
    GEORGE WILLIAM MOTTRAM v. THE UNITED STATES
    [No. B-52.
    Decided March 3, 1924]
    
      On the Proofs
    
    
      Sale of Government war material; shortage; knowledge of bidder.— Where the Government advertises war material ior sale in excess o£ the amount it possesses, and the plaintiff, being aware of the shortage, bids on and pays the agent of the Government for the whole amount advertised, and the purchase money is returned by the agent upon discovery of the error by him, the Government is not liable for such shortage.
    
      Same; contract with selling agent; release from liability. — Where the Government enters into a contract with its selling agent, stipulating, among other things, that he is to assume all liability for claims growing out of the sales of Government war material, it was the; dluty of all persons dealing with such agent to inform themselves of his authority to issue cata-logues listing quantities of material for sale, and to look to him for any shortage in such quantities.
    
      The Reporter's statement of the case:
    
      Mr. Jennings C. Wise for the paintiff. Bouve db Parlcer, Munn, Anderson & Munn, and Mr. John S. Wise, Jr., were on the briefs.
    
      Mr. Dwight E. Rorer, with whom was Mr. Assistant Attorney General Robert PL. Lovett, for the defendant.
    
      The following- are the facts of the case as found by the court:
    I. The act of Congress approved May 10, 1918, 40 Stat. 548, authorized the President during the existing emergency “ to sell any supplies, materials, equipment, or other property heretofore or hereafter purchased, acquired, or manufactured by the United States in connection with, or incidental to, the. prosecution of the war.” In pursuance of the authority vested in him by said act the President of the United States, through the Secretary of War, created the United States Liquidation Commission by virtue of General Orders No. 24, dated February 11., 1919, which General Orders' aiitliorized the disposal of all property belonging to the United States and which was located beyond its territorial limits. And on April 1. 1919, the United States Liquidation Commission was designated by the Secretary of War to supervise and direct the disposition of all surplus property in Europe belonging to the United States acquired, constructed, or manufactured in connection with the war.
    IT. By virtue of the act of May 10, 1918, and the orders above cited on April 14, 1919, the following contract in writing was entered into by the United States and J. G. White & Company, Limited, London, England:
    “Articles of agreement entered into this fourteenth day of April, nineteen hundred and nineteen, between Colonel C. R. Pettis, Corps of Engineers, chief engineer, Base Section No. 3, S. O. S,, American Expeditionary Forces, 29 Great Pulteney Street. London, for the United States Army, hereinafter designated as the contracting officer, representing the United States of America, of the first part, and J. G. White & Company, Limited, of 9 Cloak Lane, London, E. C„ England, hereinafter designated as the selling agents, of the second part.
    
