A-19551, AUGUST 27, 1927, 7 COMP. GEN. 155

A-19551: Aug 27, 1927

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" THE CONTRACTOR IS NOT ENTITLED TO PAYMENT FOR MATERIAL NECESSARY TO REPLACE THAT DAMAGED IN TRANSIT. THE REPLACEMENT HAVING BEEN MADE WHEN REQUESTED WITHOUT ANY SUGGESTION THAT THE UNITED STATES WAS RESPONSIBLE AND PAYMENT OF THE CONTRACT PRICE ACCEPTED WITHOUT PROTEST. WHEREIN WAS DISALLOWED ITS CLAIM UNDER CONTRACT DATED OCTOBER 31. TO REPLACE GLASS TOPS WHICH WERE FOUND TO BE BROKEN WHEN THE DESKS WERE UNCRATED FOR INSTALLATION IN THEIR RESPECTIVE BUILDINGS. THE CLAIM WAS DISALLOWED ON THE GROUND THAT IT HAD NOT BEEN SHOWN THE GLASS TOPS WERE IN AN UNDAMAGED CONDITION WHEN DELIVERED F.O.B. ANY GLASS THAT IS RECEIVED IN A BROKEN CONDITION. AS WELL AS ANY OTHER DAMAGED OR DEFECTIVE PORTIONS OF THE DESKS ARE TO BE IMMEDIATELY REPLACED UPON RECEIPT OF NOTICE FROM THE CONSIGNEE.

A-19551, AUGUST 27, 1927, 7 COMP. GEN. 155

CONTRACTS - MATERIAL DAMAGED IN TRANSIT WHERE A CONTRACT PROVIDING FOR DELIVERY F.O.B. DESTINATION REQUIRED MATERIAL TO BE "PROPERLY CRATED AND DELIVERED IN AN UNDAMAGED CONDITION," THE CONTRACTOR IS NOT ENTITLED TO PAYMENT FOR MATERIAL NECESSARY TO REPLACE THAT DAMAGED IN TRANSIT, THE REPLACEMENT HAVING BEEN MADE WHEN REQUESTED WITHOUT ANY SUGGESTION THAT THE UNITED STATES WAS RESPONSIBLE AND PAYMENT OF THE CONTRACT PRICE ACCEPTED WITHOUT PROTEST.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 27, 1927:

JOHN E. SJOSTROM CO. (INC.) REQUESTED JUNE 27, 1927, REVIEW OF SETTLEMENT NO. 036548, DATED JUNE 1, 1927, WHEREIN WAS DISALLOWED ITS CLAIM UNDER CONTRACT DATED OCTOBER 31, 1925, FOR $103.18 AND $55.33, RESPECTIVELY, ON ACCOUNT OF TWO NEW GLASS TOPS FOR DESKS DELIVERED FOR THE POST OFFICE AT FRANKLIN, PA., AND ONE NEW GLASS TOP FURNISHED FOR THE POST OFFICE AT MYSTIC, CONN., TO REPLACE GLASS TOPS WHICH WERE FOUND TO BE BROKEN WHEN THE DESKS WERE UNCRATED FOR INSTALLATION IN THEIR RESPECTIVE BUILDINGS.

THE CLAIM WAS DISALLOWED ON THE GROUND THAT IT HAD NOT BEEN SHOWN THE GLASS TOPS WERE IN AN UNDAMAGED CONDITION WHEN DELIVERED F.O.B. DESTINATIONS. THE CONTRACTOR ALLEGES THAT THE PLACING OF THE DESKS IN STORAGE AND FAILURE TO INSPECT SAME IMMEDIATELY UPON RECEIPT HAD RESULTED IN REFUSAL OF THE CARRIER TO REIMBURSE IT FOR THE EXTRA GLASS TOPS AND CONTENDS THAT THE GOVERNMENT SHOULD ABSORB THE COSTS THEREOF.

THE CONTRACT OF OCTOBER 31, 1925, REQUIRED THE DELIVERY OF DESKS TO VARIOUS DESTINATIONS FOR USE IN POST-OFFICE BUILDINGS THEN UNDER CONSTRUCTION, AND PROVIDED:

SHIPMENT.--- THE DESKS SHALL BE PROPERLY CRATED AND DELIVERED IN AN UNDAMAGED CONDITION, WITH ALL FREIGHT CHARGES PREPAID BY THE CONTRACTOR, CONSIGNED AS DIRECTED.

ANY GLASS THAT IS RECEIVED IN A BROKEN CONDITION, AS WELL AS ANY OTHER DAMAGED OR DEFECTIVE PORTIONS OF THE DESKS ARE TO BE IMMEDIATELY REPLACED UPON RECEIPT OF NOTICE FROM THE CONSIGNEE, OR OTHER AUTHORIZED REPRESENTATIVE OF THE TREASURY DEPARTMENT, WITHOUT COST TO THE GOVERNMENT.

THE DESKS WILL BE DELIVERED FROM THE FREIGHT STATION AT POINT OF DESTINATION TO THE POST-OFFICE BUILDING BY OTHERS AND THE INK WELLS WILL BE FURNISHED AND INSTALLED BY THE GOVERNMENT.

