A-8647, NOVEMBER 23, 1925, 5 COMP. GEN. 368

A-8647: Nov 23, 1925

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TITLE WAS NOT TO PASS TO THE PURCHASER UNTIL DELIVERY HAD BEEN MADE BY THE GOVERNMENT F.O.B. THE PURCHASER IS ENTITLED TO REFUND OF THE PURCHASE MONEY DEPOSITED WHEN THE GOVERNMENT FAILS TO ACCOMPLISH DELIVERY AS AGREED. WHICH GOODS WERE NEVER DELIVERED TO PURCHASER. WITH REQUEST FOR DECISION AS TO WHETHER PAYMENT THEREOF WAS AUTHORIZED. THE TWO REQUESTS WILL BE CONSIDERED TOGETHER. THE TERMS AND CONDITIONS OF THE SALE HERE MATERIAL ARE AS FOLLOWS: BIDS FOR ANY ONE LOT OR FOR ALL LOTS WILL BE CONSIDERED. MATERIAL WILL BE DELIVERED F.O.B. THE MATERIAL LISTED IS NOW ON DISPLAY AT FORT SNELLING. ALL MATERIAL IS SOLD "AS IS" AND "WHERE IS. " AND UNDER NO CIRCUMSTANCES WILL A REFUND BE MADE ON ACCOUNT OF GOODS NOT COMING UP TO STANDARD OF EXPECTATION.

A-8647, NOVEMBER 23, 1925, 5 COMP. GEN. 368

SALES, SURPLUS WAR SUPPLIES - REFUNDS ON ACCOUNT OF FAILURE IN DELIVERY WHERE, UNDER THE CONDITIONS OF A SALE OF SURPLUS PROPERTY SOLD BY "LOT" FOR A LUMP-SUM PRICE WITHOUT WARRANTY OR GUARANTY, TITLE WAS NOT TO PASS TO THE PURCHASER UNTIL DELIVERY HAD BEEN MADE BY THE GOVERNMENT F.O.B. STORAGE POINT, THE PURCHASER IS ENTITLED TO REFUND OF THE PURCHASE MONEY DEPOSITED WHEN THE GOVERNMENT FAILS TO ACCOMPLISH DELIVERY AS AGREED.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 23, 1925:

H. A. REETZ APPLIED OCTOBER 15, 1925, FOR REVIEW OF SETTLEMENT NO. 096650, DATED OCTOBER 9, 1925, DISALLOWING HIS CLAIM FOR REFUND OF $78, BEING THE PURCHASE MONEY PAID FOR A CERTAIN LOT OF GOODS PURCHASED JANUARY 14, 1925, AT A NEGOTIATED SALE OF ARMY SURPLUS PROPERTY AT FORT SNELLING, MINN., WHICH GOODS WERE NEVER DELIVERED TO PURCHASER. ALSO, UNDER DATE OF SEPTEMBER 3, 1925, CAPT. R. G. JENKS, F.D., DISBURSING OFFICER OF THE ARMY, CHICAGO, ILL., SUBMITTED A VOUCHER, STATED IN FAVOR OF CLAIMANT FOR $78, AND COVERING THE SAME TRANSACTION, WITH REQUEST FOR DECISION AS TO WHETHER PAYMENT THEREOF WAS AUTHORIZED. THE TWO REQUESTS WILL BE CONSIDERED TOGETHER.

IT APPEARS THAT ON DECEMBER 13, 1924, THE MEDICAL SECTION OF THE QUARTERMASTER INTERMEDIATE DEPOT, UNITED STATES ARMY, CHICAGO, ILL.,ISSUED CIRCULAR PROPOSAL NO. 1, ADVERTISING AND LISTING FOR SALE CERTAIN SURPLUS PROPERTY LOCATED AT FORT SNELLING, MINN., IN ACCORDANCE WITH THE REQUIREMENTS THEREIN ANNOUNCED, AND REQUESTED BIDS THEREON, BY WAY OF SEALED PROPOSALS, TO BE OPENED JANUARY 14, 1925. THE TERMS AND CONDITIONS OF THE SALE HERE MATERIAL ARE AS FOLLOWS:

BIDS FOR ANY ONE LOT OR FOR ALL LOTS WILL BE CONSIDERED.

