Johnstown Coal & Coke Co. of New York, Inc. v. United States ( 1944 )

Per Curiam:

The plaintiff, on May 22 and June 28, 1933, made two contracts to sell coal to the Government. The plaintiff was in fact acting as the selling agent for two operating coal companies. The contracts each contained a paragraph, quoted in full in finding 2, providing that the contract price was to be increased if labor costs increased the cost of producing the coal contracted for. Three wage increases were made by the producing companies during the period of performance, and the contract prices were adjusted and paid accordingly.

This suit is brought under the act of June 25,1938, giving to contractors who entered into contracts with the Government before August 10, 1933, and whose costs of performance were increased as a result of the enactment of the N. E. A., a right to sue for such increased costs, if they had filed claims in time under the earlier act of June 16, 1934, which had a similar purpose, but was not fully effective.

The plaintiff, which, as we have said, did not produce the coal which it contracted to sell to the Government, incurred no increased costs which are involved in these claims. Since the operating companies which did incur the increased costs, if anyone did, could, under the 1938 act, have sued for them, there seems to be no good reason why the plaintiff should be suing on their causes of action. McShain v. United States, 87 C. Cls. 581. The plaintiff, after the statute of limitations had run against suits by the operating companies, filed a motion to amend its petition so as to show that it was bringing this suit as the agent of those companies, and this court denied the motion. We are not aware of any situation in which it is permissible for an agent, except an attorney at law, to represent another person in litigation.

But apart from the reason just given which would probably prevent recovery by the plaintiff, its suit must fail for lack of proof. There is no adequate proof that increased costs were incurred, or as to what was the amount of such increased costs, if there were any.

The plaintiff’s petition will be dismissed. It is so ordered.