
    CONDENSER SERVICE AND ENGINEERING COMPANY, INCORPORATED, v. THE UNITED STATES
    No. 50103.
    Decided September 30, 1953.
    Plaintiff’s motion for rehearing overruled December 1, 1953.
    
      
      Mr. Robert S. Oaviness for the plaintiff. Mr. Harold, I. Baynton was on the briefs.
    
      Mr. LeRoy Southmayd, Jr., with whom was Mr. Assistant Attorney Generad Warren E. Burger, for the defendant.
   Howell, Judge,

delivered the opinion of the court:

Plaintiff, Condenser Service and Engineering Company, Incorporated, a New Jersey corporation engaged in the manufacture of steam condensers and heat exchangers, brings this action against the United States for the recovery of damages resulting from an alleged breach of contract by the War Assets Administration in failing to deliver to plaintiff certain items of surplus property.

On March 21, 1947, the War Assets Administration, through its regional office in Richmond, Virginia, issued Special Offering R.HO-93-242 inviting sealed bids on 27 designated lots of surplus nonferrous metals. Among the various items included in this Special Offering, Lot No. 331 was especially appealing to plaintiff. This lot consisted of 4,858 lengths or pieces of %" copper-nickel tubing weighing 29,444 pounds and 3,750 lengths of %" copper-nickel tubing weighing 39,600 pounds, all bearing Owning Agency Symbol No. 602059-5-1-5712 and was described as being located at the Naval Gun Factory, Washington, D. C. Such tubing was an essential component of the condensers and heat exchangers manufactured by plaintiff since it possessed metallurgical properties making it resistant to rust, corrosion, heat and erosion. Consequently, on March 25,1947, plaintiff submitted to the Regional Office of the War Assets Administration its sealed bid upon this and other lots contained in the offering.

Plaintiff’s bid was submitted upon a standard form furnished by the War Assets Administration which set forth on its back the “Terms and Conditions of Sale,” and also the “Standard Conditions of Sale.” Under the “Terms and Conditions of Sale” the right was reserved by the War Assets Administration “to withdraw all or any part of the property included in the sale at any time prior to a Contract of Sale.” In addition, under the “Standard Conditions of Sale” the War Assets Administration imposed the following pertinent restrictions:

* * * The Sales Memorandum and these standard conditions of sale constitute the entire agreement between the parties with respect to the sale of the property specified in the Sales Memorandum. * * *
* * * e. * * * Specific shipping instructions from Purchaser must be received by the Regional Office of War Assets Administration responsible for the sale within ten (10) days from the date of the Sales Memorandum; or if prior to the expiration of said 10-day period Purchaser notifies Seller that he will remove the property, such removal must be effected within fifteen (15) days of the Sales Memorandum. * * *
f. If the property covered by Sales Memorandum is lost, damaged, or destroyed otherwise than by the fault or negligence of Purchaser prior to removal of shipment during the applicable period prescribed in paragraph (e) above for the removal or the issuance of shipping instructions, Seller’s liability shall, at election of Seller, be limited to the replacement of the property lost, damaged or destroyed or refunding any amount paid by Purchaser therefor.

Plaintiff, on May 12, 1947, received notification from the Committee of Awards of the Richmond Office that its bid of 23.125 cents per pound for Lot No. 331 had been accepted, and that it would receive the designated quantity of %" tubing for $6,808.93 and the designated quantity of %" tubing for $9,157.50, or a total of $15,966.43. In addition, plaintiff was advised that its bid on several of the other lots had also been accepted, but fending verification that all the items were still available, it would not receive the formal sales documents.

No additional information was received from the War Assets Administration by plaintiff for several weeks, whereupon, on June 2, 1947 plaintiff advised the Eichmond Office in writing that the sales documents had not been forwarded. Plaintiff requested early processing of these papers, and inquired whether payment might be made through the establishment of an irrevocable letter of credit. The Eichmond office replied on June 9, 1947, stating that this method of payment would be acceptable. Accordingly, on June 20, 1947, plaintiff forwarded to it an irrevocable letter of credit for $26,957.34, the aggregate amount of its bids for the several lots.

