United States v. Blair, 4315.
| Decision Date | 02 January 1952 |
| Docket Number | No. 4315.,4315. |
| Citation | 193 F.2d 557 |
| Parties | UNITED STATES v. BLAIR. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Arthur W. Murphy, Washington, D. C. (Holmes Baldridge, Washington, D. C., Max M. Bulkeley, Denver, Colo., Samuel D. Slade and Sidney J. Machtinger, Washington, D. C., on the brief), for appellant.
Robert S. Mitchell and Thomas E. McCarthy, Denver, Colo., for appellee.
Before HUXMAN, MURRAH and PICKETT, Circuit Judges.
The United States brought this suit against Hugh H. Blair, doing business as Blair Surgical Supply, to recover the difference between Blair's bid of $100.50 on a lot of gas masks sold at public auction by the War Assets Administration, and a bid of $1,542.00 by another party which was overlooked when the bids were tabulated and the property awarded to Blair. The complaint is in two counts: first, for a conversion of the property after the mistake was discovered and the bid canceled; and second, upon a subsequent oral agreement to pay the difference between the two bids. At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict, and this appeal is from a judgment for Blair on that verdict.
The appellant's evidence, which in this posture of the case must be taken as true, established the following facts: On Friday, July 25, 1947, the War Assets Administration conducted a sale of war surplus property at the Denver, Colorado Medical Depot. Under the regulations of the War Assets Administration, bids were accepted if made either in person at the site of the sale, or by mail if received prior to the time of the sale. Before the commencement of the sale in question, the following announcement was made to all present, including Blair:
Among the items offered for sale was the lot of oxygen gas masks involved here, on which Blair bid $100.50. At the close of the sale, it was announced that his was the high bid, and in accordance with the rules of the sale, Blair paid the $100.50 and received a bill of lading for the goods. This was about twelve o'clock noon. At about two-thirty of the same afternoon, it was learned for the first time by those in charge of the sale, that a St. Louis firm had bid $1,542.00 on the oxygen masks by mail; that it had been duly received and stamped at ten-thirty on the day prior to the sale; and that for some unaccountable reason had not been reported to the auctioneer or those immediately in charge of the sale. Wolfinbarger, Chief of the Medical and Drug Division of the War Assets Administration, immediately notified Special Sales Officer Jolson of the mistake, and instructed him to cancel the sale to Blair. Soon thereafter, and about three-thirty of the same day, Wolfinbarger talked with Blair by telephone, explaining the situation and telling him that there was "nothing we could do but cancel the sale." Upon receipt of notice of the mistake, Jolson checked with the cashier to find that Blair had paid the amount of his bid, and had been issued the necessary documents to entitle him to possession of the property upon presentation to the Veterans Administration, who actually owned the property. Jolson thereupon went to the custodian of the property at the Veterans Administration Depot to inform him of the mistake, and to ask him not to deliver the property to Blair. This occurred between two-thirty and three o'clock. While Jolson was in the custodian's office talking to him about the matter, Blair's office called to inquire when they could get delivery of the goods. The call was referred to Jolson, who expressed his regret that "there had been a mix-up" and asked that "they not take delivery of the goods until the matter was straightened out on Monday."
Apparently, a short time later, attorney Doyle, representing Blair, called Regional Attorney Blount, explaining that his client was the high bidder on the merchandise, and thought he was entitled to the delivery of it. Blount promised to find out about the matter and telephone Doyle later, or write him the "first thing Monday morning because the Office of War Assets Administration is not open on Saturday or Sunday." At that time, Blair's attorney was told not to attempt to take delivery of the property until he had received the letter stating the position of the War Assets Administration. At the same time, Doyle agreed to write Blount, stating his client's position in the matter, and to get the letter over to Blount that afternoon. Later that afternoon, Blair came to Blount's office with the letter. Blount explained the receipt of the higher bid; that it had been overlooked and not taken into consideration when the property had been awarded to Blair; that because of this mistake, Blair was not entitled to the property, and Blount testified...
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