
    ROCHESTER IRON AND METAL CO. v. THE UNITED STATES
    [Cong. No. 1-59.
    Decided December 11, 1964]
    
      
      F. Trowbridge vom Baur for plaintiff. Marmel D. Gold-mam, of counsel.
    
      Gerson B. Kramer, with whom was Assistant Attorney General John W. Douglas for defendant.
    Before Cowen, Chief Judge, Laramore, Dtjrfee, Davis and Collins, Judges.
    
   Dtjrfee, Judge,

delivered the following opinion with which Laramore, Judge, concurs, and announced the judgment of the court:

This Congressional reference case presents the issue of whether or not a contractor who received 1,940 tons of steel less than the approximate total tonnage bid upon in an “as is, where is” contract has a legal or equitable claim against the Government for this shortage.

In 1951 the State Department transferred responsibility for a large quantity of returned lend-lease steel to the Department of Defense, which in turn assigned the steel to the Philadelphia Ordnance District, Philadelphia, Pennsylvania. After disposing of part of the steel via a shipment to the Tennessee Valley Authority, the Ordnance District prepared an invitation for bids for the remaining steel. Early in 1953, pursuant to preparing such invitation for bids, the property disposal officer of the Ordnance District, Mr. Welsh, made calculations of the estimated tonnage of the remaining steel. The steel was stored in 27 piles, and in making the tonnage calculation, Mr. Welsh took measurements of each pile. He made allowances for the estimated space between the individual pieces of steel in each pile, and then converted the number of pounds per cubic foot into tonnage for each pile. Each pile was then allocated into one of three lots.

The Ordnance District then issued the invitation for bids for the steel in each of the three lots. On April 27, 1953 lot No. 1, as advertised in the bid, contained approximately 8,700 tons of billets. Lot No. 2 contained approximately 5,400 tons of rounds, and in lot No. 3 there was approximately 1,765 tons of rounds. The invitation for bids advised and urged the bidders to inspect the lots prior to submitting the bids.

Section two of the invitation which pertained to the condition of the property, stated in pertinent part as follows:

2. coromoif oe property. — All property listed herein is offered for sale “as is” and “where is,” and without recourse against the Government. * * * The description is based upon the best available information, but the Government makes no guaranty, warranty, or representation, expressed or implied, as to quantity, kind, character, quality, weight, size, or description of any of the property, or its fitness for any use or purpose, and no claim will be considered for allowance or adjustment or for rescission of the sale based upon failure of the property to correspond with the standard expected; this is not a sale by sample.

Under Section 21 of the invitation, title to the steel was to pass to the successful bidder upon payment in full of the purchase price; said purchase price in turn was to be based upon “the total estimated weights set forth in this invitation.” [Emphasis added.]

Adjustments of money due under the contract were provided for in Section 22, which stated:

Final adjustment of monies due from a buyer shall be firmed upon the actual weight of steel delivered. The weight certification of the carrier will be considered final. Claims for an adjustment of monies due, or paid, must be made on or before 17 August 1953. Should there be no claim for adjustment, the approximate weights of each lot, as indicated in this invitation, shall be accepted as the final weight. [Emphasis added.]

Plaintiff’s representatives, as advised and urged by the invitation, inspected the three lots before submitting their bid. They thereafter submitted their bid, and on June 1, 1953 defendant accepted plaintiff’s bid as to lots 1 and 3,' while accepting the bid of another company, Boston Metals Company, as to lot 2. Full payment was made by plaintiff to defendant on June 5, and pursuant to the terms of the contract, title to lots 1 and 3 became vested in plaintiff.

Plaintiff had intended to resell all of the steel it had purchased, and to have it loaded for shipment within á twelve-weeks’ period after the passage of title. Despite plaintiff’s continuous advertising, there was little demand for the steel, and plaintiff was unable to sell the steel and thus obtain its exact tonnage by weighing the loaded cars before the final date of adjustment, August 17.

By letter of July 8 plaintiff wrote to the Philadelphia Ordnance District, and requested an extension of time for final adjustment to November 17, 1953. The request for extension of time was denied by defendant on July 27,1953.

Thereafter, no further important events transpired in this case until more than two years later on November 21, 1955. On that date the Philadelphia Ore Dock Company (see footnote 3), discovered that there had been an overshipment of the estimated tonnage from lot 2 (owned by Boston Metals) of 2116.575 tons of steel. Plaintiff had by this time shipped only about one-half of its steel and subsequently requested a piece count of the remaining steel in April of 1956. On April 24, 1956 plaintiff was informed by Ore Dock that plaintiff was short in the neighborhood of 2,000 tons. A check of Ore Dock’s records showed that no steel owned by plaintiff had been shipped out other than by plaintiff’s orders. On October 11, 1956, after the last of plaintiff’s steel was loaded for shipment, it was found that the total net tonnage stored by Ore Dock of plaintiff’s lots 1 and 3 was 1940.002 tons short of the estimated weight contracted and paid for by plaintiff in its contract with defendant.

Since there were no mistakes either in loading the steel or in keeping the records of such loading and storage, the shortage by plaintiff and the overage by Boston Metals must be attributed to the method used by defendant of measuring the tonnage in each lot, as hereinbefore described. Defendant evidently had under-estimated lot 2 to be some 2,100 plus tons less than the actual tonnage, and evidently had overestimated lots 1 and 3 combined to be some 1,900 plus tons more than the actual tonnage.

Plaintiff’s subsequent request for adjustment of- the purchase price paid for the steel, in the form of a claim for $117,913.20 for the 1940.002 tons of shortage in lots 1 and 3, was rejected by the Comptroller General. The reasons for rejection were, (1) that the contract was an “as is” and “where is” one, and (2) the final adjustment date under the contract was August 17, 1953.

We believe that these facts do not provide a basis for a claim, either legal or equitable, against the Government. Under the invitation for bids, prospective bidders were “invited and urged” to inspect the property before submitting bids. Plaintiff did inspect the property, and while a shortage would not have been apparent to the naked eye, the word “urged” as used in the invitation should have alerted plaintiff to the fact that the property might not exactly conform to defendant’s description. This is especially true since the contract was an “as is” and “where is” one, with a specific ■disclaimer of warranty as to weight and size. Furthermore, the Government’s invitation plainly stated that “the description is based on the best available information.” If all this were not enough to alert plaintiff that there might be a possible discrepancy between the actual tonnage, of the steel and the amount of tonnage listed in the invitation, then certainly, the word approximate as used to describe the amount of tonnage in the invitation should have revealed to plaintiff the fact that the amount might not be exact.

The very nature of an “as is” and “where is” contract serves notice upon a prospective purchaser that the risk of loss is on the purchaser. In other words, “Let the buyer beware.” Such has been the established law for almost forty years. As this court stated in M. Samuel & Sons v. United States, 61 Ct. Cl. 373, 381-382 (1925):

This description alone would have been sufficient to put plaintiff on notice that there, was no guaranty as to the character or the amount of material. It was visited with knowledge of the meaning of the expression “as is, where is.” It means that the seller sells without guaranty as to the amount or condition of the material; that he sells what may be found in the lot; that he does not profess to know accurately himself the amount or character of the material, and that the purchaser must take his chances on what he will get.

