R. J. Peacock Canning Co. v. Commodity Credit Corp. (185 F.2d 894, 1950)

WASHINGTON, Circuit Judge.

This case is an offshoot of Peacock Canning Co. v. Turney, Em.App., 168 F.2d 1019, and much of the factual background is there disclosed.

Appellant sold 205,138 cases of sardines to the Commodity Credit Corporation in 1945 and 1946, under a contract which provided that the price to be paid to the contractor (appellant) should be the ceiling price “ * * * for the appropriate species, can size, pack, and grade as established by the Office of Price Administration for sales to governmental agencies.” The contract, as amended, went on to say:

“If the Contractor has applied or will apply within five days after the date of this * * * amendment, for an adjustment in accordance with Section 1364.112(a) of Maximum Price Regulation No. 184 of the Office of Price Administration, the price payable to the Contractor shall be the maximum ceiling price as adjusted 'by the Office of Price Administration in acting upon such application. CCC will make interim payment of the maximum ceiling price effective on the date of this * * * amendment, provided the Contractor has fully complied with the provisions of the Contract and will make final payment upon proof submitted by the Contractor as to the action taken by the Office of Price Administration upon his application. * * *

“Provided that the prices listed above are subject to discounts applicable to sales to Government Agencies(Exhibit 4, Jt. App. 15A-17A) (Emphasis supplied)

The OPA regulation then in force established a maximum price on sales of sardines to Government agencies, less a 1%% discount for payment within 10 days. Maximum Price Regulation No. 184, § 1364.112, 10 F.R. 8130. The Commodity Credit Corportation, within 10 days after delivery, paid the appellants the sum of $920,691, being the total maximum price so established after the discount of 1%% ($14,020). It is this discount which gives rise to the controversy here.

Under the contract provision quoted above, the contractor applied to the OPA for a price increase. This was refused, and the case was thereupon taken by the contractor to the Emergency Court of Appeals. That court found that the contractor was entitled to a price increase and specified the manner in which it should be computed. Judge Lindley, speaking for the court, stated that the OPA had “agreed that the price paid the producers should be -such as to realize the industry’s prewar normal profit of 25