      “ Witnesseth, that the said parties do hereby covenant and agree, to and with each other, as follows:
    “Article No. 1. For and in consideration of the commission hereinafter stated the selling agents agree to sell for the account of the contracting officer certain quantities of engineer stores and equipment now in storage at the U. S. engineer depots at Slough and Didcot or at Suppliers’ Works, or at such other locations as the contracting officer may designate, such stores and equipment being enumerated and described in an inventory compiled by the contracting officer consisting contractors’ construction equipment, cordage and rope, canvas, tarpaulins and cotton sheets, machine tools and machine-shop equipment, office equipment and stationery, trade tools, wire and wire products, special plant and machinery, such as water filtration apparatus, acetylene lighting equipment, incinerators, and other stores and equipment as may be designated by the contracting officer. be offered at duly
    advertised public auction before July 1st, 1919. In cases where items are withdrawn from sale by auction, due to the received for same being below the reserve prices fixed said items, then said items may be sold in the open mar- or otherwise disposed of as directed by the contracting officer. For all sales made subsequent to offering at auction selling agents will negotiate sales under such conditions * may be prescribed by the contracting officer. shall supply at their
    expense all auctioneers, cashiers, accountants, salesmen, engineers, and assistants required, except laborers, for preparation of catalogues listing and describing the various classes of stores and equipment from the inventories furnished by the contracting officer; distribution of same, conduct of auctions and sales, collection of moneys, preparation accounts as required by the contracting officer, supervi-of delivery of goods sold and payment for same to the. contracting officer. The selling agents shall advertise the public auctions at their own expense and shall bear all expenses in connection with the sale and delivery of stores equipment sold by them, except the cost of labor required in handling saict stores and equipment. of the services
    above mentioned when rendered by the selling agents the contracting officer agrees to pay the selling agents and the selling agents agree to accept as full remuneration for said services a net commission of 5% (five per cent) of the lowest price received by the contracting officer for all stores equipment sold. of the contracting officer
    Article the selling agents' agree to supply personnel and operate said U. ¡3. Engineer depots at Slough and Didcot, including supervision and labor, for an additional remuneration of 2,y2% (two and a halt per cent) of the lowest net price received by the contracting officer for all stores and equipment sold. .Said 2y2% is.to cover operation of said depots for a period of two and á half months, beginning April 30th, 1919, or thereabouts, and continuing until July 15th, 1919, at the rate of 1% (one per cent) per month, and said remuneration of 2%% shall be adjusted pro rata for any -variation of the date (April 30th, 1919) on which the selling agents take over operation of said depots.
    “ Article No. 6. The selling agents guarantee the payment for all sales made by them and shall pay over by cheques made to the order of the engineer disbursing officer, Base Section No. 3, during each week, all moneys received from sale of stores and equipment during the previous week, together with detailed accounts covering sales made and commission due the selling agents under articles 4 and 5. Said commissions are to be paid by the contracting officer to the selling- agents within one week from date of accounts.
    “ Article No. 7. All stores and equipment sold and paid for are to be removed from the depots or other storage points within fifteen days from date of sale. If the purchaser fails to remove the stores or equipment within the prescribed time, the selling agents agree to remove the materials at their own expense upon written notice from the contracting officer. The period of fifteen days mentioned above may be extended for good reason at the discretion of the contracting officer.
    “ Article No. 8. All sales made by the selling agents for the contracting officer are to be made under the conditions of the British and American trading with the enemy acts, which prohibit all trade with enemy countries, or pursuant to such modifications as may later be enacted.
    “ Article No. 9. This contract shall terminate on the 15th day of July, 1919, and may be renewed or extended on such terms as are agreed between the contracting parties.
    “Article No. 10. The contracting officer reserves the right to terminate this contract at any time upon giving the selling agents 10 days’ written notice of such intention. In case the contracting officer terminates the contract in this manner the selling agents shall submit to the contracting-officer a satement of expenses that the selling agents have contracted in the performance of the contract up to the time of the termination of the contract. The selling agents shall be entitled to reimbursement by the contracting officer for such of these expenses as are considered correct and just by the contracting officer.
    “Article No. 11. The contracting officer reserves the right to withdraw from sale any stores or equipment at any time upon written notice of such intention to the selling-agents. The contracting officer is to exercise this privilege in case of military necessity only.
    “Article No. 12. The commissions on the selling price, as paid to the selling agents by the contracting officer, shall constitute full and complete payment for all services rendered or materials furnished by the selling agents for the account of the contracting officer, including cost of advertising, office charges, and all other expenses. The selling agents agree that they will not solicit or receive any other commission or profit under this contract except the commissions paid to them by the contracting officer. The contracting officer assumes no liability for claims of any character that may be made by purchasers against the contracting-officer, and the selling agents shall hold and save the contracting officer and his authorized representatives free and harmless from and against all and every claim, by purchasers and prospective purchasers, that may arise from the operations incident to this agreement.
    '“Article No. 13. The contracting officer reserves the right to add to, or substrae!, from, the general classification of materials as enumerated in article 1. The description and quantities, as stated in the inventories of the contracting officer, are subject to verification by the selling agents, and the contracting officer assumes no liability for the accuracy of such descriptions and quantities.
    “ Article No. 14. Within five days after the signing of this contract the selling agents shall furnish a surety bond in the sum of fifty thousand pounds (£50,000) in a company approved by, and in a form satisfactory to, the contracting-officer; such surety bond to cover the performance of this contract to the satisfaction of the contracting officer.
    “Article No. 15. The contracting officer reserves the right to fix a reserve value on any item or on any group of items to be sold.
    “Article No. 16. The selling agents will make certification to the contracting officer, in a form satisfactory to the contracting officer, to the effect that certain stores, materials, or equipment, have been sold to a designated purchaser at a stated price.
    “ARticle No. 17. Neither this contract nor any interest therein shall be transferred to any other party or parties, and in the case of such transfer the contracting officer may refuse to carry out this contract either with the transferer or transferee.
    “ Article No. 18. Any difference or dispute arising under this contract shall be referred to arbitration pursuant to the provision of the arbitration act of 1889 or any subsequent modification thereof for the time being in force.
    “ Article No. 19. It is agreed between the parties that the interpretation of this contract and their rights and obligations under it shall be determined in accordance with English law, but the interpretation of this article shall not conflict with article 8.
    