It is apparent that the risks involved in purchasing the property were plainly known tó plaintiff before the sale was made. The contract was consummated between the parties fairly and openly. Certainly this standard disposal contract was neither unduly broad nor oppressive. There is a broad policy reason for placing the risk upon the purchaser in such a contract. This policy was examined and explained in Dadourian Export Corporation v. United States, 291 F. 2d 178, 182 (C.A. 2nd Cir.), (1961):

By way of preliminary it is to be noted that this is no ordinary contract between buyer and seller for the purchase and sale of a valuable commodity. When the government sells surplus goods it is trying to dispose of a vast miscellany of used and unused property in an effort, so far as may under tbe circumstances be possible,, to minimize its loss. Sales of this character are processed on a mass quantity basis by members of the armed forces who seldom if ever have the expertise in the particular items which come to their warehouses and depots. Buyers of such surplus property know perfectly well that there is always the chance of buying property that may turn- out to be of little value, or may develop into a great bargain with a huge windfall of profit. Accordingly, the government very properly has protected itself by formulating its contract for the sale of such surplus property so as to shift the risk from itself to the buyer. As Professor Corbin tells us, a party to a contract may agree to assume risks that in the absence of agreement the law would not cast upon him. See 3 Corbin, Contracts (1960), Section 598. * * *

Such was the case here. Had plaintiff in this case received more steel than it bargained for, as did Boston Metals, then since this was an “as is, where is” contract, it could have rightfully kept the. excess steel without incurring any legal or equitable liability to defendant for additional payment, because neither party requested an adjustment on or before August 17, 1953.

Plaintiff asserts that its letter of July 8,1953 to defendant in which it requested an extension of time for final adjustment until November 17, 1953, constituted a claim for. adjustment of moneys paid in accordance with Section 22 of the contract. As will be remembered, Section 22 required all final claims to be made on or before August 17, 1953. Plaintiff analogizes this situation to cases which have allowed recovery under a changes clause in Government contracts. In those situations, a notice of an intention or desire to submit a claim has been held to constitute the actual assertion of the claim. We cannot accept this analogy however, as plaintiff here merely made a request for an extension of time, stating:

We note that Paragraph 22 of the Invitation to Bid states that final adjustment will be made upon actual weight of steel delivered.
We do not believe it will be possible for, us to move the entire lot before August 17, 1953. We request an extension for final adjustment until November 17, 1953.

Plaintiff did not express anywhere in this request a desire to submit a claim for adjustment, or any express concern about a possible shortage. There is no way in which this unequivocal language can be construed as “a claim for adjustment of monies due, or paid” under Section 22 of this “as is, where is” contract.

It should perhaps be mentioned now that even if defendant had granted plaintiff’s request for extension of final adjustment until November 17, 1953, we are unable to see how plaintiff’s position would have been materially aided. Plaintiff was unable to sell all of its steel until October 11, 1956. It was only then that the exact final shortage was ascertained. The three months’ extension of time could in no way have helped plaintiff sell the steel in what appears to have been a buyer’s market. Since the exact amont of tonnage could not be known until the steel was sold and loaded for shipment, and since plaintiff was unable to sell the steel by November 17, 1953, the requested date for extension, plaintiff can hardly be said to have been prejudiced by the Government’s denial of extension for, final adjustment.

Plaintiff finally contends that the Government has been unjustly enriched since it received payment for 1940.002 tons of steel which plaintiff never received. In answer to this, we have only to reiterate the point already made that this was an “as is, where is” contract. Plaintiff received all that the Government promised to give, which was a/pfroxi-mately 10,464 tons of steel. As was previously shown, the “as is, where is” aspect of the contract should have put plaintiff on notice that the amount of tonnage listed in the contract probably was not an exact amount. When plaintiff did not make a claim for final adjustment before August 17, 1953, the approximate weight was accepted as the final weight. It is unfortunate that plaintiff was unable to find a buyer for the steel immediately after it acquired it; however, we see no reason to penalize the Government for the market decline in the demand for steel.

Accordingly, on all the facts and circumstances contained in the record, and upon the findings of the Commissioner which we have reviewed, and in which we concur, we conclude that plaintiff has not stated a claim, either legal or equitable, against the United States.

As emphasized in Dadourian Export Corporation v. United States, supra:

* * * this is no ordinary contract between buyer and seller for the purchase and sale of a valuable commodity.

The contract here was one in which the two parties knew and assumed both the risks and benefits in an “as is, where is” agreement.

This opinion, together with the findings of fact of Commissioner Richard Arens, which are herein adopted with minor corrections, will be certified to the Congress pursuant to Senate Resolution 117, 86th Congress, 1st Sess.

Cowen, Chief Judge,

concurring:

I concur in the result reached in the opinion of Judge Durfee, but in view of the fact that this is a Congressional reference case, I feel that the opinion takes too restrictive a view of the equitable aspects of plaintiff’s claim. A 20-percent shortage in the weight of the steel sold to the plaintiff hardly makes the Government’s estimated weight approximate. Therefore, in the absence of other facts, I would find it difficult to hold that plaintiff has no equitable claim solely on the basis of the “as is, where is” provisions of the contract.

There are, however, other facts which, in my opinion, strongly support Judge Durfee’s conclusion.

As noted in his opinion, section 22 of the contract provided that final adjustment of moneys due from the buyer should be made upon the actual weight of the steel delivered, as shown by the certificates of the carriers. Unless a claim for adjustment, based on the actual weight shown in the carriers’ certificates, was made on or before August 17,1953, both the Government and the buyers agreed to be bound by the approximate weight stated in the contract under which title to the steel passed to plaintiff on June 5, 1953. There were cogent reasons for the inclusion of this provision in the contract. It was important to the Government that the rights and obligations of the parties be determined at an early date so as to minimize the Government’s loss by relieving it from continued responsibility for the steel inventory. If the parties had availed themselves of this provision of the contract, both plaintiff and Boston Metals would have received and paid for the steel upon the basis of the actual rather than the estimated weights. However, there was a drop in the steel market. In order to avoid a loss and to sell the steel at a profit, both plaintiff and Boston Metals assumed the risk of accepting the Government’s estimated weight as final and shipped out the steel over protracted periods of time. Boston Metals made its final shipment on November 21, 1955, nearly 2y2 years after the sale. It was then discovered that Boston Metals had received more than 2,116 tons of steel in excess of the estimated quantity for which it had paid. Plaintiff took even longer. The last of its steel was not loaded until October 11, 1956, 3 years and 4 months after the date of sale. At that time, it became evident, not only that plaintiff had received 1,940.002 tons of steel less than the estimated quantity for which it had paid, but that the Government had delivered to the two purchasers 176 tons of steel for which it had received no payment. This loss to the Government resulted from the fact that both plaintiff and Boston Metals elected to finalize the contract on the basis of the estimated rather than the actual weights of the steel.

After title to the steel passed to plaintiff, it elected to use the Philadelphia Ore Dock Company as its warehouseman. Thereafter, the Government had no control or surveillance over the steel inventory. Throughout the 3-year period, plaintiff had the means for acquiring definite information about the quantity of steel contained in its two lots, but there is no evidence that it made any effort to inventory, survey, or otherwise determine the quantity of steel it had in its possession until April 1956. During that month, the Philadelphia Ore Dock Company, at plaintiff’s request, took a piece count which revealed that plaintiff was short about 2,000 tons of steel. Even then, plaintiff did not notify de-fftprla.pt about the shortage but waited until October 26, 1956, when it advised the Philadelphia Ordnance District that the shortage existed.

In the light of these facts, it seems to me that any equitable claim which plaintiff might have had was nullified by its long delay in ascertaining and giving the Government notice of the shortage. As a result, the Government was deprived of the opportunity to determine the cause of the shortage and to verify the extent thereof. To hold otherwise, would make the Government the insurer of plaintiff’s inventory and its profit for a period of more than 3 years after the right of either party to claim an adjustment on the basis of the actual weight of the steel had terminated.

Davts, Judge,

concurring in part and dissenting in part:

I agree that the plaintiff has no legal cause of action— since it failed to file a claim for adjustment on or before August 17,1953 — but I think that it does have an “equitable” claim in the sense that that concept has developed in our Congressional-reference jurisprudence.

