by the contractor for work and material to go into the performance of the contract. Hence the proposed partial payments are not in excess of the amount actually earned by the contractor. And Article VIII expressly provides that title to all property on which partial payment is made shall vest in the United States forthwith upon the making of such partial payment. Therefore, the condition that the United States must receive a corresponding benefit in order to justify the making of a partial payment is also fulfilled. The provision in Article III giving the Government the right to reject upon final inspection after a ground test does not defeat its title to the material on which partial payments have been made. It merely imposes upon the contractor the duty and obligation of making good any defects or deviations before becoming entitled to receive or retain the consideration mentioned in the contract and does not operate to divest the title acquired by the United States under the provisions of Article VIII to the material and supplies on which the partial payments were made. United States v. Ansonia Brass and Copper Co., 218 U. S., 452.

Answering your first question specifically, I have to advise that the provisions in Article V of the contract relative to partial payments are legal and proper, notwithstanding the provisions of Article III relative to rejection upon final inspection after delivery and ground test.

In view of the construction placed upon Articles III and VIII hereinbefore indicated and the answer to your first question it is not necessary to decide your second question at this time.

Your third question is answered in the affirmative subject to the condition that the partial payment must be in strict accordance with the provisions of Article V.

RECOVERY OF OVERPAYMENTS OF WAR RISK ALLOTMENTS AND ALLOWANCES-LOST CHECKS.

Where a check issued in payment of a war risk allotment or allowance in excess of the amount to which the beneficiary was entitled, and was lost prior to being cashed or negotiated, its issuance does not constitute payment of the allotment or allowance, and recovery of the overpayment would not be barred under section 17 of the act of August 9, 1921, 42 Stat., 153, prohibiting recovery of overpayments of war risk allotments and allowances except in certain cases.

Under the act of August 9, 1921, 42 Stat., 153 prohibiting recovery of overpayments of war risk allotments and allowances, a claim for the amount of a lost check which had correctly issued in payment of an allotment or allowance may not be offset by the amount of any other overpayment of an allotment or allowance actually made, except for those reasons specified

in the statute.

The total amount represented by a check issued in payment of a war risk allotment or allowance outstanding more than three years is required to be covered into the Treasury as "outstanding liabilities" by section 306, Revised Statutes, regardless of the fact that there may be a legal offset against such amount. At any time a claim is adjudicated for the amount

of a check deposited at the end of three years in the outstanding liability account, the amount found due claimant may be paid to him and the remainder turned into the general fund of the Treasury.

Decision by Comptroller General McCarl, September 17, 1921:

The Chief, Treasury Department Division, submits to the Comptroller General a decision on the claims of Matilda Gwendolyn Pickett and Luella McIver Collum, respectively, for the amounts of checks for war risk allotments and allowances issued to them by former disbursing clerks of the Bureau of War Risk Insurance, which checks were lost before they were cashed or negotiated by the payees.

Section 17 of the act of August 9, 1921, 42 Stat., 153, provides: That whenever an award of allotment or allowance, or both, covering any period has been paid to, or on behalf of, a person designated by the enlisted man as beneficiary of his allotment, no recovery of the allotments paid in such cases shall hereafter be made for any reason whatsoever; and no recovery of the allowances paid in such cases shall hereafter be made for any reason whatsoever except where it is shown that the person receiving the allowance does not bear the relationship to the enlisted man which is required by the War Risk Insurance Act, and except, also, in cases of manifest fraud.

The check issued to Mrs. Pickett was for $30 but the bureau has certified that only $23 was in fact due to her on the installment of allotment and allowance for which it was issued. The decision submitted is to the effect that her claim should be allowed in the amount of $23 only, and that the issuance of the check which has not been cashed or negotiated does not constitute payment of the allotment and allowance which would be a bar to recovery of the overpayment under the provisions of section 17 of the act of August 9, 1921. The decision in this case is approved. 16 Comp. Dec., 151; 26 id. 855, 1038.

Two checks issued to Mrs. Collum for $90 and $30, respectively, are understood to have been correctly issued for installments of allotment and allowance lawfully due to her at the time they were issued. A general statement of account made by the Bureau of War Risk Insurance in her case shows that there had been an overpayment of $12 by the bureau and a quartermaster's overpayment of $190. The decision submitted in her case is to the effect that these overpayments should be charged against the amount of her claim on account of the lost checks.

If the overallowance of $12 was covered by either of the lost checks it has not in fact been paid and may be charged against the claim. If it was covered by a check which has been cashed or negotiated by the payee it has been paid and may not now be recovered by charg ing it against this claim for any reason except those specified in the statute.

It would seem that the quartermaster's overpayment of $190 noted in the bureau statement must have been made to the soldier in con

nection with his Army pay and allowances, and that it probably grew out of a failure to check his pay for the compulsory allotment the law required that he should make to his wife, although the submission is silent on this point. Assuming that such is the fact, recovery of the payment of the war risk insurance allotment and allowance based upon the Army allotment because of the failure of the Army to make the checkage against the soldier's pay is now barred by the act of August 9, 1921. In this connection, see 26 Comp. Dec., 561. If, however, the overpayment to the soldier grew out of some error other than failure to check the allotment against his pay the statute quoted has no application and there is no apparent reason why the overpayment should not now be charged against his wife's claim. The facts as to this overpayment should be ascertained and action taken accordingly.

In addition to deciding these two specific cases the submission includes a general decision to the effect that where a check correctly issued for an amount lawfully due on an allotment and allowance has been lost, claim for the amount thereof must be allowed in full, notwithstanding an overbalance and payment of some other installment of the allotment and allowance; section 17 of the act of August 9, 1921, hereinbefore quoted being a bar to recovery of such overallowance and payment. This decision is approved.

