month (Exhibit D-8) did not produce enough income to pay the tax assessments (N.T. 424).
The trial judge has carefully considered the testimony of the Government's real estate experts, who testified frankly and helpfully, but rejects their opinions for the reasons stated in Exhibit A attached hereto.
W. S. Supplee and H. LeRoy Kister testified, as witnesses for the defendants, as to the replacement value of the buildings without regard to the value of the land. Mr. Supplee inspected the property in 1947 and, to relate his figures to 1945, Mr. Kister, by use of a chart (Exhibit D-15), showed the rise in building and labor costs for the two-year period. By these two witnesses, the defendants offered to show that the replacement cost of the buildings as of 1945 was $ 110,000. (N.T. 619).
At the trial, counsel for the Government urged that the testimony of these two witnesses be stricken as not bearing on fair market value and also on the ground that they had not become familiar with the property until much later than 1945. This objection is overruled, but the arguments in support of the motion have been considered in evaluating the weight of the testimony, although they do not preclude its admissibility. See 3 Wigmore, Evidence, § 720. Cf. Travelers Indemnity Co. v. Plymouth Box & Panel Co., 4 Cir., 1938, 99 F.2d 218.
Mr. Solis-Cohen, who testified for the defendants,
was of the opinion that industrial property of the type involved here was commanding 70 cents a square foot in the summer of 1945.
To substantiate his opinion as of that time, he referred to transactions which demonstrated the activity in industrial real estate which followed VE Day of World War II. Specifically referred to were pieces of land at Delaware and Snyder Avenues, which in 1948 sold for 70 cents a square foot (N.T. 645), and Delaware and Mifflin Street, which sold for 80 cents a square foot in 1947 (N.T. 654).
From all the testimony, these two properties seem to be most like the Clearfield Street property with respect to size, location and utility.
The sales of all these properties were later than the lease by Mr. Goldberg and it must be assumed that a better price was obtained that would have been received for the properties in 1945, due to the continuing rise in the market.
According to the testimony of Mr. Solis-Cohen (N.T. 688), the market began to rise in 1945 and continued until the winter of 1946, when it became more stable. The trial judge finds that his appraisal of 70 cents a square foot as of July 1945 was high and determines that, on the basis of all the evidence, the fair market value of the land in July 1945 was 65 cents per square foot. However, the valuation of the buildings by this witness at $ 75,000 (N.T. 661) is accepted,
and the trial judge finds that the fair market value of the entire premises as of July 1945 was $ 171,200 (65 cents X 148,000 sq. ft. equals $ 96,200, plus $ 75,000).
The above mentioned finding of the fair market value of this property in July 1945 has been based on the principles adopted by the United States Court of Appeals for the Third Circuit in these cases: United States v. Certain Parcels of Land in City of Philadelphia, 3 Cir., 1944, 144 F.2d 626, 628-630, 155 A.L.R. 253; United States v. 13,255.53 Acres, etc., 3 Cir., 1946, 158 F.2d 874, 876; Hickey v. United States, 3 Cir., 1953, 208 F.2d 269, 273-274, 278-279, certiorari denied 1954, 347 U.S. 919, 74 S. Ct. 519, 98 L. Ed. 1074. See, also, Wigmore on Evidence (3rd Ed.), § 463 (Vol. II, pp. 503ff.).
The two counts brought by the Government will be considered separately:
Intent to defraud is a necessary prerequisite to civil liability under the False Claims Act (31 U.S.C.A. 231 ff.). United States v. Park Motors, D.C.E.D.Tenn.1952, 107 F.Supp. 168; cf. Lambert v. People of State of California, 1957, 78 S. Ct. 240. The trial judge finds that the plaintiff has failed to sustain its burden of showing this requisite intent. Aside from the question of fact involved, it has been firmly established, as a rule of law, that a representation of value expressed as an opinion cannot form the basis for an action of fraud. Gordon v. Butler, 1881, 105 U.S. 553, 6 L. Ed. 1166; In re Bowen, D.C.E.D.Pa.1944, 58 F.Supp. 286, affirmed 3 Cir., 1945, 151 F.2d 690. Assuming, for the purpose of argument, that Mr. Goldberg had the requisite intent to defraud, it is clear that the Government did not rely on these appraisals alone. In September of 1945, the Government began an inquiry into the entire transaction,
at which time a hearing was held in the Lafayette Building in Philadelphia. The rent for the first 45 days of occupancy was withheld pending the outcome of this inquiry. On October 15, 1945, when the matter was being investigated by the Department of Commerce, the first rental payments were made (see Exhibit P-18). These payments were made even after Mr. Goldberg had offered to cancel the lease when he was called in September 1945 to testify, as part of the above investigation, at the Lafayette Building (N.T. 738). Therefore, the Government cannot charge that it was defrauded by the false representations of another party where it has made an independent investigation prior to paying any money to defendants. Sacramento Suburban Fruit Lands Co. v. Klaffenbach, 9 Cir., 1930, 40 F.2d 899; In re Bowen, supra.
As to the second count of the Complaint, the trial judge is of the opinion that the Government may recover the amounts paid in excess of 15% of the fair market value prescribed in 40 U.S.C.A. § 278a. United States v. Wurts, 1938, 303 U.S. 414, 58 S. Ct. 637, 82 L. Ed. 932; United States v. Gudewicz, D.C.E.D.N.Y.1942, 45 F.Supp. 787. The right to sue for such recovery is independent of a statute, United States v. Wurts, supra, and it is not based on a theory of recission. As the United States Supreme Court has stated: 'Men must turn square corners when they deal with the Government,' Rock Island, A. & L.R. Co. v. United States, 1920, 254 U.S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188. The Government is never bound by the acts of its agents in doing what the law does not sanction or permit. Cummings v. Societe Suisse Pour Valeurs de Metaux, 1936, 66 App.D.C. 121, 85 F.2d 287.
Defendant argues that the $ 30,000 which was to be paid yearly by the Government represents more than rental payments, as it was also in consideration of repairs made by Mr. Goldberg and services rendered by his company during the surplus property sales and that, since § 278a contemplates only simple lease transactions, it is inapplicable to these facts. The record indicates to the trial judge that the repairs to the property made by defendants represented a condition precedent to the lease transaction. Defendants have not established their burden of proving that the other services referred to by them were either contemplated by the lease or rendered.
In the alternative, defendants rely on the application of 278b, which excepts certain vital leases during war or emergency from the operation of § 278a. Defendants have the burden of proving the applicability of this language. The wording of § 278b applies only '* * * to such leases or renewals of existing leases * * * as are certified by the Secretary of the Army or the Secretary of the Navy, or by such person or persons as he may designate, as covering premises for military, naval, or civilian purposes necessary to the prosecution of the war or vital in the national emergency.' Defendants have not shown that this lease was so certified or that the premises were 'necessary for the prosecution of the war or vital in the national emergency.'
For the foregoing reasons, the Government is entitled to recover $ 3,070 (with interest at 4% yearly from December 30, 1946, and costs n12 ), computed as follows:
Amount paid by the Government $28,750.00 (N.T. 463)
15% of $171,200. 25,680.00
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