      “ Aeticle No. 20. No Member of or Delegate to Congress or Resident Commissioner nor any person belonging to or employed in the military service of the United States is or shall be admitted to any share or part in this contract or to any benefit which may arise therefrom.
    “ ARticle No. 21. The term “ contracting officer ” .whenever used in this contract shall include the duly appointed successor of such officer.
    “ In witness whereof the parties aforesaid have hereunto placed their signatures the date first hereinbefore written.
    “ C. R. Pettis,
    “ Colonel, Corps of Engineers, Contracting Officer.
    
    “ Witness:
    
      “ J. Moultrie Ward.
    “ J. G. White & Company, Limited,
    “ G. W. Hough, Director,
    “ Belling Agents.
    
    “ Witness:
    “ J. H. Wusemell.
    “ Approved:
    “ JohN Biddle,
    “ Major General, U. S. A.,
    
    
      “ Commanding Base Section No. 3, S.O.S.,
    
    “ American Expeditionary Forces.”
    III. J. G. White & Company, Limited, employed Robert H. Ruddock, of London, England, to sell at auction the engineer stores and equipment at the United States Engineer’s depot at Slough, England, and, acting under the authority conferred upon it by the contract aforesaid, J. G. White & Company, Limited, advertised in the press of England a sale by auction to be held by it at the American Engineer’s depot at Slough, England, on Tuesday, June 24, 1919, and the days following. The said J. G. White & Company, Limited, also issued a catalogue, purporting to contain a list of goods, with description and quantity of the same. On the cover of that catalogue appeared the' following:
    “ Sales Nos. 10 to 13.
    “By direction of the U. S. Engineers of the American Expeditionary Force, American Engineers’ Depot, Slough.
    “Catalogue of the valuable and extensive new engineers’ equipment & supplies, constructional material, railway and dock equipment, and stores.
    
