A-21480, APRIL 17, 1928, 7 COMP. GEN. 667

A-21480: Apr 17, 1928

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10 ARMY TRUCK LOADS OF SOD AND CLAY WERE REMOVED THEREFROM AND USED ELSEWHERE BY DIRECTION OF ARMY AUTHORITIES. SUCH ACTS CONSTITUTE ONLY A BREACH OF THE INVOLVED CONTRACT IN A MINOR RESPECT WHICH COULD HAVE BEEN COMPENSATED IN DAMAGES TO THE INJURED PARTY. SAID BID WAS ACCEPTED BY THE GOVERNMENT AND THE BIDDER NOTIFIED OF SUCH ACCEPTANCE BY LETTER DATED AND MAILED ON DECEMBER 14. IS LOCATED ABOUT ONE MILE NORTH OF FORT MONROE. IS A TRACT OF LAND. WHICH WAS CONVEYED TO THE UNITED STATES OF AMERICA BY DEED FROM JAMES A. IS BOUNDED AS FOLLOWS: ON THE NORTH AND WEST BY THE LANDS OF ROSE LATIMER. THE TRACT OF LAND IS DESCRIBED IN DETAIL BY METES AND BOUNDS WITH NO REFERENCE TO THE TOPOGRAPHY OR THE CONDITION OF THE SURFACE OF LAND.

A-21480, APRIL 17, 1928, 7 COMP. GEN. 667

CONTRACTS - BREACH - DAMAGES WHERE, SUBSEQUENT TO THE EXECUTION OF A CONTRACT OF PURCHASE AND SALE FOR A 15-ACRE TRACT OF GOVERNMENT-OWNED LAND, 10 ARMY TRUCK LOADS OF SOD AND CLAY WERE REMOVED THEREFROM AND USED ELSEWHERE BY DIRECTION OF ARMY AUTHORITIES, UNDER THE MISTAKEN BELIEF THAT THE LAND BELONGED TO THE UNITED STATES, SUCH ACTS DO NOT CONSTITUTE A TOTAL FAILURE OF CONSIDERATION OR AUTHORIZE A RESCISSION OF THE CONTRACT OF SALE AND RELEASE OF THE PURCHASER FROM LIABILITY THEREUNDER; BUT SUCH ACTS CONSTITUTE ONLY A BREACH OF THE INVOLVED CONTRACT IN A MINOR RESPECT WHICH COULD HAVE BEEN COMPENSATED IN DAMAGES TO THE INJURED PARTY.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 17, 1928:

EDNA S. SINGLES, OF FORT BARRANCAS, FLA., APPLIED JANUARY 19, 1928, FOR REVIEW OF SETTLEMENT NO. 0209380, DATED JANUARY 17, 1928, DISALLOWING HER CLAIM FOR REFUND OF THE $1,000 PAYMENT MADE ON THE PURCHASE MONEY DUE THE UNITED STATES FOR A CERTAIN TRACT OF LAND PURCHASED UNDER CONTRACT NO. WQM -121, DATED DECEMBER 14, 1926.

THE CLAIMANT CONTENDS THAT SUBSEQUENT TO THE EXECUTION OF SAID CONTRACT OF PURCHASE AND SALE NO. WQM-121, THE GOVERNMENT BY ITS OWN ACTS HAS MADE IT IMPOSSIBLE FOR IT TO FULLY PERFORM THE CONTRACT, AS IT HAD AGREED, INASMUCH AS IT HAS PERMITTED THE REMOVAL OF QUANTITIES OF SOD AND SUBSOIL FROM THE LAND, WITHOUT CLAIMANT'S CONSENT, AND CONVERTED SAME TO ITS OWN USE ELSEWHERE, AND THAT SUCH ACTS OF THE GOVERNMENT CONSTITUTED A BREACH OF THE CONTRACT BY THE UNITED STATES WHICH AMOUNTS TO A RESCISSION AND ENTITLES THE VENDEE TO A REFUND OF THE PURCHASE MONEY PAID THEREON.

