B-124893, AUG. 5, 1955

B-124893, AUG. 5, 1955

TO CHARLES O. COX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1955, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $455.20, REPRESENTING AN OVERPAYMENT IN THAT AMOUNT UNDER CONTRACT NO. N600SX 17080.

THE CONTRACT REQUIRED DELIVERY OF THE MATERIALS AT DESTINATION. THE OVERPAYMENT REPRESENTS THE CONTRACT PRICE OF THE SHORTAGE IN THE QUANTITY INVOLVED IN ONE SHIPMENT UNDER THE CONTRACT. YOU CONTEND, IN EFFECT, THAT NOTWITHSTANDING THE SHORTAGE YOU ARE ENTITLED TO RETAIN THE FULL AMOUNT PAID ON THE GROUNDS THAT THE GOVERNMENT WAS NEGLIGENT IN MAKING PAYMENT OF THE FULL AMOUNT OF YOUR INVOICE FOR SUCH SHIPMENT WITHOUT ANY REFERENCE TO THE SHORTAGE AND IN FAILING TO ADVISE YOU OF THE SHORTAGE UNTIL AFTER THE PERIOD FOR FILING A CLAIM AGAINST THE CARRIER HAD EXPIRED.

WAYBILL NO. 49027662 BEARING BILLING DATE OF AUGUST 21, 1951, REFLECTS YOUR SHIPMENT OF 42 CARTONS OF MATERIALS COVERED BY THE CITED CONTRACT TO THE RECEIVING OFFICER, BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS. THE RECORD SHOWS THAT A COPY OF THE WAYBILL WAS FORWARDED TO YOU WITH LETTER OF AUGUST 12, 1953, AND THAT YOU HAVE ACKNOWLEDGED RECEIPT THEREOF. THE WAYBILL CONTAINS THE NOTATION "PARTIAL DELIVERY 21 PCS. SHORT" AND THE SIGNATURE OF THE SUPPLY OFFICER, NAVAL SHIPYARD, BOSTON, ACKNOWLEDGING DELIVERY OF "21 CTNS" ON AUGUST 31, 1951. THUS, THERE IS NO QUESTION THAT A SHORTAGE EXISTED.

THE RECORD INDICATES THAT YOUR INVOICE 5058 DATED AUGUST 15, 1951, IN THE AMOUNT OF $882 COVERING THE CONTRACT PRICE OF THE MATERIALS INVOLVED IN THE SHIPMENT IN QUESTION WAS PAID IN FULL ON SEPTEMBER 20, 1951, AND THAT YOU WERE FIRST NOTIFIED OF THE SHORTAGE IN DELIVERY IN OCTOBER 1952. LETTER DATED SEPTEMBER 9, 1953, THE U.S. NAVY REGIONAL ACCOUNTS OFFICE ADVISED YOU AS FOLLOWS:

"* * * THE SHIPMENT IN QUESTION WAS ACCOMPLISHED WITH EXCEPTION AS NOTED ON THE WAYBILL TO THE DESTINATION CARRIER AND THE INSPECTION REPORT SUBMITTED TO THIS OFFICE TOGETHER WITH THE ORIGINAL INVOICE AT TIME OF PAYMENT NOTED THE SHORTAGE AND APPROVED PAYMENT FOR THE AMOUNT OF $426.80 ONLY. AN OVERPAYMENT OF $455.20 HAS OCCURRED AND A SHORTAGE STILL EXISTS.'

FROM THE ABOVE IT IS APPARENT THAT THE SHORTAGE WAS PROPERLY NOTED AT THE TIME OF DELIVERY AND YOUR INVOICE WAS APPROVED FOR ONLY $426.80, REPRESENTING THE CONTRACT PRICE OF THE MATERIALS RECEIVED AT DESTINATION. THEREFORE, THE PAYMENT OF THE FULL AMOUNT OF YOUR INVOICE WAS ERRONEOUS AND IT APPEARS THAT, AS THE RESULT OF SUCH ERROR, YOU WERE NOT APPRISED OF THE SHORTAGE WITHIN THE PERIOD FIXED BY LAW FOR PRESENTING A CLAIM AGAINST THE CARRIER.

GENERALLY, PAYMENTS FROM APPROPRIATED FUNDS ARE AUTHORIZED TO BE MADE ONLY FOR MATERIALS AND SERVICES ACTUALLY RECEIVED BY THE GOVERNMENT AND IT IS A SETTLED RULE THAT PUBLIC MONEYS OF THE UNITED STATES DISBURSED BY GOVERNMENT DISBURSING OFFICERS CONTRARY TO LAW--- WHETHER THROUGH MISTAKE OF LAW OR FACT--- MAY BE RECOVERED FROM THE PARTY WHO RECEIVED THE PROCEEDS. SEE UNITED STATES V. DEMPSEY, 104 F. 197; WISCONSIN CENTRAL RAILROAD CO. V. UNITED STATES, 164 U.S. 190, AND THE CASES CITED THEREIN. FURTHERMORE, NEITHER LACHES NOR THE STATUTES OF LIMITATION OPERATE TO BAR A CLAIM ASSERTED BY THE UNITED STATES. SEE CHESAPEAKE AND DELAWARE CANAL CO. V. UNITED STATES, 250 U.S. 123; UNITED STATES V. PORTO RICO FRUIT UNION, 12 F.2D 961. ALSO, IN THE ABSENCE OF STATUTORY PROVISIONS, THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE OR NEGLIGENCE OF ITS OFFICERS AND EMPLOYEES. SEE GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573; GIBBONS V. UNITED STATES, 8 WALL. 269. THUS, WHILE THE CIRCUMSTANCES HERE INVOLVED ARE REGRETTABLE, WE HAVE NO AUTHORITY TO WAIVE OR CANCEL YOUR LIABILITY FOR THE OVERPAYMENT ON THE GROUNDS THAT YOU HAVE SUSTAINED DAMAGE TO THE EXTENT OF SUCH OVERPAYMENT AS A RESULT OF THE NEGLIGENCE OF THE GOVERNMENT'S OFFICERS AND EMPLOYEES, OR FOR ANY OTHER REASON.

ACCORDINGLY, SINCE THERE APPEARS TO BE NO QUESTION AS TO YOUR LIABILITY, THE AMOUNT OF $455.20 SHOULD BE REMITTED TO OUR OFFICE IN ACCORDANCE WITH THE DIRECTIONS IN THE LETTER OF JULY 7, 1955, TO YOU, FROM OUR CLAIMS DIVISION.