of this court on the basis of a claim of unconstitutional
deprivation of property without due process of law and
counterclaims under 28 U.S.C. § 1346(a)(2), for damages to the
extent of the Government's claim. In addition, it invokes the
jurisdiction of this court under 28 U.S.C. § 1346(b), upon the
remainder of its claim for damages to the total amount of
$250,000.00. The court finds, however, that each and every
change, diversion, and every other act suggested by the United
States Chain Company to be negligence on the part of the United
States, were reasonable and done with due care and diligence by
the respective agents of the United States in the execution of
their duties with respect to each of the contracts.
16. No evidence of any probative value was offered by the
United States Chain Company to sustain its claim of damages
suffered. The corporation records did not reflect detailed costs;
there was no provision made for cost accounting; the purported
attempt by the United States Chain Company to reconstruct costs
was an admitted guess, and the distribution of purported damages
as to each of the contracts was based upon arbitrary distribution
of a sought-after result.
17. Though the corporation attempted to prove the Government
was in some manner negligent in administering these contracts by
failing to give it needed assistance, the evidence discloses that
(a) on the Marine Corps contract the date for delivery was
extended three times for a total of 14 months; (b) a supplemental
contract was entered into with respect to Ordinance Contract No.
8146, increasing the price paid to the corporation because of its
inability to acquire steel; (c) additional priority to acquire
steel was extended to the corporation by the Ordinance District;
and (d) the grade of steel used in the manufacture of the chains
was altered in order to enable the corporation to more easily
18. The court finds that the proximate cause of any damage or
loss which may have been suffered by the corporation in its
performance under each of the contracts in this action was not
the neglect of the United States of America, but the negligent
mishandling and production of the chains by the United States
Chain Company in the performance of those contracts, its
financial instability, delaying tactics on the part of the
employees of the United States Chain Company in order to hedge
against layoffs, and inability to obtain steel to produce the
chains due to a strike by employees of the steel industry.
19. On May 21, 1957, pursuant to the assessments set forth
above, Internal Revenue Service executed a levy for the
collection of taxes and seized the plant and property of the
United States Chain Company. Nothing was taken from the premises
other than three ledgers constituting part of the books and
records of the corporation. The premises were locked and sealed
and maintained in that condition by the Internal Revenue Service,
and checked by Internal Revenue agents periodically to determine
that no loss through theft or otherwise had occurred. On
September 4, 1957, the property was returned to the corporation
by way of its President, Keith J. De Bolt, who, after examining
the premises accepted the premises as being in the same condition
as they were at the time of the seizure. No evidence was offered
or received proving any damage resulting from this lawful
seizure, or that the United States of America was negligent in
the maintenance of the property while in its control, and the
court therefore finds this to be the fact.
20. The court finds that each and every act of the United
States of America by its authorized agents in the administration
of these contracts, as alleged by the United States Chain Company
to be the proximate cause of damage suffered by it, occurred
prior to August, 1954, when the final payments were made on these
contracts, and more than two years prior to the institution of
by the United States Chain Company.
21. Each of the contracts contained a clause which stated:
"Unit prices will include all Federal taxes,
packaging charges, transportation charges to f.o.b.
point, and will govern in all cases."
Each of the contracts was executed after the United States Chain
Company had offered and bid to produce under those terms, and
such offer was accepted by the respective military agencies.
22. Each of the contracts called for delivery of the chains to
destinations within the United States.
CONCLUSIONS OF LAW
Any finding of fact which may be considered a conclusion of law
is hereby concluded as a matter of law.
1. The court has jurisdiction of the subject matter of the
action brought by the United States of America and the parties
named therein, except as hereinafter stated.
2. Other than the United States Chain Company, Interstate Bond
Company, and S.M. Kahn, Inc., all the defendants named in the
COMPLAINT of the United States of America are defaulted for
failure to appear and offer evidence in support of their
respective positions, and judgment order will issue accordingly.
3. There is due and owing from the defendant, United States
Chain Company, to the United States of America, to and including
December 9, 1960, a total sum of $26,575.18.
4. As to the portion of the defendant's counter-claim asserting
unconstitutional deprivation of property without due process and
the invocation of the jurisdiction of this court under 28 U.S.C. § 1346(a)
(2), the court concludes that the defendant has failed
to sustain its burden of proof in support thereof and that there
has been no showing of any unconstitutional deprivation of
property by the United States of America. The court concludes
also that any deprivation of property which may have been
incurred by the United States Chain Company was the proximate
result of its own negligence arising from the course and conduct
of its affairs.
5. The court concludes that it is without jurisdiction to
entertain such action, 28 U.S.C. § 2680, Sub-paragraphs (a)(c)
and (h), as to the counter-claim of the United States Chain
Company that it suffered damages through the administration of
the contracts with the Government, by way of the acts of the
authorized agents of the Government, which it contended amounted
to tortious conduct, such as negligence, duress and interference
with contractual relations.
6. The court concludes that the purported claim furthermore is
barred by Section 28 U.S.C. § 2401.
7. The court concludes, therefore, that with respect to the
counter-claim, judgment shall be entered for the United States of
America, together with costs, and against the United States Chain
Company, and a judgment order to issue thereupon.
8. In addition to the above and foregoing findings of fact and
conclusions of law, the court has prepared an opinion discussing
various issues involving the problems of liens and such opinion
constitutes additional findings of fact and conclusions of law on
that aspect of the case.