Reporter's Statement of the Case is eight and one-quarter pounds. The weights of the metals in the lot are: "Malleable iron, about 1,666 gross tons; steel, about 300 gross tons; white metal, about 191,750 lbs. "The weight of the lot is approximately 2,055 gross tons." (The description of lot No. 2 is appended to plaintiff's petition and is made part hereof by reference thereto.) V. On October 24, 1922, the plaintiff's bid was accepted as follows: "SIRS: You have been awarded Lot No. 2 of Proposal No. 5 at the sale conducted at this depot October 23, 1922, at your bid of $16.77 per gross ton. You are informed that two thousand (2,000) Stokes trench mortar shell, 3′′ Mark III, Practice, have withdrawn from sale, leaving the amount awarded you 537,807 of that item. @ $16.77 gross ton, amounts to $34,344.96, which amount we have deducted from your deposit check of $50,000.00 and placed to your credit. We are returning you herewith cashier's check for $15,655.04, and release your purchase for shipment. "As this depot is to be abandoned as soon as possible, it is requested you expedite your shipments, and remove material awarded at your earliest possible convenience. "Very truly, 66 "G. S. LAVIN, "Capt. Ord. Dept., Commanding. (Signed) By A. A. FISH, "Assistant." VI. Previous to the sale samples of the shells in lot No. 2 were on exhibition at the depot. The boxes containing these shells, three in each, were selected at random from different parts of the warehouses and were broken apart and the fragments exhibited. There were 15 or 20, and they were all malleable-iron shells. These samples were inspected by an agent of the plaintiff before it sent in its bid. The lot of shells purchased were open to inspection in the defendant's warehouses and every facility was extended for their examination, but plaintiff does not appear to have examined this lot, which was packed in about 185,000 boxes. The said agent did, however, visit the warehouses where the Reporter's Statement of the Case shells were stored and saw all the boxes in order to get an idea as to the cost of opening them. When plaintiff's agent inspected the shells no one appeared to represent the Government, and nothing was said about the samples. They were marked "Lot No. 2," the only means of identification. VII. The plaintiff sold the entire lot No. 2 as malleable iron shells stripped of white metal to Hickman, Williams & Co., of Chicago, shortly after their purchase from the Government for $20.22 per gross ton, f. o. b. cars at Toledo, Ohio. The plaintiff engaged a man to strip the white metal from the shells and to ship the shells and white metal. Hickman, Williams & Co. having given instructions to consign the shells to the National Malleable Castings Co., of Cicero, Ill., plaintiff loaded six cars of said shells and shipped them to said company. Upon receipt thereof it was ascertained that the lot contained a considerable number of steel shells, and the National Malleable Castings Co. rejected the shipment and gave notice thereof to plaintiff. The first car was received at Cicero, a suburb of Chicago, on November 24, 1922, the next on November 27, 1922, three on December 1, 1922, and the last one on December 5, 1922. The cars were not unloaded and were shipped to the plant of Hickman, Williams & Co. on December 9, 1922, after their rejection. At this time about 65 per cent of the shells had been broken up. After notice of the rejection of the shipments, the plaintiff sent its agent to Chicago to investigate and if possible adjust the matter. On December 13, 1922, the same agent, Mr. Moskowitz, who had been with plaintiff for 20 years, and had acted for plaintiff during the entire transaction, visited Capt. G. S. Lavin, who sold the shells, and brought the matter to his attention. Captain Lavin informed him that the shells were described in his proposal for what they were thought to be, and that if plaintiff had not stripped all of the shells and shipped some of the steel shells he would not have required him to take the steel shells. It would have been impossible to have described the shells more accurately except by breaking open the 185,000 boxes. It afterwards developed that in some cases two of the three shells in a box were malleable iron practice shells and one was a steel service shell, or vice versa. Reporter's Statement of the Case VIII. In the six carloads of shells shipped to Chicago for Hickman, Williams & Co. there were 78 gross tons of steel shells; the balance was malleable iron shells. The malleable iron shells were sold to said company f. o. b. cars at Toledo for $20.22 per gross ton; the freight to Chicago, $3.78, was paid by Hickman, Williams & Co., the Chicago price for such shells at that time being $24 per gross ton. The steel shells were sold to that company for $17.40 per gross ton at Toledo, 63 cents more than the cost ($16.77) and $2.82 less than the selling price of malleable iron shells. The plaintiff paid the freight on the steel shells, $3.78 per gross ton, to Chicago, amounting for 78 tons to $294.84; onehalf the demurrage charges, $117.50; freight and switching charges from the National Malleable Castings Co.'s plant to Hickman, Williams & Co.'s plant and back, $429.19, a total of $841.53. The total difference between the selling price of the 78 gross tons of steel shells and the selling price of the same weight of malleable iron shells was $219.96. IX. The balance of the steel shells in lot No. 2, 420 gross tons, was sold to the