#### MAGUIRE *&*COMPANY, INC. v. THE UNITED STATES.1

[No. B-75.

Decided April 28, 1924]

*On the Proofs*

*Sale of Govermenl materials; inspection prior to sale; failure to inspect.*— Where Government materials are offered for sale, and in the advertisement inspection before bidding is invited, with notice that “ bids subject to inspection will not be considered,” purchasers who fail to make such inspection prior to bidding can not recover damages where they have received goods different from those described in the proposals.

*The Reporter’s*statement of'the case:

*Messrs. Harry Peyton*and *A. E. Mames*for the plaintiff. *Mr. Wm. W. Bride*was on the briefs.

*Mr. Arthur*Oobb, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff is a corporation organized and existing under the laws of the State of New York, and has its principal office in the city of New York. *;*

II. On October 25, 1919, the following property was advertised for sale to the general public by the Surplus Property Division of the Zone Supply Office, Jeffersonville, Indiana, on surplus textiles list No. 2, item No. 20:

“ SURPLUS TEXTILE-LIST NO. 2

“No. 20, s. p. d., 1978; material, duck w. p.; width, 29 inches; color, O. D.; weight, 12.4; construction, 46x36; made *576by John Farnum Co.; location, Jeffersonville; quantity, 121,964.”

Attached to this list was a letter which is as follows:

WAR DEPARTMENT,

Oeeice oe ZoNE Supply Oeeicer,

*Jeffersonville,*Ind., *October 25, 1919.*

From: Zone Supply Office, Surplus Supply Div., Jefferson-ville, Ind.

Subject: Sale of Government-owned cotton textiles. Reference: S. P. D. Numbers as per attached list.

1. The War Department, Surplus Property Division, offers for sale by -negotiation, the textiles named on the attached sheet, in the quantities indicated thereon, f. o. b. location shown, in addition to- those mentioned in circular of October 20, 1919. You' are invited to participate in the bidding.

2. The inspection of these textiles is invited and may be made at the Zone General Supply Depot, Jeffersonville, Ind., upon application to the Surplus Supply Officer,- or at the depot where the material is stored as indicated on attached sheet, “ bids subject to inspection ” will not be considered.

3. All bids must be accompanied by bond, certified check (to order of Deputy Zone Finance Officer), or other unquestionable security equal to ten per cent (10%) of the amount of the bid. Deposits will be returned after the sale if.no award is made to the bidder. Goods’must be removed within 30 days after notice of award has been mailed by War Department.

4; *Bidders will note that all these goods are offered subject to prior sale.*

5. All communications relative to these sales should be addressed Zone Supply Officer, attention Surplus Property Division, Jeffersonville, Ind.

By authority of Zone Supply Officer.

Edwin S. Winn,

*Oapt. Q. M.*Corps,

*Zone Surplus Property Officer.*

III. Ira B. Kaplin, a broker engaged in the business of buying and selling Government merchandise, called at the office of the plaintiff and exhibited the list and letter set out in the above finding to the plaintiff, whereupon the plaintiff constituted the said Kaplin its agent to buy the material listed as item No. 20 in said list. Under date of November *5771, 1919, the said material listed as above was by letter of acceptance of bid from tlie Surplus Property Division, Washington, sold to- said Ira B. Kaplin as “ duck w. p. 29"

O. D. 12.4 oz.” at 8614 cents per yard. The said letter of acceptance is as follows:

Sale No. 5893

WAR DEPARTMENT,

Surer us Proferta' Division,

CONTRACTING OeEICER.

Correspondence in connection herewith should refer to S. P. D. No. 1973 CE.

November 1, 1919. Washington, D. C.

(Date.) (Place.)

Letter of acceptance of bid for surplus property

To Ira Kaplin,

*S66*Broadway, *New*Torh, *N. T.:*

In accordance with your proposal dated-and subject to all conditions and requirements thereof, and to all circulars, specifications, and samples pertaining hereto, award is hereby made for purchasing the following articles at the prices and at the time, place, and manner herein specified. -

Your certified check #617 for $4,451.68 has been sent to Zone Supply Officer at Jeffersonville, Ind.

Located at Jeffersonville, Ind., formal contract will (not) be required.

To be shipped within 60 days f. 0. b. cars where stored to

(On (date).)

Make payment (cash or certified check) to Zone Supply Officer, Jeffersonville, Indiana, who will issue delivery order or receipt thereof.

