1. Upon review of a judgment of the district court in an action
on a claim against the United States (Jud.Code § 24, par. 20),
facts admitted and concessions made by the parties may be
considered with the lower court's findings of fact. P.
268 U. S.
188.
2. A contract between a private party and the United States for
sale of goods by the one to the other is to be construed, and the
rights of the parties under it determined, by the same principles
as if it were between individuals.
Id.
3. Casting's, defective because of checks were delivered to the
government under a contract allowing the vendor to remedy such
defects after their extent should be revealed by machining, the
burden of which was assumed by the government. The machining was
not done.
Held that the government's failure to inspect
the castings and give notice of rejection within a reasonable time
amounted to an acceptance. P.
268 U. S.
187.
Reversed.
Error to a judgment of the district court in favor of the United
States in an action on contract. The case went to the circuit court
of appeals, and was transferred. 293 F. 386.
MR. JUSTICE BUTLER delivered the opinion of the Court.
This action was brought under § 24, par. 20, of the Judicial
Code, to recover $7,581.95, alleged to be due upon
Page 268 U. S. 187
a contract between plaintiff and defendant. The court gave
judgment in favor of defendant. Plaintiff took the case to the
circuit court of appeals on writ of error, but it should have been
brought to this Court.
J. Homer Fritch, Inc. v. United
States, 248 U. S. 458;
Campbell v. United States, 266 U.
S. 368. The case was transferred to this Court under §
238a, Judicial Code; Act Sept. 14, 1922, c. 305, 42 Stat. 837. 293
F. 386.
The facts admitted include the following. September 4, 1918,
plaintiff made a contract with the post quartermaster, United
States Marine Corps, Quantico, Virginia, acting under the direction
of the Secretary of the Navy for and in behalf of the United
States. By it, plaintiff agreed to furnish two flywheels according
to certain drawings, each to be cast in halves "in the rough."
Delivery was to be made by September 28, 1918, at Reading,
Pennsylvania, for shipment to the De La Vergne Machine Company, New
York City. The contract contained a provision that, upon delivery,
and as a condition precedent to their acceptance, the castings
should be inspected and approved by defendant, and that any article
not so approved would be rejected, and should be removed by
plaintiff immediately after receipt of notification of such
rejection. The court found facts as follows:
"The plaintiff failed to perform its contract in that the
castings were defective because of the presence of checks. These
defects could have been remedied by welding, and the castings thus
made to conform to contract. The extent of the cracks and the
consequent required welding could not be determined until after the
castings had been machined. Plaintiff sent the castings to the
company which was to do the machining, and plaintiff was given the
privilege of welding the cracks when disclosed by the machining.
This welding was, however, not done, nor the castings made as
required by the contract. The smaller casting which was the first
casting supplied was inspected
Page 268 U. S. 188
and rejected within a reasonable time. After partial welding, it
was again inspected and rejected within a reasonable time. The
large casting was not inspected until after a reasonable time. This
wheel was shipped December 27, 1918, and reached its destination
before February 7, 1919. It had not been inspected on December 6,
1919, and notice of inspection and rejection was not given until
October 26, 1920, after suit brought."
In its brief, defendant contends that the plaintiff was bound by
the contract to weld checks disclosed by machining, and the
plaintiff so construes the contract. The facts admitted and the
concessions made by the parties may be considered with the findings
of fact made by the district court. This is not inconsistent with
the rule stated in
Crocker v. United States, 240 U. S.
74,
240 U. S. 78,
restricting our inquiry to a consideration of the case on the
findings.
See Ackerlind v. United States, 240 U.
S. 531,
240 U. S. 535.
The contract is to be construed and the rights of the parties are
to be determined by the application of the same principles as if
the contract were between individuals.
Smoot's
Case, 15 Wall. 36,
82 U. S. 47;
Amoskeag Manufacturing Co. v.
United States, 17 Wall. 592,
84 U. S. 595;
United States v. Smith, 91 U. S. 214,
91 U. S.
217.
As the castings for the smaller wheel were not made to conform
to the contract by the welding of the checks for which it was
rejected within a reasonable time, plaintiff is not entitled to
recover on account of it.
The defendant failed within a reasonable time to inspect the
castings for the larger wheel or to give notice of rejection.
Plaintiff was not in default. It made delivery as agreed by
shipping the castings to the company which was to do the machining.
Plaintiff was not bound to have the machining done, and, as between
it and defendant, that burden was on the latter. The extent of the
checks could not be determined before the castings were machined.
Defendant was bound by the contract to accept
Page 268 U. S. 189
or reject the castings within a reasonable time. It is well
settled in the law of sales that receipt of goods will become an
acceptance of them if the right of rejection is not exercised
within a reasonable time.
Foss-Schneider Brewing Co. v.
Bullock, 59 F. 83, 89. Defendant must be held to have accepted
the castings for the larger wheel.
Plaintiff is entitled to judgment for the contract price.
Judgment reversed.