United States v. Hougham

PETITIONER:United States
RESPONDENT:Hougham
LOCATION:Mapp’s Residence

DOCKET NO.: 24
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 364 US 310 (1960)
ARGUED: Oct 18, 1960
DECIDED: Nov 07, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – October 18, 1960 in United States v. Hougham

Earl Warren:

Number 24, United States, Petitioner, versus E. B. Hougham et al.

Mr. Barnett.

Wayne G. Barnett:

Mr. Chief Justice, may it please the Court.

This case is here on certiorari, the United States Court of Appeals for the Ninth Circuit to review its judgment in the civil action brought by the United States to recover statutory damages for the fraudulent purchases of government property.

Respondent Hougham is a used car dealer, the other three respondents are veterans, who had been found fraudulently obtained veteran’s priorities certificates and used them to purchase for Hougham some $79,500 worth of surplus trucks and trailers.

The fraud consisted of misrepresentations and their applications for these certificates that the property was to be used by them in their own businesses whereas in fact they had no businesses in purchasing the property for Hougham.

Those findings were affirmed on appeal and they are not an issue here.

The only question here is the measure of recovery to which the United States is entitled.

The statute, Section 26 (b) of the Surplus Properly Act of 1944, which is set forth in our main brief at pages 2 and 3, provides three alternative measures of recovery.

The defrauder is required to pay either $2,000 for each fraudulent act plus double damages or if the United States shall so elect, a sum equal to twice the consideration agreed to be given to the property.

Or again, if United States shall so elect to restore the property itself and forfeit you on this page.

Now, neither the last option nor actual damages under the first option are involved here.

And the choice here is narrowed to recovery of either $2,000 for each act or double consideration damages under the second option.

The Government’s claim is that it is entitled to recover under the second option 26 (b) (2) that is twice the $79,500 paid for the property or a total of a $159,000.

The District Court affirmed by the Court of Appeals held that we were entitled to recover only under the first option that is $2,000 for each act.

Felix Frankfurter:

What was each act in this case?

Wayne G. Barnett:

The Court held that the — the only accessible acts were the applications for the priority certificates.

Felix Frankfurter:

What?

Wayne G. Barnett:

The fraudulent applications, not as we claimed each purchase.

Felix Frankfurter:

How many applications were —

Wayne G. Barnett:

There were only four applications producing a — a judgment.

Felix Frankfurter:

Four documents that is.

Wayne G. Barnett:

Four —

Felix Frankfurter:

Four documents.

Wayne G. Barnett:

Yes, yes.

And he accessed $2,000 for each of those four, giving us a judgment of $8,000.

Felix Frankfurter:

And you claim what?

Wayne G. Barnett:

Well, we — they argued it that each purchase was an accessible act.

We did not appeal on that ground and do not raise it here.

Our only argument here is that we’re entitled to recover under the second option rather than the first that is double consideration damages instead of $2,000 assessments.

Earl Warren:

How much was involved in the deal?

Wayne G. Barnett:

The — the purchases were for $79 — $79,500.

It’s about 150 trucks and trailers.

Earl Warren:

A what?

Wayne G. Barnett:

Trucks and trailers, I think mostly trucks, a total of 150 items.

Earl Warren:

Involving $79,000?

Wayne G. Barnett:

Yes, that was the purchase price, price of which facility.

We don’t know what the value it was.

Earl Warren:

Yes.

Wayne G. Barnett:

Now, in its original complaint, the Government asked for $2,000 assessments under the first option on the basis of the 150 items purchased as we asked it initially for $2,000 on 150 purchases.

However, we thereafter file the motion to file a Second Amended Complaint in which in addition to making various corrections in factual allegations, we change the prayer for relief and ask instead for double consideration damages that is twice the $79,000 or $159,000.

Respondents opposed the amendment and in the conferences with the Judge-In-Chambers, the trial judge indicated that he thought the original complaint was an irrevocable election and we couldn’t change the prayer for relief to ask a double consideration damages.

Government counsel thereupon withdrew that motion to file the First Amended Complaint and with this Court did file a Second Amended Complaint making only the changes to the factual allegations and keeping the original prayer for relief.

Charles E. Whittaker:

Now, then, as I understand it Mr. Barnett, the Second Amended Complaint did pray for the $ 2,000 —

Wayne G. Barnett:

Yes, sir.

Charles E. Whittaker:

— per debt — for —

Wayne G. Barnett:

Yes.

Charles E. Whittaker:

— the transaction.

Wayne G. Barnett:

And we had withdrawn the First Amended Complaint and we do not rely on it.

Charles E. Whittaker:

Is that the one you want to trial on now?

Wayne G. Barnett:

Well, we say we went to trial on the pretrial order.

I haven’t come to that.

Charles E. Whittaker:

Oh.

Wayne G. Barnett:

What then happened was after further pretrial proceedings, the District Court entered a formal pretrial order under Rule 16 of the Federal Rules.

The crucial paragraph of that order appears at page 101 of the record, that’s paragraph (b) there.

That recites the trial court’s previously indicated view that the original complaint was an irrevocable election and that we couldn’t change it.

It states the Government’s contention that the original complaint was not irrevocable and the Government’s election if not barred by the original complaint of double consideration damages under the second option.

Felix Frankfurter:

Did you — did I hear you say that you withdrew the amended complaint which the judge disallowed?

Wayne G. Barnett:

The First Amended Complaint, we never got to a formal ruling.

Felix Frankfurter:

So (Voice Overlap) —

Wayne G. Barnett:

We filed it and it’s been an informal conferences.

The judge indicated that he would not allow it but there’s no ruling on the record.

Felix Frankfurter:

Well, let me be at — let me understand it very explicitly.

In the sec — in the amend — in the First Amended Complaint, you asked specifically relief and that you regard as option two —

Wayne G. Barnett:

Yes

Felix Frankfurter:

— the Government’s elective.

Wayne G. Barnett:

Yes, yes but —

Felix Frankfurter:

And — and if you were told that that amended would be disallowed?

Wayne G. Barnett:

Yes, sir.

Felix Frankfurter:

Is that right?

Wayne G. Barnett:

Yes, sir.

Felix Frankfurter:

Now what state very accurately had you do, just what happened?

What happened to that amended complaint?

Was it dropped?

Wayne G. Barnett:

It was withdrawn by the Government, without being — any — any ruling being in and on record.

Felix Frankfurter:

But it was withdrawn.

Wayne G. Barnett:

It was withdrawn and —

Felix Frankfurter:

You didn’t stand your ground and say you are entitled to file it and you —

Wayne G. Barnett:

We did not.

