Murphy thereafter returned to the United States. In repeated conferences with officials of the War Department he pressed his claim for compensation, all without success, the department uniformly holding through the Judge Advocate General that under the law no authority obtained to pay him, and insofar as the events of this transaction in its entirety are concerned, Poland, following somewhat extended international negotiations respecting the purchase of the cars, did not consummate a sale, the United States withdrawing its credit concessions previously made and terminating the negotiations. Subsequently, on July 6, 1922, the entire lot of cars was offered for sale by public advertisement. Poland, through the legation in Washington, submitted, along with others, a bid for the cars, and being the highest bidder its bid was accepted and the cars transferred for a sum of $1,208,640.00 in cash and $3,625,920.00 to be paid within a period of six years.

The plaintiff claims a commission of fifteen per centum of the purchase price of the cars, and the expense incurred in the alleged sale of the same.

In the case of the Erie Coal & Coke Corp. v. United States, 266 U. S. 518, 521, the Supreme Court held that an act authorizing the sale of surplus war supplies is not inconsistent with section 3744, Revised Statutes, and the same is applicable to such sales. The plaintiff asserts the inapplicability of section 3744, requiring contracts with the War Department to be in writing, upon the theory that the suit is not for a breach of an executory or special contract, but a claim essentially predicated upon services rendered by a broker in procuring a purchaser for the cars. In other words, it is insisted that where a broker finds a customer for his principal, in response to an employment so to do, he has earned his commission, and in the absence of an agreement for fixed compensation is entitled to recover upon the basis of quantum meruit. If we correctly apprehend the contention, it is reduced to the simple proposition that Murphy did procure a customer for the cars under an agreement so to do, and the contract having been executed and the United States having received the full benefits thereof, nothing remains except to compensate the plaintiff upon the basis of quantum meruit, notwithstanding the nonexistence of a written contract, as provided in section 3744. Clark v. United States, 95 U. S. 539; St. Louis Hay and Grain Co. v. United States, 191 U. S. 159. The record indisputably discloses that whatever contract of employment existed between Murphy and Secretary Weeks is to be deduced from the conversations passing between them; i. e., conceding the force of plaintiff's contentions that where a broker secures a purchaser in accord with an employment so to do he is entitled to be paid. Obviously the difficulty of sustaining the making of a contract wherein oral conversations, decidedly indefinite and uncertain, lies in the fact of ascertaining what was meant, what was intended, and what were the terms and conditions of the undertaking. In this case we have a contemplated sale of personal property of a value in excess of five millions of dollars, property which cost the United States a much larger sum, and which purchasers, brokers, or others knew would be sold at a bargain. A sale of such magnitude undoubtedly attracts the possibility of profits in the purchase thereof at a bargain and its resale to others. This we have positively and expressly illustrated in the conditional sale of these cars to the U. S. A. International Corporation. Murphy was familiar with the entire situation with respect to a market for these cars, both at home and abroad. It seems hardly possible that he would have assented to an oral contract involving compensation of a great amount upon mere oral statements of the Secretary of War. The War Department and its Secretary were assiduously engaged in commercial transactions of extreme importance and magnitude, involving almost every conceivable variety of merchandise. The Secretary knew the limits of his authority and the mode and manner of selling surplus war materials; it is almost inconceivable that it would escape his attention to place in writing a contract of employment to sell merchandise for the department, when he must have known that the commission to be paid would mount into hundreds of thousands of dollars. On the other hand, Murphy was an experienced and trained salesman. That had been and continued to be his chosen vocation throughout his life; assuredly it seems improbable that he would have undertaken this enterprise upon the basis of an oral contract without the mention of terms of sale, the purchase price to be asked, the commission he would be paid, and the innumerable details that enter into the consummation of a transaction of this great magnitude. We say all this as not conclusive of the nonexistence of a contract but available to ascertain as near as may be what was intended by the parties in doing and saying what they did. The Secretary of War was anxious to dispose of the cars; his duty was manifest. The property was depreciating in value. To Murphy he cabled in Poland, “Will be glad to receive bids through you or others."

We italicize the last three words.

