B-147551, JAN. 11, 1962

B-147551, JAN. 11, 1962

TO ROBERT A. BROCKMEIER, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1961, IN BEHALF OF MR. H. E. BELL, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 15, 1961, WHICH DISALLOWED MR. BELL'S CLAIM FOR $252 COVERING RUBBISH DISPOSAL SERVICE ALLEGED TO HAVE BEEN FURNISHED THE BUREAU OF RECLAMATION DURING THE PERIOD 1954 THROUGH JUNE 30, 1961.

YOU STATE THAT THE TRASH WAS PICKED UP FROM A DRUM LOCATED IN THE REAR OF THE BUREAU OF RECLAMATION OFFICE, WHICH MR. BELL ASSUMED BELONGED TO THE BUREAU, AND THAT HE WAS ORIGINALLY REQUESTED VERBALLY BY THE MANAGER OF THE OFFICE TO EMPTY THE DRUM. YOU STATE FURTHER THAT MR. BELL ASSUMED THAT THE CITY WAS COLLECTING FROM THE BUREAU OF RECLAMATION.

MR. C. A. CUSICK, CITY CLERK, ADVISED THE BUREAU OF RECLAMATION THAT MR. BELL IS AN INDEPENDENT CONTRACTOR FOR TRASH REMOVAL IN THE BUSINESS AREA AND IS RESPONSIBLE FOR MAKING ALL AGREEMENTS AND COLLECTING THE AMOUNTS DUE, UNLESS A SPECIAL REQUEST IS MADE TO HAVE THE CITY BILL FOR SAME. THE ABSENCE OF SUCH AN AGREEMENT, THERE WOULD BE NO OBLIGATION ON THE GOVERNMENT TO PAY THE AMOUNT CLAIMED.

IT DOES NOT APPEAR FROM THE RECORD THAT THE BUREAU OF RECLAMATION EVER MAINTAINED A RUBBISH BARREL AT THE BLYTHE FIELD OFFICE OR THAT IT WAS EVER IN CONTACT WITH MR. BELL OR THE CITY IN CONNECTION WITH RUBBISH DISPOSAL SERVICES PRIOR TO MR. BELL'S VISIT TO THE OFFICE IN FEBRUARY 1961. FROM TIME TO TIME BUREAU PERSONNEL PLACED A SMALL VOLUME OF RUBBISH IN A STREET CONTAINER MARKED "CITY OF BLYTHE" AND OCCASIONALLY A BARREL OF UNKNOWN OWNERSHIP BEHIND THE BUILDING WAS USED IN COMMON WITH OTHER SHOPS IN THE VICINITY. SINCE FEBRUARY 17, 1961, NO RUBBISH HAS BEEN PLACED OUTSIDE THE BUILDING.

IN THE ABSENCE OF A SPECIFIC AGREEMENT THE LAW WILL NOT IMPLY A PROMISE TO PAY FOR SERVICES UNLESS THEY ARE KNOWINGLY AND VOLUNTARILY ACCEPTED, SO AS TO GIVE RISE TO THE PRESUMPTION THAT THEY WERE GIVEN AND RECEIVED IN THE EXPECTATION OF PAYMENT BEING MADE. EVEN IF MR. BELL WAS REQUESTED VERBALLY IN 1954 TO EMPTY THE DRUM, THE CONTINUATION OF ANY RESULTING AGREEMENT WOULD REQUIRE THAT THE BUREAU BE KEPT ON NOTICE BY REGULAR BILLING, OR OTHERWISE, AND THAT THE RECEIPT OF THE SERVICES BE ACKNOWLEDGED. SINCE NO NOTICE WAS GIVEN FOR A PERIOD OF MORE THAN SEVEN YEARS, AND SINCE THE USE OF THE BARREL WAS INTERMITTENT AND IN COMMON WITH OTHER USERS, AND THERE WAS NO KNOWLEDGE ON THE PART OF GOVERNMENT PERSONNEL THAT ANY SERVICES INVOLVING A CHARGE WERE BEING RECEIVED, IT CANNOT REASONABLY BE ARGUED THAT THERE EXISTED ANY CONTRACT, EXPRESS OR IMPLIED, FOR THE SERVICES IN QUESTION.

FOR THE REASONS STATED, THE SETTLEMENT OF SEPTEMBER 15, 1961, DISALLOWING MR. BELL'S CLAIM MUST BE, AND IS, SUSTAINED.