B-128496, AUG. 1, 1956

B-128496: Aug 1, 1956

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TO KEENAN PIPE AND SUPPLY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. WHICH ITEM UPON REJECTION AND REPLACEMENT APPEARS TO HAVE BEEN LOST. ARE SET FORTH IN THE SETTLEMENT AND NEED NOT BE REPEATED HERE. EXCEPT TO POINT OUT THAT THERE APPEARS TO BE NO DISPUTE THAT YOUR CLAIM CONCERNS THE REJECTED COOLER WHICH REMAINED DEFECTIVE AFTER REPAIR ATTEMPTS WERE MADE BY YOUR REPRESENTATIVES. WHILE THERE WAS CONSIDERABLE INTERVENING DELAY. SUCH MATTER IS NOT CONTROLLING HERE. THE EVIDENCE DISCLOSES THAT UPON FINAL REJECTION OF THE DAMAGED COOLER IT WAS LEFT AT THE DELIVERY SITE BY YOUR REPRESENTATIVES AND NO RECORD THEREAFTER AS TO LOCATION APPEARS TO HAVE BEEN MADE IN THE OFFICIAL RECORDS.

B-128496, AUG. 1, 1956

TO KEENAN PIPE AND SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1956, WITH ENCLOSURES, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED JUNE 5, 1956, WHICH DISALLOWED YOUR CLAIM FOR $96, REPRESENTING THE VALUE OF ONE MODEL 4500 CFM EVAPORATIVE COOLER FURNISHED THE DEPARTMENT OF THE AIR FORCE, EDWARDS AIR FORCE BASE, CALIFORNIA, UNDER PURCHASE ORDER NO. (04-301) 51-3202, DATED APRIL 20, 1951, WHICH ITEM UPON REJECTION AND REPLACEMENT APPEARS TO HAVE BEEN LOST.

THE FACTS AND CIRCUMSTANCES CONCERNING THE COMPLETED DELIVERY OF ALL THE ITEMS COVERED BY THE SUBJECT PURCHASE ORDER, INCLUDING THE REJECTION AND REPLACEMENT OF ONE OF THE COOLERS, ARE SET FORTH IN THE SETTLEMENT AND NEED NOT BE REPEATED HERE, EXCEPT TO POINT OUT THAT THERE APPEARS TO BE NO DISPUTE THAT YOUR CLAIM CONCERNS THE REJECTED COOLER WHICH REMAINED DEFECTIVE AFTER REPAIR ATTEMPTS WERE MADE BY YOUR REPRESENTATIVES. YOU DO DISPUTE THE LAPSE OF TIME BETWEEN THE DATE OF DELIVERY AND THE DATE OF THE FILING OF YOUR CLAIM, AS STATED IN THE SETTLEMENT. WHILE THERE WAS CONSIDERABLE INTERVENING DELAY, SUCH MATTER IS NOT CONTROLLING HERE.

THE EVIDENCE DISCLOSES THAT UPON FINAL REJECTION OF THE DAMAGED COOLER IT WAS LEFT AT THE DELIVERY SITE BY YOUR REPRESENTATIVES AND NO RECORD THEREAFTER AS TO LOCATION APPEARS TO HAVE BEEN MADE IN THE OFFICIAL RECORDS. OBVIOUSLY, FOLLOWING THE REPLACEMENT OF THE DAMAGED COOLER THE RELATIONSHIP BETWEEN THE CONTRACTING PARTIES WITH RESPECT TO THE REJECTED ITEM BECAME ONE OF BAILMENT. THE RESPONSIBILITY FOR THE REMOVAL OF THE REJECTED COOLER BECAME YOURS AND THE GOVERNMENT'S POSITION WAS THAT OF A MORE GRATUITOUS BAILEE FOR YOUR BENEFIT.

IT IS WELL SETTLED THAT WHERE THE BAILMENT IS FOR THE SOLE BENEFIT OF THE BAILOR THE LAW IMPOSES UPON THE BAILEE THE DUTY OF EXERCISING ONLY REASONABLE CARE AND THE BAILEE IS NOT RESPONSIBLE FOR THE LOSS OF THE BAILED PROPERTY EXCEPT WHEN CHARGEABLE TO GROSS NEGLIGENCE. WITH REGARD TO THE DELIVERY OF THE DEFECTIVE COOLER, IT MAY BE STATED THAT A BUYER CANNOT BE OBLIGATED TO PAY FOR A THING DIFFERENT FROM THAT FOR WHICH HE CONTRACTED; AND IF THE GOODS DELIVERED DO NOT MEET THE QUALITY SPECIFIED, THEY MAY BE REJECTED AND THE CONTRACT RESCINDED. POPE V. ALLIS, 115 U.S. 363. SEE, ALSO, GRAINGER BROS. CO. V. G. AMSINCK AND CO., 15 F.2D 329 CERTIORARI DENIED, 273 U.S. 768, WHEREIN WAS QUOTED WITH APPROVAL THE RULE STATED IN WILLISTON ON SALES AS FOLLOWS:

"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. ACCORDINGLY HE IS UNDER NO OBLIGATION TO RETURN THE GOODS TO THE SELLER, AND AFTER NOTICE THAT THE GOODS HAVE NOT BEEN AND WILL NOT BE ACCEPTED THE SELLER MUST ASSUME THE BURDEN OF REMOVING THEM.'

THERE IS NO SHOWING HERE THAT REASONABLE CARE WAS NOT TAKEN BY THE GOVERNMENT WITH RESPECT TO THE REJECTED COOLER. IT APPEARS THAT YOUR REPRESENTATIVES WERE SENT TO THE DELIVERY SITE AND THERE ATTEMPTED TO REPAIR THE DEFECTIVE COOLER. UPON FAILURE TO DO SO A REPLACEMENT WAS MADE. THE FACT THAT YOUR REPRESENTATIVES LEFT THE SITE WITHOUT REMOVAL OF THE ITEM, OR GIVING DEFINITE INSTRUCTIONS AS TO THE RETURN OF THE DEFECTIVE COOLER, IMPOSED NO ADDITIONAL RESPONSIBILITY ON THE GOVERNMENT IN THE MATTER. THERE WAS NO DUTY ON THE PART OF THE GOVERNMENT TO KEEP ANY OFFICIAL RECORD OF THE REJECTED ITEM AFTER REPLACEMENT HAD BEEN ACCOMPLISHED AND THE FACT THAT THE ITEM BECAME MISPLACED OR LOST AND THAT NO RECORD OF THE COOLER CAN BE TRACED IN NOWISE REFLECTS GROSS NEGLIGENCE ON THE PART OF THE BAILEE.

ACCORDINGLY, IN THE LIGHT OF THE REPORTED FACTS AND CIRCUMSTANCES, THE SETTLEMENT OF JUNE 5, 1956, IS SUSTAINED.

THE CORRESPONDENCE ATTACHED TO YOUR LETTER IS RETURNED HEREWITH AS REQUESTED.