
    NICOLA MAFFIA v. THE UNITED STATES
    [No. 135-54.
    Decided July 16, 1958]
    
      
      Mr. Thomas M. Gittings, Jr., for the plaintiff. Messrs. WUmu/rt B. Linker, Evan Howell, and King <& King were on the briefs.
    
      Miss Kathryn H. Baldwin, with whom was Mr. Assistant Attorney General George Ooehran Doub, for defendant.
   WhitakeR, Judge,

delivered the opinion of the court:

Plaintiff seeks to recover on account of the payment by him, as assignee, of the balance due of $10,800 by one James J. McSweeney on a contract with defendant for the purchase of three surplus tugs. Plaintiff paid this sum pursuant to an assignment of the contract which he had received from McSweeney. Plaintiff alleges that the payment by him was conditioned upon the transfer of the title to the tugs to him, but that defendant transferred title to the original purchaser, instead of to plaintiff.

When this case was before us on defendant’s motion for summary judgment, we held (135 C. Cls. 604) that plaintiff’s assignment from McSweeney was invalid under the statute (41U. S. C. 15) forbidding the assignments of contracts with the United States and, hence, unenforceable against the Government. While this precluded plaintiff from recovery under the assignment, we indicated that plaintiff might be entitled to a refund of his $10,800, depending on the facts surrounding its payment, and we referred the case to a commissioner for trial. By a subsequent order of March 20,1957, evidence to be taken was “limited to the establishment of the circumstances under which the plaintiff’s check for the sum of $10,800 was delivered to and accepted by the defendant.” The trial commissioner’s report shows the following, which we find to be the facts:

On February 10,1948, McSweeney’s offer, accompanied by a deposit of $1,200, to purchase three surplus tugs for a total price of $12,000 was accepted by the Paris office of the Central Field Commissioner, Office of the Foreign Liquidation Commission, Department of State. Under the terms of the sale the balance of the purchase price was to be paid within 30 days, payment to be made either to the “Central Field Commissioner, Europe”, or to the Office of the Foreign Liquidation Commissioner, Washington, D. C., or to any official of the United States Government designated by the Commissioner.

McSweeney encountered difficulty in raising the balance of the purchase price and upon request secured a 15-day extension, to March 25, 1948, for payment of the balance. In his efforts to finance the undertaking, McSweeney, who at the time was residing in Kome, Italy, contacted plaintiff’s office in that city, which in turn contacted plaintiff, who was in New York City. Plaintiff was interested, and arrangements were made for McSweeney’s representative to go to New York to negotiate with him. On or about March 24, 1948, one A. G. Van Wye, plaintiff’s representative, met with the plaintiff in New York, and showed plaintiff the power of attorney executed by McSweeney appointing him his attorney-in-fact, with “full power and authority to do everything whatsoever necessary to be done in connection with the inspection, repair, modification,' and sale (to transfer title in full to yourself, or at your discretion, to others) ” of the three tugs to be purchased under the subject contract.

After discussing the transaction at length, plaintiff offered to pay the balance of the purchase price, provided arrangements could be made to have title to the tugs issued in his name. Van Wye, on behalf of his principal, agreed to this. At the same time attorney Van Wye and plaintiff entered into a further agreement, which, in addition to reciting that plaintiff was to receive title to the tugs, provided that Mc-Sweeney was to make the arrangements necessary to make the tugs seaworthy, with money to be provided by plaintiff, and that on a sale of the boats, plaintiff was to receive $3,000 plus all money advanced by him, and that the balance of the sales price would be divided, 30 percent to plaintiff, and 70 percent to McSweeney.

On March 25,1948, Van Wye went to the office of Orin de Motte Walker, an attorney whom plaintiff had employed. Walker prepared a new assignment, assigning to plaintiff all of the right, title and interest which McSweeney possessed in the tugs. The two then proceeded to the Office of the Foreign Liquidation Commissioner where they met with Raymond J. Queenin, Acting Director of the Budget and Accounting Division of the Office of the Foreign Liquidation Commissioner.

