ROCHESTER IRON AND METAL CO. v. the UNITED STATES

339 F.2d 640, 168 Ct. Cl. 422, 1964 U.S. Ct. Cl. LEXIS 211

• Court: United States Court of Claims
• Decided: December 11, 1964
• Docket: 640
• Status: Published

Opinions

DURFEE, Judge, delivered the follow-

ing opinion with which LARAMORE, Judge, concurs, and announced the judgment of the court:

This Congressional reference case presents the issue of whether or not a contractor who received 1,940 tons of steel less than the approximate total tonnage bid upon in an “as is, where is” contract has a legal or equitable claim against the Government for this shortage.¹

In 1951 the State Department transferred responsibility for a large quantity of returned lend-lease steel to the Department of Defense, which in turn assigned the steel to the Philadelphia Ordnance District, Philadelphia, Pennsylvania. After disposing of part of the steel via a shipment to the Tennessee Valley Authority, the Ordnance District prepared an invitation for bids for the remaining steel. Early in 1953, pursuant to preparing such invitation for bids, the property disposal officer of the Ordnance District, Mr. Welsh, made calculations of the estimated tonnage of the remaining steel. The steel was stored in 27 piles, and in making the tonnage calculation, Mr. Welsh took measurements of each pile. He made allowances for the estimated space between the individual pieces of steel in each pile, and then converted the number of pounds per cubic foot into tonnage for each pile. Each pile was then allocated into one of three lots.²

The Ordnance District then issued the invitation for bids for the steel in each of the three lots. On April 27, 1953 lot No. 1, as advertised in the bid, contained approximately 8,700 tons of billets. Lot No. 2 contained approximately 5,400 tons of rounds, and in lot No. 3 there was approximately 1,765 tons of rounds. The invitation for bids advised and urged the bidders to inspect the lots prior to submitting the bids.

Section two of the invitation which pertained to the condition of the property, stated in pertinent part as follows:

“2. CONDITION OF PROPERTY. — All property listed herein is offered for sale ‘as is’ and ‘where is,’ and without recourse against the Government. * * * The description is based upon 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.”

Under Section 21 of the invitation, title to the steel was to pass to the successful bidder upon payment in full of the. purchase price; said purchase price in turn was to be based upon “the total estimated weights set forth in this invitation.” [Emphasis added.]

Adjustments of money due under the contract were provided for in Section 22, which stated:

“Final adjustment of monies due from a buyer shall be firmed upon the actual weight of steel delivered. The weight certification of the carrier will be considered final. Claims for an adjustment of monies due, or paid, must be made on or before 17 August 1953. Should there be no claim for adjustment, the approximate weights of each lot, as indicated in this invitation, shall be accepted as the final weight.” [Emphasis added.]

Plaintiff’s representatives, as advised and urged by the invitation, inspected the three lots before submitting their bid. They thereafter submitted their bid, and on June 1, 1953 defendant accepted plaintiff’s bid as to lots 1 and 3, while accepting the bid of another company, Boston Metals Company, as to lot 2. Full payment was made by plaintiff to defendant on June 5, and pursuant to the terms of the contract, title to lots 1 and 3 became vested in plaintiff.

Plaintiff had intended to resell all of the steel it had purchased, and to have it loaded for shipment within a twelve-weeks’ period after the passage of title.³ Despite plaintiff’s continuous advertising, there was little demand for the steel, and plaintiff was unable to sell the steel and thus obtain its exact tonnage by weighing the loaded cars before the final date of adjustment, August 17.

By letter of July 8 plaintiff wrote to the Philadelphia Ordnance District, and requested an extension of time for final adjustment to November 17, 1953. The request for extension of time was denied by defendant on July 27, 1953.

