
    360 F. 2d 940
    ROY C. RASH v. THE UNITED STATES
    [No. 389-62.
    Decided May 13, 1966]
    
      
      Garlos Gastillan, attorney of record, and George P. Kazen, for plaintiff. Mann, Gastillon <& Freed, of counsel.
    
      Howard 0. Sigmond, with, whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowen, Chief Judge, Laeamoee, Dukfee, Davis and ColliNS, Judges.
    
   Pee Cukiam :

This case was referred pursuant to Rule 45 (now Rule 57), and the order of remand dated October 30, 1964, to Trial Commissioner Mastin G. White, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed August 6, 1965. Exceptions were filed by the defendant and the case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion and recommendation of the commissioner, with a modification, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is therefore entitled to recover and judgment is entered for plaintiff in the amount of $89,285.80, which judgment is contingent upon prompt action by the plaintiff in surrendering to the defendant the possession of the property comprising the former Zapata Air Force Station, and in reconveying to the defendant the property which the defendant conveyed to the plaintiff by the deeds dated September 27,1961.

Commissioner White’s opinion, as modified by the court, is as follows:

This case grew out of a contract for the sale by the defendant and the purchase by the plaintiff of realty situated in Southwest Texas that had been declared to be surplus property.

The events leading up to the litigation began in the spring of 1957, when the defendant, with the intention of establishing and maintaining an Air Force radar installation, acquired from Eduardo Villarreal et al. two contiguous tracts of unimproved pasture land located within the exterior boundary lines of the Eduardo Villarreal Banch in Zapata County, Texas. The lands were acquired by means of condemnation proceedings designated as Civil Action No. 764 in the United States District Court for the Southern District of Texas, Laredo Division. Declarations of taking with respect to the two tracts of land were executed by the Secretary of the Air Force and filed during the course of the condemnation proceedings, and judgments vesting the ownership of the lands in the United States were entered by the court. The United States also acquired by condemnation easements over other nearby lands for waterlines, sewerlines, and access roads.

The two tracts of land mentioned in the preceding paragraph were dissimilar in size, but each was rectangular in shape. The dimensions of the larger tract, designated in the condemnation proceedings as Tract No. A-100, were 1,320 feet by 990 feet, and it contained 30 acres. The dimensions of the smaller tract, designated in the condemnation proceedings as Tract No. A-100-1, were 1,000 feet by 490 feet, and this tract contained approximately 11.25 acres. The two tracts adjoined each other for a distance of 490 feet along the north boundary line of the smaller tract and the south boundary line of the larger tract.

The two tracts of land previously referred to were, after their 'acquisition by the defendant, surrounded by pasture land owned by Eduardo Villarreal et al. and comprising the remainder of the Eduardo Villarreal Banch.

After acquiring the lands previously referred to, the defendant went inside the exterior boundary lines of the Eduardo Villarreal Banch, took possession of two contiguous parcels of land located there, built a fence around the area, and constructed a radar installation upon the area. These two parcels of land had the same shape, size, and dimensions, and a similar relationship to each other, as the two tracts of land that had been acquired by the defendant from Eduardo Villarreal et al.

On the larger of the two parcels of land forming the site of the radar installation, the defendant erected headquarters 'buildings, a school building, a recreation building, barracks buildings to house enlisted men, a building to house bachelor officers, a dining hall and kitchen, and a water system to serve not only the larger parcel but the smaller parcel as well. On the smaller parcel of land, the defendant erected 27 single-family dwellings. Waterlines, sewerlines, power-lines, and access roads were constructed over nearby lands to serve the radar installation.

In constructing the radar installation, the defendant intended to locate it on the two tracts of land which had been acquired from Eduardo Villarreal et al. By mistake, however, the defendant utilized as the site for the radar installation only about 7 acres in the northwest corner of the larger tract of land previously acquired from Eduardo Villarreal et al., and did not use for this purpose any portion of the .smaller tract of land previously acquired from Eduardo Villarreal et al. Except for the 7 acres mentioned in the preceding sentence, the radar installation was inadvertently constructed by the defendant upon lands which were still owned by Eduardo Villarreal et al. and in which the defendant had no proprietary interest. This was not known at the time by either the defendant or Eduardo Villarreal et al.

The radar installation was operated by the defendant, through the Department of the Air Force, for a few years. It was known as the Zapata Air Force Station.

Sometime prior to May 4, 1961, the Department of the Air Force reported to the General Services Administration that the Zapata Air Force Station was excess to the needs of the Air Force. Thereafter, the Zapata Air Force Station was determined to be surplus property, and a decision was made that this installation would be offered for sale to the public on the basis of competitive bidding.

Beginning on or about May 4,1961, the surplus property was publicly advertised for sale by the General Services Administration. The advertisement announced that the property would be sold at an auction to be held in the Zapata County Court House on June 19, 1961. In describing the property to be sold, the advertisement identified it as Government-owned surplus property that had been acquired by condemnation in Civil Action No. 764 in the United States District Court for the Southern District of Texas, Laredo Division, and in another action relating to the acquisition of certain easements. In addition, the advertisement contained metes and bounds descriptions of tracts of land designated as Tracts Nos. A-100 and A-100-1, the language used being-identical (except for a few minor variations) with that used to describe Tracts Nos. A-100 and A-100-1 by metes and bounds in the declarations of taking and judgments thereon in Civil Action No. 764. However, the advertisement referred to the lands as containing “27 Three and Four Bedroom Houses and Large Administrative Buildings.” Photographs of a headquarters building, a recreation building, two barracks buildings, a BOQ, and several residences were shown.

In accordance with the advertisement of sale, a public auction was held on June 19, 1961. The property was offered for sale as two separate items. Item 1 consisted of Tract No. A-100, together with certain appurtenant easements. Item 2 consisted of Tract No. A-100-1, together with certain appurtenant easements. In spirited bidding, the plaintiff submitted the highest bid for each item, and his bids were accepted. The plaintiff’s bid for item 1 was $103,100, of which the sum of $20,620 was to be paid in cash and the remainder of $82,480 was to be paid in 40 quarter-annual installments, together with interest at the rate of 5% percent per annum. The plaintiff’s bid for item 2 was $116,000, of which the sum of $23,200 was to be paid in cash and the remainder of $92,800 was to be paid in 40 quarter-annual installments, together with interest at the rate of 5% percent per annum.

Pursuant to the contract between the defendant and the plaintiff, the latter paid the former a total of $43,820 in cash, and he executed in favor of the defendant two promissory notes in the respective amounts of $82,480 and $92,8Q0. The defendant (acting through the Regional Commissioner, Region 7, General Services Administration) executed deeds, without warranty, in favor of the plaintiff. The defendant retained vendor’s liens to secure the payment of the promissory notes executed by the plaintiff in connection with the transaction. With respect to the two principal parcels of land, the deeds identified these parcels as Tracts Nos. A-100 and A-100-1, respectively, that had been acquired by condemnation in Civil Action No. 764; and the metes-and-bounds descriptions of the two parcels in the deeds were phrased in language identical (except for a few minor variations) with that used in the declarations of taking and judgment thereon relative to Tracts Nos. A-100 and A-100-1 in Civil Action No. 764. The deeds were tendered to and accepted by the plaintiff.

The plaintiff took possession of the former Zapata Air Force Station under his contract with the United 'States. In acquiring the property, it was the plaintiff’s intention to sell it, but he intended to hold it for at least 6 months because of tax considerations. While awaiting developments in connection with the ultimate disposition of the property, the plaintiff rented some of the single-family dwellings to other persons.

An active campaign to sell the former Zapata Air Force Station was undertaken by the plaintiff in the early part of 1962. The initial effort was to sell the entire property as a single unit. This effort was not successful, however, so the plaintiff decided in March 1962 that it was not feasible to dispose of the f ormer Zapata Air Force Station as a single unit, and that it was advisable to sell the 27 single-family dwellings as individual units. Various steps which are detailed in the findings of fact were undertaken by the plaintiff in order to get ready for such a disposition of these properties.

In the meantime, Eduardo Villarreal was dissatisfied with the amounts that the United States had paid into the registry of the court in connection with the condemnation proceedings and declarations of taking mentioned at the outset of this opinion. In an effort to bolster his belief that the damages which he had sustained were greater than the amounts previously paid into the registry of the court, Mr. Villarreal employed a competent surveyor and appraiser to make a survey of the property comprising the former Zapata Air Force Station. As a result of this survey, it was discovered for the first time that the defendant had constructed the radar installation largely on lands which were owned by Eduardo Villarreal et al. and in which the defendant had no proprietary interest. Mr. Villarreal promptly passed this information on to the defendant and to the plaintiff. Upon receiving such information, the plaintiff suspended any further efforts to dispose of portions of the former Zapata Air Force Station.

At that point in the sequence of events, the defendant was not chargeable with any breach of contract. Under the language of the documents constituting the contract between the defendant and the plaintiff, the defendant had contracted to sell and the plaintiff had contracted to buy the realty that had been acquired by the United States from Eduardo Villarreal et al. through the 1957 condemnation proceedings. The deeds which the defendant had executed and delivered to the plaintiff covered precisely the property interests referred to in the contract. Thus, the defendant had performed in accordance with the letter of the contract between the parties.

The trouble was that the language of the contract did not accurately reflect the intention of the parties. The defendant really intended to sell, and the plaintiff really intended to buy, the realty comprising the former Zapata Air Force Station. That realty was not the same as the realty covered by the language of the contract between the parties, except that the two areas overlapped to the extent of approximately 7 acres. Thus, the situation in which the defendant and the plaintiff found themselves provided a good illustration of a mutual mistake by two contracting parties concerning a material fact. The plaintiff was the party disadvantaged by the mistake, because he had received less than he intended to buy and the defendant intended to sell. In such a situation, the injured party is generally entitled to secure a reformation of the contract in accordance with the intention of the parties, unless innocent persons will foe affected by the change. 5 Wh-liston, CoNtkagts § 1547 (Rev. Ed. 1937); RestateMENt, CONTRACTS § 504 (1932). It is also the general rule that where reformation is possible, it is the only remedy permissible, since the mistake of the parties related to their expression only, and a rescission of the contract would foe an unnecessary violation of their intent. 5 Willis-ton, Contracts § 1557 (Rev. Ed. 1937).

However, in May 1962, when the mutual mistake of fact in this case was discovered, it was not possible for the contract between the plaintiff and the defendant to be reformed so as to reflect the intention of the parties, because at that time the defendant did not own the realty which the parties had intended to include in the contract but which had been omitted from the language of the contract.

Since the contract between the plaintiff and the defendant did not, because of a mutual mistake of fact, reflect the real intention of the parties, and since reformation of the contract so as to reflect such intention was not possible in May 1962, when the mutual mistake was discovered, the plaintiff at that time undoubtedly had the right to cancel the contract. However, the exercise of such right was dependent upon prompt action by the plaintiff to inform the defendant of the cancellation, and also upon prompt action by the plaintiff to restore the former status by surrendering possession of the former Zapata Air Force Station and conveying back to the defendant the realty which the defendant had previously conveyed to him. Grymes v. Sanders et al., 93 U.S. 55, 62 (1876).

After learning on or about May 25, 1962, of the mistake that had been made, the plaintiff promptly consulted his attorney. The plaintiff’s attorney telephoned Arthur L. Moeller, of the Lands Division, Office of the United States Attorney for the Southern District of Texas, in Houston, Texas, and discussed the problem with him. Mr. Moeller indicated that he would send to plaintiff’s counsel a written brief to the effect that the description in the plaintiff’s deeds was sufficient to convey the former Zapata Air Force Station to the plaintiff, despite the results of the survey that had recently been made at the instigation of Mr. Villarreal. However, the promised brief was never sent to plaintiff’s counsel.

A few days after the conversation between plaintiff’s counsel and Mr. Moeller, plaintiff’s counsel received a telephone call from William L. Bowers, Jr., Chief of the Lands Division, Office of the United States Attorney for the Southern District of Texas, in Houston, Texas, who said that he had taken over the handling of the case. Mr. Bowers further stated that a Government surveyor was being sent to Zapata, Texas, to conduct a new survey of the land in question, and that any further evaluation of the deed description would be made after the new survey was completed.

On June 6, 1962, plaintiff’s counsel wrote a letter to the General Services Administration’s regional office in Dallas, Texas, suggesting that the difficulty be resolved through negotiations between the defendant and Eduardo Villarreal et al., whereby the defendant would pay compensation for the portion of the Villarreal Ranch that had been mistakenly utilized for the former Zapata Air Force Station, and the ranch owners would convey such property to the plaintiff. The letter further stated that “Mr. Rash desires to avoid litigating this matter if possible, and at present desires relief from a situation which he did not bring about and over which he has no control.” At this point, the plaintiff was seemingly interested in corrective action that would permit him to obtain a good title to the former Zapata Air Force Station and thus carry out the true intention of the parties.

In a letter dated June 21, 1962, and addressed to William L. Bowers, Jr., plaintiff’s counsel asked that the defendant’s dealings with Mr. Villarreal be expedited, because the uncertainty as to the correctness of the plaintiff’s deeds made it impossible for him to complete a transaction which, he had been negotiating relative to the property.

On June 28, 1962, plaintiff’s counsel sent a 'letter to the Honorable Joe M. Kilgore, then a member of the United States House of Representatives from the 15th Congressional District of Texas. After explaining the plaintiff’s predicament to Representative Kilgore, the letter stated that Mr. Rash “would lite for General Services Administration to either now refund him his money, simultaneously with the reconveyance of the property by him to such administration, or to remove the cloud on his title, if such can be done promptly.” After writing this letter, plaintiff’s counsel learned that the defendant contemplated filing a motion to amend the declarations of taking in an attempt to correct the situation that had developed. Plaintiff’s counsel believed that such a procedure would involve a long delay, so on June 29, 1962, he wrote a second letter to Representative Kilgore, Stating that “Mr. Rash would like to rescind the sale rather than have a long delay in connection with clearing of title,” and that “the only fair and equitable thing for the General Services Administration to do would be to promptly agree on a mutual rescission of this sale.”

On July 2, 1962, Representative Kilgore forwarded to Bernard L. Boutin, Administrator of the General Services Administration, the communications dated June 28 and 29, 1962, from plaintiff’s counsel, with a covering letter stating that “it would be appreciated if attention could be directed toward relief for Mr. Rash as soon 'as possible.” Thus, the defendant was put on notice in early July of 1962 that the plaintiff was no longer interested in the reformation of the contract, because of the anticipated delay that would be involved in pursuing that course of action, and that the plaintiff was expressly requesting a mutual rescission of the contract.

