Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
Appellant seeks the reversal of a judgment for $670.32 entered against him by the District Court on June 25, 1952. Suit was brought by the Government claiming that appellant breached his contract to purchase a quantity of sodium carbonate from the Office of Surplus Property, Department of Commerce, by refusing to pay $934.92, as per the terms of his bid contract for the merchandise. After notice to appellant, the Government resold the sodium carbonate for his account to the highest bidder for $246.60, which was $670.32 less than his bid contract price.
By stipulation of the parties the original complaint was amended to permit the Government to show the terms of sale, including certified copies of the bid made by appellant on April 14, 1945, and the acceptance by appellee on April 28, 1945. The acceptance was made known to appellant by Notice of Sale dated May 7, 1945.
Appellant moved to strike the complaint as amended, claiming the contract was not enforceable because it lacked mutuality of obligation.The District Court denied the motion and appellant elected to stand on his motion and not plead over. The court then entered judgment in favor of the Government for $670.32 and costs. This appeal followed.
The essential facts are undisputed. In 1945, the Office of Surplus Property of the Department of Commerce, invited bids for 37 items of chemicals, drugs, etc., located at the Denver Medical Depot, at Denver, Colorado. All bids were to be submitted to the Regional Office at Denver, on forms furnished by the Government. The record shows a letter sent by the Office of Surplus Property to appellant reading in part as follows: "A description of the property concerning which you have made inquiry is set out on the reverse side hereof which constitutes the form on which bids must be submitted. * * * Bidders are urged to inspect property prior to submitting bids." * * *
"References in this form to the 'Treasury Department' and the 'Procurement Division' are changed to 'Commerce Department' except in the reference to Treasury Department Sales Conditions No. 1. In paragraph of Treasury Department Sales Conditions No. 1, the references to 'Secretary of The Treasury' and 'Treasury Department' are changed to 'Secretary of Commerce' and 'Commerce Department,' respectively."
During the period covered by this transaction the Department of Commerce had control of Surplus Property Sales. Attached to the letter is a form entitled: "Department of Commerce - Bid and Contract Form - Surplus Property Sales." On this form appears the following statements:
"The undersigned bidder will buy, subject to the terms and conditions stated below the following property offered for sale by the Treasury Department and which was listed in the Surplus Reporter, dated 3/31/45."
"Conditions - This bid includes the terms and conditions set out on the reverse side hereof and, except to the extent, qualified thereby, Treasury Department sales conditions No. 1, dated January 30, 1945, a copy of which has been received by the undersigned bidder."
This document No. 1 contained eight conditions applying to sales of Surplus Property.Among its provisions are the following:
"Subject to any qualification which may be made in writing in the solicitation of bids, all sales are subject to the following conditions: (1) All sales are on a cash basis and payment in full must be made promptly after award and prior to the removal of the property." (2) In part, "Property must be removed at the purchaser's expense within 10 days (or such other period as may at any time be specifically allowed in writing) after the date of mailing by the Government of the Notice of Sale, which will be the purchaser's authorization to obtain delivery of the property. * * *"
Part of condition 2 and conditions 3 to 7 inclusive, are not material here and appellant ...