      “ For sale by auction on Tuesday, 24th J une, 1919, and following days at eleven each day.
    “ Messrs. J. G. White & Co., Ltd., 9 Cloak Lane, London, E. C. 4.
    “ Robert FI. Kuddock, Auctioneer and Valuer, 7 Fleet Street, London, E. C. 4.”
    On page 2 of the catalogue appeared the following:
    “ Conditions of sale
    “ 1. The highest bidder of each lot, if in due time, shall be the purchaser thereof, but subject to the auctioneer reserving the right of refusing the bidding of any person, without giving any reason for such refusal. Should any dispute arise between two or more approved bidders, or between the auctioneer and any approved bidder, the lot or lots to be put up again or not, at the discretion of the auctioneer. The vendors, the IT. S. A. Government, reserve-the right to bid by themselves or their agents, and withdraw any lot previously to or at the time of sale.
    “ 2. The whole shall be sold, with all faults, imperfections, errors of description, in the lots of the catalogue; or as these may be divided or conjoined at the sale, and without any warranty whatever, the buyers being held to have satisfied themselves as to the condition, quality, and description of the lots before bidding. No person to advance less than Is. at each bidding up to five pounds; above five pounds, 5s.; and so on in proportion, nor shall any bidding be retracted.
    “ 3. The purchasers are. to pay down immediately a deposit of 5s. in the. pound, or such other sum as the auctioneer shall name, in part payment (each deposit to be applicable to any lot or lots purchased), and to give in their names and places of abode; in default of which the. lot or lots so purchased to be at tire disposal of the auctioneer.
    “ 4. The purchaser shall pay the remainder of his purchase money for all lots purchased by him within two days immediately following the last day of sale and before the possession of any lot shall be delivered to him. Payments must be made by bankers’ draft or guaranteed cliecques, and will only be accepted if made payable to J. G. White & Co., Ltd.
    “ 5. The lots to be at the purchaser's expense and risk from the fall of the hammer, and to be taken away with all faults and imperfections and errors of description, at the. purchaser’s risk, within seven days of the last clay of sale'. In cases where one buyer purchases more than one lot. the whole of the amount of the lots purchased is to be paid before any one lot is delivered, and no person is to be entitled to anything not described in the lots; neither will any lot be transferred from the purchaser to a subpurchaser. No allowance whatever will be made for errors in description or quality, but the lots are to be cleared as shown at the sale.
    “ 6. All lots left after the specified time will be entirely at the purchaser’s risk, and will be liable to any expenses that may arise from their not having been cleared in accordance with the above conditions.
    “ 7. The purchasers to be answerable for all damage, they, their carriers, or other agents may do to any lots or the premises in taking down or removing their respective lots, and to properly repair the same before their lots are removed from the premises or deposit with the auctioneer such sum of money as the auctioneer ma)' determine to cover the cost of making good such damage.
    “ 8. Inasmuch as the auctioneer acts only as agent, he shall not be considered personalty responsible for any default on the part of either purchaser or vendors.
    “ 9. upon failure to comply with the above conditions the amount deposited shall be forfeited; the lots uncleared within the time aforesaid shall be. resold, either by public sale or private contract, without any intimation to the defaulter, and the deficiency (if any) by such second sale, together with all charges attending the same, shall be made, good by t'he defaulter or defaulters at this present sale, and be recoverable as and for liquidated damages, but any surplus that may arise therefrom shall belong solely to the vendors. The auctioneer or vendors shall have full right to enforce any contract made at this sale, and to sue. for the full price of the goods, and the foregoing provisions as to resale shall be entirely without prejudice as to such right.
    “ 10. Neither the vendors nor the auctioneer will be liable or responsible for or in respect of any accident which may happen to purchasers or intending purchasers or their servants, before, after, or during the sale, viewing or removal of any lots.
    “ 11. Where lots are cased or crated, the buyer must take the case or crate at cost price.
    “ Lastly. The auctioneer to be the sole arbitrator in every matter of dispute.
    “ N. B. — Where cheques are accepted in payment of purchaser’s sale accounts, their lots must not be removed until advice has been received that the cheque has been duly honored.
    “ Robert H. Ruddock.
    
