B-119947, APR. 1, 1958

B-119947, APR. 1, 1958

TO PAUL VARKELL COMPANY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 10, 1958, WITH ENCLOSURE, FROM YOUR ATTORNEY, REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED NOVEMBER 1, 1955, WHICH EXCEPT FOR THE ALLOWANCE OF $305.34, SUSTAINED THE PREVIOUS ACTION DISALLOWING YOUR CLAIM FOR $7,640 UNDER SALES CONTRACT NO. N146S-2237, DATED OCTOBER 2, 1953.

IT IS CONTENDED THAT THE FACTS IN YOUR CASE "ARE APPLICABLE IN EVERY DETAIL" TO THOSE CONSIDERED IN OUR DECISION OF FEBRUARY 4, 1957, B-130448 TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS HELD THAT THE CONTRACT THERE INVOLVED COULD BE CANCELED. THAT CONCLUSION WAS BASED UPON THE FACT THAT, WHILE THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS," "WHERE IS" BASIS, WITH AN EXPRESS DISCLAIMER OF WARRANTY AS TO THE "DESCRIPTION" OF THE GOODS, THE LAW NEVERTHELESS RECOGNIZES THAT THE SELLING OF A PARTICULAR QUANTITY OF ARTICLES TO BE TAKEN FROM A LARGER MASS, SO THAT THE PARTICULAR PIECES TO BE DELIVERED CANNOT BE SPECIFICALLY IDENTIFIED AT THE TIME THE SALE IS MADE, MAY IMPOSE UPON THE SELLER AN OBLIGATION TO DELIVER ARTICLES WHICH CONFORM TO THE PROVISIONS OF THE CONTRACT IDENTIFYING THE SUBJECT MATTER.

THE INVITATION HERE INVOLVED REQUESTED BIDS ON AVIATOR'S WINTER FLYING BOOTS IN SMALL, MEDIUM, LARGE AND EXTRA LARGE SIZES. THE BOOTS WERE OFFERED FOR INSPECTION AND WERE SPECIFIC ARTICLES IDENTIFIED BEFORE-HAND BY THE SELLER TO THE PURCHASER. IT WAS NOT A TYPICAL SALE BY DESCRIPTION OF UNASCERTAINED GOODS. THUS, THE FACTS IN YOUR CASE ARE NOT SIMILAR TO THOSE UPON WHICH THE DECISION OF FEBRUARY 4, 1957, WERE BASED. CF. UNITED STATES V. KOPLIN, 24 F.2D 840.

WHILE YOU REFER TO THE CASE OF AMERICAN ELASTICS, INC., V. UNITED STATES, 187 F.2D 109, CITED IN OUR DECISION OF NOVEMBER 1, 1955, AND INDICATE THAT YOU WERE ENTITLED TO RESCISSION BECAUSE OF MISDESCRIPTION, THE FACTS IN THE INSTANT CASE SHOW THAT THERE WAS NO ENTIRELY FOREIGN MATTER INCLUDED IN THE LOT OF BOOTS OFFERED FOR SALE, A FACT WHICH THE COURT STRESSED WITH REGARD TO THE ,TROY CONTRACT" IN THE AMERICAN ELASTICS CASE. HENCE, YOU WERE NOT ENTITLED TO RESCIND BECAUSE OF THE FACT THAT THE BOOTS IN THE LOT OFFERED FOR SALE WERE MERELY IN A DIFFERENT CONDITION THAN THAT STATED IN THE INVITATION. SEE IN THIS REGARD TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, WHERE UNDER SIMILAR CONDITIONS 1,582 UNUSED SADDLES WERE OFFERED FOR SALE AND 1,300 OF THE SADDLES DELIVERED TO THE PURCHASER WERE USED AND RECONDITIONED. IT WAS HELD IN THAT CASE THAT THE PURCHASER WAS NOT ENTITLED TO RECOVER THE DIFFERENCE IN THE VALUE OF THE SADDLES. LIKEWISE, IN THE CASE OF SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412, 417, THE COURT HELD THAT THE PURCHASER OF SURPLUS BLANKETS COULD NOT RECOVER BECAUSE OF BAD CONDITION OF SUCH BLANKETS EVEN THOUGH IT HAD BEEN INDICATED THAT MANY "WERE TORN, HAD HOLES IN THEM, OR WERE UNFIT FOR USE AS BLANKETS.' FURTHERMORE, AS INDICATED IN OUR DECISION OF OCTOBER 18, 1954, THE ACTION OF THE CONTRACTING OFFICER IN SCREENING THE BOOTS AND NOT REQUIRING YOU TO ACCEPT 93 PAIRS OF BOOTS BECAUSE THEY WERE NOT IN "VERY GOOD CONDITION" IS HIGHLY QUESTIONABLE.