IT APPEARS THAT ON NOVEMBER 10, 1926, THE QUARTERMASTER GENERAL OF THE ARMY, PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 4, 1923, 42 STAT. 1450, THE ACT OF JULY 9, 1918, 40 STAT. 850, AND THE ACT OF JULY 11, 1919, 41 STAT. 129, AND BY ORDER OF THE SECRETARY OF WAR, ADVERTISED AND OFFERED FOR SALE BY SEALED BIDS TO BE OPENED AT THE PLACE THEREIN SPECIFIED, AT 11 O-CLOCK A.M. ON DECEMBER 10, 1926, CERTAIN GOVERNMENT-OWNED LANDS AND IMPROVEMENTS, ETC., AS DESCRIBED IN THE SPECIFICATIONS OF SALE, AND UPON THE TERMS AND CONDITIONS THEREIN SET FORTH. ON DECEMBER 4, 1926, EDNA S. SINGLES SUBMITTED A BID OF $3,000 FOR THE PURCHASE OF SOME OF THE PROPERTY SO ADVERTISED FOR SALE, DESIGNATED AS THE MILITARY RESERVATION KNOWN AS THE PUMPING STATION RESERVE, FORT MONROE (PHOEBUS), VA. SAID BID WAS ACCEPTED BY THE GOVERNMENT AND THE BIDDER NOTIFIED OF SUCH ACCEPTANCE BY LETTER DATED AND MAILED ON DECEMBER 14, 1926. UNDER DATE OF DECEMBER 14, 1926, THE UNITED STATES AND EDNA S. SINGLES ENTERED INTO A WRITTEN PURCHASE AND SALES CONTRACT UNDER THE PROVISIONS OF WHICH THE FORMER AGREED TO SELL AND THE LATTER TO PURCHASE, FOR THE SUM OF $3,000, THE TRACT OF LAND COMPRISING THE MILITARY RESERVATION KNOWN AS THE PUMPING STATION RESERVE, LYING AND BEING IN THE CITY OF PHOEBUS, ELIZABETH CITY COUNTY, STATE OF VIRGINIA, DESCRIBED IN PARAGRAPH NO. 2 OF THE SPECIFICATIONS OF SALE, MADE A PART OF THE CONTRACT, AS FOLLOWS: THE PUMPING STATION RESERVE, AT FORT MONROE (PHOEBUS), VA., COMPRISING APPROXIMATELY 15.4 ACRES, IS LOCATED ABOUT ONE MILE NORTH OF FORT MONROE, VA., AND HAS FRONTAGE ON MILL CREEK, AND IS A TRACT OF LAND, WITH NO GOVERNMENT-OWNED IMPROVEMENTS THEREON, WHICH WAS CONVEYED TO THE UNITED STATES OF AMERICA BY DEED FROM JAMES A. J. BRADFORD, DATED FEBRUARY 12, 1841, RECORDED IN ELIZABETH CITY COUNTY CLERK'S OFFICE, APRIL 8, 1841, AND RE-RECORDED ON MAY 4, 1926, IN VOL. 78, PAGE 357, ELIZABETH CITY COUNTY, B. AND S. DEEDS. SAID DEED RECITES THAT THE TRACT CONTAINS 15 ACRES, MORE OR LESS, AND IS BOUNDED AS FOLLOWS: ON THE NORTH AND WEST BY THE LANDS OF ROSE LATIMER, DECEASED; ON THE EAST BY THE LANDS OF THE LATE WILLIAM HAM; AND ON THE SOUTH BY MILL CREEK. A SURVEY MADE BY GIRARD CHAMBERS, SURVEYOR OF WARWICK AND ELIZABETH CITY COUNTIES, VA., IN MAY, 1924, SHOWS THE PROPERTY TO CONTAIN 15.05 ACRES, EXCLUSIVE OF THE RIGHT OF WAY, AND COUNTY ROADS, SAID RIGHTS OF WAY CONTAINING 0.40 ACRES. FROM THE SURVEY MADE BY GIRARD CHAMBERS, THE TRACT OF LAND IS DESCRIBED IN DETAIL BY METES AND BOUNDS WITH NO REFERENCE TO THE TOPOGRAPHY OR THE CONDITION OF THE SURFACE OF LAND.

