Mills v. United States

delivered the opinion of the court:

The facts are fully set forth in the findings, and it is not necessary to repeat them in detail.

On April 18, 1918, Alexander Propper & Company entered into a written contract with the defendant to furnish 300,000 pairs of spiral puttees. Thereafter, on May 7, 1918, *705the said Alexander Propper & Company gave the plaintiff an order for 100,000 yards of knitted cloth to be used in connection with its contract with the defendant, and plaintiff accepted the order and furnished part of the 'cloth. The plaintiff, in order to supply the knitted cloth, ordered from S. B. & B. W. Fleisher, Inc., 12,500 pounds, grade L, khaki mixed worsted yarn, of which amount Fleisher, Inc., claimed to have furnished a part.

The plaintiff thought it necessary to purchase new machinery and secure an allocation of machinery from the representatives of the Government, and Fleisher, Inc., in order to supply the yarn, obtained an allocation of wool from the Government’s representatives.

The Government, shortly after the armistice, canceled the contract with Alexander Propper & Company, as it had a right to do, and about the same time notified the plaintiff and Fleisher, Inc., to that effect. Fleisher, Inc., asserted an unliquidated claim against the plaintiff for $7,388.91, of which there is no satisfactory proof. The plaintiff filed this claim with the Secretary of War and with it a claim for the cost of additional machinery purchased. No action was taken on the Fleisher claim by the Secretary, and the claim of plaintiff for the cost of additional machinery was considered and disallowed by the Board of Contract Adjustment, whose decision on appeal was approved by the Secretary of War.

The Government settled with Propper & Company for a claim which it had filed after plaintiff had written a letter to the Secretary of War stating that it had adjusted its claim against Propper & Company and withdrawing its claim as a subcontractor.

The plaintiff’s claim in its petition consists of the unliqui-dated claim against it of Fleisher, Inc., and its claim for loss on machinery. There is no proof of facts which even suggest a liability upon the part of the Government to pay the plaintiff these claims.

The petition should be dismissed, and it is so ordered.