall e made or placed without the prior approval of the Contracting Officer. * * * * * ARTICLE XXXIV — DEFINITIONS $ $ $ ‡ $ 8. For the original signing of this contract, the term “Contracting Officer” as used herein shall be deemed to include the Contracting Officer in the Office of the Chief of Engineers appointed for that purpose by the Chief of Engineers and the Contracting Officer appointed by the Chief of Ordnance. For all other purposes, the term “Contracting Officer” shall mean the District Engineer of the United States Engineer District in which the contract work is being performed, his successor or duly authorized representative; and the Contracting Officer appointed by the Chief of Ordnance, his successor or duly authorized representative. 4. _ The term “Contracting Officer” when used in connection with the approval of performance of construction work of the entire project and in connection with the approval of preparation of detailed plans and working drawings for roads, railroads, sewage systems, water — 657 — systems, electrical generating plants and transmission lines, heating plants, non-manniactnring buildings, such as offices, general warehouses and garages, and such miscellaneous construction as may be requested by the Chief of Ordnance, refers to the District Engineer of the United States Engineer District in which the contract work is being performed, his successor or duly authorized representative; and when used in connection with any other phase of the work to be performed under this contract, the term “Contracting Officer” refers to the Contracting Officer appointed by the Chief of Ordnance, his successor or duly authorized representative. The contract provided that the cost-plus-fixed fee contractors, hereinafter referred to as the A. E. M., were to be paid a fixed fee of $496,800. In addition Article XI of the contract specified that they were to be reimbursed for all their actual expenditures, including all labor, materials, machinery, supplies, and services necessary for either temporary or permanent use for the benefit of the work. 11. The contracting officer for the purpose of taking title to the materials as set forth in Article 8 above was Major Glenn E. Hofto, the Area Engineer. 12. In order to obtain the materials used in the construction of the Oak Ordnance Plant, the A. E. M. solicited bids from prospective vendors, and purchase orders were awarded to the vendors submitting the lowest bids. Pursuant to the instructions of Major Hofto and his authorized representatives, the A. E. M. solicited bids on both an f. o. b. shipping point and an f. o. b. destination price basis. When it appeared that a savings could be achieved by ordering materials f. o. b. shipping point and having the materials shipped by rail at land-grant rates, the lowest bidder was ascertained by adding the price at the vendor’s plant to the transportation charges at land-grant rates. Information with respect to applicable land-grant rates and land-grant routings was obtained by Major Hofto by sending teletype requests to the Quartermaster General Headquarters, Traffic Control Division, Washington, D. C. All information requested was transmitted by teletype replies from the Traffic Control Division. 13. All of the shipments involved in this case which moved to Oak Ordnance Plant consisted of materials which were — 658 — purchased on an f. o. b. shipping point basis. The purchase orders were drafted by employees of the cost-plus-fixed-fee contractors and presented to Major Hof to or his authorized representative for written approval, and amendments to such purchase orders were made subsequently by order of Major Hofto. The purchase orders covering the shipments which are involved in this action are as follows: Purchase Order No. 1202 — Lehigh Stone Company. Purchase Order No. 2490 1 Material Service Corporation. Purchase Order No. 3759 } Purchase Order No. 969 — Keasbey & Mattison Company. Purchase Order No. 242 — Universal Atlas Cement Company. Purchase Order No. 243 — Alpha Portland Cement Company. Purchase Order No. 244 — Lehigh Portland Cement Company. Purchase Order No. 245 — Marquette Cement Manufacturing Company. Purchase Order No. 246 — Medusa Portland Cement Company. 