JULY 7, 1920.

Case No. 579.

In re CLAIM OF MARION CASH FEED CO.

(ON APPEAL TO THE SECRETARY Of war.)

This case was decided by the Board of Contract Adjustment, April 24, 1920, and all relief denied. (These decisions, Volume 4, p. 1422.) Upon appeal to the Secretary of War by the claimant, the Secretary of War, by memoranda of July 10 and July 14, 1920, modified the decision of the Board of Contract Adjustment to the extent of directing an award to claimant in the sum of $994.37, covering the cost of moving specified cars of hay from Camp Sevier, Greenville, S. C.

MEMORANDUM DECISION OF THE SECRETARY OF WAR.

In the matter of the claim of the Marion Cash Feed Co., of Marion, N. C. Appeal from the decision of the Board of Contract Adjustment.

This case arises under a statement of claim asking for $5,213.11 for the following items:

Freight covering movement away from Greenville, S. C___
Reconsignment charges

Demurrage

Loss on resale of two cars--.

C. S. Briggs, salary, one month's time in tracing lost cars_
Logan Larkey, bookkeeper, salary, one month's time tracing lost cars_
Hotel bills, incidental expenses, railroad fares, including trips to
Washington to release cars, demurrage charges, three people, one
month

$3, 672. 12

130.00

270.99

140. 00

400. 00

100.00

Total claim.......

375.00

5, 213. 11

An agreement was entered into between the claimant, acting through Mr. Clarence S. Briggs, president, and the United States, acting through Capt. Fleming C. Reid, Quartermaster Corps, contracting officer, on or about December 11, 1917, as follows:

Mr. Briggs sent the following telegram to Capt. Reid on December 10, 1917:

"We offer 70 cars No. 1 light mixed hay at $35, to be delivered as soon as railroad companies can furnish necessary cars; shipment from Pennsylvania.”

On December 11, Capt. Reid telegraphed in reply:

"Reference telegram December 10, Greensboro, N. C., accept 70 cars No. 1 timothy hay f. o. b. cars Camp Sevier, Paris, S. C., $35 per ton. Wire acknowledgment."

At the same time Capt. Reid wrote to the claimant a letter which included the following:

66* *

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It is herewith understood that complete shipment is to be made within 30 days and that payment will be made upon invoiced weights only when supported by licensed weighmaster's certificate of weight.

"It is further understood that all freight charges will be prepaid and that cars will be vouchered for payment at delivered price.

* *

On December 17, 1917, the claimant wrote to Capt. Reid:

"Replying to your telegram of December 11, we confirm 70 cars of hay. About one-half will be No. 1 light mixed hay and one-half No. 1 timothy hay, at $35 per ton delivered, shipment to be made as soon as necessary cars are furnished by the United States Government. Request for cars at various points in Pennsylvania will follow to-morrow, where we have this hay bought, after accepting the bid on terms payable on arrival."

On December 17, 1917. the claimant wrote:

"Please see yours of December 11 and ours of recent date referring to the same contract for hay. We note that you confirm this shipment is to be delivered all within 30 days, while we confirm this order and made it part of the conditions that the hay is to be delivered as soon as necessary cars could be secured to load the hay; and that the Government is to furnish said cars, as this is the same batch on which we received orders for Camp Green, and the only one we could consider, being as much as there is a strict embargo on shipments for private interests, we could not secure a car without Government orders. Therefore this order is accepted on our part with the express understanding that the goods will be delivered as soon as the necessary cars are furnished by your department. Special for cars at various places follow later."

On December 19, 1917, Capt. Reid wrote:

"I have to advise with reference to your letter of December 17 that I shall furnish you with Government papers relative cars for hay as soon as I am advised of shippers, loading points, and names of railways furnishing needed equipment, and number of cars to be required at each loading point."

On April 4, 1918, the camp quartermaster, transportation branch, Camp Sevier, wrote to the claimant :

"1. On March 26 we wired that we were in receipt of Penn. 71939 and Penn. 526623 and SSW. 28243, which are billed order notify Marion Cash Feed Co., care camp quartermaster, Camp Sevier, Paris, S. C., and requested you to rush original order notify bills of lading.

"2. To-day we are in receipt of HV. 32618, containing oats, and shipped by Bingham Hewitt Co., Louisville, Ky., order notify.

"3. The three first cars were unloaded before we ascertained that same were billed order notify. The latter car has been refused by us until receipt of the order notify bill of lading covering, and all cars in future billed likewise will be refused upon receipt until railroads are released on receipt of order notify bills of lading.

"4. It would save a great deal of trouble and correspondence on our part if you would discontinue having cars shipped in here in such manner. Please advise us what you intend doing on future shipments of this kind. Also rush bills of lading covering the above cars."

On April 17 the camp quartermaster at Camp Sevier wrote to the claimant :

"1. Reference order No. 837, cail No. 230, dated December 11, 1917, covering open-market purchase from you of 1,400,000 pounds No. 1 timothy hay at $1.75 per cwt. f. o. b. Camp Sevier, S. C., the records of this office show that 283,610 pounds have been delivered. "2. The records further indicate the following cars en route:

"These cars will be accepted f. o. b. Camp Sevier, S. C., subject to usual weight and quality, inspection, and acceptance.

"3. You are hereby notified that, due to failure on your part to complete shipment within 30 days from date of order, the balance due on this order, approximately 1,032,791 pounds, is canceled."

The balance of this contract was shipped in 42 cars consigned in various ways, but mostly to the Marion Cash Feed Co., Greenville, S. C., and to order of shipper, notify Capt. Baker, Q. M., Camp Sevier. Out of the 42 cars, 40 were later resold to the Government or to other parties at a price of $35 per ton or better, and two cars were sold at $30 per ton, on which the claimant claims a loss on resale aggregating $140.

Some of these cars after reaching Greenville were consigned elsewhere, presumably on the order of some one. There is no competent evidence as to who ordered or was responsible for such reconsignment. The greater part of the amount claimed is on account of the reconsignment of these cars.

It is a matter of common knowledge that from the middle of April, 1917, to the middle of the summer the railroads in and within a radius of 30 miles of Camp Sevier were very badly congested. One reason for this was that the mud was so deep it was impossible to unload the cars. It was also necessary to clear out this congestion in order to properly care for the movement of troops. The files contain the following letter: