A-94554, JUNE 7, 1938, 17 COMP. GEN. 1057

A-94554: Jun 7, 1938

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WERE SUBSEQUENTLY REJECTED AS NOT MEETING THE GERMINATION REQUIREMENTS OF THE SPECIFICATIONS. IS NOT LIABLE FOR THEIR DESTRUCTION BY FIRE OF UNKNOWN ORIGIN. INSOFAR AS IS PERTINENT TO YOUR CLAIM THE CONTRACT REQUIRED YOU TO DELIVER TO THE WORKS PROGRESS ADMINISTRATION. THE SEED WAS TO CONSIST OF KENTUCKY BLUE GRASS. THE CONTRACT ALSO PROVIDED THAT THE SEED WAS "SUBJECT TO INSPECTION ON DELIVERY.'. THAT A SAMPLE WAS PROMPTLY FORWARDED TO THE H. THAT THE SEED WAS ENTIRELY DAMAGED OR DESTROYED ON JULY 1. THE DELIVERY WAS REJECTED ON THE BASIS OF A LABORATORY REPORT SHOWING THAT THE SEED HAD GERMINATION OF ONLY 25 PERCENT INSTEAD OF 80 TO 90 PERCENT AS REQUIRED. YOU PROTEST THE ACTION OF THIS OFFICE IN DISALLOWING YOUR CLAIM FOR THE FOLLOWING REASONS: IN THE FIRST PLACE: EACH KIND AND VARIETY OF SEED WHICH WENT INTO THE MIXTURE WAS TESTED FOR US BY FROM TWO TO FIVE RECOGNIZED SEED TESTING LABORATORIES.

A-94554, JUNE 7, 1938, 17 COMP. GEN. 1057

CONTRACTS - TESTS - GOVERNMENT LIABILITY FOR DESTRUCTION OF PROPERTY SUBSEQUENTLY REJECTED WHERE SEEDS, PROPERLY STORED WHILE AWAITING THE RESULTS OF A LABORATORY TEST, WERE SUBSEQUENTLY REJECTED AS NOT MEETING THE GERMINATION REQUIREMENTS OF THE SPECIFICATIONS, THE GOVERNMENT, HAVING EXERCISED REASONABLE CARE IN THE PROTECTION OF THE SEEDS, IS NOT LIABLE FOR THEIR DESTRUCTION BY FIRE OF UNKNOWN ORIGIN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE BELT SEED CO., INC., JUNE 7, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 22, 1938, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 18, 1938, WHICH DISALLOWED YOUR CLAIM FOR $384 AS THE CONTRACT PRICE OF 4,000 POUNDS OF LAWN SEED DELIVERED TO THE WORKS PROGRESS ADMINISTRATION UNDER AN UNNUMBERED CONTRACT DATED MARCH 30, 1936.

INSOFAR AS IS PERTINENT TO YOUR CLAIM THE CONTRACT REQUIRED YOU TO DELIVER TO THE WORKS PROGRESS ADMINISTRATION, CINCINNATI, OHIO, 4,000 POUNDS OF LAWN SEED AT A PRICE OF $0.096 PER POUND. THE SEED WAS TO CONSIST OF KENTUCKY BLUE GRASS, DOMESTIC RYE GRASS, AND RED TOP, HAVING GERMINATION OF FROM 80 TO 90 PERCENT DEPENDING UPON THE TYPE OF SEED. THE CONTRACT ALSO PROVIDED THAT THE SEED WAS "SUBJECT TO INSPECTION ON DELIVERY.'

IT APPEARS YOU DELIVERED THE SEED ON MAY 11, 1936; THAT A SAMPLE WAS PROMPTLY FORWARDED TO THE H. C. NUTTING CO., CINCINNATI, OHIO, FOR LABORATORY TESTS; THAT THE SEED WAS ENTIRELY DAMAGED OR DESTROYED ON JULY 1, 1936, AS A RESULT OF A FIRE OF UNKNOWN ORIGIN; AND THAT ON JULY 3, 1936, THE DELIVERY WAS REJECTED ON THE BASIS OF A LABORATORY REPORT SHOWING THAT THE SEED HAD GERMINATION OF ONLY 25 PERCENT INSTEAD OF 80 TO 90 PERCENT AS REQUIRED.