Felix Frankfurter:

— entered the exception on the adverse ruling.

Wayne G. Barnett:

We did not do that, and we do not — we do not here rely on this.

William J. Brennan, Jr.:

You mean withdrawn, meaning this is not filed (Voice Overlap) —

Wayne G. Barnett:

We withdrew the motion and so the motion to file was never acted on — of record.

Charles E. Whittaker:

Actually, it was never filed.

If you filed a motion —

Wayne G. Barnett:

We’ve got the motion to life.

Charles E. Whittaker:

— for leave to file —

Wayne G. Barnett:

Yes.

Charles E. Whittaker:

And then before action, you withdrew the motion for leave.

Wayne G. Barnett:

That’s precisely right Mr. Justice.

Felix Frankfurter:

You — you asked that you — you make that your complaint.

The Court indicated it wouldn’t grant the motion and you withdrew the motion —

Wayne G. Barnett:

That’s right.

Felix Frankfurter:

— to make that the basis of the litigation, is that right?

Wayne G. Barnett:

We did not stand on that and we do not stand on it here.

We stand it here on the pretrial order —

Felix Frankfurter:

I understand.

Wayne G. Barnett:

— which does expressly state our election and in itself states as the Federal Rules provide that it governs the issues to be litigated in the course of the trial.

Felix Frankfurter:

And then I — jumping ahead of the — this game if I asked or that when this gets done to a — to the issue of procedure or pleading —

Wayne G. Barnett:

Well, the reason that —

Felix Frankfurter:

— rather than the subsequent matter whether if by initially appropriate make explicit complaint in allegation.

The Government had emission as whatever choices, thought was ultimately to this.

That is the case we have here, is it?

We have a more complicated case which is my —

Wayne G. Barnett:

Well, I have spelled out the — these procedures not because we think they’re important but because respondents do make the argument that we weigh our claim to double consideration damages.

Felix Frankfurter:

But my question is a different one.

Is there a ruling or have you before it a ruling which says the Government may not, if it takes appropriate steps seek to enforce anyone of the three alternatives?

Wayne G. Barnett:

We have a ruling by the District Court that we are bound by the first election.

We have a ruling by the Court of Appeals that disagrees with the District Court on that ground, but affirms the decision on the ground that the District Court is not bound by our election but that the District Court itself has discretion to choose among the several remedies.

Felix Frankfurter:

You mean, in this case or —

Wayne G. Barnett:

In this case.

Felix Frankfurter:

— or in general proposition that if the Government initially, I’d like you to answer my question.

Wayne G. Barnett:

Yes, sir.

Felix Frankfurter:

Whether if the Government initially had said in appropriate procedural language having three — three choices for reliefs, we choose number 2.

Are we to rule on the basis of this record that the Government couldn’t do that?

Wayne G. Barnett:

I’m not sure I — I understand.

As I understand it, that’s what the Court of Appeals did rule.

Felix Frankfurter:

Well, alright if it ruled, but then it didn’t rule that.

Wayne G. Barnett:

It ruled that —

Felix Frankfurter:

It didn’t.

Wayne G. Barnett:

Our election, even though properly made wasn’t buying it.

It’s that I understand it to be your question.

William J. Brennan, Jr.:

Well, is not in effect to say that no matter what the Government is —

Wayne G. Barnett:

Yes, that’s what the Court —

William J. Brennan, Jr.:

— desired nor how it may have evidence its choice —

Wayne G. Barnett:

Yes.

William J. Brennan, Jr.:

— that the choice was not to be made by the Government but by the trial judges as a matter of discretion.

Wayne G. Barnett:

Yes.

William J. Brennan, Jr.:

That’s the issue we have, isn’t it?

Wayne G. Barnett:

That — that is what I understand to be the Court of Appeals holding, though, I must say, it is not entirely clear what the Court of Appeals is saying.

Now, I understand that to be what the Court of Appeals said.

Now, I may —

Felix Frankfurter:

What was important to me what is says there, or it’s all tangled up with the kind of procedure that follower —

Wayne G. Barnett:

No.

Felix Frankfurter:

— here before you started out with the choice that you have, would reject it.

Wayne G. Barnett:

No, the reason I’ve gone into this is the respondents assert various other ground in support of their judgment which they’re entitled to do and I’m attempting to answer all of those, as well as the Court of Appeal’s ground.

Felix Frankfurter:

To me, there were great deals of difference, whether we’ve got here a confuse (Inaudible) Court of Appeals would taken, which probably arrests on the procedure and development in this case, all under the issue is unclear whether it doesn’t quite when you put it.

Wayne G. Barnett:

The Court of Appeals does not rely upon these procedural myths.

Felix Frankfurter:

Yet, you stated isn’t clear or did decide it.

Wayne G. Barnett:

No, it does decide that the District Court is not bound by the Government’s election.

Now, precisely the grounds for that on how the District Court is supposed to make the choice is not clear from its opinion, but I think it is clear if that is what he is holding.

(Inaudible)

Wayne G. Barnett:

Now —

Charles E. Whittaker:

Even if the — if the Court of Appeals is wrong about that, you still have to show that the question was lie there, don’t you and that you haven’t waived it in the District Court?

Wayne G. Barnett:

Yes and that’s the arguments respondents to make that I — I’m trying to anticipate and ask, that we made our election in pretrial order and the Court — the District Court did expressly rule upon it in the final conclusions of law on the ground that the original complaint was in irrevocable election and we cannot there have to change it.

William J. Brennan, Jr.:

I know this is only summary Mr. Barnett, you are going to — I hope give a few minutes to reflect that the Government took the $8,000 (Inaudible)

Wayne G. Barnett:

I — I wasn’t —

William J. Brennan, Jr.:

Just trying to get —

Wayne G. Barnett:

I wasn’t in fact planning so much time on that —

William J. Brennan, Jr.:

Well, I wish make it better.

Wayne G. Barnett:

The — I — the original judgment entered by the District Court for $8000 was not stated into an appeal.

We accordingly filed judgment liens against respondent’s property.

The respondents came around and wanted their property release from the liens and offered to pay $8000 which we accepted and released the liens, and they now contended that made the case moot.

I can only say that they have not cited the single case in support of that proposition and we do not know if they —

William J. Brennan, Jr.:

Are there papers passed in connection with that?

Wayne G. Barnett:

No papers other than acknowledgement of the payment and we see the way he meant.

William J. Brennan, Jr.:

Was the record — was that the judgment discharged the record?

