UNITED STATES v. HAGAN & CUSHING CO., 115 F.2d 849

HANEY, Circuit Judge. Judgment was entered in favor of appellee on a directed verdict in an action brought by appellant to recover alleged •overpayments of prices stipulated in contracts between the parties. The Agricultural Adjustment Act (Act •of May 12, 1933, Ch. 25, 48 Stat. 31, 7 U.S. C.A. § 601 et seq.) imposed a processing tax upon pork and pork products effective November 5, 1933. Appellee, by twelve contracts entered into with appellant between April 22, 1935 and November 20, 1935, agreed to furnish certain supplies, including pork and pork products, to agencies of the United States.

Each of the contracts contained the following provisions: “Prices bid herein include any Federal Tax heretofore imposed by Congress which is applicable to the materials on this bid.

If any sales tax, processing tax, adjustment charge, or other taxes or charges are imposed or changed by Congress after the date set for the opening of this bid and made applicable directly upon the production, manufacture or sale of the supplies covered by this bid, and are paid by tire Contractor on the articles or supplies herein contracted for, then the prices named in this bid will be increased or decreased accordingly and any amount due -the Contractor as a result of such change will be charged to the Government and entered on vouchers (or invoices) as separate items.” None of the contracts contained a provision to the effect that appellee would pay appellant any amount in the event that the processing taxes were held unconstitutional.

The prices specified in the contracts were composite and contained no segregation as to what they included. Appellee did not pay the processing taxes imposed by the Agricultural Adjustment Act for the month of April, 1935, or for any subsequent month. On June 13, 1939, this action against appellee was commenced to recover an amount equal to the processing taxes which the Agricultural Adjustment Act imposed on the pork and pork products covered by the contracts, on the theory that appellee had been overpaid by the amount of such taxes.

Appellant alleged that each of the contracts contained a provision that “prices bid herein include any Federal Tax heretofore imposed by the Congress which is applicable to the material on this bid”; that appellant had paid the full amounts called for by the contracts “which included amounts for which defendant was liable under the supposed authority of the Agricultural Adjustment Act for processing taxes levied by that Act on the products furnished” by appellee to appellant; and that appellee had not paid such processing taxes for the month of April, 1935, and subsequent months.

Appellee denied the allegation that the amounts paid by appellant under the contracts included the amount of taxes imposed by the Agricultural Adjustment Act. At the close of appellant’s evidence, the only evidence to prove the disputed allegation of the complaint was the above-quoted provision found in each of the contracts. Appellee thereupon moved for a directed verdict which was granted on the ground that such contractual provisions were not evidence to prove the disputed allegations. From the judgment entered on the directed verdict, this appeal was taken.

Appellant contends that the Agricultural Adjustment Act was not declared unconstitutional until after the contracts were entered into, and therefore processing taxes were included in the contract prices. Appellee contends that an unconstitutional statute is never effective, and since no tax was actually levied under the unconstitutional act (because the taxing provisions were void), the statements in the contracts that the prices included “any Federal Tax heretofore imposed by Congress” cannot be construed to include taxes not actually levied.

Whatever may be said for these contentions, we think the language of the contract has been too narrowly construed. The contract provides that the prices “bid herein include any Federal Tax heretofore imposed by Congress which is applicable to the materials on this bid”. The next sentence specifically mentions “processing tax”. We think “imposed” as used in the contract is used in the sense of “set forth” by Congress.

In other words, the parties had no intention of disputing or deciding the constitutionality of any act of Congress, but simply intended to say that the bids included the amounts specified or set forth by Congress in any statute, whether valid or invalid. However, it does not follow that because appellee has received the amount equal to that set forth in the Agricultural Adjustment Act, recovery should be granted as a matter of course. Appellant must have a cause of action and a remedy therefor before recovery can be had.

While some equitable remedy such as one for unjust enrichment might be available, it clearly has not been invoked. Likewise, the theory that appellant is entitled to recover for a false representation that appellee would pay the processing taxes is not borne out by either the pleadings or the proof. The remaining remedy is one on contract, express or implied. Since there was an express contract between the parties it must be taken as containing the entire agreement, and therefore an implied contract cannot be raised. Johnson v. Igleheart Bros., 7 Cir., 95 F.2d 4, 8 et seq.

Appellant contends that it “cannot be bound by the illegal acts of its officers in paying out its moneys, and money paid out erroneously or without authority of law can be recovered from the recipient in an action for money had and received”. That principle is inapplicable here. The officer paid the amounts called for by the contracts— neither more nor less. There was nothing illegal or erroneous in paying what the government promised to pay. Finally, we think it clear that there was no remedy on an express contract.

The second sentence of the provisions of the contracts quoted above, provides in part: “If any * * * processing tax * * * [is] imposed or changed by Congress * * * and [is] paid by the Contractor * * * then the prices named in this bid will be increased or decreased accordingly * * * While a reasonable argument could be made to the effect that the words “by Congress” meant “by act of Congress judicially construed”, it would be of no avail here, because the prices named in the bid were to be increased or decreased only if the taxes changed were “paid by the Contractor”.

It is admitted here that the taxes were not paid by appellee. Compare: Cohen v. Swift & Co., 7 Cir., 95 F.2d 131; Continental Baking Co. v. Suckow Milling Co., 7 Cir., 101 F.2d 337; Moundridge Milling Co. v. Cream of Wheat Corp., 10 Cir., 105 E.2d 366. See 7 C.J.S., Action of Assumpsit, §§ 4, 9c; Restatement Law of Restitution, §§ 5, 48.