The ultimate fact is that plaintiff has paid, at the agreed rate, for some 1940 tons of steel which it did not receive and the Government has obtained compensation for 1940 tons which it did not deliver. Usually, such a situation suggests an inquiry whether the Government is retaining monies it cannot morally keep. I am not convinced by the reasons given in Judge Durfee’s and the Chief Judge’s opinions for concluding that that should not be the result here. The pertinent factors seem to me to favor plaintiff.

The absence of a claim by August 17, 1953, is not a bar to “equitable” recovery; that provision of the contract is close kin to the statute of limitations which has long been held avoidable, in a Congressional reference, where adequate cause is shown. To my mind there was good reason for plaintiff’s failure to have the steel weighed (or the tonnage otherwise calculated) before it was shipped out. The only practical method of determining the tonnage was at the time the steel was loaded for shipment. “It would have been virtually impossible to calculate the exact amount of steel in each of the several piles, and it would have been very costly and would have taken months to weigh the steel in each of the piles.” Finding 8(a). For quite a while after plaintiff bought the steel it could not resell much of it, although it advertised continuously and nationally. Its first big sale was at a loss of $11 a ton. Finding 14. The fair inference from the record is that plaintiff continued to sell the steel, in lots, as soon as it received a reasonable price for the particular batch. There is no reason to believe that sales were postponed because plaintiff felt that the Government would ultimately reimburse it for any deficiencies and thus insure its profits. In fact, the first indication that the piles were short did not come until April 1956; and it was not until October 1956 that the last of the steel was loaded for shipment, and plaintiff really knew how short its purchase was. Findings 23-24. With respect to the “equitable” aspect of plaintiff’s claim, this delay in weighing was both reasonable and excusable. Plaintiff was not casually or underhandedly deferring ascertainment of the weight until the most favorable time; rather, in the light of business realities, plaintiff had little choice. The prohibitive expense of having the piles weighed before the steel was loaded would probably have led to a large overall loss on the transaction. It was therefore appropriate and practical, in the commonsense world of business, to await the weighing which was necessarily incident to shipping. Similarly, plaintiff should not be penalized — in this special type of proceeding in which it seeks relief only from the overpayment— because it did not accelerate the shipments by selling at a great loss or at too low a price.

Nor does the characterization of the contract as an “as is” sale of surplus property settle the issue of “equitable” entitlement for steel not received. The contract must be read as a whole. The plaintiff knew that the weights indicated by the Government were estimated and. approximate; it knew, too, that the Government was making no guaranty or representation that any particular tonnage was included in the piles. These provisions meant that, so long as the buyer paid only for the tonnage he received, he could not complain that the amounts actually delivered varied from those set forth in the invitation. But these clauses did not say or provide that a purchaser who paid the bid price for 10,465 tons had no recourse if he received 1940 tons less. This was not the kind of surplus sale in which a lot is offered “as is, where is” at one total price, with all risk as to the number of component units placed squarely on the purchaser. The contract specifically contemplated an adjustment based on the tonnage actually delivered (paragraphs 8 and 22); to that end the bids were not to be submitted as a total dollar amount but “on a net ton basis” (paragraph 19). The transaction, to that extent, was not at the buyer’s risk — was not fully an “as is, where is” sale. As to amount, the buyer had a very important right; he could obtain an adjustment if he paid for more steel than he got. True, the adjustment was to be claimed by a set date (August 17, 1953), but I have already given the reasons why I believe that this time-limitation should be removed in this “equitable” proceeding. The plaintiff could not reasonably have been expected to weigh in advance, and after the sale there was solid excuse for waiting until the steel was resold and shipped. The excess payment was discovered and claimed in a reasonable time.

It is not inequitable to the Government, in the moral sense, to require it to give up this excess payment. It holds money for which it did not deliver, steel. The defendant has argued, however, that the plaintiff’s delay has added materially to the difficulty of combatting the inference that-the Government originally miscalcfilated the tonnage in the piles. The Trial Commissioner and the court have found, and I agree, that the discrepancy was due to an initial governmental error of this kind, not to later activities for which the Government cannot be held responsible. Aside from defendant’s unpersuasive speculation before us, there is little indication that defendant’s proof on this point would have been substantially better if the shortage had been discovered late in 1953 or in 1954 or 1955, instead of 1956. The vague possibility that the delay hampered defendant’s proof should not outbalance the plaintiff’s considerable equity. It is also said that the Government would be prejudiced, if relief were given here, because the Government cannot recover for an underpayment by a purchaser (as in the related instance of Boston Metals). One answer is that in these Congressional references the United States is often held “equitably” liable even though, if the shoe were on the other foot, there could be no recovery at law. The sovereign has many special protections, but it has also followed, in proceedings under, 28 U.S.C. §§ 1492 and 2509, the policy of noblesse oblige. In addition, it does not seem an unfair discrimination to make the Government abide by the estimated weights it itself established while permitting relief to the purchaser on the basis of the actual tonnage. And since the contract did not put the entire risk as to amount on the purchaser, the defendant should have no more of a vested right in the date of August 17,1953, than it has, in this class of proceeding, in other time-bars.

I would determine that plaintiff is equitably entitled to recover $117,913.20, without interest.

Collins, Judge;

joins in the foregoing opinion concurring in part and dissenting, in part.

BINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Richard Arens, and the briefs and argument of counsel, makes findings of fact as follows:

1.. On January 23,1959, there was introduced in the Senate of the United States and referred to the Committee on the Judiciary a bill, S. 628,- for the relief of the Rochester Iron and Metal Company, the body of which bill reads as follows:

* * * That the Secretary of the Treasury is authorized and directed to pay, out of money in the Treasury not' otherwise appropriated, to the Rochester Iron and Metal Company, 335 Saint Paul Street, Rochester, New York, the sum of $117,913.20. The payment of such sum shall be in full settlement of all claims of the said Rochester Iron and Metal Company against the United States arising from the failure of the Government to deliver one thousand nine hundred and forty net tons of steel as a part of a purchase of two lots of steel billets by the Rochester Iron and Metal Company from the Philadelphia Ordnance District in accordance with an invitation to bid issued April 27, 1953: Provided, That no part of the amount appropriated in this Act in excess of 10 per centum thereof shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with this claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.

2. On May 11,1959, the Senate Committee on the Judiciary in Senate Report No. 274 reported an original resolution, S. Res. 117, to the Senate and recommended that the resolution be adopted. On May 20, 1959, the Senate adopted S. Res. 117, which reads as follows:

Resolved, That the bill (S. 628) entitled “A bill for the relief of the Rochester Iron and Metal Company,” now pending in the Senate, together with all the accompanying papers, is hereby referred to the Court of Claims; and the court shall proceed with the same in accordance with the provisions of sections 1492 and 2509 of title 28 of the United States Code and report to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable, against the United States and the amount, if any, legally or equitably due from the United States to the claimant.

3. Plaintiff is a corporation organized and existing under the laws of the State of New York with its principal place of business at 335 Saint Paul Street, Rochester, New York.

4. (a) In 1951 responsibility for a large quantity of lend-lease steel, returned to the United States Government by the French Government pursuant to various lend-lease agreements, was transferred by the Department of State to the Department of Defense and assigned to the Philadelphia Ordnance District, Philadelphia, Pennsylvania. The steel in the form of “billets” and “rounds” was to be shipped from Europe to Philadelphia.