Before further recitation of the special facts relating to this transaction, it seems appropriate to define Queenin’s authority. His principal responsibility and duty was to maintain a general inventory control, receive reports of sales and copies of sales documents and make statistical reports, but he was authorized to receive payments of amounts due on contracts. With respect to such payments, on contracts which were made abroad, the sole function of Queenin’s division was to accept payment, deposit the money with the Army Finance Officer, and advise the contracting officer of the payment. Queenin had no authority to act in any way in connection with the negotiation, execution, administration, alteration, modification, or consummation of contracts made abroad for the sale of surplus property, including the acceptance of assignments of such contracts.

Walker and Van Wye told Queenin of the assignment to plaintiff of the contract to purchase the tugs, and that plaintiff proposed to put up the balance of the purchase money on certain conditions, the chief of which, was that Queenin would not deliver plaintiff’s check in payment of the balance, unless he was assured that the title to the tugs would be issued in plaintiff’s name. Queenin stated that the title documents would have to be issued by the Paris office, and that he could not agree to return the amount of the payment to plaintiff in the event the contract was not consummated, as Walker had requested. Because of this, and the fact that the assignment drafted by Walker, and signed by Van Wye, purported to transfer title to the tugs, which, until payment was made, McSweeney did not have, the assignment from McSweeney to plaintiff was redrafted by Walker in Queenin’s office to provide, first, that any refunds which might be due with respect to the subject contract, if it was not consummated, were to be turned over by McSweeney to plaintiff, and, second, that McSweeney assigned his interest in the contract, and not title to the tugs, as the former assignment had done.

Queenin then accepted from Walker plaintiff’s check for $10,800 and prepared and signed the following receipt, dated March 25, 1948, which was delivered to Walker:

Received from Nicola Maffia certified check No. 128 drawn on Manufacturers Trust Company, New York, in the amount of $10,800.00 payable to Treasurer of the United States as a payment on contract W-ANL (ETO-II)-4098. This payment is made on behalf of James J. McSweeney, the purchaser, who has assigned the contract to said Nicola Maffia.

On this same date the following cablegram was transmitted by the Washington office of the Foreign Liquidation Commissioner to the Paris office:

Received $10,800 from Nicola Maffia on contract (ETO II) -4098. Advise McSweeney, Rome that full payment has been made. 1044’s follows. [What “1044’s” are is not explained.]

Thereafter on March 81, 1948, the Paris office notified McSweeney that payment on his contract had been received. On April 1, 1948, the bills of sale were forwarded to Mc-Sweeney, and on April 16,1948, he accepted delivery of the tugs at Malta. Whether this was in violation of the condition on which plaintiff paid the balance of the purchase price is in dispute.

The trial commissioner has found that “it was agreed * * * that Queenin would cable the Paris office that the balance of the contract price had been paid by plaintiff, that Mc-Sweeney had assigned the contract to plaintiff, and that the title documents were to be issued in plaintiff’s name and sent to his Nome office.” The trial commissioner further found that “it was understood that the power of attorney and assignment would be forwarded to the Paris office for completion of the transaction.” Defendant has excepted to this finding, taking the position that Queenin agreed only that he would send a cablegram to the Paris office advising that payment had been made by plaintiff, and notifying the Paris office of the assignment. However, apart from what may have been the understanding between Walker and Queenin with respect to notice to Paris relative to the issuance of the title documents, under the terms of the receipt plaintiff was entitled to have the Paris office notified by Queenin that .the payment had been made on condition that the assignment of the contract to him would be recognized by defendant.

Queenin had no authority to agree to the assignment, but he did have authority to accept payment, and that authority imposed on him the obligation of not only notifying the contracting officer as to the fact of payment, but also of the conditions upon which the payment had been made.

