MAY 7, 1924, 3 COMP. GEN. 840
Highlights
EVIDENCE OF ANY COMMERCIAL USAGE REQUIRING PAYMENT FOR THE CONTAINERS AT THE SAME RATE PER POUND IS NOT ADMISSIBLE TO VARY OR CONTRADICT THE TERMS OF THE CONTRACT. ALL TRANSPORTATION CHARGES TO BE PAID BY THE CLAIMANT AND THE DRUMS IN WHICH SHIPMENT WAS MADE WERE TO REMAIN THE PROPERTY OF THE UNITED STATES. CLAIMANT CONTENDS THAT IT IS A WELL-KNOWN COMMERCIAL USAGE THAT CONTAINERS IN WHICH MATERIAL IS SUPPLIED ARE A PART OF THE WEIGHT OF THE MATERIALS PURCHASED AND THE SHIPPER IS ENTITLED TO PAYMENT AT THE SPECIFIED RATE OF MATERIAL FURNISHED. THE EXCEPTION TO THIS PRACTICE BEING WHERE THE CONTAINERS USED ARE CHARGED AT A STIPULATED PRICE AND THAT PRICE CREDITED ON RETURN OF THE CONTAINERS.
MAY 7, 1924, 3 COMP. GEN. 840
CONTRACTS - COMMERCIAL USAGE A DEFINITE AND UNAMBIGUOUS CONTRACT FOR THE PURCHASE OF ENAMEL AT A SPECIFIED PRICE PER POUND REQUIRES PAYMENT FOR THE NET WEIGHT OF THE ENAMEL, EXCLUDING THE WEIGHT OF ANY STEEL DRUM CONTAINERS, AND EVIDENCE OF ANY COMMERCIAL USAGE REQUIRING PAYMENT FOR THE CONTAINERS AT THE SAME RATE PER POUND IS NOT ADMISSIBLE TO VARY OR CONTRADICT THE TERMS OF THE CONTRACT.
DECISION BY COMPTROLLER GENERAL MCCARL, MAY 7, 1924:
THE BARBER ASPHALT CO. REQUESTED FEBRUARY 5, 1924, REVIEW OF SETTLEMENT M -12312-N, DATED JANUARY 15, 1924, DISALLOWING ITS CLAIM FOR $120.28 FOR DIFFERENCE BETWEEN GROSS AND NET WEIGHT OF BITUMINOUS ENAMEL FURNISHED UNDER CONTRACT 57672, DATED MAY 2, 1923. CLAIMANT AGREED TO DELIVER TO THE UNITED STATES 1,000 GALLONS BITUMINOUS PRIMER IN 50-GALLON STEEL DRUMS AT $0.852 PER GALLON, AND 65,000 POUNDS OF BITUMINOUS ENAMEL IN BARRELS AT $0.031 PER POUND, ALL TRANSPORTATION CHARGES TO BE PAID BY THE CLAIMANT AND THE DRUMS IN WHICH SHIPMENT WAS MADE WERE TO REMAIN THE PROPERTY OF THE UNITED STATES.
CLAIMANT CONTENDS THAT IT IS A WELL-KNOWN COMMERCIAL USAGE THAT CONTAINERS IN WHICH MATERIAL IS SUPPLIED ARE A PART OF THE WEIGHT OF THE MATERIALS PURCHASED AND THE SHIPPER IS ENTITLED TO PAYMENT AT THE SPECIFIED RATE OF MATERIAL FURNISHED, THE EXCEPTION TO THIS PRACTICE BEING WHERE THE CONTAINERS USED ARE CHARGED AT A STIPULATED PRICE AND THAT PRICE CREDITED ON RETURN OF THE CONTAINERS. ACCORDING TO THIS CONTENTION IT SHOULD BE PAID FOR 3,880 POUNDS, THE NET WEIGHT OF THE CONTAINERS AT $0.031 PER POUND, OR A TOTAL OF $120.28.
THE EFFECT OF USAGE UPON CONTRACTS HAS BEEN DECIDED MANY TIMES. IT MAY BE RESORTED TO IN ORDER TO MAKE CERTAIN THAT WHICH IS UNCERTAIN, CLEAR UP THAT WHICH IS DOUBTFUL, OR TO EXPLAIN AMBIGUITIES, BUT NOT TO VARY OR CONTRADICT THE TERMS OF A CONTRACT. IN NO CASE CAN IT BE RESORTED TO WHERE IT IS INCONSISTENT WITH OR REPUGNANT TO THE CONTRACT. OTHERWISE IT WOULD NOT EXPLAIN, BUT WOULD CONTRADICT AND CHANGE THE CONTRACT THE PARTIES HAVE MADE, SUBSTITUTING FOR IT ANOTHER AND A DIFFERENT ONE WHICH THEY DID NOT MAKE. SEE MOORE V. UNITED STATES, 196 U.S. 166.
THE CONTRACT IS FREE FROM AMBIGUITIES AND FIXED A STIPULATED PRICE PER POUND FOR THE ENAMEL WITHOUT ANY REFERENCE OR PROVISION WHATEVER THAT THE WEIGHT OF THE CONTAINERS SHOULD BE INCLUDED IN COMPUTING THE COST.
UPON REVIEW NO DIFFERENCES ARE FOUND AND THE SETTLEMENT IS SUSTAINED.