A-5518, NOVEMBER 8, 1924, 4 COMP. GEN. 432

A-5518: Nov 8, 1924

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SALES - SURPLUS WAR SUPPLIES - REFUNDS WHERE IT IS SHOWN THAT CLOTH SOLD AT PUBLIC AUCTION WAS SOLD BY LOT. "AS IS" AND "WHERE IS. DELIVERY WAS MADE AND THE PURCHASE PRICE PAID. THE RULE OF CAVEAT EMPTOR APPLIES AND THE UNITED STATES IS NOT LIABLE FOR A REFUND OF ANY PART OF THE PURCHASE PRICE FOR AN ALLEGED SHORTAGE IN YARDAGE WHEN RECEIVED BASED UPON A CATALOGUE DESCRIPTION OF THE CLOTH WHEN OFFERED FOR SALE. FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER STATED IN FAVOR OF FRANKLIPPMAN IN THE SUM OF $14.03 CLAIMED AS A REFUND TO COVER AN ALLEGED SHORTAGE OF 23 YARDS OF O.D. THAT NO GOVERNMENT INSPECTION WAS MADE AFTER SHIPMENT FROM THE RESERVE DEPOT SCHENECTADY. IT IS CERTIFIED BY GOVERNMENT SHIPPING CLERK THAT THE MATERIAL IN QUESTION WAS SHIPPED IN ORIGINAL PACKAGES WITH FACTORY MARKINGS.

A-5518, NOVEMBER 8, 1924, 4 COMP. GEN. 432

SALES - SURPLUS WAR SUPPLIES - REFUNDS WHERE IT IS SHOWN THAT CLOTH SOLD AT PUBLIC AUCTION WAS SOLD BY LOT,"AS IS" AND "WHERE IS," WITHOUT WARRANTY OR GUARANTY, FOR A LUMP SUM PRICE, AND DELIVERY WAS MADE AND THE PURCHASE PRICE PAID, THE RULE OF CAVEAT EMPTOR APPLIES AND THE UNITED STATES IS NOT LIABLE FOR A REFUND OF ANY PART OF THE PURCHASE PRICE FOR AN ALLEGED SHORTAGE IN YARDAGE WHEN RECEIVED BASED UPON A CATALOGUE DESCRIPTION OF THE CLOTH WHEN OFFERED FOR SALE.

COMPTROLLER GENERAL MCCARL TO CAPT. H. E. PACE, FINANCE DEPARTMENT, UNITED STATES ARMY, NOVEMBER 8, 1924:

THERE HAS BEEN RECEIVED YOUR REQUEST OF AUGUST 4, 1924, FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER STATED IN FAVOR OF FRANKLIPPMAN IN THE SUM OF $14.03 CLAIMED AS A REFUND TO COVER AN ALLEGED SHORTAGE OF 23 YARDS OF O.D. DUCK, PURCHASED AT AN AUCTION SALE (SALES NO. E-12068) HELD FEBRUARY 23, 1923.

THE EVIDENCE SUBMITTED SHOWS THAT FRANK LIPPMAN, AT A PUBLIC AUCTION SALE CONDUCTED BY THE QUARTERMASTER AT SCHENECTADY, N.Y., FEBRUARY 23, 1923, PURCHASED FOR $12,200 A LOT OF O.D. DUCK CLOTH DESCRIBED IN THE SALE CATALOGUE AS FOLLOWS:

LOT NO. 14-B.

73B E-13524. DUCK, O.D. (COLOR VARIES FROM KHAKI TO O.D. DARK), NO. 9, 54 IN. TO 57 1/2 IN., UNUSED (PACKING APPROXIMATELY 300 YARDS PER ROLL), 20,000 YDS.

IT ALSO APPEARS THAT THE PURCHASER SOLD THIS LOT OF CLOTH TO THE ANTHRACITE OVERALL MANUFACTURING CO., OF SCRANTON, PA., AND THAT NO GOVERNMENT INSPECTION WAS MADE AFTER SHIPMENT FROM THE RESERVE DEPOT SCHENECTADY, N.Y., AND IT IS CERTIFIED BY GOVERNMENT SHIPPING CLERK THAT THE MATERIAL IN QUESTION WAS SHIPPED IN ORIGINAL PACKAGES WITH FACTORY MARKINGS; THAT ROLL NO. 70-1 WAS MARKED TO CONTAIN 340 YARDS, AND THAT ROLL NO. 26 WAS MARKED TO CONTAIN 345 YARDS.

THE RECEIVING CLERK OF THE ANTHRACITE OVERALL MANUFACTURING CO. IN AFFIDAVIT STATES:

* * * I FOUND ACTUAL YARDAGE ON ROLL NO. 70-1 OF 327 YARDS INSTEAD OF 340 YARDS INVOICED AND ON ROLL NO. 26 ACTUAL YARDS WERE 335 YARDS INSTEAD OF 345 YARDS AS INVOICED, MAKING A TOTAL SHORTAGE OF 23 YARDS.

AN EXAMINATION OF THE SALE CATALOGUE, STATING THE CONDITIONS AND TERMS OF SALE, DISCLOSES:

(A) THAT THE PROPERTY LISTED FOR SALE WAS OPEN FOR INSPECTION FOR ONE WEEK PRIOR TO THE SALE.

