B-126773, MAR. 21, 1956

B-126773, MAR. 21, 1956

TO MR. AURELIO G. NAJAR:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT OF SEPTEMBER 28, 1955, WHICH DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF TREASURY CHECK NO. 693,285, DATED MARCH 20, 1947, FOR $69.40, DRAWN TO YOUR ORDER, BY PAUL D. BANNING, SYMBOL 319.

THE CHECK REPRESENTS A 1946 TAX REFUND. THE RECORD INDICATES THAT IT WAS MAILED TO YOU AT BOX 363, MAGDALENA, NEW MEXICO, WHICH PRESUMABLY WAS THEN YOUR ADDRESS. YOU ALLEGED THAT YOU DID NOT RECEIVE IT. HOWEVER, THE CHECK WAS ENDORSED IN YOUR NAME AND NEGOTIATED AND WAS PAID MARCH 28, 1947. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF SEPTEMBER 28, 1955, FOR THE REASON THAT THE GOVERNMENT'S POSITION HAS BEEN PREJUDICED BY YOUR NEGLIGENCE IN NOT PRESSING YOUR CLAIM. YOUR STATEMENT OF NONRECEIPT, DATED OCTOBER 10, 1947, OF THE ABOVE-DESCRIBED CHECK WAS RECEIVED IN OUR OFFICE OCTOBER 28, 1947. A PHOTOSTATIC COPY OF THE CHECK, SHOWING THE ENDORSEMENTS THEREON, WAS SENT TO YOU UNDER DATE OF MAY 11, 1948, WITH INSTRUCTIONS THAT IF THE PROCEEDS OF THE CHECK WERE NOT RECEIVED BY YOU AND YOU DESIRED TO MAKE A CLAIM THEREFOR, IT WOULD BE NECESSARY FOR YOU TO EXECUTE THE FORM OF AFFIDAVIT WHICH WAS THEN TRANSMITTED TO YOU WITH THE PHOTOSTATIC COPY OF THE CHECK AND RETURN IT TO OUR OFFICE. HOWEVER, THE RECORD SHOWS NO FURTHER COMMUNICATION WAS RECEIVED HERE FROM YOU UNTIL STATEMENT OF NONRECEIPT OF CHECK DATED JULY 4, 1955, WAS RECEIVED IN OUR OFFICE AUGUST 8, 1955.

THE ACT OF MARCH 6, 1946, 60 STAT. 31, 31 U.S.C.A. 129, INSOFAR AS HERE MATERIAL, IMPOSES A TIME LIMITATION OF SIX YEARS AFTER THE PRESENTATION OF A GOVERNMENT CHECK FOR PAYMENT WITHIN WHICH NOTICE SHALL BE GIVEN TO AN ENDORSER OF SUCH A CHECK TO ENFORCE HIS LIABILITY AS AN ENDORSER, WITH FURTHER PROVISION THAT IN CONNECTION WITH A CLAIM PRESENTED TO OUR OFFICE WITHIN SIX YEARS AFTER THE DATE OF THE ISSUANCE OF THE CHECK, THE PERIOD FOR GIVING SUCH NOTICE SHALL BE EXTENDED BY AN ADDITIONAL 180 DAYS. WAS NOT UNTIL AFTER THE EXPIRATION OF THAT PERIOD THAT YOUR STATEMENT DATED JULY 4, 1955, ALLEGING NONRECEIPT OF THE CHECK, WAS RECEIVED HERE.

YOUR FAILURE TO PRESS YOUR CLAIM ON THE CHECK AFTER THE PHOTOSTAT THEREOF AND THE AFFIDAVIT FORM HAD BEEN SENT YOU ON MAY 11, 1948, WITH THE INSTRUCTIONS HEREINABOVE STATED, CLEARLY JUSTIFIED THE VIEW THAT YOU HAD CONCLUDED, AFTER YOU HAD EXAMINED THE CHECK, THAT THE ENDORSEMENT THEREON WAS YOURS AND THAT YOU HAD, THEREFORE, ABANDONED THE CLAIM AND THAT NO FURTHER ACTION IN THE MATTER WAS REQUIRED BY OUR OFFICE. WHEN, HOWEVER, YOU DID EVENTUALLY NOTIFY OUR OFFICE BY STATEMENT OF NONRECEIPT OF CHECK DATED JULY 4, 1955, THE RIGHT OF THE GOVERNMENT TO PROTECT ITSELF BY PROCEEDING AGAINST THE ENDORSERS HAD BEEN LOST BY LAPSE OF TIME. HENCE, EVEN IF IT SHOULD BE ESTABLISHED THAT YOU DID NOT RECEIVE AND ENDORSE THE CHECK, YOUR DELAY HAS PREJUDICED THE RIGHT OF THE GOVERNMENT TO PROCEED AGAINST THE ENDORSERS ON THE CHECK. ANY LOSS RESULTING FROM SUCH DELAY MUST BE BORNE BY YOU RATHER THAN BY THE GOVERNMENT, THERE BEING FOR APPLICATION IN THE CIRCUMSTANCES, THE EQUITABLE DOCTRINE THAT WHERE EITHER OF TWO INNOCENT PARTIES MUST SUFFER, HE WHO WAS NEGLIGENT OR AT FAULT MUST BEAR THE RESULTING LOSS.

ACCORDINGLY, WE MUST INFORM YOU THAT THE CONCLUSION REACHED IN GENERAL ACCOUNTING OFFICE SETTLEMENT OF SEPTEMBER 28, 1955, IS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED.