A-12336, JANUARY 6, 1926, 5 COMP. GEN. 461

A-12336: Jan 6, 1926

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WHERE OATS PURCHASED UNDER AN EMERGENCY ORDER FOR THE USE OF A NATIONAL GUARD TROOP WERE REJECTED BUT AFTERWARDS ACCEPTED BY AN ARMY OFFICER. " IS NOT AVAILABLE TO PAY THE COST OF EXTRA EXPENSE TO THE VENDOR FOR DRAYAGE OCCASIONED BY THE SECOND DELIVERY. YOUR REQUEST FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER SUBMITTED. WHICH UPON DELIVERY AND AFTER TEST WERE REJECTED AND. AFTER A SAMPLE OF THE OATS HAD BEEN FORWARDED TO CHICAGO FOR A FURTHER TEST BY THE AGRICULTURE DEPARTMENT AND REPORT THEREON WAS MADE. THE OATS WERE REDELIVERED TO THE TROOP AND ACCEPTED. THE CLAIM NOW PRESENTED IS TO COVER DRAYAGE CHARGES IN EFFECTING THE SECOND DELIVERY. STATES: * * * PART OF THESE OATS HAD ALREADY BEEN HAULED TO STABLES * * * WHEN ORDER TO STOP HAULING WAS GIVEN.

A-12336, JANUARY 6, 1926, 5 COMP. GEN. 461

TORTS, LIABILITY OF UNITED STATES FOR ACTS OF ITS AGENTS - PURCHASE OF OATS A CLAIM IN THE NATURE OF DAMAGES ARISING THROUGH THE ALLEGED MISTAKE OR NEGLIGENCE OF AN OFFICER OF THE GOVERNMENT IMPOSES NO LIABILITY ON THE UNITED STATES THEREFOR, IN THE ABSENCE OF AN EXPRESS AGREEMENT TO THAT EFFECT OR UNLESS AUTHORIZED BY SPECIFIC LAW. WHERE OATS PURCHASED UNDER AN EMERGENCY ORDER FOR THE USE OF A NATIONAL GUARD TROOP WERE REJECTED BUT AFTERWARDS ACCEPTED BY AN ARMY OFFICER, THE APPROPRIATION "ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD, 1926," IS NOT AVAILABLE TO PAY THE COST OF EXTRA EXPENSE TO THE VENDOR FOR DRAYAGE OCCASIONED BY THE SECOND DELIVERY.

COMPTROLLER GENERAL MCCARL TO LIEUT.COL. C. R. WILLIAMS, DISBURSING OFFICER, WISCONSIN NATIONAL GUARD, JANUARY 6, 1926:

THERE HAS BEEN RECEIVED, THROUGH CHIEF OF FINANCE, YOUR REQUEST FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER SUBMITTED, STATED IN FAVOR OF THE DUNNEBACKE CO. FOR $10.50.

IT APPEARS THAT THE COMMANDING OFFICER OF THE ONE HUNDRED AND FIFTH CAVALRY, WISCONSIN NATIONAL GUARD, PURCHASED A QUANTITY OF OATS FOR THE USE OF TROOP E, LOCATED AT KENOSHA, WIS., WHICH UPON DELIVERY AND AFTER TEST WERE REJECTED AND, UPON REQUEST, REMOVED BY THE VENDOR.

AFTER A SAMPLE OF THE OATS HAD BEEN FORWARDED TO CHICAGO FOR A FURTHER TEST BY THE AGRICULTURE DEPARTMENT AND REPORT THEREON WAS MADE, THE OATS WERE REDELIVERED TO THE TROOP AND ACCEPTED, AND THE CLAIM NOW PRESENTED IS TO COVER DRAYAGE CHARGES IN EFFECTING THE SECOND DELIVERY. THE COMMANDING OFFICER, IN PART, STATES:

* * * PART OF THESE OATS HAD ALREADY BEEN HAULED TO STABLES * * * WHEN ORDER TO STOP HAULING WAS GIVEN. TEN-POUND SAMPLE OF OATS IN QUESTION WAS FORWARDED TO LT. GLEN D. GORTON, ASST., CHICAGO QUARTERMASTER INTERMEDIATE DEPOT, WHO TURNED SAME OVER TO DEPARTMENT OF AGRICULTURE, CHICAGO. ADVICE FROM CHICAGO, * * * STATED THAT THESE OATS TESTED 34.5 LBS. PER BUSHEL. THESE OATS WERE TESTED AT KENOSHA AND TESTED 29 1/3 LBS. PER BUSHEL. HOWEVER, SAME HAVE BEEN ACCEPTED * * *.

IT IS INDICATED ON THE VOUCHER PRESENTED THAT THE PURCHASE OF THE OATS WAS ACCOMPLISHED UNDER AN ORAL ORDER "WITHOUT ADVERTISING, UNDER AN EXIGENCY OF THE SERVICE WHICH EXISTED PRIOR TO THE ORDER AND WHICH WOULD NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING.' THE CLAIM PRESENTED IS ITEMIZED AS FOLLOWS:

TABLE 2 TEAMS, 3 HOURS EACH, AT 1.25 PER HR ----------------------- --- 7.50 2 HELPERS, 3 HOURS EACH, AT .50 PER HR ---------------------- --- 3.00

10.50 HAULING 2 LOADS OATS TO TROOP E AND BACK AGAIN.

THE STATEMENT OF THE COMMANDING OFFICER SHOWS THAT THE OATS WERE REJECTED IN THE FIRST INSTANCE BECAUSE THE TEST MADE AT THE ARMY POST INDICATED THE OATS WERE BELOW THE REQUIRED STANDARD AND THE CLAIMANT WAS ORDERED TO STOP HAULING, ETC. ON REPORT OF A LATER TEST MADE AT CHICAGO, THE OATS WERE REDELIVERED AND ACCEPTED. FROM THE EVIDENCE PRESENTED THE WRONGFUL REJECTION OF THE OATS IS NOT CLEARLY ESTABLISHED; THE REPORT OF THE COMMANDING OFFICER WOULD INDICATE TO THE CONTRARY. ASSUMING, HOWEVER, FOR THE PURPOSE OF CONSIDERING THE VALIDITY OF THE CLAIM FOR EXTRA EXPENSE, THAT THE ACTION REJECTING THE OATS WAS THE RESULT EITHER OF MISTAKE OR NEGLIGENCE OF THE ARMY OFFICER, IT IS CLEAR THAT THE APPROPRIATION "ARMING, EQUIPPING, AND TRAINING THE NATIONAL GUARD, 1926," IS NOT AVAILABLE TO PAY A CLAIM OF THIS CHARACTER.

NO OBLIGATION ARISES AGAINST THE UNITED STATES IN THIS OR SIMILAR CASES WHERE THE CLAIM, AS APPEARS HERE, IS IN THE NATURE OF DAMAGES OCCASIONED EITHER BY THE MISTAKE OR NEGLIGENCE OF AN OFFICER OR AGENT OF THE GOVERNMENT UNLESS PROVIDED FOR BY SPECIFIC LEGISLATION OR UNDER AN EXPRESS AGREEMENT AUTHORIZED BY LAW. SEE 1 COMP. GEN. 178; DECISION OF DECEMBER 13, 1921, APPEAL NO. 37723.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED.