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THE UNITED STATES, PETITIONER, v. A. M. LANDMAN, SUPERINTENDENT, ETC.

(S. C. No. 325)

A. M. LANDMAN, SUPERINTENDENT, ETC.,
PETITIONER v. THE UNITED STATES

(S. C. No. 327)

[C. Cls. No. 46964]

[109 C. Cls. 1; 332 U. S. 815]

Estate tax; inclusion within gross estate of land allotted to full-blood Creek Indian and transferred by death. Judgment for plaintiff.

Defendant's petition and plaintiff's petition for writ of certiorari denied by the Supreme Court November 10, 1947.

THE CANISTER COMPANY, PETITIONER, v.
THE UNITED STATES

[No. 46658]

[108 C. Cls. 558; 332 U. S. 830]

Taxes; income and excess profits tax; basis for depreciation; cost to transferor. Petition dismissed.

Plaintiff's petition for writ of certiorari denied by the Supreme Court November 24, 1947.

ADDISON MILLER, INC., A CORPORATION, ET AL.. PETITIONERS, v. THE UNITED STATES

[No. 44664]

[108 C. Cls. 513; 332 U. S. 836]

Government contracts; obligation of defendant to supply qualified labor; suit under the Act of July 23, 1937; insufficient proof. Petition dismissed.

Plaintiffs' petition for writ of certiorari denied by the Supreme Court December 8, 1947.

772634-48- -57

100 C. Cls.

PRIEBE & SONS, INC., PETITIONER, v. THE UNITED STATES

[No. 45922]

[106 C. Cls. 789; 332 U. S. 407]

On writ of certiorari (330 U. S. 815) to review a judgment of the Court of Claims holding that plaintiff was not entitled to recover liquidated damages deducted under the provisions of a contract for the delivery of dried eggs on stipulated dates and in accordance with stated conditions.

The judgment of the Court of Claims was reversed by the Supreme Court in an opinion delivered by Mr. Justice Douglas.

The syllabus of the Supreme Court's decision is as follows:

1. Pursuant to a program for aiding England and Russia under the Lend-Lease Act of March 11, 1941, petitioner contracted to supply to the Federal Surplus Commodities Corporation a quantity of dried eggs. The contract specified "May 18 [1942] delivery," which date "shall be the first day of a 10-day period within which the FSCC will accept delivery, the particular day within the period being at the FSCC's option"; required petitioner to have the eggs inspected and that delivery be accompanied by inspection and weight certificates; and provided that "failure to have specified quantities of dried egg products inspected and ready for delivery by the date specified in the offer" would make operative a provision for "liquidated damages." It did not provide for notice to the Government when the shipments were ready. Inspection and certification, though not completed by May 18, were completed prior to the dates designated by the FSCC for deliveries; and petitioner made timely deliveries pursuant to instructions. Held: The provision for "liquidated damages" constituted a penalty and was not enforceable.

2. The contract is construed to mean that the time for delivery by petitioner was not May 18, 1942, but the time or times chosen by the FSCC within the 10-day period which began on May 18; i. e., performance was not due until request was made and instructions given for delivery.

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3. Since the provision in question did not cover delays in deliveries, it could not possibly be a reasonable forecast of just compensation for damage caused by breach of contract.

4. Congress did not expressly grant the power to impose penalties as sanctions to the program adopted pursuant to the Lend-Lease Act; and that power may not be implied.

Mr. Justice Black, with whom Mr. Justice Murphy agreed, filed a dissenting opinion, holding that the judgment of the Court of Claims should be affirmed.

Mr. Justice Frankfurter also filed a dissenting opinion, in which Chief Justice Vinson joined.

INDEX DIGEST

ACT OF AUGUST 27, 1937.

See Taking V.

ACT OF JUNE 28, 1940

See Suit For Salary IX, X, XI, XII, XIII, XIV, XV.
"ADMINISTRATIVE REASONS."

See Suit For Salary XI.

AFFILIATED CORPORATIONS.

I. Where the plaintiff California Zinc Company was the
owner of all of the stock of the plaintiff Eastern Rail-
way; and where all of the stock of the California Zinc
Company was owned by the Glidden Company, a
paint manufacturer, which operated the Zinc
Company in order to secure an adequate and continu-
ous supply of zinc and its derivatives; and where, in
turn, the Zinc Company operated the Railway
Company to transport the zinc from the mines to the
nearest common carrier and was the only means of
access to the mines; it is held that in the circumstances
plaintiffs are entitled to maintain the joint action in
the instant suit, for the taking of a part or all of the
property belonging to the two plaintiffs. California
Zinc Company Et Al., 440.

II. The operation of the zinc mines and the railroad
company was a single integrated enterprise, either
one of which was of little or no value without the
other, and plaintiffs are entitled to recover not only
the value of the part taken, if any, but also the
consequential damage, if any, to the remainder. See
United States v. Powelson, 118 F. (2d) 79, 88. Id.
III. Where it is necessary to do so in order to render justice,
the courts have not infrequently disregarded separate
corporate entities and treated two corporations as
one. United States v. Reading Co., 253 U. S. 26, and
cases there cited; Southern Pacific Co. v. Lowe, 247
U. S. 330; Gulf Oil Corp. v. Lewellyn, 248 U. S. 71.
Id.

AIRPLANES, TRESPASS BY.

See Eminent Domain I, II, III, IV, V.