dissenting in part:
I cannot agree to all the conclusions reached by the majority.
I agree that no amount is due plaintiffs for 1937. However, since plaintiffs fully complied with the program in 1938, defendant concedes that plaintiffs are entitled to payment for that year, except for the offsets which it asserts should be charged against the sum of $77,386.13 that is otherwise due for the year 1938.
*191As to some of these offsets we are in accord, but when the record is read in the light of the conditions then prevailing and considering the hurried nature of the early program, some of these offsets cannot in fairness and justice be charged against the amount due plaintiffs.
To get any sort of conception of the difficulties one must recall the conditions — and this is disclosed in the record— that prevailed in the early days of the program.
Millions of hungry people were shuffling in the bread lines, helpless, hopeless, and despairing. Smokestacks were rusting in idleness and business was at a standstill. Vast production was rotting in the fields, because there was scant market and little purchasing power, and prices would not justify the gathering or harvesting of the crops. Banks were going broke by the thousands and people generally were desperate.
To help meet this tragic situation farm legislation was hurriedly prepared and the Department of Agriculture was given the gigantic task of fashioning a program and putting it into immediate effect. There was not time to spell out all the details. Quick action was vital. It was thought wise to prepare a general program and leave many of the details to local state, county, and community committees.
Cotton was one of the commodities requiring emergency action. There were more than two and one-half million individual cotton farmers. It was a tremendous assignment.
At the outset it should be observed that the principal issues in these cases arise by reason of defendant’s plea of set-off and that that plea of set-off is based upon an investigation made long after the contracts or participating arrangements between plaintiffs and the Agricultural Adjustment Administration had been fully performed. In other words, plaintiffs entered into certain arrangements with the Agricultural Adjustment Administration for participation in the various farm programs, and after approval of performance thereunder plaintiffs were paid the amount certified by the appropriate officials of the Agricultural Adjustment Administration as due thereunder. While the plea of set-off makes various allegations as to fraud and misrepresentation, and such allegations were, of course, admitted for the purpose of *192the demurrer by plaintiffs which was overruled, insufficient evidence was adduced to establish fraud, and it is not understood that defendant is contending that there was any fraud or misrepresentation on the part of plaintiffs in carrying out their participation in the various farm programs. In fact, on the principal items involved, it is clear that what plaintiffs did, which defendant now complains about, was fully explained to the County Agent and the County Committee, and was approved by them.
The investigation covered the years 1983-37 and was made in 1940. The Investigating Committee prepared a report in which it recommended that certain amounts be charged to plaintiffs as having been overpaid to them by reason of their participation in various programs. That report was considered by a Joint Committee which consisted of a County Committee and a State Committee. In some instances, the Joint Committee disagreed with the Investigating Committee. Thereafter, the Acting Director of the Southern Division of the Agricultural Adjustment Administration submitted a memorandum of recommendations to the Secretary of Agriculture with respect to the report of the Investigating Committee and Joint Committee, which, in most respects, followed the recommendations of the Investigating Committee. The Acting Secretary of Agriculture approved the recommendations of the Acting Director. However, it should be noted from the findings set out on page 129 of the record that it was apparently done as a basis for the settlement of the issues raised by the investigation.
With respect to finality, the determination of the Secretary of Agriculture in this instance long after performance and payment is something very different from determinations made by the Secretary of Agriculture in the course of carrying out contracts. At least it would seem that where, under such circumstances, the defendant now seeks by way of set-off to collect from the plaintiffs for these alleged overpayments the burden should be on the defendant of establishing the amounts claimed. I do not think it can satisfy that burden merely by pointing to the approval of the report by the Secretary of Agriculture.
*193 1933 Cotton Adjustment Program
The amount of $23,009.69 allegedly withheld improperly by plaintiffs from their tenants under the 1933 Cotton Adjustment Program arises under two issues: (1) Whether the plaintiffs’ tenants were entitled to participate under the cash and cotton option plan or under the straight cash plan, and (2) whether plaintiffs were required to divide the amounts received under the program on the basis of the interest in the crops at the beginning of the crop season, or whether plaintiffs and the tenants could make some other arrangement for the distribution of the proceeds.
The 1933 program was promulgated in the latter part of june 1933 after cultivation of the cotton was practically completed and farmers were to submit their offers to participate by July 8, 1933. This program was entirely new to the farmers, and plaintiffs in common with many other farmers were reluctant to sign an offer of participation until they knew more about the program. However, the Agricultural Adjustment Administration was extremely anxious to get the program into operation, and because of the size of plaintiffs’ holdings and the effect of their signing upon other farmers who had not signed, strongly urged plaintiffs to sign up for participation.
