B-128523, JUL. 26, 1956

B-128523, JUL. 26, 1956

TO MR. THOMAS FRANCIS HEARNES:

RECEIPT IS ACKNOWLEDGED OF YOUR RECENT LETTER MAKING FURTHER REFERENCE TO OUR SETTLEMENT DATED FEBRUARY 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF TREASURY (1947 TAX REFUND) CHECK NO. 13,770,003, FOR $53.40, DRAWN TO YOUR ORDER ON MAY 14, 1948, BY PAUL D. BANNING, CHIEF DISBURSING OFFICER, SYMBOL NO. 309.

THE RECORD SHOWS THAT ON AUGUST 5, 1948, YOU EXECUTED A FORM OF STATEMENT WHICH WAS FILED WITH THE OFFICE OF COLLECTOR OF INTERNAL REVENUE, MILWAUKEE, WISCONSIN, ON AUGUST 9, 1948, ALLEGING NONRECEIPT OF THE ABOVE- DESCRIBED CHECK. IN SEPTEMBER 1848, THE TREASURY DEPARTMENT FORWARDED THE INTERNAL REVENUE FORM TO THE CLAIMS DIVISION OF THIS OFFICE FOR CONSIDERATION AS A CLAIM. ON JANUARY 31, 1949, A PHOTOSTATIC COPY OF THE CHECK (WHICH HAD BEEN NEGOTIATED AND PAID BY THE TREASURER OF THE UNITED STATES), TOGETHER WITH TREASURY DEPARTMENT CLAIM FORM NO. 6576 (IN DUPLICATE) WERE PLACED IN AN ENVELOPE ADDRESSED TO YOU AT 248 MERRETT STREET, MILWAUKEE, WISCONSIN, WITH INSTRUCTIONS TO EXECUTE SUCH FORM IF, AFTER AN EXAMINATION OF THE PHOTOSTAT, YOU WERE OF THE OPINION THAT YOU DID NOT RECEIVE AND ENDORSE THE CHECK.

AS YOU WERE PREVIOUSLY ADVISED, THE ENVELOPE POSTMARKED FEBRUARY 2, 1949, CONTAINING THE ABOVE-DESCRIBED ENCLOSURES, WAS RETURNED TO OUR OFFICE BY THE POST OFFICE DEPARTMENT UNCLAIMED WITH THE NOTATION "NO SUCH STREET IN MILWAUKEE, WIS. NO. 10.' IT NOW APPEARS FROM YOUR RECENT CORRESPONDENCE WITH THIS OFFICE THAT AS OF AUGUST 5, 1948, YOU WERE A RESIDENT OF OSKOSH AND NOT MILWAUKEE, WISCONSIN, WHICH LATTER CITY HAD BEEN PRESUMED TO BE YOUR PLACE OF RESIDENCE SINCE NO CITY OR TOWN WAS INDICATED IN THE SPACE PROVIDED ON THE ORIGINAL STATEMENT SIGNED BY YOU CONCERNING NONRECEIPT OF THE CHECK. HOWEVER, NO FURTHER COMMUNICATION WAS RECEIVED FROM YOU UNTIL OCTOBER 10, 1955, WHEN ANOTHER SIGNED STATEMENT (DATED SEPTEMBER 30, 1955), ALLEGING NONRECEIPT OF THE SUBJECT CHECK AND SHOWING YOUR ADDRESS AS BOX C, WAUPON, WISCONSIN, WAS FORWARDED HERE FROM THE TREASURY DEPARTMENT. BY SETTLEMENT DATED FEBRUARY 6, 1956, YOUR CLAIM WAS DISALLOWED BECAUSE OF THE PROVISIONS OF SECTION 1 OF THE ACT OF MARCH 6, 1946, 60 STAT. 31, WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

