A-13233, JULY 13, 1926, 6 COMP. GEN. 36

A-13233: Jul 13, 1926

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IT WAS AGREED THAT THE CYLINDERS IN WHICH THE GASES WERE CONTAINED WOULD BE RETURNED TO THE VENDOR. THE GOVERNMENT IS LIABLE. IS TO REQUIRE THE PURCHASERS TO PAY FOR ONE OR MORE CYLINDERS. WHICH WHEN EMPTIED ARE EXCHANGED FOR FULL CYLINDERS. THAT THIS REQUIREMENT WAS WAIVED IN THIS CASE AND IT WAS ORALLY AGREED. THE CYLINDERS WERE BURNED AND RENDERED ENTIRELY WORTHLESS. IN THE EVENT ANY CYLINDER IS INJURED. IT IS FURTHER AGREED THAT THE CYLINDERS TO BE SHIPPED BY THE SELLER TO THE PURCHASER ARE OF THE FOLLOWING VALUES: CHART OXYGEN HYDROGEN CYLINDERS OF THE CAPACITY OF - 150 CU.FT. IN ITS APPLICATION FOR REVIEW CLAIMANT STATES: OXYGEN AND ACETYLENE IS ALWAYS SOLD ON YEARLY CONTRACTS BUT THE U.S.

A-13233, JULY 13, 1926, 6 COMP. GEN. 36

PURCHASES, OXYGEN AND ACETYLENE - EMPTY CONTAINERS WHERE, AT THE TIME OF PURCHASE BY ORAL AGREEMENT OF OXYGEN AND ACETYLENE FOR USE OF THE GOVERNMENT, IT WAS AGREED THAT THE CYLINDERS IN WHICH THE GASES WERE CONTAINED WOULD BE RETURNED TO THE VENDOR, OR THAT IN CASE OF LOSS OR DESTRUCTION OF THE CYLINDERS FROM WHATEVER CAUSE AFTER DELIVERY TO THE GOVERNMENT THE UNITED STATES WOULD PAY THE VENDOR THE VALUE THEREOF AS STATED IN THE CONDITIONS PRINTED ON THE VENDOR'S BILL FORM, THE GOVERNMENT IS LIABLE, AS BAILEE, FOR THE STATED VALUE OF THE CYLINDERS IN THE CASE OF THEIR LOSS OR DESTRUCTION WHILE IN ITS POSSESSION, NOTWITHSTANDING THE LACK OF FAULT OR NEGLIGENCE ON THE PART OF ANY EMPLOYEE OF THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 13, 1926:

THE MEMPHIS OXYGEN CO., BY LETTER DATED FEBRUARY 3, 1926, APPLIED FOR REVIEW OF SETTLEMENT NO. 0116017, DATED JANUARY 26, 1926, DISALLOWING ITS CLAIM FOR $175 AS PAYMENT FOR ONE OXYGEN CYLINDER (150 CU.FT. CAPACITY, $25) AND TWO ACETYLENE CYLINDERS (250 CU.FT. CAPACITY, $75 EACH) DESTROYED BY FIRE WHILE IN POSSESSION OF THE DISTRICT ENGINEER, WAR DEPARTMENT, MEMPHIS, TENN., ON SEPTEMBER 17, 1925.

