
    WILLIAM E. ISELIN, JAMES W. CROMWELL, LINCOLN CROMWELL, ARTHUR ISELIN, GEORGE A. VONDERMUHLL, OLIVER ISELIN, AND KENNETH P. BUDD, COPARTNERS, DOING BUSINESS UNDER THE FIRM NAME OF WILLIAM ISELIN & COMPANY, v. THE UNITED STATES
    
    [No. B-13.
    Decided January 26, 1925]
    
      On the Proofs
    
    
      Proposal to purchase surplus materials; award; goods delivered and accepted. — Where the plaintiff proposes to purchase certain surplus materials from the Government, designated as class A and “firsts,” and the Government awards a certain number of yards as class A, but the award is silent as to “ firsts,” and the goods are delivered by the Government and received by the plaintiff, the plaintiff can not recover because they are not “ firsts.”
    
      The Reporter's statement of the case:
    
      Mr. Dallas 8. Townsend for the plaintiff. Barry, Wainwright} Thaeher & Symmerss were on the briefs.
    
      Mr. John E. Hoover, with whom was Mr. Assistant General Robert H. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiffs are citizens and residents of the United States, and in all respect's duly qualified to sue as plaintiffs in this court. At all times material herein they were engaged in business as copartners, doing business under the firm name of William Iselin & Company.
    II. In January, 1920, the United States, through the Material Disposal and Salvage Division of the office of the Director of Air Service of the Army, was in possession of a considerable quantity of surplus airplane linen which it desired to sell.
    III. In January, 1920, two different parties claiming to be authorized representatives ox the United States in that,behalf exhibited samples and solicited bids from the plaintiff for the purchasing by it of said linen, and on January 19, 1920, the plaintiff, by E. I. McDowell, acting in that behalf, submitted to Harry Stultz, one of said parties, a bid, to him addressed, for said linen, referring to it as “ approximately 168,400 yards,” the aggregate of the two items mentioned in the advertisement hereinafter referred to, at $0.85 per yard “ linen to be as per sample herewith.”
    Said Stultz Avas not an authorized representative of the United States with authority to sell said linen, but was operating in his own. behalf, and no proceeding was had under said bid, so far as appears from the record. On February 2, 1920, said Stultz submitted to the material disposal and salvage division of the Air Service a bid for identic quantities of said linen in two items as in said advertisement set out, at a price of $0.87% per yard.
    IV. Previous to the submission of said bid by the plaintiff to said Stultz, namely, on January 15, 1920, the material disposal and salvage division of the Air Service had advertised in different publications, among them the Journal of Commerce and Commercial Bulletin, published in the chy of New York, the proposed sale of a number of items of surplus material on hand, said aircraft linen included, in two items of 68,400- yards and 100,000 yards, and invited bids therefor, bids to close February 2.
    In said advertisement the aircraft linen to be sold was described as grade A; it was stated that bids might be made for 1,000 yards or multiples thereof, or for any entire lot; that bids would be received until 3 o’clock a. m., of February 2, 1920; that the bidders would be notified on or before February 5 of the yardage awarded, upon receipt of which notification they would be required to forward a check or draft for 10 per cent of the purchase price, all materials to be removed and paid for within 30 days; that the materials would be sold “ as is ” at point of storage; that inspection is invited and that “ specifications and quantities on hand are based upon the best information available, but no guaranty on the part of the Government is given.”
    Y. It does not appear that the representative of the plaintiff acting in its behalf had seen the advertisement referred to at or before the time that the bid was submitted to said Stultz, but said advertisement came to his attention very shortly thereafter and before February 2, 1920, under which date the said representative of the plaintiff, namely, E. I. McDowell, acting for and on behalf of the plaintiff, submitted to the materials disposal and salvage division of the Air Service the following bid:
    New Yoek, Feb. 2nd, 1920.
    
    MateRials Disposal & Salvage Division,
    
      Office of the Director of Air Service,
    
    
      Building B, Sixth and B Sts. N. IF.,
    
      ’Washington, D. 0.
    