Wayne G. Barnett:

I do not believe it was.

I think — I think the reason it wasn’t, though I don’t think it would make a difference whether we got some inclination that the respondents were going to claim that it was moot and at that point, we decided not to discharge the judgment just for that reason.

William J. Brennan, Jr.:

It will identify, make some difference that you have it.

Wayne G. Barnett:

Well, they were making the argument and there’s no point in giving them more ammunition to make it with, but we — no, no authority, the payment of a smaller judgment in any way acceptance, in any way wage or claim to a larger amount or an appeal on the ground.

Earl Warren:

Even if you discharge the judgment?

Wayne G. Barnett:

I would think not Your Honor.

The judgment if not stated is a judgment outstanding requiring him to pay $8000 and he pays it.

I think it is by force of law at this charge.

Now, if that judgment is — is reversed on appeal and it is still a, I think, appealable order even though he satisfied it.

The parties — if he has succeeded the parties, you turn to the original positions.

Charles E. Whittaker:

Was that satisfaction of the judgment Mr. Barnett?

Where — has there been a satisfaction of the judgment?

Wayne G. Barnett:

Not — not entered.

He paid the $8000, if we acknowledge receipt up.

Charles E. Whittaker:

That’s what the judgment before, $8000.

Wayne G. Barnett:

Yes, that’s right.

Charles E. Whittaker:

You took $8000.

Wayne G. Barnett:

That is right.

Charles E. Whittaker:

Was that a satisfaction of the judgment?

Wayne G. Barnett:

I — I’m not sure how — how I can answer that.

We did not enter a — a stipulation to discharge the judgment.

Certainly, we cannot collect anything more, that were the only judgment ultimately to be affirmed.

We have a number of citations in our opening brief on the question and respondent.

Wayne G. Barnett:

As I say, it has no authority to support that position.

Tom C. Clark:

(Inaudible) the case gone appeal (Inaudible), appeal.

Wayne G. Barnett:

That is right.

I was —

Tom C. Clark:

You’re claiming it’s for amount.

Wayne G. Barnett:

It was on the — it was pending in the Court of Appeals as I remember it.

At that time, the notes were given and final payments on the notes actually were not until after the Court of Appeals’ decision but I don’t think that makes any difference.

On — getting to the grounds for the Court of Appeals’ decision, which as we understand it is — it’s just that the District Court is not bound by our election.

I would like to say, first and which I think is a complete answer is that the District Court never made the finding for the Court of Appeals’ reports to affirm.

The District Court’s conclusions of law explicitly and exclusively are based upon the ground that the original election was irrevocable as a matter of law, not an exercise of discretion by the District Court to choose for itself among the remedies.

It just held that we were bound by our first election.

But passing — passing that difficulty, we think it’s equally clear that the District Court does not have the discretion to choose among the remedies.

The statute on that question is as ex — as explicit as it is possible seems to us first statute to be.

It says that the defaulter shall pay $2,000 or, if the United States shall so elect, shall pay twice the consideration agree could be given.

Or, if the United States shall so elect, return the property and forfeit the amount of pay.

Now, if the Court of Appeals suggested that the reason for the words at the election of the Government was to make it clear that the remedies were not accumulated, but not — we think obviously is not an explanation because the disjunctive or by itself makes them alternative instead of cumulative.

And the only possible function for the words, if United States shall so elect, is to make clear who it is and how the choice is to be made, namely is to be made by the Government.

Now, since the statutory expressly gives United States the right to recover whichever of the three alternatives it elects.

We think it’s clear that upon a timely and proper election, there’s no function that the District Court other than the traditional one of determining whether the Government has proved its case and established the amount to which it is entitled under the election.

Now in particular, I would like to say that respondent’s suggestion that — and this maybe behind the Court of Appeals’ decision that the Government’s election should be disallowed unless the Government affirmatively proves actual damages proportionate to the recovery, which simply defeat the purpose statute which as this Court acknowledge in the Rex Trailer case and through 50 U.S. was to provide a — a liquidated measure of recovery for damages which are in their very nature difficult or even impossible to prove.

Now, I don’t want to be understood of saying that there are no judicially and forcible limits on what the Government elects.

We can acknowledge this — the possibility at least of the case arising in which a literal application of one of the remedies would produce a — a — recovery so grossly disproportionate to any possible remedial purpose that it might by the constitutional limitations or possibly limitations implicit in the statute.

But, all that mean is that when that happens in any given case, the Court properly can and should disallow the recovery.

It doesn’t mean that the Court has general discretion in all cases to choose among the three alternatives, so long as the Government’s choice does not produce an unconstitutionally excessive result or otherwise illegal result if we submit must be given effect.

I would like also to answer the other arguments on which the respondent seeks to sustain the judgment, which were not adapted by the Court of Appeals.

I’ve dealt already with the argument that we didn’t raise the issue in the trial court.

We did make our election in pretrial order and that was the controlling order under a new case and the Court ruled them.

He makes also another argument which depends upon that one.

He argues that the election should not be allowed because the change of election should not be allowed, because of the prejudicial.

The prejudice that he claims is that the case was tried on the — under the first option of the $2,000 pack assessment theory and he says that he would therefore be prejudiced if he now apply a different measure.

Wayne G. Barnett:

But the fact is that he made the election before the trial and not after the trial.

He made it —

Felix Frankfurter:

During your complaint, the original complaint set forth the ground on which you asked double — what kind of damages did you ask for?

Wayne G. Barnett:

I believe our original complaint has a general prayer for double damage.

I’m not — I’m not certain to that plus the two thousand plus double damages.

Our second —

Felix Frankfurter:

They doubled the amount of any damages?

Wayne G. Barnett:

Yes.

Our —

Felix Frankfurter:

And it must be set forth from specific damage of the Government.

Wayne G. Barnett:

It — it didn’t.

Our Second Amended Complaint doesn’t even ask for double damages.

Felix Frankfurter:

No, I’m — I’m speaking to the first.

Wayne G. Barnett:

I do not —

Felix Frankfurter:

Because it may be enough what’s in the mind of that fee.

What was in his mind is — I just want to read it from his opinion.

He was thinking about this business of damage and finds some indications the statute is concerned with, with allegations of damage.

Or, if damages again are not ascertainable then you will go to liquidate the damages.

Charles E. Whittaker:

Well, but isn’t it true that this is the language of subdivision 1 of Section 26 and it is not in the disjunctive, it’s $2,000 and damages.

Wayne G. Barnett:

Yes, that is right.

That is right.

