Varkell v. United States
| Decision Date | 16 October 1964 |
| Docket Number | No. 186-63.,186-63. |
| Citation | 334 F.2d 653,167 Ct. Cl. 522 |
| Parties | Paul VARKELL and Hyman Nutkis, a Partnership, T/A Pavcor Company v. The UNITED STATES. |
| Court | U.S. Claims Court |
Manfred J. Schmidt, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.
Before JONES, Senior Judge, and WHITAKER, LARAMORE, DURFEE and DAVIS, Judges.
Defendant offered for sale in California, as surplus property, and plaintiffs agreed to buy (among other things), some film described as follows:
The price bid for this item was $927.36.
The contract of sale included the following provisions:
In addition, on each page describing the property offered for sale there appeared the legend: "CAUTION: INSPECT THE PROPERTY." Plaintiffs, a New York firm, did not inspect the property or arrange for its inspection.
On delivery of the purchased film to plaintiffs' place of business in New York, it was discovered that the shipment contained 322 rolls of film but that each roll contained film 100 feet long, rather than 400 feet in length. Asserting that 100-foot rolls were useless to it, plaintiffs sought a refund. The contracting officials refused this demand and the Armed Services Board of Contract Appeals affirmed. This suit for $927.36 then followed.
Under a long line of our decisions, plaintiffs have no case. See, e.g., Alloys & Chems. Corp. v. United States, Ct.Cl. No. 8-62, decided Nov. 15, 1963, 324 F.2d 509; American Auto Parts Co., Inc. v. United States, Ct.Cl., No. 120-57, decided June 7, 1963; Montreal Securities, Inc. v. United States, Ct.Cl., No. 241-62, decided Mar. 13, 1964, 329 F.2d 956, and cases cited. This was an "as is" sale of surplus property, in which prospective purchasers were explicitly warned to inspect the goods. Not only was this direction embodied in a standard article entitled "Inspection," but each page describing the items carried the explicit warning "Caution: Inspect the Property." Furthermore, the contractual article on "Condition of Property" provided that in this "as is" sale "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 the fitness for any use or purpose," and that no claim would be considered if it was "based upon failure of the property to correspond with the standard expected." Under these and similar provisions, many other purchasers of surplus property have been held to their bargains, even though the goods turned out to be different in characteristics from those advertised or described by the Government. In such sales the risk is on the purchaser. Plaintiffs, in New York, could have arranged for an agent in California to inspect the property, or they could have taken account, in their bid, of possible deviations from the description. As in our prior decisions, there is no reason to ignore the explicit provisions of the sale.
Plaintiffs bought 322 rolls of film and they received 322 rolls of film2; "this is not a case of ordering apples and getting oranges" (United States v. Silverton, 200 F.2d 824, 828 (C.A. 1, 1952); Standard Magnesium Corp. v. United States, 241 F.2d 677, 679 (C.A. 10, 1957)). Krupp v. Federal Housing Administration, 285 F.2d 833 (C.A. 1, 1961), holding the Government liable for a positive misstatement in an offer of sale, is inapplicable because that contract did not contain the all-inclusive disclaimers of the present contract.
The defendant's motion for summary judgment is granted, the plaintiffs' cross-motion is denied, and the petition is dismissed.
It is true this is an "as is, where is" contract, but its provisions are entirely different from any contract heretofore presented to the court.
I quote the following paragraph from the first page of these typed provisions of the contract:
Emphasis supplied.
It is hornbook law that a special provision controls a general, if in the same contract. This provision for adjustment clearly applies since the property was sold on a unit price basis, as will be seen from this quotation which is included in both the invitation to bid and the contract:
--------------------------------------------------------------------------------------------
| | | | To Be Supplied
| | | | by Bidder
| | Quantity | Unit of |
| | (Number | Measure |--------------------------
Item | Description and Location of | of Units) | | | Total Price Bid
No. | Property | | | Price |
| | | | Bid |-----------------
| | | | Per | Dollars | Cents
| | | | Unit |...To continue reading
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