      
      “Auctioneer and Valuer, 71 Fleet Street, London, E. G. A
    “(Ibid.)”
    On page 3 of said catalogue appears the following:
    “ Note. — -1. For the convenience of purchasers attending the sale, a cold collation will be provided, and the sale adjourned for half an hour.
    “ 2. The auctioneer begs to draw attention to the fact that the whole of the lots comprised in this catalogue are quite new.
    “ 3. Where there is a series of lots of the one article, the auctioneer will give the purchaser of the first lot the option to take the whole series or as many lots as he requires at the same price.”
    On pages 58 and 59 of said catalogue the following items appear:
    STEAM PACKING
    Lot.
    1256. 420 ft. Gi-aplioflake packing, % in. diameter.
    1257. 200 ft. ditto, % in. diameter.
    1258. 336 ft. ditto, in. diameter.
    1259. 203 ft. ditto, % in. diameter.
    1260. 240 ft. ditto, % in. diameter.
    1261. 408 ft. ditto, 1 in. diameter.
    1262. 40 lbs., % in. diameter.
    
    1263. 50 lbs., % in. diameter.
    1264. 45 lbs., % in. diameter.
    1265. 140 lbs. ditto, 1 in. diameter.
    1266. 15 lbs. ditto, 14 in. diameter.
    1267. 208 cwt. Gai-loek packing, % in. diameter.
    1268. 360 cwt. ditto, 1 in. diameter.
    1269. 18 cwt. ditto, 14 in. diameter.
    1270. 250 cwt. ditto, % in. diameter.
    1271. 400 cwt. ditto, % in. diameter.
    1272. 200 cwt. ditto, 1 in. diameter.
    1273. 150 cwt. ditto, % in. diameter.
    1274. 400 cwt. ditto, 14 in. diameter.
    1275. 450 cwt. ditto, % in. diameter.
    1276. 60 cwt. ditto, % in. diameter.
    1277. 70 cwt. ditto. % in. diameter.
    IY. Lieutenant David A. Hart, Corps of Engineers, United States Army, was post commander and depot engineer officer of the U. S. Army Engineer’s depot, Slough, England, from September, 1918, to August, 1919, and preparatory to the sale by auction of the stores and equipment in the said depot prepared an inventoiy of said stores and equipment at the said depot, and the original sheets comprising said inventory were sent daily to the office of Capt. Donald A. Smith, Engineer Corps, United States Army. The original inventory of these supplies and equipment was transcribed in the office of said Smith, and furnished by him to J. G. White & Company, Limited.
    Y. The originals were rough notes, called checker’s notes, and were in pencil, and the stenographers in the office of Captain Smith transcribed them from said notes to other sheets to be mimeographed. These mimeographed sheets were transmitted by Captain Smith to J. G. White & Company, Limited, whose duty it was under its contract to prepare the catalogue listing and describing the stores and equipment for sale, and whose duty it was under its contract to verily the description and quantities stated in the inventory furnished by the contracting officer.
    In preparing the typewritten sheets for mimeographing an error occurred in that one of the stenographers read the abbreviation on said rough notes intended for pounds avoirdupois as hundredweights and so recorded it on the typewritten sheet in connection with the listing of certain Gar-lock steam packing, the subject matter of this suit. These mimeographed sheets were used in the preparation of the catalogue by J. G. White and Company, Limited, and were not verified by them; and when the catalogue was published and distributed it listed the quantity of Garlock steam packing as being hundredweights instead of pounds. Said listing of said packing is set out in Finding III.
    YI. The said catalogue was published and put in circulation at least a week before June 24, 1919, and the plaintiff received notice in advance of the auction sale through the notices in the press and from the catalogue which was furnished to him at his request by the auctioneer. The plaintiff attended the sale as a bidder on June 25, 1919, the second day of the sale, and when the Garlock steam packing was offered for sale bid upon the same after the question of quantity of the said packing had been raised and after the auctioneer had stated that he could not guarantee any quantity. Lots 1268 to 1277 of Garlock steam packing were knocked down to the plaintiff at 8% pence per pound. The quantity in pounds of Garlock steam packing appeared in the catalogue to be 278,432 pounds.
    YII. The plaintiff before the sale on June 25, 1919, had made repeated visits to the United States Engineers’ depot at Slougli, England, and bad full opportunity to acquaint himself with the character and quantity of the supplies which were to be sold at the auction sale. At his request the Garlock steam packing was pointed out to him by one of the employes of the depot on the day before the sale. The Garlock steam packing was all housed together in a part of one warehouse, and it was shown to the plaintiff, and he was given full opportunity to arrive approximately at its quantity. He then had the catalogue which listed for sale 278,432 pounds of Garlock steam packing. It would have required 560 cases to hold that amount of packing, and it would have required 15,000 cubic feet of space to house it. Such a quantity would have supplied the needs of Great Britain for Garlock packing for twenty years. On many occasions the plaintiff, prior to June 24, 1919, was at the depot, and was given every facility to inspect the goods and supplies which were stored there and which were after-wards sold at the auction sale aforesaid.