BY THE PROVISIONS OF SAID CONTRACT ONE-THIRD OF THE PURCHASE MONEY, $1,000, WAS TO BE PAID AT THE TIME OF THE EXECUTION OF THE CONTRACT AND THE OTHER TWO-THIRDS THEREOF, $2,000, WAS TO BE PAID IN FOUR SEMI ANNUAL INSTALLMENTS, AS FOLLOWS: $500 ON JUNE 14, 1927; $500 ON DECEMBER 14, 1927; $500 ON JUNE 14, 1928; AND $500 ON DECEMBER 14, 1928; TOGETHER WITH INTEREST ON THE DEFERRED PAYMENTS AT THE RATE OF 5 PERCENT PER ANNUM.

THE SPECIFICATIONS, MADE A PART OF THE CONTRACT, CONTAINED THE FOLLOWING PROVISIONS:

16. IN THE EVENT OF FAILURE UPON THE PART OF THE SUCCESSFUL BIDDER OR BIDDERS TO ENTER INTO AND EXECUTE A CONTRACT OF SALE, IF SAME IS REQUIRED BY THE GOVERNMENT, WITHIN FIFTEEN (15) DAYS AFTER THE CONTRACT OF SALE IS PRESENTED FOR EXECUTION AND/OR TO PAY THE AMOUNT REQUIRED TO BE PAID AT THE TIME OF THE EXECUTION OF THE CONTRACT OF SALE AS HEREIN PROVIDED FOR, AND/OR TO PAY THE AMOUNT REQUIRED TO BE PAID AS HEREINAFTER PROVIDED, THE DEPOSIT WHICH ACCOMPANIED THE BID, AS HEREINAFTER PROVIDED FOR, WILL BE RETAINED BY THE UNITED STATES OF AMERICA AS LIQUIDATED DAMAGES, AND THE GOVERNMENT MAY AT ITS OPTION RESELL OR OTHERWISE DISPOSE OF THE PROPERTY AS MAY BE DEEMED TO BE TO ITS BEST INTEREST, AND THE SUCCESSFUL BIDDER SHALL BE HELD RESPONSIBLE FOR ANY COST, EXPENSE, AND/OR LOSS RESULTING TO THE UNITED STATES FROM SUCH RESALE OF THE PROPERTY.

18. IN THE EVENT OF DEFAULT ON THE PART OF THE PURCHASER IN THE PERFORMANCE OF THE TERMS OF THE CONTRACT OF SALE, AFTER EXECUTION THEREOF, THE GOVERNMENT MAY, AT ITS OPTION, RESELL OR OTHERWISE DISPOSE OF THE PROPERTY COVERED BY SAID CONTRACT, AND COMPLETE THE TERMS OF SALE AS MAY BE DEEMED TO BE TO THE BEST INTEREST OF THE UNITED STATES OF AMERICA AND THE DEFAULTING PURCHASER SHALL BE HELD RESPONSIBLE FOR ANY COST, EXPENSE, OR LOSS RESULTING FROM SUCH DEFAULT AND DISPOSAL OF THE PROPERTY.

19. THE UNITED STATES OF AMERICA WILL EXECUTE AND DELIVER TO THE PURCHASER A QUITCLAIM DEED FOR THE PROPERTY PURCHASED UPON FULL PAYMENT OF THE PURCHASE PRICE AND/OR SUCH PORTION OF THE PROPERTY UPON ADVANCE PAYMENTS, AND UPON SUCH TERMS AS MAY BE LATER MUTUALLY AGREED UPON BETWEEN THE GOVERNMENT AND THE PURCHASER.

22. THE TITLE TO THE PROPERTIES DESCRIBED HEREIN AS PUMPING STATION RESERVE, FORT MONROE (PHOEBUS), VIRGINIA; AND RAILROAD RIGHT-OF-WAY AT SEVEN PINES ORDNANCE RESERVE DEPOT, VIRGINIA, SHALL REMAIN VESTED IN THE UNITED STATES OF AMERICA UNTIL THE FULL PURCHASE PRICE HAS BEEN PAID, OR SHALL BE CONVEYED UPON SUCH TERMS AS MAY BE LATER MUTUALLY AGREED UPON BETWEEN THE GOVERNMENT AND THE PURCHASER.