Thereafter, no further important events transpired in this ease until more than two years later on November 21, 1955. On that date the Philadelphia Ore Dock Company (see footnote 3), discovered that there had been an overshipment of the estimated tonnage from lot 2 (owned by Boston Metals) of 2116.575 tons of steel. Plaintiff had by this time shipped only about one-half of its steel and subsequently requested a piece count of the remaining steel in April of 1956. On April 24, 1956 plaintiff was informed by Ore Dock that plaintiff was short in the neighborhood of 2,000 tons. A check of Ore Dock’s records showed that no steel owned by plaintiff had been shipped out other than by plaintiff’s orders. On October 11, 1956, after the last of plaintiff’s steel was loaded for shipment, it was found that the total net tonnage stored by Ore Dock of plaintiff’s lots 1 and 3 was 1940.002 tons short of the estimated weight contracted and paid for by plaintiff in its contract with defendant.

Since there were no mistakes either in loading the steel or in keeping the records of such loading and storage, the shortage by plaintiff and the overage by Boston Metals must be attributed to the method used by defendant of measuring the tonnage in each lot, as hereinbefore described. Defendant evidently had underestimated lot 2 to be some 2,100 plus tons less than the actual tonnage, and evidently had over-estimated lots 1 and 3 combined to be some 1,900 plus tons more than the actual tonnage.

Plaintiff’s subsequent request for adjustment of the purchase price paid for the steel, in the form of a claim for $117,-913.20 for the 1940.002' tons of shortage in lots 1 and 3, was rejected by the Comptroller General. The reasons for rejection were, (1) that the contract was an “as is” and “where is” one, and (2) the final adjustment date under the contract was August 17, 1953.

We believe that these facts do not provide a basis for a claim, either legal or equitable, against the Government. Under the invitation for bids, prospective bidders were “invited and urged” to inspect the property before submitting bids. Plaintiff did inspect the property, and while a shortage would not have been apparent to the naked eye, the word “urged” as used in the invitation should have alerted plaintiff to the fact that the property might not exactly conform to defendant’s description. This is especially true since the contract was an “as as” and “where is” one, with a specific disclaimer of warranty as to weight and size. Furthermore, the Government’s invitation plainly stated that “the description is based on the best available information.” If all this were not enough to alert plaintiff that there might be a possible discrepancy between the actual tonnage of the steel and the amount of tonnage listed in the invitation, then certainly, the word approximate as used to describe the amount of tonnage in the invitation should have revealed to plaintiff the fact that the amount might not be exact.

The very nature of an “as is” and “where is” contract serves notice upon a prospective purchaser that the risk of loss is on the purchaser. In other words, “Let the buyer beware.” Such has been the established law for almost forty years. As this court stated in M. Samuel & Sons v. United States, 61 Ct.Cl. 373, 381-382 (1925):

“This description alone would have been sufficient to put plaintiff on notice that there was no guaranty as to the character or the amount of material. It was visited with knowledge of the meaning of the expression ‘as is, where is.’ It means that the seller sells without guaranty as to the amount or condition of the material; that he sells what may be found in the lot; that he does not profess to know accurately himself the amount or character of the material, and that the purchaser must take his chances on what he will get.”

It is apparent that the risks involved in purchasing the property were plainly known to plaintiff before the sale was made. The contract was consummated between the parties fairly and openly. Certainly this standard disposal contract was neither unduly broad nor oppressive. There is a broad policy reason for placing the risk upon the purchaser in such a contract. This policy was examined and explained in Dadourian Export Corporation v. United States, 291 F.2d 178, 182 (C.A.2nd Cir.), (1961) :

“By way of preliminary it is to be noted that this is no ordinary contract between buyer and seller for the purchase and sale of a valuable commodity. When the government sells surplus goods it is trying to dispose of a vast miscellany of used and unused property in an effort, so far as may under the circumstances be possible, to minimize its loss. Sales of this character are processed on a mass quantity basis by members of the armed forces who seldom if ever have any expertise in the particular items which come to their warehouses and depots. Buyers of such surplus property know perfectly well that there is always the chance of buying property that may turn out to be of little value, or may develop into a great bargain with a huge windfall of profit. Accordingly, the government very properly has protected itself by formulating its contract for the sale of such surplus property so as to shift the risk from itself to the buyer. As Professor Corbin tells us, a party to a contract may agree to assume certain risks that in the absence of agreement the law would not cast upon him. See 3 Corbin, Contracts (1960), Section 598. * * * ”

Such was the case here. Had plaintiff in this case received more steel than it bargained for, as did Boston Metals, then since this was an “as is, where is” contract, it could have rightfully kept the excess steel without incurring any legal or equitable liability to defendant for additional payment, because neither party requested an adjustment on or before August 17, 1953.