(b) Under date of January 30, 1952, the Philadelphia Ordnance District entered into a contract with Mr. John DaGrosa, trading as Industrial Management International (hereinafter generally referred to as “IMI”), which contract reads in part as follows:

Article Al. Scope of this Contract
1. The Contractor, as an independent Contractor and not as an agent of the Government, under the terms of this contract, shall supply the following services to the Government:
The Contractor hereby undertakes to unload steel from railroad cars at his siding, f.o.b. Contractor’s storage area, Girard Point, Philadelphia, Pennsylvania, sort said steel by bundles, stack said steel in off-the-ground storage blocked for crane loading, and provide storage space therefor. Outdoor open storage is permissible. The Contractor will reload, as directed by the Contracting Officer, said steel f.o.b. cars or trucks, railroad siding Contractor’s storage area, Girard Point, Philadelphia, Pennsylvania.
For purposes of payment to the Contractor for services to be performed hereunder, said services are more fully set forth as follows:
QUAN-ITEM DESCRIPTION TITY UNIT PRICE TOTAL PRICE
(a) Unloading of steel 25,000 from ears, in- tons, eluding sorting by bundles. $0,964 per net $24, 050. 00 ton of steel.
(b) Storage of steel 25,000 (for approxi- tons, mately six (6) months). 0.366 net ton of steel per each 30 days or fraction thereof. 54, 900. 00
(c) Reloading of steel 25,000 for shipment as tons, directed by the Contracting Officer. 0.964 per net ton of steel. 24, 050. 00
Total contract amount. sins non nn
for the total consideration of One Hundred Three Thousand ($103,000.00) Dollars.
Note : A net ton shall consist of 2,000 pounds of steel.
The total tonnage figures and the length of time for storage are estimated amounts only, and neither the Government nor the Contractor guarantees the accuracy thereof, and have accordingly contracted on the “per net ton” basis.
2. Payment: Contractor will be paid on the submission of properly executed vouchers as required by the Finance Officer, U.S. Army, on the following bases:
(a) For Item 1(a): Separate payments will be made upon the completion of the furnishing of the services in Item 1(a) above for each shipload of steel handled.
_ (b) For Item 1(b): Payment will be made for furnishing of the services in Item 1 (b) above for each thirty (30) day period of storage after the completion of such period.
_ (c) For Item 1(c): Payment will be made for furnishing the services in Item 1(c) above upon the completion of each reloading assignment.
All railroad cars shall be first weighed unloaded, and then reweighed after loading of the steel thereon to obtain the tonnage of steel handled.
The dates and the certified scale weights upon the Bill of Lading shall govern for payment purposes.
3. Variances: Variance in weight of the steel due tp weather conditions shall be recognized as allowable increases or decreases in weight in accordance with commercial practices.
4. Demurrage: All demurrage and incidental charges are to be the responsibility of the Contractor.
5. Reloading: The Contractor shall reload said steel on cars and/or on trucks upon the written order of the Contracting Officer. Said reloading shall include the compliance with applicable railroad and/or Government requirements for dumiage or stowing on cars and/or trucks.

The foregoing contract was amended by Supplemental Agreement No. 1, dated October 21, 1952; by Supplemental Agreement No. 2, dated December 23, 1952; and by Supplemental Agreement No. 3, dated April 17, 1953.

(c) Under .date, of January 31, 1952, IMI entered into a contract with the Philadelphia Ore Dock Company (hereinafter generally referred to as “Ore Dock”) which at all per-tiixent times operated storage yards for the outside storage of material, iron and steel articles at Girard Point Storage Ground (hereinafter generally referred to as “Girard Point”), located at Philadelphia, Pennsylvania. Under this contract Ore Dock agreed to unload the steel (referred to in the contract between the Philadelphia Ordnance District and IMI) from the railroad cars, to store the same at Girard Point, and to load the steel from the place of storage on railroad cars for shipment pursuant to orders from IMI. Under its contract with IMI, Ore Dock was not required to supply watchman service for the storage sites, and the term of the contract was to be “co-extensive with the requirements of the Philadelphia Ordnance District under its contract with IMI.”

5. (a) During the months of February and March 1952 seven ships carrying the steel from Europe arrived at Girard Point where the steel was loaded on railroad cars by stevedores who were hired by either the Philadelphia Ordnance District or by IMI. Ore Dock received a manifest containing a list of the steel by types and sizes in each ship.

(b) Although the steel was piled in the ships by types and sizes, when the stevedores unloaded the ships they worked down through an entire hatch area at one time instead of working straight through one pile of a certain type or size of steel. Consequently, the steel was mixed by types and sizes when placed in the railroad cars. The evidence of plaintiff and defendant is conflicting respecting the degree of mixing of the steel but it is clear that there was considerable mixing by types and sizes. Records of Ore Dock and the Government Bill of Lading show that 21,838 tons of steel were unloaded from the ships into 406 railroad cars.

6. (a) After the railroad cars were loaded with the steel they were taken to a nearby track scale of the Pennsylvania Railroad Company where they were weighed. As the cars were weighed the Pennsylvania Railroad Company issued weight certificates to Mr. George Farina, who was IMI’s representative at Girard Point, and who gave Ore Dock the numbers and weights of the railroad cars and issued orders to Ore Dock on the unloading of the cars and the storage, sorting, and reloading of tlie steel. Although, the steel was unloaded from the railroad cars into piles by three general groupings by type (squares, large rounds, small rounds) most prevalent in a car, the steel was still somewhat mixed as it was piled in the storage area. This mixing varied in degree from pile to pile, of which there were about 20.

(b) Dunnage (wood base course) was placed at the bottom of all of the piles, but because of the weight of the steel and flooding of the storage area, the piles began to sink into the ground. In the course of time some of the piles had sunk into the ground as much as three and a half feet. The steel was the main commodity that Ore Dock had stored at Girard Point at that time.

7. (a) Immediately after the unloading of the steel from the railroad cars was completed, in April 1952, Ore Dock, under the direction of IMI, began sorting the steel into the three groupings (squares, large rounds, small rounds). The sorting, for which Ore Dock was paid by IMI on a man-hour basis, was a slow pi-ocess and was stopped in June 1952. Thereafter, in November and December 1952, a shipment of 12,000 tons of squares was sorted out and sent to the Tennessee Valley Authority, and there was some additional consolidation of the piles. There is considerable variation in the testimony as to the status of the piles after the Tennessee Valley Authority shipment, but a fair appraisal from all the pertinent testimony is that about 75 percent of the piles contained roughly 90 percent of the same type of steel (squares, large rounds, small rounds) and that the remaining piles were completely mixed. No record was kept of the individual items of steel constituting any pile.

(b) A letter dated December 22, 1952, addressed to IMI from Ore Dock reads in part as follows:

Referring to discussion with respect to loading approximately twelve thousand net tons of square steel bar stock, measuring 5% inches or less, from stock piles into open type railroad cars:
A thorough survey of the stock-piles indicates the loading of specific sizes requires considerable extra sorting and re-piling of pieces not falling within the requirements of the order. On the basis of our inspection, we shall perform the loading of squares for the price of ninety-eight (98) cents per net ton. In addition to loading those sizes, the quotation includes the necessary sorting and re-piling of stock [sic] bar stock, which are not within the specific dimensions.

Under date of December 24, 1952, IMI endorsed on the above letter the following: “The foregoing offer is hereby accepted * * * .”

8. (a) Early in 1958 Mr. Anthony Y. Welsh, property disposal officer of the Philadelphia Ordnance District, was assigned the task of preparing the invitation for bids for the sale of the steel. Mr. Welsh made visits to Girard Point where he made a calculation of the estimated tonnage of each pile. In making his calculation Mr. Welsh took measurements of each of the piles. He then made an allowance for estimated space between the individual pieces in each pile and converted the resulting pounds per cubic foot into tonnage for each pile. Thereafter, Mr. Welsh prepared a chart showing the 27 identifiable piles, the estimated weight of each pile, and the allocation of each pile to one of three lots. It would have been virtually impossible to calculate the exact amount of steel in each of the several piles, and it would have been very costly and would have taken months to weigh the steel in each of the piles.

