Reporter's Statement of the Case 100 C. Cls. ferred to as the Coleman Company); about the same time Kawneer caused to be organized, under the laws of the State of Delaware, a corporation known as the Coleman Bronze Company (hereinafter sometimes referred to as the Bronze Company), with an authorized capital of 5,000 shares of non-par value stock, and thereupon Kawneer sold and transferred to the Bronze Company, in consideration of the capital stock, all assets which it had previously acquired from the Coleman Company. The 5,000 shares of non-par value stock of the Bronze Company, except for 5 shares used for qualifying directors in said company, were owned by Kawneer. On and after May 1930, the Bronze Company was operated as a separate entity and filed both capital-stock and income-tax returns. The policies of the Bronze Company were formulated by Kawneer and, with the exception of one, the officers of the two companies were the same. Kawneer supplied operating capital and paid certain bills of the Bronze Company during 1930, 1931, 1932, and 1933, and on December 31, 1933, the Bronze Company was indebted to Kawneer for advances in the sum of $137,972.61. At a meeting of the Board of Directors of the Bronze Company held on February 28, 1934, the following resolution was unanimously adopted: Whereas, The Kawneer Company owns all of the outstanding stock of Coleman Bronze Company, with the exception of Directors' qualifying shares, and Whereas, it is considered to the best interest of Coleman Bronze Company to discontinue operating as a separate company. Now, therefore, be it resolved, that the Coleman Bronze Company sell and convey to The Kawneer Company for due consideration all machinery, tools, stock, equipment, contracts in process, and personal property of every kind or nature owned by it and used by it in its business together with all real estate and improvement thereon which it now owns, and Be it resolved, that the President and Secretary of the Coleman Bronze Company be authorized, empowered and directed to make, execute and deliver such papers as may be necessary to carry out the intent of this resolution. On the same day, pursuant to the resolution by written instrument under seal, duly acknowledged, the designated 523 Reporter's Statement of the Case officers of the Bronze Company for a named consideration of $1 sold and transferred to Kawneer all of the following property: All machinery, tools, stock, equipment and contracts in process and personal property of every kind or nature owned by said party of the first part (Coleman Bronze Company) and used by it in its business, belonging to said party of the first part and now in its possession at Chicago, Illinois, and other points, to have and to hold the same unto the said party of the second part (The Kawneer Company), its successors and assigns, forever; and the party of the first part, for its successors and assigns, does covenant and agree to and with said party of the second part, its successors and assigns to warrant and defend the sale of said property, goods and chattels hereby made, unto the said party of the second part, its successors and assigns, against all and every person or persons whatsoever. In addition to the consideration of $1 named in the above bill of sale of February 28, 1934, Kawneer surrendered for cancellation the 5,000 shares of capital stock of the Bronze Company then owned and held by it and assumed the payment of all the outstanding obligations of the Bronze Company. To preserve the trade name of the Bronze Company, Kawneer did not immediately cause the dissolution of the Bronze Company. At completion of work on the Bronze Company contracts the respective prime contractors paid the Bronze Company for the work performed. In the two Kawneer contracts the prime contractors paid that concern for the work performed. Shortly after February 28, 1934, there was filed with the Secretary of State of Delaware an application for reduction of the capital stock structure of the Bronze Company to a nominal capital of $1,000 represented by 10 shares of stock held by Kawneer. Capital stock and income tax returns were made by the Bronze Company for the years 1934 to 1938, inclusive, as an inactive corporation. December 21, 1938, the Bronze Company surrendered its charter and was completely dissolved. After February 28, 1934, Kawneer operated the plant of the Bronze Company at Chicago, Illinois, as the Coleman Reporter's Statement of the Case 100 C. Cls. Division of The Kawneer Company, and assumed all obligations and paid all debts of the Bronze Company. This action was ratified by a resolution adopted by the Board of Directors of Kawneer on March 4, 1935, as follows: Resolved that the action of the officers on February 28, 1934, in exchanging 4,990 shares of no par value common stock of the Coleman Bronze Company for all machinery, tools, stock, equipment, contracts in process and personal property of every kind or nature of the Coleman Bronze Company, subject to all of the liabilities of the Company, be approved and that these items be reflected on the books of The Kawneer Company at the same value as previously carried on the records of the Coleman Bronze Company. 3. All contracts undertaken by the Bronze Company were approved and supervised by Kawneer and at times Kawneer was required to guarantee performance of contracts undertaken by the Bronze Company. The books of the Bronze Company, while kept at its plant in Chicago, Illinois, were under the supervision of the Auditor of Kawneer. 