Plaintiff asserts that its letter of July 8, 1953 to defendant in which it requested an extension of time for final adjustment until November 17, 1953, constituted a claim for adjustment of moneys paid in accordance with Section 22 of the contract. As will be remembered, Section 22 required all final claims to be made on or before August 17, 1953. Plaintiff analogizes this situation to cases which have allowed recovery under a changes clause in Government contracts. In those situations a notice of an intention or desire to submit a claim has been held to constitute the actual assertion of the claim. We cannot accept this analogy however, as plaintiff here merely made a request for an extension of time, stating:

“We note that Paragraph 22 of the Invitation to Bid states that final adjustment will be made upon actual weight of steel delivered.

“We do not believe it will be possible for us to move the entire lot before August 17, 1953. We request an extension for final adjustment until November 17, 1953.”

Plaintiff did not express anywhere in this request a desire to submit a claim for adjustment, or any express concern about a possible shortage. There is no way in which this unequivocal language can be construed as “a claim for adjustment of monies due, or paid” under Section 22 of this “as is, where is” contract.

It should perhaps be mentioned now that even if defendant had granted plaintiff’s request for extension of final adjustment until November 17, 1953, we are unable to see how plaintiff’s position would have been materially aided. Plaintiff was unable to sell all of its steel until October 11, 1956. It was only then that the exact final shortage was ascertained. The three months’ extension of time could in no way have helped plaintiff sell the steel in what appears to have been a buyer’s market. Since the exact amount of tonnage could not be known until the steel was sold and loaded for shipment,⁴ and since plaintiff was unable to sell the steel by November 17, 1953, the requested date for extension, plaintiff can hardly be said to have been prejudiced by the Government’s denial of extension for final adjustment.

Plaintiff finally contends that the Government has been unjustly enriched since it received payment for 1940.002 tons of steel which plaintiff never received. In answer to this, we have only to reiterate the point already made that this was an “as is, where is” contract. Plaintiff received all that the Government promised to give, which was approximately 10,464 tons of steel. As was previously shown, the “as is, where is” aspect of the contract should have put plaintiff on notice that the amount of tonnage listed in the contract probably was not an exact amount. When plaintiff did not make a claim for final adjustment before August 17, 1953, the approximate weight was accepted as the final weight. It is unfortunate that plaintiff was unable to find a buyer for the steel immediately after it acquired it; however, we see no reason to penalize the Government for the market decline in the demand for steel.

Accordingly, on all the facts and circumstances contained in the record, and upon the findings of the Commissioner which we have reviewed, and in which we concur, we conclude that plaintiff has not stated a claim, either legal or equitable, against the United States.

As emphasized in Dadourian Export Corporation v. United States, supra:

“ * * * this is no ordinary contract between buyer and seller for the purchase and sale of a valuable commodity.”

The contract here was one in which the two parties knew and assumed both the risks and benefits in an “as is, where is” agreement.

This opinion, together with the findings of fact of Commissioner Richard Arens, which are herein adopted with minor corrections, will be certified to the Congress pursuant to Senate Resolution 117, 86th Congress, 1st Sess.

1 . This case was referred to us, and was heard prior to the Supreme Court decision in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), which raises doubts about the constitutionality of having this court hear Congressional Reference cases.

2 . An exact calculation of the tonnage of steel in each pile would have been quite costly, and would have taken several months to do.

3 . The steel was stored during this entire period in outside storage yards on the property of the Philadelphia Ore Dock Company pursuant to unloading and storage contracts executed between the defendant and Industrial Management International (“IMI”), an independent eon-cern, and “IMI” and Philadelphia Ore Dock Company. Under these agreements a purchaser from the Government (Plaintiff in this case) was to receive Government storage rates for a period of twelve weeks after passage of title to the lots of steel.

4 . The contract contemplated that final adjustment would be based upon the weight certification of the carrier. (Section 22.)