B-112197, JUL. 10, 1961

B-112197: Jul 10, 1961

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MEADS: REFERENCE IS MADE TO YOUR LETTER RETURNING CHECK NO. 218. YOU STATE THAT THE CHECK APPARENTLY IS PROFERRED IN . " THAT YOU HAVE REPEATEDLY INFORMED THE U.S. GOVERNMENT THAT YOU WILL NOT SELL THE SAWMILL AND THAT THE GOVERNMENT WILL HAVE TO RETURN THE SAWMILL TO YOU AND PAY YOU FOR THE USE THEREOF. THAT YOU PREVIOUSLY RETURNED SIMILAR CHECKS AND CANNOT UNDERSTAND WHY THIS ONE WAS SENT TO YOU. THE SAWMILL WAS LOCATED UPON A UNITED STATES ARMY INSTALLATION AND APPARENTLY THE ARMY WOULD NOT DELIVER IT TO YOU. SINCE IT THUS WAS RENDERED IMPOSSIBLE FOR THE FOREIGN LIQUIDATION COMMISSION TO FULFILL ITS CONTRACT WITH YOU. SINCE IT IS OUR ESTABLISHED PRACTICE NOT TO CONSIDER CLAIMS WHICH ARE SUBMITTED TO LITIGATION IN THE COURTS.

B-112197, JUL. 10, 1961

TO MR. MORTON F. MEADS:

REFERENCE IS MADE TO YOUR LETTER RETURNING CHECK NO. 218,478, DATED NOVEMBER 9, 1960, PAYABLE TO YOUR ORDER IN THE AMOUNT OF $1,405.65. YOU STATE THAT THE CHECK APPARENTLY IS PROFERRED IN ,PAYMENT FOR THE SAWMILL WHICH THE U.S. GOVERNMENT STOLE FROM ME MANY YEARS AGO; " THAT YOU HAVE REPEATEDLY INFORMED THE U.S. GOVERNMENT THAT YOU WILL NOT SELL THE SAWMILL AND THAT THE GOVERNMENT WILL HAVE TO RETURN THE SAWMILL TO YOU AND PAY YOU FOR THE USE THEREOF; AND THAT YOU PREVIOUSLY RETURNED SIMILAR CHECKS AND CANNOT UNDERSTAND WHY THIS ONE WAS SENT TO YOU.

THE RECORD BEFORE OUR OFFICE INDICATES THAT IN 1946 YOU CONTRACTED WITH THE FOREIGN LIQUIDATION COMMISSION TO PURCHASE A SAWMILL IN THE PHILIPPINES WHICH SUPPOSEDLY HAD BEEN DECLARED SURPLUS, AND PAID SAID COMMISSION $1,405.64 THEREFOR. HOWEVER, THE SAWMILL WAS LOCATED UPON A UNITED STATES ARMY INSTALLATION AND APPARENTLY THE ARMY WOULD NOT DELIVER IT TO YOU. SINCE IT THUS WAS RENDERED IMPOSSIBLE FOR THE FOREIGN LIQUIDATION COMMISSION TO FULFILL ITS CONTRACT WITH YOU, THE COMMISSION REFUNDED TO YOU $1,405.65, THE AMOUNT YOU PAID FOR THE SAWMILL, BUT YOU REFUSED TO ACCEPT SUCH REFUND. SUBSEQUENTLY YOU FILED A CLAIM WITH OUR OFFICE AND ALSO INSTITUTED SUIT IN THE UNITED STATES COURT OF CLAIMS. SINCE IT IS OUR ESTABLISHED PRACTICE NOT TO CONSIDER CLAIMS WHICH ARE SUBMITTED TO LITIGATION IN THE COURTS, WE TOOK NO ACTION ON YOUR CLAIM.

