A new trial was allowed in this case on motion of the plaintiff. The questions involved are the same as in Helvetia Milk Condensing Co., Inc., v. United States.(Ct. Cl.) 56 F.(2d) 676, decided this date. The Federal Trade Commission in its original audit calculated an overpayment to plaintiff of $22,751.39. This calculation, however, was not in accordance with the agreement set forth in the findings. The facts on retrial are stipulated, and they show that, in the purchase of evaporated milk by the Army and the Navy Departments during the period November 1, 1917, to December 31,1918, the defendant paid the plaintiff $1,000 in excess of the 42 cents maximum profit per case allowable under the agreement set forth in the findings. Plaintiff asks judgment for $4,694.95, with interest from November 1, 1924. Defendant insists, however, that it is entitled to interest on the overpayment of $1,000 from and after December 31, 1918. It further insists that the plaintiff is not entitled to interest on any portion of the overpayment of tax and interest allowed by the Commissioner of Internal Revenue and withheld by the Comptroller General.
For the reasons stated in Helvetia Milk Condensing Co. v. United States, supra, we are of opinion that the original audit and report of the Federal Trade Commission were not final and conclusive on the plaintiff. Plaintiff was paid $1,000 on purchases of evaporated milk by the Army and the Navy during the period covered by the contract in excess of the maximum average profit of 42 cents per case allowable under the agreement. The defendant’s counterclaim is therefore allowed for $1,000. The defendant is also entitled to interest. Although plaintiff made an overpayment of tax of $1,171 on July 31, 1920, which was in excess of the amount then due the defendant, the plaintiff was allowed interest of $751.95 on this and subsequent overpayments, aggregating $4,943 from the dates of payments to November 1, 1924. The defendant is therefore allowed interest in the amount of $350.17, being 6 per cent, per annum on $1,000 from January 1, 1919, to November 1,1924, inclusive.
The plaintiff is entitled to recover the balance of the amount withheld of $4,344.78, with interest at 6 per cent, per annum, under the Act of March 3, 1875 (31 USCA § 227), from November 1, 1924, until paid. It is so ordered.