B-126824, FEB. 29, 1956

B-126824, FEB. 29, 1956

TO L. J. SCHOTT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1956, FORWARDED TO OUR OFFICE BY THE LAW FIRM OF BROUSE, MCDOWELL, MAY, BIERCE AND WORTMAN, WHEREIN YOU REQUEST REVIEW OF SETTLEMENT DATED DECEMBER 2, 1955, WHICH DISALLOWED YOUR CLAIM FOR $1,324.07, ARISING OUT OF AN ALLEGED SHORTAGE IN CONNECTION WITH A SURPLUS PROPERTY AUCTION SALE OF THE U.S. ARMY SEATTLE AREA DISPOSAL CENTER.

PURSUANT TO THE AUCTION SALE IT APPEARS THAT YOU BID, AMONG OTHERS, A TOTAL PRICE OF $26,250 FOR LOTS NOS. 2710 THROUGH 2717. THE CATALOGUE APPLICABLE TO THE SALE SHOWED LOTS NOS. 2710 THROUGH 2717 AS COVERING AN APPROXIMATE TOTAL OF 37,747 YARDS OF 36 IN. OLIVE DRAB COTTON DUCK. APPEARS FURTHER THAT THE TACOMA PACIFIC TERMINALS, INC., WITH WHOM YOU MADE ARRANGEMENTS FOR THE REMOVAL AND STORAGE OF THE COTTON DUCK, TOOK AN INVENTORY OF THE MATERIAL WHICH REVEALED A SHORTAGE OF 1,904 YARDS. YOU HAVE FILED CLAIM FOR A REFUND OF $1,324.07 OF THE PURCHASE PRICE PREVIOUSLY PAID. THE AMOUNT ALLEGEDLY IS BASED ON THE SHORTAGE OF 1,904 YARDS AT $0.69542 A YARD, THE UNIT PRICE APPARENTLY USED BY YOU IN COMPUTING YOUR LOT PRICE BID.

THE REQUEST OF JANUARY 4, 1956, FOR REVIEW IS BASED ON YOUR CONTENTION THAT THE BID WAS SUBMITTED ON THE BASIS OF AN APPROXIMATE TOTAL OF 37,747 YARDS UNDER LOTS NOS. 2710 THROUGH 2717 AND THROUGH NO FAULT OF YOUR OWN, BUT AS A RESULT OF THIS QUANTITY BEING INCORRECTLY SHOWN IN THE DEPARTMENT OF THE ARMY'S CATALOGUE OF SALE, THE ADVERTISED AMOUNT WAS NOT DELIVERED. YOU REFER TO THE CASE OF W. SHANHOUSE SONS, INC. V. UNITED STATES, 61 C.CLS. 840, AS SUPPORTING YOUR POSITION IN THE MATTER.

ARTICLE 8 OF THE SALES CATALOGUE HAS REFERENCE TO THE "CONDITION OF PROPERTY" AND SPECIFICALLY PROVIDES, IN PERTINENT PART, THAT:

"ALL PROPERTY LISTED HEREIN OR OTHERWISE OFFERED FOR SALE AT THIS AUCTION IS OFFERED FOR SALE ,AS IS" AND "WHERE IS" AND WITHOUT RECOURSE AGAINST THE AUCTIONEER OR SELLER. * * *

"THE DESCRIPTION CONTAINED IN ANY CATALOG, OR OTHER DESCRIPTIVE LITERATURE IS BASED ON THE BEST AVAILABLE INFORMATION, BUT NEITHER THE AUCTIONEER NOR THE SELLER MAKE ANY GUARANTY, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO QUANTITY, QUALITY, KIND, ETC. * * * AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT * * * BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH ANY STANDARD EXPECTED.'

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE, SUCH LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND WHILE ORDINARILY THERE IS IMPLIED WARRANTY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, BUT WHERE THERE EXISTS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THE INSTANT CASE--- NO SUCH 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 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424. IN THIS CONNECTION, IT IS PARTICULARLY SIGNIFICANT TO NOTE FURTHER THAT THE DISCLAIMER OF WARRANTY SPECIFICALLY REFERS TO, AMONG OTHERS, THE ,QUANTITY" OF MATERIAL INVOLVED. ALSO, THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE, NOR DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION. THE RECORD DOES SHOW, HOWEVER, THAT NOTWITHSTANDING THE ALLEGED SHORTAGE IN THE DELIVERY YOU DID RECEIVE COTTON DUCK WHICH WAS THE SPECIFIC MATERIAL ADVERTISED FOR SALE.

THE RECORD SHOWS THAT PRIOR TO THE SUBMISSION OF YOUR BID YOU WERE FULLY APPRISED OF THE FACT THAT THE DESCRIPTION OF THE PROPERTY WAS BASED MERELY ON THE BEST AVAILABLE INFORMATION. MOREOVER, YOU WERE ON NOTICE THAT ALL WARRANTIES WERE EXPRESSLY DISCLAIMED ON THE VARIOUS LOTS OFFERED FOR SALE AND THAT NO CLAIM WOULD BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT IF THE PROPERTY FAILED TO MEET EXPECTED STANDARDS. NOTWITHSTANDING THIS, HOWEVER, YOU NEVERTHELESS SUBMITTED A BID--- APPARENTLY WITHOUT ATTEMPTING TO MAKE A THOROUGH INSPECTION-- UNDER THE SUBJECT SALES CATALOGUE, WHEREIN YOU EXPRESSLY AGREED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM AGAINST THE SELLER. UNDER SUCH CIRCUMSTANCES, AND EVEN THOUGH IT MIGHT HAVE BEEN HIGHLY IMPRACTICAL, IF NOT IMPOSSIBLE, AS ALLEGED BY YOU, TO HAVE VERIFIED THE EXACT YARDAGE UNDER EXISTING CONDITIONS, IT MUST BE CONCLUDED THAT YOU ASSUMED ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE SALES CATALOGUE AND THE PROPERTY ACTUALLY DELIVERED.

THE FACTS IN THE SHANHOUSE CASE, SUPRA, APPEAR READILY DISTINGUISHABLE FROM THOSE WITH WHICH WE ARE HERE CONCERNED. AMONG THE TERMS AND CONDITIONS OF THE SALES CATALOGUE IN THAT CASE WAS A CLAUSE WHICH, IN EFFECT, PROVIDED THAT IF THE ACTUAL QUANTITIES OF ANY OF THE ARTICLES SOLD PROVED TO BE LESS THAN THE QUANTITIES SHOWN IN THE CATALOGUE, THE PURCHASER WILL PAY FOR WHAT HE ACTUALLY RECEIVES. IT CLEARLY MAY BE SEEN FROM THE LANGUAGE USED BY THE HONORABLE CHIEF JUSTICE CAMPBELL, IN DELIVERING THE OPINION OF THE COURT IN THAT CASE, THAT THE ISSUE THERE WAS PREDICATED SOLELY ON THE SPECIFIC CLAUSE REFERRED TO ABOVE WHICH APPARENTLY WAS WITHOUT LIMITATION. THE ADJUSTMENT CONTEMPLATED IN ARTICLE 13 OF THE SUBJECT SALES CATALOGUE, WHICH UNDOUBTEDLY IS THE ARTICLE PROMPTING YOU TO RELY ON THE SHANHOUSE CASE, SUPRA, IS EXPRESSLY EXCLUDED FROM APPLICATION WHEN THE AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS. THE SUBJECT SALE WAS MADE TO YOU STRICTLY ON A LOT BASIS.