B-143860, NOV. 10, 1960

B-143860, NOV. 10, 1960

TO GARRETT FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1960, ACKNOWLEDGED SEPTEMBER 2, IN WHICH YOU ASK FOR A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $119.50, ON BILL NO. 5669-A, FOR ADDITIONAL FREIGHT TRANSPORTATION CHARGES ON A SHIPMENT OF FREIGHT AUTOMOBILES MOVING FROM ALBUQUERQUE, NEW MEXICO, TO LAS VEGAS, NEVADA, ON GOVERNMENT BILL OF LADING WY-6586618, DATED FEBRUARY 23, 1956.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $253.88, COMPUTED ON THE BASIS OF THE LESS-THAN-TRUCKLOAD RATE OF $7.50 PER 100 POUNDS AUTHORIZED BY ROCKY MOUNTAIN MOTOR TARIFF BUREAU INC., U.S. GOVERNMENT QUOTATION NO. 43-D. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE LESS-THAN-TRUCKLOAD RATE OF $3.97 PER 100 POUNDS AUTHORIZED BY UNIFORM TENDER OF MOTOR CARRIER'S RATES OR CHARGES, JOINT TENDER NO. 9-DOA, ISSUED JOINTLY BY YOUR COMPANY AND SAN JUAN BASIN LINES WAS APPLICABLE AND RESULTED IN AN OVERPAYMENT OF $119.50 WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. YOU PRESENTED SUPPLEMENTAL BILL NO. 5669-A, RECLAIMING THE AMOUNT OF OVERPAYMENT AND OUR OFFICE DISALLOWED YOUR BILL IN OUR SETTLEMENT CERTIFICATE OF AUGUST 18, 1960.

YOU CONTEND THAT JOINT TENDER NO. 9-DOA, UPON WHICH WE BASE OUR CHARGES IS NOT FOR APPLICATION, ASSERTING THAT IT HAD BEEN CANCELLED BY SUPPLEMENT NO. 1, EFFECTIVE JUNE 1, 1955. IN SUPPORT OF YOUR CONTENTION YOU HAVE FURNISHED A NOTARIZED CERTIFICATION PURPORTEDLY SHOWING THAT THE CANCELLATION WAS MADE EFFECTIVE JUNE 1, 1955, WITH PROPER DISTRIBUTION TO THE DEPARTMENT OF THE ARMY. YOU ALSO EXPLAIN THAT SECOND CANCELLATION SUPPLEMENT NO. 1, WAS ISSUED FEBRUARY 26, 1960, AND MADE EFFECTIVE APRIL 5, 1960, BECAUSE THE MILITARY TRAFFIC MANAGEMENT AGENCY HAD NO RECORD OF PREVIOUSLY RECEIVING A NOTICE OF CANCELLATION AND YOU WANTED TO REMOVE ANY DOUBT AS TO CANCELLATION.

TENDER NO. 9-DOA WAS IN EFFECT A CONTINUING OFFER TO THE DEPARTMENT OF THE ARMY TO TRANSPORT GOVERNMENT PROPERTY AT SPECIFIED REDUCED CHARGES UNDER THE CONDITIONS OUTLINED THEREIN. ITEM 9 OF THE TENDER PROVIDES THAT THE TENDER COULD BE CANCELLED OR MODIFIED BY WRITTEN NOTICE OF NOT LESS THAN THIRTY DAYS BY EITHER PARTY TO THE OTHER. THE NOTICE OF REVOCATION, HOWEVER, MUST BE COMMUNICATED TO AND ACTUALLY RECEIVED BY THE OFFERREES. PEACOCK V. HARRISON, 189 S.W.2D 500, 503; WERTHEIMER, INC. V. WEHLE- HARTFORD CO., 9 A.2D 279, 282; LARSON V. SUPERIOR AUTO PARTS, INC., 81 N.W.2D 505, 510. THEREFORE, THE PURPORTED CANCELLATION OF JUNE 1, 1955, WOULD NOT OPERATE TO REVOKE YOUR TENDER OF NOVEMBER 1, 1954, UNLESS THE NOTICE WAS ACTUALLY RECEIVED BY THE DEPARTMENT OF THE ARMY. THE MILITARY TRAFFIC MANAGEMENT AGENCY REPORTS THAT THERE IS NO RECORD OF RECEIPT OF THE CANCELLATION OF JUNE 1, 1955.

THE QUESTION BEING ONE OF FACT, OUR OFFICE IS OBLIGED TO RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE THAT NO CANCELLATION OF JUNE 1, 1955, WAS RECEIVED. THEREFORE, IN THE ABSENCE OF SATISFACTORY EVIDENCE TO ESTABLISH THAT THE NOTICE OF CANCELLATION WAS COMMUNICATED TO THE GOVERNMENT PRIOR TO DATE OF SHIPMENT, WE HAVE NO RECOURSE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.