To Murphy he indicated a complete willingness to accept propositions of sale from him, but do all or any part of the conversations index employment to sell exclusively for the department? On the contrary, they are impressive as an assent to receive a proposition to buy, a decided willingness to entertain proposals to purchase from any source and from any responsible person or persons. Giving the Secretary's words the very broadest significance and construing them as we believe most favorably to the plaintiff, we are impressed with the fact that all that was intended was to say to Murphy, "Go ahead, sell the cars if you can; submit your propositions to me, and if they are accepted, we will then fix compensation, when the sale is made," without in anywise intending to irrevocably bind the Government for the payment of compensation upon the mere discovery of a purchaser. What the Secretary was willing to do was to consider a completed transaction. Otherwise he would not have left open such a wide latitude of indefiniteness, doubt, and uncertainty. The transaction which Murphy inaugurated in Poland was never consummated, the parties did not arrive at an agreement, and the sale never took place in accord therewith. In addition to all this is the fact that Murphy was an interested stockholder in the U.S. A. International Corporation, which had lost a sum in excess of two hundred thousand dollars through the expiration of the time limit in its contract with the department, and the motive to obtain an extension of the contract and save, if possible, the forfeited sum was most compelling. The transaction suggests a possibility of doing this very thing, and a willingness of the Secretary to grant concessions in the event of an actual sale of cars by or through Murphy, notwithstanding the lapse of time, and coupled with this fact is another of especial pertinence, and that is that Poland had previously purchased 4,600 cars exactly similar to the ones here involved, and the department had made known both at home and abroad, through proper channels, that the cars were for sale. It was a matter of public notoriety.

The cases, too many to cite, uniformly hold that to entitle an agent to a commission under a contract to sell "his services," as said in Reeves v. Sanford, 227 Pac. 872, "must be the immediate and effective cause of the bargain." The services of the agent must be the proximate cause of the purchase, the activities of the agent resulting under the contract in the consummation of the enterprise undertaken. Payenso v. Swensen, 178 Fed. 999. We find no precedent sustaining a contention that the department was liable for broker's commission for a sale of property conducted under its own initiative, by its own officers, and in accord with its own terms and conditions exclusively. The fact that Murphy had previously attempted to sell the cars to Poland and failed is wholly insufficient to predicate a claim for compensation for thereafter selling the same cars through the independent action of the department at auction, wherein eleven competitors contested for the right to purchase. The department very justly sought to deal equitably with Murphy, his claim was carefully investigated, and more than once considered by the Judge Advocate General of the Army. Two Secretaries of War passed upon it, and the final conclusion was a lack of legal authority to pay except through a special act of Congress. With this conclusion we agree. Murphy was industrious and conscientious in his efforts to sell the cars. The department accorded him full recognition in this respect. The record sustains an assertion that what he did doubtless aided in a substantial measure in giving the final sale a degree of publicity it might not otherwise have obtained. For what he accomplished in this respect, in so far as compensation is involved, this court is without jurisdiction to award a judgment. Congress may, if it sees fit, provide the remedy.

The petition is dismissed. It is so ordered.

SINNOTT, Judge; and GREEN, Judge, concur.

GRAHAM, Judge, took no part in the decision of this case; and Moss, Judge, took no part on account of illness.

BRIEF IN SUPPORT OF BILL

This brief is filed in support of a bill introduced into the Seventy-eighth Congress by Congressman Christian A. Herter of the Tenth District, Massachusetts, on behalf of M. Grace Murphy, of Boston, Mass., administrator of John H. Murphy, deceased. The purpose of this bill is to reimburse the estate of John H. Murphy for expenses incurred by the deceased in connection with the sale of surplus railroad equipment by the United States War Department to the Government of Poland in the year 1922. In that year the United States Government,

through the War Department, sold to the Government of Poland 7,554 freight cars for $4,834,560. John H. Murphy performed valuable services in connection with this sale including a trip to Poland early in 1922 and conferences in Poland with high officials of the Polish Government. He expected to receive a commission on the sale. His claim, however, for a commission was turned down by the War Department on the advice of the Judge Advocate General because of a lack of proper authorization for his employment. An action was brought against the United States in the Court of Claims by Murphy, which action was decided June 3, 1929, adversely to Murphy.

