Penn Convoy Petroleum Products, B-141239

• Decision Date: 01 February 1960
• Docket Number: B-141239
• Parties: PENN CONVOY PETROLEUM PRODUCTS:
• Court: Comptroller General of the United States

PENN CONVOY PETROLEUM PRODUCTS:

No. B-141239

Comptroller General of the United States

February 1, 1960

Reference is made to your letter of January 4, 1960, requesting reconsideration of our decision of December 31, 1959, which sustained general accounting office settlement dated October 29, 1959, disallowing your claim in the amount of $830.61 for partial refund of an amount paid by you for government property purchased from the naval supply center, norfolk Virginia, including cost of transportation under contract no N189a-46350a (S) dated July 15, 1959.

The facts of the matter were set out fully in the decision of December 31, 1959, and need not be repeated here. You pointed out in your letter of January 4, 1960, that the case of lipshitz and cohen v. United States, 269 U.S. 90, summarized in our decision of December 31, related to a shortage in the quantity of material delivered to the purchaser, whereas your claim is based on the alleged inferior quality of a portion of the material delivered. However, the same principle is applicable whether the specific question in any case involves quantity or quality.

It is to be observed that the contract provision as to the kind and condition of the property--- quoted in our decision of December 31--- specifically negatives any guaranty, 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.' moreover, there are many court cases involving claims based on the inferior quality or kind of material delivered under contracts containing provisions similar to that included in your contract with the government. In such cases the courts have held uniformly that, as stated in our decision of December 31, "buyers have no right to expect, have notice not to expect, and contract not to expect any warranties at ever.' see American elastics, Inc. v. United States, 84 F.Supp. 198 affirmed 187 F.2d 109, certiorari denied 342 U.S. 829; snyder Corp.V. United States, 68 c.Cls. 667; samuel and sons v United States, 61 c.Cls. 373; paxton-mitchell company v. United States, 172 F.Supp. 463; American sanitary RAG company v. United States, 161 F.Supp. 414.

In paxton-mitchell company v. United States, supra, the court of claims held (quoting yllabus):

"Under a contract by the government for the sale of "steel, scrap, cast steel" and providing that the material was sold on an "as is" and "where is" basis and that the government made no guaranty or representation as to the quality or fitness of the material sold, purchaser was not entitled to recover the difference between what it paid for the malleable iron and the market value thereof because 49.7 percent of the material sold was malleable iron which was much cheaper than steel.'

That case involved contract provisions similar to or identical with those included in your contract relative to condition of the property and inspection of the property. In the decision the court states:

"Note that the contract expressly says that defendant does not

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