Meanwhile, the Eichmond office on May 21,1947 conducted an auction of surplus property located at the Norfolk Navy Yard in Virginia. Among the items disposed of at this auction was a quantity of %" copper-nickel tubing, also bearing Owning Agency Symbol No. 602059-5-1-5712, which was sold to Okley L. Post, owner of Post Sales Company, for a sum not revealed by the evidence. Although it was not realized by the War Assets Administration at this time, the tubing sold to Post was actually the identical tubing which had been previously awarded conditionally to plaintiff as part of Lot No. 331, and which had been described as being located at the Naval Gun Factory, Washington, D. C.

Being unaware of these developments, plaintiff on June 11, 1947, submitted a purchase order to Post for approximately the same quantity of tubing as was embraced in Lot No. 331, and also offered to take a designated additional quantity, all at 15 cents per pound. Post accepted this offer on June 30,1947, and agreed to furnish plaintiff 4,858 lengths oftubing located at the Norfolk Navy Yard at a price of 15 cents per pound.

Immediately following this, on July 1,1947, the Richmond office of the War Assets Administration forwarded sales documents to plaintiff confirming the formal acceptance of its bids for several of the lots of surplus property, and on July 3,1947, a sales document was forwarded confirming the formal acceptance of plaintiff’s bid on Lot No. 331.

Shortly after the issuance of this sales document to plaintiff, the Supply Officer at the Norfolk Navy Yard, on July 7, 1947, issued an invoice authorizing the delivery of 4,855 lengths of tubing to Post in fulfillment of his purchase of May 21, 1947. This invoice provided that delivery was to be made to plaintiff on behalf of Post, and on July 8, 1947, the %" tubing was removed from the Norfolk Navy Yard by a common carrier for shipment to plaintiff. Although both the Supply Officer’s invoice and the common carrier’s bill of lading listed the owning agency’s symbol number set forth above, the evidence does not establish whether or not this fact was noticed by plaintiff.

The letter of credit submitted by plaintiff in payment for the various lots contained shipping instructions for their delivery, but these instructions were not entirely clear. As a result, during the period from July 3, 1947, through July 22,1947, there was much correspondence between the parties in an effort to clarify the instructions. Once this matter was settled, the War Assets Administration delivered to plaintiff during August 1947 the material which had been awarded to it, with the exception of Lot No. 331, and effected payment by drawing against plaintiff’s letter of credit. About the time these deliveries were commenced, plaintiff was notified for the first time by the Richmond office that a mistake had occurred as to the tubing contained in Lot No. 331, that the %" tubing had been sold to Post, and that the f8" tubing had been sold to someone else whose identity was never definitely established. On August 17, 1947, the Richmond office officially notified plaintiff that Lot No. 331 could not be shipped “due to non-availability,” and that an appropriate adjustment of its account had been authorized.

. Plaintiff immediately protested this action and demanded that the War Assets Administration either supply the tubing from other sources or compensate plaintiff for its losses. On September 30,1947, the Washington office of the War Assets Administration replied to plaintiff as follows:

* * * Our Richmond Office has informed us that during the processing of the sales document, the tubing covered by the sale was inadvertently sold at location and that there was unusual delay in the documentation due to the fact that the material was originally shown as being located in Washington while actually it was located at the Naval Shipyard, Portsmouth, Va. We were further informed that a teletype broadcast was dispatched to all other regional offices in an effort to obtain similar material for you. However, our regional offices replied that tubing of the type required was not in their inventories. * * *

Plaintiff, on October 10, 1947, replied to this letter and again insisted that either it be furnished similar tubing or else be reimbursed by the War Assets Administration for the difference between the sale price and the price it had to pay to obtain replacement material. Plaintiff also requested advice as to the proper method for it to pursue in an effort to obtain just compensation. Thereafter, plaintiff on several occasions repeated its appeal to the War Assets Administration for relief, but it received no reply until July 26, 1948, when the following decision was received from the Claims Division of the War Assets Administration:

In consideration of that part of the claim arising out of the non-delivery of 69,044 pounds of Copper Nickel Tube awarded the claimant company as evidenced by Sales Document No. 4542643, it is concluded that a valid contract existed and WAA breached the contract by its failure to deliver the property awarded. However, the claimant company has submitted no evidence to show that they have been damaged by such breach and accordingly the’claim should be denied.