The cablegram to Paris did not do this. As a result, the Paris office, which was the office with authority to act on the matter, was never notified of the assignment. Despite the bar of the Anti-Assignment statute (41 U. S. C. 15), the Government, if it chooses to do so, may recognize an assignment. Defendant concedes this. Here, because of the failure of Queenin’s office to notify the Paris office of the terms of the payment, it did not either recognize or repudiate the assignment. If that office had elected to recognize the assignment, it would have been obliged to transfer title to the tugs to the plaintiff. If it declined to recognize the assignment, then plaintiff would have been entitled to recover his $10,800.

Had the contracting officer been advised of the terms of the payment, plaintiff would either have received title to the tugs or the return of his money. At least, he ivas entitled to one or the other. That he was not so advised was the fault of the defendant. Plaintiff is entitled to no less than a return of his money. He is not entitled to more, unless the assignment is good, and it is not good, unless the contracting officer chooses to recognize it and make it' good; otherwise, it is contrary to law. He never recognized it. Defendant, therefore, cannot be charged with a breach of the obligation of the assignment. But it is to be charged with a breach of the obligation to acquaint the contracting officer with the conditions upon which the payment was made.

Piad the contracting officer been advised of these conditions, he would have been compelled to have done one of two things, either to recognize the assignment, or to return plaintiff’s money. He was not obligated to recognize the assignment, but he was obligated to return plaintiff’s money, if he did not recognize it. The reasoning found in United States v. State Banke, 96 U. S. 30, 35, is applicable here. There the Court stated:

An action will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial.

One more thing: While it is true that there was a considerable lapse of time before plaintiff called to the attention of the Government McSweeney’s repudiation of the assignment, we do not believe that this fact is sufficient, in the light of plaintiff’s agreement with McSweeney, to charge him with laches. Under that agreement it was McSweeney who was to take delivery of the tugs, and to arrange for the making of necessary repairs, and to provide for their eventual sale. Plaintiff, therefore, had no reason for complaint because defendant delivered the tugs to McSweeney. It was apparently a year later that he learned that McSweeney had dishonored the assignment.

Judgment will be entered for plaintiff in the sum of $10,800.

It is so ordered.

Laramoke, Judge; Madden, Judge; LittletoN, Judge; and J ONES, Chief Judge, concur.

FINDINGS OF FACT

The court having considered the evidence, the report of Trial Commissioner Roald A. Hogenson, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Nicola Maffia, is a citizen of the United States and resides at Brightwaters, New York. During the period involved in this suit, the plaintiff maintained offices in New York City and in Rome, Italy.

2. On February 6, 1948, James J. McSweeney, an American residing in Rome, Italy, submitted a written offer, pursuant to the Surplus Property Act of 1944, as amended, 50 U. S. C. App. § 1611, et seg., to purchase from the defendant, acting through the Central Field Commissioner, Office of the Foreign Liquidation Commissioner, Department of State, three surplus tusa tugs, Nos. 219, 220, and 221 for a unit price of $4,000 each, or a total of $12,000. Ten percent of the total purchase price, or $1,200 accompanied this offer.

3. This offer was accepted by the Central Field Commissioner for Europe in Paris, France, on February 10, 1948, and the resulting contract was designated as Case No. 21,580 Contract No. W-ANL(ETO-11)4098. Under paragraph 3B (1) of the Sales Terms and Conditions, which had been attached to the offer and became part of the contract, the purchaser was required to make payment of the balance of the purchase price within 30 days of the day of the mailing of the signed acceptance of the offer, said payment to be made either to the Central Field Commissioner for .Europe or to the Office of the Foreign Liquidation Commissioner, Washington, D. C., or to any official of the United States Government designated by the Commissioner, such as the Military Attache.

4. On March 10, 1948, one A. G. Van Wye, a former lieutenant commander in charge of the Maritime Division of the Office of the Foreign Liquidation Commissioner in Rome, telephoned from Rome to the Paris office of the Foreign Liquidation Commissioner on behalf of the purchaser, McSweeney, advising that the purchaser had been unable to raise the balance of the purchase priee, $10,800, and requesting that the time for final payment be extended for 15 days, or through March 25, 1948. This extension was granted by telegram dated March 11, 1948, from the Paris office to McSweeney in Eome.