WHEN THE DESKS FOR THE FRANKLIN POST-OFFICE BUILDING WERE RECEIVED AT DESTINATION ON JANUARY 26, 1926, THE BUILDING WAS NOT READY FOR THEIR INSTALLATION AND THEY WERE PLACED IN STORAGE UNTIL MAY 17-21, 1926, WHEN THEY WERE UNCRATED AND TWO GLASS TOPS WERE FOUND TO BE BROKEN. WHEN THE DESKS FOR THE MYSTIC POST OFFICE WERE RECEIVED AT DESTINATION ON FEBRUARY 1, 1926, THE SAID BUILDING LIKEWISE WAS NOT READY FOR INSTALLATION AND THE DESKS WERE PLACED IN STORAGE UNTIL APRIL 2, 1926, AND UPON BEING UNCRATED IT WAS FOUND THAT ONE OF THE GLASS TOPS WAS BROKEN. THE CONTRACTOR WAS PROMPTLY NOTIFIED IN EACH INSTANCE AND ADVISED THAT IT WOULD BE NECESSARY TO REPLACE THE TOPS BEFORE PAYMENT FOR THE DESKS COULD BE MADE. BY LETTER DATED JUNE 25, 1926, THE CONTRACTOR STATED WITH REFERENCE TO THE GLASS TOPS FOR THE FRANKLIN POST-OFFICE DESKS THAT---

IN ORDER TO HAVE THE DESK PLACED IN SATISFACTORY AND ACCEPTABLE CONDITION WE WILL ARRANGE TO FORWARD REPLACING SHIPMENT AT THE EARLIEST POSSIBLE DATE THAT ADDITIONAL GLASS TOPS CAN BE PROCURED.

WE EXCEEDINGLY REGRET THE INCONVENIENCE DUE TO APPARENT NEGLIGENCE OF THE TRANSPORTATION COMPANY AS THE DESKS WERE SUBSTANTIALLY CRATED WHEN DELIVERED TO THE LOCAL DEPOT. IT WILL REQUIRE TWO TO THREE WEEKS TO EFFECT REPLACING SHIPMENT AND WE WILL NOTIFY THE CUSTODIAN IMMEDIATELY AFTER SHIPMENT HAS BEEN EFFECTED AND TRUST THAT NO DIFFICULTY WILL BE ENCOUNTERED IN HAVING THE TOPS PROPERLY PLACED ON THE DESKS---

AND BY LETTER DATED DECEMBER 23, 1926, THE CONTRACTOR REPORTED THAT IT HAD RECEIVED NOTICE IN LETTER OF APRIL 2, 1926, OF THE BROKEN DESK TOP AT THE MYSTIC POST OFFICE AND THAT---

IN ORDER TO PLACE THE DESKS IN SATISFACTORY AND ACCEPTABLE CONDITION WE HAVE FURNISHED A NEW GLASS TOP AND SUBSEQUENTLY FILED CLAIM WITH THE PENNSYLVANIA RAILROAD FOR $55.33 COVERING THE COST.

THE CONTRACTOR RECEIVED PAYMENT OF THE CONTRACT PRICE FOR THE DESKS DELIVERED FOR THE MYSTIC POST OFFICE ON VOUCHER 130567, JUNE, 1926, ACCOUNTS, AND FOR THE DESKS DELIVERED FOR THE FRANKLIN POST OFFICE ON VOUCHER 47074, SEPTEMBER, 1926, ACCOUNTS OF J. L. SUMMERS, DISBURSING CLERK, TREASURY DEPARTMENT. BOTH VOUCHERS WERE CERTIFIED BY THE CONTRACTOR AS BEING CORRECT AND JUST, AND PAYMENT WAS ACCEPTED WITHOUT PROTEST. THE CONTRACTOR SUBMITTED CLAIM TO THE CARRIER FOR REIMBURSEMENT OF THE COST OF REPLACING THE THREE GLASS TOPS AND THE CARRIER REFUSED PAYMENT THEREOF ON OCTOBER 18, 1926, ON THE GROUND THAT THE BREAKAGE WAS "NOT CLEARLY AND DEFINITELY ESTABLISHED AS HAVING OCCURRED WHILE THE PROPERTY WAS IN THE CUSTODY OF THE CARRIERS.'

IT LIKEWISE MAY BE SAID THAT THE LOSS IS NOT CLEARLY AND DEFINITELY ESTABLISHED AS HAVING OCCURRED WHILE IN THE CUSTODY OF THE UNITED STATES DURING THE INTERVAL BETWEEN THE RECEIPT AT THEIR RESPECTIVE DESTINATIONS AND BEFORE THEY WERE UNCRATED, BUT THE FACT THAT THE TWO SHIPMENTS MADE TO WIDELY SEPARATE DESTINATIONS WERE FOUND TO BE IN THE SAME CONDITION WHEN UNCRATED RAISES A STRONG INFERENCE THAT THE DESKS AND THEIR GLASS TOPS WERE NOT "PROPERLY CRATED" WHEN SHIPPED AND THAT THE LOSS RESULTED BECAUSE THEREOF. THE COINCIDENCE OF STORAGE IS NOT SUFFICIENT TO EXPLAIN THE FACT THAT THE GLASS TOPS WERE BROKEN IN BOTH SHIPMENTS. HOWEVER THIS MAY BE, THE CONTRACTOR REPLACED THE GLASS TOPS WHEN REQUESTED TO DO SO WITHOUT ANY SUGGESTION THAT THE RESPONSIBILITY FOR THE LOSS WAS THAT OF THE UNITED STATES AND ACCEPTED PAYMENT OF THE CONTRACT PRICE FOR DESKS ,DELIVERED IN AN UNDAMAGED CONDITION" WITHOUT PROTEST. UNDER SUCH CIRCUMSTANCES THERE APPEAR NO RIGHTS ENFORCEABLE FOR THE LOSS AS THAT OF THE UNITED STATES. SEE 3 COMP. GEN. 9.