MATERIAL WILL BE DELIVERED F.O.B. AT FORT SNELLING, MINN.

THE MATERIAL LISTED IS NOW ON DISPLAY AT FORT SNELLING, MINN., UNDER THE CHARGE OF THE MEDICAL SUPPLY OFFICER, FORT SNELLING, MINN.

ALL MATERIAL IS SOLD "AS IS" AND "WHERE IS," AND UNDER NO CIRCUMSTANCES WILL A REFUND BE MADE ON ACCOUNT OF GOODS NOT COMING UP TO STANDARD OF EXPECTATION.

THE QUALITY OF THE PROPERTY TO BE SOLD IS TO BE DETERMINED BY EACH BIDDER TO HIS SATISFACTION BY INSPECTION, AND NO PERSON IS AUTHORIZED TO BIND THE GOVERNMENT BY ANY STATEMENT OR REPRESENTATION AS TO THE QUALITY, QUANTITY, CHARACTER, SIZE, COLOR, WEIGHT OR KIND OF PROPERTY OFFERED AT THIS SALE, AND ANY SUCH STATEMENTS OR REPRESENTATIONS WILL BE MADE WITHOUT AUTHORITY OF THE GOVERNMENT, AND WILL NOT BE CONSIDERED AS GROUNDS FOR CLAIM BY ANY PURCHASER FOR AN ADJUSTMENT OR RESCISSION OF ANY SALE.

THE SHIPPING OFFICER IS ACTING AS AGENT FOR THE PURCHASER AND WILL NOT BE RESPONSIBLE FOR DEMURRAGE, FREIGHT, OR STORAGE CHARGES.

NO DELIVERIES WILL BE MADE UNTIL FULL PAYMENT HAS BEEN MADE.

AMONG THE PROPERTY OFFERED FOR SALE WAS A LOT OF SLIPPERS DESIGNATED IN THE LIST OF ARTICLES ADVERTISED FOR SALE AS FOLLOWS:

TABLE ITEM NO. SPD. NO. MATERIAL UNIT QTY. CONDITION

37 10-94 SLIPPERS, UNUSEDEA. 300 NEW

CLAIMANT BID $78 FOR SAID LOT OF 300 SLIPPERS SO ADVERTISED FOR SALE, AND SUCH BID WAS ACCEPTED AND THE PROPERTY AWARDED TO THE BIDDER JANUARY 14, 1925, AND LETTER OF ACCEPTANCE WAS SUBSEQUENTLY PREPARED AND FORWARDED TO PURCHASER, WHO THEREAFTER PAID THE $78 BID FOR THE PROPERTY.