5. At the suggestion of a Eome bank which was not willing to finance the purchase of the tugs, Mr. McSweeney contacted the plaintiff’s office in Eome, which was managed by the plaintiff’s brother, Francisco Maffia, to seek financial assistance. Upon learning, the nature of the contract, the plaintiff in New York City indicated his interest in the tugs, whereupon arrangements were made for McSweeney’s representative to go to New York City to negotiate with plaintiff.

6. On March 15, 1948, McSweeney executed before the American Vice Consul in Eome a special power of attorney appointing A. G. Van Wye, the same person mentioned in finding 4, as his attorney-in-fact with “full power and authority to do everything whatsoever necessary to be done in connection with the inspection, repair, modification, and sale (to transfer title in full to yourself, or at your discretion, to others) ” of the three tugs which formed the subject matter of the contract previously mentioned in finding 3.

Thereafter, Van Wye came to New York where he contacted the plaintiff on or about March 24, 1948. After examining Van Wye’s power of attorney and discussing the transaction at length, Maffia offered to pay the balance of the purchase price to the Office of the Foreign Liquidation Commissioner provided arrangements could be made to have the title to the tugs issued in his name. Van Wye advised plaintiff that this was agreeable to his principal, and these terms were accepted by Van Wye on behalf of his principal, McSweeney.

7. At the same time plaintiff and Van Wye entered into a further agreement with respect to the subject tugs, which was evidenced by the following letter, dated March 24, 1948, from plaintiff to McSweeney:

In consideration of the sum of $10,800.00, for which a certified check is to be issued in favor of the Treasurer of tbe United States, I will receive title, to three tug boats, TUSA #219-#220-#221, located at Malta, covered by option dated February 10,1948, Case No. 21500,, Contract No. W-ANL (ETO 11), granted by the U. S, Government, Office of Foreign Liquidation in Paris, to Mr. J ames J. McSweeney.
I will authorize you to proceed -with repairs and procure spare parts in order to place said boats in shipshape and perfect operating condition, complete and ready for service, and I will advance you money as necessary up to the sum of $18,000.00, within a month after receipt of the title to the boats.
You guarantee that said sum of $18,000.00 is sufficient to cover all necessary repairs and any expense in excess of said amount is to be borne by you and deducted from your share of profit on the sale of the boats.
In consideration of your work and my financing, it is agreed that upon the sale of the boats, I will retain from the proceeds, the sum of $3,000.00 as a premium due me, plus all the sums advanced by me. Of the balance of the proceeds, I will further retain 30% of said balance, and the remaining 70% will be paid to you.
It is understood that the sale of the boats will require specific agreement between you and myself. Should you default in the performance of your part of the contract, I will be entitled to mortgage, sell, or dispose of the boats as I see fit, without recourse on your part. This will also apply in the event of circumstances beyond control of both of us, with the understanding that the disposition of funds thus obtained by me, will be made in the same manner as provided in the preceeding paragraph.
A copy of this letter, signed by your duly appointed attorney, Mr. A. G. Van Wye, will signify your acceptance of this provisional agreement, which will be substituted by a legal paper embodying all the clauses and conditions hereinbefore set forth.

This letter was signed by plaintiff and was endorsed and signed by Van Wye as accepted for McSweeney.

8. Plaintiff had never met nor had any dealings with McSweeney or Van Wye, and he consulted his then New York counsel who advised him to contact Grin de Motte-Walker, an attorney in Washington, D. C., for assistance in?, concluding the transaction. On March 24,1948, the plaintiff' telephoned Walker who agreed to represent him in consummating the transaction in the Office of the Foreign Liquidation Commissioner. The plaintiff informed Walker that he would forward a certified check for the balance of the purchase price which was to be delivered to the Office of the Foreign Liquidation Commissioner only in the event that satisfactory arrangements could be completed for the issuance of the title documents to the tugs in plaintiff’s name to be delivered to him at his Nome office. Mr. Walker was also advised that Van Wye would proceed to Washington with his power of attorney from McSweeney and would accompany him to the Office of the Foreign Liquidation Commissioner.

