
    WILSON & CO., Inc., a Corporation, v. The UNITED STATES.
    No. 327-54.
    United States Court of Claims.
    Jan. 31, 1956.
    Louis R. Simpson, Chicago, 111., for plaintiff. Howard C. Parson, Chicago, 111., was on the briefs.
    Lino A. Graglia, New York City, with whom was Asst. Atty. Gen. Warren E. Burger, for defendant.
    Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.
   MADDEN, Judge.

The plaintiff sold canned sliced bácon to the Government for the Army. The Army deducted, from what it owed the plaintiff for the- bacon, the sum of $11,-318.17 which, it claimed, the plaintiff owed the Government in connection with a prior sale of canned shortening. The transaction really involved in this litigation is, then, the ope concerning the shortening. ..

Under the shortening' contract the-plaintiff agreed- to furnish the Army some two million pounds of shortening,, packed in' 35-pound cans, each can enclosed in a nailed wooden box. The Government says in its brief that the specifications of the contract stated- that this-kind of crating was required because the shortening was being packed for overseas shipment. This provision of the specifications is not in the record, • but the plaintiff in its reply brief does not contradict the statement, and we take it to be true. The plaintiff was to make delivery F. O. B. cars at the plaintiff’s plant at Chattanooga, Tennessee, for shipment to the Army’s' New Cumberland,- Pennsylvania, General Depot.

When some 30,000 cans of the shortening had arrived at New Cumberland, the Army discovered in a routine spot inspection of' the interior of the boxes containing the cans, that some of the cans had been punctured by nails driven to fasten down the tops of the boxes. It was not possible to learn how mány of the cans had been thus damaged except' by removing the top of each of the 30,-000 boxes. The Army notified the plaintiff of the situation and requested the plaintiff to furnish, at the New Cumberland Depot, the labor to inspect, remove and replace all nail-punctured cans,, or if it did not furnish the labor, to be re-sponsible for the cost of the work.

. The plaintiff rejected .the Army’s request, saying that, it would do no more than to replace each bad can of shortening discovered, with' á good can. The Army opened áll the boxes, found that 1003 cans had been -punctured, and'billed! the plaintiff for $11,318.17, the cost of the work.. The plaintiff replaced the 1003 cans of shortening.

The plaintiff disclaims responsibility, pointing to'- the contractual provision that “If Government inspection or' testis made" át a point other thari the premises of the contractor or a subcontractor,' it shall- be at the expense of the Government.” The Government points to Paragraph-5(a) of the General Provisions of the contract which says “All supplies * * * shall be subject to inspection and test by the Government,- to the extent practicable at all times' and places- * * The Government points also to Paragraph 25 of the General • Provisions of the contract, which says:'

“If supplies which are improperly miarked,. packed,-, or crated are received, the Government- shall have the: option, notwithstanding any of the provisions of the ■ Inspection Clause' of- this contract, to accept such supplies and to proceed with remarking, repacking, and recrating them without advance notice to the contractor. In the event of such action, the Contractor agrees to pay charges for such remarking, repacking, or recrating computed as follows:
“a.- Direct Charges:
* * .* , * * *
“(2) Packing and Crating Charges:
“(a) The cost of labor arid material expended.
******

The plaintiff says that this provision, if applicable at all, would cover only the 10Ó3 cans that were improperly crated, and not the others which turned out to be properly crated.

We see no merit in the plaintiff’s position. Because of the negligence of its workmen, it shipped to’the Aririy 30,000' cans of material, the whole lot of which' was, in the circumstances, unfit for shipment overseas, the purpose for- which it was bought. It would have been imprudent for the Army to have incurred the' cost and used the shipping' space to send these boxes overseas, knowing that at least a considerable number of them contained unusable' material. It had no way of' knowing that a large proportion of the ones which it might send to a particular destination would not turn out to be unusable'. It was in- no way at fault for not having discovered the defects by an earlier inspection. It would take strong language of disclaimer to permit a seller, with impunity, to palm off on a buyer a lot of goods which the buyer could not use for the purpose for which he bought them without taking each unit out of its nailed box to find out whether it was fit for use. If a seller, because of the negligence of his employees, issued such goods and then refused to bear the expense of making the goods usable, he would not be able to sell any more goods to that customer.

The plaintiff’s petition will be dismissed.

It is so ordered.

JONES, Chief Judge, and LARA-MORE, WHITAKER and LITTLETON, Judges, concur.  