"* * * THAT NO PROCEEDING IN ANY COURT SHALL BE BROUGHT BY THE UNITED STATES OR BY ANY AGENCY OR OFFICIAL OF THE UNITED STATES TO ENFORCE THE LIABILITY OF ANY ENDORSER * * * ARISING OUT OF A FORGED OR UNAUTHORIZED SIGNATURE OR ENDORSEMENT UPON * * * ANY CHECK, CHECKS, WARRANT, OR WARRANTS ISSUED BY THE SECRETARY OF THE TREASURY, THE POSTMASTER GENERAL, THE TREASURER AND ASSISTANT TREASURERS OF THE UNITED STATES, OR BY DISBURSING OFFICERS AND AGENTS OF THE UNITED STATES, UNLESS SUCH PROCEEDING IS COMMENCED WITHIN SIX YEARS AFTER THE PRESENTATION TO THE TREASURER OF THE UNITED STATES OR OTHER DRAWEE OF SUCH ISSUED CHECKS OR WARRANTS FOR PAYMENT OF SUCH CHECK, CHECKS, WARRANT, OR WARRANTS, OR UNLESS WITHIN THAT PERIOD WRITTEN NOTICE SHALL HAVE BEEN GIVEN BY THE UNITED STATES OR ANY AGENCY THEREOF TO SUCH ENDORSER * * * OF A CLAIM ON ACCOUNT OF SUCH LIABILITY. UNLESS A COURT PROCEEDING SHALL HAVE BEEN BROUGHT OR SUCH NOTICE GIVEN WITHIN THE PERIOD PRESCRIBED HEREIN, ANY CLAIM AGAINST SUCH ENDORSER * * * ON ACCOUNT OF SUCH LIABILITY SHALL BE FOREVER BARRED * * *.'

SINCE YOUR FIRST STATEMENT ALLEGING NONRECEIPT OF THE CHECK WAS NOT PROPERLY EXECUTED, AND A PERIOD OF MORE THAN SEVEN YEARS THEREAFTER ELAPSED BEFORE FURTHER CORRESPONDENCE WAS RECEIVED FROM YOU OR A PROPERLY EXECUTED CLAIM FORM WAS FILED FOR CONSIDERATION, THE ABOVE QUOTED STATUTE DENIED THE UNITED STATES THE RIGHT TO INSTITUTE RECLAMATION PROCEEDINGS AGAINST THE INDORSERS ON THE CHECK, IF SUCH CHECK WAS NEGOTIATED ON A FORGED INDORSEMENT. INASMUCH AS THE POSITION OF THE GOVERNMENT WAS IMPAIRED BECAUSE OF LACHES ON YOUR PART, ANY LOSS RESULTING THEREFROM MUST BE BORNE BY YOU RATHER THAN BY THE GOVERNMENT, THERE BEING FOR APPLICATION THE EQUITABLE DOCTRINE THAT WHERE EITHER OF TWO INNOCENT PARTIES MUST SUFFER, HE WHO WAS NEGLIGENT OR AT FAULT MUST BEAR THE RESULTING LOSS. ASIDE FROM THE FACT THAT THERE IS NOTHING IN THE RECORD TO ESTABLISH NEGLIGENCE ON THE PART OF THE GOVERNMENT--- THE MISDIRECTION OF OUR CORRESPONDENCE IN 1949 HAVING BEEN BROUGHT ABOUT BY YOUR FAILURE TO STATE YOUR PROPER ADDRESS. IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT ITSELF IS NOT RESPONSIBLE FOR WRONGS, NEGLIGENCES OR OMISSIONS OF DUTY OF ITS OFFICERS OR AGENTS.

ACCORDINGLY, UPON FURTHER REVIEW, THE SETTLEMENT DATED FEBRUARY 6, 1956, IS FOUND CORRECT AND IS SUSTAINED.

WITH REGARD TO THE LAST PARAGRAPH OF YOUR RECENT LETTER INQUIRING AS TO THE STATUS OF YOUR CLAIM FOR THE PROCEEDS OF ANOTHER GOVERNMENT CHECK, YOU ARE ADVISED THAT SUCH CLAIM IS NOT OF RECORD IN THIS OFFICE, HENCE ANY INQUIRY RELATIVE THERETO SHOULD BE ADDRESSED TO THE OFFICE OF THE TREASURER OF THE UNITED STATES, ACCOUNTING DIVISION, LIBERTY BOND BUILDING, WASHINGTON 25, D.C. ..END :