protest and appeal did not take practicable precautions against occurrence of the violations.
The RFC has whatever rights to proceed as were inherent in DSC. See footnote 2, supra. Defendant asserts that if a right of action arose it was vested only in the administrator of the OPA and not in DSC. We disagree. See Reconstruction Finance Corp. v. Foust Distilling co., supra, 87 F. Supp. at pages 634, 635.
We have before us the RFC Act, Sec. 5, as amended (see 1934 Ed., 15 U.S.C.Supp., Sec. 606(b), 1948 Ed., Sec. 606(b), historical note) 54 Stat. 573, 574, which provides inter alia: 'In order to aid the Government * * * In its national-defense program, the Corporation is authorized * * * (2) * * * (a) to produce, acquire, and carry strategic and critical materials * * *.' The DSC charter provides inter alia, 'Third, that the objects and purposes of the corporation shall be to buy, sell, carry, acquire, store, transport, produce, process, manufacture, market and otherwise dispose of strategic or critical material and supplies of all kinds which may be necessary or appropriate in connection with the national defense program of the Government * * *.'
Whether or not RFC is the proper party plaintiff is a question of law or at most one of legal inferences and conclusions to be drawn from the undisputed facts. See Schreffler v. Bowles, 10 Cir., 153 F.2d 1 at pages 3, 4.
From the uncontradicted evidence it appears that all of defendant's product purchased by the DSC was for the purpose furthering the war effort, a governmental function, and was not for use by it in any trade or business. In this connection, cf. Cherry Cotton Mills, Inc., v. United States, 59 F. Supp. 122, 103 Ct.Cl. 243, affirmed 327 U.S. 536 at page 539, 66 S. Ct. 729, 730, 90 L. Ed. 835, speaking of the RFC, 'That the Congress chose to call it a corporation does not alter its characteristics so as to make it something other than what it actually is, an agency selected by Governmental purposes.' And see Todd v. Maryland Cas. Co., 7 Cir., 155 F.2d 29 at page 38.
As we pointed out in our previous opinion, R.F.C. v. Foust Distilling Co., supra, 87 F. Supp. at page 634 and cases cited, particularly Provisional Government of French Republic v. Cabot, D.C., 59 F. Supp. 855 at page 857, the test as to the right of action under Sec. 205(e) is whether one buys a commodity for use and consumption other than in the course of trade or business. The question here is whether DSC bought, not whether defendant sold alcohol for use of consumption other than in the course of trade or business. The right of action arises as an incident not of the sale but of the purchase. See Bowles v. Krodel, supra, 149 F.2d at page 399.
We see no merit to defendant's claim of estoppel or laches.
As to the statute of limitations, see R.F.C. v. Foust Distilling co., supra, 87 F. Supp. 632; Rauer v. Wexler, 3 Cir., 1948, 167 F.2d 817 at page 819, and see Woods v. Stone, supra, 333 U.S. at pages 473-478, 68 S. Ct. 624. The one year statute of limitations obviously does not apply to the claim on the contract for simple damages.
As to the claim for treble damages, plaintiff would be restricted to claims asserted asserted within one year of defendant's failure to comply with the respective refund orders.
As to the counterclaim-
We have before us the record heretofore described, including defendant's admissions contained therein and, in addition, copies of the contracts and price orders herein involved.
What was said as to alcohol refers with equal force to 'High Wines' which were redistilled and stored. They were strategic materials purchased in furtherance of the war effort. The DSC was not engaged in a trade or business, did not use or consume same, did not operate for profit, but acted solely in the performance of a governmental function in war time.
containing provisions similar to those discussed supra, and notwithstanding pertinent OPA regulations
and price orders,
defendant under similar circumstances asserts its right to collect a price based upon its actual cost plus a fixed profit per gallon, notwithstanding that the OPA fixed a different price. Here likewise no protests were filed and defendant attempts again to attack the validity and effectiveness of the price orders themselves. For the reasons heretofore stated there is no merit to the counterclaim. See Schreffler v. Bowles, supra, 153 F.2d at pages 3, 5.
Summary judgment will therefore be given, allowing plaintiff simple damages for breach of contract; treble damages for claims arising under Price Order, Rev. L-171 and Order L-207, including interest from the date each of the various amounts were due and payable; defendant to pay the costs.
Summary judgment on defendant's counterclaim will be given in favor of the RFC.
In addition to the foregoing, reasonable counsel fees will be allowed to the RFC. In view, however, of Pennsylvania Crusher Co. v. Bethlehem Steel Co., 3 Cir., 193 F.2d 445, and cases cited, we will withhold fixing the amount thereof until sufficient evidence is presented, so that the amount of same may be fixed and findings of fact in support thereof may be made.
Counsel for the plaintiff will submit an appropriate decree in compliance with the foregoing opinion.