And — and we’ve —

Felix Frankfurter:

But it does refer to damage?

Wayne G. Barnett:

Well, that the — the additional recovery of double damages, it does.

Felix Frankfurter:

Yes.

Well, if double damage means that you are asserted some damage.

Wayne G. Barnett:

Well —

Felix Frankfurter:

And therefore, you must have been in particular.

You must be particular of it.

Wayne G. Barnett:

I do not believe we did sir.

Felix Frankfurter:

So how can you double any damage unless you can support what a single one is?

Wayne G. Barnett:

I, I — I’m not sure we would have to plead it.

But in the event, we dropped any claim for double damages in the Second Amended Complaint and in the pretrial (Voice Overlap) —

Felix Frankfurter:

I don’t understand all that.

What I’m trying to spell it out, I usually like to find out why the Court of Appeals is wrong if I’m to find it’s wrong.

That’s my present endeavor.

Wayne G. Barnett:

Well, I would like to —

Felix Frankfurter:

Well then it’s mine.

Wayne G. Barnett:

I think it — I think it is concerned with the relationship of the recovery to the damage —

Felix Frankfurter:

Alright.

Wayne G. Barnett:

— as I’ve suggested, but we contend that as Rex Trailer made clear.

We can’t be required actually to prove damages to support just our liquidated recoveries.

Felix Frankfurter:

But, I was led to this inquiry by your suggestion, there might circumstances whether recovery would be so outrageous to even invoke the constitution.

It seems to be impossible.

Wayne G. Barnett:

Well, there was a constitutional issue involved in Rex Trailer.

And the kind of situation I have in mind will be more likely to arise into the first option, the $2,000 assessments.

Say for a hundred desk papers, if we try to assess $2,000 for each desk paper regarding a recovery of $200,000, I think that might be this —

Felix Frankfurter:

Cruel and unusual punishment in civil cases?

Wayne G. Barnett:

Yes — well — I, I don’t — I don’t want to resolve what the constitutional limits might be.

I’m only — I only wish to acknowledge that there might be some.

The — the other argument which respondents make here in defense of their judgment again not relied upon by the Court of Appeals is that, 26 (b) (2) the double consideration measure is inapplicable to the transactions involved here as a matter of law, that has two aspects.

Well, the first of which is suggested by the Court of Appeals, so I don’t think that is it’s holding.

The Court of Appeals suggests that it may not be applicable at all to executed transactions only to a transaction where there has been an agreement to purchase which has never been executed.

Now, there’s nothing in the language of the Section to suggest that distinction and we do not understand why it would ever be more posit in one case that the other.

If anything, it’s a less burdensome recovery in an executed transaction than in an unexecuted one.

In the executed transaction, the defaulter does end up paying three times instead of twice the price for the goods.

But, for the third payment, he got the goods and he’s entitled to keep them.

And therefore, he got the benefit of his bargain and pays his damages only the same amount that the — that he would in an unexecuted transaction.

And certainly, there’s no reason to prefer the one who gets the fruit to this bargain over the one who discovered before he’s able to do so.

The respondent’s argument here is slightly different.

Wayne G. Barnett:

He agrees that it applies generally to execute transactions, but contends that the transaction must, at one point, or a (Inaudible) in time have been executory.

He distinguishes between a bid and award with a high max before payment and an over-the-counter sale with simultaneous payment.

Presumably on the ground that the statute refers to consideration agreed to be given and an over-counter — over-the-counter sale, there’s consideration given but none agreed to be given.

Well, first the record does not support his characterization of these transactions, but more than that the — the distinction we think is of no substance in over-the-counters — even in over — over-the-counter sale, the parties necessarily agreed on the price to be paid.

And there is an agreement which would in fact support a maximum contract if by miscounting the change or otherwise, it turned out to be not paid to full price.

And finally, we think, there is no possible reason to distinguish the measure of recovery on the basis of whether or not there was a measurable (Inaudible) or time between the agreement and the payment.

I would like if I may to reserve the rest of my time for rebuttal.

Earl Warren:

Mr. Conron.

Calvin H. Conron, Jr.:

May it please the Court, counsel for the Government.

First, in answer to Justice Frankfurter’s inquiry with respect to the record as to the contents of the prayer in the first complaint, the prayer asked for a monetary amount in damage of each defendant and I’ll name only one.

They are all typical.

Against the defendant, Owen Dailey had asked for $138,000.

That figure is right there on the basis of $2,000, a purchase as alleged in the complaint.

In other words, $2,000 an act and the material part of what you inquired about says this, “Plus double the amount of damages which this Court may deem together with cost and interest in cost of this suit”.

The complaint in no respect, in any place alleges that the Government suffered any monetary damage of any kind or damage of any character except a so-called benefit that it might have been deprived of by having one otherwise not entitled to purchase of product at a fair price, in other words, the selection of the customer.

It is our position, if the Court please, that this problem that the Government poses has never been properly presented to this Court to the Circuit Court of Appeals or to the Federal District Court.

As counsel says, “It came into the case at a time not when the Government had indicated that — the Court had indicated possibly that $2,000 per act was — was improper because an election is made.

It came before the Court at a time when the Government was arguing $2,000 an act in response to a motion for summary judgment and the point was made that the allegation — did — the complaint would not support a prayer for damages for double consideration.

Now, that is the status of the case and in the heat of that argument, the Government voluntarily withdrew its motion to file this First Amended Complaint never did present it or any other complaint in which any prayer for damages other than $2,000 per act was sought for by the Government.

John M. Harlan II:

Didn’t they get a back on the track again through the pretrial order or —

Calvin H. Conron, Jr.:

I don’t think they did, Your Honor.

And my reason for that is — is two-fold.

In the first place, the pretrial order does not say that the Government wanted a ruling of the trial court.

It abstractly, and as I put it in my brief, out of thin air brought out the assertion that the Government contends that it’s entitled to claim $2,000 per act but they never asked the District Court for a ruling.

It is inserted in that pretrial order out of thin air.

It’s not contained in any of the proceedings of the pretrial, there was no request made.

The purpose of pretrial is to consider the advisability, the important purpose.

A pretrial is to consider the advisability of amendment to the pleadings, had the Government chosen at that time to make the contention, rather than at the time it had previously withdrawn, it should have said, “I want to file the minute it complained here.”

Charles E. Whittaker:

Did he asked (Inaudible) to a — a pretrial (Voice Overlap) —

Calvin H. Conron, Jr.:

No, Your Honor, no request was ever asked.