31. BIDS MUST BE ACCOMPANIED BY CASH OR CERTIFIED CHECKS PAYABLE TO THE ORDER OF THE "CHIEF OF FINANCE, U.S. ARMY," IN AMOUNT NOT LESS THAN TEN PERCENT (10 PERCENT) OF THE TOTAL OF THE BIDS. THE DEPOSIT WILL BE APPLIED TO THE PURCHASE PRICE UPON CONSUMMATION OF THE SALE, OR IN THE EVENT OF FAILURE ON THE PART OF THE SUCCESSFUL BIDDER OR BIDDERS TO CONSUMMATE THE SALE AS HEREIN PROVIDED, THE DEPOSITS WILL BE RETAINED BY THE UNITED STATES AS LIQUIDATED DAMAGES. CASH OR CERTIFIED CHECKS ACCOMPANYING BIDS UPON WHICH NO AWARD IS MADE WILL BE RETURNED TO THE UNSUCCESSFUL BIDDERS AS SOON AS AWARDS HEREUNDER HAVE BEEN MADE.

32. THE BALANCE OF THE PURCHASE PRICE OVER AND ABOVE THE AMOUNT OF THE DEPOSIT, FOR THE PUMPING STATION RESERVE, FORT MONROE (PHOEBUS), VIRGINIA, ITEM 1; AND THE RAILROAD RIGHT-OF-WAY AT SEVEN PINES ORDNANCE RESERVE DEPOT, VIRGINIA, ITEM 2; IF THE BID IS FOR ALL CASH, MUST BE PAID WITHIN THIRTY (30) DAYS AFTER NOTICE THAT QUITCLAIM DEED HAS BEEN EXECUTED AND IS READY FOR DELIVERY. NOTICE THAT QUITCLAIM DEED HAS BEEN EXECUTED AND IS READY FOR DELIVERY IF NOT PERSONALLY MADE TO THE PURCHASER, OR HIS DULY AUTHORIZED REPRESENTATIVE, SHALL BE DEEMED TO HAVE BEEN GIVEN WHEN SAID NOTICE IS MAILED TO THE PURCHASER AT THE ADDRESS INDICATED BY THE BID.

33. THE SUCCESSFUL BIDDER MAY ELECT TO PAY AN AMOUNT FOR THE PROPERTIES DESCRIBED IN THE PRECEDING PARAGRAPH 32, WHICH AMOUNT, TOGETHER WITH THE AMOUNT OF THE DEPOSIT, WILL EQUAL AT LEAST THIRTY THREE AND ONE-THIRD PERCENT (33 1/3 PERCENT) OF THE TOTAL PURCHASE PRICE WHEN CONTRACT OF SALE IS EXECUTED, AND THE BALANCE OF THE PURCHASE PRICE TO BE PAID IN EQUAL SEMIANNUAL INSTALLMENTS, TOGETHER WITH INTEREST ON ALL SUCH DEFERRED PAYMENTS AT THE RATE OF FIVE PERCENT (5 PERCENT) FROM THE DATE OF THE AWARD, SUCH DEFERRED PAYMENTS TO COVER A PERIOD NOT EXCEEDING FIVE (5) YEARS, INTEREST ON ALL DEFERRED PAYMENTS TO BE PAID SEMIANNUALLY FROM DATE OF AWARD.

THE RECORD DISCLOSES THAT THE INITIAL PAYMENT OF $1,000 OF THE AGREED PURCHASE PRICE FOR THE REAL ESTATE SO SOLD WAS PAID TO THE CONTRACTING OFFICER AT OR ABOUT THE TIME OF THE EXECUTION OF THE CONTRACT OF PURCHASE AND SALE AND THAT NO FURTHER PAYMENTS THEREON HAVE BEEN MADE. SUBMITTING HER CLAIM TO THIS OFFICE FOR CONSIDERATION, THE PURCHASER, IN LETTER DATED NOVEMBER 28, 1927, AMONG OTHER THINGS, STATED:

5. SOME TIME AFTER DECEMBER 14, 1926, AND BEFORE JUNE 14, 1927, THE EXACT DATE OF WHICH IS NOT WITHIN MY KNOWLEDGE, THE UNITED STATES BY ITS OFFICERS AND AGENTS WITHOUT MY CONSENT OR APPROVAL ENTERED UPON THE PROPERTY AGREED TO BE SOLD AND REMOVED THEREFROM LARGE SECTIONS OF SOD AND SUBSOIL AND CONVERTED THE SAME TO ITS OWN USES, THEREBY NOT ONLY RENDERING THE PROPERTY I WAS TO BUY UNSUITABLE FOR RESIDENCE PURPOSES BUT MAKING IT A MENACE TO THE HEALTH OF THOSE RESIDING ON ADJOINING PROPERTY. THIS REMOVAL TO THE BEST OF MY INFORMATION AND BELIEF WAS SOME TIME IN MARCH, 1927. ON APRIL 29, 1927, I WROTE MAJOR WHEELER, THE CONTRACTING OFFICER, OF THIS SITUATION AND DEMANDED A RESCISSION OF THE CONTRACT OF SALE AND PURCHASE AND THE RETURN TO ME OF THE $1,000 I HAD PAID IN PURSUANCE OF SUCH CONTRACT. ON MAY 18, 1927, MAJOR WHEELER REPLIED TO MY LETTER ADMITTING THAT THERE HAD BEEN SOME REMOVAL OF SOIL FROM THE PROPERTY I HAD AGREED TO BUY BUT STATING THAT "IN REMOVING SUCH CLAY SPECIAL CARE WAS TAKEN SO THAT NO DEPRESSIONS WERE LEFT WHICH MIGHT BE OBJECTIONABLE WITH SPECIAL REFERENCE TO MOSQUITO-BREEDING POOLS OF WATER" AND SUGGESTING THAT I SUBMIT CLAIM FOR ANY DAMAGE OCCASIONED BY SUCH REMOVAL. FURTHER CORRESPONDENCE WAS HAD WITH THE WAR DEPARTMENT, THE GENERAL EFFECT OF WHICH WAS THAT THE QUARTERMASTER DEPARTMENT CONCLUDED THAT THERE HAD BEEN APPROXIMATELY 10 LOADS OF CLAY REMOVED FROM THE PREMISES WHICH COULD BE REPLACED AND THE PROPERTY RESTORED "TO THE CONDITION IN WHICH IT WAS AT THE TIME OF ITS SALE TO YOU AT A COST OF $70.' (MAJOR WHEELER'S LETTER OF SEPTEMBER 10, 1927, Q.M. 602.2.) I DECLINED TO ACCEPT ANY SUCH ADJUSTMENT, AS IT WAS OBVIOUS TO ME THE UNITED STATES HAD INCAPACITATED ITSELF FROM CARRYING OUT THE CONTRACT TO SELL BY MAKING IT IMPOSSIBLE TO DEED TO ME THE IDENTICAL PROPERTY AGREED TO BE SOLD. IN PERSON AND BY MY ATTORNEYS I AGAIN DEMANDED A RESCISSION OF THE CONTRACT AND A RETURN OF THE $1,000 PAID BY ME TO APPLY THEREON. BY LETTER OF NOVEMBER 2, 1927, I AM FORMALLY ADVISED (LETTER OF MAJOR BROWN, FINANCE DEPARTMENT, FAC 167/78291 SINGLES, EDNA S.) "THAT THIS OFFICE HAS BEEN ADVISED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY, THAT THE DEMAND FOR THE RESCISSION OF THE CONTRACT AND THE RETURN OF MONEY PAID BY MRS. SINGLES THEREUNDER SHOULD BE DENIED.'