THE DISTRICT ENGINEER HAS STATED THAT IN THE SALE OF OXYGEN AND ACETYLENE THE USUAL COMMERCIAL PRACTICE PREVAILING IN THE VICINITY OF MEMPHIS, TENN., IS TO REQUIRE THE PURCHASERS TO PAY FOR ONE OR MORE CYLINDERS, AS MAY BE REQUIRED, WHICH WHEN EMPTIED ARE EXCHANGED FOR FULL CYLINDERS, PAYMENT THEREAFTER BEING MADE ONLY FOR THE CONTENTS OF THE NEW CYLINDERS; THAT THIS REQUIREMENT WAS WAIVED IN THIS CASE AND IT WAS ORALLY AGREED, IN ACCORDANCE WITH CONDITIONS NOS. 8 AND 9, PRINTED ON THE BACK OF THE COMPANY'S BILL FORM, THAT THE UNITED STATES WOULD BE RESPONSIBLE AND MAKE SETTLEMENT FOR ANY INJURY TO THE CYLINDERS OR FOR THEIR LOSS WHILE IN ITS POSSESSION; AND THAT ON SEPTEMBER 17, 1925, IN CONNECTION WITH THE DESTRUCTION OF THE WOODWORK ON A LEVEE MACHINE BY AN UNAVOIDABLE FIRE, THROUGH NO FAULT OR NEGLIGENCE ON THE PART OF ANY EMPLOYEE OF THE GOVERNMENT, THE CYLINDERS WERE BURNED AND RENDERED ENTIRELY WORTHLESS.

THE CONDITIONS REFERRED TO BY THE DISTRICT ENGINEER READ:

8. IN THE EVENT OF THE LOSS OF DESTRUCTION, OR INJURY EQUIVALENT TO DESTRUCTION, BY FIRE, OR THEFT, OR USE OF OIL OR ANY OTHER CAUSES, EITHER WITH OR WITHOUT THE NEGLIGENCE OF THE PURCHASER, OF ANY OF SAID CYLINDERS,AFTER SHIPMENT OR DELIVERY BY THE SELLER TO THE PURCHASER, THE PURCHASER SHALL PAY THE SELLER THE VALUE THEREOF, AS HEREIN SPECIFIED; AND IN THE EVENT ANY CYLINDER IS INJURED, BUT SUSCEPTIBLE OF REPAIR AT REASONABLE COST, THE PURCHASER AGREES TO PAY THE SELLER THE REASONABLE COST OF SUCH REPAIRS.

9. IT IS FURTHER AGREED THAT THE CYLINDERS TO BE SHIPPED BY THE SELLER TO THE PURCHASER ARE OF THE FOLLOWING VALUES:

CHART OXYGEN HYDROGEN CYLINDERS OF THE CAPACITY OF - 150 CU.FT.---- $25.00 EACH.

220 CU.FT.---- 40.00 EACH. ACETYLENE CYLINDERS OF THE CAPACITY OF ------ - 100 CU.FT.---- 37.50 EACH.

250 CU.FT.---- 75.00 EACH.

IN ITS APPLICATION FOR REVIEW CLAIMANT STATES:

OXYGEN AND ACETYLENE IS ALWAYS SOLD ON YEARLY CONTRACTS BUT THE U.S. GOVERNMENT WILL NOT SIGN A CONTRACT. IN LIEU OF THIS, WHEN WE STARTED SELLING THE DISTRICT ENGINEERS AT MEMPHIS, THEY GUARANTEED TO RETURN ALL CYLINDERS IN GOOD CONDITION OR PAY FOR ANY DAMAGE. THIS IS ALSO SHOWN ON THE BACK OF OUR INVOICES AND THESE INVOICES ARE ACCEPTED BY GOVERNMENT AGENTS. * * *

THE TERMS OF THE CONTRACT WHICH CLAIMANT STATES THE AGENTS OF THE GOVERNMENT WOULD NOT SIGN DO NOT APPEAR.

IN 19 COMP. DEC. 132 IT WAS STATED:

A BAILEE IN THE ABSENCE OF A SPECIAL CONTRACT IS NOT AN INSURER OF THE THING BAILED (BOYDEN V. UNITED STATES, 13 WALL., 17, 22) AND IS NOT RESPONSIBLE FOR DAMAGES OR LOSSES ARISING FROM INEVITABLE ACCIDENT OR UNDER CIRCUMSTANCES WHICH MIGHT NOT REASONABLY HAVE BEEN FORESEEN AND PROVIDED AGAINST. (UNITED STATES V. THOMAS, 15, WALL., 337).