IT APPEARS THAT CLAIMANT ALSO PURCHASED AT SAID SALE CERTAIN OTHER LOTS OF THE SURPLUS PROPERTY SO SOLD; THAT WHEN SUCH PROPERTY WAS BEING REPACKED AND PREPARED FOR SHIPMENT TO THE PURCHASER, IT WAS FOUND THAT THE LOT OF 300 SLIPPERS (EXCEPTING 10 PAIRS) WERE SO WORN AS TO BE PRACTICALLY WORTHLESS AND THEY WERE NOT SHIPPED TO PURCHASER, BUT ARE STILL RETAINED IN STORAGE AT PLACE OF SALE; AND THAT THE OFFICER IN CHARGE OF THE SALE THEREUPON REQUESTED AUTHORITY TO CANCEL THE SALE OF THE LOT OF 300 SLIPPERS TO CLAIMANT AND TO REFUND THE PURCHASE PRICE BECAUSE THE SLIPPERS WERE NOT "NEW" AND "UNUSED" AS DESCRIBED IN THE ADVERTISEMENT OF THE SALE. CLAIMANT STATES THAT HE PAID THE BALANCE OF THE PURCHASE PRICE DUE ON HIS PURCHASES WITHIN THE PERIOD PRESCRIBED BY THE TERMS OF THE CIRCULAR PROPOSAL, BUT UPON LATER MAKING INQUIRY AS TO WHEN DELIVERY WOULD BE MADE, WAS INFORMED THAT, OWING TO SHORTAGE OF FUNDS FOR BOXING PURPOSES, PROMPT DELIVERY COULD NOT BE MADE AND IT WAS NOT UNTIL MARCH 4, 1925, THAT THE PROPERTY PURCHASED, OTHER THAN THE LOT OF SLIPPERS IN QUESTION, WAS DELIVERED TO HIM UPON HIS PERSONALLY CALLING THEREFOR AT FORT SNELLING, AT WHICH TIME HE WAS ADVISED THAT HE WOULD GET A REFUND FOR THE SLIPPERS AS THEY WERE NOT NEW AS HAD BEEN REPRESENTED. THE SURGEON GENERAL'S OFFICE, IN VIEW OF THE FACTS IN THE MATTER, HAS RECOMMENDED THAT REFUND BE MADE AS CLAIMED.

THE SALE OF THE PROPERTY IN QUESTION WAS BY THE "LOT," FOR A LUMP SUM PRICE, WITHOUT WARRANTY OR GUARANTY, BUT UNDER THE CONDITIONS OF SALE TITLE TO THE SURPLUS SUPPLIES BEING SOLD WAS NOT TO PASS TO THE PURCHASER UNTIL DELIVERY THEREOF HAD BEEN MADE BY THE GOVERNMENT F.O.B. STORAGE POINT. THE ORDINARY RULES APPLICABLE TO AUCTION SALES OF SURPLUS PROPERTY WHEN PURCHASED BY THE ,LOT," WHICH ARE, IN EFFECT, THAT TITLE TO THE THING PURCHASED PASSES TO THE BIDDER WHEN KNOCKED DOWN BY THE AUCTIONEER, DO NOT APPLY IN THE INSTANT MATTER. HERE THE CONDITION PRECEDENT TO THE CONSUMMATION OF THE SALE--- THAT IS, DELIVERY BY THE GOVERNMENT OF THE SUPPLIES PURCHASED--- WAS NOT FULFILLED; CONSEQUENTLY TITLE THERETO NEVER PASSED TO THE PURCHASER, AND THE SALE HAS, TO ALL INTENTS AND PURPOSES, BEEN ABROGATED BY THE ACTION OF THE GOVERNMENT.

IN VIEW OF THE FACT THAT UNDER THE CONDITIONS OF THE SALE DELIVERIES OF THE GOODS SOLD WERE TO BE MADE "F.O.B. AT FORT SNELLING, MINN., " AND IT APPEARING THAT THE LOT OF SLIPPERS AWARDED TO CLAIMANT AND FOR WHICH HE PAID $78 WAS NEVER SO DELIVERED, THE SALE WAS NOT COMPLETED. INASMUCH AS THE SALE OF THE LOT OF SLIPPERS WAS NOT COMPLETED BY DELIVERY AS AGREED, THERE IS NO AUTHORITY OF LAW TO RETAIN THE PURCHASE MONEY PAID THEREFOR.

UPON REVIEW THE SETTLEMENT IS REVISED, AND THE VOUCHER SUBMITTED BY THE DISBURSING OFFICER WILL BE RETURNED TO HIM, AND HE IS HEREBY AUTHORIZED TO PAY CLAIMANT THE SUM OF $78 OUT OF THE PROCEEDS OF SAID SALE NOW BEING HELD IN HIS SPECIAL DEPOSIT ACCOUNT. NO FURTHER ACTION LOOKING TO THE PAYMENT OF THIS CLAIM BY SETTLEMENT OF THIS OFFICE WILL BE TAKEN.