14. A typical form of purchase order which, with minor modifications, was in use during the time material to this action, had the following information printed on the face thereof: Bates & Rogers Construction Corporation and Chas W. Cole & Son OAK ORDNANCE PLANT, ILLIOPOLIS, ILLINOIS To Priority Rating: Address Purchase Order No. This number must appear on all invoices. Date Please enter the following order in accordance with the conditions and terms of your accepted bid and/or contract dated-and in conformity with conditions and instructions on the reverse side hereof. — 659 — On the reverse side of the purchase order were a number of printed instructions including the following: This purchase Order does not bind, nor purport to bind, THE UNITED STATES GOVERNMENT or Government Officers thereunder. This order is placed for the benefit of, and is assignable to the United States Government. If and when such assignment is made to and accepted by the United States Government, Seller agrees that as part of the consideration of this order that it will and hereby does release the Buyer from all liability incurred by Buyer hereunder for goods delivered and work done prior to such assignment as well as subsequent thereto. Seller’s sole right to payment in accordance with this order after date of any such assignment will be against United States Government. TERMS OF PAYMENT as stated on obverse side of this Purchase Order are understood to be effective upon arrival at destination and acceptance of material by properly accredited U. S. Government Officers or representatives having jurisdiction over same, and of properly executed Bills of Lading (or shipping papers) and receipt of certified invoice. ***** The following instructions must be followed EXPLICITLY: ***** 2. IMMEDIATELY upon shipment mail to: Bates & Rogers Construction Corporation and Chas. W. Cole & Son. — 660 — 15. In order to effect the savings which would result to the Government by the transportation of material at land-grant rates, Major Hofto, by written memorandum, directed the A. E. M. to have the following statements, or statements of similar import, typed in and made a part of the purchase orders which are involved in this action. Title to materials and supplies purchased hereinunder shall pass to the purchaser at the point of origin, provided that all materials and supplies purchased are subject to inspection at Illiopolis, Illinois by the Contracting Officer who executed and is defined in Contract No. Wll03-eng-3600, within a reasonable time, and the purchaser reserves the right to reject any materials or supplies which do not pass such inspection. In the event of rejection (the vendor) shall be responsible for the removal of rejected property within a reasonable time. On shipments made Before receipt of routing instructions from the Area Engineer, ship on commercial ladings inserting thereon notation — “To be exchanged for Government Bills of Lading at destination.” Meantime, route via Illinois Central care Illinois Terminal to Illiopolis. In accordance with Major Hofto’s memorandum, the above-quoted statements were included and made a part of the purchase orders. Major Hofto issued the memorandum pursuant to Article VIII of the contract (Finding 10) for the purpose of invoking the provisions of that article. 16. The vendors of the materials purchased were sent routing instructions issued by an authorized representative of Major Hofto. The vast majority of shipments involved in this case moved on Government bills of lading which were issued by Major Hofto and transmitted to the vendors in advance of shipment to the job site. The remainder of the shipments moved initially on commercial bills of lading bearing a notation that they were to be exchanged for Government bills at destination. Government bills of lading executed by Major Hofto were substituted for such commercial bills. 17. Upon arrival at the site of the work, the materials were inspected by representatives of Major Hofto and by employees of the A. E. M. When materials moved by Government bills of lading, or on commercial bills of lading which — 661 — were subsequently exchanged for Government bills of lading, the contracting officer took a receipt for the material, signed by the warehouse superintendent of the A. E. M., and the material was entered on the property records of the contracting. officer. When material was shipped by commercial bills of lading, it was inspected jointly by representatives of the contracting officer and the A. E. M., and the material was thereafter entered on the property records of the A. E. M. The A. E. M. was relieved from responsibility for such material when the Government accepted the work at the completion of the job. 18. Pursuant to instructions contained on the face of the purchase orders, invoices were prepared by the vendors. After the invoices had been checked and approved in writing by Major Hofto, they were paid by the A. E. M. When the paid invoices were returned by the vendors, they were approved by Major Hofto or his authorized representative and transmitted to the Finance Officer, United States Army, who shortly thereafter reimbursed the cost-plus-fixed-fee contractors. This procedure was followed on all material procured for the project regardless of whether it was shipped by Government bill of lading or by commercial bill of lading. 