A-10405, OCTOBER 21, 1925, 5 COMP. GEN. 277

A-10405: Oct 21, 1925

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IMPLIED WARRANTY - REFUNDS WHERE DRESSED BUFFALO MEATS WERE SOLD FOR USE AS FOOD BY THE MONTANA NATIONAL BISON RANGE. IT WAS SUBSEQUENTLY ASCERTAINED THAT PORTIONS THEREOF WERE "BURNT. THE PURCHASERS ARE ENTITLED TO REFUNDS TO COVER RESULTING LOSSES. THERE BEING AN IMPLIED WARRANTY ON THE PART OF THE GOVERNMENT THAT THE MEATS WHEN SOLD WERE WHOLESOME AND FIT FOR USE AS FOOD. REQUESTING DECISION AS TO WHETHER THE DISBURSING CLERK OF THE DEPARTMENT IS AUTHORIZED TO PAY. THREE CLAIMS THAT HAVE BEEN FILED FOR REFUNDS ARISING IN CONNECTION WITH THE SALES OF CERTAIN DRESSED BUFFALO MEATS BY THE MONTANA NATIONAL BISON RANGE. THE MONTANA NATIONAL BISON RANGE WAS ESTABLISHED. SINCE THE ESTABLISHMENT OF SAID RANGE APPROPRIATIONS HAVE BEEN MADE ANNUALLY FOR THE MAINTENANCE THEREOF.

A-10405, OCTOBER 21, 1925, 5 COMP. GEN. 277

SALES, IMPLIED WARRANTY - REFUNDS WHERE DRESSED BUFFALO MEATS WERE SOLD FOR USE AS FOOD BY THE MONTANA NATIONAL BISON RANGE, A GOVERNMENT AGENCY, AND IT WAS SUBSEQUENTLY ASCERTAINED THAT PORTIONS THEREOF WERE "BURNT," OR SOURED, AND UNFIT FOR HUMAN CONSUMPTION, DUE TO FAILURE TO CHILL OUT PROPERLY AT THE TIME OF BUTCHERING, THE PURCHASERS ARE ENTITLED TO REFUNDS TO COVER RESULTING LOSSES, THERE BEING AN IMPLIED WARRANTY ON THE PART OF THE GOVERNMENT THAT THE MEATS WHEN SOLD WERE WHOLESOME AND FIT FOR USE AS FOOD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, OCTOBER 21, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 7, 1925, REQUESTING DECISION AS TO WHETHER THE DISBURSING CLERK OF THE DEPARTMENT IS AUTHORIZED TO PAY, OUT OF MONEYS HELD IN A SPECIAL DEPOSIT ACCOUNT, THREE CLAIMS THAT HAVE BEEN FILED FOR REFUNDS ARISING IN CONNECTION WITH THE SALES OF CERTAIN DRESSED BUFFALO MEATS BY THE MONTANA NATIONAL BISON RANGE, SAID CLAIMS BEING FILED BY MORTON AND WILSON FOR $13.05, THE CORVALLIS MEAT CO., FOR $9.15, AND P. J. LARSEN AND SONS FOR $50.

THE MONTANA NATIONAL BISON RANGE WAS ESTABLISHED, PURSUANT TO THE ACT OF MAY 23, 1908, 35 STAT. 267, AS A PERMANENT NATIONAL BISON RANGE FOR THE HERD OF BISON PRESENTED TO THE UNITED STATES BY THE AMERICAN BISON SOCIETY. THE ACT AUTHORIZED AND DIRECTED THE SECRETARY OF AGRICULTURE TO INCLOSE THE LANDS THEREIN DESIGNATED AND TO ERECT THEREON NECESSARY SHEDS AND BUILDINGS FOR THE PROPER CARE AND MAINTENANCE OF THE BISON. SINCE THE ESTABLISHMENT OF SAID RANGE APPROPRIATIONS HAVE BEEN MADE ANNUALLY FOR THE MAINTENANCE THEREOF.

IT APPEARS THAT OWING TO THE RAPID INCREASE OF THE HERD ON THIS RANGE THE GRAZING FACILITIES BECAME INADEQUATE TO SUPPORT ALL THE ANIMALS AND, SINCE 1923, IT HAS BEEN NECESSARY TO DISPOSE OF A CONSIDERABLE NUMBER THEREOF EACH YEAR IN ORDER TO SAFEGUARD AND MAINTAIN THE REMAINDER OF THE HERD. THERE BEING ONLY A LIMITED MARKET AVAILABLE FOR LIVING BUFFALO THE DEPARTMENT HAS BEEN OBLIGED TO KILL A CERTAIN NUMBER OF THE ANIMALS AND MARKET THE MEAT AS PROFITABLY AS POSSIBLE. ON SEPTEMBER 16, 1924, A CIRCULAR NOTICE WAS ISSUED OFFERING FOR SALE FROM THIS HERD LIVING BUFFALO AND BUFFALO MEAT ON THE FOLLOWING TERMS AND CONDITIONS:

LIVING BUFFALO.--- LIVING BUFFALO FROM ONE TO THREE YEARS OF AGE, OF EITHER SEX, WILL BE SOLD FOR EXHIBITION OR BREEDING PURPOSES, DELIVERED IN CRATES, F.O.B. RAILROAD AT MOIESE STATION, ONT., FOR $115.00 EACH.