Lawson B. Knott, Jr., Acting Administrator of the General Services Administration, wrote to Representative Kil-gore on July 26, 1962, stating that “Mr. Rash has no legal claim against the Government for damages or for rescission of the sale,” but that, as an assistance to Mr. Rash, the Government would attempt to amend the declarations of taking in order'to clarify the description of the property, and then deliver corrective deeds to Mr. Rash.

A copy of the letter mentioned in the preceding paragraph was transmitted to plaintiff’s counsel. He wrote another letter to Representative Kilgore on July 31, 1962, expressing doubt that the declarations of taking could be amended, since the public purpose for which the tracts of land had been condemned no longer existed, and stating again that “the only fair thing for General Services Administration to do is to now agree to rescind the sale to Roy Rash.” This letter was forwarded to the General Services Administration by Representative Kilgore.

Lawson B. Knott, Jr., wrote a further letter to Representative Kilgore on August 16, 1962, again expressing willingness to deliver corrective deeds to Mr. Rash promptly after the amendment of the declarations of taking, and stating that “this is as much as Mr. Rash can expect the Government to do.”

The plaintiff personally wrote a letter to Lawson B. Knott, Jr., asking him to reconsider his position “and agree to promptly rescind this sale.” Mr. Knott replied on August 29, 1962, stating that he was not in a position to grant the plaintiff’s request.

On November 21,1962, the defendant filed with the United States District 'Court for the Southern District of Texas a motion to amend the declarations of taking, so that the lands described therein would be the same as the lands upon which the former Zapata Air Force Station had been constructed. The defendant’s motion was denied by the court on January 7, 1963.

The defendant undertook to make arrangements with Eduardo Villarreal et al. whereby the ownership of the lands on which the former Zapata Air Force Station had been constructed could be transferred to the plaintiff (except for the 7-acre parcel the ownership of which was already vested in the plaintiff). The arrangements with Eduardo Villarreal et al. essential to such a transaction were completed by the defendant on or about April 1, 1963. In May 1963, the defendant formally tendered to the plaintiff new deeds conveying to the plaintiff the lands, easements, and improve-meats comprising the former Zapata Air Force Station. One deed covered the 30-acre parcel of land containing the headquarters buildings, the school 'building, the recreation building, the barracks buildings, the BOQ, the dining hall and kitchen, and the water system, together with appurtenant easements; and the other deed covered the 11.25-acre parcel of land containing the 27 single-family dwellings, together with appurtenant easements. However, the plaintiff refused to accept these deeds, because the market value of the properties comprising the former Zapata Air Force Station had declined substantially during the period between May-June of 1962 and May of 1963.

Thus, it will be seen that when the mutual mistake of the parties was first discovered by the plaintiff, he indicated a desire to have the contract reformed so that it would express the true intention of the parties, if this could be accomplished with reasonable promptness. Then, when it was learned that the defendant proposed to effect the reformation of the contract by amending the declarations of taking and executing corrective deeds in favor of the plaintiff, the latter (acting through his counsel) immediately asked for a rescission of the contract, since it was believed that the proposed procedure would involve a long period of delay. The 'anticipation of delay was well-founded, and it ultimately developed that the attempt to amend the declarations of taking was unsuccessful.

At all times beginning with the early part of July 1962, the plaintiff, in his relations with the defendant, was consistent and insistent in urging that the contract be rescinded. In this connection, the defendant’s various agencies involved in the transaction were aware that the plaintiff stood ready at all times to restore the status quo by surrendering possession of the former Z'apata Air Force Station and reconvey-ing to the defendant the property which the defendant had previously conveyed to him.

The criterion to apply is whether the plaintiff’s delay in requesting rescission was unreasonable under the circumstances. 5 WillistoN, CoNtkaots §1594 (Rev. Ed. 1937). It seems to me that the plaintiff is not chargeable with any undue delay in this respect. It is true that the plaintiff first learned of tlie mutual mistake of fact on or about May 25, 1962, and that the defendant was not informed of the plaintiff's desire to rescind the contract until on or about July 2, 1962. However, the purpose of this delay was to afford the defendant an opportunity to make with Eduardo Villarreal et al. arrangements whereby the plaintiff could obtain a good title to the property which he thought he was purchasing and which the defendant thought it was selling.

It is my view, therefore, that the defendant was under an obligation to grant the plaintiff’s request for rescission when such request was received in the early part of July 1962, since the defendant at that time was not in a position to effect a reformation of the contract with reasonable promptness. BESTATEMENT, CONTRACTS §502 (1932).

The defendant’s wrongful failure to discharge the obligation mentioned in the preceding paragraph caused damages to accrue to the plaintiff. Although the plaintiff remained in possession of the former Zapata Air Force Station (due to the refusal of the defendant to rescind the contract), rented to third persons single-family dwellings located on the property, and collected rental payments from such persons, the income derived by the plaintiff from the property was less than the expenses which the plaintiff incurred in connection with the property. The record shows that the plaintiff’s total expenses in connection with the property — 'over and above the payments aggregating $70,583.07 which the plaintiff made to the defendant under the contract — exceeded the income that he received from the property by $28,571.61 as of February 11,1965.

The net expenses of $28,571.64 referred to in the preceding paragraph included attorneys’ fees amounting to $8,890.37 and travel expenses amounting to $978.54 incurred by the plaintiff in attempting to obtain administrative relief and •in preparing for and conducting the presént litigation. Since the plaintiff is not entitled to compensation for his expenses in attempting to obtain administrative relief (Dale Construction Co. v. United States, 161 Ct. Cl. 825, 831 (1963)), or for his expenses in preparing for and conducting the litigation (Mississippi Valley Generating Co. v. United States, 147 Ct. Cl. 1, 32, 175 F. Supp 505, 523 (1959), reversed on other grounds 364 U.S. 520; Oliver-Finnie Co. v. United States, 150 Ct. Cl. 189, 199, 279 F. 2d 498, 505 (1960)), the figure of $28,571.64 must be reduced by $8,890.37 and $978.54 to $18,702.73 in determining the amount which the plaintiff is entitled to recover. When the amount of $18,702.73 is added to the $70,583.07 representing the payments which the plaintiff made to the defendant under the contract, it appears that the plaintiff is entitled to recover a total of $89,285.80 in the present case.

The recovery by the plaintiff should, of course, be contingent upon prompt action by the plaintiff to restore to the defendant the possession of the property comprising the former Zapata Air Force Station, and the reconveyance by the plaintiff to the defendant of the property which the defendant conveyed to the plaintiff.

FINDINGS on Fact

1. (a) In the spring of 1957, the defendant (acting through the Secretary of the Air Force), with the intention of establishing and maintaining a radar installation in Southwest Texas, acquired from Eduardo Villarreal et al. two contiguous tracts of unimproved pasture land located within the exterior boundary lines of the Eduardo Villarreal Banch, Zapata County, Texas. The lands were acquired by means of condemnation proceedings in the United States District Court for the Southern District of Texas, Laredo Division, Civil Action No. 764, which involved the filing of declarations of taking for the two tracts. The defendant also acquired by condemnation easements over other nearby lands for waterlines, sewerlines, and access roads.

(b) The two tracts of land mentioned in paragraph (a) of this finding were dissimilar in size, but each was rectangular in shape. The dimensions of the larger tract, designated in the condemnation proceedings as Tract No. A-100, were 1,320 feet by 990 feet, and it contained 30 acres. The dimensions of the smaller tract, designated in the condemnation proceedings as Tract No. A-100-1, were 1,000 feet by 490 feet, and this tract contained approximately 11.25 acres. The two tracts adjoined each other for a distance of 490 feet along the north boundary line of tbe smaller tract and tbe south boundary line of tbe larger tract.

