Findings of Fact 148 C. Cls. or conditions preventing the performance of any of the obligations hereunder, arising from an act or failure to act of the Government of Portugal. Such acts include, but are not limited to, the failure of that Government to authorize exports required by this Contract, and its failure to issue an export license necessary for the performance of the obligations hereunder. (c) The contract was signed (1) on behalf of the United States, by Jess Larson, as Administrator of Defense Materials Procurement Agency (hereinafter referred to as DMPA), and (2) on behalf of plaintiff, by Lawrence Westbrook, as attorney in fact. The attest of Colonel Westbrook's signature was signed by Thurman Hill. B. The Cancellation 4. Following is the text of a letter dated October 27, 1952, signed by Jess Larson, as Administrator of DMPA, addressed, mailed, and delivered to Colonel Lawrence Westbrook, as attorney in fact for plantiff: Reference is made to Contract entered into between the United States of America, acting by and through this Agency, and Campanhia [sic] Atlantica De Desenvolvimento E Exploracao De Minas, hereinafter called "Atlantica", dated September 11, 1952, calling for the delivery of certain tonnages of tungsten by June 30, 1955, upon the terms and conditions therein set forth. The objectives sought to be obtained by the contract and the clear intent of the contracting parties is set forth in those provisions of the contract providing: "WHEREAS, the Government is desirous of promoting the development of new sources of tungsten (wolframite) concentrates and in procuring tungsten concentrates in quantity; and WHEREAS, the Contractor is desirous of increasing the productive capacity of its tungsten mines in Portugal (including the enlargement of its milling facilities) and the productive capacity of other small Portuguese pro Mr. Larson's signature was affixed on September 11, 1952. The contract acquired its date from the time of his action. • Colonel Westbrook signed the contract on September 5, 1952. Titles of military rank have been retained in civilian life by several persons who participated in the Atlantica transaction: e. g., Colonel Westbrook, General Wilson, Captain Maull, Colonel Brenn, Colonel Church, General Rodrigues. The day of the week of October 27, 1952, was Monday. November 1 fell on Saturday. Consequently, the "first Tuesday after the first Monday," election day 1952, was November 4, eight days after the letter in reference. 71 Findings of Fact ducers with whom Contractor intends to merge, consolidate, or otherwise combine its efforts to secure increased production of tungsten; NOW, THEREFORE, in consideration of the premises and the mutual premises [sic] of the parties hereto as hereinafter set forth, the parties agree as follows It, therefore, was and is the objective and intent of the Contract that the tungsten to be purchased by the Government would be such tungsten that was mined either from mines owned by Atlantica, or from mines of such other small Portuguese producers with whom Atlantica would merge, consolidate, or otherwise combine its efforts to secure increased production of tungsten. Information has been received by the London and Washington Offices of this Agency, establishing to its satisfaction, that Atlantica is in the market for the purchase of tungsten ores from producers, other than those enumerated above, at prices less than those set forth in the said contract of September 11, 1952, for delivery and resale to the United States Government under said contract. Article XX of said Contract entitled DEFAULT reads as follows: "Notwithstanding any other provision of this Contract, the Government may, by notice in writing to the Contractor, cancel this Contract or any part thereof at any time, without payment of damages or penalty of any kind for such cancellation, in the event ***, *, (d) of the determination by the Government that the Contractor obtained this Contract for the purpose of speculation". This is to advise you that this Agency has determined that your efforts and conduct in entering the open market for the purchase of wolframite from producers other than those enumerated in the Contract for resale to the Government constitutes a violation of said paragraph (d) of Article XX above quoted. This letter, therefore, constitutes notice to you that the Government reserves unto itself, all its rights and privileges under said Contract not inconsistent herewith and hereby cancels and terminates same in its entirety, effective immediately. C. The Contingent Fee Clause 5. (a) Negotiations with the Government for the contract in suit were conducted on behalf of plaintiff by Colonel Westbrook and his associate, Mr. Heinz Pulvermann. This fact 617448-62-7 Findings of Fact 148 C. Cls. was known to Mr. Larson at the time of the signing of the contract. *** * (b) At the time of the signing of the contract Colonel Westbrook and Mr. Pulvermann were "** * employed to solicit or secure this Contract upon an agreement or undertaking for a commission, percentage or contingent fee ***." This fact was known to the Government officials who conducted the negotiations." It was not known to Mr. Larson at the time of the cancellation. (c) At the time of the signing of the contract and at the time of its cancellation Colonel Westbrook was employed by the Democratic National Committee as one of its salaried officials. This fact was known to one of the Government officials who conducted the negotiations. It was not known to Mr. Larson. (d) On October 28, 1952, news reporters brought to Mr. Larson's attention the fact that Colonel Westbrook had a percentage contract with plaintiff, whereupon Mr. Larson remarked that if he had known of the arrangement, he would have assigned that fact as a further reason for the cancellation of the contract. (e) On October 29, 1952, Colonel Westbrook was dismissed from his position with the Democratic National Committee by the chairman of the committee. A. Personnel: Plaintiff' III. BACKGROUND 