B-131262, APR. 5, 1957

B-131262, APR. 5, 1957

THE SANDER SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1957, IN EFFECT, REQUESTING A REVIEW OF SETTLEMENT DATED MARCH 13, 1957, WHICH DISALLOWED YOUR CLAIM FOR $118.85, REPRESENTING A PARTIAL REFUND OF AN AMOUNT PAID FOR A DOUGH MIXER PURCHASED FROM THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA, UNDER CONTRACT NO. N207S-14442, DATED JUNE 11, 1956.

THE CONTRACT COVERED THE PURCHASE BY YOU OF CERTAIN GOVERNMENT SURPLUS PROPERTY, DESCRIBED AS LOTS NOS. 1 AND 3, THE FORMER CONSISTING OF A DOUGH MIXER, HOBART FLOOR MODEL T801, ELECTRIC MOTOR, ETC., INCLUDING SIX MIXING POTS (60 QUART CAPACITY). YOU ALLEGED THE NON-RECEIPT OF THE MIXING POTS AND YOU SUBMITTED A CLAIM FOR A REFUND IN THE AMOUNT OF $188.85, ON THE BASIS THAT THE MIXER AS RECEIVED WITHOUT THE POTS WAS WORTH ONLY ONE- FOURTH OF YOUR BID PRICE.

UNDER PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS, AND IT WAS SPECIFICALLY PROVIDED THEREIN THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' FURTHERMORE, PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS INFORMED BIDDERS THAT THE PROPERTY LIST WAS OFFERED FOR SALE "AS IS" AND "WHERE IS" AND THAT---

"* * * THE DESCRIPTION (HEREIN) IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. HOWEVER, IT IS FUNDAMENTAL THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, AS IN THIS CASE, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY TO BE SOLD. SEE, IN THIS CONNECTION, THE CASES OF LUMBRAZO V. WOODRUFF, 175 N.E. 525; W.E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, AND I. SHAPIRO COMPANY V. UNITED STATES, 66 C.CLS. 424.

IT APPEARS THAT YOU FAILED TO TAKE ADVANTAGE OF YOUR RIGHT TO MAKE AN INSPECTION OF THE PROPERTY PRIOR TO THE SUBMISSION OF YOUR BID, HAVING PURCHASED THE SAME WITHOUT INSPECTING IT. MOREOVER, THE INVITATION EXPRESSLY PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. THE MATTER OF GRANTING RELIEF TO PURCHASERS OF PUBLIC PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF CONSIDERATION IN NUMEROUS DECISIONS OF THIS OFFICE AND OF THE COURTS, AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE 4 COMP. GEN. 286; 16 ID. 749; 18 ID. 594; 28 ID. 306; M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; BRODY V. UNITED STATES, 64 ID. 538, AND SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 ID. 801.

SEE, ALSO, THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, WHEREIN IT WAS CONTENDED THAT THE UNITED STATES WAS LIABLE IN DAMAGES FOR A SHORTAGE IN DELIVERY OF SPECIFIED LOTS OF SCRAP IRON AND STEEL WHICH HAD BEEN OFFERED FOR SALE IN A SCHEDULE SHOWING THE VARIOUS FORTS WHERE THE SCRAP IRON WAS ACCUMULATED AND THE APPROXIMATE WEIGHTS AT EACH LOCATION, AND WHICH HAD BEEN PURCHASED "AS IS" FOR A STIPULATED LUMP-SUM PRICE. REJECTING THIS CONTENTION THE COURT STATED (PAGE 92):

"* * * THE NAMING OF QUANTITIES CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.'

ON THE BASIS OF THE FACTS IN THIS CASE, WE ARE OF THE VIEW THAT THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 13, 1957, WAS CORRECT, AND THE NAME IS HEREBY SUSTAINED.