IN YOUR LETTER OF FEBRUARY 22, 1938, YOU PROTEST THE ACTION OF THIS OFFICE IN DISALLOWING YOUR CLAIM FOR THE FOLLOWING REASONS:

IN THE FIRST PLACE: EACH KIND AND VARIETY OF SEED WHICH WENT INTO THE MIXTURE WAS TESTED FOR US BY FROM TWO TO FIVE RECOGNIZED SEED TESTING LABORATORIES, ALL OF WHICH SHOWED THAT THE SEED TESTED BETTER THAN THE GERMINATION IN YOUR SPECIFICATIONS, AND WE ARE PREPARED TO SUBSTANTIATE THIS STATEMENT BY THE CERTIFICATES FROM THE LABORATORIES IN QUESTION.

SECONDLY: THE SEED WAS APPARENTLY TESTED--- DUE TO THE IGNORANCE OF THE W.P.A.--- BY THE H. C. NUTTING CO. OF CINCINNATI, WHICH IS NOT A RECOGNIZED SEED TESTING LABORATORY, BUT ON THE CONTRARY IS A FIRM OF CHEMISTS, NO MORE COMPETENT TO PASS ON THE QUALITY OF SEED THAN ANY OTHER LAYMAN. THE STANDARD PRACTICE, IF YOU QUESTIONED THE QUALITY OF THE SEED, WOULD HAVE BEEN TO HAVE IT TESTED BY EITHER A COMMERCIAL LABORATORY, LIKE THE COMMERCIAL SEED LABORATORY AT TOLEDO, BY THE OFFICIAL LABORATORY OF THE STATE OF OHIO AT COLUMBUS, OR BY THE FEDERAL SEED LABORATORY AT WASHINGTON.

THIRDLY:OUR RESPONSIBILITY CEASES WHEN WE GET A BILL OF LADING FROM THE TRANSPORTATION COMPANY.

WHILE THE H. C. NUTTING CO. MAY NOT BE A REGULAR SEED TESTING LABORATORY, AS STATED BY YOU, THE RECORD DOES NOT INDICATE THAT THEY WERE NOT QUALIFIED TO TEST SEEDS. ON THE CONTRARY, IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT THE SAID COMPANY WAS QUALIFIED FOR THE TEST AND THAT THE TEST WAS PROPERLY CONDUCTED. WITH RESPECT TO THIS MATTER THE H. C. NUTTING CO. HAS ADVISED AS FOLLOWS:

NUMEROUS TESTS HAVE BEEN MADE ON GRASS SEED FOR THE W.P.A. AND MANY HAVE BEEN APPROVED, USING THE SAME IDENTICAL METHOD OF TEST, SOME OF WHICH WERE FROM THE BELT SEED CO. AT THE TIME OF APPROVAL FOR SUCH SAMPLES, THE BELT SEED CO. MADE NO OBJECTIONS IN ACCEPTING OUR TESTS. WERE WE CONSISTENT IN REJECTING GRASS SEED, THEN WE WOULD SAY THAT THE CONDITIONS WERE NOT RIGHT AND THE BELT SEED CO. WOULD HAVE JUST RIGHTS FOR COMPLAINT, BUT IN OUR OPINION, THIS GRASS SEED CERTAINLY DID NOT COME UP TO STANDARD, AND WE WERE JUSTIFIED IN OUR REJECTION OF THIS MATERIAL.

WE WILL BRIEFLY OUTLINE OUR METHOD OF TESTING, WHICH IS AS FOLLOWS:

THE GERMINATION TESTS WERE CONDUCTED IN THREE SETS OF PETRI DISHES CONTAINING 100 SEEDS EACH, TWO OF WHICH HAD THE SEEDS PLACED BETWEEN TWO SHEETS OF FILTER PAPER TO RETAIN THE MOISTURE, AND IN THE OTHER DISH, THE SEEDS WERE MOISTENED.