    VIII. The auctioneer did not know that a mistake had been made in the catalogue, and did not know that the quantities of Garlock packing listed therein were not present in the depot, and in due course rendered the plaintiff a bill for £6,558 15s. 8d., covering the various purchases made by the plaintiff at said auction sale of June 25, 1919, including the item of £3,755 15s. 4d. for 278,432 pounds of Garlock packing at 314 pence per pound. On June 30,1919, the plaintiff gave his check No. C-959453, to J. G. White & Company, Limited, in the amount of £6,558 15s. 8d. in full payment of the account rendered to him by the auctioneer of J. G. White & Company, Limited, including the item of £3,755 15s. 4d. for 278,432 pounds of Garlock steam packing at 3% pence per pound, and the said check was duly cashed by the said J. G. White & Company, Limited, and honored by the banking company upon which it was drawn. When said check was accepted by J. G. White & Company, Limited, it knew that there was no such quantity of Garlock steam packing at the Engineers’ depot at Slough, England.
    On July 4, 1919, the plaintiff was notified b}? telephone by the auctioneer that it would be useless for him to present his delivery slip at the depot warehouses for the Garlock packing, us a mistake bad been made in the quantity listed in the catalogue, and no such quantity was present in the depot and had never been there. On July 4, 1919, the plaintiff wrote to J. G. White & Company, Limited, stating that he had been informed by the auctioneer that there was doubt about the quantity of Garlock packing, and that he expected the delivery of the quantity for which he had paid, to which on July 8, 1919, J. G. White & Company, Limited, replied that the information furnished the plaintiff by the auctioneer was correct, explaining how the mistake was made, and stated that it considered the explanation sufficient to close the incident, with the return of the money paid. On July 10, 1919, the plaintiff replied by saying that he would hold J. G. White & Company, Limited, to contract.
    IX. The plaintiff made repeated demands upon J. G. White & Company, Limited, for the delivery to him of the 278,432 pounds of Garlock steam packing which he had purchased on June 25, 1919, at the said auction sale and for which he had paid on June 30, 1919, but the said J. G. White & Company, Limited, refused to deliver the same upon the ground that it was not and never had been in existence. On August 18, 1919, the plaintiff received the following letter from Robert H. Ruddock, the auctioneer .and agent of J. G. White & Company, Limited:
    “ Slough sale, Garlock packing, lots 1267 to 1277
    “ DeaR Sir : I have to give you notice that the sales of all the lots numbered as above at the auction sale held on Wednesday, 26th June, 1919, by me on behalf of the vendors, the U. S. A. Government, are cancelled by reason of arrange-, ments arrived at by the buyers, which restricted free bidding for the same.
    “ You were the purchaser of a portion of this packing, :and I inclose Messrs. J. G. White & Co.’s check in your favor for £3,755 15s. 4d., being the purchase money paid by you for the same.”
    The check enclosed in said letter was received by the plaintiff, whereupon the plaintiff through his counsel repudiated the charges of collusive bidding and refused to accede éc a cancellation of said sale upon said ground and returned the aforesaid check to J. G. White & Company, Limited. After this check Aras returned to J. G. White & Company it Aras agreed between plaintiff’s counsel and the counsel of «1. G. White & Company, Limited, that an amount equal to (he purchase money paid by the plaintiff for the 278,432 pounds of Garlock steam packing would be accepted by the plaintiff from J. G. White & Company, Limited, with the express understanding that the rights of neither party should be prejudiced thereby. Whereupon the plaintiff received from J. G. White & Company, Limited, the sum of £3,755.15.4, the sum Avhich he had previously paid it for said Garlock steam packing.
    X. The plaintiff, immediately after he had purchased the Garlock steam packing at the said auction sale, sold R. S. Davies, of Mold, England, eleven tons of said packing at a profit for the eleven tons of £170.6.8 and sold to A. Roberts & Co. Ltd., of HeckmondAvicke, ten tons at -a profit for the ton tons of £150. Davies paid £100 on account of his purchase and Roberts £150 on his. All monies paid by both Davies and Roberts Avere returned to them by the plaintiff, and neither of them receded any of the packing from the plaintiff or from anyone else.
    All the Garlock packing Avhich was actually in the Slough Depot Avas sold by J. G. White & Company, Limited, by private sale to R. S. DaAÚes, of Mold, England, at 3% pence per pound. This sale Avas made on October 22, 1919.
    XL On June 30, 1919, plaintiff gaA7e an option in writing to R. S. Davies, of Mold, on from 50 to 90 tons of saidj Garlock packing at 8 pence per pound, the said option, among other things', containing the following: “ Subject to ‘the quantity being in stock as sold by the U. S. A.”
    XII. The market price of Garlock steam packing on June 25, 1919, at Slough, England, Avas 3.6 per pound, and the reasonable value at said time and place of 278,432 pounds of Garlock steam packing £44,773.16.3.
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff, George William Mottram, a British subject, against the United States to reC0A7er a sum of something OA^er $200,000. It is alleged by tlie plaintiff that at an auction sale of stores belonging to the United States held at Slough, England, on June 2o, 1919, he bought and paid for a certain lot of Garlock steam packing which was put up for sale by an agent of the United States; that the quantity of said packing so purchased by him was not delivered to him, and that although the money which he paid for said packing has been returned to him he is entitled to recover from the "United States the market value of said packing at the time the agent of the United States failed to deliver it to him.

