Reporter's Statement of the Case equipment thereof given by the Fleet Corporation or its duly authorized officers. "The Shipbuilding Corporation agrees to proceed with such completion of such ships with all due expedition, and to that end agrees that the Shipbuilding Corporation will not, during the construction of said ships, take any additional contracts for other ships from parties other than the United States Navy which will interfere with such expedition. "2. The Fleet Corporation hereby agrees to pay to the Shipbuilding Corporation as just compensation for the completion of said ten ships, hulls Nos. 174, 175, 176, 182, 183, 184, 189, 190, 193, and 196, the entire cost of construction of said ships, figured from the commencement by the Shipbuilding Corporation of the construction of said ten ships up to the times of completion thereof respectively, and in addition thereto with respect to each ship ten dollars ($10) per dead-weight ton for profit. There shall be credited, however, in favor of the Fleet Corporation all sums heretofore received by the Shipbuilding Corporation on account of the construction of such ten ships, respectively, either from the former owners or from the Fleet Corporation. A statement of the amounts so received by the Shipbuilding Corporation as to each such ship is hereunto annexed and marked 'Exhibit D.' As construction progresses the Shipbuilding Corporation shall deliver monthly to the Fleet Corporation cost statements as to each such ship, covering the construction costs with respect thereto, so far as ascertained, and the Fleet Corporation shall pay to the Shipbuilding Corporation on or before the 15th day of each month the costs incurred during the preceding calendar month. The Fleet Corporation shall pay said profit of ten dollars ($10) per dead-weight ton; three dollars ($3) per estimated dead-weight ton at the time of laying the keel of each said ship; four dollars ($4) per estimated dead-weight ton at the time of launching of each ship; and three dollars ($3) per estimated dead-weight ton at the time of delivery of the ship by the Shipbuilding Corporation. "3. A determination of the costs of said ships to date with payments of said profit in accordance with the stage of completion of each ship, as aforesaid, shall be made as soon as possible after date hereof, after proper audit by the Fleet Corporation. The costs of each ship shall be stated separately. The Fleet Corporation shall have free access to the books and records and contracts of the Shipbuilding Corporation for the purpose of determining such costs. Final determination of the amount of the Shipbuilding Reporter's Statement of the Case Corporation's said profit shall be made after the determination of the actual dead-weight tonnage of each ship, and any necessary adjustments shall then be made. Costs shall be determined as actual costs are defined in the form of agreement relating to the construction of the * * * three transports. * "10. The Fleet Corporation, in accordance with the provisions of the said urgent deficiency act of June 15, 1917, hereby agrees to indemnify and save harmless the Shipbuilding Corporation from any and all loss or liability occasioned by reason of said requisition order of August 3, 1917, or any subsequent acts or orders given by the Fleet Corporation arising out of claims of the former owner or owners or anyone claiming under them. "Statement of amounts received by New York Shipbuilding Co., either from former owners or from United States Shipping Board Emergency Fleet Corporation, on account of construction of ships, as per hull numbers, as follows: XVI. In accordance with the provisions of the statute the plaintiff filed its claim for the payment of just compensation with the United States Shipping Board Emergency Fleet Corporation for the property which it alleged the said corporation had requisitioned from it on August 3, 1917. On January 23, 1920, the Emergency Fleet Corporation adopted a resolution awarding to the plaintiff as just compensation the sum of $442,683.82. The plaintiff being dissatisfied with this award refused to accept the same and so notified the Emergency Fleet Corporation, and on February 24, 1920, the defendant paid to the plaintiff the sum of $332,012.87, that sum being 75 per cent of said award. The award made by the Emergency Fleet Corporation to the plaintiff as just compensation for property requisitioned Reporter's Statement of the Case on August 3, 1917, was made up of two items, to wit, $177,230.44, which was computed to be the value of the materials, equipment, and machinery which were in the yard of the New York Shipbuilding Co. at the time of the requisition, and which materials, etc., were in fact the property of the New York Shipbuilding Corporation. The second item was the sum of $265,453.38, which sum was on account of progress payments made by the plaintiff and its assignors to the New York Shipbuilding Co. in excess of cost of material requisitioned. The plaintiff and its assignors paid to the New York Shipbuilding Corporation in cash $239,500, in notes for which it has paid $180,000, and payments which it has made of interest on notes $28,433.33—in all, $447,933.33. The plaintiff also paid the sum of $5,500 to architects. The plaintiff also furnished plans and specifications of the value of $20,277.25, making in all the sum of $473,710.58. It has been paid by the defendants the sum of $332,012.87. XVII. The total contract price for the vessel was $831,630, of which $419,500 had been paid to the