These arrangements were promptly confirmed by the following special delivery letter from plaintiff to Walker, dated March 24, 1948, which was accompanied by a certified check for $10,800 payable to the Treasurer of the United States:

Following our telephone conversation of this afternoon, I am herewith enclosing certified check in the amount of $10,800.00 in favor of the Treasurer of the U.S.
This check covers the final payment on an option covering three TUSA tug boats, No. 219-No. 220-No. 221, located in Malta. Tins option was originally given to Mr. James J. McSweeney who in turn gave full power of attorney to Mr. A. G. Van Wye.
In consideration of my payment of said $10,800.00, Mr. Van Wye agrees to turn the title of the three tug boats to me; we have a separate agreement for the final disposition of said tugs.
The most important thing I want now, in order to be protected, is that the Foreign Liquidation Commission agrees to turn title to me before the final papers are issued. The check is conditional upon the above terms.
Should any doubt arise in your mind, kindly call me up.
* * ❖ * *
PS: All documents should bear my name, Nicola maffia, and should be forwarded directly to
Metropolitan Soc. Com. Oltremare P.zza Augusto Imperatore 27/32 Pome, Italy

There is no evidence that this letter or any copy thereof was ever delivered to or shown to any representative of the defendant.

9. On March 25, 1948, Van Wye went to Walker’s office in Washington, D. C., where Walker prepared and Van Wye executed an instrument assigning to plaintiff all of the right, title, and interest which McSweeney possessed in the tugs. Van Wye accompanied Walker to a building which housed various divisions of the Office of the Foreign Liquidation Commissioner. By suggestion or direction of a secretary or receptionist, they went to Baymond J. Queenin, Acting Director of the Budget and Accounting Division of the Office of Foreign Liquidation Commissioner. This same building housed the Legal Division, but no contact was had with that office or any of its personnel.

With Queenin as the sole representative of the Office of the Foreign Liquidation Commissioner, a conference was held in which Walker exhibited Van Wye’s power of attorney, the assignment to plaintiff, and plaintiff’s certified check. Walker explained plaintiff’s proposal to pay the balance of the purchase price to the defendant provided arrangements could be made to have the title to the tugs issued in plaintiff’s name. The assignment of McSweeney’s interest in the tugs to plaintiff, previously prepared by Walker and executed by Van Wye, was reviewed by Queenin who stated that this assignment was of no effect because it purported to transfer title to the tugs, and McSweeney could not have any title until the balance of the contract price had been paid. To meet the criticism of Queenin, Walker then used the facilities of Queenin’s office to prepare the following undated instrument, which was then and there executed by Van Wye as attorney-in-fact for McSweeney and signed by Walker as a witness:

ASSIGNMENT
KNOW ALL MEN BT THESE PRESENTS:
This is to certify that I, A. G. Van Wye, attorney in fact, for James J. McSweeney, Via San Nicola da Tolentine, 50, Borne, Italy, (as evidenced by the attached power of attorney executed the 15th day of March 1948) hereby assign all the rights, [sic] title and interest to the Contract No. W-AnL (ETO-11)-4098, dated 10 February 1948, to Mr. Nicola Maffia, 100 Hudson-Street, New York City, which contract was entered into between the Central Field Commissioner for Europe, Office of the Foreign Liquidation Commissioner, Government of the United States, and- J ames J. McSweeney, transferring title and possession to three (3) Tusa Tugs Nos. 219, 220 and 221. This assignment includes any and all refunds or payments which may be due to James J. McSweeney from the United States Government under the aforesaid contract, which shall by virtue of this assignment be payable to Nicola Maffia. The said James J. McSweeney hereby releases and discharges the Government of the United States from all claims for the payment to the said James J. McSweeney of any part or all of any refunds which may be due or payable to the said' McSweeney under the aforenumbered contract.
A copy of this assignment shall be .deposited with the Office of the Foreign Liquidation Commissioner, Washington, D. C., as evidence of the assignment and release contained herein.