4. November 7, 1932, defendant entered into a contract with the H. G. Christman-Lansing Company for the construction of the Lansing, Michigan, post office. December 10, 1932, the Christman-Lansing Company entered into a written subcontract with plaintiff at a fixed price for all the ornamental bronze and aluminum work required by the prime contract for the post office. 5. April 5, 1933, defendant entered into a contract with Fleisher Engineering and Construction Company for construction of the St. Paul, Minnesota, post office, customs house and courthouse building. March 29, 1933, that company entered into a written subcontract with the Bronze Company at a fixed price for all the ornamental iron, bronze, and stainless steel required by the prime contract; and on March 29, 1933, the Fleisher Company entered into a written subcontract with Kawneer at a fixed price for all aluminum windows required by the prime contract for the post office, customs house, and courthouse building. 6. November 17, 1932, defendant entered into a contract with Consolidated Engineering Company for construction 523 Reporter's Statement of the Case of the Norfolk, Virginia, post office and courthouse building. January 9, 1933, that company entered into a written subcontract with the Bronze Company at a fixed price for all the ornamental bronze and aluminum work, and aluminum windows required by the prime contract for the post office and courthouse. 7. May 28, 1932, defendant entered into a contract with McCloskey & Company for construction of the Post Office Department building in the District of Columbia. July 15, 1932, McCloskey entered into a written subcontract with the Bronze Company at a fixed price for all ornamental work required for the Post Office Department building. 8. August 3, 1932, defendant entered into a contract with N. P. Severin Company for construction of the Rochester, New York, post office. August 25, 1933, the Severin Company entered into a written subcontract with the Bronze Company, at a fixed price, for the ornamental metal and bronze work required by the contract for the post office. 9. September 30, 1932, defendant entered into a contract with Consolidated Engineering Company for construction of the Cincinnati, Ohio, post office. October 15, 1932, that company entered into a written subcontract with the Bronze Company, at fixed prices, for all ornamental iron, bronze, and aluminum work required by such prime contract. 10. February 28, 1933, defendant entered into a contract with Henry Ericsson Company for construction of the Columbus, Ohio, post office. March 24, 1933, that company entered into a written subcontract with the Bronze Company at fixed prices for all ornamental metal work required by such prime contract. 11. June 27, 1932, defendant entered into a contract with Pike & Cook, Inc., for construction of the Sioux City, Iowa, post office. August 26, 1932, Pike & Cook entered into a written subcontract with the Bronze Company at fixed prices for ornamental metal work, bronze windows, subframes, and spandrels required by such prime contract. 12. The Kawneer Company and the Coleman Bronze Company had not completed their subcontracts as above enumerated on June 16, 1933, when the National Industrial Recovery Act was approved. Reporter's Statement of the Case 100 C. Cls. 13. July 31, 1933, Kawneer and the Bronze Company each signed an agreement with the President, known as the President's Reemployment Agreement authorized by Section 4 (a) of the National Industrial Recovery Act approved June 16, 1933, the pertinent provisions of which were as follows: (2) Not to work any accounting, clerical, banking, office, service, or sales employees (except outside salesmen) in any store, office, department, establishment, or public utility, or on any automotive or horse-drawn passenger, express, delivery, or freight service, or in any other place or manner, for more than 40 hours in any 1 week and not to reduce the hours of any store or service operation to below 52 hours in any 1 week, unless such hours were less than 52 hours per week before July 1, 1933, and in the latter case not to reduce such hours at all. (3) Not to employ any factory or mechanical worker or artisan more than a maximum week of 35 hours until December 31, 1933, but with the right to work a maximum week of 40 hours for any 6 weeks within this period; and not to employ any worker more than 8 hours in any 1 day. (6) Not to pay any employee of the classes mentioned in paragraph (3) less than 40 cents per hour unless the hourly rate for the same class of work on July 15, 1929, was less than 40 cents per hour, in which latter case not to pay less than the hourly rate on July 15, 1929, and in no event less than 30 cents an hour. It is agreed that this paragraph establishes a guaranteed minimum rate of pay regardless of whether the employee is compensated on the basis of a time rate or on a piecework performance. (7) Not to reduce the compensation for employment now in excess of the minimum wages hereby agreed to (notwithstanding that the hours worked in such employment may be hereby reduced) and to increase the pay for such employment by an equitable readjustment of all pay schedules. With the approval and permission of the National Recovery Administration, effective August 25, 1933, Kawneer and the Bronze Company were permitted to substitute the following provisions for paragraphs (2), (3) and (6), respectively, of the previously signed President's Reemployment Agreement: |