B-123774, AUG. 2, 1955

B-123774: Aug 2, 1955

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JACK ROSENMAN: REFERENCE IS MADE TO A LETTER DATED APRIL 4. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1. 482 POUNDS OF BASIS 40 PAPER WAS RECEIVED IN LIEU OF BASIS 50 PAPER. 068 POUNDS AND THAT THERE WAS A SHORTAGE OF 72 REAMS UNDER ITEM 43 AND 124 REAMS UNDER ITEM 46. IT IS YOUR CONTENTION THAT THE SHORTAGES SHOULD BE ADJUSTED IN ACCORDANCE WITH PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT. SINCE THE PAPER WAS SOLD TO YOU ON A REAM BASIS AND NOT ON A WEIGHT BASIS. THE RECORD SHOWS THAT THE REQUIRED NUMBER OF REAMS OF PAPER WAS DELIVERED TO YOU UNDER ITEM 43 AND THAT THE SHORTAGE UNDER ITEM 46 HAS BEEN ADJUSTED IN ACCORDANCE WITH PARAGRAPH 8. THE RECORD SHOWS THAT THE SPECIFIED NUMBER OF REAMS OF PAPERS WAS DELIVERED.

B-123774, AUG. 2, 1955

TO MR. JACK ROSENMAN:

REFERENCE IS MADE TO A LETTER DATED APRIL 4, 1955, FROM HOWARD ROSEMAN, REQUESTING, IN YOUR BEHALF, REVIEW OF SETTLEMENT DATED MARCH 29, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,422.22, AS A REFUND IN CONNECTION WITH THE PURCHASE OF PAPER FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N407S-385, DATED NOVEMBER 22, 1953.

YOU CONTEND THAT 82,482 POUNDS OF BASIS 40 PAPER WAS RECEIVED IN LIEU OF BASIS 50 PAPER, AS OFFERED IN THE INVITATION, RESULTING IN A WEIGHT SHORTAGE OF 29,068 POUNDS AND THAT THERE WAS A SHORTAGE OF 72 REAMS UNDER ITEM 43 AND 124 REAMS UNDER ITEM 46. IT IS YOUR CONTENTION THAT THE SHORTAGES SHOULD BE ADJUSTED IN ACCORDANCE WITH PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT. THIS PARAGRAPH PROVIDES THAT ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM DELIVERED TO THE PURCHASER WOULD BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED FOR SUCH ITEM.

SINCE THE PAPER WAS SOLD TO YOU ON A REAM BASIS AND NOT ON A WEIGHT BASIS, ANY ADJUSTMENT UNDER PARAGRAPH 8 OF THE CONTRACT WOULD BE APPLICABLE ONLY IN THE CASE OF A SHORTAGE IN THE NUMBER OF REAMS OF PAPER DELIVERED. THE RECORD SHOWS THAT THE REQUIRED NUMBER OF REAMS OF PAPER WAS DELIVERED TO YOU UNDER ITEM 43 AND THAT THE SHORTAGE UNDER ITEM 46 HAS BEEN ADJUSTED IN ACCORDANCE WITH PARAGRAPH 8. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THIS REPORT, WE MUST ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE.

WITH RESPECT TO THE ALLEGED SHORTAGE OF 29,068 POUNDS OF PAPER, THE RECORD SHOWS THAT THE SPECIFIED NUMBER OF REAMS OF PAPERS WAS DELIVERED, THE ONLY DIFFERENCE WAS IN THE QUALITY OF THE PAPER. CONSEQUENTLY, AND SINCE THERE WAS NO GUARANTEED OR ESTIMATED WEIGHT OF EACH REAM, THE PROVISIONS OF PARAGRAPH 8 HAVE NO APPLICATION HERE.

AS YOU WERE ADVISED IN THE SETTLEMENT, ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. THIS, IN EFFECT, IS THE THEORY UPON WHICH YOU BASE YOUR CLAIM. HOWEVER, IT IS FUNDAMENTAL THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, AS IN THIS CASE, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE, IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

ALSO, IT APPEARS THAT YOU FAILED TO TAKE ADVANTAGE OF YOUR RIGHT TO MAKE AN INSPECTION OF THE PAPER PRIOR TO THE SUBMISSION OF YOUR BID, HAVING BOUGHT THE PROPERTY WITHOUT INSPECTING IT. MORE THAN THAT, THE INVITATION EXPRESSLY PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. SINCE YOU FAILED TO TAKE ADVANTAGE OF THE OPPORTUNITY OFFERED YOU TO INSPECT BUT PURCHASED THE PAPER WITHOUT DOING SO, YOU BOUGHT AT YOUR OWN RISK AND ARE NOT NOW ENTITLED TO THE RELIEF SOUGHT. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; BRODY V. UNITED STATES, 64 C.CLS. 538; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801. ..END :