A-9164, MAY 13, 1925, 4 COMP. GEN. 948

A-9164: May 13, 1925

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AFTER ALLOWING FOR A 10 PERCENT VARIATION WHERE AN APPROXIMATE AMOUNT IS SPECIFIED. A COPY OF THE SOLICITOR'S LETTER WAS FORWARDED TO THE POSTMASTER AT NEWARK. IS OPEN EVERY DAY IN THE WEEK. WHILE IT IS NOT THE CUSTOM TO HAVE GASOLINE DELIVERED ON SUNDAY. THEY HAVE ON CERTAIN OCCASIONS REPLENISHED THEIR SUPPLY ON THAT DAY. CREDIT WAS AGAIN REFUSED BY THIS BUREAU ON JANUARY 3. ADVISES THAT DEMAND WAS MADE ON THE INDUSTRIAL OIL COMPANY FOR A REFUND OF THIS SUM. WHICH WAS REFUSED. WILL YOU PLEASE ADVISE IF IT WOULD BE PROPER FOR THIS BUREAU TO CERTIFY THE SUM OF $139.62 AS A CHARGE AGAINST THE VEHICLE APPROPRIATION? WAS ISSUED BY THE POSTMASTER AT THAT PLACE UNDER DATE OF DECEMBER 6. THAT THE PROPOSAL OF THE INDUSTRIAL OIL COMPANY OFFERING TO FURNISH THE REQUIRED QUANTITY WAS SUBSEQUENTLY ACCEPTED.

A-9164, MAY 13, 1925, 4 COMP. GEN. 948

CONTRACTS - DAILY DELIVERIES - PRICE FOR EXCESS A CONTRACT FOR FURNISHING TO THE GOVERNMENT AN APPROXIMATE QUANTITY OF OIL "DAILY" AT A SPECIFIED PRICE ENTITLED THE GOVERNMENT TO DELIVERY ON DEMAND OF THAT QUANTITY OF OIL EACH AND EVERY DAY OF THE WEEK INCLUDING SUNDAY. THE FURNISHING BY A CONTRACTOR OF A QUANTITY OF OIL IN EXCESS OF THE AMOUNT WHICH MIGHT LAWFULLY BE DEMANDED UNDER THE TERMS OF HIS CONTRACT DOES NOT ENTITLE THE CONTRACTOR TO PAY FOR THE ALLEGED EXCESS DELIVERIES AT A PRICE GREATER THAN THAT FIXED BY THE CONTRACT FOR DELIVERIES THEREUNDER.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, MAY 13, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 15, 1925, REQUESTING DECISION OF A QUESTION PRESENTED, AS FOLLOWS:

IN DECEMBER, 1923, THE POSTMASTER AT NEWARK, N.J., ENTERED INTO A CONTRACT WITH THE INDUSTRIAL OIL COMPANY, WHEREIN THE LATTER AGREED TO FURNISH APPROXIMATELY 200 GALLONS OF GASOLINE DAILY FOR THE PERIOD FROM JANUARY 1 TO MARCH 31, 1924, INCLUSIVE, AT A PRICE OF ?025 BELOW THE LOCAL TANK-WAGON PRICE, THE MAXIMUM PRICE NOT TO EXCEED ?13 PER GALLON. DURING THE PERIOD COVERED BY THE CONTRACT THE INDUSTRIAL OIL COMPANY DELIVERED 19,308 GALLONS OF GASOLINE, AND THEN CLAIMED THAT THE WORD "DAILY" IN THEIR CONTRACT MEANT SIX DAYS IN THE WEEK, AND THAT, AFTER ALLOWING FOR A 10 PERCENT VARIATION WHERE AN APPROXIMATE AMOUNT IS SPECIFIED, THEIR CONTRACT CALLED FOR THE DELIVERY OF 17,160 GALLONS ONLY. THE PRICE OF GASOLINE HAVING ADVANCED SINCE THE EXECUTION OF THE CONTRACT, THEY CLAIMED THE RIGHT TO DEMAND TANK-WAGON PRICE, OR OPEN-MARKET PRICE, FOR THE 2,148- GALLON EXCESS DELIVERIES, WHICH AMOUNTED TO AN ADDITIONAL SUM OF $139.62. ON JUNE 5, 1924, THE SOLICITOR FOR THE POST OFFICE DEPARTMENT ADVISED THAT, IN THE ABSENCE OF ANYTHING SHOWING A CONTRARY INTENT, THE WORD "DAILY" INCLUDES SUNDAYS AS WELL AS OTHER DAYS IN THE WEEK. A COPY OF THE SOLICITOR'S LETTER WAS FORWARDED TO THE POSTMASTER AT NEWARK, N.J., FOR HIS INFORMATION. THE POST-OFFICE GARAGE AT NEWARK, N.J., IS OPEN EVERY DAY IN THE WEEK, SUNDAYS INCLUDED, AND, WHILE IT IS NOT THE CUSTOM TO HAVE GASOLINE DELIVERED ON SUNDAY, THEY HAVE ON CERTAIN OCCASIONS REPLENISHED THEIR SUPPLY ON THAT DAY. ON JULY 28, 1924, THE POSTMASTER TRANSMITTED RECEIPTED VOUCHERS FROM THE INDUSTRIAL OIL COMPANY, FOR $139.62, COVERING THE ALLEGED ADJUSTMENT ON GASOLINE FURNISHED IN EXCESS OF THE APPROXIMATE AMOUNT CALLED FOR IN THE CONTRACT. ON THE BASIS THAT THE CONTRACT REQUIRED, OR SPECIFIED, DELIVERIES ON SUNDAYS WHICH HAD NOT BEEN MADE, THIS BUREAU REFUSED TO CERTIFY THE BILLS FOR CREDIT TO THE POSTMASTER'S ACCOUNT. CREDIT WAS AGAIN REFUSED BY THIS BUREAU ON JANUARY 3, LAST. UNDER DATE OF THE 1ST INSTANT, THE POSTMASTER AT NEWARK, N.J., ADVISES THAT DEMAND WAS MADE ON THE INDUSTRIAL OIL COMPANY FOR A REFUND OF THIS SUM, WHICH WAS REFUSED, AND REQUESTS THAT CREDIT FOR THE AMOUNT BE CERTIFIED TO YOUR OFFICE. WILL YOU PLEASE ADVISE IF IT WOULD BE PROPER FOR THIS BUREAU TO CERTIFY THE SUM OF $139.62 AS A CHARGE AGAINST THE VEHICLE APPROPRIATION?

IT APPEARS THAT ADVERTISEMENT NO. 10 REQUESTING BIDS FOR FURNISHING APPROXIMATELY 200 GALLONS OF GASOLINE DAILY FOR THE USE OF THE NEWARK, N.J., POST OFFICE FOR THE QUARTER ENDING MARCH 31, 1924, WAS ISSUED BY THE POSTMASTER AT THAT PLACE UNDER DATE OF DECEMBER 6, 1923, AND THAT THE PROPOSAL OF THE INDUSTRIAL OIL COMPANY OFFERING TO FURNISH THE REQUIRED QUANTITY WAS SUBSEQUENTLY ACCEPTED. THE PROPOSAL AS ACCEPTED BY THE POSTMASTER READS:

DELIVERY OF ENTIRE QUANTITY TO BE MADE AS NEEDED WITHIN 90 DAYS AT 2 1/2 CENTS PER GALLON BELOW LOCAL TANK WAGON PRICE, MAXIMUM PRICE PER GALLON NOT TO EXCEED 13 CENTS, BEGINNING JAN. 1, 1924.

IN ACCEPTING THE PROPOSAL THE POSTMASTER ADVISED THE COMPANY AS FOLLOWS:

IT IS DESIRED THAT YOU START DELIVERING AT THE POST-OFFICE GARAGE, LAFAYETTE ST. AND N.J.R.R. AVE., WEDNESDAY, JANUARY 2D, 1924, BETWEEN 9.00 A.M. AND 11.00 A.M.; ALSO THAT FUTURE DELIVERIES BE MADE DURING THESE HOURS; OUR REQUIREMENTS WILL BE APPROXIMATELY 250 GALLONS DAILY.

THERE WERE 91 CALENDAR DAYS IN THE PERIOD JANUARY 1, 1924, TO MARCH 31, 1924, INCLUSIVE, AND 19, 308 GALLONS OF GASOLINE WERE DELIVERED DURING THAT PERIOD.

PAYMENT FOR THE TOTAL QUANTITY DELIVERED WAS MADE AT 13 CENTS PER GALLON, BUT SUBSEQUENTLY THE POSTMASTER PAID THE COMPANY AN ADDITIONAL SUM OF $139.62 TO COVER THE DIFFERENCE BETWEEN THE CONTRACT PRICE AND THE MARKET PRICE FOR 2,148 GALLONS AT $0.065 PER GALLON.