shipbuilder at the time of the requisition; $412,130 remained to be paid. The vessel on August 3, 1917, was about 19 per cent completed, and was finally completed in accordance with the original plans and specifications with some minor changes and extras costing about $7,500. After the requisition the Emergency Fleet Corporation paid to the shipbuilder for the completion of said vessel the sum of $806,240.99 on account of labor and material, and $10 per dead-weight ton as profits amounting to $85,970. There is also claimed by the Fleet Corporation as part of the cost of completing the vessel an item for overhead expenses amounting to $280,704.54. There were, at the time this vessel was under construction, a large number of other vessels being built for the Government by the New York Shipbuilding Corporation at this yard. The item of overhead expenses charged to cost of this vessel is not satisfactorily explained. The vessel was completed and delivered on September 20, 1918, and thereafter was placed in the service by the Fleet Corporation. Opinion of the Court XVIII. Just compensation to the plaintiff for its rights and contract which were expropriated and the sum which will put the plaintiff in as good a position pecuniarily as it would have been if its contract had not been expropriated is the sum of $852,000 as of August 3, 1917, with interest thereon at the rate of six per centum per annum from August 3, 1917, to February 24, 1920, which interest amounts to the sum of $130,782, on which date there was paid to the plaintiff the sum of $332,012.87 by the United States, leaving a balance due the plaintiff as of that date of $650,769.13, to which the plaintiff is entitled, with interest thereon from February 24, 1920, to February 14, 1927, which amounts in all to the sum of $923,007.50. In addition to the principal sum mentioned in Finding XVIII, and interest thereon to date of judgment, the court allowed, as part of just compensation, interest on the principal sum from date of judgment until paid. HAY, Judge, delivered the opinion of the court: The former judgment of this court in this case was on May 12, 1924, reversed by the Supreme Court of the United States and remanded to this court for further proceedings in conformity with the opinion of the Supreme Court. After the former judgment in this case had been reversed by the Supreme Court the Government filed a motion for what is termed a new trial under section 175 of the Judicial Code. This section authorizes the Court of Claims "while any claim is pending before it or on appeal from it or within two years next after the final disposition" of it to grant on the Government's motion a new trial and stay the payment of any judgment. This motion was filed on November 7, 1925. The former judgment of this court was rendered on the 23d day of April, 1923, 58 C. Cls. 274. And, in any event, the motion would be too late. reversed by the Supreme Court on the 5th day of May, 1924, 265 U. S. 106. While the authorities are abundant that this court may grant a new trial under section 175 even after a judgment has been affirmed by the Supreme Court, no authority has been adduced to show that this court may grant a But the judgment was Opinion of the Court new trial under section 175 until either this court or the Supreme Court has rendered a judgment, and certainly no authority can be adduced that this court can grant a new trial upon a judgment of reversal by the Supreme Court. Two items very much insisted on by the. Government in its motion are (1) the failure to find what is called the requisition telegram of August 3, 1917; and (2) the failure to set out in full the requisition order in the court's findings. The so-called requisition telegram was not in the record up to the time of the court's judgment and was therefore not found, but its existence was known to the Government counsel who prepared the Government's brief of about seventy printed pages and argued the case. This is evidenced by the fact that in this brief, at page 331 of the record, reference is made to certain action of the general manager of the Fleet Corporation" who had signed the requisition telegram and requisition letter of August 3." He did not introduce it, probably because he didn't think it material, as it was merged in the letter. The complaint that part of the requisition order was omitted is without force because a copy of the requisition order appeared in the petition itself. The briefs and the opinion of the Supreme Court show very clearly that this whole order was before them. In these circumstances the grounds assigned for the motion would furnish very little basis for it, even if it were timely. See Axman case, 48 C. Cls. 378, 379; Missouri Pacific Railway Co. case, 55 C. Cls. 485, 486; Volk case, 56 C. Cls. 395. While additional findings have been made, the defendant's motion for a new trial is overruled. And this court in conformity with the opinion of the Supreme Court has found the value of the plaintiff's contract and thereby has put it in as good a position pecuniarily as it would have been in if its contract had not been taken. In arriving at this result this court has taken into consideration the elements of value as laid down in the opinion of the Supreme Court of the United States in this case (265 U. S. 106), as follows: "Determination of just compensation is to be based on the fact that claimant's contract and its rights and interest thereunder were expropriated, and that it is entitled to have their 109770-28-C C-VOL. 64- -7 |