B-136390, JUN. 18, 1958

B-136390: Jun 18, 1958

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF JUNE 5. ON AN "AS IS. WHERE IS" BASIS. THE CONTRACT PROVIDED THAT THE PURCHASER WAS TO REMOVE ALL OF THE EQUIPMENT FROM THE GOVERNMENT PROPERTY ON WHICH IT WAS SITUATED WITHIN 15 DAYS. THE EXTENSION WAS GRANTED. WE WERE NOT FURNISHED A COPY OF THE SALES TERMS AND CONDITIONS. THE ONLY ACT WHICH REMAINS TO BE DONE IS THE REMOVAL BY THE PURCHASER OF HIS REMAINING EQUIPMENT FROM THE GOVERNMENT INSTALLATIONS WHERE IT IS SITUATED. SUCH ACT CLEARLY IS OF THE CHARACTER WHICH IS NOT REQUIRED TO BE PERFORMED BY MR. IS CAPABLE OF BEING PERFORMED BY OTHERS FOR HIM.

B-136390, JUN. 18, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF JUNE 5, 1958, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, R11.2 L8) L8/N54-3, REQUESTING A DECISION AS TO WHETHER J. A. NICHOLAS, BOWERS ROAD, FRANKLIN, VIRGINIA, MAY BE RELIEVED OF THE RESPONSIBILITY OF COMPLETING CONTRACT NO. N189S-2904A/S), DATED MARCH 25, 1958.

UNDER THE CONTRACT, MR. NICHOLAS AGREED TO PURCHASE FROM THE U.S. NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, ON AN "AS IS, WHERE IS" BASIS, 18 PIECES OF GOVERNMENT-OWNED VEHICULAR EQUIPMENT SITUATED AT FOUR LOCATIONS IN VIRGINIA AT THE UNIT PRICES SPECIFIED, OR FOR A TOTAL CONSIDERATION OF $2,051.28. THE CONTRACT PROVIDED THAT THE PURCHASER WAS TO REMOVE ALL OF THE EQUIPMENT FROM THE GOVERNMENT PROPERTY ON WHICH IT WAS SITUATED WITHIN 15 DAYS.

IT APPEARS THAT MR. NICHOLAS MADE FULL PAYMENT FOR THE EQUIPMENT ON APRIL 15, 1958, WHEN HE REQUESTED AN EXTENSION OF 30 DAYS WITHIN WHICH TO REMOVE IT BECAUSE OF A HEART ATTACK EXPERIENCED SUBSEQUENT TO ENTERING INTO THE CONTRACT, WHICH NECESSITATED A LIMITATION OF HIS DAILY WORK OPERATIONS. THE EXTENSION WAS GRANTED, AND BY MAY 12 MR. NICHOLAS HAD REMOVED 10 PIECES OF THE EQUIPMENT. ON THAT DATE, HOWEVER, HE ADVISED THAT HE HAD SUFFERED ANOTHER HEART ATTACK WHICH WOULD MAKE IT IMPOSSIBLE FOR HIM TO REMOVE THE EQUIPMENT WITHIN THE TIME STIPULATED. SUBSEQUENTLY, HE REQUESTED THAT HE BE ALLOWED TO RESCIND THE CONTRACT WITH RESPECT TO THE 8 PIECES OF EQUIPMENT REMAINING TO BE REMOVED AND REFUNDED $1,152.08, REPRESENTING THAT PORTION OF THE PURCHASE PRICE APPLICABLE THERETO, ON THE GROUNDS THAT HIS ATTENDING PHYSICIAN HAD ORDERED HIM TO REMAIN INACTIVE FOR AN INDEFINITE PERIOD OF TIME.

WE WERE NOT FURNISHED A COPY OF THE SALES TERMS AND CONDITIONS, BUT ASSUME THAT NOTHING CONTAINED THEREIN PREVENTED COMPLETE VESTING OF TITLE IN THE PURCHASER UPON ACCEPTANCE OF HIS OFFER AND PAYMENT OF THE PRICE. THE ONLY ACT WHICH REMAINS TO BE DONE IS THE REMOVAL BY THE PURCHASER OF HIS REMAINING EQUIPMENT FROM THE GOVERNMENT INSTALLATIONS WHERE IT IS SITUATED. SUCH ACT CLEARLY IS OF THE CHARACTER WHICH IS NOT REQUIRED TO BE PERFORMED BY MR. NICHOLAS PERSONALLY, BUT IS CAPABLE OF BEING PERFORMED BY OTHERS FOR HIM. UNDER THESE CIRCUMSTANCES, HIS ILLNESS AFFORDS NO LEGAL BASIS FOR RELIEVING HIM OF HIS OBLIGATIONS UNDER THE CONTRACT. SEE 12 AM. JUR., CONTRACTS, SEC. 376.