B-3903, JUNE 16, 1939, 18 COMP. GEN. 933

B-3903: Jun 16, 1939

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CONTRACTS - DELIVERIES - "NET" WEIGHTS - TRADE CUSTOMS WHERE CONTRACT STATED THAT THE WEIGHT SPECIFIED WAS TO BE "NET. " THE CUSTOM OF THE TRADE IN RESPECT TO SALES OF THE ARTICLE INVOLVED AS TO INCLUDING IN THE NET WEIGHT THE WEIGHT OF THE NECESSARY STRING WHICH HOLDS THE BUNDLES TOGETHER IS WITHOUT EFFECT TO PERMIT DELIVERY OF THE ARTICLES IN LESS THAN THE EXACT WEIGHT SPECIFIED. IT WAS DEFINITELY STATED IN THE AGREEMENT THAT THE WEIGHT SPECIFIED WAS TO BE "NET.'. WHILE 70 POUNDS OF BRISTLES WERE PURPORTED TO BE FURNISHED PURSUANT TO THIS CONTRACT IT WAS FOUND UPON EXAMINATION THAT THIS WEIGHT INCLUDED 2 POUNDS OF BINDING CORD. YOU CONTEND THAT THIS DEDUCTION WAS IMPROPER IN THAT "THE CUSTOM OF THE TRADE IN RESPECT TO SALES OF BRISTLE * * * INCLUDES IN THE NET WEIGHT.

B-3903, JUNE 16, 1939, 18 COMP. GEN. 933

CONTRACTS - DELIVERIES - "NET" WEIGHTS - TRADE CUSTOMS WHERE CONTRACT STATED THAT THE WEIGHT SPECIFIED WAS TO BE "NET," THE CUSTOM OF THE TRADE IN RESPECT TO SALES OF THE ARTICLE INVOLVED AS TO INCLUDING IN THE NET WEIGHT THE WEIGHT OF THE NECESSARY STRING WHICH HOLDS THE BUNDLES TOGETHER IS WITHOUT EFFECT TO PERMIT DELIVERY OF THE ARTICLES IN LESS THAN THE EXACT WEIGHT SPECIFIED, THE TERM "NET," UNLESS SPECIFIED OTHERWISE, HAVING A DEFINITE AND UNEQUIVOCAL MEANING AS BEING FREE FROM ALL TARE OR EXTRANEOUS MATERIAL.

ACTING COMPTROLLER GENERAL ELLIOTT TO H. ROSENHIRSCH CO., INC., JUNE 16, 1939:

YOUR LETTER OF FEBRUARY 24, 1939, REQUESTS REVIEW OF SETTLEMENT DATED FEBRUARY 23, 1939, WHICH DISALLOWED YOUR CLAIM UNDER CONTRACT NO. N171S- 44112, DATED SEPTEMBER 22, 1938, FOR $7.80, AS AN ADDITIONAL AMOUNT ALLEGED TO BE DUE FOR HOG BRISTLES FURNISHED THE SUPPLY OFFICER, NAVY YARD, WASHINGTON, D.C.

UNDER THE TERMS OF THE ABOVE-MENTIONED CONTRACT YOU AGREED TO FURNISH 70 POUNDS OF RUSSIAN OR SIBERIAN HOG BRISTLES, 4 INCHES LONG, AT $3.90 PER POUND, LESS SPECIFIED DISCOUNTS FOR PROMPT PAYMENT. IT WAS DEFINITELY STATED IN THE AGREEMENT THAT THE WEIGHT SPECIFIED WAS TO BE "NET.' WHILE 70 POUNDS OF BRISTLES WERE PURPORTED TO BE FURNISHED PURSUANT TO THIS CONTRACT IT WAS FOUND UPON EXAMINATION THAT THIS WEIGHT INCLUDED 2 POUNDS OF BINDING CORD. ACCORDINGLY, IN MAKING PAYMENT THE DISBURSING OFFICER DEDUCTED $7.80--- PAYMENT BEING MADE TO YOU ON THE BASIS OF A NET WEIGHT OF 68 POUNDS.

YOU CONTEND THAT THIS DEDUCTION WAS IMPROPER IN THAT "THE CUSTOM OF THE TRADE IN RESPECT TO SALES OF BRISTLE * * * INCLUDES IN THE NET WEIGHT, THE WEIGHT OF THE NECESSARY STRING WHICH HOLDS THE BUNDLES TOGETHER" AND THAT "THE ONLY TARE ALLOWED IN SHIPMENTS OF BRISTLE IS THE OUTER CASES, THE PAPER WRAPPINGS, AND THE CAMPHOR PRESERVATIVE.'

AS STATED IN THE SETTLEMENT TO YOU OF FEBRUARY 23, 1939, A TRADE CUSTOM OR USAGE MAY BE RESORTED TO FOR THE PURPOSE OF CLARIFYING A DOUBT OR OF MAKING DEFINITE THAT WHICH IS UNCERTAIN, BUT IT MAY NOT BE INVOKED TO VARY THE CLEAR TERMS OF A CONTRACT.

THE TERM "NET" IS DEFINED IN BOUVIER'S LAW DICTIONARY AS "THE EXACT WEIGHT OF AN ARTICLE, WITHOUT THE BAG, BOX, KEG, OR OTHER THING IN WHICH IT MAY BE ENVELOPED.' IN WORDS AND PHRASES AT PAGE 4776, CITING SCOTT V. HARTLEY, 25 N.E. 826, 828, IT IS STATED THAT THE TERM "NET" MEANS ,CLEAR OF ALL TARE, TRET, AND OTHER DEDUCTIONS.' AND AGAIN, AT THE SAME PAGE: "NET" IS A TERM USED AMONG MERCHANTS TO DESIGNATE THE QUANTITY, AMOUNT, OR VALUE OF AN ARTICLE OR COMMODITY AFTER ALL TARE AND CHARGES ARE DEDUCTED," CITING ANDREWS V. BOYD, 5 MAINE 199, 201. IN THE CASE OF STATE EX REL WASHINGTON MILL COMPANY V. GREAT NORTHERN RAILWAY COMPANY, 86 PAC. 1056, 6 L.R.A. (N.S.) 908, 911, THERE WAS CONSIDERED THE QUESTION OF WHETHER STANDARDS, ETC., MIGHT BE INCLUDED AS PART OF THE NET WEIGHT OF LUMBER, AND WITH RESPECT TO THIS POINT THE SUPREME COURT OF THE STATE OF WASHINGTON SAID: "BUT THE WORDS "NET/WEIGHT," AS COMMONLY USED, MEAN THE WEIGHT OF THE LUMBER ONLY, EXCLUSIVE OF ANYTHING ELSE.'

IT THUS APPEARS THAT THE TERM "NET/WEIGHT" HAS A DEFINITE AND UNEQUIVOCAL MEANING, AND IS FREE OF SUCH ELEMENTS OF AMBIGUITY AND UNCERTAINTY AS WOULD JUSTIFY ANY RESORT TO ALLEGED TRADE CUSTOMS OR UNDERSTANDINGS. HAD THE PARTIES TO THIS AGREEMENT INTENDED THE TERM TO HAVE A RESTRICTED OR SPECIAL MEANING A RESERVATION TO THAT EFFECT SHOULD HAVE BEEN MADE. THE ABSENCE OF ANY SUCH RESERVATION IT MUST BE HELD THAT THE TERM "NET" IS TO BE UNDERSTOOD IN ITS USUAL SENSE AS MEANING FREE FROM ALL TARE OR EXTRANEOUS MATERIAL--- INCLUDING BINDING CORD.