B-166028, APR. 22, 1969

B-166028: Apr 22, 1969

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DISALLOWED YOUR CLAIM FOR $282.20 REPRESENTING THE TRANSPORTATION EXPENSES FOR THE ADDITIONAL NEW FURNITURE BECAUSE THE RECORD INDICATED THE FURNITURE WAS PURCHASED AFTER JULY 1. THE RULE IS WELL ESTABLISHED THAT THE RESPONSIBILITY OF THE GOVERNMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS IS LIMITED TO THOSE EFFECTS OWNED BY THE EMPLOYEE ON THE EFFECTIVE DATE OF HIS TRAVEL AUTHORIZATION. THE ADDITIONAL INFORMATION YOU HAVE FURNISHED ONLY PROVES THAT YOU ORDERED THE NEW FURNITURE IN MAY 1968. WHICH WAS BEFORE THE EFFECTIVE DATE OF YOUR TRAVEL AUTHORIZATION. THAT YOU HAD PAID APPROXIMATELY ONE-FOURTH THE PURCHASE PRICE WHEN YOU PLACED THE ORDER AND THAT THE REMAINDER WAS TO BE PAID UPON DELIVERY (C.O.D.).

B-166028, APR. 22, 1969

TO MR. R. A. BYER:

YOUR UNDATED MEMORANDUM (RECEIVED JANUARY 17, 1969) SUBMITTED TO OUR CLAIMS DIVISION COPIES OF INVOICES SHOWING SPECIFIC ITEMS OF FURNITURE ORDERED BY YOU IN MAY 1968, TO SUBSTANTIATE YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION EXPENSES INCURRED IN THE MOVEMENT OF SUCH FURNITURE FROM BOSTON, MASSACHUSETTS TO POTOMAC, MARYLAND, IN JULY 1968. FURTHER YOU ENCLOSED A COPY OF A STATEMENT WHICH SHOWS THAT ON MAY 18, 1968, YOU PAID $750 THEREON.

OUR SETTLEMENT OF JANUARY 14, 1969, DISALLOWED YOUR CLAIM FOR $282.20 REPRESENTING THE TRANSPORTATION EXPENSES FOR THE ADDITIONAL NEW FURNITURE BECAUSE THE RECORD INDICATED THE FURNITURE WAS PURCHASED AFTER JULY 1, 1968, THE EFFECTIVE DATE OF YOUR TRAVEL AUTHORIZATION.

THE RULE IS WELL ESTABLISHED THAT THE RESPONSIBILITY OF THE GOVERNMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS IS LIMITED TO THOSE EFFECTS OWNED BY THE EMPLOYEE ON THE EFFECTIVE DATE OF HIS TRAVEL AUTHORIZATION. B-159832, AUGUST 26, 1966; B-161742, JULY 7, 1967.

THE ADDITIONAL INFORMATION YOU HAVE FURNISHED ONLY PROVES THAT YOU ORDERED THE NEW FURNITURE IN MAY 1968, WHICH WAS BEFORE THE EFFECTIVE DATE OF YOUR TRAVEL AUTHORIZATION, I.E., JULY 1, 1968; THAT YOU HAD PAID APPROXIMATELY ONE-FOURTH THE PURCHASE PRICE WHEN YOU PLACED THE ORDER AND THAT THE REMAINDER WAS TO BE PAID UPON DELIVERY (C.O.D.). THE NEW FURNITURE APPEARS TO HAVE BEEN SHIPPED TO YOU JULY 18, 1968, FROM BOSTON AND APPARENTLY WAS DELIVERED SHORTLY THEREAFTER AT BETHESDA, MARYLAND.

CONCERNING THE DATE ON WHICH TITLE TO THE FURNITURE PASSED TO YOU WE NOTE THAT THE ANNOTATED LAWS OF MASSACHUSETTS, UNIFORM COMMERCIAL CODE, CHAPTER 106, SALES, PART 4, SECTION 2-401, WHERE THE SALE WAS MADE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * IN SO FAR AS SITUATIONS ARE NOT COVERED BY THE OTHER PROVISIONS OF THIS ARTICLE AND MATTERS CONCERNING TITLE BECOME MATERIAL THE FOLLOWING RULES APPLY:

"/1) TITLE TO GOODS CANNOT PASS UNDER A CONTRACT FOR SALE PRIOR TO THEIR IDENTIFICATION TO THE CONTRACT (SECTION 2-501), AND UNLESS OTHERWISE EXPLICITLY AGREED THE BUYER ACQUIRES BY THEIR IDENTIFICATION A SPECIAL PROPERTY AS LIMITED BY THIS CHAPTER. ANY RETENTION OR RESERVATION BY THE SELLER OF THE TITLE (PROPERTY) IN GOODS SHIPPED OR DELIVERED TO THE BUYER IS LIMITED IN EFFECT TO A RESERVATION OF A SECURITY INTEREST. SUBJECT TO THESE PROVISIONS AND TO THE PROVISIONS OF THE ARTICLE ON SECURED TRANSACTIONS (ARTICLE 9), TITLE TO GOODS PASSES FROM THE SELLER TO THE BUYER IN ANY MANNER AND ON ANY CONDITIONS EXPLICITLY AGREED ON BY THE PARTIES.

"/2) UNLESS OTHERWISE EXPLICITLY AGREED TITLE PASSES TO THE BUYER AT THE TIME AND PLACE AT WHICH THE SELLER COMPLETES HIS PERFORMANCE WITH REFERENCE TO THE PHYSICAL DELIVERY OF THE GOODS, DESPITE ANY RESERVATION OF A SECURITY INTEREST AND EVEN THOUGH A DOCUMENT OF TITLE IS TO BE DELIVERED AT A DIFFERENT TIME OR PLACE; AND IN PARTICULAR DESPITE ANY RESERVATION OF A SECURITY INTEREST BY THE BILL OF LADING

"/A) IF THE CONTRACT REQUIRES OR AUTHORIZES THE SELLER TO SEND THE GOODS TO THE BUYER BUT DOES NOT REQUIRE HIM TO DELIVER THEM AT DESTINATION, TITLE PASSES TO THE BUYER AT THE TIME AND PLACE OF SHIPMENT; BUT

"/B) IF THE CONTRACT REQUIRES DELIVERY AT DESTINATION, TITLE PASSES ON TENDER THERE. * * *"

THE COURTS HAVE HELD GENERALLY THAT A CONTRACT FOR THE SALE OF PERSONAL PROPERTY TO BE, OR IN THE PROCESS OF BEING MANUFACTURED OR PRODUCED, IS DEEMED EXECUTORY UNLESS THERE ARE PROVISIONS IN THE CONTRACT OR CIRCUMSTANCES EVINCING A CONTRARY INTENTION. THUS TITLE WOULD NOT VEST IN THE BUYER BEFORE COMPLETION OR PRODUCTION THEREOF EVEN THOUGH IT MAY BE AGREED THAT PAYMENT IS TO BE MADE DURING THE PROGRESS OF THE WORK AND ORDINARILY IT IS IMMATERIAL THAT THE AGREED PRICE HAS BEEN PAID OR PARTIALLY PAID IN ADVANCE. SEE "SALES SEC. 430 GENERALLY -- PROPERTY TO BE MANUFACTURED OR PRODUCED.' 46 AM JUR 598.

IN THE ABSENCE OF EVIDENCE ALONG THE LINES SPECIFIED IN THE ABOVE QUOTED PROVISIONS TO SHOW THAT TITLE TO THE NEW FURNITURE HAD VESTED IN YOU ON OR BEFORE JULY 1, 1968, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.