#### WALL ROPE WORKS, INC., v. THE UNITED STATES

[No. B-448.

Decided June 9, 1924]

*On the Proofs*

*Contract; oil content of rope; acceptance.*— Where, under a. contract between plaintiff and the United States, the specifications authorized the rejection of rope “ containing an excessive amount of oil,” and the evidence shows that the oil content of the rope was reasonable, and the rope was received, accepted, and retained by the Quartermaster Corps of the Army, the plaintiff is entitled to recover the amount deducted from the purchase price.

*The Reporter's*statement of the case:

*Mr. John Dri/e, jr.,*for the plaintiff. Larkin, *Rathbone dj Perry*and *Mr. Donald C. MuMeman*were on the briefs.

*Mr. Edw. D.*Hays, Avith Avhom was *Mr. Assistant Attorney General Robert II. Lovett,*for the defendant.

*838The following are the facts of the case as found by the court:

I. The plaintiff, a duly organized New Jersey corporation doing business in the State of New York, did on the 19th day of February, 1918, enter into and execute a contract with the United States, acting through Col. A. W. Yates, of the Quartermaster Corps, United States Army, its duly authorized agent, to furnish the United States Government at Army Pier No. 4, Hoboken, N. J., with certain rope as specified in said contract and at the prices therein agreed upon. A true copy of the contract- and of Q. M. C. Specifications M-88 and Schedule No. 86 N. Y., referred to therein (marked Exhibit A, B, and C, respectively) are annexed to the petition as a part thereof.

II. The plaintiff at various times made delivery of rope under said contract amounting in the aggregate to 619,061 pounds of rope, as is particularly set forth in the statement of deliveries annexed to the petition as Exhibit D.

III. On or about July 20, 1918, plaintiff had made delivery of the 619,061 pounds of rope as set forth in the statement of deliveries annexed to the petition as Exhibit D.

IV. On or about October 4, 1918, the United States informed the plaintiff through one Major Lawrence of the Quartermaster Corps of the United States Army that a chemica.l analysis showed an oil content averaging approximately 12% per cent of the weight of the rope instead of an oil content of not more than 4 per cent which was claimed by the United States to be the maximum amount of oil that rope of the kind and quality specified in the contract should contain.

V. On or about April 24, 1919, the United States in making payment to plaintiff on account of the purchase price of the rope delivered deducted the sum- of $18,968.25. This deduction was made upon the alleged right of the Government to deduct from the invoice price of the rope 8% per cent thereof, the amount equal to the weight of the oil content of the rope over and above the 4 per cent allowed by the United States.

*839"VI. The contract and the specifications and schedules referred to in said contract did not limit the amount of oil content except that it was provided in paragraph 3 of Q. M. C. Specifications No. M-88 (Exhibit B, annexed to the petition) that “ rope containing a mixture of fiber other than manila as specified above or with heavy bands, heavily burlapped, or containing an excessive amount of oil, will be rejected.”

VII. The rope delivered under the contract contained an average oil content of 12% per cent of the weight of the rope.

VIII. All the rope delivered by the plaintiff was received, accepted, and retained by the duly authorized inspectors, receiving officers, and agents of the Quartermaster Corps of the United States Army for and on behalf of the United States, and none of said rope was rejected.

IX. This claim was presented to the Auditor of 'the War Department of the United States but was disallowed by hjm. Thereafter an appeal was taken to the Comptroller General of the United States, and by his decision dated November 13, 1922, the plaintiff was awarded the sum of $8,670.20 based upon an allowed oil_content of 8 per cent instead of 4 per cent, which‘sum had not been paid to the plaintiff at the time the petition was filed. Since the filing of the petition the plaintiff has received from the Treasury of the United States a check for the sum of $8,670.20, the amount awarded by said decision of the Comptroller General of the United States. The plaintiff has declared its unwillingness to accept this cheek in settlement of said claim, and said check has not been cashed but has been returned to the Treasurer of the United States -by the plaintiff.

X. No other action has been had upon said claim in Congress or by any of the departments, except that prior to the date of presentation of said claim for payment, as in paragraph 9 of the petition alleged, the said claim was presented to the Secretary of War and came on in due course for a hearing before the Board of Contract Adjustment representing the Secretary of War, which said Board of Contract Adjustment held that jurisdiction to pass upon said claim or the merits thereof was not conferred upon the *840Secretary of War by the act of Congress of March 2, 1919, entitled “An act to provide relief in cases of contracts connected with the prosecution of the Avar and for other purposes,” and that the Secretary of War Avas without jurisdiction in the premises.

XI. No person other than the plaintiff is the OAA'ner of said claim or interested therein; no assignment or transfer of this claim or any part thereof or interest therein has been made, and there are no credits or offsets against said claim except as in this stipulation set forth. The plaintiff is a citizen of the United States and has at all times borne true allegiance to the Government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the United States.

XII. The said exhibits to the petition are copies of the originals and are made a part of these findings by-reference.

XIII. The rope delivered under the contract contained an average oil content of 12% per. cent of the Aveight of the rope. The evidence fails to show that the rope that was delivered contained an excessUe amount of oil and the evidence si lows that the oil content of the rope that was ■ delivered Avas reasonable. The rope Ayas not rejected and was received and retained by the Quartermaster’s Corps for the United States. The contract price of the rope delivered and retained Avas $216,779.98, all of which has been paid except the said sum of $18,968.25.

XIV. The rope furnished up to a 6-incli circumference if paid for at the contract price per pound'under *apfroximate weights*in the contract calls amounted to $137,156.10, and the same sizes of rope at the contract price per pound under the *maximum, weight*allowed under Q. M. C. Specifications No. M-88 would have been $125,887.96, making a difference of $11,318.14 on that part of the rope of a 6-inch circumference and less. The percentage of oil in the rope sizes 6-inch circumference and less was the same percentage of oil used by plaintiff in manufacturing the larger sizes of rope up to a 10-inch circumference, to wit, 12% per cent. The same ratio on the furnished rope sizes over a 6-inch circumfer-*841price if applied to tlie rope furnished of 6-inch circumference and less and be treated as an overweight would make a total overweight charge of $18,968.25.

MEMORANDUM BY THE COURT

The plaintiff furnished rope and it was retained by defendant’s agents. It was not rejected. The specifications authorized the rejection of rope *“*containing an excessive amount of oil.” The evidence adduced shows the oil content of the rope was a reasonable content.

The controlling principle is stated in *United & Globe Rubber Mfg. Co.*v. *United*States, 51 C. Cls., 288, 248.

Judgment for plaintiff in the sum of $18,968.25.