19. The 15 carloads delivered to C. H. Atkinson Paving Company, Chillicothe, Missouri, referred to in Finding 4, moved over the lines of the plaintiff railroad .and its connecting carriers on Government bills of lading issued by the War Department. Freight charges based on land-grant rates were paid to plaintiff directly by the War Department. The shipments consisted of machinery .and equipment furnished and operated by the C. H. Atkinson Paving Company in concrete paving work at Whitehorse, Yukon Territory, under Subcontract No. 58 to Contract No. W-8416eng-52 between the Government and the Metcalfe Construction Company, Hamilton Construction Company, and the Kansas City Bridge Company. After the work of the subcontractor was completed, the machinery and equipment were transported from Seattle to Chillicothe, Missouri. 20. Contract No. W-3416-eng-52 was a cost-plus-fixed-fee contract, entered into on December 8, 1942, for the construction of various buildings and facilities in Yukon, Can — 662 — ada. The prime contractors entered into Subcontract No. 58 with the C. H. Atkinson Paving Company, also referred to as Atkinson Paving and Construction Company, on July 1,1943. Article III of the subcontract declared that it was the intent and purpose of the parties to place the principal contractors in the same position in regard to the subcontract that the Government occupied in the principal contract, and to place the subcontractor in the same position in regard to the subcontract that the principal contractors occupied in the principal contract. The subcontract provided in pertinent part as follows: ARTICLE VI The Subcontractor shall be reimbursed directly by the Government in the same manner in which the Contractor is reimbursed in the principal contract, subject to the same conditions provided in the said principal contract, for such cost of the work designated in Article I hereof, subject to the approval of the Contracting Officer. The Subcontractor shall be paid directly by the Government a fixed fee of Fifty-Five Thousand Six Hundred Twenty Dollars ($55,620), as full compensation for his services including profit and all general overhead expenses, in the same manner in which the payment of the fixed fee to the Contractor is made by the Government as set forth in said principal contract. The equipment shown on Appendix “A” or any other equipment furnished by the Subcontractor will be transported from its present location to the job site and return, at the expense of the Government. $ * $ # $ ARTICLE XIV (a) The title to all work under this subcontract, completed or in the course of manufacture or assembly in the Subcontractor’s plant shall be in the Government. Upon delivery thereof to the Subcontractor at any point within the continental limits of the United States or any place approved by the Contractor, title to all purchased materials, parts, assemblies, subassemblies, tools', machinery, equipment and supplies, for which the Subcontractor shall be entitled to be reimbursed hereunder, shall vest in the Government. — 663 — (b) There shall be included as an allowable item of cost hereunder any amount p.aid by the Subcontractor to settle any claim of the Government for loss or destruction of or damage to property of the Government in the possession or control of the Subcontractor in connection with this subcontract, unless such loss, damage or destruction results from wilful misconduct or failure to exercise good faith on the part of Subcontractor’s corporate officers or other representatives having supervision or direction of the operation of the whole of the Subcontractor’s business or of the whole of any plant operated by the Subcontractor in the performance of this subcontract. * * * * * APPENDIX “a” The above equipment or any other equipment furnished by the Subcontractor is to be furnished and operated without recapture, and the rental to be paid the Subcontractor for equipment subject to O. P. A. Regulations shall be 75 percent of O. P. A. equipment rental rate based on a minimum of two hundred and forty (240) hours per month. As to equipment not subject to O. P. A. Regulations, rentals shall be paid the Subcontractor at such flat monthly rental rates as shall be approved by the Contracting Officer. Rental on all equipment supplied by the Subcontractor shall commence on the date it is loaded on cars and ready for shipment, and shall cease on the date it is returned to the original point of loading, or a lesser distance if such lesser distance is designated by the Subcontractor. The rental rates are to, be determined by the Contracting Officer. Both the valuation and the rental rates are to be computed and included in a supplemental agreement at a later date. The valuations are to be determined by the Subcontractor as soon as possible, subject to the approval of the Contracting Officer. 21. Supplemental Agreement No. 1 to Subcontract No. 58 provided in pertinent part as follows: 1. Attached hereto and made a part of this Agreement is new Appendix “A”, which said Appendix sets forth the valuations of equipment to be furnished by the Subcontractor under the terms of Subcontract No. 58 to Principal Contract No. W-3416-Eng-52; and also sets forth the rental rates therefor as approved by the Contracting Officer. — 664 — 2. The equipment rental list, known as Appendix “A” and attached to Subcontract No. 58, is hereby cancelled and a new Appendix “A” attached hereto, is substituted therefor, and is the correct list of such equipment. 