prescribe procedures to be followed in the classification of personal property as foreign excess personal property, and for the disposal of such foreign excess personal property ***." Paragraph 1, AR 755-10. Paragraph 5 defines a number of terms:

“*** d. Disposal (also disposition).—The act of getting rid of excess or surplus property (including scrap and salvage) under proper authority. Disposal may be accomplished by, but is not limited to, transfer, donation, sale, abandonment, or destruction ***

"(7) Foreign excess personal property.-Excess personal property located outside continental United States, Hawaii, Alaska, Puerto Rico, and the Virgin Islands."

[1] Appelle suggests that the regulations are not applicable in that the property was lost in the jungle and thus not "under the control" of any Federal agency. However, the helicopter was not "lost" in the sense that its location was unknown. The general location was marked on all the Army's operational maps and there was testimony that appellant and appellee were briefed on its location. Secondly, although the Army did not have immediate physical possession of the wreck it was under the Army's "control" in that the Army had the power of authority to manage and administer the property as against either appellant or appellee. Black's Law Dictionary 399 (4th Ed. 1957).

We hold the wreck was "foreign excess property" as that term is used in the statute and regulation.

Paragraph 28 of the regulation governs sales of foreign excess property, and there is no contention that all applicable provisions were not followed in the sale to appellant.

Abandonment, destruction and donation of property is covered in Paragraph 29 (a) (b). Paragraph 29 (a) permits abandonment without public notice upon a finding by a responsible officer, approved by a board of one or more officers, that the abandonment is required by military necessity or by considerations of health, safety, or security, or the value of the property is so little or the cost of its care and handling is so great, that retention for thirty days is not justified. The record is devoid of evidence of compliance with this paragraph. Likewise, there is no evidence of disposition pursuant to paragraph 29 (b), which permits abandonment not less than thirty days after giving wide public notice of proposed abandonment.

Notwithstanding the absence of any direct evidence of abandonment of the wreck by the Army pursuant to AR 755-10, the District Court found the Army "abandoned" the property on April 1, 1957. In an oral opinion the Court, taking note of statements by Army officers that the wreck had been "abandoned" and "dropped from accountability records," stated the key to his decision was a presumption that the

responsible officers of the Army had done their duty and that the acts necessary to effect an abandonment under AR 755-10 had been done.

In support of the finding of abandonment appellee relies heavily on Colonel Peeples' letter of March 15, 1957, in which he said the remains had been "dropped from accountability records." This statement, according to appellee, shows the helicopter was no longer the property of the Army and the finding of abandonment follows from the fact that it had been dropped from accountability records.

It is apparent from the letter itself that "dropping from accountability records" is not equivalent to "abandonment," for in addition to stating the wreck had been dropped from accountability records the Colonel enclosed a copy of AR 755-10, which he said "details the procedure by which [appellant] may request title to the remaining portions of the wrecked machine." If the property had been “abandoned" and title thereto could be secured simply by taking it, the regulations would have been inapplicable and it is unreasonable to suppose the Colonel would have suggested that a party interested in the wreck follow the procedure specified in the regulations to obtain title.

*

It may be concluded that the term "accountability" relates to administrative responsibility for property within the Army itself. Dropping from accountability may be a prelude to abandonment or other disposition by the Army, but procedures relating to management and control of property within the Army have no necessary relation to abandonment or other disposition by the Army. A particular individual may be charged with responsibility for property, and thus accountable for it. If the property is damaged and the accountable individual is allowed to clear his books of accountability it does not follow that the Army has abandoned its claim to the remains.

[3, 4] The Army's failure to seek to recover the remains for eighteen months does not constitute an abandonment. Congress has the power to provide for the disposition of property of the United States, Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 330, 56 S. Ct. 466, 80 L.Ed. 688 and the power must be exercised by the authorized authority, United States v. State of California, 1947, 332 U.S. 19, 40, 67 S. Ct. 1658, 91 L.Ed. 1889, and in the authorized manner, Finsky v. Union Carbide & Carbon Corp., 7 Cir., 1957, 249 F.2d 449, 457, which in this case is pursuant to AR 755–10. There is no affirmative evidence of abandonment pursuant to the regulation. "Inactivity, or neglect, upon the part of Government officers is insufficient to cause the Government to lose its property." United

States ex rel. Tennesseee Valley Authority v. Caylor, D.C.E.D. Tenn. 1958, 159 F. Supp. 410, 413.

[5] Nor can judgment for appellee be predicated on a presumption of abandonment. Underlying the claim of presumed abandonment is an assertion that the Army had a duty to act promptly (40 U.S.C.A. § 483 (b)) and either recover the wreck or abandon it. As no effort was made to recover the property, appellee's argument runs, a presumption that Army officers do their duty comes into play, and it thus follows that it was abandoned. But whatever vitality such a presumption might have in the absence of evidence to the contrary, it is overcome by indications by the Commanding General, U.S. Army Caribbean, that the property was for sale, and its sale to appellant by the person authorized, the Property Disposal Officer.

