The opinion of the court was delivered by: LEIBELL
This is an action by the United States of America for damages arising out of defendant's breach of contract. In substance the complaint alleges that the United States through its duly authorized agency, the War Assets Administration, offered to sell all or part of 1,600,110 pounds of spodumene; that defendant on or about October 16, 1946, submitted a bid to purchase 1,600,000 pounds thereof for $ 16,401.13; that the War Assets Administration accepted defendant's bid; that on or about October 23, 1946, plaintiff made demand on defendant for shipping instructions and for payment of the purchase price of the spodumene; that defendant failed to comply with plaintiff's demand; that on November 12, 1946, the plaintiff by letter notified defendant that, unless defendant paid the amount due, the spodumene would be sold for the account of the defendant; that defendant failed to comply and after ten days the plaintiff sold the spodumene for the account of defendant to two purchasers at a price which was $ 6,800.58 less than that which had been bid by defendant. Plaintiff prays judgment against defendant for the amount of plaintiff's loss, $ 6,800.58 with interest from November 22, 1946.
Defendant, in his answer, denied that the War Assets Administration had accepted his bid and denied that due demand for shipping instructions had been made by plaintiff and pleaded two special defenses.
'Third: That by telegram dated October 31st, 1946, and confirmed by letter of the War Assets Administration dated November 1st, 1946, the award was cancelled and thereafter the defendant was informed by Harry J. Schnell, Chief Chemicals Section of the War Assets Administration that the defendant's bid was cancelled and the award was given to the next highest bidder, because of the alleged failure of the defendant to abide by all the terms of the bid; and, the defendant herein accepted the cancellation of the award as aforestated and relied on said cancellation.'
As a second defense:
'Fifth: That defendant's bid contains a memorandum in writing by the defendant making said bid 'subject to acquiring Plancor 546'.'
'Sixth: That defendant bid for Plancor 546, but, did not receive the same, and that the conditions of defendant's bid in this action have not been met.'
On the trial of the action plaintiff called as its only witness, Harry J. Schnell, and offered in evidence eleven exhibits. Defendant waived cross-examination of plaintiff's witness and rested his case at the conclusion of plaintiff's case. The facts proved are as follows:
In September 1946 the Philadelphia Regional Office of the War Assets Administration had for disposal, 1,600,110 pounds of spodumene,
a lithium bearing ore. Lithium, the lightest of the metals, is an alkali metal which has various uses in the metallurgical industry as an alloy. In war it is used for flares.
Harry J. Schnell, Chief of the Chemical Division of the War Assets Administration's Regional Office at Philadelphia, was in charge of the sale of this surplus property which was located in a warehouse at Coplay, Pennsylvania. The warehouse had to the vacated by the Government on January 1, 1947. Mr. Schnell advertised the sale in New York City and Philadelphia newspapers. In addition he sent invitations to bid to those firms believed to have some interest in the subject of the sale. Fifty notices were sent out. Three bids were received by plaintiff; one from the Foote Mineral Company, another from the Metalloy Corporation, and a third from Vincent Landers, the defendant.
Landers' bid was the highest. It contained a handwritten notation at the bottom as follows: 'This bid is subject to acquiring Plancor 546.
Shipts. within 18 months -- V.L.' Schnell phoned Landers on the day the bids were opened, October 18, 1946, and informed him that his bid was unacceptable because of the written qualification. Schnell added that if Landers would withdraw the condition in writing the bid would be considered satisfactory to the government. Landers agreed to withdraw the condition. Subsequent to the phone conversation there was an exchange of correspondence. On October 18, 1946, Landers wrote the War Assets Administration (for the attention of Schnell) as follows:
'Confirming telephone conversation pertaining to my offer regarding subject matter please be advised that I anticipate acquiring the Magnesium plant -- Plancor 546 -- located at Wingdale, n.Y., within the next two weeks.
'In the event this transaction is not culminated within that time, I will arrange to furnish you shipping instructions to another location.
'The undersigned will telephone you from Wilmington, on Monday, October 21st, about 3 PM.'
On October 23, 1946, Landers sent the following telegram:
War Assets Administration Attn Harry ...