Plaintiff J. H. Crain testified that Cully Cobb, the official in the Agricultural Adjustment Administration charged with putting the program into effect, called him in Memphis from Washington and urged plaintiffs to sign an offer of participation. Mr. Crain explained to Mr. Cobb that there would not be time to get the offer signed by all tenants who would participate and have the offer filed within the time suggested by him. Mr. Cobb then asked Mr. Crain to get the .contract signed without awaiting the signatures of the tenants and work it out with the tenants later. Plaintiffs accordingly signed Contract No. 2000 without awaiting the signatures of the tenants. What Mr. Cobb testified to was that so far as he could remember at the time, he did not make the statements attributed to him, but he would not say that he did not have such conversation. In view of the positive testimony of *194Mr. Crain and the circumstances existing at the time which would have made it entirely reasonable for Mr. Cobb to have made such statements, we have found in finding 13 that Mr. Cobb urged plaintiffs to sign the offer of participation without waiting to secure the signatures of the tenants and to work out the terms of their participation with them later.
After that conversation, plaintiffs signed an offer to plow up 7,000 acres of cotton for a cash payment of $12 an acre and an option to purchase approximately 4,200 bales of cotton at six cents per pound. The contract was not signed by any of plaintiffs5 tenants or share croppers. That contract was accepted by the Secretary of Agriculture after appropriate recommendations from the various subordinate officials. After the offer of participation had been signed by plaintiffs, plaintiffs explained the program to their tenants and share croppers and invited them to participate under the contract. The tenants and share croppers were given the option in accordance with the program either to receive a share of the benefit on the basis of $20 per acre or on the basis of $12 per acre, plus a cotton option in accordance with plaintiff’s contract, and all of them who came in on the contract elected to take the cash payment of $20 per acre. In carrying out the contract, plaintiffs received $29.16 per acre for the acreage covered by the contract — that is, cash of $12 at the time of the execution of the contract and $17.16 of profit realized under the cotton option plan because the price of cotton rose during that period. However, they made the division with the tenants on the basis of $20, and that was done without waiting to determine whether plaintiffs would make a profit under the cotton option plan.
The court saw fit to delete the last sentence of the first paragraph of the commissioner’s finding 18, which reads as follows:
The tenants and share croppers were given the option in accordance with the program presented by the AAA either to receive a share of the benefit on the basis of $20 per acre or on the basis of $12 per acre plus a cotton option in accordance with plantiffs’ contract, and all of them who came in under the contract elected to take the cash payment of $20 per acre.
*195In my judgment that finding is fully supported by the testimony.
Defendant is here contending that plaintiffs should be required to account to their tenants on the basis of $29.16 rather than $20. I find nothing in the argument which convinces me that defendant’s position can be sustained. In the first place, it seems entirely logical that the tenants and share croppers would have agreed to accept the cash payment of $20 as a sum certain rather than $12, and not oniy take a chance on whether they would receive more but also have to wait to receive the additional amount. Plaintiffs’ testimony is uncontradicted that the tenants and share croppers entered into the program on that basis. I cannot take too seriously the argument that these tenants and share croppers were too ignorant to know what they were doing when they agreed to participate on the cash basis rather than the cash and option basis. I am thoroughly convinced from the record that what they did was what many other well-informed people would have done.
With such an agreement between plaintiffs and their tenants and share croppers, it is difficult for me to see how it now can be said that the agreement should be disregarded and that plaintiffs should be required to make a distribution to them under the cash and option plan where plaintiffs took all the risk, and it happened to turn out more profitably for plaintiffs than if they had taken the straight cash payment plan. Certainly, if plaintiffs had realized less than $20 it would be hard to justify recoupment from the tenants out of the $20 per acre which they were paid. The Joint Committee recommended that the settlement with the tenants on the basis of $20 per acre be allowed to stand and that is the course that should be taken. The amount withheld under this item was $16,321.54.
The further question under the 1933 program concerns the percentage or fractional division between plaintiffs and their tenants and share croppers of the payments received by plaintiffs from defendant. The only written instructions available at that time to guide the interested parties were certain instructions which had been issued to field workers, one sentence in which read as follows:
*196It is assumed that agreements by the operators and their tenants will provide for division of payments in proportion to their interest in crop.