[6] Presumptions, like swords, sometimes cut two ways. If appellee can claim presumptive abandonment, appellant can claim presumptive validity of his bill of sale: "presumption of legality attaches to the act of a public officer." United States v. Jones, 9 Cir., 1949, 176 F. 2d 278, 282. If the Army had a duty to abandon the property it also had a duty not to subsequently sell it. As the Army did sell the wreck, it cannot be presumed it was abandoned. [7] We hold the Army did not abandon the wreck on April 1, 1957, or at any other time, and that appellee did not become the owner by taking possession.

[9] Appellee lastly argues that the bill of sale, even if valid, does not purport to convey the property in question. The bill of sale sets forth the "Description and Location of Property" as follows:

"Remains of the H-13E Helicopter, Ser #51-14104, located approximately 36 miles north of Coban, Guatemala, no guaranty can be made of any salvage remaining. All titles and rights contained in herein described property are transferred in place to the purchaser under this contract." Appellee contends that the bill of sale conveyed only so much of the helicopter as remained at the scene of the crash, that is, the rotor blades, the sole "Remains *** located approximately 36 miles north of Coban ***" However, we think that reference to location of the helicopter was intended only to identify the helicopter which was the subject of the contract, and not to restrict the transfer just to those portions of the wreck which were still located at the scene of the crash. Although the Army made no guaranty that any salvage remained, the language used was appropriate to convey whatever rights it had in the wreck, regardless of location.

Reversed and remanded with directions to enter judgment for appellant.

622161-62- -35

541

Section 2. SALE

LIPSHITZ & COHEN v. UNITED STATES

269 U.S. 90 (1925)

Mr. JUSTICE MCREYNOLDS delivered the opinion of the court: Plaintiffs in error seek to recover profits which, it is alleged, would have been realized if the United States had complied with their agreement to deliver approximately 1,530,600 pounds of obsolete material. The cause was heard by the District Judge without a jury. He found the facts and upon them held that the contract had not been broken. An agent of the United States put out a schedule which stated that certain obsolete material, classed as cast iron, cast and forged steel, armor steel, brass, bronze and lead, was held for sale at six specified forts. It set out the weights of each class at each place, and was headed-"List of junk for sale and location of same. The weights as shown below are approximate and must be accepted as correct by the bidder." Plaintiffs in error made a written offer at the foot of the schedule sheet to pay $1,055, "for all the above described material, as is where is, for which we are enclosing you Cashier's check for 20% of the amount-$211-with our option to remove material within six months from acceptance of this bid. *** ” This was accepted May 24, 1922. "At the time the offer was made and accepted the plaintiff did not inspect the material for sale at any of the fortifications, and had no knowledge of such material other than that given by the contract. It was later found in junk piles at the various forts." In the following July the purchasers began to remove the material and found nearly all items short. Aggregated these shortages amounted to approximately one-half of the total weight stated in the original schedule, but there is nothing to indicate bad faith. They complained but made no effort to repudiate or annul the contract.

Supporting his judgment in favor of the United States the District Judge said: "Since the Government is not in the business of buying and selling and its agents are authorized only to offer for sale such material as has been condemned as obsolete or useless, taking the language of this offer and acceptance I am of opinion that the contract must be construed as one offering to sell an approximate quantity of such cast iron, brass [cast and forged steel, bronze, armor steel] or lead, and as one offering to sell all of the materials of these descriptions which were on hand at the various points named, the intention being not to make a sale by the pound or ton, but to make an entire

sale of specific lots of obsolete material, whether more or less than the weight, and to include all thereof. *** I am satisfied that they [plaintiffs] cannot claim that this contract, worded as it was, has been broken because it turned out that there was less, even greatly less, of some of the materials described as on hand than the description would have led the purchaser to suppose. It is not made to appear that the United States failed or refused to deliver any of the material that was actually at the forts named at the time the contract was made." We approve this construction of the agreement. Applicable principles of law were announced by Mr. Justice Bradley, speaking for the court in Brawley v. United States, 96 U.S. 168, 171, 24 L. ed. 622, 623. The negotiations had reference to specific lots. The naming of quantities cannot be regarded as in the nature of a warranty, but merely as an estimate of the probable amounts in reference to which good faith only could be required of the party making it.

The judgment of the court below must be affirmed.

DADOURIAN EXPORT CORP. v. UNITED STATES

291 F. 2d 178 (2d Cir. 1961)

MEDINA, Circuit Judge.

On December 14, 1956, the United States through the New Cumberland General Depot of the United States Army, at New Cumberland, Pennsylvania, circulated, together with forms for bidding and General Sale Terms and Conditions, an invitation for bids upon 91 items of government surplus property. Among the items listed for sale were items 65 through 73, which were described in the bid forms in the following manner:

On the invitation there appeared in large capital letters the statement "It has been determined that this property is no longer needed by the federal government." Moreover, on both the invitation and on each bid form were the words "Caution: inspect the property," in italicized capitals. The invitation urged bidders to read the accompanying General Sale Terms and Conditions. These provided in pertinent part as follows:

"1. INSPECTION.-Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the places and times specified in the invitation. The Government