BUFFALO MEAT.--- THE MEAT OF BUFFALO, IN GOOD CONDITION, WILL BE SOLD DRESSED, F.O.B. MOIESE OR RONAN, MONT., AT THE FOLLOWING PRICES: HOG DRESSED, WITH ROBES AND HEADS SUITABLE FOR MOUNTING, WEIGHT 600 TO 1,200 POUNDS, $150.00. DRESSED MEAT, WRAPPED IN CHEESE CLOTH AND BURLAP:

FRONT QUARTERS, ABOUT 150 TO 250 POUNDS, 15 CENTS PER LB.

HIND QUARTERS, ABOUT 100 TO 200 POUNDS, 25 CENTS PER LB.

EVERY EFFORT WILL BE MADE IN THE SELECTION AND KILLING OF THESE ANIMALS TO INSURE A SATISFACTORY PRODUCT.

KILLING WILL BEGIN IN NOVEMBER, AND DELIVERIES CAN BE MADE PRACTICALLY AT ANY TIME AFTER NOVEMBER 1. SHOULD THE WEATHER FAVOR KILLING AT AN EARLIER DATE, SOME DELIVERIES MIGHT BE MADE IN OCTOBER. SOME MEAT WILL BE AVAILABLE FROM STORAGE THROUGHOUT THE WINTER.

THIS MEAT WILL BE SHIPPED BY EXPRESS C.O.D., EXPRESS CHARGES TO BE PAID BY THE PURCHASER. CHECKS SHOULD BE DRAWN IN FAVOR OF A. ZAPPONE, DISBURSING CLERK, U.S. DEPARTMENT OF AGRICULTURE, FOR THE AMOUNT DUE ON THE MEAT, LESS THE CHARGES OF THE EXPRESS COMPANY FOR COLLECTING THE PAYMENT AND TRANSFERRING IT TO THE RESERVATION WARDEN AT MOIESE.

IN ACCORDANCE WITH SAID NOTICE AND PURSUANT TO ORDERS RECEIVED, DRESSED BUFFALO MEATS WERE SOLD IN THE QUANTITIES AND AT THE PRICES STATED TO THE FOLLOWING PARTIES, VIZ:

CHART IN NOVEMBER, 1924, TO MORTON AND WILSON, ST. HELENS, OREG:

172 LBS. HIND QUARTER, AT 25 CENTS --------------------- $43.00

265 LBS. FRONT QUARTER, AT 15 CENTS -------------------- 39.75

TOTAL -------------------------------------------82.75 IN DECEMBER, 1924, TO CORVALLIS MEAT COMPANY, CORVALLIS, OREG.:

ONE (1) BUFFALO CARCASS, INTACT (WITH SKIN AND HEAD), FOR $150.00. JANUARY, 1925, TO P. J. LARSEN AND SONS, BRIGHAM, UTAH:

ONE (1) BUFFALO CARCASS, INTACT (WITH SKIN AND HEAD), FOR $150.00.

IT APPEARS THAT THE DRESSED BUFFALO MEATS SO SOLD WERE IN APPARENT GOOD CONDITION WHEN DELIVERED TO THE EXPRESS COMPANY AT POINT OF SHIPMENT FOR TRANSPORTATION TO THE PURCHASERS; THAT THE CARCASSES WERE "HOG DRESSED," I.E., INTACT IN THE HIDE WITH THE HEAD ATTACHED; THAT THERE WERE NO DELAYS IN THE TRANSPORTATION OF SAID SHIPMENTS TO THE RESPECTIVE PURCHASERS; AND THAT DELIVERIES THEREOF AT DESTINATION WERE PROMPTLY MADE. AFTER DELIVERY AND PAYMENT FOR THE MEATS SO PURCHASED COMPLAINTS WERE MADE BY THE PURCHASERS THAT WHEN EACH OF THE THREE SHIPMENTS OF MEAT WERE CUT UP FOR SALE IT WAS FOUND THAT PORTIONS THEREOF WERE "BURNT," OR SOURED, AND UNFIT FOR USE AS FOOD.

