
    HARRY R. CARROLL AND LOUIS D. CARROLL, PARTNERS TRADING UNDER THE FIRM NAME OF CARROLL ELECTRIC CO., v. THE UNITED STATES
    [No. C-925.
    Decided April 16, 1928]
    
      On the Proofs
    
    
      Contract of sale; failure to deliver wrticle m condition for test; return of sarnie; mutual rescission. — Where the sale of an article is conditioned upon delivery and satisfactory test, the article is delivered in such condition that it can not he tested, instead of being repaired by the contractor is returned at its request and resold, upon such request the Government declares the contract of sale revoked and returns the amount deposited as guaranty of performance, which is accepted, and the contractor at no time makes an oiler to replace the article, there is a mutual rescission of the contract, and the contractor can not recover for loss sustained in the transaction.
    
      The Reporter’s statement of the case:
    
      Mr. George R. Shields for the plaintiffs. King <& King were on the briefs.
    
      Mr. Ralph G.• Williamson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Harry R. Carroll and Louis D. Carroll were at all times involved in this suit copartners trading and doing business under the firm name of Carroll Electric Company.
    II. In November of 1917 an advertisement published by the Acting Supervising Architect of the Treasury Department specified that—
    “ Sealed proposals will be opened at 2 p. m., November 26, 1917, in the office of the Custodian, U. S. Sanatorium, Ft. Stanton, New Mexico, for furnishing and delivering f. o. b. cars, Capitán, N. Mex., one 50 k. w., 2-wire, 110-volt, d. c., direct-connected electric generating equipment. Engine to be single cylinder, noncondensing, piston valve type, and generator must be capable of operating in parallel with a 40 k. w. Skinner engine. Bids are desired preferably for a new engine and generator, but a secondhand outfit in first-class condition will be considered. Each bid is to be accompanied by a certified check in amount 10% of the bid, payable to the Treasurer of the United States. Time for delivery must be stated in proposal. Payment in full will be made after the electric generating unit is set on its foundation and tested out and demonstrated that it is in proper working condition and will parallel with the Skinner machine.”
    Under date of November 24, 1917, the Carroll Electric Company made the following telegraphic, proposal:
    “ CuSTODIAN, UNITED STATES SANATORIUM,
    “ Fort Stanton, New Mexico:
    
    “For proposals opened November twenty-sixth we offer generating equipment Harrisburg engine direct connected to Sprague generator fifty kilowatts one hundred twenty-five volts will parallel present set. Secondhand in guaranteed good condition. Our property located in Washington can be inspected here by the Supervising Architect Office; price fourteen hundred dollars f. o. b. cars Capitán, New Mexico. If interested wire our expense whereupon will wire deposit or mail certified check or deposit funds here to your credit to protect bid.
    “ The Carroll Electric Company.”
    Following the telegram of November 24, 1917, the plaintiffs addressed a letter to the defendant under date of November 26, 1917, confirming the telegraphic bid.
    Under date of December 14, 1917, the proposal was accepted by the Assistant Secretary of the Treasury, as follows :
    “ The Carroll Electric Co.,
    “ 714 12th St., Washington, D. G.
    
    “ Gentlemen : By and with the approval of the department, your proposal of the 26th ultimo is hereby accepted, in the amount of $1,400.00, the lowest of three received for furnishing and delivering f. 0. b. cars Capitán, New Mexico, for Ft. Stanton Sanatorium, one secondhand 50 k. w. electric generating equipment capable of operating in parallel with a 40 k. w. Skinner engine now in place. This acceptance is made with the understanding that this machine must be properly cleaned of rust and painted with white lead and oil, or other rust preventative, before shipment, and that such shunt be furnished for installation as may be necessary for the proper operation of this set in parallel with the generating set in place; you to obtain from the custodian or the manufacturer such data as may be necessary to enable you to manufacture this shunt.
    “After the shunt is furnished and the machinery properly cleaned and painted, as described, advise the Office of the Supervising Architect in order that a representative of the office may be detailed to inspect the machinery again prior to shipment; the machinery to be ready for this inspection within five days from date of this acceptance.
    $ # $ $ *
    “ Your certified check will be deposited and the proceeds held until the satisfactory completion of the work.
    “ Respectfully,
    “ J. H. Nagle, Assistant Secretary.”
    
