79 Ct. Cl. 516 | Ct. Cl. | 1934
delivered the opinion of the court:
This suit was instituted by Jacob Frank, now deceased. The administrators of Frank’s estate have been substituted as parties plaintiff.
Frank, in response to public proposal of the Surplus Property Division of the War Department to sell certain surplus drugs and chemicals at prices and in the minimum quantities stated in the proposal f.o.b. points of storage, bid upon and was awarded, omitting items not in suit, argyrol or equivalent, 128,075 ounces, and protargol or equivalent, 854,880 ounces. The decedent, under the terms of the proposal, made a deposit of $22,562.27, ten percent of the. amount of his bid. The claim is for a balance of $20,784.28 of the deposit applicable, to the argyrol and protargol awarded the decedent on his bid, which were not withdrawn and paid for by him.
The bid was submitted in the name of the Frank Lang-ham Company, a partnership entered into between the decedent and Frank Langham for the purpose of buying and selling surplus Government property. After the acceptance of the bid the award was made in the name of the decedent at the request of Frank Langham Company. Prior to the submission of the bid the Frank Langham Company had entered into a verbal agreement with reputed agents of the Russian Soviet Government whereby they were to purchase from the company the argyrol and protargol involved in suit and advance the money necessary for payment of the purchase price to the United States. Officials of the War Department having to do with the sale of the drugs were
Plaintiffs predicate their right to recover the balance of the deposit money retained by the United States on the ground that the contract was void because the defendant was unable to deliver the drugs for export to Russia. It is contended that the Government, being unable to deliver the drugs for export because of the embargo, was no more able to perform the contract than it would have been had
the counterclaim;
The plaintiffs in the brief question the authority of Lang-ham to act for the decedent in requesting an extension of time of 90 days in which to dispose of the drugs in the domestic market after they had been awarded decedent and after the Soviet agents had refused to accept them and advance the purchase price, and also his authority to request the defendant to resell them after Langham’s and decedent’s efforts to sell them had proved fruitless. The facts do not support this contention. Decedent and Langham were partners in buying and selling surplus Government property. They had organized a company for the express purpose of carrying on that business, and the bid was submitted in the name of the company. Langham was the active member of the company and conducted all the negotiations leading up to the purchase of the goods. He visited the department and talked with defendant’s officers having to do with the sale. He conducted the negotiations with the Soviet agents and personally made the arrangements with them whereby they were to repurchase the argyrol and protargol and furnish the funds to pay the defendant for them. He conducted all the negotiations with officers of the Government looking to the procurement of an export license for the drugs. He made diligent efforts during the extended period for making payment to sell the drugs on the domestic market. He requested the defendant through the Langham Company to resell the drugs for the decedent. That he acted as the authorized agent of the decedent in all these matters cannot be doubted. However that may be, the defendant had the right to resell the drugs for the decedent’s account when he defaulted in his contract obligation to withdraw and pay for them, whether the decedent requested such action or not. Upon the decedent’s failure to take and pay for the drugs the defendant had a choice of three methods to indemnify itself: (1) It could store and retain the goods for the
Plaintiffs make the further contention that recovery may not be had upon the counterclaim for the reason that decedent’s bid was invited and made on the assurance that the defendant had established and would maintain a fixed price policy in the domestic market which would enable him to resell the drugs in that market without loss, which policy the defendant abandoned by inviting bids on the argyrol and protargol, contained in list no. 2, without fixing the prices thereon, thus destroying the domestic market and making it impossible for either the decedent or the defendant to dispose of the drugs in question except at a loss. It is further contended that the defendant has failed to establish the counterclaim by proper proof.
The facts do not support the contention that the decedent’s bid was invited on the assurance that the defendant had established and would maintain a fixed price policy in the domestic market in respect to argyrol and protargol that would enable the decedent to resell the drugs in that market without loss. The offer under which the purchases were made stated that the surplus drugs and chemicals described in List No. 1 would be open for sale to the public from March 5, 1920, to April 5, 1920, at the same minimum quantities and prices stated in the original offer of January 3, 1920, in which the same drugs had been offered for sale to State and municipal hospitals, free clinics, and similar institutions. The offer to sell these drugs and chemicals at a fixed price during a definite and limited period cannot be construed as an assurance that the Government would maintain such fixed prices in subsequent offers for sale of the same kind of drugs stored at other points. The pro
As to the contention that the defendant has not sustained the counterclaim by proper proof, it is sufficient to point out that plaintiffs have stipulated that the defendant received the prices set out in the findings for the drugs upon their resale for the decedent’s account, and that such prices were the best obtainable market prices at the time the sales were made. The defendant at all times made diligent efforts to resell the drugs, after the decedent failed to accept delivery and pay for them, until they were finally disposed of, and exercised reasonable care and judgment in making the resales. The defendant sustained a loss on the resale of the drugs of $114,815.57 after giving the decedent credit for $20,784.28, the amount of the deposit applicable to the drugs not- withdrawn.