(c)The two contiguous tracts of land referred to in paragraphs (a) and (b) of this finding were, after their acquisition by the defendant, surrounded by pasture land owned by Eduardo Villarreal et al. and comprising the remainder of the Eduardo Villarreal Banch.

2. (a) After acquiring the lands referred to in paragraphs (a)and (fo) of finding 1, the defendant went inside the exterior boundary lines of the Eduardo Villarreal Banch, took possession of two contiguous parcels of land located there, built a fence around the area, and constructed a radar installation upon the area.

(b) The two parcels of land referred to in paragraph (a) of this finding had the same shape, size, and dimensions, and a similar relationship to each other, as the two tracts of land mentioned in paragraphs (a) and (b) of finding 1.

(c) On the larger of the two parcels of land mentioned in paragraph (a) of this finding, the defendant erected headquarters buildings, a school building, a recreation building, barracks buildings to house enlisted men, a building to house bachelor officers, a dining hall and kitchen, and a water system to serve not only the larger parcel but the smaller parcel as well.

(d) On the smaller of the two parcels of land mentioned in paragraph (a) of this finding, the defendant erected 27 single-family dwellings.

(e) Waterlines, sewerlines, powerlines, and access roads were constructed over nearby lands to serve the radar installation.

3. (a) In constructing the radar installation mentioned in finding 2, the defendant intended to locate it on the two tracts of land which had been acquired from Eduardo Villarreal et al., as indicated in finding 1. By mistake, however, the defendant utilized as the site for the radar installation only about 7 acres in the northwest corner of the larger tract referred to in finding 1, and did not use for this purpose any portion of the smaller tract referred to in finding 1. Except for the 7 acres mentioned in the preceding sentence, the radar installation was inadvertently constructed by the defendant upon lands still owned by Eduardo Villarreal et al.

(b) Neither the defendant nor Eduardo Villarreal et al. knew at the time that the radar installation was constructed largely upon lands which were owned by Eduardo Villarreal et al. and in which the defendant had no proprietary interest.

4. The radar installation referred to in finding 2 was operated by the defendant, through the Department of the Air Force, for a few years. It was known as the Zapata Air Force Station.

5. Sometime prior to May 4, 1961, the Department of the Air Force reported to the General Services Administration that the Zapata Air Force Station was excess to the needs of the Air Force. Thereafter, the Zapata Air Force Station was determined to be surplus property, and a decision was made that this installation would be offered for sale to the public on the basis of competitive bidding.

6. (a) Beginning on or about May 4, 1961, the surplus property was publicly advertised for sale by the General Services Administration. The advertisement stated in part that :

The General Services Administration * * * will offer at public auction * * * the Government-owned surplus property located in Zapata County and described herein, sale to be held at 2: 00 P.M., CST, June 19,1961, in the Zapata County Court House, Zapata, Texas.

(b) In describing the property to be sold, the advertisement stated in part as follows:

A. The property for sale consists of the Government’s entire interest in land and easements acquired by declarations of taking hi suits in condemnation filed in the United 'States District Court in and for the Southern District of Texas, Laredo Division, as follows:
(1) Civil Action No. 764 * * *. *****
(2) Civil Action No. 759 [relating to the acquisition of certain easements] * * *.
* * * * *

In addition, the advertisement contained metes-and-bounds descriptions of tracts of land designated as Tracts Nos. A-100 and A-100-1, the language used being identical (except for a few minor variations) with that used to describe Tracts Nos. A-100 and A-100-1 by metes and bounds in the declarations of taking and judgments thereon in Civil Action No. 764. However, the advertisement referred to the lands as containing “27 Three and Four Bedroom Houses and Large Administrative Buildings.” Photographs of a headquarters building, a recreation building, two barracks buildings, a BOQ, and several residences were shown.

(c) The advertisement contained a paragraph relating to “Inspection,” which stated in part as follows:

The property offered hereby may be inspected daily from 9:00 A.M. until 4:30 P.M., CST, beginning May 15 and until June 16. * * * The failure of any_ bidder to inspect or to be fully informed as to the condition of all or any portion of the premises or property offered will not constitute grounds for any claim or demand for adjustment or withdrawal of an offer.

(d) The advertisement contained a section devoted to “General Conditions,” stating in part as f ollows:

1. Knowledge of Conditions. All offers shall be deemed to have been made with full knowledge of all of the terms, conditions and requirements contained herein. The descriptions and locations contained in the Terms and Conditions of Sale are believed to be correct, but any error or omission in the description of the property shall not constitute any ground or reason for non-performance of the sales agreement or claims by the purchaser for any allowance, refund or deduction from the purchase price.
2. Property Sold “As Is”. The property offered for sale will be sold “As Is” and “Where Is” without warranty or guaranty as to quantity, quality, character, condition, size or kind, or that the same is in condition or fit to be used for the purpose for which intended, and no claim for any allowance or deduction upon such grounds will be considered after the bid has been received. If an offer for the property is accepted, conveyance of the Government’s interest therein will be made without warranty, express or implied.
* ‡ ‡
15. Title Evidence and Survey Expense. Any title evidence including abstracts and continuations thereof, title certificates, or policies of title insurance, which may be desired by purchaser will be procured by him at his 'sole cost and expense. It is understood that Government will not he obligated to pay for any expense incurred in connection with title matters or surveys of the property. Government will, however, cooperate with purchaser, or his authorized agent in this connection, by permitting examination and inspection of such deeds, abstracts, tax receipts, affidavits of title, judgments in condemnation proceedings, or other documents relating to the title of the premises and property involved, as it may have available.

7. During the period between the issuance of the advertisement of sale on or about May 4, 1961, and the holding of the auction on June 19, 1961, the plaintiff visited and inspected the former Zapata Air Force Station on at least one occasion, and probably on two occasions.

8. (a) In accordance with the advertisement of sale referred to in finding 6, a public action was held in the Zapata County Court House, Zapata, Texas, at 2 p.m. on June 19, 1961. The surplus realty was offered for sale as two separate items. Item 1 consisted of Tract No. A-100, together with certain appurtenant easements. Item 2 consisted of Tract No. A-100-1, together with certain appurtenant easements. In spirited bidding, the plaintiff submitted the highest bid for each item, and his bids were accepted.

(b) The plaintiff’s bid for item 1 was $103,100, of which the sum of $20,620 was to be paid in cash and the remainder of $82,480 was to be paid in 40 quarterly installments, together with interest at the rate of 5% percent per annum.

(c) The plaintiff’s bid for item 2 was $116,000, of which the sum of $23,200 was to be paid in cash and the remainder of $92,800 was to be paid in 40 quarterly installments, together with interest at the rate of 5% percent per annum.

9. (a) Pursuant to the contract of sale between the defendant and the plaintiff, as indicated in finding 8, the plaintiff paid the defendant a total of $43,820 in cash, and he executed in favor of the defendant two promissory notes in the respective amounts of $82,480 and $92,800, promising to pay each of these notes in 40 successive quarter-annual installments, together with interest at the rate of 5% percent per annum.

