Findings of Fact 118 C. Cls. A number of the finance officers for the Army have objected to the use of the stamp on invoices sent to them and in order to avoid dispute with such officers, it has been decided to eliminate the stamp on future invoices. Notwithstanding the fact that this stamp is omitted on future invoices, it is to be understood that all meat delivered to the Armed forces will be sold at the highest price permitted by law. This company further reserves the right to collect amounts in excess of the invoice price in the event such a procedure is permitted by a change in the price regulations or by court decision. Plaintiff also protested the boning requirements of the setaside orders until threatened with the seizure of its plant and fine and imprisonment of its management. 18. During the period of July 3, 1943, to June 30, 1945, with the exception of one carcass, all the production of carcass beef from plaintiff's Nebraska Beef Company Plant was delivered either to agencies designated by the Government, authorized purchasers, or to plaintiff's retail outlets. 19. During the period July 3, 1943, to June 30, 1945, all the carcass beef produced by Nebraska Beef Company Division would have been shipped to plaintiff's East Coast markets for sale by plaintiff to consumers through retail outlets in its usual habit of doing business but for the various compulsory Government set-aside orders requiring delivery to the Government, its designees or authorized purchasers. Whether the same tonnage would have been maintained would have depended upon the demand through such retail outlets. 20. All carcass beef slaughtered was placed in a cooler in the Nebraska Beef Plant. Before plaintiff could ship any carcass beef for its own use the percentage required to be set aside was selected by military inspection at the plant. This selection consisted of an examination by military inspectors of all carcasses produced and the placing of an Army stamp on each of the four quarters of each carcass of beef chosen by the inspectors to fill the set-aside percentage. Each carcass that was shipped to designated agencies of the Government or to the two authorized purchasers, the Finer Foods Company and the Ohio Packing Company, for boning was selected in this manner and 73 Findings of Fact stamped with the Army stamp. The balance of the carcass beef was then available for plaintiff's use. Designated agencies of the Government authorized to receive set-aside beef, except boners, presented to plaintiff's plant from time to time instruments designated as "purchase orders." These orders were numbered and specified the quantity, grade, price, and the point to which shipment of set-aside beef was to be made. The cooler and storage capacity of the Nebraska Beef Company Plant was limited to less than a week's production of carcass beef. As a result, it was necessary to and plaintiff did keep the Government purchasing agencies and the boners informed in advance as to the expected weekly production, and arranged by telephone, telegraph, and letter as to the quantity that would be available for shipment to comply with the set-aside orders, and received from such agencies and boners confirmation to make such deliveries. In many instances, the purchase orders issued by Government agencies were merely in conformity with these advance informal arrangements. At no time did the Nebraska Beef Company Division offer to sell any carcass beef at wholesale to Government agencies or boners, other than to make deliveries of the amounts required by the set-aside orders and selected and held for Government use. 21. The plaintiff was paid the maximum wholesale price for the 23,790,296 pounds of beef carcasses under MPR 169 amounting to $4,509,946.72. The cost of the live cattle, together with slaughtering costs of the Nebraska Beef Company Division, totalled $5,544,681 after applying certain credits for by-products to the slaughtering expense. The costs exceeded receipts by $1,034,734.28. This loss was partially offset by the basic subsidy of $543,321.32 allocable to beef delivered under Government set-aside orders, thereby reducing the loss of the slaughtering division to $491,412.96. Certain of the by-products were handled through plaintiff's retail outlets where plaintiff realized a profit thereon of $31,556.24. This sum should be credited against the slaughtering loss, leaving an out-of-pocket loss of $459,856.72 on carcass beef sold to the Government under set-aside orders. Findings of Fact 118 C. Cls. 22. By Regulation No. 3 of the Defense Supply Corporation, a nonprocessing slaughterer was given an additional subsidy of 80 cents per cwt., live-weight basis, for beef slaughtered after November 1, 1943. This subsidy was denied to plaintiff on the ground that, taking its retail operations into account, plaintiff realized an over-all profit. Of course such profit at retail was not realized on the carcass beef sold to the Government pursuant to set-aside orders. Had plaintiff received the subsidy on such beef, its loss would have been materially reduced. Had the plaintiff received the additional nonprocessing subsidy of 80 cents per cwt., liveweight basis, for beef delivered under Government orders after November 1, 1943, it would have received the additional sum of $276,414.80. The net subsidy on beef delivered on Government orders that the plaintiff was entitled to receive, to put it on a parity with other nonprocessing packers, is $267,779.74. The nonprocessors' subsidy of 80 cents per cwt. was paid on a live-weight