Plaintiff promptly protested this decision, and after, pointing out its previous unanswered requests for information relative to obtaining compensation, requested that a hearing be held for the purpose of assessing its damages, or in lieu of a hearing, that it be permitted to submit written proof of its damages. However, on August 31,1948, the War Assets Administration advised plaintiff that a hearing on the issue of damages would serve no useful purpose since:

Essentially your claim is one for anticipated profits, which are in the nature of unliquidated damages due to the fact that the material in question was not available for delivery. Funds available to this Administration are not available for payment of such claims.
In your case, the claim has been reconsidered on the basis of the facts of record, including the matters emphasized in your letter, and since no new evidence was presented in support or the claim, no reason exists for modification or reversal of the decision. Accordingly * * * you are advised that the decision of which you were notified by letter of July 26, 1948, represents the final position of the War Assets Administration in this matter.

It is plaintiff’s contention that the acceptance of its bid by the War Assets Administration on May 12,1947, followed by the issuance of the sales document on July 3,1947, brought into existence a valid and binding contract , with respect to this tubing, and that the subsequent action of the War Assets Administration in failing to deliver Lot No. 331 constituted a breach of this contract for which it is entitled to recover damages. These damages plaintiff insists should be measured by the difference between the contract price and the fair market value of equivalent tubing at the time when delivery should have been made.

Defendant maintains that the above related facts and circumstances did not create any liability on its part to respond to plaintiff in damages for the non-delivery of the surplus tubing, and we are of the opinion that this position is correct. In reaching this conclusion we are guided by the principle previously announced by this court in Srere Bros. & Co. v. United States, 60 C. Cls. 994, which involved a similar failure to deliver surplus property that had also been sold prior to final acceptance of the plaintiff’s bid. In that situation it was held, at pp. 998-999, as follows:

This court has several times held that claims growing out of bids for materials which the Government was disposing of as surplus property cannot be enforced against the Government where it appears that the material covered by the bids is not in the ownership or possession of the government at the time the bid is made or accepted. The statute authorizes the sale of surplus material, and the authority of the officer is to sell what the Government owns and possesses at the time. Bidders must be held to a knowledge of any limitations upon the authority of Government agents. Hummel case, 58 C. Cls. 489, 494; * * *. [Italics supplied].

Cf. Mottram v. United States, 271 U. S. 15, aff'g. 59 C. Cls. 302; Gordon Woodroffe Corporation v. United States, 122 C. Cls. 723; Silberstein & Son v. United States, 69 C. Cls. 373; E. A. Schwarzenberg v. United States, 60 C. Cls. 898.

Although plaintiff was notified on May 12, 1947, that its bid for Lot No. 331 had been accepted, it was given an express warning that the acceptance was conditional “pending verification that the items are still available.” Consequently, plaintiff was put on notice that a binding contract did not come into existence at this time. At the same time plaintiff became charged with knowledge that the authority of the Government officials with whom it was dealing was limited to selling material which the Government actually owned at the time of the formal acceptance of its bid. Consequently, the subsequent act of officials of the War Assets Administration in selling the tubing at auction to Post and others on May 21,1947, removed the tubing from the ownership of the Government and rendered it impossible for plaintiff thereafter to receive a binding contract for the purchase of the same goods. The attempted formal acceptance of plaintiff’s bid on June 3,1947, by the Committee on Awards of the War Assets Administration, although made in good faith, was thus beyond their authority as disposal agents for the United States and did not create a liability on the part of the United States to respond to plaintiff in damages. The War Assets Administration’s attempt to obtain the tubing for plaintiff from its other regional offices, although unsuccessful, was, under these conditions, a reasonable and fair effort to relieve plaintiff of any possible injury, and completely fulfilled any obligations which the United States owed to plaintiff.

