profit on the units delivered. The Government is entitled to recover on the first count of its counterclaim the $896 which it spent in delivering to and removing from the plaintiffs' plant those materials which the plaintiffs were not permitted to manufacture. On the second count of its counterclaim the Government is entitled to recover $21,789.66, which was the plaintiffs' profit on the two contracts for which it was paid $181,580.46. The defendant is entitled to a judgment against the plaintiffs for $12,153.45. It is so ordered. JONES, Chief Judge, and LARAMORE and LITTLETON, Judges, concur. WHITAKER, Judge (dissenting). The Walsh-Healey Act provides no penalty against an ineligible contractor who enters into a contract with defendant. It is true plaintiffs failed to reveal, even concealed, their identity as ineligible contractors, and contracted with full knowledge of their ineligibility. In so doing, they perpetrated a fraud against the United States, in that they, by deceit and trickery, circumvented the purpose of the Act. But, no statute provides for recovery by the Government of a contractor's profit, as a penalty therefor. How can we allow recovery where there is no statutory or contractual authority therefor? Under the common law, fraud vitiated the contract and allowed, in the absence of any equitable considerations at least, recovery of actual damages sustained as a result of the fraud; but it is not shown that the defendant suffered any monetary damage, except $896, the cost of furnishing plaintiffs with material and removing it from plaintiffs' premises after termination. The common law did not permit recovery of money paid on a contract induced by fraud, unless actual monetary damage was sustained as a result of the fraud. On the other hand, to annul a transaction fraudulently induced, the party seeking relief therefrom was obliged to return the consideration received thereunder. See Causey v. United States, 240 U.S. 399, 36 S.Ct. 365, 60 L.Ed. 711, and many other cases. So much for the two contracts fully performed, and paid for. However, I think that under the forfeiture statute (28 U.S.C. § 2514), plaintiffs' claim for the amount unpaid on the terminated contract may be forfeited, because plantiffs' claim is tainted with the fraud they perpetrated in securing the contract. Except for the fraud there would have been no contract and no claim. It is not necessary that the Government should have suffered monetary damage. The criminal statutes provide (18 U.S.C. § 88) that where there has been a conspiracy to violate an Act of Congress, the conspirators may not escape liability because the United States, has not suffered any pecuniary loss. The fact that the lawful function of the Government has been impaired or defeated, or that the United States has been defrauded in any manner, whether pecuniary loss has been suffered or not, is sufficient for conviction. Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90; Dimond v. Shine, 199 U.S. 88, 25 S.Ct. 766, 50 L.Ed. 99; Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Plaintiffs, Harry Paisner and Samuel Paisner, were undoubtedly guilty of a conspiracy to defraud the Government, using the word "fraud” in this sense, when, by concealing their identity they induced the Government to award them this contract in violation of the WalshHealey Act. Hence, I think it is our duty to declare forfeited the amount due them under the terminated contract. CHAPTER VIII PROPERTY DISPOSAL Section 1. ABANDONMENT KERN COPTERS, INC. v. ALLIED HELICOPTER HAMLIN, Circuit Judge. On October 4, 1955, a helicopter owned and operated by the United States Army crashed in the jungle about 36 miles north of Coban, Guatemala. The Army retrieved certain parts of the helicopter, but made no effort to recover the remainder, which, by 1957, still lay in the jungle. During 1957 appellant and appellee were conducting helicopter operations in Guatemala, both knew of the crash, and both now claim title to the wreck. * Appellant's claim is based on a contract with the Property Disposal Officer of the Caribbean Command, United States Army. The events leading to this contract may be briefly summarized. On February 14, 1957, appellant wrote the Congressman from its district, inquiring as to the proper procedure to obtain title to the helicopter. The Congressman replied on March 18, 1957, enclosing a letter from Lieutenant Colonel Peeples, who was serving in the Office of the Chief of Legislative Liaison. The Colonel's letter, dated March 15, 1957, was written in response to the Congressman's inquiry on behalf of appellant. This letter stated that "all parts which were economically salvageable" were removed soon after the crash and that the remaining parts were subsequently "dropped from accountability records." The Colonel enclosed a copy of Army Regulation 755-10, which he said "details the procedure by which [appellant] may request title to the remaining portion of the wrecked machine." On March 25, 1957, appellant wrote the Commanding General of the United States Army Caribbean, saying it desired to obtain title to the wreck and enclosing a check for $50 "to effect a bona fide sale." Appellant apparently did not receive an immediate reply to this letter, and on April 12 sent a follow-up telegram. On the same day appellant wrote the "Disposal Officer, U.S. Army Caribbean," concerning acquisition of the wreck. On April 16 appellant received a telegram from the Commanding General, United States Army Caribbean, which said: "Reference your message action being taken to expedite sale of wrecked helicopter. Necessary contract forms and title being forwarded separately for appropriate signature." On April 23, 1957, Captain J. E. Hughes, a Property Disposal Officer, wrote appellant acknowledging receipt of the check for $50 "covering payment in full for the purchase of the remains of the helicopter ***." He enclosed four copies of a contract or bill of sale which he requested appellant to sign and return. Appellant executed and returned the documents as requested, after which Captain Hughes signed and returned a copy of the bill of sale to appellant, together with a letter stating that "finalization of the disposal of the helicopter *** has now been accomplished and you have been successful in obtaining the award of same ***." This transaction is the basis of appellant's claim to title. Appellee's claim is based on events occurring during the course of these negotiations. On April 1, 1957, some eighteen months after the crash, the wreck was recovered from the jungle by James Dula, an employee of appellee, who removed all remaining portions, excepting the rotor blades, to Camp Sohio, Guatemala. Dula claimed the helicopter for himself and instructed the manager of Camp Sohio not to let anyone else take possession. Agents of appellee later went to Camp Sohio to obtain possession, but the camp manager, on Dula's instructions, refused permission to remove it. In early June, 1957, appellant's general manager presented the bill of sale received from the Army to the camp manager and was permitted to remove the helicopter, which was shipped to the United States and its salvable parts used in repairing other helicopters. The dispute between Dula and appellee was apparently resolved against Dula in another action, and it is stipulated that as between Dula and appellee, Dula had no interest in the helicopter. Appellee brought this action to recover possession or value of the helicopter. The District Court, finding that the Army had "abandoned" the wreck, concluded that appellee became its owner and entitled to possession on April 1, 1957, the date it was recovered from the jungle, and that appellant acquired no interest in the wreck by reason of the bill of sale. Judgment was granted to appellee for $7,000, which was found to be the value of the wreck at the time it was recovered. During the period in question, Army Regulations 755-10, titled "Disposition of Foreign Excess Personal Property," were in effect. Army regulations have the force of law.*** A copy of these regulations was furnished by Colonel Peeples and forwarded to appellant by the Congressman. The regulations are based on the Federal Property and Administrative Services Act of 1949 (Title IV, 63 Stat. 397, 40 U.S.C.A. § 511 et seq.), and their declared purpose is to |