Calvin H. Conron, Jr.:

It was not — even the subject was not brought up at pretrial.

It was inserted in the pretrial order prepared by the Government after the pretrial had taken place.

And no request to file an amendment to the pleadings was ever presented to or ruled upon or considered at the pretrial.

That’s why I assert that there never was the question properly presented in the District Court.

Felix Frankfurter:

I’m a little troubled by what you’ve just said because our attention was called to page 101.

The following issues of law and no others remained to be litigated upon the trial and that statement of the issue is to be litigated assigned by the District Judge.

Calvin H. Conron, Jr.:

It certainly is Your Honor, but it was inserted there not as a result of whatever was taken in that course of the pretrial.

That’s the Government’s orders, not ours.

Felix Frankfurter:

Well, but it’s the judge’s order.

Calvin H. Conron, Jr.:

It’s the judge’s —

Felix Frankfurter:

The court —

Calvin H. Conron, Jr.:

— order.

I have to admit that.

Felix Frankfurter:

The court said —

Calvin H. Conron, Jr.:

And it’s asserted in there, but I say it’s asserted improperly.

William J. Brennan, Jr.:

But you — you would approve it yourself Mr. Conron, as to form and context.

Calvin H. Conron, Jr.:

Well, I wasn’t aware that — of that or the significance at the time I did it.

William J. Brennan, Jr.:

Well, isn’t that 105 and is that your signature?

Calvin H. Conron, Jr.:

That certainly is.

I beg no contention to the contour.

William J. Brennan, Jr.:

And proved that the form and context can certainly —

Calvin H. Conron, Jr.:

Well, and I’ll answer that the — that I have no particular objection to the context of the order, but I claim it does not raise the issue.

Felix Frankfurter:

I don’t what context is a context.

William J. Brennan, Jr.:

It says context.

Calvin H. Conron, Jr.:

Yes, it does.

The pretrial says, “We have previously contended.”

Well, they have not.

And then we reasserted here to preserve it.

The point previously made for purposes of appealing.

There’d been no point made.

John M. Harlan II:

Yes, but any time, they came down (Inaudible), you said that this question on what the Government has the right — or likely, it doesn’t depend upon what you planned in your complaint?

Calvin H. Conron, Jr.:

I’m — I’m coming to that and —

John M. Harlan II:

Subsequent complaints that all turns on what the Government wants to claim at the time of judgement.

Now, that’s the point that they preserved and (Voice Overlap) —

Calvin H. Conron, Jr.:

Alright, alright.

William J. Brennan, Jr.:

And in addition Conron, look at paragraph 9 at page 104, the pretrial order.

The foregoing admissions having been made by the parties and the parties have specified the foregoing issues remaining to be litigated.

This order shall supplement the pleadings and govern the course of the file of this course unless modified to prevent manifest injustice, page 104 of the record, the order that you signed.

Calvin H. Conron, Jr.:

I have to be bound by that, but I — I hadn’t finished discussing that pretrial order.

William J. Brennan, Jr.:

Well, I gather you said (Voice Overlap) —

Calvin H. Conron, Jr.:

The pretrial order itself —

William J. Brennan, Jr.:

— maybe I misunderstood you but I thought that your argument was that, what appears at 101 in relation to this issue is meaningless because it was not followed by some motion to amend the pleadings.

Calvin H. Conron, Jr.:

That’s what your pretrial ruling required (Voice Overlap) —

William J. Brennan, Jr.:

I mean but that’s what — that’s your argument.

Calvin H. Conron, Jr.:

That’s right, that’s right.

William J. Brennan, Jr.:

And yet you said that in paragraph 9 and you signed it that this order supplements the pleadings and governs the course of trial.

Why isn’t that conclusive?

Calvin H. Conron, Jr.:

Alright, then let’s — let us supplement the pleadings.

The pretrial order still says that the Government is contending $2,000 per act.

The Government has only mentioned part of its pretrial order and I refer you to page 94 of the pretrial order in the record.

So what do we have here?

Taking it in the position, the most favorable to the Government.

The Government is asking the pretrial court to make a selection between $2,000 per act and doubled consideration.

It’s leaving it still up to the discretion of the Court, while the Government’s voluntary action taken at the pretrial order.

Now, I seek further, the point is not properly before this Court because why?

The Government elected to go trial, on the second demand and complaint, well-knowing that it sought $2,000 per act.

And incidentally, I forget just which one of you gentlemen inquired about — about the number and the size of this so-called fraud and it’s — it’s rather important here, in consideration of these acts and so forth and whether double consideration would be appropriate.

As the trial court found, there were only four activities or actions taken by all of these gentlemen that had anything questionable about it.

They signed this application for the right to later purchase if they wanted to surplus property.

Now, the question was asked by some of you gentlemen, how many items were involved and what was the size of them?

Calvin H. Conron, Jr.:

And counsel replied about 150 trucks.

Actually, the record I — no, he didn’t intentionally misquote it.

But actually, the record will show that only about 11 sizeable articles in value of over $2,000 were involved and a 150 or 60 or 70 may be even more that he mentioned than that were articles of — of insignificant value or small monetary value.

I have in mind an order of 60 or 70 trailers, mount trailers.

I have in mind an order of tires, many items of tires.

Let’s say worth, $7 and $14 and they started out asking for $2,000 tires.

$2,000 for $27 bomb shelters and they had only about a dozen, and I’m speaking at round figures, articles of substantial value that embraced the total of $2,000 per act figure.

I brought up this rather stupendous amount in the prayer because of the — of the numerical largeness of the number of a great many articles of insignificant value, rather than — than a terrific amount of — of big articles.

Now, that has a bearing on — on whether or not when you have your — your remedy whether it’s going to be as was suggested by Justice Frankfurter to be a deprivation of property without due process or severe — so severe as to be penal.

William J. Brennan, Jr.:

Mr. Conron, when did the — these proceedings, was that they filed itself — it was narrowed down to the four acts?

Calvin H. Conron, Jr.:

Yes.

William J. Brennan, Jr.:

That happened after the trial not —

Calvin H. Conron, Jr.:

Yes.

William J. Brennan, Jr.:

— before the trial?

Calvin H. Conron, Jr.:

Yes, the case was argued on based on $2,000 per act.

In my argument, that the only acts that was — were tricks or devices which is the penalty that act specify.

William J. Brennan, Jr.:

Well, was that at the end of the trial when all the evidence was in that you have the arguments?

How many acts were actually involved for purposes of Section 8?

Calvin H. Conron, Jr.:

Well, we contended all the way down the line and the trial court at the end and I quote that in my brief.

