B-185295, JAN 21, 1977

B-185295: Jan 21, 1977

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PARTIES TO CONTRACT ARE BOUND BY INTENTION EXPRESSED IN WORDS USED NOT BY UNEXPRESSED INTENTION OF ONE OF CONTRACTING PARTIES. THE GOODS WERE DELIVERED TO THE CONSIGNEE-OWNER AT DESTINATION ON FEBRUARY 22. CERTAIN DAMAGE AND LOSS WAS OBSERVED AND THE EXCEPTIONS WERE NOTED ON CARRIER'S COPY OF INVENTORY. THE CARRIER WAS FURTHER NOTIFIED BY CERTIFIED MAIL. WHICH WAS APPROVED FOR $996.87. FOGARTY WAS NOTIFIED OF THE PAYMENT OF THE MEMBER'S CLAIM AND OF THE AIR FORCE'S DETERMINATION. LIABILITY FOR THE ADDITIONAL ITEMS WAS DENIED ON THE GROUNDS THAT THE ITEMS WERE PACKED AND CONTENTS AND CONDITION OF CONTENTS WERE UNKNOWN. FOGARTY WAS ADVISED: "2. THIS OFFICE HAS REVIEWED THIS CLAIM AND DETERMINED THAT YOUR LIABILITY IS $658.00.

B-185295, JAN 21, 1977

1. UNDER SECTION 3 OF THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 80 STAT. 309, 31 U.S.C. 952, UNQUALIFIED OFFER TO SETTLE DEBT FOR LESSER SUM BECAME SETTLEMENT CONTRACT BINDING ON DEBTOR AND ALL OFFICIALS, AGENCIES, AND COURTS OF THE UNITED STATES ON ACCEPTANCE BY FEDERAL AGENCY. 2. PARTIES TO CONTRACT ARE BOUND BY INTENTION EXPRESSED IN WORDS USED NOT BY UNEXPRESSED INTENTION OF ONE OF CONTRACTING PARTIES.

FOGARTY VAN LINES:

BY LETTER OF SEPTEMBER 30, 1976, FOGARTY VAN LINES, (FOGARTY), IN EFFECT, REQUESTS REVIEW OF THE DISALLOWANCE OF ITS CLAIM FOR REFUND OF $521.40 PAID TO THE DEPARTMENT OF THE AIR FORCE, ALLEGEDLY UNDER PROTEST, FOR DAMAGE TO THE HOUSEHOLD GOODS OF COLONEL CHARLES H. TRUEBLOOD, USAF, DURING TRANSIT FROM NONTEMPORARY STORAGE IN RICHMOND, VIRGINIA, TO FORT LAUDERDALE, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. H-5555812, DATED FEBRUARY 15, 1974. THE BILL OF LADING SHOWS THAT HEFLEBOWER MOVING AND STORAGE, AS AGENT OF FOGARTY, PICKED UP THE HOUSEHOLD GOODS, WEIGHING 2,850 POUNDS FROM NONTEMPORARY STORAGE AT ITS OWN FACILITIES, ON FEBRUARY 15, 1974. THE GOODS WERE DELIVERED TO THE CONSIGNEE-OWNER AT DESTINATION ON FEBRUARY 22, 1974, BY FOGARTY, WHICH UNPACKED THE GOODS PURSUANT TO THE PROVISIONS OF GOVERNMENT RATE TENDER 1-X.

THE CONSIGNEE REPORTED ON DEPARTMENT OF DEFENSE FORM DD 1842 THAT UPON DELIVERY, CERTAIN DAMAGE AND LOSS WAS OBSERVED AND THE EXCEPTIONS WERE NOTED ON CARRIER'S COPY OF INVENTORY. THE CARRIER WAS FURTHER NOTIFIED BY CERTIFIED MAIL, DELIVERED ON OR ABOUT MARCH 17, 1974, OF THE LOSSES AND DAMAGES, AND OTHERS NOT NOTED AT THE TIME OF DELIVERY. THEREAFTER, THE AIR FORCE MEMBER PRESENTED A CLAIM TO THE DEPARTMENT OF THE AIR FORCE FOR $1,478.80, WHICH WAS APPROVED FOR $996.87. BY LETTER OF MAY 14, 1974, FOGARTY WAS NOTIFIED OF THE PAYMENT OF THE MEMBER'S CLAIM AND OF THE AIR FORCE'S DETERMINATION, AS SUBROGEE, OF CARRIER LIABILITY OF $658. REPLY BY LETTER OF JUNE 26, 1974, FOGARTY OFFERED $7.50 IN FULL SETTLEMENT, ACCEPTING LIABILITY TO THAT EXTENT FOR ITEM NO. 212 ON THE INVENTORY. LIABILITY FOR THE ADDITIONAL ITEMS WAS DENIED ON THE GROUNDS THAT THE ITEMS WERE PACKED AND CONTENTS AND CONDITION OF CONTENTS WERE UNKNOWN. THE DEPARTMENT OF THE AIR FORCE, HOWEVER, SUSTAINED THE LIABILITY OF FOGARTY, AND FINALLY REFERRED THE CLAIM TO LANGLEY AIR FORCE BASE FOR COLLECTION.

