B-135463, APR. 10, 1958

B-135463: Apr 10, 1958

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THE VOUCHER WAS PREPARED IN CONNECTION WITH A CLAIM FILED BY MR. WHICH WERE ACQUIRED BY PURCHASE FROM YOUR ADMINISTRATION UNDER BILL OF SALE DATED APRIL 11. THE RECORD DISCLOSES THAT AN INVITATION FOR BIDS WAS CIRCULATED. SO FAR AS IS PERTINENT TO THE INSTANT CLAIM. THAT THE CONVEYANCE OF THE PROPERTY WILL INCLUDE ALL OF THE PERSONAL PROPERTY AND SUPPLIES OWNED BY THE SELLER AND LOCATED ON THE PREMISES. THAT "THE PURCHASER WILL BE EXPECTED TO ACCEPT THE PROPERTY IN ITS PRESENT CONDITION WITHOUT WARRANTY BY FHA AS TO PHYSICAL CONDITION.'. - "NO REPRESENTATIONS ARE MADE BY THE SELLER AS TO THE PHYSICAL CONDITION OF THE PROPERTY TO BE CONVEYED AND THE PURCHASER AGREES TO ACCEPT THE SAME IN ITS PRESENT CONDITION * * *.'.

B-135463, APR. 10, 1958

TO LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING ADMINISTRATION:

YOUR LETTER OF MARCH 7, 1958, WITH ENCLOSURES, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT, AFTER ADJUSTMENT OF THE AMOUNT, THE VOUCHER FOR $1,555.60, WHICH ACCOMPANIED YOUR LETTER, IN FAVOR OF LEE O. ROSTENBERG, P.O. BOX 1182, HOT SPRINGS, ARKANSAS. THE VOUCHER WAS PREPARED IN CONNECTION WITH A CLAIM FILED BY MR. ROSTENBERG FOR THE COST OF NEW GAS RANGES, SHADES, AND BLINDS, PLUS FREIGHT, HANDLING, AND INSTALLATION CHARGES, INCURRED BY THE CLAIMANT IN THE REPLACEMENT OF THOSE EQUIPMENT ITEMS MISSING FROM THE PROPERTIES IDENTIFIED AS EUGENIA AND COOSA GARDENS APARTMENTS, LOCATED IN SYLACAUGA, ALABAMA, WHICH WERE ACQUIRED BY PURCHASE FROM YOUR ADMINISTRATION UNDER BILL OF SALE DATED APRIL 11, 1957.

THE RECORD DISCLOSES THAT AN INVITATION FOR BIDS WAS CIRCULATED, SEEKING OFFERS TO PURCHASE THE PROPERTIES UNDER THE TERMS AND CONDITIONS THEREIN STIPULATED. THE INVITATION PROVIDED, SO FAR AS IS PERTINENT TO THE INSTANT CLAIM, THAT THE CONVEYANCE OF THE PROPERTY WILL INCLUDE ALL OF THE PERSONAL PROPERTY AND SUPPLIES OWNED BY THE SELLER AND LOCATED ON THE PREMISES, AND THAT "THE PURCHASER WILL BE EXPECTED TO ACCEPT THE PROPERTY IN ITS PRESENT CONDITION WITHOUT WARRANTY BY FHA AS TO PHYSICAL CONDITION.'

THE CONTRACT OF SALE AND PURCHASE DATED NOVEMBER 17, 1956, PROVIDED THAT- -- "UNDER THE TERMS AND CONDITIONS HEREINAFTER SET OUT, THE SELLER AGREES TO SELL AND THE PURCHASER AGREES TO URCHASE" THE TWO PROJECTS APPROPRIATELY DESCRIBED,"TOGETHER WITH THE APPURTENANCES, INCLUDING ALL ARTICLES OF PERSONAL PROPERTY AND SUPPLIES OWNED BY THE COMMISSIONER AND USED IN CONNECTION WITH THE OPERATION OF THE PROPERTY WHICH SHALL BE LOCATED ON THE PREMISES AT THE TIME OF CLOSING.' THAT INSTRUMENT ALSO STIPULATED THAT--- "NO REPRESENTATIONS ARE MADE BY THE SELLER AS TO THE PHYSICAL CONDITION OF THE PROPERTY TO BE CONVEYED AND THE PURCHASER AGREES TO ACCEPT THE SAME IN ITS PRESENT CONDITION * * *.'