William J. Brennan, Jr.:

But you — but that the ruling was not until the end of the trial?

Calvin H. Conron, Jr.:

The end of the trial after all the evidence was in.

Earl Warren:

Well Mr. Conron, to get back to the pretrial motion and the procedure during the trial, and the actions of the Court and its conclusions of law didn’t — on page 116, the last paragraph on that page, doesn’t it — it says there, “This Court allowed the filing of said Second Amended Complaint in paragraph 75 of the pretrial conference order.

It is recorded that the plaintiff contends that it is entitled to double the amount for the sales price of the vehicles described in the Amended Complaint — Second Amended Complaint, namely twice the sum of $13,000 some dollars for Count I, prices sum of $38,000 for Count II, and twice the sum of $27,000 for Count III.”

That plaintiff contended that it is entitled to make it selection at anytime prior to judgment and that plaintiff selects in the event of judgment in his favor to receive his liquidated damages of a sum equal to quite — twice consideration agreed to be given by the United States.

And then it goes on to — to say that the — that the Government made its selection in the first place and that it could not maintain that.

Calvin H. Conron, Jr.:

Now, Your Honor.

I am right or wrong depending upon whether the pretrial order properly presented the issue.

If it did, I would concede that that would perhaps be a proper finding.

Earl Warren:

I see.

Calvin H. Conron, Jr.:

But I contend that there never was a proper pretrial order.

Calvin H. Conron, Jr.:

It never was before the Court or raised it all of the trial.

We went to trial on the Second Amended Complaint, asking for $2,000 per act.

And therefore, the finding that you quote, “I contend to be surplus, each being outside of the issues presented to the Court.”

Re-finding of the Court is on findings 3, 9, and 11, which appear in transcripts at page 107 through 113.

Anyone of them are significant thereof, and take finding 3 which is in reference to the first count.

And that was (Voice Overlap) —

Earl Warren:

That’s the one — that’s the one I’m reading from, 3.

Calvin H. Conron, Jr.:

No, I don’ think so —

Earl Warren:

The conclusions —

Calvin H. Conron, Jr.:

— Your Honor.

Earl Warren:

— or — oh that’s from the conclusions law.

Calvin H. Conron, Jr.:

That’s right.

Earl Warren:

Number 3, yes.

Calvin H. Conron, Jr.:

Now, I have in mind page 107 of the transcript.

Earl Warren:

Oh, yes.

Calvin H. Conron, Jr.:

And there, the Court finds that the sum of $2,000 per act is not appropriate not because the Government had made an election but because the evidence wouldn’t support that there have ever been any money as agreed to be paid.

That is the basis of the trial court’s judgment and it sound — it’s the trial court’s — it was determination that Section 26 (b) (2) in the Surplus Act was improper to the facts and appropriate to the facts in this case because the trick did not involve a monetary scheme.

This trick was a representation as to quality or — or to timeliness only.

The dollar part of the transaction was fair and honest to everybody.

There was no deception or advantage gain or loss by the Government monetary wise and that was a consideration that the Court found to support the judgment and necessarily the conclusion that was inserted in the findings out of thin air which was never before the Court had initiated that they have made an election.

However —

Felix Frankfurter:

Could you satisfy my curiosity by telling me —

Calvin H. Conron, Jr.:

Yes, I’m trying.

Felix Frankfurter:

— Mr. Conron who addressed at the pretrial conference order.

Calvin H. Conron, Jr.:

Mr. Lavigne of the United States —

Felix Frankfurter:

Is it the counsel —

Calvin H. Conron, Jr.:

— Attorney’s Office.

Felix Frankfurter:

— counsel address?

Calvin H. Conron, Jr.:

Yes.

Felix Frankfurter:

Because whatever it may be, there’s certainly of a flat contradiction between orders set forth on —

William J. Brennan, Jr.:

Page 94.

Felix Frankfurter:

On page 94 —

Calvin H. Conron, Jr.:

That’s right.

Felix Frankfurter:

That action flat contradiction as they did to (Inaudible) should be it and then you have — of this also.

Calvin H. Conron, Jr.:

That’s right.

Now, what actually is what the Government (Voice Overlap) —

William J. Brennan, Jr.:

Well, Mr. Conron, (Inaudible) before whom was this trial, Judge Jertberg?

Calvin H. Conron, Jr.:

Judge Gilbert Jertberg, yes in the —

William J. Brennan, Jr.:

And he allows the counsel of that, the pretrial.

Calvin H. Conron, Jr.:

He ordered this — this one to be grant by counsel.

William J. Brennan, Jr.:

Is it not together but by Government counsel?

Calvin H. Conron, Jr.:

By the Government counsel.

Hugo L. Black:

Well, (Inaudible)

Calvin H. Conron, Jr.:

It’s unusual.

Now —

Hugo L. Black:

What do you mean he was not given any chance to go over and makes suggestions?

Calvin H. Conron, Jr.:

No, I was not Your Honor.

Hugo L. Black:

Did you object to that?

Did you ask for the right?

Calvin H. Conron, Jr.:

Frankly, I did not raise a timely objection to the form of the findings.

I have to accept them and need them if the heard —

Hugo L. Black:

Did you object — did you object to not being allowed to participate in it?

Calvin H. Conron, Jr.:

Well, I was allowed to participate to — in this — to this extent that — and I cited it in my brief.

I have — I have — won’t go back to the record right now.

It’s in the — the —

Hugo L. Black:

Did you sign it yourself?

Calvin H. Conron, Jr.:

That’s right.

The memorandum on — on the transcripts to the Court’s opinion and the findings of the close case which appeared I think at Court 37 following where the Court gave an oral summary and I quote a part of it in a — in a footnote in my — in my brief.

He gave an oral summary of what he thought and how he thought the case should be decided in which he said as he was con — he was impressed with the $2,000 per act on the four applications only.

And then he direct that he says, “The Government will prepare findings in accordance with my views expressed here.”

Calvin H. Conron, Jr.:

So to that extent, to answer your questions sir, I did participate and I had assumed and perhaps maybe not carefully enough that the Government would confine its order and findings to the remarks directed by the trial judge.

Earl Warren:

Well, the last paragraph of the pretrial order says that foregoing admissions having been made by the parties, and the parties having specified the foregoing issues of fact and law remaining to be litigated, this order shall supplement the pleadings and govern the course of the trial of this cause unless modified to prevent manifest injustice.

Calvin H. Conron, Jr.:

That’s the provision in Section 16 of the rules as well as the — the part of the actual order.