3. The equipment enumerated in Appendix “A” hereto attached, or any other equipment furnished by the Subcontractor, is to be furnished and operated without recapture. 4. Rental on all equipment supplied by the Subcontractor shall commence on the date such equipment is loaded on cars and ready for shipment, and shall ceaseon the date said equipment is returned to the original point of loading, or a lesser distance if such lesser distance is designated by the Subcontractor. 22. Supplemental Agreement 2 of the Subcontract No. 58 provided in paragraph 1 thereof as follows: On all equipment furnished by the Subcontractor under the terms herein, not furnished at a flat monthly rental, the Contractor will pay the Subcontractor on ail such equipment which is in actual use for more than two hundred forty (240) hours during one monthly period, the rental price for each additional hour, or part thereof, at a rental price to be calculated upon the basis of one four hundred eightieth (%soth) of such applicable rate “per month”. 23. The rental rates prescribed in Subcontract No. 58 and supplemental agreements thereunder were paid directly to the subcontractor by the War Department. The rented equipment, described more fully in Appendix A to Subcontractor No. 58 and supplemental agreements thereunder, was transported from the subcontractor’s place of business at Chillicothe, Missouri, to Whitehorse, Yukon, Canada, and, upon completion of the project, back to Chillicothe, Missouri, by way of Seattle, Washington. The War Department paid to the subcontractor the rental rates prescribed in Subcontract No. 58 and supplemental agreements thereunder for the period during which the rental equipment was transported over the lines of plaintiff railroad and its connecting carriers from Seattle, Washington, to Chillicothe, Missouri. 24. On February 27, 1942, the Government entered into Cost-Plus-Fixed-Fee Contract No. W-1103-eng-3605 with the James Stewart Corporation and the partnership of Fugard, Olsen, Urbain & Neiler for the construction of the — 665 — Sangamon Ordnance Plant. Except for minor variations which, are not material to this action, the contract contained the same provisions, including Article VIII, that have been quoted in Finding 10. Under the terms of the contract, the A. E. M. was to be reimbursed for actual expenditures in the performance of the work, including the cost of materials and amounts paid for the transportation of such materials, but the Government reserved the right to pay transportation charges directly to common carriers. 25. The 32 shipments referred to in Finding 4, consisted of materials used by the A. E. M. in the construction of the Sangamon Ordnance Plant. The A. E. M. paid for the material initially and was later reimbursed by the Government. The material moved on Government bills of lading, and the freight charges were paid directly to plaintiff on the basis of land-grant rates. 26. The 32 shipments in issue were made pursuant to two purchase orders issued by the A. E. M. and approved by the contracting officer. Purchase Order No. 1463, which involved 23 shipments, was issued to the United States Pipe and Foundry Co. and provided for the payment of the purchase price f. o. b. point of origin. Purchase Order No. 1463 contained the following provision: Title to the materials and supplies purchased hereunder shall pass to the purchaser at Bessemer or Birmingham, Alabama, provided that all materials and supplies purchased are subject to inspection at Illiopolis, Illinois by the Contracting Officer who executed and is defined in Contract No. W1103 Eng 3605 within a reasonable time, and the purchaser reserves the right to reject any materials or supplies which do not pass such inspection. In the event of rejection, United States Pipe and Foundry Company, shall be responsible for the removal of rejected property within a reasonable time. Purchase Order No. 1683, which involved nine shipments,, was issued to the American Cast Iron Pipe Company, and provided for the purchase of the materials f. o. b. railroad cars at the vendor’s foundry, North Birmingham, Alabama. A copy of this purchase order is in evidence as Plaintiff’s Exhibit No. 3 and it does not contain the same or á similar — 666 — provision as that quoted above from Purchase Order No. 1463. 27. A copy of the contract and copies of the two purchase orders relating to the shipments made to the Sangamon Ordnance Plant are in evidence, but aside from the contract and the purchase orders, no evidence was offered by either party as to the circumstances under which such purchase orders were issued. CONCLUSION OK LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover, and the petition is therefore dismissed.