The opinion of the court was delivered by: ABRUZZO
This action seeks to recover a loss allegedly sustained by the plaintiff by reason of a breach of contract on the part of the defendant. It is claimed that the defendant failed to deliver the quantity of merchandise sold by it at an auction sale held November 23, 1932. This action was brought pursuant to the Tucker Act, Title 28 U.S. Code Annotated, Section 41, subdivision 20.
On October 10, 1929, the government instituted a condemnation proceeding for the forfeiture of certain watches and parts in connection with an infraction of the United States Customs Laws. This proceeding was entitled "United States of America, Libellant, v. 10 Watches, etc.". It was commenced in the United States District Court for the Southern District of New York and resulted in a final decree in favor of the government on June 3, 1932, forfeiting the merchandise to the government and conferring upon the defendant the authority to sell and dispose of the same at public auction.
On November 23, 1932, the defendant (also referred to herein as the United States of America or the government), by its agent, the United States Marshal for the Southern District of New York, sold to the plaintiff the merchandise, which the plaintiff claims was purported to be the same merchandise indicated in the final decree of June 3, 1932, for the sum of $20,225. Delivery was made on November 25, 1932.
The plaintiff became interested in this merchandise in the summer of 1932 and examined the file entitled "United States of America, Libellant v. 10 Watches, etc.". In answer to an inquiry at the office of the United States Marshal for the Southern District of New York, the plaintiff was informed that all of the merchandise seized and forfeited in that proceeding had been inventoried by the United States Appraisers Department and would be sold at public auction. He procured a photostat of the itemized list of articles seized and the value of each.
This inventory had been examined and approved by the United States Appraisers Department on September 24, 1929, and was signed by three of the appraisers. The total foreign market value was given as $23,180.20, the duty as $13,942.34 and the United States value as $48,531.33 (Plaintiff's Exhibit No. 1).
In the early part of November, 1932, the plaintiff received a catalogue from the United States Marshal, Southern District of New York (Plaintiff's Exhibit No. 3). There were fifteen separate sales included in this catalogue, but the plaintiff was interested in sale No. 7, which he claims covered the merchandise included in the inventory of September 24, 1929 (Plaintiff's Exhibit No. 1). Plaintiff further asserts and claims that an answer to an inquiry of the United States Marshal for the Southern District of New York constituted a verbal promise that sale No. 7 covered all the merchandise listed in the aforesaid inventory.
A week after the delivery of the goods, upon checking same against the inventory of 1929, the plaintiff discovered a shortage of the merchandise purchased on November 23, 1932, of 2,431 watches and 4,275 watch parts.
His action and resulting damages are based on this alleged shortage. Plaintiff's Exhibit No. 1, which is a photostat of the inventory of 1929, itemizes the watches, parts and merchandise. Plaintiff's Exhibit No. 3, which is a copy of the catalogue from the Marshal, gives a grand total of this merchandise and describes the same as having been forfeited to the government for violation of the customs law.
The plaintiff contends that the auctioneer, prior to the sale, made an announcement that he was prepared to sell merchandise forfeited to the United States of America for violation of the customs laws. Plaintiff maintains that the language of the auctioneer was such that the plaintiff was led to believe that the merchandise to be sold was that forfeited to the United States in the case of "United States of America v. 10 Watches, etc." On June 3, 1932; and that in making his bid he had a right to rely upon Exhibits No. 1 and No. 3. It is his contention that the inventory of 1929 (Exhibit No. 1) induced him to bid as high as he did and that the auctioneer sold him the goods contained in this inventory.He claims that the government made an agreement with him when he offered his bid to deliver the merchandise listed in Exhibits No. 1 and No. 3.
Exhibit No. 3 does not contain the number of watches and parts to be sold at auction. The itemized articles are listed in Exhibit No. 1, photostat of the inventory of 1929.
The government resists the cause of action set up by the plaintiff and various defenses have been interposed.
The defendant, the United States of America, claims that the conditions of the sale were made public and were as follows: "the jewelery, watches, etc. will be opened for inspection on Tuesday, November 22, 1932, between 10 A.M. and 3 P.M., and on the day of the sale until noon, at Customs Seizure Room, Army Base, etc."; that "a deposit will be required by the auctioneer from bidders, and the full amount bid must be paid immediately after the conclusion of the sale when the goods are delivered", and that "all goods are sold 'as they are', and no allowance will be made." No ...