IT FURTHER APPEARS THAT AT THE TIME OF THESE SALES THERE WERE NO FACILITIES ON THE MONTANA NATIONAL BISON RANGE FOR THE REFRIGERATION OF THE CARCASSES OF THE ANIMALS KILLED AND OFFERED FOR SALE AND THAT COMPLETE RELIANCE HAD TO BE PLACED UPON COLD WEATHER FOR COOLING OUT THE ANIMAL HEAT FROM THE SLAUGHTERED BUFFALOES, WHICH IS ESSENTIAL TO THE PRESERVATION OF THE MEAT; THAT WEATHER CONDITIONS VARY GREATLY IN THE FLATHEAD VALLEY OF MONTANA, WHERE THE RANGE IS LOCATED; AND THAT AT TIMES THERE ARE PERIODS OF LOW-TEMPERATURE WEATHER IN THE EARLY FALL AND WINTER, BUT IT IS NOT UNUSUAL FOR THE COLD WEATHER TO BE BROKEN BY INTERVALS OF HIGH TEMPERATURE. THE WEATHER CONDITIONS ON THE RANGE APPEAR TO HAVE BEEN UNFAVORABLE AT THE TIME OF THE BUTCHERING OF THE BUFFALOES INVOLVED IN THE SHIPMENTS TO CLAIMANTS AND THE "BURNT" OR SOURED CONDITION COMPLAINED OF WAS PROBABLY CAUSED THEREBY, AS IS SHOWN BY THE FOLLOWING REPORTS FROM THE WARDEN OF THE BISON RANGE TO THE CHIEF OF BIOLOGICAL SURVEY.

IN LETTER OF APRIL 21, 1925, RELATIVE TO THE CLAIM OF MORTON AND WILSON, HE STATED:

* * * THE MEAT SHIPPED MORTON AND WILSON WAS FROM BUFFALO NO. 51, A SEVEN YEAR OLD BULL KILLED ON NOVEMBER 24TH. THE MOST OF FOUR BUFFALO KILLED ON NOVEMBER 22ND WAS LOST THROUGH SOURING, AS THE WARM PERIOD CONTINUED OVER THE 24TH AND EVEN UNTIL AFTER THIS SHIPMENT HAD GONE, AND AS THIS WAS A HEAVY ANIMAL WEIGHING ABOUT 250 POUNDS IN THE FRONT QUARTER, IT WOULD SEEM QUITE POSSIBLE THAT THE QUARTER SHIPPED THEM HAD NOT THOROUGHLY COOLED THROUGH THE THICK PART OF THE FRONT QUARTER.

IN LETTER OF MARCH 10, 1925, RELATIVE TO THE CLAIM OF THE CORVALLIS MEAT CO., HE STATED:

SINCE THIS MEAT UNDOUBTEDLY SOURED THROUGH FAILURE TO CHILL OUT PROPERLY, OWING TO WEATHER CONDITIONS ON THE BISON RANGE AT THE TIME OF BUTCHERING AND IMPROPER FACILITIES FOR HANDLING THE MEAT HERE, I WOULD RECOMMEND THAT THIS MARKET BE REFUNDED AT THE RATE OF 15 CENTS PER POUND FOR THE MEAT LOST, $9.15; AND IN ADDITION OF $2.16, THE AMOUNT OF EXPRESS PAID ON 61 POUNDS OF SOURED MEAT, OR A TOTAL OF $11.31.

IN LETTER OF MARCH 20, 1925, RELATIVE TO THE CLAIM OF P. J. LARSEN AND SONS, HE STATED:

IN THE CASE OF THIS SHIPMENT TO MR. LARSEN, THE COMPLAINT WAS THAT THE MEAT HAD SOURED. SOURING, AS IS KNOWN TO BUTCHERS, IS A CONDITION INVARIABLY THE FAULT OF CONDITIONS AT BUTCHERING TIME AND NEVER THE FAULT OF SHIPPING CONDITIONS. EITHER THE ANIMAL WAS OVERHEATED WHEN KILLED OR THE WEATHER WAS TOO WARM, EITHER OF WHICH CAUSES MAY HAVE RESULTED IN THE ANIMAL NOT COOLING OUT PROPERLY, * * *

* * * SINCE WE HAD TWO BUFFALO SOUR WHICH WERE KILLED ON ABOUT THE SAME DATE AS MR. LARSEN'S BUFFALO, AND DISCOVERED TO BE SOUR HERE BEFORE SHIPMENT BUT NOT UNTIL A CONSIDERABLE TIME AFTER THE KILLING (ONE IN FACT ONLY AFTER IT HAD BEEN TAKEN TO THE STATION TO LOAD) IT IS NOT IMPROBABLE THAT WE COULD HAVE LOADED BUFFALO ACTUALLY IN A SOURED CONDITION WITHOUT HAVING MADE THE DISCOVERY HERE AND WITHOUT THE EXPRESS COMPANY HAVING BEEN ABLE TO DETECT IT.