Walker insisted that he would not deliver the certified check in payment of the balance due on the tugs unless he was assured that the title to the tugs would be issued in plaintiff’s name. There was some discussion concerning the fact that title documents would have to be issued out of the Paris office and as to where they were to be sent, and it was agreed that Walker would leave with Queenin the plaintiff’s certified check, the above-quoted assignment, and a photostatic copy of Van Wye’s power of attorney from McSweeney, and that Queenin would cable the Paris office that the balance of the contract price had been paid by plaintiff, that McSweeney had assigned the contract, to plaintiff, and had agreed that the title documents were to be issued in plaintiff’s name and sent to his Pome office. It was understood that the power of attorney and assignment would be forwarded to the Paris office for approval or rejection. Thereupon Queenin accepted from Walker the plaintiff’s certified check for $10,800, being the balance of the contract price, the assignment executed in his office, and a photostatic copy of Van Wye’s power of attorney from McSweeney.

Walker requested a receipt for the certified check, and Queenin prepared and delivered to Walker the following-statement, dated March 25, 1948, signed by Queenin as-Acting Director, Budget and Accounting Division, Office of the Foreign Liquidation Commissioner:

Received from Nicola Maffia certified check No. 128 drawn on Manufacturers Trust Company, New York, in the amount of $10,800.00 payable to Treasurer of the-United States as a payment on contract W-ANL(ETO-II)-4098. This payment is made on behalf of James J. McSweeney, the purchaser, who has assigned the contract to said Nicola Maffia.

At the conference, Queenin advised Walker that he could not agree to return the amount of the payment to plaintiff in the event the contract was not consummated. It was for this reason that Walker included in the assignment, quoted above in this finding, the terms concerning refunds. Walker also had Van Wye provide his personal check to plaintiff in the sum of $1,200 as a guaranty that McSweeney had deposited that sum on the contract in the Paris office.

10. On March 25, 1948, some unidentified person in Queenin’s office prepared and caused the following cablegram to be transmitted from Washington, D. C., to the Paris office of the Office of Foreign Liquidation Commissioner:

■UNCLASSIFIED ROUTINE
from: dept of ARMY SIGNED CONNOLLY
ACTION TO: OFLC PARIS
REF NO.: WCL 40871
Received $10,800 from Nicola Maffia on contract (ETO II)-4098. Advise McSweeney, Rome that full payment has been made. 1044’s follows.

Major General Connolly was the Foreign Liquidation Commissioner, but the cablegram was merely sent in his name without personal knowledge on his part. The contents of this cablegram were not made known to plaintiff personally or through any agent.

11. The Office of Foreign Liquidation Commissioner, handled the disposition of property in foreign areas which became surplus to the United States as a result of the termination of World War II. The Washington office was largely a policy making and directing office. Actual disposal was decentralized to the areas where the surplus property was located. Property in the Mediterranean area was handled by the Central Field Commissioner for Europe whose office was in Paris. With the exception of a specialized group of contracts which are not pertinent here, contracts were handled and sales were consummated in the offices of the Central Field Commissioner. On occasion payments on contracts were made in the Budget and Accounting Division of the Washington office, of which Mr. Queenin was Acting Director and Deputy Director, and the field was notified of the payment. The principal responsibilities of this division were to maintain a general inventory control, receive reports of sales and copies of sales documents from the field offices, and make statistical reports. With respect to payments made in the Washington office on contracts which were made abroad, the sole function of the Budget and Accounting Division was to accept the payment, deposit the money with the Army Finance Officer, and advise the contracting officer of the payment, and of any conditions accompanying the payment. It was a routine matter to identify the payment with the contract and send a telegram to the office having control of that contract.