Additional specifications may be written across the face or reverse hereof.

*578Please acknowledge receipt.

W. C. PlttNkett,

*1st*Lieutenant, *Q. M.*¿7.,

*Oontracting O*fficer.

“ See instructions on reverse side which are made a part of this agreement.

“ 1. If formal contract is required same will be prepared and forwarded bidder for execution as soon as possible.

“ 2. Payment must be made before possession can be given.

“3. No assignment of this contract will be made without the written consent of the United States.

“ 4. No Member of or Delegate to Congress, or resident Commissioner, is, or shall be, admitted to any share or part of this contract, or to any benefit that may arise therefrom, but this article shall not ^pply to this contract in so far as it may be within the operation or exceptions of section 116 of the act of Congress, approved March 4,1909.

“ 5. Alterations or additional clauses:

*“*6. This material has been sold based on the present stock report. If corrected inventory shows that all the material specified is not available, the Government reserves the right to deliver only the actual quantities on hand.”

The check for $4,451.68 mentioned in said letter was the check of the plaintiff, Maguire & Co: (Inc.).

The jfiaintiff wrote to the Zone Supply Officer at Jeffer-sonville stating that the^ward of the contract to Ira Kaplin had been transferred to it. On November 19, 1919, the Zone Supply Officer wrote to the plaintiff that no deliveries would be made to it under the contract without authority from Ira Kaplin. Subsequently the said Kaplin indorsed on the letter of acceptance as follows:

This is to certify that I have tins-day of October, 1919, transferred and assigned my interest in this contract to Maguire & Company (Inc.), New York. (Signed) Ira B. Kaplin.

And delivered same to claimant.

On December 6, 1919, the Zone Supply Officer, Jefferson-ville, Indiana, wrote to plaintiff as follows:

WAR DEPARTMENT,

Ojpfice Zone Supply Oeeicer,

*Jeffersonville,*Indiana, *December 6,1919.*

Address reply to Zone Supply Officer and quote file No. 400, 32 Kaplin, Ira.

*579From Zone Supply Officer.

To Maguire & Co., 291 Broadway, New York, N. Y.

Subject: S. P. D. No. 1978-CE and sales No. 5893 duck W.

P. 29" O. D. 12.4 oz.

1. With reference to your letter under date December 2, 1919, please be advised that this office is in receipt of authority to deliver to you f. o. b. Jeffersonville, Indiana, 121,964 yards duck W. P. 29" O. D. 12.4 oz. at 36-^ per yard, sold to Ira Kaplin, 366 Broadway, New York, N. Y., under S. P. D. No. 1978-CE and sales No. 5893.

2. This office is holding certified check No. 617 on the Lincoln Trust Co., New York, N. Y., in the amount of $4,-451.68, and upon receipt of certified check drawn to the order of the Deputy Zone Finance Officer in the amount of $40,065.18 balance due on this order, together with full shipping instructions, preparation of the duck for shipment will commence immediately.

3. Early action in this matter will be appreciated.

E. B. GREGORY,

*Lieut.*Gol., *Q. M.*Gorps,

*Zone Storage Office.*By EdwiN S. Winn,

Captain, *Q. M. Gorps.*

On December 9, 1919, the plaintiff forwarded its check for $40,065.18 the balance due on said material with shipping-instructions to the Zone Supply Office at Jeffersonville.

IV. Plaintiff made to some of its customers sales of said material upon a description different from that stated by the Government in its advertisement, and by sample, as follows: 3014-inch, 12.4 duck, O. D. waterproof duck 3014" 12.9 oz. Army duck, 12.9 oz. olive drab duck and 12.9 U. S. Army duck, waterproof with the Goodin-Reed waterproofing process, 29" 12.4 oz. Army duck, finished O. D., and waterproofed. This material was shipped to plaintiff’s customers by said Zone Supply Office, Surplus Property Division, as directed by plaintiff, and said office on its loading sheets described said shipments, with reference to material, color, weight, width, and waterproofing as “ Duck Wp,” OD, 12.4 oz. 29", all of which was in accordance with the description appearing in said advertisement and letter of acceptance. Upon receipt of the material four of plaintiff’s customers reported that it was not as described by the plaintiff but *580was 10% oz. duck, inclosing several tags and burlap wrappers each stenciled “30-inch, 10% duck.”

V. The plaintiff made certain adjustments with its customers upon their claim that the material sold to them was different in value to the material which they had received. How much the plaintiff paid to its customers, or what adjustments were made by it with its customers, does not appear.