    GeNtlemeN : I herewith submit my firm offer for approximately 168,400 yards of 38-inch grade A natural brown Irish Airplane Linen. Specifications: Minimum threads, warp and filling, 90. Maximum threads, warp and filling, 105. Minimum weight, 4.5 oz. per square yard. Average length of pieces from 60 to 80 yards, at 93 cents per yard, f. o. b. cars at present location. Said linen as per sample submitted; goods to be firsts.
    This offer is for immediate acceptance on usual Government terms.
    Yours very truly,
    E. i. McDowell.
    VI. Under date of February 10, 1920, after the opening and consideration of the bids submitted under said advertisement, there was sent to plaintiff’s said representative the following communication:
    War Department,
    Air Service,
    Materials Disposal & Salvage Division,
    New York District Opeice,
    
      February 10, 1920.
    
    From: Air Service, Materials Disposal and Salvage Division, N. Y. District.
    To: E. I. McDowell, 20 Thomas St., N. Y. C.
    Subject: Sale No. 2545.
    1. This is to advise you that Washington has awarded you 154,400 yards of 38" grade “ A ” Airplane Linen at 93 cents per yard. This linen is listed on sheet No. 3955, item 1 — -65,400 yards, and'sheet No. 2879, item 6 — 85,000 yards.
    2. Inasmuch as we have your check for $13,987.20 to .cower 10% of the sale, it is requested that you send this office certified check for $125,884.80 to cover the balance due, together with your shipping directions.
    3. This check should be drawn in favor of “Disbursing Officer, Air Service,” marking envelope for the attention of the Materials Disposal & Salvage Division, 360 Madison Ave., N. Y. C.
    4. Attention is invited to the following rule of the Air Service, which requires that payment be made promptly and material removed within 30 days of award.
    Robert Choker,
    
      Gaft., A. 8. A.,
    
    
      District Manager M. D. c& 8. Division.
    
    By F. W. Weeks,
    Frank W. Weeks,
    
      Sales Manager.
    
    It does not appear that there was any acceptance, of plaintiff’s bid otherwise than as embodied in the communication last above quoted.
    VII. Thereafter, at various times, deliveries were made to the plaintiff and payments made by it for such deliveries, at the rate of its bid price of $0.93 per yard. The deliveries were short of the estimated quantity, for which shortage a proper proportion of repayment was made to the plaintiff, leaving the aggregate amount paid by the plaintiff $134,144.60.
    VIII. Some time after the purchase of the linen by the plaintiff, namely, about May, 1920, it resold 30,000 yards thereof, for delivery in June, said linen to be bleached by the plaintiff and delivered in that condition at $1.60 per yard. After being bleached this linen was delivered to the purchaser but was by him rejected on the ground that by reason of defects therein it was not of first quality. It was, however, agreed that another 30,000 yards should be substituted therefor, which was done by selection from the entire lot, and after bleaching was delivered. The purchaser maintained that this lot was likewise not of first quality, but the plaintiff’s contention was that it was in fact of that quality.
    
      By reason of this rejection upon the ground that the linen was not of first quality, complaint was made by the plaintiff to the material disposal and salvage division, as a result of which there were several detailed inspections of the materials by experts representing both parties. The defects discovered were of a minor character but they were such as to warrant the conclusion that the linen as a whole wa.s not of first quality. It does not appear that it was not grade A.
    IX. The term “ grade A” is a term of construction. The terms “firsts” and “seconds” are terms of quality. The term “ grade A” was used in the trade, entirely separate and apart from the designation of quality as indicated by the terms “ firsts ” and “ seconds,” and if the construction of a ■fabric was such as to entitle it to the designation “grade A” it was grade A, irrespective of quality.
    X. At the time of this transaction linen of the quality designated as “seconds” was worth, in the trade, approximately 25% le.ss than “firsts.” It does not appear from the record at what price or prices the plaintiff sold this linen or what actual loss, if any, it sustained in connection with the purchase and sale thereof.
    ■ The court decided that plaintiff was not entitled to recover.
    
      
       Appealed.
    
