Birnie

Appellant, hereafter called Birnie, seeks reversal of a judgment awarding damages, against Birnie as an individual, to Perma-nente Metals Corporation, hereafter called Permanente, of the amount of Birnie’s profits in excess of ten per cent thereof, made in Birnie’s subcontract with Perma-nente for his work in the construction of 22 auxiliary attack transports. These were to be chartered to the Navy by the Maritime Commission for the duration of the emergency for the transport of attack troops and thereafter returned to the Commission for its commercial use. Perma-nente’s prime contract was with the Maritime Commission, hereafter called Commission, and the excess profits payable to Per-manente are to be paid over to the Commission.

The original contract of Permanente with the Commission, entered into in April 1943, was for the construction of certain commercial steam vessels known as Victory Cargo ships. On November 9, 1943, Admiral Leahy, the presiding chief of the Joint Chiefs of Staff, directed the Commission to alter the contract with Permanente to construct for charter to the Navy the above described attack transports. The specific instruction from the Secretary of the Navy…