(b) Within a day or two after April 25,1953, IMI caused to be installed wooden signs, 1 foot by 2 feet in size, each of which was fastened to a 2 by 4 driven into the ground, to mark the piles constituting each of three principal lots of the steel. Two separate signs were placed diagonally at opposite ends of each pile. Lots 1 and 3 were composed primarily of squares and large rounds, while Lot 2 was composed primarily of small rounds. There were 6 piles in Lot 1, 15 piles in Lot 2, and 6 piles in Lot 3. The piles of each of the three lots were interspersed. Some of the piles “were next to each other.” Others were “within several feet.” There were also signs 12 by 18 inches in size which had been erected in the storage area at the beginning of the unloading of the steel and which bore the legend “U.S. Government Property.”

9. Under date of April 27,1953, defendant’s Philadelphia Ordnance District issued an invitation for bids for the sale of the steel. The invitation for bids advised the prospective bidders that the property offered for sale could be inspected between May 1, 1953 and May 22, 1953, by contacting Mr. George Farina, of IMI, at Girard Point, Philadelphia. The invitation’s schedule showing the property offered for sale and plaintiff’s bid submitted under date of May 25, 1953, were as follows:

Pertinent provisions of the invitation were as follows:

GENERAL SALE TERMS AND CONDITIONS
1. inspection. — Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the places and times specified in the Invitation. The Government will not be obliged to furnish any labor for such purpose. In no case will failure to inspect constitute grounds for a claim or for the withdrawal of a bid after opening.
2. condition op property. — All property listed herein is offered for sale “as is” and “where is,” and without recourse against the Government. If it is provided herein that the Government shall load, then “where is” means f.o.b. conveyance at the point specified in the Invitation. The description is based on the best available information, but the Government makes no guaranty, warranty, or representation, expressed or implied, as to quantity, kind, character, quality, weight, size, or description of any of the property, or its fitness for any use or purpose, and no claim will be considered for allowance or adjustment or for rescission of the sale based upon failure of the property to correspond with the standard expected; this is not a sale by sample.
**::<**
6. titee. — Title to the items of property sold hereunder shall vest in the Purchaser as and when full and final payment is made, unless otherwise specified by_ the Government, and except that if the contract provides that loading will be performed by the Government, title shall not vest until such loading and such payment are completed. On all motor vehicles and motor-propelled or motor-drawn equipment requiring licensing, a certificate of release, Standard Form 97 (or a State certificate of title, if such a certificate of title has been issued to the Government), will be furnished for each such vehicle and piece of equipment.
* :U * * *
8. ADJUSTMENT EOR VARIATION IN QUANTITY OR weight. — Any variation between the quantity or weight listed for any item and the quantity or weight of such item tendered or delivered to the Purchaser will be adjusted on the basis of the unit price quoted for such item; but no adjustment for such variation will be made where an award is made on a “price for the lot” basis. $ $ $ ‡ $
10. risk oe loss — (1) After mailing notice of award, and prior to passage of title to the Purchaser, the Government will be responsible for the care and protection of the property and any loss, damage, or destruction occurring during such period will be adjusted by the contracting officer. (2) After passage of title to the Purchaser, and prior to the date specified for removal, the Government’s responsibility will be limited to the exercise of reasonable care for the protection of the property. (3) After the date specified for removal of the property, all risk of loss, damage, or destruction from any cause whatsoever shall be borne by the Purchaser.
$ $ $ $ %
17. The steel is being offered on a short or net ton basis (2,000# Avoir.).
19. Bids will be accepted on a Lot basis only. Lots will not be split, but a bidder may bid on any or all lots. For purposes of price adjustments, bids will be submitted on a net ton basis. (See 22 below.)
20. The full purchase price must be delivered to the Contracting Officer, Philadelphia Ordnance District, within seventy-two hours after receipt of notice of award by the successful bidder or bidders.
21. Title to the steel shall pass to the successful bidder or bidders, upon the receipt by the Government of the full purchase price based upon the total estimated weights set forth in this invitation.
22. Final adjustment of monies due from a buyer shall be firmed upon the actual weight of steel delivered. The weight certification of the carrier will be considered final. Claims for an adjustment of monies due, or paid, must be made on or before 17 August 1953. Should there be no claim for adjustment, the approximate weights for each lot, as indicated in this invitation, shall be accepted as the final weight.
# * * * *
24. Sale is on an “as is — where is” basis.
25. Storage and Removal of Material — Effective with the passage of title, the successful bidders shall be responsible for storage charges and for loading the steel upon rail cars. Bidders are hereby specifically advised that there is presently in existence a contract between the Government and Industrial Management International, Finance Building, 1420 South Penn Square, Philadelphia 2, Pennsylvania, for the storage and outloading of the material covered by this Invitation for Bid. This storage contract has been recently amended to provide for an agreement on the part of the storage contractor that for a period not to exceed 12 weeks after passage of title and determination of priority of shipment as herein after provided, it (the storage contractor) will store and outload for the successful bidder(s) at the same rates being charged the Government for such services. Accordingly, effective with the date of passage of title to the steel (as set forth in Article 21 hereof) to the successful bidder(s) said bidder(s) shall be responsible for the making of his (its) own arrangements with the storage contractor or in lieu thereof pay to the storage contractor the following charges (which are the government contract rates) :
(a) Storage charges at the rate of $.366 per ton per month or a fraction thereof. (See Note below.)
(b) Loading out charges at the rate of $.964 per ton (net). (See Note below.)
note : In the event that the three items covered by this Invitation for Bid are sold to two or more successful bidders, the priority of shipment will be determined by the drawing of lots by Government representative. The drawing of lots will be accomplished within seventy-two hours after notice of award. Within seventy-two hours after priority of shipment is determined, bidders will be required to issue to storage contractor appropriate shipping or other instructions. The storage and out-loading rates specified above will remain in effect for a period of not to exceed twelve weeks from the date of passage of title. Thereafter bidders will be required to make their own arrangements with the storage contractor. The storage contractor has the necessary facilities available to move the entire quantity specified herein at the average daily rate of three-hundred tons, and to complete all shipments within the twelve week period specified above.

10. Representatives of plaintiff inspected the steel at Girard Point before plaintiff submitted its bid to defendant.

11. (a) Under date of June 1, 1953, defendant accepted plaintiff’s bid as to Lot 1 and Lot 3 and accepted the bid of the Boston Metals Company, Baltimore, Maryland, as to Lot 2.

(b) On June 5, 1953, plaintiff completed the payment in cash to defendant of the sum of $636,062.72 for the steel in Lots 1 and 3, and the title to these lots passed to plaintiff. On the same date title to Lot 2 passed to Boston Metals Company.

(c) A letter dated June 5,1953, to plaintiff from defendant reads in part as follows:

As per Article 21 of the General Sales Terms and Conditions of subject bid, Title of Lot 1, consisting of approximately 8,700 tons, Billets, Steel, Squares; and Lot 3, consisting of approximately 1,765 tons, Rounds, Steel, Dia. various, located at Girard Point, Philadelphia, is transferred to Rochester Iron and Metal Co. as of 0900,5 June 1953.
We have informed the Industrial Management International of this transfer of Title. A copy of this letter is attached for your information.

12. (a) Immediately after tbe sale of tbe steel Ore Dock, based on information furnished by defendant and IMI, credited plaintiff with an estimated 10,465 tons of steel purchased from defendant. Ore Dock in like manner credited Boston Metals Company with an estimated 5,400 tons of steel purchased from defendant. The weights of the steel delivered in accordance with the orders of plaintiff and Boston Metals Company, based on the actual weight certificates of the steel shipped, were thereafter deducted by Ore Dock.

