Opinion
No. 232, Docket 22648.
Argued April 16, 1953.
Decided May 29, 1953.
Corcoran Kostelanetz and Samuel Rosenthal, New York City (Boris Kostelanetz and Jules Ritholz, New York City, of counsel), for appellant.
Harry Bergson, Boston, Mass., for appellee.
Before SWAN, Chief Judge, and AUGUSTUS N. HAND and CHASE, Circuit Judges.
Reconstruction Finance Corporation, successor in interest of Defense Supplies Corporation, brought this action against the appellant for breach of four contracts, under which DSC agreed to purchase alcohol at prices to be fixed by the Office of Price Administration pursuant to its applicable Regulations. If dissatisfied, the seller could protest to OPA and, if unsuccessful, could appeal to the Emergency Court of Appeals. Pursuant to the contracts provisional payment was to be made by the buyer and, if the OPA should thereafter revise the maximum price downward, the seller agreed to refund to the buyer excess payments. By order of October 25, 1946, the OPA did reduce the prices payable and the present action was to recover excess payments made by the buyer. Unfortunately for the seller it did not protest the reduction nor appeal to the Emergency Court of Appeals, and it is now too late to do so. Consequently, judgment has gone against it for the amount due under the contracts. From this judgment the seller has appealed. It has also brought up for review several intermediate orders disposing of motions made prior to entry of the judgment. To all of these matters Judge Hincks, D.C., ___ F. Supp. ___, gave thorough consideration, discussing them in memorandum opinions with which we agree.
Judgment affirmed.