THE CONTRACTOR CONTENDS THAT THE TERM "DAILY" AS SPECIFIED IN THE PROPOSAL REFERS ONLY TO SECULAR DAYS AND THAT SUNDAYS, OF WHICH THERE WERE 13, SHOULD BE EXCLUDED, AND THAT CONSEQUENTLY THERE WERE ONLY 78 DAYS ON WHICH THE APPROXIMATE QUANTITY OF 200 GALLONS WAS REQUIRED, WHICH, WITH THE ADDED 10 PERCENT TO COVER THE VARIATION WHERE AN APPROXIMATE AMOUNT IS SPECIFIED, AMOUNTED TO 17,160 GALLONS, WHICH IT WAS OBLIGATED TO DELIVER AT THE PRICE SPECIFIED AND THAT PAYMENT OF THE REMAINDER SHOULD BE MADE AT THE MARKET PRICE.

THE WORD "DAILY" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY AS "EVERY DAY; DAY BY AY; AS, TO HAPPEN DAILY," AND IN FUNK AND WAGNALL'S NEW STANDARD DICTIONARY AS "OCCURRING, APPEARING, OR PERTAINING TO EVERY DAY; RECURRING DAY AFTER DAY," AND AS "DAY AFTER DAY; ON EVERY DAY.'

THE MEANING OF THE WORD "DAILY" WHEN USED IN CONTRACTUAL AGREEMENT, UNLESS IT SUFFICIENTLY APPEARS FROM SPECIFIC LANGUAGE INCORPORATED IN THE AGREEMENT TO SHOW THAT THE INTENTION OF THE PARTIES WAS TO THE CONTRARY, IS TO BE UNDERSTOOD IN ITS POPULAR SENSE, AND IN THAT SENSE IT IS CLEAR THAT IN THE INSTANT CASE APPROXIMATELY 200 GALLONS OF GASOLINE WERE TO BE DELIVERED EACH AND EVERY DAY INCLUDING SUNDAYS IF THE NEEDS OF THE NEWARK POST OFFICE, DURING THE PERIOD COVERED BY THE AGREEMENT, SO REQUIRED, IT BEING SHOWN THAT THE POST-OFFICE GARAGE WAS OPEN EVERY DAY IN THE WEEK INCLUDING SUNDAYS DURING THAT TIME. (IN THIS CONNECTION SEE 11 COMP. DEC. 494, AS TO THE MEANING OF THE WORD "MONTH" AS USED IN CONTRACTS.)

THE ONLY AUTHORITY FOR THE DELIVERY OF THE GASOLINE IN QUESTION WAS AT THE PRICE STIPULATED IN THE CONTRACT, AND THE ACTION OF THE CONTRACTOR IN MAKING THE DELIVERIES UNDER THE CONTRACT IS INCONSISTENT WITH THE CONTENTION THAT PAYMENT FOR ANY PART THEREOF WAS AUTHORIZED AT A PRICE OTHER THAN THAT SPECIFIED IN THE CONTRACT.

IN VIEW OF THE FOREGOING IT MUST BE HELD THAT THERE WAS NO LEGAL BASIS FOR MAKING PAYMENT IN ANY AMOUNT IN EXCESS OF THE PRICE STIPULATED IN THE AGREEMENT, AS THERE WAS DELIVERED AN AVERAGE OF ONLY 212 PLUS GALLONS PER DAY FOR EACH OF THE 91 DAYS INCLUDED IN THE QUARTER ENDING MARCH 31, 1924, AND THE AMOUNT THUS DELIVERED CAN NOT BE SAID TO HAVE BEEN EXCESSIVE, SINCE THE QUANTITY SPECIFIED WAS STATED AS BEING THE APPROXIMATE QUANTITY THAT WOULD BE REQUIRED PER DAY.

EVEN IF IT COULD BE HELD THAT THE QUANTITY DELIVERED WAS IN EXCESS OF THE QUANTITY WHICH COULD HAVE BEEN REQUIRED TO BE DELIVERED UNDER THE CONTRACT, THERE WOULD BE NO OBLIGATION ON THE GOVERNMENT TO PAY AN INCREASED PRICE FOR THE AMOUNT OF THE EXCESS. SEE 26 COMP. DEC. 75.