(b) Within a day or two after the sale, Ore Dock’s yard foreman prepared a rough sketch showing the location at Girard Point of the steel bought by plaintiff and the steel bought by Boston Metals Company. At about the same time Mr. Anthony Y. Welsh, property disposal officer of the Philadelphia Ordnance District, again visited Girard Point where he ascertained that the signs identifying the various piles and lots of steel were in place, and a representative of plaintiff visited Girard Point to acquaint himself with the kinds of steel purchased by plaintiff so that it could be resold. Defendant authorized the release to plaintiff’s representative of a card index which identified each piece of steel by size but did not show the location of the individual pieces of steel. Plaintiff’s representative did not take the card index.

13. Both before and after the sale, the stored steel was in the physical custody of Ore Dock. Prom the date of the sale, June 5,1953, until each of the buyers entered into direct contractual arrangements with Ore Dock, the shipping instructions of both plaintiff and Boston Metals Company were given to IMI which, in turn, transmitted the instructions to Ore Dock, which actually outloaded the steel. After plaintiff and Boston Metals Company entered into direct contractual arrangements with Ore Dock, their shipping instructions were given directly to Ore Dock. The steel from Lots 1 and 3, owned by plaintiff, was raised from the ground for shipment in piece loads, while the steel from Lot 2, owned by Boston Metals Company, was raised from the ground for shipment in sling loads.

14. Plaintiff intended to resell all of the steel it had purchased and to accomplish the outloading of the steel within the 12-week period following the passage to plaintiff of title, as provided in Article 25 of plaintiff’s contract with defendant. Although plaintiff advertised continuously and nationally, it received little demand for the steel. Plaintiff’s first big sale of steel was made at a loss of $11 a ton.

15. (a) On June 17, 1953, IMI wrote a letter to plaintiff, the body of which reads as follows:

Please be advised, in reply to your letter of June 15, that there are several considerations that stimulate the thought of immediate shipment of the steel located at Girard Point.
We wish to terminate this transaction at the earliest possible moment. Firstly, we wish to square accounts with the Government, and this can only be done by shipping out the quantity of steel received. Secondly, as I informed you, there is an estate involved in this transaction, which you will understand must be settled.
I also informed you that the tonnage listed for each lot may vary, and the only way that the exact tonnage for each lot can be determined with exactness is to obtain the weights in cars. This should be of importance to you and the Government, and I am sure that Mr. Anthony Welsh of P.O.D. is desirous of having the exact tonnage of each lot determined prior to August 4th, [] the date on which the tonnages set forth in the proposal become final.
These considerations supersede any desire on our part to charge commercial storage rates as against the rates charged the Government.
The Government fixed the 12 week period, because within that period we agreed to load all the material. We can and are anxious to accomplish the above, provided we receive immediate shipping instructions.
I call to your attention that in the future all loading instructions must be in writing, addressed to the undersigned. Please do not give George Farina any oral shipping instructions, so that the confusion on loading billets for shipment to Cleveland will not recur.
I assure you of full cooperation, and if you find that you cannot move the steel within the 12 week period, we will discuss a rate to become effective thereafter when you are next in Philadelphia.

(b) On the same date defendant wrote to IMI as follows:

On 3 June 1953, the Government transferred title to 5,400 tons of steel to The Boston Metals Company, and on 5 June 1953 title to 10,465 tons to Bochester Iron and Metals Company. Therefore, effective these dates you are to recognize these companies as owners of said steel in the quantities indicated. Said companies will be responsible to you for all charges accruing on and after the above dates.
In accordance with the provisions of paragraph 2 of Supplemental Agreement No. 3, Contract No. DA-36-034-QBD-796, said contract is terminated at no cost to the Government, as follows:
On 3 June 1953 for 5,400 tons
On 4 June 1953 for 10,465 tons.
It is requested that receipt of this letter be acknowledged.

16. Under date of July 8,1953, plaintiff wrote to Philadelphia Ordnance District as follows:

We note that Paragraph 22 of the Invitation to Bid states that final adjustment will be made upon actual weight of steel delivered.
We do not believe it will be possible for us to move the entire lot before August 17, 1953. We request an extension for final adjustment until November 17,1953.

17. (a) The body of a letter dated July 14,1953, addressed to plaintiff from Mr. Anthony V. Welsh, property disposal officer of the Philadelphia Ordnance District, reads as follows:

In reply to your letter of 8 July 1953, requesting an extension of the date for final adjustment of subject contract, there is forwarded herewith six copies of Supplemental Agreement No. 1 to Sales Contract No. DA(S) -36-034-OBD-2.
It is requested that all copies be signed by Mr. J ames L. Frankel and returned to this District for final execution by the Property Disposal Officer. A copy will be returned for your files. Execution by the Government will be immediately after receipt of signed copies of a similar Supplemental Agreement to Sales Contract No. DA(S)36-034-OBD-1 with the Boston Metals Company.
Your attention is directed to General Sales Condition No. 25 regarding storage and loading charges. The twelve week period for storage, at the rate granted the Government, will expire by 28 August 1953 (5 June through 27 August).
Thereafter, the storage contractor is in a position to increase the storage and loading charges. This District recommends that the property be moved as soon as possible, and the storage contractor requested to establish rates for the period subsequent to 27 August 1953.

(b) Plaintiff executed the proposed Supplemental Agreement which had been forwarded to plaintiff by Mr. Welsh, and under date of July 17,1953, returned it to defendant.

(c) By letter dated July 27, 1953, defendant advised plaintiff as follows:

In the opinion of the Legal Office, Philadelphia Ordnance District, the interests of the Government would be best served by desisting from any extension of the original date set for adjustment of monies paid or due.
In accordance therewith it will be necessary to conform to the terms of subject contract, including General Sales Condition No. 22.

(d) Subsequently, plaintiff made other efforts to obtain an extension of time for adjustment of monies due, or paid. These efforts included an offer made to defendant by plaintiff and Boston Metals Company of the sum of $500 for an extension to November 20, 1953; but all such efforts were unsuccessful.

18. Under date of August 13,1953:

(a) Plaintiff signed a general release reading in pertinent part as follows:

know all men by these presents That Rochester Iron <& Metal Co., in consideration of the sumí of One ($1.00) dollar cmd other good and valuable considerations,, receipt of which is hereby acknowledged do hereby remise, release and forever discharge Industrial Management International, its heirs, executors and administrators, of and from all claims demands, etc. by reason of a steel transaction wherein Industrial Management International was Warehouseman and all manner of actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity; which against the said Industrial Management International, it ever had, now have, or which heirs, executors, administrators or assigns, or any of tliem hereafter can, shall or may have, for or by reason of any cause, matter or thing whatsoever, from the beginning of the world to' the date of these presents.

