#### C. E. WILSON BODY COMPANY v. THE UNITED STATES.

[No. 99-A.

Decided April 16, 1923.]

*On the Proofs.*

*Contract; title to special tools, etc.; liaUlity for destruction.*— Where a contract provides that the title to certain tools shall vest in the United States immediately upon inspection, acceptance, and receipt therefor by the properly authorized representative of the United States, and after such inspection, acceptance, and receipt, and payment for same by the Government, said tools are destroyed by fire in the contractor’s plant without negligence on its part, the said tools were the property of the United States, although not segregated and marked as Government property, and the loss must fall upon the Government.

*The Reporter’s*statement of the case:

*Mr. George R. Shields*for the plaintiff. *Mr. Cornelius PL. Bull*and *King <& King*were on the briefs.

*Mr. Percy M.*Cox, with whom was *Mr. Assistant Attorney General Robert PL. Lovett,*for the defendant. *Mr. J. M. Hammond*was on the briefs.

The following are the facts of the case as found by the court:

I. The plaintiff, C. E. Wilson Body Co., is a corporation organized under the laws of the State of Delaware and has its principal office and place of business in the city of Detroit, State of Michigan.

II. On April 29, 1918, plaintiff entered into a contract with the United States, represented therein by E. B. Cooper, captain, Ordnance Department, for the construction of 1,500 machine-gun truck bodies with appurtenant parts, a copy of which contract is attached to the. petition herein, marked “ Exhibit A,” and is made a part hereof by reference.

III. For use in the making of said articles, the United States on its part undertook and agreed to provide at a cost not exceeding $20,000 all the special tools, jigs, patterns, and fixtures required for the manufacture of said truck bodies, all articles so paid for in part or in whole to become the property of the United States and title thereto to vest in *258the United States immediately upon inspection and acceptance thereof by their properly authorized representatives.

IY. In the due course of performance of the contract and as a necessary step toward said performance, the plaintiff, for the United States, and as by the contract provided and required, from time to time purchased or made necessary tools, dies, and jigs and expended therefor the sum of $16,279.10.

Y. On January 29, 1919, a voucher was duly prepared and certified in favor of the plaintiff in the sum of $16,279.70 in payment for the tools, dies, jigs, etc., above referred to, to Avhich voucher was attached an invoice. The Government accountant in charge certified thereon that he had examined the invoices and found them correct, and William E. Hazel-ton, captain, Ordnance Department, United States Army, Production Division, certified thereon that he had inspected and accepted the property described therein, and E,. H. Lansburgh, captain, Ordnance Department, United States Army, also certified thereon that he had received the said property, after which the plaintiff company executed a receipt to the property officer therefor. The voucher therefor, in the sum stated, was duly paid on April 1, 1919.

YI. On February 14, 1919, a fire occurred in the plant of the plaintiff company which, in addition to destroying a large quantity of property belonging to the plaintiff, also destroyed tools, dies, jigs, etc., to the value of $6,174.49, which were included in the inventory of the property which went to make up the total for which the voucher referred to in the preceding finding had been drawn. Thereafter from other sums due the plaintiff company on another and different contract the United States deducted the said sum of $6,174.49, and the sum has not been since paid to the plaintiff.

VII. The plaintiff had taken all reasonable precaution to prevent a fire such as that of February 14, 1919, and had exercised due diligence in safeguarding the plant and property therein stored, including the tools, etc., belonging to the United States. It had installed a sprinkler system and had employed watchmen whose duty it was to be constantly vigilant in the protection of the plant against fire, and such fire and the result in the destruction of the property was without fault on the part of the plaintiff.

*259VIII. At the time of tlie fire of February 14,1919, all the work to be done under the contract referred to had been fully performed and the plaintiff had delivered to the United States the 1,500 machine-gun truck bodies according to the terms of said contract, but the tools, dies, etc., used on the work were still in the contractor’s plant, and they consisted in part of forms, fixtures, etc., attached to the floor. It does not appear that they had been segregated and set apart from other tools, dies, etc., in plaintiff’s plant nor had the same been marked by the plaintiff for identification, neither does it appear that at the time of the fire the plaintiff had detached from their fastenings such of said tools, dies, and jigs as were fastened to the floor of the plaintiff’s plant or had otherwise prepared them for delivery to the United States.

Downey, *Judge,*

delivered the opinion of the court:

The plaintiff had entered into a contract with the United States for the production of certain war materials described as machine-gun truck bodies, and for the purpose of expediting the carrying on of the work by the plaintiff it had been provided in the contract that the United States would pay to the plaintiff the cost, not exceeding $20,000, of all special tools, jigs, patterns, and fixtures required for the carrying on of the work, such tools, etc., so paid for to be and remain the property of the United States.

The plaintiff furnished special tools, dies, jigs, etc., to the value of $16,279.70, for which sum a voucher was prepared with the schedule or inventory of such tools attached thereto, which voucher was properly certified, and on April 1, 1919, the amount thereof was paid to the plaintiff. Upon the schedule attached to said voucher due certification was made by the accountant in charge as to their correctness, and an officer from the Production Division of the Ordnance Department of the Army, presumably duly authorized, certified he had inspected and accepted the property scheduled. Another officer of the Ordnance Department, referred to as the property officer, receipted for all of such property, and from the property officer as indicated by receipt attached it went into the possession of the plaintiff company. On the 14th of February, subsequent to the preparation and certification of *260this voucher, but before its payment, a disastrous fire occurred in plaintiff’s plant, as a result of which considerable of plaintiff’s property was destroyed, and together therewith a part of the tools, etc., for which said voucher had been issued and paid, were destroyed, and on account thereof there was deducted from a subsequent voucher issued to the plaintiff for payment on another and different contract the sum of $6,174.49, as the value of the portion of the tools included in said voucher which had been destroyed in said fire.

Upon the face of the transaction as it is stated it would seem that but one conclusion was tenable, but as against that it is contended by the defendant that the tools destroyed in this fire were not the property of the United States at that time, and the contention is based largely upon the assumption that under the contract it was incumbent upon the plaintiff company to segregate these tools and to mark them the property of the United States, and that because there remained yet these duties to be performed by the plaintiff company title to the property could not vest in the United States until these things had been done, and authorities are cited.

With this contention we can not agree. And it does not seem necessary to consider authorities bearing upon the question as to the particular time at which title to property may pass under a sale, since the matter is disposed of, as it seems to us, by a specific provision in the contract.

In article 7 of the contract, under the subhead “ Nesting in the United States of title to property to be paid for by United States,” it is provided that :

> “ The title to the articles or work, whether completed or in process of manufacture of completion, and also to all machinery, equipment, tools, parts, materials, supplies, and other property which it is contemplated by the provisions of this contract shall belong to the United States, shall vest-in the United States immediately upon inspection and acceptance thereof and receipt therefor by the properly authorized representative of the United States.”

In the same article it is also provided that all property title to which is vested in the United States shall, so far as practicable, be kept separate from property belonging to the *261contractor and sliall be marked by the contractor in such, manner as the contracting officer may direct.

In view of the quoted provision of the contract and of the finding that the property had been examined and accepted by the proper representative of the United States, it seems only necessary to suggest that the further provisions of this article impose duties the performance of which could not in any manner be regarded as necessarily precedent to the passing of title. They were duties imposed but they were plainly duties imposed on plaintiff with reference to property of the United States.

There is no contention that the loss of this property by fire was in any manner due to any negligence on the part of the plaintiff and no reason appears why the plaintiff should not recover the value therefor, and it has been so ordered. Judgment for plaintiff in the sum of $6,174.49.

Graham, *Judge;*Hay, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.