A-41504, JUNE 11, 1932, 11 COMP. GEN. 479

A-41504: Jun 11, 1932

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THE EXPENSE INCIDENT TO ITS RETURN TO VENDOR'S FACTORY IS NOT A PROPER CHARGE AGAINST THE GOVERNMENT. WHICH SHREDDER WAS RETURNED TO THE CLAIMANT BY THE GOVERNMENT ON NOVEMBER 12. CAPACITY AT LEAST 5 CUBIC YARDS OF MATERIAL PER HOUR. * * * IT APPEARS THAT AFTER THE SHREDDER WAS RECEIVED BY THE GOVERNMENT AT CHEYENNE ON OCTOBER 21. IT WAS SUBJECTED TO A PRACTICAL TEST ON OCTOBER 26. THIS FACT WAS PROMPTLY BROUGHT TO THE ATTENTION OF THE CLAIMANT BY LETTER OF OCTOBER 26. IT WAS TRIED ON FOUR DIFFERENT TYPES OF MATERIAL. ON THE COMPOST IT DID MUCH BETTER BUT HARDLY ANY OF THE MATERIAL IS FINE ENOUGH FOR A GREENHOUSE BENCH. THE CAPACITY IS ALSO QUITE LIMITED AND ONE MAN CAN EASILY OVERFEED THE MACHINE.

A-41504, JUNE 11, 1932, 11 COMP. GEN. 479

CONTRACTS - WARRANTY - RETURN FREIGHT CHARGES WHERE THE VENDOR AGREES TO FURNISH F.O.B. DESTINATION FOR A STIPULATED SUM, A SOIL SHREDDER CAPABLE OF PRODUCING A PRESCRIBED QUALITY AND QUANTITY OF LAWN DRESSING WITHIN A FIXED TIME AND, AFTER TEST, THE SHREDDER FAILS TO MEET THE CONTRACT REQUIREMENTS, THE EXPENSE INCIDENT TO ITS RETURN TO VENDOR'S FACTORY IS NOT A PROPER CHARGE AGAINST THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 11, 1932:

THE KEMP MANUFACTURING CO., MANUFACTURERS OF POWER SOIL SHREDDERS, HAS REQUESTED A REVIEW OF SETTLEMENT NO. 0368607, DATED MARCH 3, 1932, DISALLOWING ITS CLAIM FOR $28, AS REIMBURSEMENT OF RETURN FREIGHT CHARGES PAID ON A SOIL SHREDDER FURNISHED TO THE CENTRAL PLAINS FIELD STATION, DEPARTMENT OF AGRICULTURE, CHEYENNE, WYO., UNDER PROPOSAL DATED SEPTEMBER 21, 1931, AND ACCEPTANCE THEREOF DATED OCTOBER 10, 1931, WHICH SHREDDER WAS RETURNED TO THE CLAIMANT BY THE GOVERNMENT ON NOVEMBER 12, 1931, FREIGHT COLLECT.

THE ACCEPTED PROPOSAL REQUIRED DELIVERY, F.O.B., CHEYENNE, WYO., OF A---

PORTABLE MACHINE CAPABLE OF SHREDDING OR GRINDING SOIL, SOD, STRAWY MANURE, LEAF MOLD, ETC., TO A CONSISTENCY SUITABLE FOR USE IN GREENHOUSE BENCHES, NURSERY BEDS, OR AS LAWN DRESSING.

CAPACITY AT LEAST 5 CUBIC YARDS OF MATERIAL PER HOUR. * * *

IT APPEARS THAT AFTER THE SHREDDER WAS RECEIVED BY THE GOVERNMENT AT CHEYENNE ON OCTOBER 21, 1931, IT WAS SUBJECTED TO A PRACTICAL TEST ON OCTOBER 26, 1931, WITH THE RESULT THAT IT FAILED COMPLETELY TO GRIND THE MATERIALS TO A CONSISTENCY SUITABLE FOR USE IN GREENHOUSE BENCHES, ETC., AS SPECIFIED IN THE CONTRACT. THIS FACT WAS PROMPTLY BROUGHT TO THE ATTENTION OF THE CLAIMANT BY LETTER OF OCTOBER 26, 1931, FROM THE SUPERINTENDENT OF THE STATION, AS FOLLOWS:

WE RECEIVED THE SOIL SHREDDER AND TRIED IT OUT THIS MORNING. IT WAS TRIED ON FOUR DIFFERENT TYPES OF MATERIAL--- OLD COW MANURE FROM A CATTLE SHED, OLD SHEEP MANURE FROM A CORRAL, SOD, AND COMPOSTED MANURE. ON THE OLD COW AND SHEEP MANURE THE MACHINE DELIVERED ABOUT 80 PERCENT OF THE MATERIAL UNCHANGED. LUMPS FROM THE SIZE OF ONE'S FIST TO THE SIZE OF ONE'S HEAD TRAVEL UP AND OVER THE SHREDDING CYLINDER.

ON THE COMPOST IT DID MUCH BETTER BUT HARDLY ANY OF THE MATERIAL IS FINE ENOUGH FOR A GREENHOUSE BENCH. THE CAPACITY IS ALSO QUITE LIMITED AND ONE MAN CAN EASILY OVERFEED THE MACHINE. THE ONLY THING WE CAN SEE TO COMMEND IS THE MOTOR.

IT IS POSSIBLE THAT WE ARE NOT OPERATING THE MACHINE CORRECTLY, BUT CAN NOT SEE WHAT ELSE COULD BE DONE TO IT TO MAKE IT WORK BETTER.

AFTER AN HOUR'S TRIAL WE SET IT BACK IN THE SHED AS BEING ENTIRELY WORTHLESS FOR OUR PURPOSES. WE SHOULD APPRECIATE ANY SUGGESTIONS AS TO HOW THIS MACHINE MIGHT BE MADE TO MEET THE SPECIFICATIONS SET FORTH IN THE BID. WE HAVE HELD UP THE FALL WORK AWAITING THE DELIVERY OF THIS MACHINE AND ARE GREATLY DISAPPOINTED THAT WE CAN NOT NOW MAKE USE OF IT. PAYMENT OF THE VOUCHER WILL OF COURSE BE WITHHELD AND UNLESS THE SHREDDER CAN BE MADE TO OPERATE AS PER SPECIFICATIONS IT WILL BE RETURNED AT YOUR EXPENSE.

ON NOVEMBER 12, 1931, THE SUPERINTENDENT OF THE STATION, AFTER RECEIVING THE CLAIMANT'S LETTERS OF OCTOBER 29 AND 30, 1931, WHICH CONTAINED SUGGESTIONS AND INSTRUCTIONS WITH RESPECT TO THE USE OF THE SHREDDER, ADVISED THE CLAIMANT AS FOLLOWS:

UPON RECEIPT OF YOUR LETTERS OF THE 29TH AND 30TH OF OCTOBER WE AGAIN TRIED OUT THE KEMP SOIL SHREDDER, FOLLOWING THE INSTRUCTIONS AND SUGGESTIONS THEREIN, BUT MET WITH NO BETTER RESULTS THAN BEFORE. THE MACHINE WILL NOT HANDLE THE CLODS OF SHEEP MANURE OR STRAWY MANURE, THE MATERIALS WITH WHICH WE ARE WORKING.

THE INVITATIONS FOR BIDS CALLED FOR A MACHINE "CAPABLE OF SHREDDING OR GRINDING SOIL, SOD, STRAWY MANURE, LEAF MOLD, ETC. TO A CONSISTENCY SUITABLE FOR USE IN GREENHOUSE BENCHES, NURSERY BEDS, OR AS LAWN DRESSING.' AS THE MACHINE SHIPPED US WILL NOT MEET THESE REQUIREMENTS IT IS BEING RETURNED TO YOU TO-DAY VIA UNION PACIFIC SYSTEM AS PER THEIR STRAIGHT BILL OF LADING ENCLOSED, FREIGHT CHARGES COLLECT.