THE SEEDS WERE PLACED ON THE SHELF OF A SMALL INCUBATOR HAVING A GLASS FRONT OF DAYLIGHT GLASS AND MAINTAINED AT A CONTROLLED TEMPERATURE OF 80 DEGREE F. FOR A PERIOD OF FIVE WEEKS. THE SEEDS WERE CHECKED DAILY WITH THE EXCEPTION OF SUNDAYS, AND ALL SEEDS GERMINATING WERE COUNTED AND REMOVED.

THE MAXIMUM GERMINATION WAS 25 PERCENT AND ALL OF WHICH WERE WITHIN THE FIRST TWENTY-FIVE DAYS AS WAS SHOWN IN OUR INITIAL REPORT OF JUNE 5, AND OUR FINAL REPORT OF JUNE 11 WAS NOT CHANGED.

FURTHERMORE WE MIGHT ADD THAT THE SEEDS WERE CAREFULLY SELECTED UNDER A SMALL TRIPOD MAGNIFIER SO THAT THE SEED WAS PRESENT IN EVERY CASE.

WE CERTAINLY FEEL THAT THE TESTS WERE CONDUCTED SATISFACTORILY AND THE MAXIMUM AMOUNT OF GERMINATION WAS REPORTED.

THE BURDEN OF SHOWING THAT THE SEED DELIVERED MET THE REQUIREMENTS OF THE CONTRACT RESTS UPON YOU. FRANKEL V. FOREMAN AND CLARK, INC., 33 F./2D) 83. SINCE THE RECORD INDICATES THAT THE SEED WAS PROPERLY TESTED AND DID NOT MEET THE SPECIFICATION REQUIREMENTS FOR GERMINATION, IT APPEARS REJECTION THEREOF WAS AUTHORIZED.

IT WAS YOUR DUTY UNDER THE CONTRACT TO DELIVER TO DESTINATION SEEDS CONFORMING TO THE SPECIFICATION. THE REQUIREMENT THAT THE SEEDS HAVE A CERTAIN PERCENTAGE OF GERMINATION WAS A CONDITION PRECEDENT TO ANY OBLIGATION UPON THE GOVERNMENT. A BUYER CANNOT BE OBLIGED TO RECEIVE AND PAY FOR A THING DIFFERENT FROM THAT FOR WHICH HE CONTRACTED; AND IF GOODS DELIVERED DO NOT MEET THE QUALITY SPECIFIED THEY MAY BE REJECTED AND THE CONTRACT RESCINDED. POPE V. ALLIS, 115 U.S. 363; NORRINGTON V. WRIGHT, 115 U.S. 188; FILLEY V. POPE, 115 ID. 213. SEE ALSO GRAINGER BROS. COMPANY V. G. AMSINCK AND COMPANY, 15 F./2D) 329, CERTIORARI DENIED, 273 U.S. 768, WHEREIN IT WAS HELD:

IF GOODS HAVE BEEN SENT TO A BUYER OF A KIND OR QUALITY WHICH HE NEVER AGREED TO TAKE, THE SELLER IS A MERE VOLUNTEER AND THE BUYER IS IN THE POSITION OF A BAILEE WHO HAS HAD GOODS THRUST UPON HIM WITHOUT HIS ASSENT. DOUBTLESS A BUYER IN SUCH A POSITION MUST TAKE REASONABLE CARE OF THE GOODS, BUT NOTHING MORE THAN THAT CAN BE DEMANDED OF HIM. * * *

IT DOES NOT APPEAR THAT THE GOVERNMENT FAILED TO EXERCISE REASONABLE CARE IN THE PROTECTION OF THE SEEDS. THE SEEDS HAD BEEN PROPERLY STORED IN A BUILDING, DAMAGE THERETO OCCURRING AS THE RESULT OF A FIRE OF UNDETERMINED ORIGIN. SINCE THE SEEDS DID NOT MEET THE SPECIFICATION REQUIREMENTS AND WERE NOT ACCEPTED BY THE GOVERNMENT, THE UNITED STATES IS NOT LIABLE FOR THE CONTRACT PRICE.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.