Schwarzenberg v. United States

60 Ct. Cl. 898, 1925 U.S. Ct. Cl. LEXIS 449, 1925 WL 2729

Opinion

MEMORANDUM BT THE COURT

One proposition, without consideration of any others, is determinative of this case. The authority of the law was to sell certain classes of materials, and it went no further. If tbe materials contracted to be sold were in fact nonexistent, there could be as to them no contract of sale.- There was no authority to contract the delivery of materials which the Government did not have.

The plaintiff has failed to prove the existence of the materials, except upon paper in the form of items upon inventories, and upon the whole record the court has concluded that they were nonexistent. It is but another case of the infliction of an injury by reason of a mistake, due, no doubt, to the immense volume of such transactions then being handled.

It may be suggested that, charged with knowledge of (lie limitations as to the actual existence of property thus sold and purchased, it would have been prudent on the part of the plaintiff — perhaps his duty — to have made some investigation before entering into contracts for resale.

Geaham:, Judge, took no part in the decision of this case.