    A copy of this letter is made Exhibit B to the petition and is made a part of this finding by reference.
    III. The 50 lew. electric generating equipment thus undertaken to be furnished had been in operation in one of the leading hotels of Washington, District of Columbia, and at the time of the submission of the plaintiffs’ bid was in storage. Subsequent to the making of award of December 14,1917, the Treasury Department sent one of its mechanical equipment inspector^ to the warehouse in Washington where the equipment was stored to ascertain whether the machinery was properly prepared for shipment. The inspector who made the examination reported that the equipment had not been properly cleaned, and that certain of the parts had not been properly protected with white lead 'and linseed oil. The plaintiffs were then advised that the cleaning and painting of the machinery would have to be completed, and that when that had been done another inspection would be made. On the occasion of the second inspection it was found that all of the parts had been thoroughly cleaned and painted and in proper condition for shipment. At the time the second inspection wa,s made the equipment was on skids ready to be crated. The flywheel had been removed. The inspections were not made with a view to determining whether any defects existed in the machinery which would prevent its proper functioning. Such a determination could not have been made without erecting the machinery with steam connected and the electrical unit connected to a switchboard with a measuring apparatus to indicate whether the generator was operating.
    IY. On December 22, 1917, a letter was written by the Treasury Department to the plaintiffs, which letter was in part as follows:
    “ Eeference is made to department letter of the 14th instant accepting your proposal, in amount $1,400.00, for furnishing and delivering f. o. b. cars Capitán, N. Mex., for Fort Stanton Sanatorium, one secondhand 50 .kw. electric generating equipment capable of operating in parallel with a 40 kw. Skinner engine now in place, which acceptance was made with the understanding that the machinery would be properly cleaned by you and that another inspection would be made of same by a representative of this office before forwarding it from Washington.
    “As said inspection has been made, you are now directed to ship the apparatus, routing same after it reaches El Paso, Tex., via the El Papo and Northeastern Eailway, and marking same for the Custodian, Fort Stanton Sanatorium, Capitán, New Mexico.
    Following the receipt of that letter the plaintiffs caused the machinery to be packed and crated, and on January 11, 1918, it was shipped in accordance with the instructions of the Treasury Department and with freight charges prepaid.
    Under date of December 28, 1917, the Treasury Department addressed a letter to the plaintiffs containing the following language:
    “ The machinery will be installed promptly upon its receipt at destination, and payment will be made as soon as it is determined that the apparatus is satisfactory.”
    On or about the 4th day of January, 1918, plaintiffs addressed a communication to the person who had been engaged to pack or crate this machinery, in which it was said:
    “ Keferring to engine and generator packed for us for shipment, please note that the box containing the parts is . altogether too light for the purpose and this material should be packed in a heavier and stronger box; also, there should be more protecting crating on the shaft and flywheel at the point where the large electric wires are located.”
    Instructions were also sent as to the shipment and bill of lading.
    