(■b) On September 27, 1961, the defendant (acting through the Regional Commissioner, Region 7, General Services Administration) executed deeds, without warranty, in favor of the plaintiff. The defendant retained vendor’s liens to 'secure the payment of the promissory notes mentioned in paragraph (a) of this finding. With respect to the two principal parcels of land, the deeds of conveyance identified these parcels as Tracts Nos. A-100 and A-100-1, respectively, that had been acquired by condemnation in Civil Action No. 764; and the metes-and-bounds descriptions of the two parcels in the deeds were phrased in language identical (except for a few minor variations) with that used in the declarations of taking and judgments thereon relative to Tracts Nos. A-100 and A-100-1 in Civil Action No. 764.

(c) The deeds referred to in paragraph (b) of this finding were tendered to and accepted by the plaintiff.

10. In making the contract of sale and purchase referred to in findings 6-9, the defendant intended to sell and the plaintiff intended to buy the former Zapata Air Force Station, as described in findings 2-4.

11. The plaintiff took possession of the former Zapata Air Force Station under his contract with the defendant.

12. In acquiring the former Zapata Air Force Station, it was the plaintiff’s intention to sell the property, but he intended to hold it for at least 6 months because of tax considerations, and he preferred to sell the entire property as a single unit.

13. Shortly after the plaintiff contracted for the purchase of the property involved in this action, he was approached by a representative of a syndicate composed of people living in the Zapata County area, who offered the plaintiff a profit of $50,000 on the parcel of land containing the 27 single-family dwellings, if he would sell this parcel of land to the syndicate and include the right for the occupants of the dwellings to obtain water from the water system located on the 30-acre parcel of land. The plaintiff indicated in response that he could not make a decision on the offer at the time, but that he would communicate later with the representative of the syndicate. As stated in finding 12, the plaintiff intended to hold the former Zapata Air Force Station. for at least 6 months, and he preferred to dispose of the entire property as a single unit.

14. While awaiting developments in connection with the ultimate disposition of the former Zapata Air Force Station, the plaintiff, at a time that is not precisely fixed in the evidence, rented some of the single-family dwellings to other persons.

15. The task of selling the former Zapata Air Force Station for the plaintiff was undertaken 'by a real estate agent on the basis of a 5-percent commission, plus reimbursement for out-of-pocket expenses. The agent’s initial effort was, under the plaintiff’s instructions, to sell the entire property as a single unit. In an effort to accomplish such a sale, the plaintiff’s agent ran a series of advertisements in the Wall Street Journal sometime during the first quarter of 1962. Although some responses to the advertisements were received, the plaintiff decided in March 1962 that it was not feasible to dispose of the former Zapata Air Force Station as a single unit, and that it was advisable to sell the 27 single-family dwellings as individual units. However, there appeared to be two obstacles to effecting such sales. One was that the defendant supposedly held a vendor’s lien on the parcel of land containing the dwellings; and the other obstacle was that the defendant supposedly 'held a vendor’s lien on the water system, which the occupants of the dwellings would have to depend on for water.

16. Under the date of May 5,1962, the plaintiff wrote the following letter to the General Services Administration’s field office in Dallas, Texas:

Since talking to you on the telephone yesterday? I have had an opportunity to talk with the prospective buyers of Item 2 of the above-described property.
In order to handle this transaction, the balance of the note on Item 2 would be paid in full and in addition release value payment would be made on Item 1 to secure a release of the water and electrical systems. This release value payment is to apply at the end of the note on Item 1.
In turn, the water and electrical system thus released out of Item 1 would be turned over to the local governmental agency and/or utility company so that these utilities would be available to Item 1 property.
In considering a release value for the water and electrical systems, I would like to point out that these systems are going to be turned over to the local utility company and to the County. I feel that this value should be set at not more than $10,000.00.
As I am in need of moving this property at an early date, I would appreciate your early reply.

17. The reply to the plaintiff’s letter of May 5, 1962, was dated May 22,1962, and stated in part as follows:

Your letter of May 5,1962, has been received regarding the release of Item 2 of the subject property by payment of the balance of the note which, at this time, is $88,160.00. * * *
Please advise regarding settlement date in order that firm figures may be established.
With regard to the release values for the water and electrical system, these properties will be released for a consideration of $18,200.00.

18. The plaintiff (through an agent) approached The Laredo National Bank and the Laredo Savings and Loan Association, both of Laredo, Texas, and asked these institutions to cooperate in providing, on a 60-50 basis, a loan in the amount of $150,000 to enable the plaintiff to pay off the indebtedness on the parcel of land containing the 27 single-family dwellings, to secure a release from the defendant of the vendor’s lien on the water system, and to defray other expenses that were anticipated in connection with the disposh tion of the dwellings. Commitments from the financial institutions to share in such a loan were obtained on May 22, 1962, from The Laredo National Bank and on May 24, 1962, from the Laredo Savings and Loan Association.

19. (a) At about the time that the activities referred to in findings 16-18 were in progress, the plaintiff caused a survey of the 11.25-acre parcel of land to be made and a plat of the area to be prepared, subdividing the parcel into 27 separate lots containing the 27 single-family dwellings, so that proper conveyancies could be executed in connection with sales of these properties as individual units.

(b) Also, contacts were established between the plaintiff (or his agent) and a number of the persons who had been members of the syndicate mentioned in finding 13, and who indicated a continuing interest in the possibility of purchasing dwellings in the former Zapata Air Force Station.

20. In the meantime, Eduardo Villarreal was dissatisfied with the amounts that the defendant had paid into the registry of the United States District Court for the Southern District of Texas in connection with the acquisition of the lands and easements referred to in finding 1. In an effort to bolster his belief that the damages which he had sustained were greater than the amounts previously paid into the registry of the court, Mr. Villarreal employed a competent and experienced person, C. V. Howland, Jr., who was both a surveyor and an appraiser, to make a survey of the property comprising the former Zapata Air Force Station. As a result of this survey, it was discovered for the first time that the defendant had constructed the radar installation largely on lands which were owned by Eduardo Villarreal et al. and in which the defendant had no proprietary interest, as indicated in finding 8.

21. After the discovery that the former Zapata Air Force Station was located largely on lands owned by Eduardo Villarreal et al., the attorney for Eduardo Villarreal wrote a letter dated May 24, 1962, to the office of the United States Attorney for the Southern District of Texas, stating in part as follows:

I am herewith enclosing to you plat showing former Zapata Air Force Station, Porciones 89 and 40, prepared by C. V. Howland, Jr., Registered Public Surveyor, which indicates that the greater part of the improvements constructed by the United States Government are on land other than the land enclosed, within field notes contained in condemnation suit pleadings.
* * * * *
A copy of this letter together with a copy of said plat is also being mailed to Mr. Roy C. Rash, c/o Border Construction Company, P.O. Box 647, Laredo, Texas.

22. A copy of the letter referred to in finding 21 was received by the plaintiff on or about May 25, 1962. The plaintiff promptly consulted his attorney and suspended any further efforts to dispose of portions of the former Zapata Air Force Station.

23. (a) Shortly after the plaintiff received a copy of the letter referred to in finding 21, plaintiff’s counsel telephoned Arthur L. Moeller, of the Lands Division, Office of the United States Attorney for the Southern District of Texas, in Houston, Texas, and discussed the problem with him. Mr. Moeller indicated that he would send to plaintiff’s counsel a written brief to the effect that the description in the plaintiff’s deeds was sufficient to convey the former Zapata Air Force Station to the plaintiff, despite the results of the Howland survey. However, the promised brief was never sent to the plaintiff.