Despite plaintiff’s allegations of damages, we fail to perceive how it was injured by this series of transactions. Actually, as a result of the War Assets Administration’s act in selling the tubing to Post plaintiff was enabled to achieve a substantial saving through its subsequent purchase of the identical tubing from Post for much less than the amount of its bid to the Government. Moreover, Post was able to complete delivery of the tubing to plaintiff far more promptly than plaintiff would have been able to have obtained on its own behalf if it had in fact received a valid contract from defendant. As plaintiff’s purported damages are thus mainly fictional, we direct that judgment be entered on behalf of defendant dismissing plaintiff’s petition.

It is so ordered.

Littleton, Judge, and Jones, Chief Judge, concur.

. Whitaker and Madden, J. J.,

concurring:

We concur. Paragraph “f” of the Standard Conditions of Sale limits the seller’s liability to refunding the amount paid if the property sold is “lost, damaged, or destroyed” prior to delivery. This seems to us to cover the situation in this case. Since nothing was paid, nothing can be recovered.

FINDINGS OF FACT

The court makes findings of fact, based upon the evidence, the report of Commissioner W. Ney Evans, and the briefs and argument of counsel, as follows:

■ 1. Plaintiff is a New Jersey corporation engaged in the manufacture of steam condensers and heat exchangers.

2. One of the components of such condensers and exchangers is tubing with chemical and metallurgical characteristics making it resistant to rust, corrosion, heat and erosion. In 1947, such tubing was in short supply, and one of the most satisfactory types of tubing for the purpose was copper-nickel tube meeting Navy specification 44-T-10.

'3. On March 21, 1947, the War Assets Administration issued its Special Offering KHO-93-242 (hereinafter referred to as the Special Offering) inviting sealed bids on certain non-ferrous metals listed and described by lots. Lot No. 331, in issue in this action, was described as follows:

COBBER-NICKEL TUBE

29,444 lbs. 3/4"x.049"xl4'6'/, soft, 4A-T-10, 4,858 ea. 39,600 lbs. %"x.049"x20', soft, 3,750 ea.

Location: Naval Gun Factory, Washington, D. C.

Owning Agency No.: 602059-5-1-5712.

All of this tubing was new, and met Navy specifications 44-T-10. The symbols “ea” at the end of the foregoing descriptions referred to lengths.

4. The Special Offering contained instructions for submitting bids, general provisions, and a sealed bid form on the reverse side of which were (a) terms and conditions of sale and (b) standard conditions of sale.

The instructions for submitting bids stated that the Special Offering was issued on March 21, 1947, that offers would be received until the close of business on April 10, 1947, and that consideration and allocation would be made in the order of (a) Federal Agencies, (b) veterans, (c) Reconstruction Finance Corporation, (d) State and local governments, (e) nonprofit institutions, and (f) all others.

The general provisions provided that “sale of each lot as one unit will be made to the highest qualified bidder # * * ?J

The terms and conditions of sale provided that the War Assets Administration reserved the right “to withdraw all or any part of the property included in the sale at any time prior to a Contract of Sale.”

The standard conditions of sale contained the following provisions:

* * * The Sales Memorandum and these standard conditions of sale constitute the entire agreement between the parties with respect to the sale of the property specified in the Sales Memorandum. * * *
* * * e. * * * Specific shipping instructions from Purchaser must be received by the Regional Office of War Assets Administration responsible for the sale within ten (10) days from the date of the Sales Memorandum; or if prior to the expiration of said 10-day period Purchaser notifies Seller that' he will remove the property, such removal must be effected within fifteen (15) days of the Sales Memorandum. "* * *
/. If the property covered by Sales Memorandum is lost, damaged, or destroyed otherwise than by the fault or negligence of Purchaser prior to removal of shipment during the applicable period prescribed in paragraph (e) above for removal or the issuance of shipping instructions, Seller’s liability shall, at election of Seller, be limited to the replacement of the property lost, damaged- or destroyed or refunding any amount paid by Purchaser therefor.

The Sales Memorandum was not identified in the Special' Offering otherwise than as indicated by the foregoing.

5. On March' 25,1947, plaintiff submitted to the Richmond Regional Office of War Assets Administration (hereinafter referred to as the Richmond Office) a bid for the purchase of 13 of the 27 lots described in the Special Offering. Plaintiff’s bid for Lot No. 331, i. e., for both the %" tubing and the %" tubing, was 23.125 cents per pound or a total of $15,966.43 ($9,157.50 for %" tubing and $6,808.93 for %" tubing).