"

The submission also includes a general decision that the existing practice in the matter of carrying the amount of checks which have been outstanding more than three years to "Outstanding liabilities' should be so modified as to require that all such cases be submitted to the proper auditing division or section of the General Accounting Office for such action as each case may require. The purpose of such change is stated to be to afford the auditing division or section opportunity to examine into and determine the facts, and make recommendation accordingly. If it is determined that there is a legal offset against any amount about to be carried to outstanding liabilities it is proposed to deduct the said offset and cover it into the Treasury, and carry only the remainder to outstanding liabilities.

Section 306, Revised Statutes, requires the Treasurer of the United States at the close of each fiscal year to deposit in the Treasury all amounts of moneys that are represented by checks which have been outstanding more than three years, and provides that amounts so deposited shall be covered in to “outstanding liabilities." I can find no authority of law for an audit of these amounts before they are covered in, or in advance of any after claim of them by the payee, or bona fide holder of the check. If less than the amount of the outstanding check should be covered into outstanding liabilities the amount covered would be insufficient to pay the check if claim is

made by a bona fide holder against whom no offset can lawfully be charged. Only in case a claim for an amount deposited to outstanding liabilities is made by a payee or bona fide holder is it necessary to adjudicate the right of any person to receive an amount so covered. If at the time of any such settlement it shall appear that the claimant for any reason is not entitled to the full amount standing in the outstanding liability account, the right of such claimant may then be determined and settled, and if it is found to be necessary and lawful that part only of the amount shall be paid to the claimant, the remainder may be turned into the general fund of the Treasury.

It is proper as a precautionary measure for the accounting division to report to the Secretary of the Treasury all offsets against amounts which have been or shall be covered in to the Treasury as outstanding liabilities, not as a final adjudication of such offsets, but for the purpose of a proper notation upon the records of the Treasury Department. This report may be made in connection with the annual report of outstanding checks which the auditing divisions are required by section 5 of the act of July 1, 1916, 39 Stat., 336, to make to the Secretary of the Treasury, or at such other times as may be advisable.

SALES OF SURPLUS WAR SUPPLIES.

Where the Government advertises salvaged war material for sale and the quantities at given locations are represented as approximate only, the Government's undertaking is not to guarantee the quantities mentioned in the advertisement, but to sell in lots all the material of the kind described at the places mentioned; hence it is not liable for damages for shortage if purchaser receive less than the quantity mentioned in the advertisement. Decision by Comptroller General McCarl, September 19, 1921:

The James S. Miller Co. applied August 1, 1921, for a revision of the action of the Auditor for the War Department in disallowing by settlement No. 779531, dated May 3, 1921, its claim for $10,371.54 as damages on account of an alleged shortage in the quantity of forgings delivered to it under contract of sale dated June 14, 1919. The claimant alleges that the Government undertook to deliver to it 1,800 tons, 3,600,000 pounds, of 6-inch forgings then stored at the Standard Forging Co.'s plant, Indiana Harbor, Ind., and 4,500 tons, 9,000,000 pounds, of like forgings then stored at Winslow Bros.' plant, Chicago, Ill.; that the first-mentioned lot actually consisted of only 1,961,320 pounds and the other lot only 7,886,490 pounds; and that the damage resulting from the shortage in quantity is the amount of the difference between the price it was to pay the Government under the contract and the price it paid in the open market for the shortages consisting of 1,638,680 pounds and 1,113,510 pounds, respectively.

The auditor disallowed the claim upon the ground that the quantities were not guaranteed but were represented by the Government as approximate only and that therefore the United States was not liable for damages on account of any shortages.

The Government's advertisement announced for sale "about 42,000 tons" and gave the location of the different lots comprising said quantity. Among the lots thus listed by location were the two lots now under consideration, namely "1,800 tons of 6" forgings at Standard Forging Company, Indiana Harbor, Indiana," and "4,500 tons of 6" forgings at Winslow Brothers, Chicago, Illinois." Considering the advertisement as a whole and the known fact that the Government was not engaged in the business of buying and selling or manufacturing for sale the forgings involved, but was merely disposing of salvaged war material, I think it is reasonably clear that the Government's undertaking was not to guarantee the quantities mentioned in the advertisement but to sell in lots all of the forgings of the kind described which were stored at the several places mentioned. Hence, there would appear to be no liability for the payment of damages on account of the shortages. Brawley v. United States, 96 U. S., 168, 171; Norrington v. Wright, 115 U. S., 188. See also Robinson v. Noble, 8 Peters, 181, 196; Pollard v. Saltonstall, 56 Fed. Rep., 861; Pembroke Iron Company v. Parsons, 71 Mass. (5 Gray), 589; Rib River Lumber Company v. Ogilvie, 113 Wis., 482. Even if it could be held that there was a breach of contract in this case, the contract was not for the payment of money by the United States, but for the delivery of forgings, and there is neither a statute specifically authorizing the payment of damages in such cases nor an appropriation available from which such damages could be paid. Therefore, the claim is not one which the General Accounting Office has jurisdiction to allow and certify. In this connection see 27 Comp. Dec., 594.

Upon a review of the matter no differences are found and the settlement is sustained.

LICENSE ON GOVERNMENT PROPERTY IMPOSED BY STATE.

The requirement of a State that a Federal motor vehicle operated within the State shall have a license tag for which the Government is required to pay a fee amounts to a tax on an instrumentality of the United States and is unauthorized.

Decision by Comptroller General McCarl, September 20, 1921:

Carl S. Milliken, secretary of state for the State of Colorado, requested September 14, 1921, review of settlement No. 69026, dated September 2, 1921, Interior Department Division, General Account