12. Queenin had no authority of any nature to act in any way in connection with the negotiation, execution, administration, alteration, modification, or consummation of contracts made abroad for the sale of surplus property. No one in the office which Queenin supervised had any such authority with respect to the contract here under consideration. Walker made no inquiry concerning Queenin’s authority, and he did not check any of the regulations pertaining to the Office of the Foreign Liquidation Commissioner before making plaintiff’s payment on said contract.

13. Queenin testified in effect that if a conditional offer of payment of a contract balance were made to him, that he could receive the payment conditionally and refer the matter to the appropriate contracting officer for consideration and action on the stated conditions. In such an event, tbe practice of his office was to cause the check received on the conditional offer to be deposited in a special account until fulfillment or rejection of the conditions. In this case, the plaintiff’s check was delivered to the Army Finance Officer who deposited it in the regular account for collection.

14. On March 30, 1948, the Paris office of the Office of Foreign Liquidation Commissioner received the cablegram quoted in finding 10.

By letter dated March 31, 1948, the Paris office wrote to McSweeney at Rome, as follows:

We have been advised by our Washington office that they have received $10,800.00 from Nicola Mafia on contract ETO 11-4098 covering the sale to you of 3 tusa tugs.
The original Disposal Documents and Bills of Sale are being forwarded to you under separate cover this date.

With the following covering letter, dated April 1, 1948, the Paris office caused the original disposal document and bills of sale pertaining to the three tugs to be delivered to McSweeney at Rome:

We forward herewith the original Disposal Document 21580 and three original Bills of Sale for the Tusa Tugs nos. 219, 220, and 221 purchased by you and located at Malta.
Delivery of your property can be accomplished upon presentation of the original Disposal Document to Lt. Peter Gill, R. N. Office of the Commander in Chief, Med., Lascaras, Valletta, Malta.

15. On April 16,1948, McSweeney received delivery of the three tugs from the defendant and accordingly signed the disposal document as required by the terms of the contract.

16. The Paris Office of the Foreign Liquidation Commissioner was never advised of the attempted assignment and, hence, did not act on it and never notified plaintiff that the conditions of plaintiff’s payment on March 25, 1948, would not be or were not fulfilled, nor was plaintiff advised by the defendant that the tugs and title papers would be or had been delivered to McSweeney.

The only inquiry which plaintiff made of the Office of Foreign Liquidation Commissioner, after the conference on March 25, 1948, was by a letter dated June 8, 1949, from plaintiff at New York City to the Office of the Foreign Liquidation Commissioner at Washington, D. C., as follows:

An option to purchase the above-captioned tugboats was granted to Mr. James J. McSweeney on February 10, 1948, by the United States Government, Office of Foreign Liquidation in Paris, France.
Said Mr. McSweeney, assigned all rights and interest in these tugs to me on March 25, 1948, for which I paid the sum of $10,800.00 to the Treasurer of the United States. These tugboats are presently in the port of Mes-sina, Italy, in transit. Since I expect to dispose of them, it is necessary for me to have the following information:
1) Are these tugs registered under the United States flag?
2) If so, how may I secure proof of this registration?
3) If not, can you let me know what the status of these tugs is, insofar as registration is concerned ?

It was about a year after the conference on March 25,1948, when plaintiff first discovered that the title documents to the three tugs had been delivered to McSweeney, and plaintiff’s first complaint to any official of the defendant was made when he filed his claim with the General Accounting Office in 1952.

17. The plaintiff’s certified check for $10,800 was duly negotiated by the defendant and no portion of this sum has been refunded to the plaintiff. On July 12, 1952, the plaintiff presented a claim to the General Accounting Office for the refund of this money, and for the payment of the damages he had sustained as a result of the defendant’s actions. This claim was denied by decisions of the Acting Comptroller General dated May 12, 1953 and August 20, 1953.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover. It is therefore adjudged and ordered that plaintiff recover of and from the United States the amount of ten thousand eight hundred dollars ($10,800).  