6. On May 12,1947, the Committee of Awards of the Richmond Office advised plaintiff that Lots Nos. 331, 334, and 343 had been awarded to plaintiff and that:

* * * Pending verification that the items are still available, you will receive the proper sales documents. * * #
* * * All action by the Committee of Awards is subject to review.

7. On May 21, 1947, the Richmond Office sold to Okley L. Post (owner of Post Sales Company, and hereinafter referred to as Post) 4,858 “units” (lengths) of copper-nickel tube, %" thick x .049" x 14'6". The price at which the sale was made is not established by the evidence. The sales documents of this transaction showed:

* * * Salesman: Auction * * *
Property Location: Supply Officer, Norfolk
Navy Yards, Portsmouth, Virginia * * *
Owning Agency No. 602059-5-1-5712.

The tubing so sold to Post comprised all of the %" tubing described in the Special Offering as part of Lot No. 331.

8. Post was a veteran of World War II and held a veteran’s priority certificate from War Assets Administration. The sale described in the preceding finding was not made under the provisions of the Special Offering.

9. (a) On June 2,1947, plaintiff wrote the Richmond Office that the sales documents mentioned in the letter from the Committee of Awards had not been received, asked for early processing, and inquired whether payment might be made through the establishment of an irrevocable letter of credit.

(b) On June 9, 1947, the Richmond Office replied that payment as suggested would be acceptable.

10. On June 11, 1947, plaintiff forwarded to Post its purchase order for 70,000 feet of copper-nickel tube u%" O. D., .049 thickness, 14'6" long” at 15 cents per pound, and offered to take up to 200,000 feet at that price.

11. (a) On June 18, 1947, an irrevocable letter of credit was issued by the Bank of Manhattan Company, payable, in effect, to the Richmond Office, in the sum of $26,957.34, being the aggregate amount plaintiff had bid for Lots Nos. 331, 334, and 343.

(b) On June 20,1947, the letter of credit was forwarded by registered mail to the Richmond Office.

(c) Within the next month several changes were made in the letter of credit, all pertaining to shipping instructions and the consignment address. The amount of the letter of credit was not curtailed nor was it cancelled prior to August 15,1947.

12. On June 30, 1947, Post forwarded to plaintiff his invoice for the sale to plaintiff of 5,858 lengths of copper-nickel tubing %" O. D. X .049 X 14'6" at 15 cents per pound for a total of $5,465.25.

13. On July 1, 1947, the Richmond Office forwarded to plaintiff its Sales Document No. 4542421, confirming acceptance of plaintiff’s bid for Lots Nos. 334 and 343. During the month of August 1947, the rods and tubes included in Lots Nos. 334 and 343 were shipped to plaintiff and payment was made therefor by means of sight drafts totalling $10,990.91 drawn by the Richmond Office against plaintiff’s letter of credit.

14. (a) On July 3, 1947, the Richmond Office forwarded to plaintiff its Sales Document No. 4542643, confirming acceptance of plaintiff’s bid for Lot No. 331, showing the amount to be $15,966.43. The Sales Document carried on its face Owning Agency No. 602059-5-5712, and designated the Norfolk Navy Yard as the location of the property.

(b) There was a lapse of approximately 18 days between the issuance of Sales Document 4542643 and the clarification of shipping instructions. It is not established by the evidence that this delay entered into the consideration by or judgment of the Richmond Office with respect to the sale or disposition of Lot. No. 331.

15. (a) On July 7,1947, the Supply Officer, Norfolk Navy-Yard, issued to the Richmond Office his receipt/expenditure invoice showing delivery to be made to plaintiff of 4,855 lengths of %" tubing theretofore sold to Post. The delivery was to be made of packages addressed to Post for plaintiff. The invoice carried on its face Owning Agency No. 602059-5-1-5712.

(b) On July 8,1947, two trucks picked up the %" tubing at the Norfolk Navy Yard, based on a bill of lading showing plaintiff as the consignee and the Eichmond Office as the shipper and stating that “this is not the property of the Federal Government * * The bill of lading carried on its face references to sales documents’ numbers and Owning Agency No. 602059-5-1-5712.