      V. There was some delay in the delivery of the equipment by the railroad, but it was finally delivered at Capitán, New Mexico, at some time between the 4th of March and the 25th of March, 1918, and it was received by the Government without any notation being made on the bill of lading indicating any injury to the equipment in the course of shipment.
    The plaintiffs were required by the letter which they received from the Secretary of the Treasury under date of December 14,1917, accepting their proposal of November 24, 1917, a copy of which letter is Exhibit B to the petition, to furnish for installation such “ shunt ” as would be necessary for the proper operation of the set in parallel with the generating set in place. The shunt required was a metal alloy which would act as a compensator with electric currents flowing in the field circuit of the dynamo, and the use of a shunt with the equipment offered by the plaintiffs was necessary for the reason that the Sprague dynamo already installed at the hospital possessed field characteristics differing from those prevailing in the Harrisburg unit, and the effect of the shunt would be to adjust those differences. In their reply to this letter of December 14, the plaintiffs advised the department that the Harrisburg unit offered had been cleaned and painted and was ready for boxing and shipping, and asked instructions. They added: “We do not understand your acceptance to require that shipment of this unit be delayed until the shunt suggested is provided.” Under date of December 22, 1917, the department gave the shipping instructions requested by the plaintiffs after the inspection had been made at Washington, and relative to “ shunt ” stated: “ When the compensating shunt is ready, forward same immediately to the custodian by express and advise this office and the custodian in regard to the shipment.” It does not appear that the shunt was ever shipped or delivered.
    On December 15, 1917, the plaintiffs requested the custodian at the Fort Stanton Sanatorium to send them by return mail a copy of all the information appearing on the name plate attached to the dynamo driven by the Skinner engine; that is, the number of the dynamo, its type, size, speed, voltage, amperes, etc. On December 21, 1917, that desired information was furnished to the plaintiffs.
    VI. The machinery while crated was inspected aboard car at Capitán, New Mexico, and was not further inspected until after its arrival at the sanatorium, a few miles distant. It was unloaded from the car and hauled to its destination, over a smooth dirt road, in good condition without rough places, on which was one hill and the road over this hill was smooth and free from rough places.
    On April 8, 1918, the Treasury Department notified the plaintiffs that the custodian at Fort Stanton had reported that some of the spokes of the flywheel were completely broken, and claim was made upon plaintiffs for the immediate replacement of the broken flywheel. On April 6 plaintiffs wired Fort Stanton that they would ask the manufacturer to ship a new flywheel upon receipt by them of the number appearing on the engine. The plaintiffs got in touch with the factory to get a new flywheel and were informed that they would have to ship the armature crank shaft and old wheel back. Nothing more appears to have been done toward getting a new flywheel.
    On March 8, 1918, plaintiffs notified the Treasury Department that they were entering claim against the railroad company for the breakage of the flywheel and asked for a statement that the same was in apparently good order when shipped, and the department replied that the inspection which had taken place before shipment had not reported any breaks on the flywheel. The plaintiffs afterwards made a request on the surgeon in charge at Fort Stanton for an affidavit showing that the wheel was received from the railroad company in a damaged condition. He replied on April 29, 1918, that owing to the manner in which the unit was crated it was not possible to note the defects when the engine was inspected aboard car at Capitán and that the breaks in the spokes of the flywheel, together with a number of other defects, were discovered only after the engine had been hauled to Fort Stanton and inspected.
    VII. The Government caused two complete inspections of the machinery to be made at Fort Stanton. One was made on May 2, 1918, and a second one on June 8, 1918. A number of defects were disclosed by those inspections. On July 17, 1918, the Assistant Secretary of the Treasury mailed to plaintiffs a copy of the June 6th inspection report. The letter in which the report was inclosed was, in part, as follows :
    “The defects reported are considered so serious as to preclude satisfactory operation of the unit, as required by the contract.
    “ If you so desire, the apparatus delivered may be shipped back to the manufacturers and rebuilt in such fashion as to obviate all defects and render apparatus in strict accordance with the contract, without additional expense to the Government. If you do not desire to render the apparatus satisfactory as suggested, then same is hereby rejected.
    “It is requested that you advise the department immediately as to what action you will take in the matter, or what disposition is to be made of the apparatus.”