THE FACTS RELATIVE TO THE ALLEGED BREACH OF THE INVOLVED CONTRACT OF PURCHASE AND SALE, AND THE PURCHASER'S CLAIM FOR RESCISSION THEREOF, ARE REPORTED BY THE JUDGE ADVOCATE GENERAL TO THE CHIEF OF FINANCE, WAR DEPARTMENT, IN LETTER OF OCTOBER 29, 1927, TO BE AS FOLLOWS:

3. THERE IS NO RECORD THAT THE COMMANDING GENERAL, THE QUARTERMASTER, OR THE CONSTRUCTING QUARTERMASTER AT FORT MONROE, VIRGINIA, HAD NOTICE THAT THIS LAND HAD BEEN SOLD BY THE GOVERNMENT, UNTIL SOME TIME IN MAY, 1927, AND, IN THE BELIEF THAT IT STILL BELONGED TO THE GOVERNMENT, TEN (10) LOADS OF CLAY WERE REMOVED THEREFROM IN MARCH, 1927. CARE WAS USED TO LEAVE NO DEPRESSIONS IN WHICH MOSQUITO-BREEDING POOLS OF WATER MIGHT COLLECT.

4. ON APRIL 25, 1927, MRS. SINGLES WROTE TO THE QUARTERMASTER GENERAL FROM FORT BARRANCAS, FLORIDA, COMPLAINING THAT AT VARIOUS TIMES SINCE DECEMBER 14, 1926, AND PARTICULARLY IN MARCH, 1927, PARTIES OF SOLDIERS WITH ARMY TRUCKS FROM FORT MONROE HAD EXCAVATED AND HAULED SOD AND SOIL FROM THE PUMPING RESERVATION FOR THE PURCHASE OF WHICH SHE HAD ENTERED INTO A CONTRACT ON DECEMBER 14, 1926. SHE DECLARED THAT SUCH ACTS WERE A VIOLATION OF THE TERMS OF THE CONTRACT BETWEEN THE GOVERNMENT AND HERSELF, AND UNDOUBTEDLY THE BASIS OF A CLAIM FOR DAMAGES, BUT, SINCE SHE DID NOT WISH TO BECOME EMBROILED IN A LAWSUIT, DEMANDED ONLY THE ABROGATION OF THE CONTRACT AND THE RETURN OF THE MONEY SHE HAD PAID THEREUNDER. ON MAY 18, 1926, BY DIRECTION OF THE QUARTERMASTER GENERAL, EDNA S. SINGLES WAS INFORMED THAT THROUGH A MISUNDERSTANDING 10 LOADS OF CLAY HAD BEEN REMOVED FROM THE PROPERTY COVERED BY HER CONTRACT OF SALE, AND THAT, IF SHE SAW FIT, SHE MIGHT SUBMIT A CLAIM FOR DAMAGE TO THE PROPERTY. THERE IS NO RECORD THAT ANY FURTHER CLAIM WAS FILED BY HER. 5. ON MAY 31, 1927, EDNA S. SINGLES WAS REQUESTED TO FORWARD TO THE CHIEF OF FINANCE A CHECK FOR $550.00 DRAWN TO THE ORDER OF THE TREASURER OF THE UNITED STATES, TO COVER THE FIRST SEMIANNUAL PAYMENT OF $500.00, AND INTEREST OF $50.00 ON DEFERRED PAYMENTS, DUE AND PAYABLE ON JUNE 14, 1927, UNDER HER CONTRACT. SHE REPLIED ON JUNE 10, 1927, THAT THE PAYMENT DEMANDED WOULD NOT BE MADE BECAUSE OF THE VIOLATION OF THE TERMS OF THE CONTRACT BY THE GOVERNMENT, STATING THAT THE REMOVAL OF SOIL AND SOD FROM THE PREMISES HAD SO DAMAGED THE PROPERTY AS TO RENDER IT NO LONGER DESIRABLE TO HER NOR WORTH THE PRICE AGREED UPON; THAT SHE WAS TAKING STEPS TO SECURE AN ANNULMENT OF THE CONTRACT AND THE RETURN OF THE MONEY SHE HAD PAID; AND THAT UNTIL THE MATTER HAD BEEN ADJUSTED SHE WOULD MAKE NO FURTHER PAYMENTS.

