B-136191, JUN. 20, 1958

B-136191, JUN. 20, 1958

TO MECHANICAL EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1958, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MARCH 24, 1958, WHICH DISALLOWED YOUR CLAIM IN THE SUM OF $204.18, REPRESENTING THE VALUE OF SIX NOZZLE AND HOLDER ASSEMBLIES, NO. DE-41466, ALLEGED TO HAVE BEEN FURNISHED AND SHIPPED TO THE TRANSPORTATION OFFICER, WAREHOUSE NO. 5, KEESLER AIR FORCE BASE, MISSISSIPPI, VIA INSURED PARCEL POST UNDER PURCHASE ORDER NO. (22- 600/56-5669, BUT CONCERNING WHICH YOU CLAIM TO HAVE NO RECORD OF RECEIPT THEREOF AT YOUR PLANT AFTER REJECTION AND RETURN TO YOU BY THE GOVERNMENT.

IT APPEARS THAT UNDER THE CITED PURCHASE ORDER, THE GOVERNMENT ORDERED SIX NOZZLE AND HOLDER ASSEMBLIES, PART NO. DE-42646, AT $34.03 EACH, OR FOR A TOTAL PRICE OF $204.18. SINCE NO SUCH PART NUMBER EXISTED YOU VOLUNTARILY SHIPPED, BY INSURED PARCEL POST, SIX NOZZLE AND HOLDER ASSEMBLIES PART NO. DE-41466, WHICH YOU BELIEVED TO BE PARTS THAT THE GOVERNMENT MIGHT BE ABLE TO USE, BUT WHEN THEY WERE RECEIVED BY THE GOVERNMENT IT WAS FOUND THAT THEY WOULD NOT FIT THE MACHINE FOR WHICH THE SUPPLIES WERE INTENDED. WHAT WAS ACTUALLY NEEDED WERE SIX NOZZLE AND SEAT ASSEMBLIES, PART NO. DE-43976, AT $14.02 EACH. AS A RESULT, THE ORIGINAL PURCHASE ORDER WAS CANCELLED BY MEANS OF A SUPPLEMENTAL AGREEMENT AND YOU VERBALLY AGREED TO ACCEPT THE RETURN OF PART NO. DE-41466, WITHOUT SPECIFYING THE METHOD OF SHIPMENT.

IT IS YOUR CONTENTION IN THE MATTER THAT YOU NEVER RECEIVED THE SUPPLIES AND THAT, SINCE THE GOVERNMENT FAILED OR NEGLECTED TO INSURE THE SAME UPON RETURNING THEM TO YOU BY PARCEL POST, YOU THEREBY WERE DEPRIVED OF ANY OPPORTUNITY OF HAVING THE PARCEL CHECKED THROUGH REGULAR CHANNELS OF THE POST OFFICE DEPARTMENT, AND THEREFORE, YOU FEEL THAT THE GOVERNMENT, BECAUSE OF SUCH ALLEGED FAILURE OR OMISSION UPON ITS PART, SHOULD TAKE THE LOSS REPORTED ON THE TRANSACTION HERE INVOLVED.

THERE IS NOTHING IN THE CONTRACT DOCUMENTS, OR IN THE CORRESPONDENCE BETWEEN THE PARTIES RELATIVE TO THE PRESENT TRANSACTION, INDICATING THAT THERE WAS ANY CONTRACTUAL OR OTHER AFFIRMATIVE DUTY IMPOSED UPON THE PURCHASING AGENCY TO INSURE THE PROPERTY AGAINST DAMAGE OR LOSS UPON RETURNING THE SHIPMENT TO YOU, OR, FOR THAT MATTER, ANY OBLIGATION WHATSOEVER OTHER THAN TO HOLD THE PROPERTY FOR YOUR BENEFIT, AND TO EXERCISE DUE CARE OVER THE SAME FOR A REASONABLE LENGTH OF TIME, AFTER WHICH THE QUESTION OF ITS ULTIMATE DISPOSITION WOULD BE A MATTER ENTIRELY WITHIN YOUR CONTROL AND JURISDICTION. SEE GRAINGER BROS. CO. V. G. AMSINCK AND CO., 15 F.2D 329, 332, CERTIORARI DENIED, 273 U.S. 768. CLEAR ENUNCIATION OF THE RULE GOVERNING SITUATIONS OF THIS CHARACTER IS CONTAINED IN WILLISTON ON SALES, 2D EDITION, VOLUME 2, PARAGRAPH 497 (QUOTED WITH APPROVAL BY THE COURT IN THE CASE LAST DEMANDED OF HIM. * *

IN THIS REGARD IT HAS BEEN REPORTED BY THE PURCHASING OFFICE THAT THE HE NEVER AGREED TO TAKE, THE SELLER IS A MERE VOLUNTEER AND THE BUYER IS IN THE POSITION OF A BAILEE WHO HAS HAD THE 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. * * * " IN THIS REGARD IT HAS BEEN REPORTED BY THE PURCHASING OFFICE THAT THE CUSTOMARY MANNER OF SHIPPING ITEMS OF THE KIND HERE INVOLVED IS "NONINSURED PARCEL POST.'

THE GOVERNMENT IN REJECTING THE SUPPLIES DELIVERED BY YOU AND IN EXERCISING ITS RIGHT OF RESCISSION OF THE CONTRACT UNDER THE CIRCUMSTANCES HERE INVOLVED, WAS ACTING STRICTLY WITHIN ITS LEGAL RIGHTS. SEE POPE V. ALLIS, 115 U.S. 363, 371; NORRINGTON V. WRIGHT, 115 ID. 188, 203; RUBIN V. STURTEVANT, 80 F. 930, 932.

CONSEQUENTLY EVEN IF YOU DID NOT RECEIVE THE SUPPLIES UPON THEIR RETURN, THE CONCLUSION IS INESCAPABLE THAT, IN THE ABSENCE OF A SPECIAL OR AN EXPRESS AGREEMENT OR UNDERSTANDING BETWEEN THE PARTIES REQUIRING THAT THE SUPPLIES INVOLVED BE INSURED BY THE GOVERNMENT WHEN SHIPPING THEM BACK TO YOU, AS THE VENDOR, THE GOVERNMENT'S RESPONSIBILITY IN THE MATTER WAS FULLY AND COMPLETELY DISCHARGED WHEN IT RETURNED THE SUPPLIES BY PARCEL POST. THERE EXISTED NO OBLIGATION, EITHER EXPRESS OR IMPLIED, ON THE PART OF THE UNITED STATES TO INSURE THE SAID PROPERTY AFTER ITS REJECTION OR UPON SHIPPING THE SAME BACK TO YOU.

ACCORDINGLY, THE SETTLEMENT OF MARCH 24, 1958, DISALLOWING YOUR CLAIM IS SUSTAINED.