The grounds of the court's decision was "A lack of legal authority to pay except through a special act of Congress." The court did find that Murphy rendered valuable services but that it was "without jurisdiction to award compensation for the same." In 1940 the Seventy-sixth Congress passed a bill awarding the claimant the sum of $50,000 as compensation for Murphy's services. This bill was opposed by the War Department and was vetoed by the President.

The War Department at that time, however, through the then Acting Secretary of War, Lewis Johnson, in a letter to the Honorable Ambrose J. Kennedy, chairman, Committee on Claims, House of Representatives, reaffirmed that portion of a report by a former Secretary of War that it would not be inappropriate to reimburse the estate of John H. Murphy for the expenses incurred by him in connection with his sale. These expenses amounted to $4,964.75. The words of the Secretary of War were as follows: "It is suggested, however, that under all the circumstances of the case it may not be inappropriate to reimburse the estate of Mr. Murphy for the expenses incurred by him in this connection and claimed by him to have amounted to $4,964.75."

The purpose of this bill is to reimburse the Murphy estate for the expenses incurred by Murphy plus interest at 6 percent from the date when those expenses were incurred. The claimant believes that this is a meritorious bill. The expenses were actually incurred and they were valuable to the War Department. They were incurred with the expectation of reimbursement. The War Department has found that it would not be inappropriate to make this payment, and the Congress, through its previous passage of a bill for a much larger amount, has indicated a belief that some reimbursement is proper and equitable. The addition of interest at the prevailing legal rate also seems just and equitable, considering the length of time that has elapsed since these expenses were incurred and the obstacles which have had to be overcome.

There is filed with this brief a copy of the report of Congressman Keogh from the Committee on Claims prepared for the Seventy-sixth Congress, which contains a very thorough discussion of this entire claim.

In conclusion it is respectfully submitted to the Congress that the claim represented by this bill is just and equitable and that the bill is worthy of the favorable consideration of the Congress.

Respectfully submitted.

APRIL 25, 1944.—Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. FERNANDEZ, from the Committee on Claims, submitted the

following

REPORT

[To accompany H. R. 2542]

The Committee on Claims, to whom was referred the bill (H. R. 2542) for the relief of certain claimants who suffered losses and sustained damages as the result of the campaign carried out by the Federal Government for the eradication of the Mediterranean fruitfly in the State of Florida, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

The purpose of the proposed legislation is to authorize and direct the Secretary of the Treasury to designate an officer or employee of the Treasury Department as commissioner, whose duty it shall be to investigate, take proof, and settle all claims for damages growing out of the Mediterranean-fruitfly-eradication campaign in the State of Florida during the years 1929 and 1930.

After carefully considering the recommendations of the special joint committee which was appointed during the Seventy-sixth Congress, your committee feels that these claims are meritorious, and that claimants making proper proof of their claims are entitled to be compensated by the Federal Government for the losses sustained by them during the Mediterranean-fruitfly-eradication campaign.

The basis and facts upon which this report is founded are fully set forth in the report of the special joint committee, which is appended hereto and made a part of this report.

Your committee recommends that favorable consideration be given the proposed legislation.

STATEMENT OF FACTS

Senate Concurrent Resolution No. 40 approved by the Senate and House of Representatives in March and April 1940, respectively, authorized and directed a special committee of the Senate and House as follows:

It shall be the duty of such special committee to make a full and complete investigation with respect to the losses sustained as a result of the Mediterraneanfruitfly-eradication and quarantine campaign conducted in the State of Florida in 1929 and 1930 by the United States Government, with a view to determining, among other things, the nature, character, and amount of such losses, the circumstances under which such losses occurred, and the persons by whom such losses were sustained. The committee shall report to the Congress at the earliest practicable date the results of its investigation, together with its recommendations, If any, for necessary legislation.

Your special committee, consisting of Senators H. H. Schwartz, Allen J. Ellender, Alexander Wiley, and Congressmen Robert Ramspeck, J. Parnell Thomas, and Ambrose J. Kennedy, held hearings in Florida from December 4 to December 17, 1940, and took testimony of approximately 114 witnesses. Most of these witnesses were growers of citrus fruit and vegetables. They had sustained damages in the prosecution of the joint Federal-State fruitfly-eradication campaign. Shippers of fruit also testified to losses due to restrictions on shipping fruit out of the State. Other witnesses were businessmen familiar with the results of the quarantine and eradication campaign. Officials