No regulations had been issued on this point or were ever issued covering this matter for the year 1933. The matter was extensively discussed in various meetings which were held by the producers, operators, County Agent, and County Committee. At that time, plaintiffs and other producers urged that since the cotton had been planted and its cultivation practically completed by the tenants and share croppers, it ivould be inequitable to have the tenants and share croppers participate in the payments under the plow-up program in the same manner as agreed upon for shares in the crop at the beginning of the crop season, for the reason that by the destruction of the cotton the tenants and share croppers would be saved the labor or expense of picking it and, in addition, landlords situated as were plaintiffs would lose revenue from getting the cotton destroyed. The County Agent informed the producers, including plaintiffs, that, under his interpretation of the instructions, it would be permissible for the landlords and their tenants and share croppers to agree upon the division of the payments different from that provided in their agreements at the beginning of the crop season.
When the County Agent sought advice from higher officials on the question, he was told that it was a matter for him and the subordinate committees to work out under the instructions he had received. As a result of these discussions, plaintiffs entered into agreements with their tenants and share croppers for division of the cash payments on a basis different from that which they had for division of the crops, and plaintiffs distributed the payments on the new basis. For example, in a case where a tenant was operating on the basis that he would have been entitled to receive three-fourths of the cotton and the plaintiffs one-fourth, the new arrangement was that the tenant would be receiving two-thirds of the payments and plaintiffs one-third of such payments.
What the Investigating Committee recommended, which was approved by the Acting Secretary of Agriculture, and what the defendant is now contending for is that the payments should be distributed on the basis which existed at the *197beginning of the crop season rather than on the basis of the agreement entered into between plaintiffs and their tenants and share croppers. In the first place, we do not have, in this instance, a regulation promulgated by the Secretary of Agriculture, but merely instructions to field workers, which instructions are far from clear as to their true meaning. When a question arose about these instructions at the time in question, the County Agent advised plaintiffs that they could do what they actually did. There was no concealment. The new arrangement was certainly fair to the tenants and share croppers in that they were not only saved the additional expense incident to picking the cotton but also they were permitted by plaintiffs to have the land rent-free on which the cotton was plowed up to raise a crop of corn, and many of them used the land in that way. In fact, some of them anticipated the final working out of the program by planting corn between the cotton rows on the portion of the crop which they expected to plow up.
In view of the foregoing, it is difficult for me to see why the arrangement made between plaintiffs and their tenants and share croppers and carried out should now be disregarded and plaintiffs should be required to make a division on the basis of the crop arrangements. I would deny the plea of set-off on this item, amounting to $6,688.15.
In the years 1934,1935, and 1936 the regulations were more specific and the programs more clearly outlined and understood. While we have doubt as to whether all the items should have been charged against the plaintiffs for those years, the record is not clear as to some of them and the court does not have jurisdiction as to others. In the state of the record I do not feel the court can allow plaintiffs to recover for any of those years.
It is difficult to lay a straightedge to the vast, new, and complicated farm program that was made effective in 1933. There were numerous commodities. There were six millions of farmers living thousands of miles apart. The details were staggering and the human equation was baffling.
Yet a program was necessary. For more than 100 years the surplus-producing farmer had borne the burdens of the tariff without any corresponding benefits. The result had *198been a lopsided development that had destroyed purchasing power until the entire business set-up was locked and sinking.
The farm program was basic. It was the mudsill on which the structure of a continuing stabilized economy was to be builded. Cooperation was needed if the plan was to succeed.
The record is convincing that the plaintiffs worked more closely with those who were conducting the program than did many of the large operators. In fact, some refused to comply in any way.
Information was difficult to get. Eegulations were scant and in the early days many phases were left largely to the state and county extension service and local committees. That it succeeded as well as it did is next door to a miracle. It is a tribute to the Extension Service, the AAA organization and the farmers themselves.
In the circumstances I do not deem it just to penalize those who cooperated, if there was substantial compliance.
I do not feel it just to permit the Secretary of Agriculture in 1941 to deny payment of amounts due under the 1938 program by subtracting certain items that had been approved and paid for the year 1933.
Where there were errors in calculation, yes, those errors should rightly have been corrected and offset. But to permit the policy to be changed after the work had been approved and payments made is not in the province of the Secretary.
Admittedly the Secretary was given full authority to make final determinations, but having made them, at least in effect and by his action, I do not think a later Secretary had authority to reopen and change the basis of payments. Cotton v. United States, 29 C. Cls. 207, 225; Hartson v. United States, 21 C. Cls. 451.
There were errors of calculation in those earlier years. These should have been and were corrected. There were also some honest mistakes of the rights under the law and regulations of that period. These, too, were corrected. But to permit employees to go prowling through the record of distant years to find instances in which policies could be changed and thus avoid payment of admitted just claims in later years, is beyond the power and authority of the Department.
I would find for the plaintiffs in the sum of $23,009.69, the *199amount charged against plaintiffs for two of the items of payment for the year 1933.
Judge Whitaker concurs in this opinion.