(c) In due course 4,855 (of 4,858) lengths of the tubing described in the Special Offering as part of Lot No. 331 were delivered to plaintiff as part of its purchase from Post.

(d) Plaintiff did not, in the course of the transactions described in preceding findings, specifically advise the Eich-mond Office of its purchase of copper-nickel tubing from Post.

(e) The Eichmond Office did not, in the course of the transactions described in preceding findings, specifically advise plaintiff of its sale of copper-nickel tubing to Post.

(f) It is not established by the evidence that plaintiff knew, or ought to have known, prior to its delivery, that the copper-nickel tubing it bought from Post was the same tubing it had contracted to buy from the Eichmond Office.

16. On July 18, 1947, plaintiff paid Post for the 36,435 pounds of tubing it had bought from him.

17. During the last days of July, or early in August 1947, plaintiff was advised by the Eichmond Office that there had been some mix-up over the tubing contained in Lot No. 331; that part of the tubing had been sold to Post, and the remainder sold to someone else. The disposition actually made of the y8" tubing in Lot No. 331 is not established by the evidence.

18. On August 13, 1947, the Eichmond Office wrote plaintiff respecting Sales Document No. 4542643 (Lot No. 331):

* * * this property cannot be shipped due to nonavailability, Appropriate adjustment of your account has been authorized.

19. (a) None of the tubing contained in Lot No. 331 was delivered to plaintiff by the Eichmond Office pursuant to Sales Document No. 4542643.

(b) Plaintiff’s letter of credit was unused to the extent of $15,965.43, being the price of Lot No. 331.

. 20. (a) Plaintiff promptly demanded of War Assets Administration that the tubing listed in Lot No. 331 be supplied from other sources or that plaintiff be recompensed for its loss.

(b)On September 30,1947, the Washington Office of War Assets Administration wrote plaintiff:

* * * Our Richmond Office has informed us that during the processing of the sales document, the tubing covered by the sale was inadvertently sold at location and that there was unusual delay in the documentation due to the fact that the material was originally shown as being located in Washington while actually it was located at the Naval Shipyard, Portsmouth, Va. We were further informed that a teletype broadcast was dispatched to all other regional offices in an effort to obtain similar material for you. However, our regional offices replied that tubing of the type required was not in their inventories. * * *

(c) On October 10,1947, plaintiff replied:

* * * We must either receive from the Administration tubing in every respect similar or be reimbursed by the Administration for the difference between the amount of the sale to us and what we have had to pay to obtain the replacement material. We make this claim now and request your immediate advice * * *. We * * * ask your further advice as to the proper method to pursue to obtain just compensation.

(d) On October 17, 1947, plaintiff again wrote to the Washington Office of War Assets Administration:

May we respectfully refer to our letter to you dated October 10,1947 in which we asked your further advice as to the proper method to pursue to claim compensation for the damage we incurred because of the failure on the part of the Administration to make delivery under certain sales documents. * * *

(e) On January 10,1948, plaintiff again wrote the Washington Office requesting the courtesy of a reply to its previous letters.

21. On July 26,1948, the Washington Office of War Assets Administration wrote plaintiff “* * * that after thorough consideration your claims have been denied in their entirety.” Enclosed with the letter was a certified copy of the decision of the Claims Division, War Assets Administration, stating in part as follows:

In consideration of that part of the claim arising out of the non-delivery of 69,044 pounds of Copper Nickel Tube awarded the claimant company as evidenced by Sales Document No. 4542643, it is concluded that a valid contract existed and WAA breached the contract by its failure to deliver the property awarded. However, the claimant company has submitted no evidence to show that they have been damaged by such breach and accordingly the claim should be denied.

22. Following receipt of the letter of July 26, 1948, and the enclosed decision, plaintiff on July 27, 1948, in a letter addressed to the Washington Office of War Assets Administration, pointed out that it had on several previous occasions requested advice “* * * as to the proper method for us to follow to obtain proper compensation for our loss * * *” and asked that a hearing be held for the purpose of assessing and determining plaintiff’s damages, or in lieu of a hearing that plaintiff be permitted to submit written proof of damages sustained.