    It does not appear that the equipment was ever installed.
    On August 8, 1918, the plaintiffs wrote to the defendant relative to a reshipment of the equipment which the Treasury Department found to be not -fitted for its use, and on August 9, 1918, the Treasury Department acknowledged receipt of plaintiffs’ letter of August 3, “ relative to a reshipment of the secondhand engine and generator which was found to be not fitted for our uses,” and informed the plaintiffs that although it would be possible for the station to prepare the unit for shipment it could not arrange for its transportation from Fort Stanton to El Capitan, or for its railroad transportation.
    VIII. On November 4, 1918, the plaintiffs caused the equipment to be transported back to Capitan, New Mexico, and thence shipped by rail to Washington, D. C. On November 11, 1918, the plaintiffs wrote the Treasury Department as follows:
    “ Referring to the secondhand engine and generator which we sold your department some months ago for use at the sanatorium, Fort Stanton, New Mexico, which engine and generator were rejected by your office, you are advised that we have recarted [recrated] and reshipped this apparatus to us at Washington, where we have an immediate purchaser if we can secure quick transportation. You are therefore earnestly requested to take this matter up with the railroads and use every effort to expedite delivery.
    “Shipment originated at Capitán, New Mexico, on November 4th, with the El Paso and Southwestern System, and is consigned to the Carroll Electric Company, Washington, D. C., routed S. Rosa & R. I. St. Louis B. & O., and is in Erie car No. 88601. Shipment is moving as a carload lot, and we would thank you to assist us in this matter.”
    On December 4, 1918, the department wrote as follows:
    “ Reference is made' to your contract, in amount $1,400.00, chargeable to appropriation ‘ Mechanical equipment for public buildings, 1918,’ for furnishing and delivering f. o. b. cars Capitán, N. Mex., for Ft. Stanton Sanatorium, one secondhand 50 k. w. electric generating equipment, and to department letter of July 17, 1918, advising you of the rejection of the equipment if you do not desire to rebuild same in such fashion as to obviate all defects and render apparatus in strict accordance with the contract, without additional expense to the Government.
    “ Your communication of November 11, 1918, indicates that no action will be taken by you in regard to making the apparatus satisfactory, and the contract is therefore hereby revoked.
    “A copy of this letter will be sent to the custodian of the building for his information.”
    To this letter plaintiffs replied, on December 5, 1918, as follows:
    “ Your letter of December 4th regarding the cancellation of contract in the sum of $1,400.00, charged to ‘Appropriation for mechanical equipment for public buildings, 1918,’ received.
    “ This equipment was made useless by breakage in transit, a condition over which we had no control, and on account of such defect apparatus was rejected some time ago and is now in transit back to us in Washington.
    “We would respectfully request that you return to us the certified check which we deposited as a guarantee of the faithful performance of this operation.”
    And in compliance with this request, the Treasury Department wrote to the United States Railroad Administration on November 15, 1918, requesting that the delivery of the equipment in Washington be expedited. The original call for proposals required, among other things, that each bid should be accompanied by certified check in amount of 10 per cent of the bid. The plaintiff furnished such a check in the sum of $140, and it was the return of this check that was requested in the letter of December 5, 1918. The check was returned to the plaintiffs. After the arrival of the equipment at Washington, it was sold by the plaintiffs for the sum of $700, which was the best price then obtainable. It was installed for a local company in Washington without additional repairs being made except that the flywheel was replaced with a new one. The plaintiffs paid the return freight charges from Capitán, New Mexico, to Washington, D. C., in the amount of $464.74, $44 for drayage from station to storage point in Washington, and $35 for storage from date returned to date resold.
    IX. There was some correspondence between the plaintiffs and the Government in the early part of 1918 concerning a claim which the plaintiffs desired to enter and did enter against the transportation company arising out of the breakage of the flywheel. F'ollowing that correspondence there was no further correspondence until July 15, 1922, on which date the plaintiffs addressed a letter to the Treasury Department in which it presented a claim of $1,731.74 as its expense in connection with the preparation of the equipment for shipment and transportation from Fort Stanton back to Washington and its loss of anticipated profit, as well as an interest charge in the amount of $388. ■ On October 19,1922, the claim was disallowed by the Comptroller General, and on April 2, 1923, the claim was reviewed by the Comptroller General and the decision of October 19, 1922, was sustained.
    The court decided that plaintiffs were not entitled to recover.
   Campbell, Chief Justice,