In New York the market price of 12.4 oz. gray duck was 50 cents per yard and the equivalent price of 10% oz. gray duck was 39% cents. On the basis of 36% cents for 12.4 oz. duck, the price of 10% oz. duck would be 28% cents, or a difference of 7% cents per yard.

Two samples of duck taken from that delivered to the customers of the plaintiff weighed 13.4 oz. and 13.6 oz. per linear yard; and a sample retained at the Jeffersonville Depot weighed 13.4 oz. per linear yard.

VI. In the cotton textiles trade there are certain commercial standard widths and weights of cotton duck in the gray state; there are no recognized commercial standard weights of such material after waterproofing; in waterproofing the weight of the material is increased and varies according to the process and ingredients used; it is the com-merical practice to sell converted goods on sample without mentioning weight.

The Government delivered to the plaintiff the actual material offered and described in item No. 20, Surplus Textiles List No. 2, issued by the Surplus Property Division of the Zone Supply Office, Jeffersonville, Ind., and sold to Ira Kaplin, agent for plaintiff, by the letter of acceptance from the Surplus Property Division, Washington, D. C., dated November 1, 1919.

VII. The plaintiff first made claim on defendant fox-damages in the sum of $30,000, later reducing its demand to the amount herein sued for; upon a hearing before the Board of Contract Adjustment at the War Department the claim was disallowed. An appeal from said decision was made to the Secretary of War who approved the'finding and decisioix of the board.

1

 Appealed.

*581Hay, Judge,

delivered tlie opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of $12,196.40.

The Government advertised for s'ale certain material, which was described in the sale list as “ Duck, Waterproof, 29" O. D., 12.4 oz. 46X36 made by John Farnum & Co.” The printed list containing this description of the material was accompanied by a letter, or circular, which stated that the Government w'as offering for sale the textiles named in the list attached to the letter. The letter further stated that inspection of these textiles is invited, and that said inspection might be made at the Zone General Supply Depot, Jefferson-ville. Inch, where the material was stored.

The material, the subject of this suit, 121,964 yards in quantity, w'as bid for by Ira B. Kaplin, the agent of the plaintiff; the bid was made early in November, and the sale was finally consummated early in December, the plaintiff having in November paid to the Government 10 per cent of the amount of its bid $4,451.68, and in December paid the sum of $40,065.18, the balance due by it on its purchase. In accordance Avith the orders of the plaintiff the Government delivered the whole of this material in different lots to the customers of the plaintiff, who lived in different parts of the country.

After the goods were delivered to the customers, some, if not all of them, complained to the plaintiff that the goods delivered to them were not the goods which the plaintiff had described to them in making its offer of sale, and were not equal in v'alue to the goods which had been described to them. The said customers asserted they had been offered 12.4-ounce duck and had received 10.5-ounce duck.

The plaintiff made certain adjustments with its customers, but how much it paid them or what loss it incurred does not appear.

The plaintiff then made a claim upon the Government for • $30,000, but later reduced its demand to $12,196.40, which it claimed was the difference in the market price between the 121,964 yards of 12.4-ounce duck which it bought and 121,964 yards of 10.5-ounce duck which it claimed was delivered by the Government to its customers. The Board of *582Contract Adjustment disallowed tlie claim. An 'appeal from that decision was taken by the plaintiff to the Secretary of War, who affirmed the decision of the board.

Neither the plaintiff nor its agent inspected the material before bidding or before consummating the sale. Inspection whs invited by the Government, and it was expressly stated that no bids would be received subject to inspection after the bidding. The advertisement of sale and the letter accompanying it, which the plaintiff saw before bidding, put purchasers upon notice and charged them with the duty of seeing what they were buying before they bought. Purchasers were told, in effect, that if they bought something other than they thought they were buying they could not afterw'ards assert a claim upon the ground that they were mistaken in the character and quality of the materials.

The plaintiff in this case did not inspect the goods for which it bid, although it had ample time to do so between the date of its bid and the consummation of the sale. If the pl'aintiff received from the Government a different material from that which it thought it had bought it is not the fault of the Government, and the plaintiff can not recover for its own negligence.

As a matter of fact the Government delivered to the plaintiff exactly the material which it advertised for sale.

The petition of the plaintiff must be dismissed. It is so ordered.

DowNev, *Judge;*Booth, *Judge;*'and Campbell, *Chief*Justice, concur.