And if it just says supplement, we have the Second Amended Complaint where you have a Government praying for $2,000 an act.

We have — we have the Government in the pretrial order containing $2,000 an act and double consideration.

In other words, we have the Government blowing wind at both ends.

It says that once a privilege of shooting three rabbits —

Felix Frankfurter:

Well the — the —

Calvin H. Conron, Jr.:

Hiding the two skinny winds and from the game ordain and taking the fat one home.

Felix Frankfurter:

Well, now, the Government’s Second Complaint which the Court indicated it was the — no Government’s First Amended Complaint which the Court indicated it would not grant.

That — that offer you can call it as such, any of that transaction preceded this pretrial conference order.

Calvin H. Conron, Jr.:

By six months.

It came out in January and the pretrial was in September (Voice Overlap) —

Felix Frankfurter:

Is that — that answers of yours goes against you.

Calvin H. Conron, Jr.:

Yes, I’ll have to take — yes, that’s — that’s there it is but I — I argue for what it’s worth at the pretrial order and the — incidentally, there are — there are two cases are in that point that —

Felix Frankfurter:

Well, it’s better not take too much time because you still have to go down to assuming your right about this, you still have to meet the question that — that this doesn’t bar the Government asking if the matter of relief, whatever it can ask some of the statute apart from the pleading.

Calvin H. Conron, Jr.:

If I can find —

Felix Frankfurter:

Is that true?

Isn’t that true?

Calvin H. Conron, Jr.:

That’s right.

I can find a balance of my time to — to the real substantive point that I don’t admit before the Court.

Anyway —

Charles E. Whittaker:

You’re also going to argue the satisfaction going?

Calvin H. Conron, Jr.:

I think I haven’t rather fully covered in my brief Your Honor and I agree with all of you have expressed here I think the Government conclusively has accepted the form of release specified by the Act which says it has to elect warrant.

Charles E. Whittaker:

Did you relied on that, anything else abusive, isn’t it?

Calvin H. Conron, Jr.:

That’s right.

That’s right whether if — if I’m right on any one of these points while your problem is simple.

But I would like to make a few remarks —

Felix Frankfurter:

The problem is if — if — if you’re right about that and we order dismiss this case is in improper to be granted.

Calvin H. Conron, Jr.:

I have no doubt on what that should be in proper —

Felix Frankfurter:

And there’s no issue on — on the statute.

Calvin H. Conron, Jr.:

That’s right.

Felix Frankfurter:

Or rather the — the statute have been fulfilled.

Calvin H. Conron, Jr.:

It has been fulfilled.

It says that they have the option of finding one to three.

Felix Frankfurter:

I said if you’re right.

Calvin H. Conron, Jr.:

That’s right, if I’m right.

There’s no question on what the Government has accepted the — the remedy that the trial court told them they were entitled to but —

Hugo L. Black:

You mean accepted the payment?

Calvin H. Conron, Jr.:

That’s right.

Hugo L. Black:

Why do you say that accepted the remedy?

Calvin H. Conron, Jr.:

Because the remedy have the trial court was, that there were four acts and the law says $2,000 per act and they have accepted the money.

Hugo L. Black:

It did asked for judgment, the great deal was be more than that and not deceive this, and the cases and — as a read them is fully upheld that that was — you can’t say that will stop the man —

Calvin H. Conron, Jr.:

Oh, I —

Hugo L. Black:

I’m claiming the reversal of the judgment.

Calvin H. Conron, Jr.:

I quite agree with you Justice Black up to this point.

We have the Surplus Act which says they’re entitled to one form of relief only.

We have a judgment here in which the trial court found as a matter of fact there were — but four acts.

That point has not been challenged on appeal.

The Government does not contend that the finding is clear erroneous.

In other words, if — if they should have $2,000 for every $14 tire.

Hugo L. Black:

The Government does challenge one of the judgments on the ground that entitled about a 100 and how much more?

Calvin H. Conron, Jr.:

Well, the Government asked for two — for doubly consideration agreed to be paid.

And that is substantially more than four acts.

That’s correct.

Hugo L. Black:

It took the case up on the ground that has not enough and while there in ordinary cases, this maybe an exception in ordinary cases.

The mere acceptance of a judgment which is less hard explained is not ground to say that he (Inaudible)

Calvin H. Conron, Jr.:

Well, they accepted that under circumstances —

Hugo L. Black:

On the appeal?

Calvin H. Conron, Jr.:

They accepted that the — your statement is correct as a matter of law.

Calvin H. Conron, Jr.:

It’s not quite factually the situation here.

Hugo L. Black:

Well if you can (Voice Overlap) —

Calvin H. Conron, Jr.:

The Government —

Hugo L. Black:

If can show that they said we’re going to accept this payment of all and we’re going to stand in our appeal.

That’s another thing.

Calvin H. Conron, Jr.:

No, they never said that but they took the notes and they took the money and I can’t say that they said that they would abandon their appeal.

Hugo L. Black:

Can you say —

Calvin H. Conron, Jr.:

Well, I say as matter of law —

Hugo L. Black:

Well, you said it will imply if they were.

Calvin H. Conron, Jr.:

After they take the $8000 at a time when the judgment itself was not final and being appealed by both lawyers.

We didn’t admit until — we didn’t admit at the time this was made.

Hugo L. Black:

(Voice Overlap) you paid.

Calvin H. Conron, Jr.:

Then we owe the 8000 when they —

Hugo L. Black:

You said when you paid it.

Calvin H. Conron, Jr.:

Well, we tendered it and they took and the rule as I understand is if you accept the benefits of a judgment, you waive your right to challenge it.

Felix Frankfurter:

(Voice Overlap)

Hugo L. Black:

If you have accepted.

If you intended it on condition, they accepted as they were in fraud and not to claim more, that would have been monetary.

Can find you find — can you find in of such agreement or the expressed are implied from this record?

Calvin H. Conron, Jr.:

There the agreement, no.

The record did not go that far.

We tendered $8000 and they took it.

Felix Frankfurter:

But this is — this isn’t the ordinary case of a man —

Calvin H. Conron, Jr.:

No.

Felix Frankfurter:

— owing a $100,000 and it takes $8000 on account because the $8000 represented one theory of recovery.

Isn’t it?

Calvin H. Conron, Jr.:

It represented a full satisfaction of one theory of recovery and now the — the Government can’t accept the benefit if one theory of recovery and challenge it.