(b)Plaintiff and Ore Dock entered into an agreement in the form of a letter from Ore Dock, and accepted by plaintiff, which reads in pertinent part as follows:

We are writing to outline the terms and conditions under which we will agree to store, sort and load out the approximately 10,000 tons of steel bars, squares and rounds which you purchased on or about May 25, 1953 from Philadelphia Ordnance District, and which we are presently storing under an Agreement between us and Industrial Management International dated January 31, 1952, as amended by letter agreement dated August 4, 1952:
1. You will obtain and furnish to us without expense to us a release, satisfactory to us and our counsel, whereby Industrial Management International will agree to a termination of its aforementioned contract with us insofar as said contract relates to this steel, amended as stated above, and will release us from all obligations and liability under that contract.
2. We will agree to continue to store the steel at its present location in Section B and C of Girard Point Yards of The Pennsylvania Railroad, 48th Ward, City of Philadelphia, and to sort, load and ship the materials in question in accordance with written instructions from you, and you will pay for our services on the following basis:
(a) $0.90 per net ton for loading out solid railroad carloads;
(b) $1.46 per net ton for loading out solid truckloads;
(c) $0.10 pet net ton per month, or for any fractional part of a month, for storage, except that the charge for storage for the first month shall be prorated on the basis of the number of days elapsed under the Agreement to the end of the calendar month;
(d) $15.00 per hour for sorting, which hourly charge ,shall include the necessary cranes and manpower for performance of sorting operations.
All charges will be based on carrier’s certificates of weight.
3. We will bill you monthly at the end of each month for the aforementioned charges and you will make payment therefor monthly within ten days from the receipt of each such invoice.
4. Whenever any loading services are to be required of us you will give us at least 48 hours written notice, and we will make shipments promptly in accordance with your instructions, furnishing such equipment and manpower as may be necessary.
5. We will give you prompt written notice of each shipment made in accordance with your instructions and will keep appropriate records pertaining to the traffic of steel out of storage which shall be open to inspection by you at all reasonable times.
6. We will not be held responsible for delays in loading out or shipment due to strikes, Acts of God, or any other cause or thing beyond our control, and we shall not be liable for loss or damage resulting from loading, storing or otherwise handling the steel except for such loss or damage as may be caused by our negligence.
7. Upon final shipment of all steel in storage under this Agreement, adjustment of storage charges from the date of this Agreement shall be made on the basis of the final out-tumed weights.
8. We shall not be required to supply watchmen services for the storage sites.
9. The Agreement between us will go into effect simultaneously with the termination of the above-mentioned Agreement between us and Industrial Management International, so that the steel in question will continue to be stored by us, at its present location, as it is now being stored under that Agreement.
10. The agreement between us will continue on a month-to-month basis until all of the steel in question is loaded out, provided, however, that the charges for our services as specified in clause 2 above (except storage charges) shall be subject to adjustment to compensate us for increased costs resulting from wage increases or from changes in economic conditions. If such changes occur, we shall negotiate for adjustments not prior to January 1, 1954, which adjustments shall take effect thereafter.

19. Under date of October 1,1953, Boston Metals Company entered into an agreement with Ore Dock which contained substantially the same basic provisions as the agreement referred to in finding 18(b), supra, between plaintiff and Ore Dock.

20. On October 11,1955, plaintiff entered into an agreement with Boston Metals Company pursuant to which plaintiff bought part of the remaining steel in Lot 2 owned by Boston Metals Company at “$60 per gross ton, f.o.b. cars, Girard Point, Philadelphia.” Plaintiff sold this steel and caused it to be shipped to Buffalo Steel Corporation, Tonawanda, New York.

21. (a) On November 21, 1955, when the last shipment of steel had been made from Lot 2 owned by Boston Metals Company, it was discovered by Ore Dock that there had been an overshipment for Boston Metals Company of 2116.575 tons of steel. At this time there remained a considerable amount of steel in Lots 1 and 3 which belonged to plaintiff.

(b) On December 16, 1955, at the solicitation of Ore Dock, Boston Metals Company paid Ore Dock the sum of $5,503.16 in additional storage charges on the excess tonnage. Ore Dock began to accrue a reserve for excess storage charges that might have to be repaid to plaintiff.

22. The body of a letter dated January 13,1956, addressed to plaintiff from Ore Dock reads as follows:

In response to your letter of January 4th, 1956, we respectfully submit original and two copies of detail showing the dates, car numbers, trucks, weights and tonnages of all materials shipped from storage at Girard Point, Phila. Penna. This material is part of 10,465 ton lot and covers the period from June 16th, 1953 to December 27th, 1955. The total tonnage shipped, as per list attached is 5,159.9775 net tons.
We trust that this information is what you seek and that it will serve your purpose.

23. (a) In April 1956 Ore Dock, at the request of plaintiff, took a piece count of plaintiff’s remaining steel which revealed that plaintiff was short about 2,000 tons.

(b) Under date of April 24, 1956, plaintiff wrote to Ore Dock as follows:

As you know we are nearing the end of the material stored at Girard Point since the summer of 1953. From a piece count it looks like we are going to be short in the neighborhood of 2,000 tons of material, of course the exact shortage will not be definite until the material has all been weighed out. We would appreciate you checking your records to see if there is a possibility that some of this steel may have been shipped out for somebody elses account. We await your advice.

(c) A responding letter dated April 26,1956, addressed to plaintiff from Ore Dock reads as follows:

With reference to your letter of April 24, 1956, concerning a possible shortage of steel stored for your account at Girard Point, we have checked our records, and we wish to advise you that none of the steel stored for your account has been shipped out other than by your orders.
We hope that in the final clean up, you will receive the approximate amount of steel that was originally allocated as comprising the lots that you purchased from the TJ.S. Government.

24. (a) On October 11,1956, the last of plaintiff’s steel was loaded for shipment out at Girard Point. Thereafter plaintiff requested Ore Dock to furnish a list showing all shipments for its account. By letter dated October 17, 1956, Ore Dock responded to plaintiff’s request as follows:

In accordance with your request we are submitting, herewith, list showing dates, weights and types of transportation used in shipping the entire amount of steel stock which you had stored with us at Girard Point, Philadelphia 45, Penna. The material consisted of two (2) lots, one to have contained approximately 8,700 tons of Billets — Steel—Squares and the other lot approximately 1,765 tons of Rounds, Steel, Dia. various.
With the final loading and weighing of this material, as per list attached, it develops that there is an adjustment due you for storage charges, submitted by us, and and we suggest that you render us a bill covering this adjustment.

(b) The list which accompanied Ore Dock’s letter indicated a shortage of 1940.002 tons of steel, or a total tonnage shipped of 8524.998 as against an estimated tonnage in Lots 1 and 3 of 10,465.

(c) Under date of October 18, 1956, Ore Dock wrote to plaintiff as follows:

Supplementing our letter of October 17, 1956, our records indicate a total tonnage loaded from ground storage of 8524.998 net tons. A difference of 1940.002 net tons appears to exist in the amount of steel originally assigned to these two lots by the Philadelphia Ordnance District.

(d) During October 1956 plaintiff billed Ore Dock for excess storage charges which plaintiff had paid on the 1,940 tons of steel in the amount of $7,288.01, which sum Ore Dock thereafter remitted to plaintiff.

25. (a) The body of a letter dated October 26,1956, to the Philadelphia Ordnance District from plaintiff reads as follows:

Please refer to contract # DA (S) 36-034-ORD (1). The material we purchased from you has now been completely moved out. We find that though we bought and paid for 10,465 net ton, we received 8524.998 net tons. Therefore, we bought and paid for 1940.002 net tons that we did not receive.
We respectfully ask that all your files pertaining to this contract be brought out and that an appropriate time be set for a conference between yourself and our officials to review the matter of this tremendous shortage.

(b) Thereafter, the conference requested by plaintiff was held at the Philadelphia Ordnance District, at which conference plaintiff was advised by defendant’s representatives that the proper procedure for presentation of plaintiff’s claim was to submit the matter to the Comptroller General.