BY LETTER OF DECEMBER 10, 1974, FROM THE HEADQUARTERS TACTICAL AIR COMMAND LANGLEY AIR FORCE BASE, FOGARTY WAS ADVISED:

"2. THE CLAIM FILE IN THE ABOVE CAPTIONED CASE HAS BEEN FORWARDED TO THIS OFFICE FOR SETOFF ACTION AGAINST YOUR COMPANY. IN ACCORDANCE WITH DIRECTIVES GOVERNING CLAIMS COLLECTIONS BY THE UNITED STATES GOVERNMENT, THIS OFFICE HAS REVIEWED THIS CLAIM AND DETERMINED THAT YOUR LIABILITY IS $658.00. SINCE YOU HAVE PREVIOUSLY REMITTED A TOTAL OF $7.50, MAKE YOUR ADDITIONAL DRAFT IN THE AMOUNT OF $650.50 PAYABLE TO THE TREASURER OF THE UNITED STATES AND FORWARD IT TO:

OFFICE OF THE STAFF JUDGE ADVOCATE HQ TACTICAL AIR COMMAND LANGLEY AFB, VA 23665

"IF YOUR CHECK IS NOT RECEIVED WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, COLLECTION THROUGH SETOFF WILL BE INITIATED."

BY LETTER OF DECEMBER 27, 1974, IN REPLY TO LANGLEY AIR FORCE BASE, FOGARTY TENDERED $521.40 IN FULL SETTLEMENT, STATING:

"WE ARE ENCLOSING OUR CHECK, MADE PAYABLE TO THE TREASURER OF THE UNITED STATES, IN THE AMOUNT OF $521.40, AS PER THE LETTER WE RECEIVED FROM SHAW AIR FORCE BASE * * * .

"WE TRUST THIS MEETS WITH YOUR APPROVAL AND THAT WE CAN CLOSE OUR FILE ON THIS MATTER."

BY REPLY DATED JANUARY 3, 1975, SIGNED BY CHARLES W. FOWLER, LIEUTENANT COLONEL, USAF, CHIEF, CLAIMS DIVISION, FOGARTY WAS ADVISED:

"THANK YOU FOR YOUR LETTER DATED 27 DECEMBER 1974 AND CHECK #12427 IN SETTLEMENT. THIS CHECK IS IN THE EXACT AMOUNT REQUESTED BY SHAW AIR FORCE BASE AND IS THEREFORE ACCEPTED. YOU HAD PREVIOUSLY SENT CHECK #12052 IN THE AMOUNT OF $7.50, WHICH NOW AMOUNTS TO AN OVERPAYMENT. ACCORDINGLY, THIS CHECK IS RETURNED HEREWITH."

BY LETTER OF AUGUST 19, 1975, FOGARTY PRESENTED A CLAIM TO THE UNITED STATES GENERAL ACCOUNTING OFFICE ALLEGING THAT THE REFUND WAS MADE UNDER PROTEST, AND DENIED LIABILITY FOR THE FULL DAMAGES ON THE GROUNDS PREVIOUSLY STATED. THE CLAIM WAS DENIED BY SETTLEMENT CERTIFICATE OF SEPTEMBER 17, 1976 (CLAIM NO. Z-2710209), ON THE GROUNDS THAT THE TENDER BY FOGARTY OF $521 IN FULL SETTLEMENT OF THE CLAIM WAS NOT MADE UNDER PROTEST, AND RESULTED IN A BINDING CONTRACT OF COMPROMISE SETTLEMENT.

IN THE REQUEST FOR REVIEW, FOGARTY STATES " * * * THE ONLY REASON WE PAID THE $521.40 WAS THAT YOU THREATENED SET-OFF ACTION, AND THIS WOULD NECESSITATE UNNECESSARY CONFUSION IN OUR ACCOUNTING DEPARTMENT." HOWEVER, THE OFFER BY FOGARTY WAS NOT STATED IN THE RESTRICTED TENOR NOW ALLEGED BY FOGARTY. ON THE CONTRARY FOGARTY STATED IN ITS LETTER THAT THE OFFER WAS MADE IN ORDER TO "CLOSE OUR FILE ON THIS MATTER", WHICH IMPLIES AN OFFER TO SETTLE AND WAS ACCEPTED AS SUCH BY THE DEPARTMENT OF THE AIR FORCE. A CONTRACT OF COMPROMISE SETTLEMENT ACCEPTED BY THE AIR FORCE IT IS BINDING ON FOGARTY UNDER THE PROVISIONS OF SECTION 3 OF THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 80 STAT. 309, 31 U.S.C. 952. PARAGRAPH (B) OF THAT SECTION PROVIDES THAT THE HEAD OF AN AGENCY OR HIS DESIGNEE MAY SETTLE BY COMPROMISE CLAIMS NOT REFERRED TO THE GENERAL ACCOUNTING OFFICE, AND PARAGRAPH (C) MAKES SUCH COMPROMISE FINAL AND CONCLUSIVE ON THE DEBTOR AND ON ALL OFFICIALS, AGENCIES, AND COURTS OF THE UNITED STATES.

ALTHOUGH FOGARTY NOW STATES THAT A COMPROMISE SETTLEMENT IS NOT WHAT WAS INTENDED, PARTIES TO A CONTRACT ARE BOUND BY THE INTENTIONS EXPRESSED, NOT BY THE UNEXPRESSED INTENTIONS OF ONE OF THE CONTRACTING PARTIES. SEE WILLISTON ON CONTRACTS THIRD EDITION, SECTION 610.

ACCORDINGLY, THE DISALLOWANCE OF THE CLAIM IS SUSTAINED.