By the act of Congress of May 10, 1918, the President was authorized “ through the head of any executive department to sell any supplies, materials, equipment or other property heretofore or hereafter purchased, acquired, or manufactured by the United States in connection with or incidental to the prosecution of the war." In the exercise of the authority so conferred upon him the President of the. United States selected the Secretary of War to sell the property described in the act; and the Secretary of War, in pursuance of the axithority vested in him, authorized the sale of certain property in England, and on April 14, 1919, Col. C. R. Pettis, Corps of Engineers, United States Army, acting under the authority of the Secretary of War, entered into a written agreement with J. G. White & Company, Limited, of London, England, whereby the said White & Company undertook under the terms of the contract to sell for the United States certain quantities of engineer stores and equipment in storage at the U. S. Engineer depots at Slough and Didcot, and other places. In pursuance of said contract White & Company advertised for sale by auction on June 24, and the following days, certain quantities of engineer stores and equipment at Slough, England.

Among these stores was a quantity of Garlock steam packing, and when the catalogue listing the property for sale was published and distributed it was set out • in said catalogue that there was for sale 278,432 pounds of Gar-lock steam packing. The plaintiff bid for this packing and the same was knocked down to him at 3i/± pence per pound. The plaintiff purchased other property at said auction sale, and gave White & Company bis check for all of his purchases, included in which check was the amount due by him for the Garlock packing. This check was accepted by White & Company and collected by them.

