LIPSHITZ & COHEN v. U.S.(1925)
Mr. Henry A. Alexander, of Atlanta, Ga., for plaintiff in error. [269 U.S. 90, 91]
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Plaintiffs in error seek to recover profits which, it is alleged, would have been realized if the United States had complied with their agreement to deliver approximately 1,530,600 pounds of obsolete material. The cause was heard by the District Judge without a jury. He found the facts and upon them held that the contract had not been broken.
An agent of the United States put out a schedule which stated that certain obsolete material, classed as cast iron, cast and forged steel, armor steel, brass, bronz and lead, was held for sale at six specified forts. It set out the weights of each class at each place, and was headed:
Plaintiffs in error made a written offer at the foot of the schedule sheet to pay $1,055, 'for all the above described material, as is where is, for which we are enclosing you cashier's check for 20% of the amount-$211- with our option to remove material within six months from acceptance of this bid. ...' This was accepted May 24, 1922. 'At the time the offer was made and accepted the plaintiff did not inspect the material for sale at any of the fortifications, and had no knowledge of such material other than that given by the contract. It was later found in junk piles at the various forts.'
In the following July the purchasers began to remove the material and found nearly all items short. Aggregated these shortages amounted to approximately one-half of the total weight stated in the original schedule, but there is nothing to indicate bad faith. They complained, but made no effort to repudiate or annul the contract.
Supporting his judgment in favor of the United States the District Judge said:
We approve this construction of the agreement. Applicable principles of law were announced by Mr. Justice Bradley, speaking for the court in Brawley v. United States, 96 U.S. 168 , 171. The negotiations had reference to specific lots. The naming of quantities cannot be regarded as in the nature of a warranty, but merely as an estimate of the probable amounts in reference to which good faith only could be required of the party making it.
It is not necessary for us to consider whether the contract is sufficiently formal to comply with the requirements of R. S. 3744 (Comp. St. 6895).
The judgment of the court below must be