Opinion of the Court

United States as appears from said proposal and contract; and in that the United States failed to deliver to the plaintiff the wooden casings included in the purchase of the material referred to."

The plaintiff's contention is that this was a sale by sample. A perusal of the proposal, and the condition and form of the material, the lack of accurate knowledge upon the part of the Government as to what was contained in the 185,000 boxes-in fact, all the circumstances of the sale plainly indicate that it was not intended to be a sale by sample, and the facts found show that it was not. It is not readily apparent how the defendant could have described the material and the conditions and circumstances of the sale more accurately than it did in the proposal. The proposal gave the plaintiff as full and fair warning as any reasonable person could ask for of how the defendant was selling this material.

The proposal stated that the number of shells was 557,807. Before the bid was accepted 2,000 of these shells were withdrawn with plaintiff's knowledge. The plaintiff received the balance. It also stated that the amount of material in

lot No. 2 was as follows:

"Malleable iron, about 1,666 gross tons; steel, about 300 gross tons; white metal, about 191,750 lbs.

66

The weight of the lot is approximately 2,055 gross tons."

**

It stated that the shells were packed in "wood containers, three shells to the box." At the end of this description is the following language: "For lot No. 2, 'As is, where is,' dollars per gross ton." The plaintiff's bid was by the ton; that is, $16.77" per gross ton."

This description alone would have been sufficient to put plaintiff on notice that there was no guaranty as to the character or the amount of the material. It was visited with knowledge of the meaning of the expression "as is, where is." It means that the seller sells without guaranty as to the amount or condition of the material; that he sells what may be found in the lot; that he does not profess to know accurately himself the amount or character of the material, and that the purchaser must take his chances on

Opinion of the Court

what he will get. Lipshitz & Cohen v. United States, 269 U. S. 90, decided November 16, 1925.

This would seem to have been sufficient notice to have relieved the Government from any responsibility for discrepancies that might develop after delivery of the material; but, as if to give the prospective purchasers the fullest warning of the conditions under which they purchased, the proposal contained the following statement:

"The quantities, descriptions, conditions, weights, analysis, etc., of the supplies herein described are as accurate as circumstances permit, but are in no wise guaranteed by the Government, nor will any refund be made on account of any of the supplies not coming up to expectations."

Here was a further warning that plaintiff was buying at its own risk; that it was bidding in the dark; that if it bid and paid for the material and the goods delivered to it did not come up to its expectations it would have no relief and could not claim or expect to have its money refunded.

This is sufficient to dispose of plaintiff's case. If this conclusion needed strengthening, it could be found in the conduct of plaintiff in breaking up the greater part of the material and shipping a good part of it to third parties before making any complaint, and afterwards shipping the remainder.

As to the principles controlling see Lipshitz & Cohen v. United States, supra; Maguire v. United States, 59 C. Cls. 575; Hummel v. United States, 58 C. Cls. 489, 494.

There is one other feature of the case. The proposal stated that the boxes and material would become the property of the purchaser. It required plaintiff to remove all of the material, which included the boxing, within sixty days, and provided that for failure within that time to give shipping instructions or remove the material all the material not removed would be forfeited to the Government. In the acceptance of plaintiff's bid it was stated that the depot was soon to be abandoned and plaintiff was urged to remove the material as soon as possible. Plaintiff failed to remove the boxing within sixty days or give ship

Reporter's Statement of the Case

ping instructions, though often urged to do so, and thereafter the Government disposed of the boxing left upon the premises. Under these circumstances plaintiff is not entitled to a recovery for the value of the boxing material.

In the light of the foregoing conclusions it does not seem necessary to go into the question of whether plaintiff has shown a contract sufficiently formal to comply with the requirements of section 3744 of the Revised Statutes. Erie Coal & Coke Corporation v. United States, 266 U. S. 518, and Lipshitz & Cohen v. United States, supra.

The petition should be dismissed, and it is so ordered.

HAY, Judge; DOWNEY, Judge; BOOTH, Judge; and CAMPBELL, Chief Justice, concur.

