A-10953, SEPTEMBER 22, 1925, 5 COMP. GEN. 213

A-10953: Sep 22, 1925

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" THE AMOUNT DUE THE CONTRACTOR FOR SAID LUMBER IS TO BE DETERMINED BY ASCERTAINING THE NUMBER OF SQUARE FEET THE LUMBER CONTAINS. IN MEASURING LUMBER PURCHASED BY THE UNITED STATES THE TERM SQUARE FEET IS FOR CONSTRUCTION ACCORDING TO ITS ORDINARY ACCEPTATION. 1925: I HAVE YOUR LETTER OF AUGUST 11. REQUEST THAT YOU BE ADVISED WHETHER PAYMENT THEREON IS AUTHORIZED. 170 FT. 49.00 253.33 THE RECORD INDICATES THAT PROPOSALS WERE SOLICITED ON THE TWO ITEMS OF WHITE-PINE LUMBER. BIDS ON OTHER THAN NO. 1 COMMON WILL NOT BE CONSIDERED. THE QUESTION FOR DECISION IS WHETHER PAYMENT FOR THE SECOND ITEM LISTED IN THE PROPOSAL IS TO BE MADE AT THE RATE OF "$49 PER M SQ.FT. THE BID AS THUS MADE WAS ACCEPTED AND THE PURCHASE ORDER ISSUED IN PURSUANCE THEREOF WAS FOR "5.

A-10953, SEPTEMBER 22, 1925, 5 COMP. GEN. 213

PURCHASES - LUMBER WHERE THE UNITED STATES SOLICITED PROPOSALS FOR 5,000 BOARD MEASURE FEET OF LUMBER 5/4 INCHES THICK BY 10 INCHES WIDE AND THE CONTRACTOR AGREED TO FURNISH SAID LUMBER AT THE UNIT PRICE OF "$49 PER M SQ.FT., " THE AMOUNT DUE THE CONTRACTOR FOR SAID LUMBER IS TO BE DETERMINED BY ASCERTAINING THE NUMBER OF SQUARE FEET THE LUMBER CONTAINS, I.E., THE WIDTH BY THE LENGTH. IN MEASURING LUMBER PURCHASED BY THE UNITED STATES THE TERM SQUARE FEET IS FOR CONSTRUCTION ACCORDING TO ITS ORDINARY ACCEPTATION, IN THE ABSENCE OF A SHOWING OF A COMMERCIAL USAGE TO THE CONTRARY.

COMPTROLLER GENERAL MCCARL TO CAPTAIN S. P. MEEK, UNITED STATES ARMY, SEPTEMBER 22, 1925:

I HAVE YOUR LETTER OF AUGUST 11, 1925, IN WHICH YOU INCLOSE A VOUCHER, WITH CORRESPONDENCE ATTACHED, IN FAVOR OF H. HUMPHREYS AND CO. FOR $1,221, AND REQUEST THAT YOU BE ADVISED WHETHER PAYMENT THEREON IS AUTHORIZED.

THE VOUCHER COVERS TWO ITEMS STATED, AS FOLLOWS:

CHART 1 INCH BY 12 INCH WESTERN WHITE PINE, S2S

13/16 INCH NO. 1 COMMON, 12 FT. TO 16 FT.

LENGTHS ---------------------------------- 18,258 FT. 53.00 967.67 5/4 INCH BY 10 INCH WESTERN PINE, S2S

TO 1 1/8 INCH NO. 2 COMMON OR BETTER, 12

FT. TO 16 FT. LENGTHS -------------------- 5,170 FT. 49.00 253.33

THE RECORD INDICATES THAT PROPOSALS WERE SOLICITED ON THE TWO ITEMS OF WHITE-PINE LUMBER, BIDS BEING REQUESTED BOTH AS TO QUANTITY AND PRICE, ON THE BASIS OF BOARD MEASURE FEET. THE PROPOSAL SUBMITTED IN CONNECTION WITH THE VOUCHER IN QUESTION STATES THE QUANTITY TO BE FURNISHED IN BOARD MEASURE FEET, BUT QUOTES THE UNIT PRICE WITH REFERENCE TO SQUARE FEET. SAID PROPOSAL READS IN PART AS FOLLOWS:

CHART LUMBER, WESTERN WHITE PINE, NO. 1

COMMON, S-2'S (13/16 INCH AFTER B.M.FT. PER M B.M.FT.

BEING SURFACED):

1 INCH BY 12 INCH--- 12 FT. TO

16 FT. LENGTHS ------------------ 18,000 $53.00 PER M SQ.FT. BIDS ON OTHER THAN NO. 1 COMMON WILL

NOT BE CONSIDERED. LUMBER, WESTERN WHITE PINE, NO. 2

COMMON, S-2'S (1 1/8 INCH AFTER

BEING SURFACED):

5/4 INCH BY 10 INCH--- 12 FT. TO

16 FT. LENGTHS ------------------ 5,00049.00 PER M SQ.FT.

THE QUESTION FOR DECISION IS WHETHER PAYMENT FOR THE SECOND ITEM LISTED IN THE PROPOSAL IS TO BE MADE AT THE RATE OF "$49 PER M SQ.FT. OR AT THE RATE OF $49 PER 1,000 BOARD MEASURE FEET.