basis. The ratio of the live-weight basis to the carcass-weight basis varied slightly from month to month. For the entire calendar year of 1944 plaintiff slaughtered 41,197,960 pounds of beef, live-weight basis. From this beef plaintiff realized 23,860,947 pounds in carcass weight. The ratio of live weight to carcass weight is 1.726585. The liveweight basis for 20,011,670 pounds of carcass beef delivered on Government orders after November 1, 1943, when the nonprocessing subsidy went into effect, at the ratio of 1.726585, represents 34,551,850 pounds, live-weight basis, on which the nonprocessors' subsidy would apply. By applying 80 cents per cwt. to this beef, plaintiff would have received $276,414.80 additional subsidy on the carcasses delivered to the Government. Regulation No. 3 was amended to provide for an increased rate in the basic subsidy of 50 cents per cwt., live-weight basis, effective May 1, 1945, to those slaughterers who were ineligible to receive the nonprocessors' subsidy of 80 cents per cwt. This differential in rates was terminated June 4, 1945. Since the plaintiff had been denied the nonprocessors' subsidy, it applied for and received the increased basic rate on 73 Opinion of the Court 2,878,354 pounds of beef, live-weight basis, slaughtered between May 1 and June 4, 1945. This increase amounted to $14,391.77. Of this sum approximately 60 percent was applicable to beef delivered under Government set-aside orders during this period, which amounts to $8,635.06 of the total increased basic subsidy. Since plaintiff realized $8,635.06 in excess of the basic subsidy to slaughterers eligible for the extra compensation for nonprocessing slaughterers, the net amount to which plaintiff would be entitled on deliveries to the Government within the period the nonprocessors' subsidy was in effect is $267,779.74. 23. Had plaintiff been permitted to and been able to sell through its retail outlets in the Washington, D. C., area the 23,790,296 pounds of carcass beef taken by the Government pursuant to set-aside orders, plaintiff would have received therefor, in such retail outlets, the sum of $1,308,595.85 more than paid by the Government for such set-aside beef. Against this sum there should be deducted the excess cost of selling this meat at retail over the cost of selling it to the Government. The evidence does not satisfactorily show the amount of this excess cost. The court decided that the plaintiff was entitled to recover. WHITAKER, Judge, delivered the opinion of the court: Plaintiff is a large retail chain store company. It sues for just compensation for meat which it says the defendant requisitioned from it during the last World War. After the military authorities began taking meat for their own use, it almost disappeared from the counters of the retail stores. The retail merchant was unable to secure it in anything like adequate quantities to supply the demand of his customers. In this exigency the plaintiff bought first one packing house and then another in an effort to supply its customers. When it bought its first packing house the defendant was demanding a substantial part of the output of all packers and it continued to do so throughout the war period, during which time about 45 percent of plaintiff's output was re Opinion of the Court 118 C. Cls. quired. It was paid therefor the ceiling price established by the Office of Price Administration for wholesale sales, and defendant says this is all it is entitled to. Plaintiff says this price is inadequate to justly compensate it, and that, since it was a retailer and sold its meat at retail, it is entitled to what it could have gotten for it on the retail market. Defendant says, first, it did not take plaintiff's meat in the sense this word is used in the Fifth Amendment. We cannot agree. By set-aside orders, plaintiff was required to hold for the defendant's use certain meat the defendant's agent had selected. It was required to do this under penalties of as much as a $50,000 fine and imprisonment up to three years, and the revocation of its license to do business. When defendant had definitely decided on the beef it wanted, it issued purchase orders stating the amount desired and the price to be paid therefor, but plaintiff never consented to this price, but protested against it, and reserved the right to demand all it was entitled to under the law. Plaintiff was under compulsion to deliver the meat demanded and it is entitled to compensation under the Fifth Amendment. See Stahel v. United States, 111 C. Cls. 682, 736-743; 336 U. S. 951. The more difficult question is the amount of compensation to which plaintiff is entitled. We cannot agree with plaintiff that it is entitled to the price at which it could have sold the meat at retail. The defendant was requisitioning meat from all packers. Substantially none of them, save plaintiff, had retail outlets for their meat. Almost all of them sold only at wholesale. The defendant was liable to them only for the fair and just price which they could have obtained at wholesale. We do not think that plaintiff is entitled to preferential treatment. It cannot be denied that plaintiff under ordinary circumstances would be entitled to whatever it could secure for its product by skillful marketing. Ordinarily it would be entitled to whatever the market would bring, and if it could raise this price by "dressing up" its product, or in any other way, it would seem it would be entitled to this price. The difficulty, however, is that, while plaintiff had provided for |