JOHN N. GIUDICE, ADMINISTRATOR OF THE ESTATE OF JOSEPH S. GIUDICE, DECEASED, v. THE UNITED STATES

[No. E-217. Decided December 7, 1925]

On Demurrer to Petition

Jurisdiction; implied promise.-A is engaged in the unlawful sale of intoxicating liquor, and furnishes B with funds to bribe two prohibition enforcement agents not to interfere with his illegal business. B turns same over to them. Some time afterwards one of said agents returns the funds to B to hand back to A. B gives the funds to a special Treasury agent, who is investigating certain acts of the two prohibition enforcement agents, to use against them before the grand jury. There is no implied promise on the part of the Government to return the money to B that would give the court jurisdiction to consider the suit.

The Reporter's statement of the case:

Mr. W. F. Norris, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the demurrer. Mr. David S. Rose, opposed.

The opinion states the material allegations of the petition.

Opinion of the Court

CAMPBELL, Chief Justice, delivered the opinion of the

court:

The petition was filed in the name of an administrator de bonis non of Joseph S. Giudice, deceased. It is demurred to and this case is before the court on this demurrer. It is alleged that Giudice and two other parties were indicted by a grand jury of the United States District Court for the Eastern District of Wisconsin for alleged violations of the national prohibition act and of the laws relating to criminal conspiracies. Giudice died before being arrested, but the two other defendants were arrested and convicted. It is averred that one George E. Golding was an officer of the United States acting in the capacity of special agent of the Treasury Department on September 13, 1921, and in such capacity was aiding the Department of Justice, and particularly the United States district attorney, in investigating charges of official misconduct of Delaney and Ray, and in obtaining evidence for use before the grand jury in its investigations of these charges.

It is alleged that on or about September 13, 1921, Golding, while acting in his official capacity, interviewed Giudice, plaintiff's intestate, respecting the latter's knowledge of facts pertinent to said inquiry; that one Dundenhoefer claimed that he had given Giudice large sums of money to be given by the latter to Delaney and Ray for the purpose of bribing them as Government officials in his interest, he being engaged in violating the national prohibition act and it being the duty of Delaney and Ray to enforce it; and that the bribes were intended to induce them to violate their duties, as public officials, and permit Dundenhoefer to continue in the violation of the law. It is then averred that plaintiff's intestate delivered into the possession of Special Agent Golding certain United States currency to the amount of $13,500, in denominations of fifty and one hundred dollars each, and Liberty bonds in the sum of $17,000, which are fully described, and that Golding "for and in behalf of the United States and in his capacity as special agent of the Treasury Department," and while acting for and in behalf of the district attorney, executed and delivered to Giudice

Opinion of the Court

a receipt for the currency and bonds, a copy of which is made an exhibit to the petition. This receipt, Exhibit A to the petition, is dated September 13, 1921, and reads:

"Received from Joseph Giudice the following Liberty bonds and currency, with brown paper folder, which were given to him by Thomas A. Delaney on or about August 23, 1921, at his home in Schleisingerville, Wisconsin, for the purpose of returning same to Joseph Dundenhoefer, Milwaukee, Wisconsin."

Then follows a description of the money and bonds, and the receipt is signed by “George E. Golding, special agent, U. S. Treasury." It is further alleged that the money and bonds were delivered into the possession of and received by Golding as special agent for the sole purpose of being used as evidence before the grand jury and that Golding, the United States, or the departments mentioned never owned any right or interest.in the same, except the right to use them as evidence before the grand jury or upon the trial of parties indicted, and that plaintiff has been informed and believes that when said currency and bonds were delivered into Golding's possession the same were the exclusive property of said Giudice and so remained to be his own until the time of his death and subject to administration as part of his estate.

It is further alleged that Delaney and Ray were duly tried under the indictments found by said grand jury and were convicted and sentenced to the Leavenworth prison. Giudice was also indicted but died before being arrested. It is alleged that the purpose of the delivery of the bonds and currency to Golding, as such special agent, has been fully served and that plaintiff "is entitled to possession thereof, or to the value thereof, to the end that he may administer the same as part of said estate." It is further alleged that the administrator of the Giudice estate demanded of the district attorney the return of the bonds and currency after the trial and conviction of Delaney and Ray, the demand being refused, and further that plaintiff does not know and can not ascertain, "after due diligence and

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