NOTWITHSTANDING THE FACT THAT THE PROPOSAL FORM AS SUBMITTED TO THE BIDDER STATED THE UNIT "PER M BM.FT., " MAKING IT NECESSARY ONLY THAT THE BID PRICE IN DOLLARS BE STATED IN THE UNIT PRICE COLUMN, THE BIDDER IN THIS INSTANCE INSERTED AFTER THE BID PRICE "PER M SQ.FT.' THE BID AS THUS MADE WAS ACCEPTED AND THE PURCHASE ORDER ISSUED IN PURSUANCE THEREOF WAS FOR "5,000 BM.FT.' AT $49 "PER M SQ.FT.' IT THUS APPEARS THAT BY MEANS OF LANGUAGE WRITTEN INTO THE CONTRACT BY THE CONTRACTOR THE PARTIES AGREED THAT PAYMENT SHOULD BE MADE AT THE RATE OF $49 FOR EACH 1,000 UNITS OF SQUARE FEETCONTAINED IN THE LUMBER PURCHASED. IT IS PROBABLY TRUE THAT IN THE USUAL SALE OF LUMBER MORE THAN 1 INCH IN THICKNESS THE CONTRACT DOES NOT PROVIDE THAT THE PRICE IS TO BE DETERMINED BY THE NUMBER OF SQUARE FEET CONTAINED IN THE LUMBER SOLD, BUT, REGARDLESS OF THE USUAL PRACTICE, THERE IS NOTHING TO PREVENT THE PARTIES FROM STIPULATING THE PRICE TO PAID FOR DIMENSION LUMBER BY THE SQUARE FOOT, LINEAR FOOT, OR ANY OTHER UNIT WHICH THEY MAY SEE FIT TO CHOOSE. ACCORDING TO THE PLAIN TERMS OF THE CONTRACT IN THIS CASE THE PRICE WAS FIXED "PER M SQ.FT.' AND WHEN SUCH A TERM IS USED IN A CONTRACT THE LAW WILL PRESUME THAT IT WAS INTENDED TO HAVE ITS ORDINARY AND USUALLY ACCEPTED MEANING IN THE ABSENCE OF AN ESTABLISHED TRADE CUSTOM TO THE CONTRARY. THE ORDINARY AND USUALLY ACCEPTED MEANING OF THE TERM "SQ.FT., " WHEN APPLIED TO BOARDS, LAND, OR ANY OTHER AREA, IS THE NUMBER OF UNITS OF SQUARE FEET CONTAINED IN THE SURFACE AREA THEREOF. THUS THE TERM "SQ.FT.' IN THE PROPOSAL, SUPRA, MUST BE UNDERSTOOD TO MEAN THE PRODUCT OF THE WIDTH OF THE BOARDS BY THE LENGTH THEREOF, UNLESS THERE IS AN ESTABLISHED CUSTOM TO THE EFFECT THAT THE TERM "SQ.FT.' WHEN USED IN CONNECTION WITH LUMBER HAS A DIFFERENT MEANING. NO EVIDENCE IS WITH THE RECORD AND, AFTER SOME RESEARCH AND INQUIRY AMONG LUMBER DEALERS, NONE HAS BEEN OBTAINED WHICH EVEN IN THE SLIGHTEST DEGREE TENDS TO ESTABLISH THE EXISTENCE OF A CUSTOM AMONG LUMBER DEALERS THAT "SQ.FT.' WHEN USED IN CONNECTION WITH LUMBER MORE THAN 1 INCH IN THICKNESS (AS IS THE LUMBER IN QUESTION) IS SYNONYMOUS WITH AND MEANS THE SAME THING AS BOARD MEASURE FEET, AS CONTENDED FOR BY THE CONTRACTOR. THERE DOES APPEAR TO BE A CUSTOM TO THE EFFECT THAT WHERE THE TERM "FEET" ALONE IS USED IN CONNECTION WITH LUMBER 1 INCH OR LESS IN THICKNESS IT MEANS SURFACE MEASURE, AND THAT WHERE SAID TERM IS USED WITH REFERENCE TO LUMBER MORE THAN 1 INCH IN THICKNESS IT MEANS BOARD MEASURE. THAT CUSTOM HAS NO BEARING ON THE MATTER HERE UNDER CONSIDERATION, BECAUSE IN THE CONTRACT HERE INVOLVED THE UNIT IS SPECIFICALLY STATED TO BE SQUARE FEET.

PARAGRAPH 17 OF PAGE 12 OF "THE NATIONAL HARDWOOD LUMBER ASSOCIATION RULES FOR MEASUREMENT AND INSPECTION OF HARDWOOD LUMBER," TO WHICH THE CONTRACTOR REFERS, PROVIDES:

A PIECE TALLY IN FEET MUST BE MADE OF ALL LUMBER. ALL RANDOM WIDTH LUMBER OF STANDARD GRADES AND THICKNESSES MUST BE TALLIED FACE OR SURFACE MEASURE AND THIS TALLY MUST BE THE NUMBER OF FEET, BOARD MEASURE, OF 1 INCH LUMBER. IF THE LUMBER IS THICKER THAN 1 INCH, THEN THE TALLYSO OBTAINED MUST BE MULTIPLIED BY THE THICKNESS AS EXPRESSED IN INCHES AND FRACTIONS OF AN INCH. ALL LUMBER LESS THAN 1 INCH MUST BE COUNTED FACE MEASURE.

WHILE SAID RULE IS NOT CONTROLLING IN THE MATTER HERE INVOLVED, I FIND NOTHING IN ITS LANGUAGE TO JUSTIFY THE CONCLUSION THAT IN THE LUMBER BUSINESS SQUARE FEET MEANS BOARD MEASURE FEET WHEN APPLIED TO LUMBER MORE THAN 1 INCH IN THICKNESS.

PAYMENT OF MORE THAN $1,170.29 ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED.