DISSENTING OPINION
By WHITAKER, J.I cannot agree on the amount allowed as just compensation, in view of the inability of the contractor to sell these trucks to anyone for more than the inventory cost, although much effort was put forth to do so.
Of the 100 trucks in the inventory all but 22 were taken by various Government agencies; but the majority opinion states, “Efforts by Aetna after termination [which was on August 14, 1945] to dispose of the remaining 22 trucks were unsuccessful,” and so it was decided to publicly advertise them for sale in selected newspapers. This was done on November 16 and 19, but no bids for as much as the cost price of $3,264.04 were received.
Later, however, 4 were sold to the Koppers Company for $3,500 each. This left 18. Plaintiff made several offers for these at less than cost, but, so far as the record shows, no other offers were received until the offer of the Reconstruction Finance Corporation on December 6.
The OPA price was a ceiling price, not a floor price. It set the top limit for what an article could be sold, but there was no assurance that this price could be obtained. In war time, prices were high, but when the war was over, many prices dropped sharply. These trucks must have been the sort of materials that were in great demand during the war, but for which there was not a widespread peacetime use; otherwise better bids for these trucks would have been received.
The Government paid $4,542 each for 78 of these trucks, but was not willing to pay this price for the 22, but finally agreed to pay the invoice price of $3,264.04 for them. Should we now require it to pay more? Plaintiffs were also willing to pay this price, thinking they could sell them at a profit. It is reasonable to suppose they could have, in view of the Government’s purchase of the 78 at $4,542. They should not be deprived of this profit.
A reasonable profit, it would seem, would be from 25 percent to 33 1/3 percent. Twenty-five percent would amount to $816; 33 1/3 percent, to $1,088. I think just compensation to the plaintiffs would be the average of the two, or $952 per truck. From this is to be deducted the cost of putting the trucks in condition, of $50 per truck, leaving a balance of $902. On this, of course, plaintiffs are entitled to interest for delay in payment, which should be at four percent per annum.
JONES, Chief Judge, joins in the foregoing dissent.