(b) A few days after the conversation between plaintiff’s counsel and Mr. Moeller, plaintiff’s counsel received a telephone call from William L. Bowers, Jr., Chief of the Lands Division, Office of the United States Attorney for the Southern District of Texas, in Houston, Texas, who said that he had taken over the handling of the case. Mr. Bowers further stated 'that a Government surveyor was being sent to Zapata, Texas, to conduct a new survey of the land in question, and that any further evaluation of the deed description would be made after the new survey was completed.

24. (a) On June 6, 1962, plaintiff’s counsel wrote a letter to the General Services Administration’s regional office in Dallas, Texas, stating in part as follows:

1. Mr. Bash is being damaged by reason of what is reflected on the above map and the attitude of Mr. Eduardo Villarreal in regard thereto. Mr. Bash has lost a sale which would have been made on the 1st inst. in connection with which the unpaid purchase price indebtedness would have been refinanced locally. As the matter stands, interest on this 'indebtedness is running at the rate of about $30.00 a day, the improvements are depreciating and 'the taxes are accruing. Mr. Bash feels that under the existing circumstances General Services Administration should afford him some relief now; at least to the extent of stopping the interest until the cloud on Ms title is removed.
2. Until the matter of just compensation with Eduardo Villarreal is determined, Mr. Bash will continue to be damaged. It would appear that if the matter of the just compensation could be agreed upon between Mr. Villarreal and the Government that tHs matter could be promptly settled by Mr. Villarreal, after having received his just compensation, executing a conveyance to Mr. Rash, to the laud under fence and on which the improvements are located. Mr. Rash desires to avoid litigating this matter if possible, and at present desires relief from a situation which he did not bring about and over which he has no control.

(b) In a letter dated June 11, 1962, the General Services Administration informed the plaintiff that it had been advised of the discrepancy.

25. David D. Wheeler, a surveyor employed by the Army Corps of Engineers, surveyed the land in question on June 12, 13, and 14, 1962, and confirmed the error in the deed descriptions. Tire defendant never officially informed plaintiff’s counsel of the results of this survey.

26. In a letter dated June 21, 1962, and addressed to Mr. Bowers, plaintiff’s counsel asked that the defendant’s dealings with Mr. Villarreal be expedited because the uncertainty as to the correctness of the plaintiff’s deeds made it impossible for him to complete a transaction which he had been negotiating relative to the property.

27. (a) A letter dated June 25, 1962, from the plaintiff to the General Services Administration’s field office in Dallas, Texas, stated as follows:

A recent survey made by Mr. C. V. Howland of Laredo, Texas, and later confirmed by U.S. Corps of Engineers, indicates that a discrepancy exists in the condemnation and acquisition by the Government of the above described property.
This has served to cloud the title to this property just at a time that I had a deal pending to dispose of same. As a result I have been placed at a great disadvantage and in need of some relief from the provisions of the note.
I ask for a moratorium on alí future payments until such time that the title can be cleared. In this connection, I understand that the Justice Department is working toward clearing up the title to this property.
May I hear from you at your earliest convenience?

(b) The plaintiff did not receive a reply to the letter set out in paragraph (a) of this finding.

28. On June 28,1962, plaintiff’s counsel sent a letter to the Honorable Joe M. Kilgore, then a member of the United States House of Representatives from the 15th Congressional District of Texas. After explaining the plaintiff’s predicament to Mr. Kilgore, the letter stated as follows:

Since only part of the consideration was paid in cash and the 'balance is bearing interest and as the matter now stands he cannot sell the property, he would like for General Services Administration to either now refund him his money, simultaneously with the reconveyance of the property by him to such Administration, or to remove the cloud on his title, if such can be done promptly. What Mr. Rash desires to do is to avoid being involved in a long drawn out litigation of this matter. He is satisfied that Mr. Villarreal’s idea of just compensation is so much higher than that of the government that the matter of just compensation with Mr. Villarreal will probably be a long drawn out matter * * *.

29. On June 29, 1962, the day after writing the letter referred to in finding 28, plaintiff’s counsel learned that the defendant contemplated filing a motion to amend the declarations of taking referred to in finding 1 (a), in an attempt to correct the situation that had developed. Plaintiff’s counsel immediately sent a second letter to Representative Kilgore. This letter was dated June 29, 1962, and stated in part as follows:

* * * It appears that it is going to be difficult to promptly clear the title to this property by reason of which Mr. Rash would like to rescind the sale rather than have a long delay in connection with clearing of title. He feels that in view of the fact that General Services Administration represented that the Government owned this property and that all of the improvements located on such land were included in the property to be sold, that the only fair and equitable thing for the General Services Administration to do would be to promptly agree on. a mutual rescission of this sale.* * *

30. On July 2,1962, Representative Kilgore forwarded to Bernard L. Boutin, Administrator of the General 'Services Administration, the communications dated June 28 and 29, 1962, from plaintiff’s counsel (see findings 28 and 29), with a covering letter which stated in part as follows:

The situation described herein is certainly unfortunate and it would be appreciated if attention could be directed toward relief for Mr. Rash as soon as possible.

31. (a) Under the date of July 20,1962, William L. Bowers, Jr., wrote a letter to plaintiff’s counsel, stating in part as follows:

The Department of Justice authorized this office to proceed as indicated in our earlier correspondence to eliminate the erroneous tie call from the description of the property involved in this case.
Accordingly, the Air Force is to furnish us with a new Declaration of Taking, which is to be filed in this matter, as an Amendment to the earlier Declaration. It should be forthcoming shortly, and at that time this office will obtain leave of the Court to file the Amended Declaration and the Amended Complaint in Condemnation.
‡ $
With respect to the description of the property, the Corps of Engineers has been requested by this office to completely review the description in question, and to furnish us 'a new and verified one for the purposes of the new Declaration of Taking and Complaint in Condemnation. I assume that after the filing of our new pleadings the General Services Administration will be happy to make any necessary adjustments in the conveyance documents.
I trust that this should resolve the question of the property description, and wish to assure you that this office will do all possible to expedite the proceedings outlined above.

(b) Plaintiff’s counsel replied on July 30, 1962, to the letter mentioned in paragraph (a) of this finding. The reply stated in part as f ollows:

* * * I seriously doubt that when the public purpose no longer exists that the description of the land taken can be changed by an amendment. * * *
If you have any cases directly in point on the power to correct the description by amending pleadings in a condemnation suit where the public purpose no longer exists, as is true here, I would greatly appreciate your citing such authorities. * * *

32. On July 26, 1962, Lawson B. Knott, Jr., Acting Administrator, General Services Administration, replied to Representative Kilgore’s letter of July 2, 1962 (see finding 30), and stated in part as follows:

It is clear that Mr. Rash has no legal claim against the Government for damages or for rescission of the sale. The property lie purchased was the property described at the auction sale and is the property acquired by the Government in the condemnation proceedings. As above stated, -the terms of sale which applied to this transaction specifically provide that any error or omission in the description of the property would not constitute a ground for nonperformance nor form a basis for any claim by the purchaser for any allowance, refund or deduction, and further, the sale was made on an “as is, where is” basis, and Mr. Rash obtained two deeds without warranty for the property. In a sale of this kind, it is the responsibility of the buyer to assure himself that there are no defects in the Government’s title to the property it is offering to sell, and that the description of the property is adequate and clear. Failing to do this, he purchases at his own risk.
}\i * 'i' 'I*
However, to assist the purchaser, without making any admissions and without prejudicing in any mamier the legal position of the Government, we will be glad to join with other agencies of the Government in an attempt to amend the condemnation proceeding to clarify the description of the property. We understand that the Assistant United 'States Attorney at Houston, Texas, believes this can be done. He has, in order to clear up any ambiguity, suggested to the Department of Justice that it obtain an Amended Declaration of Taking -from the Corps of Engineers, forward it to Mm to file, and authorize him to amend the complaint in the condemnation proceedings. We have had informal conversations with the Department of Justice in Washington, and have been informed that the Corps of Engineers has been requested to furnish such an Amended Declaration of Taking which clearly describes the property, and it is Justice’s impression that the Corps of Engineers will comply with this request. It is expected that when the Amended Declaration of Taking is furnished to the Department of Justice the Department will forward such Amended Declaration to the United States Attorney at Houston, Texas, and authorize him to proceed with the matter.
If a Declaration of Taking is amended and filed in the condemnation proceedings, GSA will be notified. We shall then be happy to execute and deliver corrective deeds to Mr. Rash, if Mr. Rash will deliver corresponding corrective deeds of trust to GSA.