HOWEVER, YOUR CLAIM WAS ADJUDICATED BY THE UNITED STATES COURT OF CLAIMS ON DECEMBER 4, 1957. SEE M. MEADS V. UNITED STATES, 140 CT.CL. 526; 156 F.SUPP. 938. THE COURT HELD THAT IF THE FOREIGN LIQUIDATION COMMISSIONER CONTRACTED TO SELL SOMETHING WHICH HE BELIEVED HE HAD, BUT HAD NOT, THE CONTRACT IS VOID AND OF NO EFFECT, BECAUSE BEYOND THE POWER CONFERRED BY LAW ON THE COMMISSIONER, AND THE ONLY OBLIGATION ON THEPART OF THE COMMISSIONER IS TO RETURN THE AMOUNT PAID.

AFTER QUOTING ARTICLE 8 OF THE SALES CONTRACT, THE COURT STATED:

"WHERE SEVERAL ITEMS ARE CONTRACTED TO BE SOLD AND IT DEVELOPS THAT THE FOREIGN LIQUIDATOR HAS NOT AS MANY ITEMS AS HE THOUGHT HE HAD, THEN HIS OBLIGATION TO THE BUYER IS TO RETURN TO THE BUYER THE PRICE PAID FOR ANY ITEMS MISSING. WHILE THIS ARTICLE OF THE CONTRACT HAD REFERENCE TO THE SALE OF MORE THAN ONE ITEM, NEVERTHELESS IT DEMONSTRATES THAT THE PARTIES HAD IN MIND THAT IF THE LIQUIDATOR WAS MISTAKEN ABOUT HAVING ON HAND THE THINGS WHICH HE CONTRACTED TO SELL, THEN THE EXTENT OF HIS OBLIGATION TO THE BUYER ON ACCOUNT OF THIS MISTAKE WAS TO RETURN TO HIM THE AMOUNT HE HAD PAID FOR THE MISSING ITEMS. SO, EVEN THOUGH BUT ONE ITEM WAS SOLD, NEVERTHELESS IF THE FOREIGN LIQUIDATOR WAS MISTAKEN ABOUT HAVING SUCH AN ITEM IN HIS POSSESSION, THEN THE EXTENT OF HIS OBLIGATION TO THE BUYER WAS TO RETURN TO HIM THE PRICE HE HAD PAID FOR THE MISSING ARTICLE.

"WHEN WE TAKE THIS ARTICLE OF THE CONTRACT INTO CONSIDERATION IN CONNECTION WITH PRIOR DECISIONS OF THIS COURT, WE ARE PERSUADED THAT JUSTICE WOULD BE SATISFIED BY RENDERING JUDGMENT IN PLAINTIFF'S FAVOR FOR THE AMOUNT PAID FOR THE MISSING ITEM, IF AT THE TIME OF THE CONTRACT IN SALE DEFENDANT HAD ON HAND NO SAWMILL WHICH IT COULD HAVE DELIVERED TO PLAINTIFF.

"THE EVIDENCE INDICATES THAT FOUR SAWMILLS WERE DECLARED SURPLUS, AND THAT BEFORE THE CONTRACT OF SALE TO PLAINTIFF WAS ENTERED INTO DEFENDANT HAD DISPOSED OF ONE OF THEM, THAT TWO OTHERS HAD BEEN WITHDRAWN FOR MILITARY USE, AND THAT DEFENDANT WAS MISTAKEN ABOUT HAVING THE FOURTH ONE. HOWEVER, THE PROOF IS NOT CLEAR ON THIS POINT.

"IF AT THE TIME DEFENDANT ENTERED INTO THE CONTRACT WITH PLAINTIFF IT THEN HAD ON HAND A SAWMILL WHICH IT COULD HAVE DELIVERED TO PLAINTIFF, AND IF LATER IT DISPOSED OF IT TO ANOTHER, WE ARE OF OPINION THAT THE DEFENDANT WOULD BE LIABLE TO PLAINTIFF FOR THE DIFFERENCE IN THE SALES PRICE AND THE MARKET VALUE OF THE SAWMILL AT THE TIME OF THE SALE.