   DowNey, Judge,

delivered the opinion of the court:

The plaintiff bid to the material disposal and salvage division of the Air Service of the Army for the purchase of a large quantity of surplus airplane linen, specifying in it,s bid that the goods should be firsts. An award was thereafter made to plaintiff of certain quantities of grade A airplane linen, and the award was no doubt made in response to plaintiff’s bid. Previous to the submission of the bid the proposed sale of these and other materials had been advertised in trade journals, the advertisements stating the terms and conditions of the sale and. plaintiff’s representative had seen this advertisement before submitting its bid. The form of the bid and award are material. In lieu of repetition here reference is made to Findings V and VI.

The contention is that the United States accepted plaintiff’s bid, including the stipulation that the goods should be “ firsts,” that they were not in fact “ firsts,” and that the .plaintiff, having paid for the goods at the bid price before this condition was discovered, suffered loss by reason thereof.

There is much in the record as to the various inspections which were made of the goods after being complained of by the plaintiff as to their quality, and the conclusion from such inspections, which we have not found it necessary to incorporate in the findings, since the merits of the case, as we see it, are to be determined upon another basis.

Plaintiff’s theory is, and necessarily so, that there was an acceptance of it,s bid, the imposed condition as to quality included, and in this contention is found the fundamental error. Confusion in connection with its consideration is to be avoided by suggesting that, used in relation to fabrics, “ grade A” and “ firsts ” do not mean the same thing. “ Grade A” is a term of construction, referring to the number of threads per inch crosswise and lengthwise, etc., while firsts ” is a term of quality, so that a fabric may be grade’ A and not be of first quality.

Previous to the submission of its bid plaintiff’s representative had seen the advertisement published in trade journals for the sale of this and other materials, in which in two items this linen is referred to as grade A. It may readily be assumed, since the plaintiff was engaged in the business of handling fabrics, that it was fully conversant with the fact that .grade A did not necessarily mean first quality, and that this knowledge on its part furnishes the motive for the injection into its bid of the stipulation that the goods should be firsts.

The essential error is in assuming that there was an acceptance of plaintiff’s bid. In the communication of February 10 informing the plaintiff that it had been awarded a stated number of yards of grade A airplane linen we do not find the word “ accepted ” or any word of similar import used, or any reference to plaintiff’s bid. This communication notified plaintiff of the award to it of a quantity of linen, which might or might not comply with the stipulation as to quality contained in plaintiff’s bid, and can not by any possibility be construed as an acceptance upon the condition attempted to be imposed that the goods were to be firsts.

The award was in accordance with the terms of the published advertisement, with which plaintiff’s authorized representative was familiar; and while it is not necessary to decide the question, it may be suggested that it probably was the only sort of an award authorized. The bid and the award being at variance in an essential particular, it can not be contended that the award constituted an acceptance of the bid.

“A proposal to accept, or an acceptance upon terms varying from those offered, is a rejection of the offer and puts an end to the negotiation, unless the party who made the original offer renews it or assents to the modification suggested.” Minneapolis & St. Louis Ry. v. Columbus Rolling Mill, 119 U. S. 149, 151. See also National Bank v. Hall, 101 U. S. 43, 50.

Aside from the conclusion to be drawn from the terms of the bid and the award, it is to be noted that the advertisement, with which plaintiff was familiar before the submission of the bid, provided that the materials would be sold “ as is ” at point of storage, invited inspection, and provided that no guaranty on behalf of the Government is given.

When the plaintiff received the notice of the award to it of this linen in the terms in which it was couched it was bound to observe that there was no acceptance of other conditions which it had seen fit to impose in the submission of its bid, and since the bid and the award did not constitute a contract it was at liberty to decline to proceed further with the transaction. This it was in better position to do because the terms of sale did not require any advance payment by bidders.

For the reasons stated, and apparently without necessity of going further into the details of the transaction, we have concluded that plaintiff is not entitled to recover and have directed judgment accordingly.

Geaham, Judge; Hat, Judge; Booth, Judge; and Campbell, GMef Justice, concur.  