THE CLAIMANT CONTENDS THAT BECAUSE IT HAS NOT RECEIVED COMPLAINTS FROM OTHER CUSTOMERS WHO HAVE PURCHASED AND USED ITS SHREDDER THE DIFFICULTY EXPERIENCED BY THE GOVERNMENT MUST EXIST IN THE KIND OF MATERIAL THAT IS BEING USED BY IT AND WITH WHICH THE CLAIMANT MAY NOT BE ACQUAINTED, OR BECAUSE THE MATERIAL HAS NOT STOOD FOR A PERIOD OF A YEAR OR LONGER PRIOR TO BEING USED, THUS ALLOWING AN INSUFFICIENT TIME FOR IT TO BECOME THOROUGHLY ROTTED, OR BECAUSE OF CLIMATIC CONDITIONS, OR BECAUSE THE GROWER IN THE GREENHOUSE WAS EITHER INEXPERIENCED OR PREJUDICED AGAINST THE SHREDDER AND WAS NOT PROPERLY OPERATING IT, FOR WHICH REASONS THERE SHOULD BE AN ASSUMPTION OF THE RETURN FREIGHT CHARGES ON THE SHREDDER BY THE GOVERNMENT.

THE CONTRACT WAS ONE OF SALE BY DESCRIPTION AND THE GOVERNMENT WAS NOT BOUND TO ACCEPT THE MACHINE UNLESS IT CONFORMED TO THE CONTRACT. FURTHERMORE, SUCH DESCRIPTIONS OF THE MACHINE CONSTITUTED A WARRANTY THAT THE MACHINE WOULD FULFILL THE STIPULATED REQUIREMENTS, 55 C.J. 773, ET SEQ., AND UNDER THE PROVISIONS OF THE UNIFORM SALES ACT, IN EFFECT IN WYOMING, 55 C.J. 46 (WHERE DELIVERY WAS MADE F.O.B.), AND WHICH GOVERN THE CONSTRUCTION OF THE TERMS OF THE CONTRACT, 55 C.J. 214, A BUYER MAY RESCIND THE CONTRACT FOR BREACH OF WARRANTY EVEN AFTER ACCEPTANCE OF THE GOODS AND TRANSFER OF TITLE. WHERE GOODS ARE REJECTED BECAUSE NOT IN ACCORDANCE WITH THE CONTRACT THE BUYER IS UNDER NO OBLIGATION TO RETURN THE GOODS BUT MAY SIMPLY REFUSE TO REGARD THEM AS HIS, AND IF THE CONTRACT IS RESCINDED FOR BREACH OF WARRANTY AFTER THE GOODS ARE ACCEPTED AND THE PROPERTY PASSES TO THE BUYER HE IS REQUIRED ONLY TO RETURN OR TENDER BACK THE GOODS TO THE SELLER AT THE PLACE OF DELIVERY. SEE WILLISTON ON CONTRACTS, SECTIONS 1462, 1463, AND CASES CITED. HERE THERE WAS NO PROVISION IN THE CONTRACT, EITHER EXPRESS OR IMPLIED, THAT THE STIPULATED PERFORMANCE WAS ON CONDITION THAT MATERIALS TO BE SHREDDED SHOULD BE ALLOWED TO STAND AND ROT FOR A YEAR OR ANY OTHER TIME PRIOR TO BEING SHREDDED (SEE 55 C.J. 778, THAT A BREACH OF WARRANTY WILL NOT BE EXCUSED BECAUSE THE CONDITIONS WERE NOT FAVORABLE IF THE SELLER DID NOT SPECIFY IN THE AGREEMENT THE CONDITIONS UNDER WHICH THE MACHINE WAS TO BE SET UP AND OPERATED), AND FROM THE ADMINISTRATIVE REPORTS IN THE CASE IT MUST BE TAKEN THAT THE MACHINE FURNISHED DID NOT MEET THE STIPULATED SPECIFICATIONS. UNDER THESE CIRCUMSTANCES IT IS CLEAR THAT THE GOVERNMENT, IN ANY EVENT, WAS BOUND TO DO NO MORE THAN RETURN THE MACHINE TO THE CLAIMANT AT THE POINT OF DELIVERY, THAT IS, F.O.B. CHEYENNE, AND HAVING DONE THIS, IT IS NOT RESPONSIBLE FOR THE FREIGHT CHARGES INCURRED ON THE RETURN SHIPMENT FROM SUCH POINT OF DELIVERY TO THE CLAIMANT'S FACTORY.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT DISALLOWING THE CLAIM FOR REIMBURSEMENT OF THE FREIGHT CHARGES MUST BE AND IS SUSTAINED.