Luntz Iron & Steel Co., of Canton, Ohio, January 4, 1923, f. o. b. cars at Toledo, Ohio, for $18.35 per gross ton, $1.58 more per gross ton than the cost and $1.87 per gross ton less than the selling price of the malleable iron shells at Toledo. The total difference between the selling price of the 420 tons of steel shells and the selling price of the same weight of malleable iron shells was $785.40. The 420 tons of steel shells after the sale to the Luntz Iron & Steel Co. were loaded for shipment by a contractor named Fred Weise, employed by plaintiff. The additional amount paid to him for this work is not satisfactorily shown. X. The malleable iron shells in lot No. 2 contained onethird of a pound of white metal each, the steel shells in said lot No. 2 contained one-fifth of a pound of white metal each, a shortage of two-fifteenths of a pound for each shell, and this shortage in 140,840 steel shells in lot No. 2 would be 18,778 pounds, which at $5.05, the market value per hundredweight, would amount to $948.29. XI. An agent of plaintiff, one Herman D. Moskowitz, made two trips to Chicago, consuming six days, between Opinion of the Court December 1 and 12, 1922, to investigate and look after the adjustment of the sale of shells in lot No. 2 to Hickman, Williams & Co. The amount of the expenses of this agent has not been satisfactorily shown. The court decided that plaintiff was not entitled to re cover. GRAHAM, Judge, delivered the opinion of the court: This is a suit for damages for alleged breach of contract in the sale by the War Department on behalf of defendant of certain shells. Plaintiff claims that it did not get what it purchased and thereby suffered a loss. The Government on September 23, 1922, sent to plaintiff and others a circular proposal covering the sale of certain surplus materials and supplies in the form of shells and shell forgings located at the Toledo Ordnance Depot. The material was separated into three lots and numbered 1, 2, and 3, each lot being separately and briefly and generally described in the proposal. The plaintiff, after inspection, bid on lot No. 2, and its bid was accepted. It paid in full for the material and received and accepted lot No. 2, on which it bid, i. e., 555,807 shells in 185,000 boxes. There were three shells to a box. It was evident that the representatives of the Government making the sale did not know accurately what was in these boxes except that they contained shells. With the material stored in 185,000 boxes it would not be expected that it would take the risk of selling without reservation as to the contents of each box. Defendant's representative before the sale, as was customary at these sales, took certain shells at random from a dozen or more boxes, broke them up, and displayed the pieces on a table in the office of the officer making the sale for the information of bidders. They were not displayed as samples. Before bidding, plaintiff's representative examined a shell and made a partial inspection of the material so far as it was possible, stored as it was in boxes. After its bid had been accepted and it had paid the whole amount of the bid it gave directions to deliver the material to its agent, who Opinion of the Court received it and broke up the shells, and began shipping them to third parties, as directed by plaintiff. After 65 per cent of the shells had been unboxed and broken up and 6 carloads had been shipped from the premises to a third party, plaintiff claimed that some of the shells were steel, not malleable iron shells, and did not contain the amount of white metal stated in the proposal. On December 13, plaintiff complained of this situation to the officer conducting the sale, and made some suggestions about rescinding the sale and leaving the material on the premises. The officer refused to consider a rescission of the sale, and pointed out the fact that the material accepted by plaintiff had been changed in form by stripping it and shipping part thereof. Plaintiff on January 5, 1923, sold and removed the steel shells and the remainder of the material, except the boxing in which the shells were encased. The Government acted in good faith, and there is no charge or proof of bad faith. It was not its purpose to mislead prospective purchasers, and the material was described and sold for what the Government really believed it to be. The plaintiff knew that the Government was not engaged in the business of manufacturing this material or of buying and selling it. The material was stored in the form in which it had been shipped to the Toledo Ordnance Depot, and as it was carried on the records of the office of that depot. Plaintiff examined the material as it was stored, and it must have been evident that it was in the condition in which it had been received. The plaintiff's contention, as stated in its petition, is as follows: 66 6. That the United States breached its said contract with the plaintiff herein in that the shells delivered to the plaintiff herein were not all Stokes trench mortar shells, 3" MK III, and were not all of malleable iron, and did not contain head-hole plug and bushing of white metal, weighing together about one-third (3) pound; in that approximately twenty-five per centum (25%) of all the shells delivered were not of the same kind as the one shown to the plaintiff herein at or about the time and place of purchase; in that the shells delivered were not in accordance with the statements, warranties and representations made by the |