6. ON AUGUST 5, 1927, A BOARD OF OFFICERS WAS CONVENED AT FORT MONROE, VIRGINIA, TO INVESTIGATE THE NATURE, EXTENT, AND AMOUNT OF THE ALLEGED DAMAGE TO THE PROPERTY PURCHASED BY EDNA S. SINGLES. THE BOARD EXAMINED SEVEN WITNESSES, INSPECTED THE PROPERTY IN PERSON, INTERVIEWED H. S. WILSON, WHO LIVED ON THE ADJOINING PROPERTY, AND REACHED THE FOLLOWING FINDINGS:

FINDINGS

1. THE BOARD FINDS THAT 10 TRUCKLOADS OF CLAY WERE REMOVED FROM THE PUMPING STATION RESERVE, PHOEBUS, VA., BY ARMY TRUCKS FROM FORT MONROE IN MARCH, 1927, ON ORDERS ISSUED BY THE POST QUARTERMASTER, FORT MONROE.

2. THAT THE FIRST ADVICE RECEIVED AT FORT MONROE THAT THE PUMPING STATION RESERVE PROPERTY HAD BEEN SOLD WAS CONTAINED IN LETTER FILE NO. 602.2 (MONROE) FROM HDQTRS. 3D CORPS AREA, DATED MAY 16, 1927.

3. THAT NO ONE AT THIS POST CAN BE HELD RESPONSIBLE FOR ANY DAMAGE ARISING FROM THIS TRESPASS, AS THE CLAY WAS REMOVED IN ACCORDANCE WITH A LONG-PREVAILING CUSTOM OF THIS POST, AND NO ADVICE HAD BEEN RECEIVED THAT THE PROPERTY HAD BEEN SOLD.

4. THAT THE NATURE AND EXTENT OF THE DAMAGES CONSISTS OF SEVERAL UNSIGHTLY HOLES FROM WHICH APPROXIMATELY 10 LOADS OF CLAY AND SOD HAVE BEEN HAULED AWAY, CAUSING BREEDING PLACES FOR MOSQUITOES.

5. THAT THE BOARD FIXES THE COSTS OF REPLACING THE EARTH AND SOD AND RESTORING THE PROPERTY TO THE CONDITION IN WHICH IT WAS WHEN SOLDTO MRS. EDNA SINGLES, TO BE $70.00.

THE BOARD RECOMMENDED THAT EDNA S. SINGLES BE AWARDED $70.00 DAMAGES. SEPTEMBER 10, 1927, SHE WAS ADVISED OF THE FINDINGS OF THE BOARD AND REQUESTED TO INFORM THE OFFICE OF THE QUARTERMASTER GENERAL IF SHE WOULD ACCEPT THE AMOUNT OF $70,00 IN FULL SETTLEMENT OF THE DAMAGES OCCASIONED BY THE REMOVAL OF THE 10 LOADS OF CLAY. TO THIS SHE REPLIED BY LETTER OF SEPT. 22, 1927, REFUSING TO ACCEPT THE AMOUNT AWARDED BY THE BOARD AND STATING THAT SHE HAD PLACED THE MATTER IN THE HANDS OF KING AND KING, OF WASHINGTON, D.C., TO OBTAIN ANNULMENT OF THE CONTRACT AND RETURN OF THE PAYMENTS MADE.