(c) Under date of November 26,1956, plaintiff submitted to the Comptroller General of the United States a document, the body of which reads as follows:

please take notice that Rochester Iron & Metal Co., a New York State corporation, with its principal office at 335 St. Paul Street, Rochester, New York, hereby makes and files a claim for the sum of one hundred SEVENTEEN THOUSAND NINE HUNDRED THIRTEEN DOLLARS
and twenty oents ($117,913.20) together with interest from June 3,1953, by reason of the following:
1. On or about April 27, 1953 Philadelphia Ordnance District issued invitation No. 36-034-S-53-1 to bid on certain steel billets located at Girard Point, Philadelphia, Pa.
2. That pursuant to the aforesaid invitation the Claimant herein, viz, Rochester Iron & Metal Co., entered a bid for Lot 1, Lot 2 and Lot 3, as set forth on said invitation to bid, and was awarded Lot 1 and Lot 3.
3. Attached hereto and made a part hereof is a true and correct copy of the invitation hereinbefore referred to and constituting Contract No. DA- (S) -36-034-ORD-1.
4. That the aforesaid invitation to bid and acceptance specifically specified that Lot No. 1 contained billets-steel-squares, of approximately 8700 tons, and that Lot No. 3 contained ronnds-steel-dia. various of approximately 1765 tons.
5. That the sale and purchase price for the aforesaid steel was Sixty Dollars and Seventy-eight Cents ($60.78) per ton. That pursuant to the bid made by the claimant herein and accepted by the Philadelphia Ordnance District, the claimant on the 25th day of May, 1953 and on or about the. 5th day of June, 1953 paid to Philadelphia Ordnance District the total sum of Six Hundred Thirty-six Thousand Sixty-two Dollars and Seventy Cents ($636,062.70) in full payment for said Lot 1 and Lot 3 and for the amount of tonnage therein specified, viz, 10,465 tons at $60.78 per ton.
6. That during all of the times hereinbefore mentioned and to and including the final delivery of all of the steel contained in said Lot 1 and Lot 3, said steel was at all times stored with and under the custody and control of Philadelphia Ore Dock Company, at Girard Point, Philadelphia, Pa.
7. That the last delivery of the balance of said steel was made by said Philadelphia Ore Dock Company on or about October 11, 1956. That the total number of tons of steel delivered to the Claimant from Lot 1 and Lot 3 was 8524.998 net tons, representing all of the steel in Lot 1 and Lot 3, and which said tonnage was 1940 tons less than the number of tons set forth in the bid on Lot 1 and Lot 3, and the amount which was sold to and purchased by the Claimant and paid for by the Claimant herein. . That attached hereto and made a part hereof are copies of letters of Philadelphia Ore Dock Company, dated October 17 and 18, 1956 respectively, setting forth the total number of tons delivered to the Claimant from Lot 1 and Lot 3 and stating the shortage of 1940 tons.
8. That by reason of the foregoing, the Claimant has overpaid Philadelphia Ordnance District the sum of One Hundred Seventeen Thousand Nine Hundred Thirteen Dollars and Twenty Cents ($117,913.20) for steel not delivered, and which sum the Philadelphia Ordnance District has retained, and no part of which has been refunded to the Claimant herein.
9. That by reason of the foregoing, Claimant does hereby make Claim and Demand for the sum of one hundred seventeen thousand nine hundred thirteen dollars and twentx cents ($117,913.20), together with interest from June 3,1953.

(d) Under date of February 19, 1951, tlie Comptroller General of the United States wrote to plaintiff as follows:

Your claim for $117,913.20 plus interest from June 3, 1953, account of an alleged shortage in the quantity of steel purchased in lots 1 and 3 under Contract No. DA(S)-36-034-ORD-2 is disallowed for the reasons stated below.
The record reveals that on June 1, 1953, the Government accepted your bid for lots 1 and 3 under invitation No. 36-034-S-53-1 for approximately 10,465 net tons of steel. The sale was on an “as is” and “where is” basis and the weight was given in an approximate amount. Your bid price was $60.78 per net ton, amounting to a total contract price of $636,062.70.
On June 5, 1953, receipt was acknowledged of your check tendered as full and final payment under the contract and title to the steel was transferred to you as of that date.
By Article 22 of the Contract, final adjustment of monies due from the buyer was to be firmed upon the actual weight of the steel delivered. The weight certification of the carrier was to be considered final. Claims for an adjustment of monies due, or paid had to be made on or before August 17,1953. Should there be no claim for adjustments, the approximate weight for each lot, as indicated in the invitation, were to be accepted as the final weights.
Your letter dated July 8,1953, indicated a belief that it would not be possible for you to move the entire lot of steel before August 17,1953, and requested an extension until November 17,1953, for final adjustment.
Although a Supplemental Agreement extending the date for final adjustment to November 20, 1953, was prepared and executed by you, it was never signed and accepted by the Government.
A further attempt to have the final adjustment date extended was made by your letter dated August 13, 1953, wherein you offered the sum of $500.00 as consideration for an extension of time. This offer was rejected.
In your letter of claim you state that the final delivery of steel was made on or about October 13, 1956. This was over three years subsequent to the date established in the contract as the final date for adjustment. _ In the absence of any provision in the contract extending the firm] date for adjustment, there is no authority or basis for the refund of any portion of the amount claimed.

26. At the trial various avenues were explored to account for the shortage reflected in the records of Ore Dock of 1,940 tons in plaintiff’s steel and the overage of 2116.575 tons in Boston Metals Company’s steel. These avenues included the following possibilities: shifting of the signs identifying the piles, scrambling of the steel in loading as between the steel of plaintiff and of Boston Metals Company, and mistake in shipping orders or records. Although defendant’s counsel, both at the trial and in defendant’s request for findings, diligently pursued each of the above avenues, the record as a whole compels the conclusion that there were no significant mistakes either in loading the steel or in the keeping of records, and that the above shortage and overage reflected in the records of Ore Dock are attributable to the difference between the actual steel in Lots 1 and 3 and Lot 2 and the estimated steel in these lots. Accordingly, it is found that plaintiff paid defendant, at a purchase price rate of $60.78 per ton, the sum of $117,913.20 for 1,940 tons of steel which was not delivered to plaintiff. 
      
       This ease was referred to us, and was heard prior to the Supreme Court decision in Glidden v. Zdanok, 370 U.S. 530 (1962), which raises doubts about the constitutionality of having this court hear Congressional Reference cases.
     
      
       An exact calculation of the tonnage of steel in each pile would have been quite costly, and would have taken several months to do.
     
      
       The steel was stored during this entire period In outside storage yards on the property of the Philadelphia Ore Dock Company pursuant to unloading and storage contracts executed between the defendant and Industrial Management International (“IMI”), an independent concern, and “IMI” and Philadelphia Ore Dock Company, under these agreements a purchaser from the Government (Plaintiff in this case) was to receive Government storage rates for a period of twelve weeks after passage of title to the lots of steel.
     
      
       The contract contemplated that final adjustment would be based upon the weight certification of the carrier. (Section 22.)
     
      
       See 28 U.S.C. § 2509 ; Clark v. United States, 167 Ct. Cl. 197, 199 (1964) ; S.N.T. Fratelli Gondrand v. United States, 166 Ct. Cl. 473, 484 (1964) ; Ralph Feffer & Sons v. United States, 166 Ct. Cl. 506, 508 (1964) ; Erie Railroad Co. v. United States, 140 Ct. Cl. 398, 399, 156 F. Supp. 908, 909 (1957) ; Zadeh v. United States, 124 Ct. Cl. 650, 653, 111 F. Supp. 248, 250 (1953).
     
      
       Of course," Boston Metal’s gain cannot be set off against this plaintiff’s loss. The companies are not connected. ’ .
     
      
       A “billet” or “square” Is a square bar of steel stock, about 20 feet long and from 3% to 6 Inches In width. An average billet weighs about a ton. A “round” is a round bar of steel stock, from 9 to 20 feet in length and from 1% to 4% inches in diameter, and weighs on an average less than a square.
     
      
       August 4 is erroneously indicated as the date on which the tonnages were to become final; the actual date was August 17.
     