6. (a) Lawrence Westbrook was born in 1889. At the age of 19 he withdrew from the University of Texas (after 2 At the outset of the negotiations Colonel Westbrook had filed with the Government officials a copy of the written agreement which he and Mr. Pulvermann had made with plaintiff. The attorney assigned to the negotiations by DMPA, returning a phone call from Colonel Westbrook, reached him at the offices of the Democratic National Committee. • The ensuing findings contain thumbnail biographical sketches of four men, Colonel Westbrook, Mr. Heinz Pulvermann, Dr. Celestino Soares, and Mr. Thurman Hill, each of whom had an important part in the negotiation of the contract in suit. At an early stage of the negotiations the character and reputation of Dr. Soares were called into question by charges of misconduct at various times in his life. In the defense of this suit, defendant reasserted those charges in a direct attack upon the credibility of Dr. Soares. By indirection the credibility, if not the characters and reputations, of Dr. Soares' associates have been similarly impugned. Brief sketches of the personal histories of the men so involved are essential to understanding the nature, extent, and logic of the possible inferences. 71 Findings of Fact years' attendance) and went to work for an electric company in Galveston. Two years later he was chief engineer of a large electric utility in Dallas. He moved from there to Amarillo to be chief engineer and vice president of another electric company. In 1913 he gave up this career to take over from his father, who was ill, the management of the family's cotton and ranching interests. (b) Westbrook's military career began in 1917 with a direct commission as a first lieutenant in the Army Signal Corps. He returned from France in 1919 and was released from active service with the rank of major. He was again on active duty in the Army from 1942 to 1945, with the rank of colonel. (c) Upon his release from the Army in 1919 he returned to the management of his family's cotton interests. In 1927 he organized a countywide farm association to market its members' cotton and other produce. In 1928 he was elected to the Texas legislature, where he served two terms (1929-1932) and was for a time chairman of the Agriculture Committee. Meanwhile, in 1930-1931, he was employed by the American Cotton Cooperative Association to organize and direct the Texas Cotton Cooperative Association.10 During the first year of his directorship the Texas association enrolled 10,000 members and marketed 500,000 bales of cotton under a system of irrevocable sales contracts between member-producers and the association. (d) In 1933 the Governor of Texas appointed Colonel Westbrook head of the Texas Relief Commission. He continued in relief work until sometime in 1936, serving as Assistant Administrator of the Federal Emergency Relief Administration (FERA) during 1934–1935," and as Assistant Administrator of the Works Progress Administration (WPA) during 1935-1936.12 (e) From 1936 through 1939 Colonel Westbrook served as a consultant to rural cooperatives, developing plans for agricultural production and marketing and small-scale industrial 10 He received a salary of $1,000 per month and expenses. 11 In this capacity he was responsible for organizing and directing the national rural rehabilitation program, under which loans totaling approximately $100,000,000 were made to destitute farmers. 12 Among the responsibilities of his office was the supervision of the organization of the agency's regional and state offices. Findings of Fact 148 C. Cls. operations. During this period he served as Chairman of the National Advisory Committee of WPA, and for a few months was employed by the Senate Committee on Agriculture to direct an investigation of the marketing of cotton. (f) During the two years (1940-1941) preceding his return to active duty in the Army, Colonel Westbrook was again in Federal civilian service as assistant to the Administrator of the Federal Works Administration.13 14 (g) While he was on active duty in the Army during World War II, from 1942 to 1945, Colonel Westbrook was responsible for United States military procurement in the South Pacific Area (1942-1943), directed the coordination of procurement procedures for United States purchasing agencies in Brazil (1943), served as Executive Secretary of the War Department Materiel Demobilization Committee (1944), and was a member of the Special Planning Division of the War Department General Staff (1944–1945). (h) Following his release from military duty, he undertook a 4-year engagement in the employ of a Parisian capitalist, serving as president of Trans-American Development Corporation,15 American subsidiary of a French engineering and banking concern known as Société Européene d'Etudes et d'Entreprises. As this assignment drew to a close, he undertook a full-time position with the Department of Defense as executive director of the staff of the Department's Defense Housing Commission. (i) Within a few months the last-named full-time position was reduced to part time, whereupon Colonel Westbrook embarked upon free-lance endeavors under the name of "Westbrook Associates." The title was chosen as one flexible enough to include himself and any other persons with whom he might choose to collaborate in future business ventures. After 18 months of these free-lance endeavors, Colonel Westbrook was in the process of closing his Washington office, 13 His assignment was to organize and direct a mutual home-ownership program which would furnish financing and construction patterns for the use of the private construction industry in large-scale housing enterprises. 14 He organized and headed a military-economic mission to New Zealand to assist the New Zealand Government in an agricultural and industrial development program designed to increase the flow of supplies needed by American forces. 15 His compensation was a salary of $15,000 per year, plus a bonus of 15 percent of the profits. |