33. (a) On July 31, 1962, after receiving a copy of tbe letter referred to in finding 32, plaintiff’s counsel sent another letter to Representative Kilgore stating in part as follows:

* * * [Because of a major operation requiring hospitalization] I do not have the opportunity of doing any briefing on whether the gross error in the field notes can be corrected by amending the condemnation proceedings at this late date. Since the public purpose for which this land was condemned no longer existe I seriously doubt that this error can now be corrected by such procedure. * * *
It would be grossly unfair to hold Mr. Rash to this sale and require him to spend the money unnecessarily involved in such litigation in an effort to clear up this matter and in the meantime being unable to sell any part of this property to anyone. As an attorney you know the complication and uncertainties, and the heavy expense in suite of this nature. I 'believe that you will agree that the only fair thing for General Services Administration to do is to now agree to rescind the sale to Roy Rash.

(b) The letter mentioned in paragraph (a) of this finding was forwarded to the General Services Administration by Representative Kilgore.

34. (a) On August 6,1962, Representative Kilgore transmitted to the Honorable Ramsey Clark, Assistant Attorney General in charge of the Lands Division, Department of Justice, copies of correspondence from plaintiff’s counsel and from William L. Bowers, Jr., and requested the comments of Assistant Attorney General Clark.

(b) Assistant Attorney General Clark replied on August 10, 1962, to the letter mentioned in paragraph (a) of this finding. The reply stated in part as follows :

The problem of correcting the description of the property,_ which was included in the condemnation proceeding bearing Civil Action No. 764 and subsequently sold by the General Services Administration to Mr. Mann’s client, has been informally discussed with a representative of the Department of the Army. We had previously recommended to that Department the filing of an amendment to the declaration of taking in the proceeding to correct the description. I am advised that the preparation and execution of an amended declaration of taking will require about six weeks’ time. Therefore, to avoid this delay botli tbe local District Engineer and tbe United States Attorney bare been requested to make every effort to work out an amicable settlement witb tbe former owners, including an agreement, as a part of the stipulation, for the entry of a final judgment in this case vesting tbe title to tbe tract in tbe Government by a proper legal description. Thereafter, tbe General Services Administration would 'be in a position to furnish the purchaser of the property with a corrected deed.
Tbe Department of tbe Army has assured me that if a stipulation cannot be obtained in tbe near future, an amended declaration of taking will be furnished as expeditiously as possible.

35. On August 16,1962, Lawson B. Knott, Jr., tbe Acting Administrator of tbe General Services Administration, wrote a further letter to Representative Kilgore. This letter stated in part as follows:

* * * As we advised you in our letter of July 26, if and when tbe error is corrected in tbe condemnation proceedings, OSA will promptly deliver to Mr. Rash corrective deeds covering the surplus property which he purchased. We believe that, under the circumstances discussed in our previous correspondence, this is as much as Mr. Rash can expect the Government to do.
It is our view that the matter of amending the condemnation proceedings, or correcting by stipulation with the condemnee the technical error which was committed in the condemnation proceedings, is a matter which should be left to the Department of Justice. We understand that while the Department is making some effort to settle this matter by stipulation with the condemnee, the Department’s attorneys nevertheless are of the opinion that the condemnation proceedings can be amended to correct the error in the description and they expect to take such action in the event their efforts to settle the matter by stipulation are not successful. We know of no reason to question the Department’s position that the condemnation proceedings can be amended, and we feel that such position is sound because the Department has had the experience of amending condemnation proceedings in countless cases over the years.
We regret any inconvenience that may have been caused Mr. Rash and will make every effort to see that all work which OSA is to perform in connection with the elimination of this title difficulty is taken as promptly as possible.

36. (a) On August 16,1962, tbe plaintiff wrote a letter to Lawson B. Knott, Jr., stating as follows:

Over two months ago when I learned that the survey-prepared by C. Y. Howland was inconsistent with the survey of the U.S. Engineers I immediately contacted Mr. Moeller of the U.S. Attorney’s office in Houston seeking immediate relief because I knew that under the circumstances I would not be able to sell any of the houses and every day that went by my damages would be increased by virtue of the interest running on the balance owed to the Federal 'Government, as well as insurance and maintenance costs. When it appeared that a thorough investigation had to 'be made by your department and a delay was inevitable, I requested a rescission of the sale to avoid damages to me. I have since learned that it is your recommendation that either the Declaration of Taking be amended, which would take another two months, or that the Attorney General’s office should try to work out a settlement with the land owner to enable you to execute a corrected deed to me. I respectfully request that you place yourself in my position and see that neither of these two suggestions will furnish me the prompt relief which I sought from the very beginning. In the first place, amending the Declaration of Taking would raise legal questions which a title examiner, in the event that I had a prospective purchaser in the future, would require to be settled by a judgment of a state court and this would inevitably involve me in litigation without any certainty as to whether such procedure would be upheld by the Courts. Secondly, as to the suggestion of endeavoring to work out a settlement with the land owner, there is the uncertainty as to whether such a settlement could be reached, and the time required, and even if such settlement is reached it would still leave me with the substantial damages which I have incurred and will incur between now and the time such settlement, if any, is ever reached. Even if such settlement is reached, I am advised by my attorneys that various legal questions would cloud my title inasmuch as there is no necessity or public purpose for the taking at this time of the property in question and whether the Federal Government would have the right to exchange properties at this time with the land owner, all of which a title examiner examining title for future purchasers would ask questions which would have to be answered by a state court judgment, which again would result in further delay and additional expenses to me.
I relied on. the representations of yonr agent that what was under fence belonged to the government and that was what I was purchasing, and although I realize that this representation was made in good faith, nevertheless under the circumstances it would be grossly -unreasonable and unfair not to promptly rescind the sale. I, therefore, ask you to respectfully reconsider your position in this matter and agree to promptly rescind this sale.

(b) The letter mentioned in paragraph (a) of this finding was answered by Mr. Knott on August 29, 1962. His reply stated in part as follows:

You are advised that we are not in a position to grant your above request; however, the Government is endeavoring to do all it possibly can to correct the error in the description of the property covered by the sale. * * *
?|< H*
This property was sold to you without any warranty, and under such circumstances the burden is upon the purchaser to assure himself that he is getting an acceptable title. The seller does not undertake any obligation to cure a title defect which may develop. Accordingly, we believe that the action which is presently being taken in your behalf is as much as the Government can be expected to do under the circumstances. Such action is being taken in an effort to be helpful in clearing up this matter, despite the fact that the Government has no legal obligation to take this action under either the contract of sale or the deeds conveying the property to you.

