B-131802, JUL. 30, 1957
Highlights
THE TYPEWRITTEN PORTIONS USUALLY WILL PREVAIL OVER THOSE WHICH ARE PRINTED APPLIES ONLY TO AMBIGUITIES OR INCONSISTENCIES IN THE CONTRACT PROVISIONS. HERE THERE IS NOT INVOLVED A CONFLICTING CONTRACTUAL PROVISION OR STIPULATION. " WHICH DESCRIPTION WAS BASED UPON WHAT THAT OFFICIAL BELIEVED TO BE APPLICABLE TO THE PROPERTY. THE PRINTED "AS IS" OR DISCLAIMER CLAUSE MERELY STATED THE TERMS AND CONDITIONS UPON WHICH THE PROPERTY WAS OFFERED FOR SALE BY THE DISPOSAL AGENCY. OUR PRIOR DECISIONS ARE SUSTAINED. INSOFAR AS WE ARE CONCERNED. THE MATTER IS CONSIDERED CLOSED.
B-131802, JUL. 30, 1957
TO MR. MATHIAS NAPHTALI, COUNSELLOR AT LAW:
YOUR LETTER OF JULY 16, 1957, REQUESTS RECONSIDERATION OF OUR DECISIONS OF MAY 27 AND JUNE 27, 1957, WHEREIN WE REFUSED TO RECOGNIZE YOUR CLIENT, THE HAMBURG MACHINERY COMPANY, AS THE ASSIGNEE OF THE SPERRY AUTO SALES UNDER CONTRACT NO. N207S-14580, DATED SEPTEMBER 25, 1956.
IRRESPECTIVE OF WHO ACTUALLY PAID FOR THE MERCHANDISE INVOLVED OR WHICH PARTY PICKED UP THE PROPERTY OF THIS SALE, OUR RECORDS CLEARLY SHOW THAT AT NO TIME DURING THE COURSE OF THIS TRANSACTION DID THE CONTRACTING OFFICER AT THE U.S. NAVAL AIR STATION, JACKSONVILLE, FLORIDA--- THE GOVERNMENT'S OFFICIAL REPRESENTATIVE IN THIS MATTER--- CONSIDER THE HAMBURG MACHINERY COMPANY TO BE THE SUCCESSOR IN INTEREST OR THE ASSIGNEE OF THE SPERRY AUTO SALES UNDER THE SALES CONTRACT CITED. TO THE CONTRARY, OUR RECORDS SHOW THAT THE CONTRACTING OFFICER REGARDED AND DEALT WITH YOUR CLIENT MERELY AS AN AGENT FOR THE ORIGINAL AND ONLY PURCHASER IN THIS SALE, WHICH, OF ITSELF, WOULD NEGATE THE IDEA THAT A VALID ASSIGNMENT AROSE BY OPERATION OF LAW.
THE AUTHORITY CITED BY YOU IN SUPPORT OF THE PROPOSITION THAT, IN THE CONSTRUCTION OF CONTRACTS, THE TYPEWRITTEN PORTIONS USUALLY WILL PREVAIL OVER THOSE WHICH ARE PRINTED APPLIES ONLY TO AMBIGUITIES OR INCONSISTENCIES IN THE CONTRACT PROVISIONS. HERE THERE IS NOT INVOLVED A CONFLICTING CONTRACTUAL PROVISION OR STIPULATION. THE CONTRACTING OFFICER, IN ADVERTISING THE PROPERTY FOR SALE, DESCRIBED IT AS "UNUSED, GOOD CONDITION," WHICH DESCRIPTION WAS BASED UPON WHAT THAT OFFICIAL BELIEVED TO BE APPLICABLE TO THE PROPERTY. THE PRINTED "AS IS" OR DISCLAIMER CLAUSE MERELY STATED THE TERMS AND CONDITIONS UPON WHICH THE PROPERTY WAS OFFERED FOR SALE BY THE DISPOSAL AGENCY, AND SINCE THE RECORD IN THE CASE SHOWS AN EXERCISE OF GOOD FAITH BY THE CONTRACTING OFFICER IN DESCRIBING THE PROPERTY FOR WHAT HE BELIEVED IT TO BE, UNDER THE JUDICIAL AUTHORITIES CITED IN THE DECISION OF JUNE 27, 1957, NO LIABILITY ATTACHES TO THE GOVERNMENT FOR FAILURE OF THE PROPERTY TO CONFORM TO THE DESCRIPTION GIVEN.
ACCORDINGLY, OUR PRIOR DECISIONS ARE SUSTAINED, AND, INSOFAR AS WE ARE CONCERNED, THE MATTER IS CONSIDERED CLOSED.