delivered the opinion of the court :

The Treasury Department having called for bids for furnishing designated electrical equipment to be used in connection with other electrical machinery at the sanatorium, Fort Stanton, New Mexico, the plaintiffs made a proposal to supply same for $1,400. Their bid was accepted upon conditions stated in the letter of acceptance. They shipped the machinery and after its arrival at destination it was found upon inspection to have defects which, except in one particular, need not be detailed. This exception is that the flywheel, or some of its spokes, was broken. The plaintiffs sought to supply another flywheel but found it would be necessary to ship a part of the machinery back to the manufacturer. They were called upon to determine what course would be pursued and decided to have the machinery returned to Washington. They had it transported to the railroad station and reshipped by rail to themselves at Washington, where they sold it for $700, having supplied a new flywheel. They sue to recover the balance of the contract price, $700, besides about $600, the expenses incurred in reshipment and storage. Taking issue with the plaintiffs’ contention, the Government also insists that the contract was rescinded.

The plaintiffs refer to the familiar rule applicable where a vendee does not take and pay for personal property sold, in which case the vendor may store the property and sue foi the price, or may sell it and recover the difference between the contract price and the market price of the property sold or may keep the property and recover the difference between its market price at the time and place of delivery and the contract price. These are remedies accruing to a vendor in possession where the vendee refuses or fails to accept. But this rule does not account for the claim asserted of the expense incident to the reshipment and storage of the electrical machinery, including the broken flywheel. Nor standing alone does this rule account for the vendors having retaken possession of the property after its delivery if it was so delivered. The plaintiffs also cite and rely upon a line of cases in this and other courts where a contract with the Government provides for final inspection before shipment, or, as stated in the contract in a case involving wagons, “ when finished, painted, and accepted by an officer or agent of the quartermaster’s department and delivered as herein agreed, they shall be paid for,” that in such case, the inspection provided for in the contract being had, the Government was bound to pay. See Brown's case, 1 C. Cls. 307; Kerchner case, 7 C. Cls. 579; Finney case, 32 C. Cls. 546; Electric Fireproofing Co. case, 89 C. Cls. 307. In another case, United & Globe Rubber Mfg. Co. v. United States, 51 C. Cls. 238, 248, this court said that where articles of merchandise “ to be manufactured ” and delivered under certain precise specifications and subjected to prescribed inspections and tests meet these specifications, inspections, and tests, and no complaint with respect thereto is made within a reasonable time after final delivery, the transaction under the contract should be regarded as closed. If the plaintiffs sold to the Government the electrical machinery under agreement that the same should be finally inspected at Washington and when so inspected and) approved it should be shipped and delivered f. o. b. cars at a distant point, and it was so delivered in good condition, the case would be brought within the decisions mentioned. But such is not this case.

