B-130656, FEB. 19, 1957

B-130656: Feb 19, 1957

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DEPARTMENT OF THE INTERIOR: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. THE TOTAL SPECIFIED CONSIDERATION FOR THE THREE ITEMS WAS $10. IT IS ADMINISTRATIVELY REPORTED THAT PERSONNEL OF THE BUREAU OF LAND MANAGEMENT IN MARKING EACH TREE SCHEDULED FOR SALE. THE ABOVE ERROR WAS NOT DISCOVERED UNTIL AFTER THE CONTRACT HAD BEEN EXECUTED. IT WAS DISCOVERED PRIOR TO CUTTING. THE PROPRIETY OF MAKING THE REQUESTED REFUND IS QUESTIONED IN VIEW OF THE CONTRACT CONDITION WHICH READS: "THE PURCHASER SHALL BE LIABLE FOR THE FULL PURCHASE PRICE SHOWN ABOVE EXCEPT AS IT MAY BE CHANGED BY REAPPRAISAL. OR REMOVED OR DESIGNATED FOR TAKING IS LESS THAN THE ESTIMATED QUANTITY SET FORTH ABOVE.'. THE INSTANT CONTRACT IS ONE FOR THE SALE OF PERSONAL PROPERTY ONLY.

B-130656, FEB. 19, 1957

TO MR. GARTH H. BUDD, CERTIFYING OFFICER, U.S. DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1957, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT BUREAU SCHEDULE NO. B-16, FOR $175.50, IN FAVOR OF ORIS CRISP, JOHN DAY, OREGON, REPRESENTING THE VALUE OF 5 MBF OF PONDEROSA PINE TIMBER ERRONEOUSLY INCLUDED IN CONTRACT OF SALE NO. 14 11-001-469, DATED SEPTEMBER 16, 1953.

BY THE TERMS OF THE CONTRACT, THE PURCHASER, ORIS CRISP, AGREED TO PURCHASE, CUT AND REMOVE CERTAIN MARKED PONDEROSA PINE, DOUGLAS FIR, AND WHITE FIR TIMBER, ESTIMATED TO AGGREGATE 387 M BOARD FEET, AT THE SPECIFIED UNIT PRICES OF $35.10, $5.00 AND $4.00 PER M BOARD FEET, RESPECTIVELY. BASED UPON THE ESTIMATED QUANTITIES LISTED IN THE AGREEMENT, THE TOTAL SPECIFIED CONSIDERATION FOR THE THREE ITEMS WAS $10,147.40. IT IS ADMINISTRATIVELY REPORTED THAT PERSONNEL OF THE BUREAU OF LAND MANAGEMENT IN MARKING EACH TREE SCHEDULED FOR SALE, ERRONEOUSLY MARKED SEVERAL TREES CONTAINING AN ESTIMATED 5 MBF, VALUED AT $175.50, ON PRIVATE LAND ADJOINING THE GOVERNMENT AREA INTENDED TO BE CUT.

THE ABOVE ERROR WAS NOT DISCOVERED UNTIL AFTER THE CONTRACT HAD BEEN EXECUTED, BUT IT WAS DISCOVERED PRIOR TO CUTTING. THE CONTRACTOR HAS PAID THE FULL CONTRACT PRICE OF THE TIMBER, BUT HAS MADE APPLICATION FOR REFUND OF THE VALUE OF THE UNAVAILABLE TIMBER REFERRED TO.

THE PROPRIETY OF MAKING THE REQUESTED REFUND IS QUESTIONED IN VIEW OF THE CONTRACT CONDITION WHICH READS:

"THE PURCHASER SHALL BE LIABLE FOR THE FULL PURCHASE PRICE SHOWN ABOVE EXCEPT AS IT MAY BE CHANGED BY REAPPRAISAL, EVEN THOUGH THE QUANTITY OF MATERIALS ACTUALLY SEVERED, EXTRACTED, OR REMOVED OR DESIGNATED FOR TAKING IS LESS THAN THE ESTIMATED QUANTITY SET FORTH ABOVE.'

THE INSTANT CONTRACT IS ONE FOR THE SALE OF PERSONAL PROPERTY ONLY, AS TO WHICH THE SELLER IMPLIEDLY WARRANTS THE TITLE TO THE PROPERTY SOLD. SEE MERCHANTS' BANK V. PEOPLES SAV. AND L. ASSN., 70 F.2D 169, 93 ALR 226; ALSO SECTION 13 OF THE UNIFORM SALES ACT. THE ACTION OF THE UNITED STATES IN HAVING OFFERED THE TIMBER HERE IN QUESTION FOR SALE, AND IN HAVING MARKED IT TIMBER WHICH WAS TO BE CUT, OBLIGATED IT TO PERMIT THE PURCHASER TO CUT EACH AND EVERY TREE SO MARKED, AND TO THE EXTENT THAT IT WAS UNABLE TO DO SO THERE WAS A FAILURE OF CONSIDERATION, FOR WHICH WE BELIEVE THE PURCHASER IS ENTITLED TO RELIEF. WE CONSTRUE THE QUOTED CONDITION OF THE CONTRACT AS DESIGNED TO BIND THE PARTIES TO THE ESTIMATED QUANTITIES STATED, WHETHER OR NOT THE ESTIMATES WERE CORRECT, BUT WE DO NOT FEEL THAT IT SHOULD BE CONSTRUED AS AFFECTING THE GOVERNMENT'SOBLIGATION TO FURNISH TO THE PURCHASER FOR CUTTING ALL OF THE TREES WHICH WERE DESIGNATED FOR SALE AND INCLUDED IN THE ESTIMATED QUANTITY.

ACCORDINGLY, THE VOUCHER AND RELATED PAPERS ARE RETURNED WITH THE ADVICE THAT THERE IS NO LEGAL OBJECTION TO ITS CERTIFICATION AND PAYMENT, IF OTHERWISE CORRECT.