A BAILEE MAY, OF COURSE, ENLARGE HIS LEGAL RESPONSIBILITY BY CONTRACT, EXPRESS OR FAIRLY IMPLIED, SO AS TO RENDER HIMSELF LIABLE FOR THE LOSS OR DAMAGE OF THE THING COMMITTED TO HIS CARE--- THE COMPENSATION TO BE RECEIVED THEREFORE BEING A SUFFICIENT CONSIDERATION FOR SUCH AN UNDERTAKING. (STURM V. BOKER, 150 U.S. 312, 330.)

THE COURT OF CLAIMS IN A RECENT CASE (PINTSCH COMPRESSING COMPANY V. UNITED STATES, DECIDED MARCH 15, 1926), INVOLVING THE QUESTION OF THE LIABILITY OF THE UNITED STATES TO THE PLAINTIFF FOR THE VALUE OF FOUR GAS TANKS SO DAMAGED THROUGH MISUSE WHILE UNDER RENTAL TO THE ARMY THAT THEY COULD NOT BE RETURNED TO THE PLAINTIFF IN SERVICEABLE CONDITION, HELD THAT ALTHOUGH THE UNITED STATES MADE NO CONTRACT TO COMPENSATE THE PLAINTIFF FOR THE VALUE OF THE TANKS IF THEY WERE NOT RETURNED IN GOOD CONDITION, THE LAW IMPOSED THAT OBLIGATION; THAT THE CONTRACT WAS ONE OF BAILMENT FOR HIRE IMPOSING THE OBLIGATION TO RETURN THE RENTED PROPERTY IN AS GOOD CONDITION AS WHEN RECEIVED, NATURAL WEAR EXCEPTED, AND, FAILING IN THIS, TO COMPENSATE TO THE EXTENT OF THE VALUE OF THE PROPERTY WHEN RECEIVED.

IN THAT CASE IT APPEARS THAT AT THE TIME OF THE INFORMAL AGREEMENT FOR RENTAL THE PLAINTIFF, BEING REQUESTED BY THE GOVERNMENT OFFICER FOR PURPOSES OF HIS OWN OTHER THAN PURCHASE TO FIX A VALUE ON THE TANKS, FIXED SUCH VALUE AT $1,000 EACH; AND SUCH A VALUE WAS FIXED IN THE JUDGMENT GIVEN FOR THE PLAINTIFF.

THERE IS NO SHOWING IN THE INSTANT CASE THAT THE ORAL AGREEMENT HAD ANY REFERENCE TO RENTAL OF THE CYLINDERS.

THE PURCHASE OF THE GASES IN THE INSTANT CASE UNDER AN ORAL AGREEMENT WAS AUTHORIZED, HOWEVER, BY REGULATION (SEE PARAGRAPH 469, ORDERS AND REGULATIONS, CORPS OF ENGINEERS, U.S. ARMY), AND AS THE GASES WERE TO BE DELIVERED IN CYLINDERS WHICH WERE TO REMAIN THE PROPERTY OF THE VENDOR, TO WHOM THEY WERE TO BE RETURNED BY THE GOVERNMENT, IT WOULD APPEAR THAT THERE WAS SUCH AN ENLARGEMENT OF ITS RESPONSIBILITY UNDER THE SAID ORAL AGREEMENT AS MADE THE UNITED STATES LIABLE, AS BAILEE, FOR THE STATED VALUE OF THE CYLINDERS IN CASE OF THEIR LOSS OR DESTRUCTION FROM WHATEVER CAUSE WHILE IN THE POSSESSION OF THE UNITED STATES. THE FACT, THEREFORE, THAT THE CYLINDERS WERE DESTROYED BY AN UNAVOIDABLE FIRE, THROUGH NO FAULT OR NEGLIGENCE ON THE PART OF ANY EMPLOYEE OF THE GOVERNMENT, DOES NOT SERVE TO RELIEVE THE UNITED STATES FROM LIABILITY FOR THEIR VALUE.