There was an advertisement calling for proposals to be opened in the office of the custodian of the U. S. Sanatorium, Fort Stanton, New Mexico, for furnishing and delivering f. o. b. cars Capitán, New Mexico, a specified “ direct connected electric generating equipment ” that would be “ capable of operating in parallel with a 40 kw. Skinner engine.” While the preference was expressed for a new engine and generator, the advertisement stated that “ a second-hand outfit in first-class condition ” would be considered, and that payment would be made after the electric generating unit was set on its foundations, tested out, and demonstrated to be in proper working order and “ will parallel with the Skinner machine.” The plaintiffs’ proposal offered certain generating equipment, being a “ Harrisburg engine direct connected to Sprague generator ” that would “ parallel present set,” and being second-hand in guaranteed good condition.” This proposal also stated that the property was located in Washington, where it could be inspected by the Supervising Architect’s Office. Under date of December 14, 1917, the plaintiffs’ proposal was accepted in a letter, which stated that the acceptance was made upon the understanding that the machinery would be cleaned of rust and painted with white lead and oil before shipment and that such “shunt” would be furnished for installation as would be necessary for the “ proper operation of this set in parallel with the generating set in place.” It further stated that the custodian of the sanatorium would be furnished a copy of the letter and requested “ on satisfactory installation of the equipment in accordance with specification requirements ” to pay for same by voucher. The plaintiffs, having deposited their certified check in accordance with the call for proposals, it was stated that the same would be deposited and the proceeds held “ until the satisfactory completion of the work.” An inspector was sent to the warehouse where the equipment was stored to ascertain whether it was properly prepared for shipment. He reported and plaintiffs were informed that certain cleaning and painting should be done and another inspection made, and upon this second inspection the inspector reported the parts were in proper condition for shipment.. The equipment was packed and crated by plaintiffs’ agents and went forward to Capitan. It is very clear from this recital of undisputed facts that this is not the case simply of a sale of personal property to be delivered at a stated place. The property was indeed to be delivered “ f. o. b. cars Capitan,” but it was to be property of a definite description, intended for a specified use, and adapted to a named purpose and use. It was not to be paid for until by test it was demonstrated to be in “ proper working condition ” and that it would “ parallel with the Skinner machine.” The inspection at Washington could not make this demonstration and was not intended or understood to be final. The finding is that these two inspections were not made with a view of determining whether any defects existed in the machinery which would prevent its proper functioning, which could not be determined until the machinery was erected with steam connection “ and the electrical unit connected to a switchboard with a measuring apparatus to indicate whether the generator was operating.” When the inspection was made at Washington the equipment was on skids ready to be crated. The flywheel had been removed. Not only, therefore, did the terms of the contract inform plaintiffs of what they were undertaking and what was required of them as a compliance with the contract, but their subsequent action confirms the fact that they fully understood the nature of their undertaking. When, after considerable delay in transportation, the shipment arrived at Capitan it coul'd only be examined in its crated condition.' It was not until it had been unloaded from the car and transported several miles over a dirt road that it was uncrated, and carefully inspected. The report of the inspection to which it was then subjected is very full, the different parts having been carefully examined. We do not emphasize these, because the machinery was known to be secondhand when the proposal was accepted. But there were broken spokes in the flywheel and certainly the defendant could not be expected to connect the machinery with that in operation, to test the Harrisburg engine “ in parallel with the Skinner engine ” and take chances on what might occur by the use of a broken flywheel. Readily, plaintiffs undertook to replace the flywheel. In order to do this it was found that the manufacturer required the shipment of the armature crank shaft and the old-flywheel. This apparently was determined ■ to be impractical. A claim was made by plaintiffs against the carrier on account of the flywheel. After considerable correspondence they were informed that the defects disclosed were so serious as to preclude satisfactory operation of the unit in accordance with the contract and they were afforded the option of shipping back the machinery to the manufacturer to have it comply with the contract requirements or submitting to a rejection and were requested to inform the department what action they would take. The entire machinery was prepared for its return at plaintiffs’ request and in November it was reshipped by plaintiffs to themselves at Washington. They informed the department of this and requested it to use its efforts with the railroads to expedite delivery. Replying to this letter relative to reshipment, the department wrote on December 4 that the letter indicated that no action would be taken by plaintiffs to make the apparatus satisfactory and “ the contract is therefore hereby revoked.” There was no claim while the equipment was still at the sanatorium that plaintiffs had done all their contract required.There was no demand that the equipment be installed and tested or the broken flywheel be used. To the contrary, the plaintiffs wrote in reply to the department’s letter of December 4, “ this equipment was made useless by breakage in transit, a condition over which we had no control and on account of such defect apparatus was rejected some time ago and is now in transit back to us in Washington.” “ Of course, if it was accepted by them without protest, this was a complete rescission of the contract and plaintiff would have' no right of action.” Warder v. Pischer, 110 Wis. 363, 366. Accepting this situation they requested the return of their certified check “ deposited as a guarantee of the faithful performance of this operation.” This request was complied with. Afterwards the plaintiffs sold the equipment for $700, but a new. flywheel was used upon it. It worked .satisfactorily but whether it would have met the tests required by the contract or could operate in parallel with a Skinner engine does not appear. Moreover, there is an entire absence of proof that any “ shunt ” was sent at any time. The findings show that the use of a shunt was necessary because the Sprague dynamo already installed at the hospital “ possessed field characteristics differing from those prevailing in the Harrisburg unit and the effect of the shunt would be to adjust those differences.” If the equipment had been installed and upon trial had failed to do what the contract contemplated it could not be said that any obligation to pay for it existed. Payment was to be made when the equipment met the prescribed conditions. The receipt of the goods at the railroad station was not an acceptance of property in them. See Philadelphia Whiting Co. v. Detroit White Lead Works, 58 Mich. 29; McNeal v. Braun, 53 N. J. L. 617. The plaintiff’s contention, however, is that the Government was bound to keep the property or at any rate to pay the contract price for it, with the added cost of its transportation to Washington and storage. “We do not think that such is the law. When the subject matter of a sale is not in existence or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities, being part of the description of the thing sold becomes essential to its identity and the vendee can not be obliged to receive and pay for a thing different from that for which he contracted.” Pope v. Allis, 115 U. S. 363, 371. The contract in the instant case was more than an engagement to sell certain equipment and deliver- it f. o. b. cars at Capitan. It was an engagement that this equipment would “ possess certain qualities ” in that it would parallel with another engine, and until this fact was ascertained it was not to be paid for. Aside from other defects developed on examination at the sanatorium, the broken flywheel and the absence of shunt excused the failure to make any test, even if the removal of the equipment by the plaintiffs had not led to a similar condition. The view we take of this contract seems to be the view the plaintiffs took of it as evidenced by their conduct. In addition to what has been said, it is significant that after reshipping the equipment to themselves in December, 1918, and so far exercising absolute dominion over it as to sell it in Washington, the plaintiffs made no effort to supply other equipment to the Government and waited nearly four years before making any claim on account of the contract. The suit in this court was begun more than five years -after the equipment reached Capitan in 1918. This conduct, as well as the correspondence cited, shows an acquiescence by plaintiffs in the Government’s position that is unexplainable on any other theory than that the contract was mutually rescinded. The law is settled that even after an acceptance which may transfer title the purchaser. may, under the contract, have the right to rescind as for a condition subsequent if the article does not correspond with the specifications. Delaware, Lackawanna & Western Railroad Co. v. United States, 231 U. S. 363, 372. The conduct of both parties in the case justifies the conclusion that both of them assented to the rescission of the contract. Florence Mining Company v. Brown, 124 U. S. 385, 390. See also Smith v. York Co., 58 N. J. L. 242, and Dougherty v. Neville, 186 N. Y. 578. The petition should be dismissed. And it is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.

GreeN, Judge, took no part in the decision of this case.  