THE ESTABLISHED RULE IS THAT THE PARTIES TO A CONTRACT ARE BOUND TO PERFORM IT ACCORDING TO ITS TERMS WHERE THEY ARE SUI JURIS, WHERE THE CONTRACT VIOLATES NO RULE OF LAW OR PUBLIC POLICY, AND WHERE NO FRAUD OR IMPOSITION HAS BEEN PRACTICED, ALTHOUGH IT MAY BE DIFFICULT TO DETERMINE THE RIGHTS OF THE PARTIES ON A BREACH, AND NOTWITHSTANDING CONTRACT MAY OPERATE HARSHLY OR UNJUSTLY ON ONE OF THE PARTIES. 13 CORPUS JURIS 627. THE GENERAL RULE IS WELL SETTLED THAT THE EQUITABLE RELIEF OF RESCISSION WILL NOT BE GRANTED FOR A MERE BREACH OF CONTRACT; THE REMEDY IN SUCH A CASE IS ORDINARILY TO BE FOUND IN AN ACTION AT LAW, WHICH WILL AFFORD AN ADEQUATE REMEDY. SEE 9 CORPUS JURIS 1181, AND CASES THERE CITED, WHICH INCLUDE: RUTHLAND MARBLE CO. V. RIPLEY, 10 WALL. 339; DIXIE COTTON PICKER CO. V. BULLOCK, 188 FED.REP. 921; BLAKE V. PINE MOUNTAIN IRON, ETC., CO., 76 FED.REP. 624. THE BREACH OF A CONTRACT BY ONE OF THE PARTIES GIVES TO THE OTHER A RIGHT OF ACTION FOR THE INJURY SUFFERED BY HIM FROM SUCH BREACH, BUT IT DOES NOT IN ALL CASES DISCHARGE HIM FROM PERFORMANCE ON HIS PART. THE CONTRACT MAY BE BROKEN WHOLLY OR IN PART, AND IF IN PART THE BREACH MAY OR MAY NOT BE SUFFICIENTLY IMPORTANT TO OPERATE AS A DISCHARGE. 13 CORPUS JURIS 589. BREACHES OF A CONTRACT IN MINOR RESPECTS AFFORD NO BASIS FOR RESCISSION, THE PROPER REMEDY BEING AN ACTION FOR DAMAGES. DOLD PACKING CO. V. DOERMANN ET AL., 293 FED.REP. 315. THE COURTS HAVE HELD THAT A BREACH OF A COVENANT, WHICH GOES TO THE WHOLE CONSIDERATION OF A CONTRACT, GIVES TO THE INJURED PARTY THE RIGHT AT HIS ELECTION TO RESCIND THE CONTRACT, BUT OTHERWISE IF THE BREACH IS OF A COVENANT WHICH IS SUBORDINATE AND INCIDENTAL TO THE MAIN PURPOSE OF THE CONTRACT. OSCAR BARNETT FOUNDRY CO. V. CROWE, 219 FED.REP. 450, AND CASES THERE CITED.

THE INVOLVED TRACT OF LAND SOLD BY THE UNITED STATES TO CLAIMANT CONTAINED A FRACTION MORE THAN 15 ACRES. THE EVIDENCE ESTABLISHES THAT AFTER ITS SALE, AND WHILE YET UNDER GOVERNMENT CONTROL, APPROXIMATELY 10 ARMY TRUCK LOADS OF SOD AND CLAY WERE REMOVED THEREFROM BY ARMY AUTHORITIES UNDER THE MISTAKEN BELIEF THAT SAID LAND WAS THEN OWNED BY THE UNITED STATES. WHILE IT IS A GENERAL PRINCIPLE OF LAW THAT A TOTAL FAILURE OF CONSIDERATION FOR A CONTRACT AMOUNTS TO A BREACH WHICH WILL DISCHARGE THE PARTY WITHOUT FAULT FROM LIABILITY ON THE CONTRACT, THERE WOULD APPEAR TO BE NO JUST REASON FOR HOLDING THAT THE REMOVAL OF 10 LOADS OF SOD AND CLAY FROM THE 15-ACRE TRACT OF LAND HERE INVOLVED HAS EFFECTED A TOTAL FAILURE OF CONSIDERATION AND DISCHARGED CLAIMANT FROM HER LIABILITY ON THE CONTRACT. THE FACTS OF THIS CASE APPEAR TO BE SUCH AS TO BRING IT UNDER THE WELL-ESTABLISHED RULE THAT WHEN A COVENANT GOES ONLY TO A PART OF THE CONSIDERATION OF A CONTRACT, IS INCIDENTAL AND SUBORDINATE TO ITS MAIN PURPOSE, AND ITS BREACH MAY BE COMPENSATED IN DAMAGES, SUCH A BREACH DOES NOT WARRANT A RESCISSION OF THE CONTRACT, BUT THE INJURED PARTY IS STILL BOUND TO PERFORM HIS PART OF THE AGREEMENT, AND HIS ONLY REMEDY FOR THE BREACH CONSISTS OF THE RECOVERY OF THE DAMAGES HE HAS SUFFERED THEREFROM. SEE KAUFFMAN V. READER, 108 FED.REP. 171; HOWE V. HOWE AND OWEN B.B. CO., 154 FED.REP. 820. ..END :