It, however, was discovered in a few days after the sale that there was not the quantity of Garlock packing in the storehouses at Slough which had been advertised and which had been bid for by the plaintiff. It was explained to the plaintiff that a mistake had been made in making the inventory by the stenographers who transcribed the notes furnished them, and that the inventory furnished by the contracting officer to White & Company was in error as to the quantity of Garlock steam packing. The plaintiff insisted upon the delivery to him of the quantity of packing for which he had bid or the payment to him of the market value of the packing at the time of the Sale. White & Company were unable to deliver the packing, and returned to the plaintiff the money which he had paid for the packing, which he finally accepted with the understanding that his rights should in nowise be affected by the acceptance.

Before the sale on June 25, 1919, the plaintiff had visited the storehouses at Slough for the purpose of inspecting the stores which were to be sold on that day; on the occasion of one of his visits he asked about Garlock steam packing; the location of all of it in the storehouse was pointed out to him. If there had been 218,432 pounds of such packing it would have occupied a space of 15,000 cubic feet. Such a quantity of Garlock packing would have supplied the needs of Great Britain for at least twenty years. The facts show that the plaintiff before the sale knew there was not at Slough anything like the quantity of Garlock packing which was advertised for sale in the catalogue. When on June 25, 1919, the auctioneer put up the Garlock packing for sale he. was asked in the presence of the plaintiff if he guaranteed the quantity of Garlock packing which he was offering, and the auctioneer stated that he did not guarantee the quantity. With his knowledge of the probable quantity of Garlock packing and this statement of the auctioneer the plaintiff made his bid. And afterwards on June 30, 1919, when he gave to one Davies an option on ninety tons of this packing the plaintiff took care to specify in the option that it was “ subject to the quantity being in stock as sold by the U. S. A.” The plaintiff having knowledge that the quantity of packing which he bid for was not in the possession of the vendor, and knowing when he bid and when he paid for the packing that it could not be delivered, he can not be heal'd in this court to assert a claim so evidently based upon a design to get something for nothing.

But apart from the aspect of the case above referred to the plaintiff has no claim against the United States. All of the plaintiff’s transactions were with White & Company. That company conducted the sale, issued the catalogue, and employed the auctioneer. The plaintiff paid his money to White & Company, received it back from White & Company, and fully recognized that White & Company were the agents of the United States. That agency was governed by the contract which the United States had with White & Company, and all persons dealing with White & Company as the agent of the United States had the duty imposed upon them to inquire as to what its power was in issuing catalogues listing the quantities of articles for gale, and how far statements contained in such catalogues would bind the United States.

This contract among other things provided: “ The contracting officer assumes no liability for claims of any character that may be made by purchasers against the contracting officei’, and the selling agents shall hold and save the contracting officer and his authorized representatives free and harmless from and against all and every claim, by purchasers and prospective purchasers, that may arise from the operations incident to this agreement.” Under this provision of the contract it is obvious that whatever claim the plaintiff may have it is not such a claim as can be successfully urged against the United States.

Moreover, it was the duty of White & Company under the contract to supply all auctioneers, accountants, cashiers, salesmen, engineers, and assistants for the preparation of catalogues, listing and describing the various classes of stores and equipments from the inventories furnished by the contracting officer; and the contract further provides: “ The description and quantities, as stated in the inventories of the contracting officer, are subject to verification by the selling-agents, and the contracting officer assumes no liability for the accuracy of such descriptions and quantities.” The Government is, therefore, not bound by the mistakes made in the catalogue. The plaintiff was bound to take notice and to inform himself of the extent of the authority of the selling agent to bind the Government.

When White & Company by mistake listed in the cata-logue a quantity of Garlock steam packing which was not in storehouses and which could not be delivered when sold, the mistake was that of White & Company and not that of the United States and the plaintiff can not look to the United States for redress.

The petition of the plaintiff must be dismissed. It is so ordered.

Graham, Judge; Downey, Judge: Booth, Judge; and Campbell, Chief Justice, concur.  