REGARDING THE METHOD OF PREPARING THE MEAT, THIS BUFFALO WAS KILLED AND DRESSED OUT IN EXACTLY THE SAME MANNER AS ALL OTHER BUFFALO WHICH WERE SHIPPED, THE ONLY DIFFERENCE BEING THAT THE WEATHER AT THE TIME OF KILLING AND IMMEDIATELY AFTER WAS WARM, THERE HAVING BEEN A CHINOOK AT ABOUT THIS TIME. DECEMBER 15 A VERY COLD WAVE OCCURRED, WHICH FROZE THE BUFFALO CARCASSES ON THE RACKS AT THAT TIME.

THE SALES IN QUESTION WERE MADE PURSUANT TO THE ACT OF MARCH 4, 1915, 38 STAT. 1114, WHICH PROVIDES THAT:

HEREAFTER THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO SELL IN THE OPEN MARKET OR TO EXCHANGE FOR OTHER LIVESTOCK SUCH ANIMALS OR ANIMAL PRODUCTS AS CEASE TO BE NEEDED IN THE WORK OF THE DEPARTMENT, AND ALL MONEYS RECEIVED FROM THE SALE OF SUCH ANIMALS OR ANIMAL PRODUCTS OR AS A BONUS IN THE EXCHANGE OF THE SAME SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

THE EVIDENCE CLEARLY ESTABLISHES THAT THE CLAIMANTS ARE RETAIL DEALERS IN MEATS AND MEAT PRODUCTS FOR FOOD; THAT THE BUFFALO MEATS PURCHASED WERE FOR USE IN THEIR REGULAR BUSINESS OF SUPPLYING THEIR TRADE; THAT OUT OF THE LOTS OF BUFFALO MEATS SOLD TO THEM CERTAIN PORTIONS WERE ,BURNT," OR SOURED, AND UNFIT FOR USE AS FOOD OWING TO ITS FAILURE TO CHILL OUT PROPERLY AT THE TIME OF BUTCHERING; AND THAT THE QUANTITIES THAT WERE "BURNT," OR SOURED, AND THEIR VALUES WERE AS FOLLOWS: 87 POUNDS OUT OF THE LOT SOLD TO MORTON AND WILSON, VALUED AT $13.05; 61 POUNDS OUT OF THE CARCASS SOLD TO THE CORVALLIS MEAT CO., VALUED AT $9.15; AND APPROXIMATELY TWO-THIRDS OF THE CARCASS SOLD TO P. J. LARSEN AND SONS, FOR WHICH PURCHASER IS WILLING TO ACCEPT $50 TO COVER ITS LOSSES THEREON.

WHILE AS A GENERAL RULE THERE IS NO IMPLIED WARRANTY AS TO THE QUALITY, CONDITION, OR WHOLESOMENESS OF SURPLUS FOOD SUPPLIES SOLD BY THE GOVERNMENT, 2 COMP. GEN. 481, IN VIEW OF THE CIRCUMSTANCES AND CONDITIONS UNDER WHICH THE SALES HERE IN QUESTION WERE MADE, I FEEL JUSTIFIED IN HOLDING THAT THE ORDINARY IMPLIED WARRANTY OF WHOLESOMENESS APPLICABLE TO COMMERCIAL SALES OF FOOD FOR HUMAN CONSUMPTION ATTACHED TO THESE SALES.

THERE WOULD APPEAR TO BE NO DOUBT BUT THAT IN EACH OF THE SALES HERE IN QUESTION THERE WAS A BREACH OF THE IMPLIED WARRANTY ON THE PART OF THE GOVERNMENT AND THAT THE RESPECTIVE AMOUNTS, FOUND TO BE THE VALUES OF THE PORTIONS UNFIT FOR USE AS FOOD MAY BE ACCEPTED AS THE PROPER MEASURE OF DAMAGES RESULTING FROM SUCH BREACHES.

IT APPEARING THAT THE PROCEEDS FROM THE SALE OF SURPLUS BUFFALO ON THE MONTANA NATIONAL BISON RANGE HAS BEEN TEMPORARILY DEPOSITED IN THE SPECIAL DEPOSIT ACCOUNT OF THE DISBURSING CLERK OF THE DEPARTMENT OF AGRICULTURE, IN ORDER TO PAY THEREFROM INCIDENTAL EXPENSES IN CONNECTION WITH THE SALES, SUCH FUNDS MAY BE USED TO PAY THE CLAIMS OF THE PURCHASERS IN THE RESPECTIVE AMOUNTS CLAIMED.