"BECAUSE THERE IS AN ISSUE AS TO THIS FACT, WHICH HAS NOT BEEN CLARIFIED BY THE DOCUMENTS FILED, WE MUST OVERRULE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AS WELL AS PLAINTIFF-S, BUT LEAVE IS GRANTED TO THE PARTIES TO RENEW THEIR MOTIONS AND SUPPORT THEM, IF THEY CAN, BY OTHER AFFIDAVITS OR OTHER DOCUMENTS, TO SHOW WHETHER OR NOT DEFENDANT ACTUALLY HAD A SAWMILL ON HAND AT THE TIME OF THE CONTRACT WITH PLAINTIFF WHICH IT COULD HAVE THEN DELIVERED TO HIM.'

PURSUANT TO THE ABOVE RULING, THE MATTER APPARENTLY WAS SUBMITTED TO THE TRIAL COMMISSIONER, WHO FILED HIS REPORT ON AUGUST 8, 1958. THE UNITED STATES COURT OF CLAIMS ENTERED A JUDGMENT IN THE MATTER ON FEBRUARY 6, 1959, AS FOLLOWS:

"THIS CASE COMES BEFORE THE COURT PURSUANT TO A REPORT BY THE TRIAL COMMISSIONER FILED AUGUST 8, 1958, WHEREIN IT IS RECOMMENDED THAT ON THE BASIS OF THE COURT'S OPINION OF DECEMBER 4, 1957, CERTIORARI DENIED JUNE 9, 1958, AND THE PLAINTIFF'S STATEMENT THAT HE HAD NO FURTHER EVIDENCE TO PRESENT, THAT JUDGMENT BE ENTERED FOR PLAINTIFF IN THE SUM OF $1,405.65.

"PLAINTIFF'S MOTION, FILED JANUARY 26, 1959, TO SET ASIDE THE REPORT OF THE TRIAL COMMISSIONER AND TO REOPEN THE CASE IS ACCOMPANIED BY NO SHOWING OF HIS ABILITY TO PRODUCE ANY EVIDENCE OF PROBATIVE VALUE. IT COMES TOO LATE AND MUST BE DENIED. SAID RECOMMENDATION OF THE TRIAL COMMISSIONER IS ADOPTED.

"NOW, THEREFORE, IT IS ORDERED THIS SIXTH DAY OF FEBRUARY, 1959, THAT JUDGMENT BE AND THE SAME IS ENTERED FOR PLAINTIFF IN THE SUM OF ONE THOUSAND FOUR HUNDRED FIVE DOLLARS AND SIXTY-FIVE CENTS ($1,405.65).

THE COURT SENT A CERTIFIED COPY OF THE JUDGMENT TO YOU ON FEBRUARY 6, 1959, ADVISING YOU TO MAIL SAID COPY TO OUR OFFICE. BY LETTER OF OCTOBER 18, 1960, YOU FORWARDED THE CERTIFIED COPY OF THE JUDGMENT TO OUR OFFICE. SINCE SUCH JUDGMENTS ARE SENT HERE SOLELY TO OBTAIN PAYMENT THEREOF, WE NATURALLY ASSUMED YOU HAD SENT IT HERE FOR THAT PURPOSE AND AUTHORIZED ISSUANCE OF THE CHECK WHICH YOU HAVE NOW RETURNED.

YOU ARE NOT, OF COURSE, OBLIGED TO ACCEPT THIS CHECK. HOWEVER, YOUR ATTENTION IS CALLED TO THE FACT THAT THE TIME FOR APPEAL OF THE COURT'S DECISION HAS LONG SINCE LAPSED AND, IN ADDITION, THE SUPREME COURT OF THE UNITED STATES DENIED CERTIORARI ON JUNE 9, 1958. 357 U.S. 905. SINCE YOU CUT THE CHECK IN TWO BEFORE RETURNING IT, A NEW CHECK MUST BE ISSUED IF YOU NOW DESIRE TO ACCEPT PAYMENT. WE WILL TAKE NO FURTHER ACTION IN THE MATTER PENDING RECEIPT OF A STATEMENT FROM YOU TO THE EFFECT THAT YOU WILL ACCEPT THE CHECK.