37. (a) On August 17,1962, Representative Kilgore transmitted to the 'Comptroller General of the United States, for his consideration, the file of correspondence concerning the plaintiff’s request for rescission of the sale to him of the Zapata Air Force Station.

(b) The views of the Comptroller General were stated in a letter dated October 12, 1962, to Representative Kilgore. The letter was numbered B-149766 and stated in part as follows:

The specific property purchased by Mr. Rash and conveyed to him was the property described in the auction sale and the same property as acquired by the United States in the condemnation proceedings. The attorneys for Mr. Rash have indicated that it is their view that the property conveyed to Mr. Rash only comprised a small portion of the fenced land as used by the Air Force for several years and that most of the improvements are located outside the fenced area on land other than that acquired 'by the United 'States in the condemnation proceedings. The Assistant United 'States Attorney at Houston, however, while conceding that the description in the condemnation proceedings is not clear, has expressed the opinion that title to the property at the Zapata Air Force Station as it was constructed and as it was conveyed to Mr. Rash was vested in the United States, and the title of the United States was approved by the Attorney General in 1957 and 1958. In the absence of any binding adjudication to the contrary we must accept the opinions of the Government representatives. In any event, Mr. Rash has not been evicted from the property and the record shows that he is still hi possession and maintaining the property. In the circumstances, it is our view that there is no legal basis for rescission of the contracts as requested on behalf of Mr. Rash. Even if the property had been conveyed with general warranty of title no breach has yet occurred.
To remove any doubt as to the Government’s title to the involved property and to clear any ambiguity in the description it is understood that at the suggestion of the Department of Justice there are presently being processed for filing by that Department through the United States Attorney amended Declarations of Taking in the proceedings to clarify the description. While the attorneys for Mr. Rash have expressed some doubt whether such action may be taken at this time the Department of Justice has approved such action and has authorized the United States Attorney to proceed accordingly.
While we are not required to comment on the corrective action being taken in this matter by the Department Of Justice and the United States Attorney such action appears to be supported by the courts. * * *

38. On November 21, 1962, the defendant filed with the United States District Court for the Southern District of Texas a motion to amend the declarations of taking mentioned in finding 1 (a), so that the lands described in the declarations of taking would be the same as the lands upon which the former Zapata Air Force Station had been constructed.

39. The defendant’s motion to amend the declarations of taking (see finding 38) was denied by the court on <Tanuary 7, 1963.

40. The defendant undertook to make arrangements with Eduardo Villarreal et al. whereby the ownership of the lands on which the former Zapata Air Force Station had been constructed could be transferred to the plaintiff (except for the 7-acre parcel mentioned in finding 3(a), the ownership of which was already vested in the plaintiff). The arrangements with Eduardo Villarreal et al. essential to such a transfer were completed by the defendant on or about April 1, 1963.

41. (a) On April 1, 1963, the defendant (acting through the Regional Administrator, Region 7, General Services Administration) signed deeds conveying to the plaintiff the lands, easements, and improvements comprising the former Zapata Air Force Station. One deed covered the 30-acre parcel of land containing the headquarters buildings, the school building, the recreation building, the barracks buildings, the BOQ, the dining hall and kitchen, and the water system, together with appurtenant easements; and the other deed covered the 11.25-acre parcel of land containing the 27 single-family dwellings, together with appurtenant easements.

(b) The deeds referred to in paragraph (a) of this finding were formally tendered to the plaintiff in May 1963. However, the plaintiff declined to accept such deeds, because he believed that the fair market value of the former Zapata Air Force Station had declined substantially since May and June of 1962.

42. The evidence in the record warrants a finding that the fair market value of the properties comprising the former Zapata Air Force Station declined substantially during the period between May-June of 1962 and May of 1963. However, there is a lack of persuasive evidence in the record relative to the extent of such diminution in value.

43. (a) The plaintiff as of July 1963 had made the following expenditures in attempting to dispose of the former Zapata Air Force Station and in attempting to overcome the difficulties incident to the discovery that the installation had been constructed by the defendant largely upon lands owned by Eduardo Villarreal et al. and not by the defendant:

Insurance premium_$6, 760. 26
Maintenance_ 524.54
Photographs_ 21. 42
Legal expenses_ 2,211. 80
Utilities_ 5, 862.46
Supplies_ 750. 93
Surveying_ 175. 00
Traveling expenses_ 978. 54
Repairs _ 1,148.37
Sundry expenses_ 31. 76
Maintenance superintendent_ 300. 00
Labor and wages for maintenance_ 5,125.00
Payroll taxes and insurance_ 691.88
Wages - 569. 87
Payroll tax insurance_ 76. 93
Total_ 25,228. 75

(b) The plaintiff h’as made the following payments to the defendant under the contract for the purchase of the former Zapata Air Force Station:

OaSh paid on delivery of original deeds_$43,820.00
Installment payments on principal of indebtedness_ 17, 528.00
Interest- 9,235.07
Total_ 70,583.07

44. (a) The plaintiff has been in continuous possession of the former Zapata Air Force Station since about September 1961. During that time, the plaintiff has rented to third persons single-family dwellings located on the property, and the plaintiff has collected rental payments from such persons.

(b) As of July 1963, the plaintiff had derived from the property a gross income (before expenses) of $11,431.24, or $13,797.51 less than the expenses described in finding 43(a). Thereafter, for the subsequent period through February 11, 1965, the plaintiff’s expenses in connection with the property exceeded his income from the property by $14,774.13.

(b) Therefore, for the period beginning in September 1961 and extending through February 11, 1965, the plaintiff’s expenses flowing from the transaction that is involved in the present litigation (exclusive of the expenditures referred to in finding 43(b)) exceeded 'by $28,571.64 the income which the plaintiff derived from the property that is involved in tins litigation.

45. The net expenses of $28,571.64 referred to in finding 44(c) included attorneys fees amounting to $8,890.37 and travel expenses amounting to $978.54 incurred by the plaintiff in attempting to obtain administrative relief and in preparing for and conducting the present litigation.

46. The plaintiff’s requests for rescission of the contract involved, and were understood by the defendant to involve, a willingness by the plaintiff to surrender to the defendant possession of the property comprising the former Zapata Air Force Station, and to reconvey to the defendant the realty which the defendant had previously conveyed to him.

CoNcltjsioN oe Law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that the plaintiff recover of and from the United States the sum of eighty-nine thousand two hundred eighty-five dollars and eighty cents ($89,285.80), but this is contingent upon prompt action by the plaintiff in surrendering to the defendant the possession of the property comprising the former Zapata Air Force Station and in reconveying to the defendant the property which the defendant conveyed to the plaintiff by the deeds dated September 27,1961. 
      
       The southeast portion of the larger parcel of land on which the radar installation was constructed and the northwest portion of the larger tract which the defendant had acquired from Eduardo Villarreal et al. overlapped to the extent of about 7 acres.
     
      
       The exculpatory provisions of tlie contract (relating to inspection, knowledge of conditions, sale “as is” and “where is”, and title evidence and survey expense) did not place the risk of this mistake on the plaintiff. Here there was both a positive misstatement of the greatest significance by the defendant and “a case of ordering apples and getting oranges”. See 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) ; Varkell v. United States, 167 Ct. Cl. 522, 525, 334 F. 2d 653, 655 (1964).
     
      
       The principal deficiency relates to persuasive evidence concerning the fair Market value of the single-family dwellings in May 1963.
     