THEREAFTER, A BILL OF SALE WAS EXECUTED UNDER DATE OF APRIL 11, 1957, IN FAVOR OF THE CLAIMANT'S CONCERN, SYLACAUGA PROPERTIES, INCORPORATED, CONCERNING THE SALE AND TRANSFER OF TITLE OF "THE GOODS AND CHATTELS DESCRIBED IN SCHEDULE "A" ATTACHED AND MADE A PART HEREOF LOCATED UPON THE PROPERTY DESCRIBED IN A CERTAIN DEED OF CONVEYANCE OF EVEN DATE HEREWITH FROM GRANTOR HEREIN TO GRANTEE HEREIN.' THE REFERRED-TO EXHIBIT A IS A DESCRIPTIVE INVENTORY OF THE VARIOUS ITEMS OF EQUIPMENT CONTAINED IN, OR MISSING FROM, EACH OF THE UNITS IN THE APARTMENTS, AND DISCLOSES THAT ON DATE OF ITS PREPARATION 12 STOVES, 1 VENETIAN BLIND, AND 13 WINDOW SHADES HAD BEEN REMOVED FROM THE PREMISES.

CLAIM IS MADE IN PART FOR THE COST OF 14 STOVES, 2 VENETIAN BLINDS, AND 18 WINDOW SHADES, WHICH INCLUDE THE ABOVE ITEMS PREVIOUSLY LISTED AS MISSING IN THE INVENTORY MADE A PART OF THE BILL OF SALE. IT IS THE CLAIMANT'S CONTENTION THAT IT HAD THE RIGHT TO RELY ON THE DESCRIPTION OF THE PROPERTIES AS SET FORTH IN THE INVITATION WHICH INDICATED THAT THE APARTMENT UNITS WERE EQUIPPED WITH, AMONG OTHER ITEMS, A RANGE AND VENETIAN BLINDS OR WINDOW SHADES, AND THAT A COPY OF THE ABOVE INVENTORY WAS NOT MADE AVAILABLE TO IT UNTIL AFTER THE SALE WAS MADE.

BY THE SUBSEQUENT EXECUTION OF THE BILL OF SALE DATED APRIL 11, 1957, THE GOVERNMENT EXPRESSLY AGREED TO CONVEY TO THE PURCHASER THE GOODS AND CHATTELS ITEMIZED IN THE INVENTORY LIST MADE A PART OF THE INSTRUMENT, AND APPEARS THEREBY TO HAVE ASSUMED RESPONSIBILITY FOR ANY EQUIPMENT LISTED THEREIN WHICH WAS DETERMINED TO BE MISSING ON THE DATE TITLE PASSED. CONCUR WITH THE INITIAL OPINION REPORTED TO HAVE BEEN EXPRESSED BY YOUR LEGAL DIVISION THAT THE CLAIMANT SHOULD BE REIMBURSED FOR THE FAIR AND REASONABLE VALUE OF 2 STOVES, 1 VENETIAN BLIND, AND 5 WINDOW SHADES, TOGETHER WITH ANY NECESSARY AND DIRECT COSTS INCURRED IN REPLACING THE MISSING EQUIPMENT.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED WITH THE ACCOMPANYING ATTACHMENTS, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT, IN AN AMOUNT ADMINISTRATIVELY DETERMINED TO BE REASONABLE AND CONSISTENT WITH THE GOVERNMENT'S LIMITED LIABILITY AS ABOVE SET FORTH.