Hugo L. Black:

Well, that’s a — that maybe that the Court will hold that but do you have any cases that upheld, that are indicated, (Voice Overlap) —

Calvin H. Conron, Jr.:

Well all — all of the cases that the Government collected in its brief I think recognized that statute to the general rule of guess.

They claim that there — they claim that there without that exception because they claim that they — they didn’t accept it in full but when — when your matters in controversy and — and there you tendered some up a certain price and take it, they’re precluded thereafter and says the doctrine a waiver or election or whatever you want to call it.

Charles E. Whittaker:

Well, are we talking — if I may suggest, are we talking about compromise, settlement or are we talking about satisfaction in the judgment?

Calvin H. Conron, Jr.:

I’m talking about satisfaction I think.

Charles E. Whittaker:

Well —

Calvin H. Conron, Jr.:

Well —

Charles E. Whittaker:

Well, when — when one has a judgment for Y dollars and he receives Y dollars, are there any legal implications as to intentions to satisfy?

Have you any views on that?

Calvin H. Conron, Jr.:

Well I think — I think the Government by taking the money is — is obligated as a matter of law to satisfy the judgment that’s — that’s the import of the judgment.

Charles E. Whittaker:

How many satisfactions can’t there be?

Calvin H. Conron, Jr.:

I say only one.

Hugo L. Black:

But what you do you do with cases like Erwin against Lowry which is you said, it’s precisely a different rule, that the payment of the judgment when it’s less to the man’s claim and in then appeal not to be taken as abandoned by him or his rights and you get a reversal?

Calvin H. Conron, Jr.:

As I understand that case — as I understand that case in the other cases in the group and the payment of an amount admittedly owing can we at — at that time in this payment admitted only nothing.

Hugo L. Black:

I assume you wouldn’t pay it if you didn’t admit owing as I suggest that’s right.

Calvin H. Conron, Jr.:

Well, we were still appealing and —

Earl Warren:

Did you cross appeal?

Calvin H. Conron, Jr.:

Yes.

Yes, Your Honor and this payment had all has took place during dependancy of the cross appeal.

Earl Warren:

Yes.

Calvin H. Conron, Jr.:

I see —

Felix Frankfurter:

Everybody was dissatisfied with everything.

Calvin H. Conron, Jr.:

Everybody was.

That’s right.

Now —

Earl Warren:

Still are —

Calvin H. Conron, Jr.:

My — [Laughter] my final point I see the white light is on me and I’ll have to be rather rapid, is that I don’t agree with the Government’s contention as to the proper and meaning of the Surplus Act.

In other words, as I read the Act, if this word alternative that the Government uses time and time again, you won’t find it in the Act.

The Government says, “We are entitled after proving fraud of any kind to fit a thin air anyone with three remedy.”

I contend that is not a proper construction of the Act, that a proper construction of the Act shows that it was made purposely broad to fit very factual situations.

In other words, a $2000 an act could be appropriate remedy for some situation, double consideration might considerably be appropriate to some situations such as excecutory contracts.

The policy of the war Surplus Act was to get rid of surplus property.

It contemplated the — the channeling of large volumes of property not only by slots sale but by contracts, by — by conditional sales contracts, by executory contracts, by signed payment contracts.

Calvin H. Conron, Jr.:

And as I read the Act, it was put in to meet that sort of a situation, not a situation where there’s no monetary fraud involved.

Felix Frankfurter:

What you’re saying is that when the statute pass these three choices shall pay or shall pay the Government elect and shall pay the United States so — so elect, the Government had these modes of seeking relief but it’s still left for the Court to decide whether they elected properly.

Calvin H. Conron, Jr.:

I don’t exactly go that far.

I don’t think I have to.

I think that — I think that there are different measures of damage for different factual situations.

Felix Frankfurter:

Yes, but it’s not for the Government to choose what they are (Voice Overlap) —

Calvin H. Conron, Jr.:

I admit that the Government has a right in the first instance to make the appropriate selection.

Felix Frankfurter:

Yes, to make the offer of this is our case.

Calvin H. Conron, Jr.:

That’s right.

Felix Frankfurter:

But it’s important to say what the case is.

That’s your point, is it?

Calvin H. Conron, Jr.:

That’s right.

They have the right in the first instance to select which of those remedies is appropriate according to their opinion.

But whether the — whether the remedy is appropriate to the occasion, I say it’s within the power of the Court in the last analysis to determine.

I say that in the other construction of the statute would — would lead you right into — you might say chaos.

It would strip the power of the Court of all this discretion.

It would make the trial court a mere chairman of a — of a proceeding and it would leave the judge and the justice of the Justice Department in the role of prosecutor judge, jury and executioner.

And that form of — of statutory interpretation has not been are off for many, many years.

We got away from that.

We will — discarded absolute monarchy.

Now, one final word in — in reference to that line, it has always been a practice in the interpretation of the so-called penal damage statutes and I say that.

Of course, when the Court is considering whether the statute limitation is run then they say it’s compensatory.

But when — but now, here is the Government turning right around and asking double the consideration when it’s already been fully and fairly paid.

And — and I — I cite Your Honors’ attention merely to this — to the — to the False Claims Act, the Copyright Laws Act, the Patent Laws Act as waste laws, all of which have these penal provisions, all of which leaves the determination of reasonable is — in the final analysis to the Court.

I see my time is up.

Thank you for your attention.

Earl Warren:

Mr. Barnett, few moments left.

Wayne G. Barnett:

Mr. Chief Justice, my first care of the number of trucks involved a quick count, comes to 46 trucks out of 149 items.

The others were all trailers.

There were not tires or inner tubes in the Second Amended Complaint.

Wayne G. Barnett:

Something — there were (Inaudible) First Complaint but they were going down.

As to the pretrial order who wrote the order, it is my understanding that the Government counsel did prepare the order.

Since writing the — filing our brief, I’ve checked the rules of the Court in — in the Southern District of New York, which restitute an earlier, and it may cleared up to say that those rules provide that the plaintiff, whatever happens to the plaintiff, shall submit the order and it shall be approved as to form and substance by both parties.

I hear it literally says form and context, trying to suggest from this print of content though we don’t think it may make something difference.

Now, as to the rule of the Court, this — just that we’re depriving the Court of any rule seems to us the Court has precisely the same rule in this case that has any other to determine whether the party claiming the right has that right.

And the statute gives us three rights among which we make elect and we elect then we are claiming that right and the Court can determine whether we have approved our case, whether it established fraud and in this case, whether we have established the consideration agreed to be paid.

Nothing more remains to be found and that we submit is in the end of the case.

Thank you very much.