Where a lot of goods, among surplus military supplies auctioned
by the United States, was grossly overstated as to quantity in the
list of things advertised for sale, and the auctioneer, in
ignorance of the mistake, accepted a bid for the listed quantity,
but informed the bidder that he could not guarantee it, and the
sales, according to the catalogue, were subject to errors of
description and without warranty, and the bidder had previously
inspected the goods and could have ascertained their true amount,
that he had no cause of action against the United
States for failure to deliver the quantity bid for.
59 Ct.Cls. 302 affirmed.
Appeal from a judgment of the Court of Claims dismissing
MR. JUSTICE BUTLER delivered the opinion of the Court.
Plaintiff filed his petition claiming � 44,773. 16s., 3d.
damages because of failure of the United States to deliver
Page 271 U. S. 16
him certain steam packing for which he bid at an auction sale of
surplus war materials held at Slough, England. The Court of Claims
made findings of fact and gave judgment for the United States
dismissing the petition.
By an Act of Congress approved May 10, 1918, c. 70, 40 Stat.
548, the President was authorized to sell property acquired in
connection with the prosecution of the war. Pursuant to that Act,
an agreement was made by an army contracting officer, acting for
the United States, with J. G. White & Co., Limited, of London,
by which the latter agreed to sell at auction engineers' stores and
equipment enumerated and described in an inventory compiled by such
officer. The selling agents agreed to employ the auctioneer and
other persons required to prepare and distribute catalogues and to
conduct the sale. They employed an auctioneer to sell the stores
and equipment at the United States Engineers' Depot at Slough, and
advertised an auction sale to be held at that place on June 24,
1919, and days following. They issued a catalogue purporting to
contain a list giving descriptions and quantities of the things to
be sold. It showed that the United States was vendor, and specified
"The whole shall be sold, with all faults, imperfections, errors
of description, in the lots of the catalogue . . . and without any
warranty whatever, the buyers being held to have satisfied
themselves as to the condition, quality, and description of the
lots before bidding. . . ."
There were listed 22 lots of steam packing, and 11 of these were
described as Garlock packing. Due to an error in transcribing a
list furnished by the officer in command at the depot, the quantity
of each lot of Garlock packing was expressed in hundredweights
instead of pounds, and so indicated one hundred times the
quantities intended. Plaintiff received notice of the sale through
the press and from the catalogue which was furnished
Page 271 U. S. 17
to him at his request by the auctioneer. He made many visits to
the depot before the sale, and had full opportunity to ascertain
the character and quantities of the property to be sold. At his
request, the Garlock packing was shown to him by one of the
employees at the depot on the day before the sale. It was all
housed together, and he had full opportunity to determine its
quantity. He then had the catalogue, which listed 278,432 pounds
for sale. It would have required 560 cases to hold that amount, and
15,000 cubic feet of space to house it. Such a quantity would have
supplied the needs of Great Britain for that article for 20 years.
June 25, 1919, the plaintiff attended the sale as a bidder. And
when the Garlock packing was offered, and after the question of the
quantity of such packing had been raised and the auctioneer had
stated that he would not guarantee any quantity, the plaintiff bid
three and one-fourth pence per pound for the lots of Garlock
packing shown by the catalogue to amount in all to 278,432 pounds,
and these lots were knocked down to him at that price.
The auctioneer did not know that a mistake had been made in the
catalogue, and sent plaintiff a bill which included the amount bid
for the packing. June 30, 1919, plaintiff sent a check for the
amount of the bill to the sales agents. The same day, he gave to
one Davies an option to buy from 50 to 90 tons of the packing. The
option contained the following clause: "Subject to the quantity
being in stock as sold by the U.S.A." When the sales agents
received the check, they knew that there was no such quantity of
steam packing at the depot. July 4, 1919, plaintiff was notified
that a mistake had been made and that no such quantity had ever
been at the depot. He then wrote the sales agents that he expected
delivery of the quantity for which he had paid.
Page 271 U. S. 18
They answered explaining the mistake, and stated that they
considered the explanation sufficient to close the incident with
the return of the money. Plaintiff replied that he would hold them
to the contract, and afterwards he made demands for delivery of the
quantity erroneously stated in the catalogue. Delivery was refused
on the ground that the quantity demanded had never been in
existence. Under an arrangement that it was done without prejudice
to either party, there was returned to the plaintiff the amount
paid by him according to his bid for the packing.
It was not the purpose of the United States to sell any property
other than that belonging to it and then at its depot at Slough,
and the facts found show that plaintiff so understood when he made
his bid. The authority to sell conferred by Congress was limited to
property acquired for the prosecution of the war. More than seven
months had elapsed after the Armistice; a large part of the
American Expeditionary Forces had been withdrawn from Europe, and
the United States was disposing of its surplus war supplies there.
Plaintiff was warned by the statement in the catalogue that the
sales were to be held subject to errors of description and were to
be made without any warranty. He went to see the packing, and had
opportunity to determine quantities. It was obvious that the amount
stated in the catalogue was erroneous, and enormously in excess of
that on hand. Plaintiff made his bid after the auctioneer had
stated that he would not guarantee any quantity of Garlock packing.
And the clause in the option to Davies shows that he was not
relying on the statement of quantity in the catalogue.
It is clear that the facts are sufficient to show that, when
plaintiff made his bid, he was charged with knowledge that the
United States was not offering for sale any such quantity of
Garlock packing as stated in the catalogue. He was not entitled to
a greater amount than the United
Page 271 U. S. 19
States had in the depot at Slough. There was no finding that
delivery of that quantity was refused, or that he was willing to
accept it. He cannot recover. Lipshitz & Cohen v. United
States, 269 U. S. 90
Brawley v. United States, 96 U. S.
, 96 U. S. 171
Cf. Hummel, Trustee v. United States,
58 Ct.Cls. 489,