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B-129758, DEC. 14, 1956

B-129758 Dec 14, 1956
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INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. THE DUPLICATE SHIPMENT WAS MADE THROUGH THE ERROR OF ONE OF YOUR OFFICE EMPLOYEES WHO MISTOOK AN INSPECTION REPORT FOR A NEW ORDER AND FORWARDED 26 1/4 DOZEN DRAFTSMAN BRUSHES TO THE SAN FRANCISCO PORT OF EMBARKATION. WHERE THE ITEMS WERE TO BE EXPORT PACKED AND TRANSHIPPED TO THE PORT TRANSPORTATION OFFICER. IT APPEARS THAT THE DUPLICATE SHIPMENT MAY HAVE BEEN INADVERTENTLY PROCESSED AND FORWARDED TO THE OVERSEAS THEATER ON OCTOBER 2. THESE INSTRUCTIONS APPEAR TO HAVE BEEN ISSUED BY THE DISTRICT ENGINEER WITH REASONABLE PROMPTNESS AFTER NOTICE HAD BEEN RECEIVED OF THE DUPLICATE SHIPMENT. WE DO NOT QUESTION THE FACT THAT YOU HAVE BEEN IN CONTACT WITH THE NEW YORK CORPS OF ENGINEERS PRIOR TO THAT DATE IN REGARD TO THIS MATTER.

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B-129758, DEC. 14, 1956

TO H. HERTZBERG AND SON, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1956, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 9, 1956, WHICH DISALLOWED THE CLAIM OF THE PHOENIX BRUSH COMPANY, INC., 655 BROADWAY, NEW YORK 12, NEW YORK, FOR $131.25 BELIEVED TO BE DUE FOR A DUPLICATE SHIPMENT OF DRAFTSMAN BRUSHES.

AS OUR LETTER OF OCTOBER 9, 1956, STATED AND THE RECORD DISCLOSES, THE DUPLICATE SHIPMENT WAS MADE THROUGH THE ERROR OF ONE OF YOUR OFFICE EMPLOYEES WHO MISTOOK AN INSPECTION REPORT FOR A NEW ORDER AND FORWARDED 26 1/4 DOZEN DRAFTSMAN BRUSHES TO THE SAN FRANCISCO PORT OF EMBARKATION, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA. THE ORIGINAL PURCHASE ORDER NO. 27-49398-27 DATED MAY 7, 1952, ON WHICH DELIVERY HAD BEEN COMPLETED, REQUIRED, HOWEVER, THAT DELIVERY BE MADE TO THE RESIDENT INSPECTOR, CORPS OF ENGINEERS, SAN FRANCISCO DISTRICT, C/O RICHMOND EXPORT SERVICES, 1015 MARKET STREET, SAN PABLO, CALIFORNIA, WHERE THE ITEMS WERE TO BE EXPORT PACKED AND TRANSHIPPED TO THE PORT TRANSPORTATION OFFICER, SAN FRANCISCO PORT OF EMBARKATION.

DUE TO THE CONFUSION ARISING FROM RECEIVING DELIVERY OF THE SECOND SHIPMENT OF THE BRUSHES FOR WHICH NO VALID PURCHASE ORDER EXISTED AT THE PORT OF EMBARKATION, IT APPEARS THAT THE DUPLICATE SHIPMENT MAY HAVE BEEN INADVERTENTLY PROCESSED AND FORWARDED TO THE OVERSEAS THEATER ON OCTOBER 2, 1952, BEFORE THE INSTRUCTIONS TO RETURN THE GOODS TO YOU COLLECT HAD BEEN RECEIVED FROM THE SAN FRANCISCO DISTRICT ENGINEER. THESE INSTRUCTIONS APPEAR TO HAVE BEEN ISSUED BY THE DISTRICT ENGINEER WITH REASONABLE PROMPTNESS AFTER NOTICE HAD BEEN RECEIVED OF THE DUPLICATE SHIPMENT. WHILE THE RECORD SHOWS THAT ON FEBRUARY 12, 1954, YOU FORMALLY ADVISED THE PURCHASING OFFICER THAT THE DUPLICATE SHIPMENT HAD NEVER BEEN RETURNED, WE DO NOT QUESTION THE FACT THAT YOU HAVE BEEN IN CONTACT WITH THE NEW YORK CORPS OF ENGINEERS PRIOR TO THAT DATE IN REGARD TO THIS MATTER. HOWEVER, IT WAS AFTER THIS DATE, THAT IT WAS ASCERTAINED THAT THERE WAS NO RECORD OF THE RECEIPT OF A SHIPMENT AT THE OVERSEAS BASE.

YOU MADE THE SHIPMENT WITHOUT THE AUTHORIZATION OF A PURCHASE ORDER OR AN EXISTING CONTRACT. BY DOING SO YOU PLACED YOURSELF IN THE POSITION OF A VOLUNTARY CREDITOR OF THE UNITED STATES, AND IN SUCH A CASE, THERE IS NO EXPRESS OR IMPLIED OBLIGATION UPON THE GOVERNMENT TO MAKE ANY REIMBURSEMENT. UTICA, ITHACA, AND ELMIRA RAILWAY CO. V. UNITED STATES, 22 C.CLS. 265. FURTHERMORE, EVEN IF IT COULD BE SHOWN THAT THERE WAS AN IMPLIED CONTRACT WHICH WOULD HAVE ENTITLED YOU TO PAYMENT TO THE EXTENT OF THE BENEFITS ACTUALLY CONFERRED UPON THE GOVERNMENT FOR SUPPLIES RECEIVED AND USED BY THE GOVERNMENT, THE RECORDS DO NOT SHOW THAT THE BRUSHES WERE EVER RECEIVED OR USED BY THE OVERSEAS BASE AND THEREFORE PAYMENT TO YOU ON THAT BASIS WOULD BE UNAUTHORIZED.

SINCE THE GOVERNMENT DID NOT ORDER THE BRUSHES HERE INVOLVED, IT BECAME A GRATUITOUS BAILEE UPON RECEIPT OF THE SHIPMENT AND IN THE ABSENCE OF A SHOWING OF GROSS NEGLIGENCE OR BAD FAITH ON THE PART OF THE PERSONNEL AT THE PORT OF EMBARKATION IN PERFORMING THEIR OPERATION AS IT RELATED TO THE HANDLING OF YOUR SHIPMENT, NO LIABILITY ON THE PART OF THE UNITED STATES GOVERNMENT CAN BE ASSUMED. 8 C.J.S. 278.

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