23. By letter dated August 81, 1948, the War Assets Administrator informed plaintiff that a hearing on the question of damages “* * * would serve no useful purpose * * *” and continued in pertinent part as follows:

Essentially your claim is one for anticipated profits, which are in the nature of unliquidated damages due to the fact that the material in question was not available for delivery. Funds available to this Administration are not available for payment of such claims.
* * * # *
In your case, the claim has been reconsidered on the basis of the facts of record, including the matters emphasized in your letter, and since no new evidence was presented in support of the claim, no reason exists for modification or reversal of the decision.
Accordingly * * * you are advised that the decision of which you were notified by letter of July 26, 1948, represents the final position of the War Assets Administration in this matter.

24. (a) Plaintiff’s purpose in buying tubing from War Assets Administration was for use in the manufacturing business.

(b) During the summer of 1947 plaintiff maintained an inventory of condenser tubing (copper-nickel and other types) averaging 500,000 pounds and was using approximately 100,000 pounds per month in normal operations.

. (c) Plaintiff was in the market continuously, buying condenser tube at the rate of 2,000,000 pounds per year from the mills, War Assets Administration, and other sources.

25. At all times between June 10, 1947, and February 4, 1948, the prevailing market price, f. o. b. mill, of copper-nickel tube of size and quality equivalent to that contained in Lot No. 381 was, for %" tubing, 54.78 cents per pound, and for %" tubing, 54.53 cents per pound.

26. At prevailing market prices the cost to plaintiff during the last half of 1947 for 69,044 pounds of tubing equivalent to that contained in Lot No. 331 would have been $37,723.30.

' 27. The difference between the contract price for Lot No. 331 ($15,966.43) and the market price for equivalent tubing ($37,723.30) was $21,756.87.

coNcnnsioN of law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover and its petition is dismissed.

Judgment is rendered against the plaintiff for the cost of printing the record herein, the amount thereof to be entered by the clerk and collected by him according to law. 
      
       A detailed description of this tubing is set forth in Finding 3.
     
      
       See Finding 12 and Footnote 5 thereto.
     
      
       Plaintiff eventually received Sales Documents. See Findings IB and 14.
     
      
       70,000 feet of tube in lengths of 14.5 feet equals 4,827.6 lengths. Cf., Special Offering listing of 4,858 lengths.
     
      
       The changes were begun on July 3 and completed on July 22, 1947.
      The letter’s provisions as to shipping instructions were vague. On July 11, 1947, the Richmond Office telephoned plaintiff for clarification. Plaintiff advised that the letter would be cancelled, and a check forwarded in payment of the amount due, together with formal shipping instructions.
      On July 15, 1947, the Richmond Office again telephoned plaintiff saying that no check or letter containing shipping instructions had been received. Plaintiff advised that a letter and telegram were en route. Thereafter, on the same day, the Richmond Office received a telegram from the Bank of Manhattan Company changing the shipping instructions to make the destination c/o Metals, Inc., Raritan, New Jersey.
      On July 16, 1947, the Richmond Office advised plaintiff that injection of the name and address of Metals, Inc., had confused existing instructions, and requested instructions to ship to the order of War Assets Administration, Raritan, New Jersey, with common carrier to pick up for plaintiff at that point.
      On July 17, 1947, plaintiff authorized shipment in accordance with the suggestion made by the Richmond Office, and the change was confirmed by the Bank of Manhattan Company on July 22,1947.
     
      
       84,941 feet. (5,858 X14'6")
     
      
       36,435 pounds. ($5,465.25+.15). 4,858X7.5=36,435. It therefore appears that the Invoice contained a typographical error and was intended to have stated 4,858 lengths. The invoice stated that the tubing weighed 7% pounds per length. 5,858X7.5=43,935. On the other hand, 36,435+6,858= 6.22 pounds per length, while 29,444+4,858=6.06 pounds.
     
      
       The %" tubing was carried in three parcels. One length from each parcel had been previously sent to Post by the Richmond Office, leaving in its possession 4,855 of the 4,858 lengths described in the Special Offering.
     