(B) THAT FAILURE OF PURCHASER TO INSPECT PROPERTY WOULD NOT BE CONSIDERED GROUNDS FOR CLAIM FOR ADJUSTMENT.

(C) THAT ALL PROPERTY WOULD BE SOLD "AS IS" AND "WHERE IS" WITHOUT WARRANTY OR GUARANTY AS TO QUALITY, CHARACTER, CONDITION, SIZE, WEIGHT, OR KIND, AND NO CLAIM FOR ANY ALLOWANCE UPON ANY OF THE GROUNDS MENTIONED WOULD BE CONSIDERED AFTER THE PROPERTY WAS KNOCKED DOWN TO A BIDDER.

(D) THAT NO REPRESENTATIVE OF THE GOVERNMENT WAS AUTHORIZED TO MAKE ANY STATEMENT OR REPRESENTATION AS TO QUALITY, CHARACTER, CONDITION, SIZE, WEIGHT, OR KIND OF ANY PROPERTY OFFERED, AND ANY STATEMENT OR REPRESENTATION MADE WOULD NOT BE BINDING ON THE GOVERNMENT OR BE CONSIDERED AS GROUNDS FOR ANY CLAIM FOR ADJUSTMENT.

(E) THAT THE SALE OF EACH LOT OR PART OF EACH LOT WAS MADE AS A WHOLE AND SHIPMENT WOULD NOT BE MADE OF FRACTIONAL PARTS THEREOF.

(F) AND THAT ON PAGE 5 THEREOF PURCHASERS WERE WARNED FOR THE SECOND TIME THAT THE PROPERTY WAS SOLD "AS IS" AND "WHERE IS.'

THE EVIDENCE SHOWS THAT THIS ENTIRE LOT OF CLOTH WAS SHIPPED DIRECT FROM GOVERNMENT WAREHOUSE TO THE ANTHRACITE OVERALL MANUFACTURING CO. AND THE CLAIM FOR SHORTAGE IS SUPPORTED ONLY BY THE AFFIDAVIT OF THE RECEIVING CLERK OF SAID COMPANY WITHOUT ANY INSPECTION OR PARTICIPATION IN ANY MANNER BY ANYONE REPRESENTING THE GOVERNMENT AFTER DELIVERY, SO EVEN IF THERE WAS A LEGAL LIABILITY ESTABLISHED, THERE WOULD BE NO AUTHORITY OR JUSTIFICATION FOR BASING A REFUND UPON THE RECORD IN THIS CASE. SEE 4 COMP. GEN. 100.

IT WAS SAID IN DECISION OF JULY 18, 1924, 35 MS. COMP. GEN. 750-A:

* * * AND WHEN A BID HAS BEEN ACCEPTED, THE MATERIAL DELIVERED, AND THE PURCHASE PRICE PAID, THE TRANSACTION IS CLOSED IRRESPECTIVE OF WHETHER THE MATERIAL WAS OF THE EXACT QUALITY AS STATED IN THE CATALOGUE. * * *

IT WAS ALSO HELD IN 37 MS. COMP. GEN. 345, SEPTEMBER 10, 1924, THAT IN SALES OF THIS KIND THE RULE OF CAVEAT EMPTOR APPLIES.

BY REFERENCE TO THE DESCRIPTION OF LOT 14-B, AS CONTAINED IN THE CATALOGUE, IT IS SEEN THAT THE NUMBER OF ROLLS OF CLOTH WAS NOT EVEN STATED, BUT IN PARENTHESES ARE THE WORDS "PACKING APPROXIMATELY 300 YARDS PER ROLL.' IT ALSO APPEARS IN EVIDENCE THAT THERE WERE 63 ROLLS IN THE LOT PURCHASED BY CLAIMANT AND THAT ONLY 7 OF THE ROLLS CONTAINED LESS THAN 300 YARDS, 2 ROLLS EXACTLY 300 YARDS, AND 54 ROLLS MORE THAN 300 YARDS, AND THAT ALL THE ROLLS OF CLOTH WERE IN THE ORIGINAL PACKAGE AS RECEIVED FROM FACTORY.

UPON A CAREFUL REVIEW OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THIS TRANSACTION, IT IS CLEAR THAT THIS WAS NOT A SALE OF CLOTH BY THE YARD BUT A BULK SALE, AS DESCRIBED IN THE CATALOGUE, FOR THE LUMP SUM OF $12,200, THE YARDAGE STATED AS APPROXIMATELY 20,000 AND A SHORTAGE IS CLAIMED OF ONLY 23 YARDS. IT WOULD SEEM, THEREFORE, THAT THE DEMAND FOR A REFUND IN THE LIGHT OF THESE FACTS, APART FROM ANY LEGAL CONSIDERATION, IS WITHOUT MERIT.

IT APPEARING THAT THIS LOT OF CLOTH WAS SOLD "AS IS" AND "WHERE IS" WITHOUT GUARANTY OR WARRANTY OF ANY NATURE, DELIVERY MADE AND THE PURCHASE PRICE PAID, THE TRANSACTION IS CLOSED AND NO AUTHORITY EXISTS TO REFUND ANY PART OF THE PURCHASE PRICE. SEE 28 MS COMP. GEN. 120, DEC. 4, 1923; 30 MS. COMP. GEN. 817, FEB. 29, 1924.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT OF VOUCHERS SUBMITTED AND HEREWITH RETURNED IS NOT AUTHORIZED.