The contract is composed of the Invitation, Bid and Acceptance. The material parts thereof are quoted above.
Plaintiff contends that the misdescription of the bandages was a breach of a warranty that the property sold would not materially differ in character from the property described in the contract. This contention is without merit. The 'Condition of Property' clause provides:
'* * * The Government makes no * * * warranty * * * expressed or implied, as to * * * character * * * or description of any of the property * * *.'
It has been observed that 'under the terms of the sale, with inspection invited prior to the submission of bids (in the case at bar prior inspection was cautioned on all the continuation sheets), caveat emptor was certainly intended to be applied to the furthest limit that contract stipulations could accomplish it.' United States v. Silverton, 1 Cir., 1952, 200 F.2d 824, 827. Since the evidence establishes that plaintiff actually received the bandages displayed for inspection as Item 8, what the case comes down to, as found by the Board, is that it 'disregarded repeated warnings in the (contract) * * * to inspect the property and has only itself to blame for the predicament in which it finds itself.' Dadourian Export Corp. v. United States, 2 Cir., 1961, 291 F.2d 178, 183.
Plaintiff's only safe course under the contract lay in making an adequate inspection before bidding; failing to do so, it cannot now be heard to complain of a breach of warranty that was never made to it. Maguire & Co. v. United States, 1927, 273 U.S. 67, 47 S. Ct. 274, 71 L. Ed. 540; American Elastics v. United States (Chicago contract), 2 Cir., 1951, 187 F.2d 109; Western Non-Ferrous Metals Corp. v. United States, D.C.N.D.Cal., S.D.1961, 192 F.Supp. 774; United States v. Kelly, D.C.N.D.Mo., E.C.1953, 112 F.Supp. 831.
Plaintiff also argued that the term 'white' as used in the description of Item 8 is so basic that unless the bandages received were all white, then it must be found as a matter of law that the defendant breached the contract in delivering white and camouflaged bandages, notwithstanding the fact that it had an opportunity to inspect the goods prior to bidding.
Although it was said by way of dictum in United States v. Silverton, supra, that even the full disclaimers found in surplus contract provisions would not be sufficient to render the buyer remediless were the Government to send apples instead of oranges, a comparable situation does not exist in the instant case. A bandage is still a bandage even though not white. Therefore, it cannot be held as a matter of law that the Government breached the 'as is' and 'where is' contract by delivering boxes containing white and camouflaged bandages in the light of the undisputed evidence that it delivered to plaintiff the boxes of bandages actually displayed as Item 8 upon which plaintiff had bid after having had an opportunity to inspect. Dadourian Export Corp. v. United States, supra; Standard Magnesium Corp. v. United States, 10 Cir., 1957, 241 F.2d 677; M. Samuel & Sons v. United States, 1925, 61 Ct.Cl. 373. Cf. Lipshitz & Cohen v. United States, 1925, 269 U.S. 90, 46 S. Ct. 45, 70 L. Ed. 175. The rationale of the cases cited is opposed to any recovery by plaintiff on grounds of breach of contract or breach of warranty.
Finally, plaintiff contends that this court should try this case de novo since there are issues of law involved. I do not agree. Since the findings of the Board are supported by substantial evidence, the court is confined to the record made before the Board, Wells & Wells, Inc. v. United States, supra, 269 F.2d at page 415; United States Nat. Bank of Portland v. United States, supra, and should decide the questions of law based upon the evidence adduced before the Board, Kayfield Construction Corp. v. United States, supra; McKinnon v. United States, supra; Allied Paint & Color Works, Inc. v. United States, D.C.S.D.N.Y.1960, 199 F.Supp. 285, 'otherwise the hearing before the Board would be rendered nugatory and constitute a timeconsuming nullity providing both parties with two opportunities to present their case.' United States v. Hamden Co-Operative Creamery Co., D.C.E.D.N.Y.1960, 185 F.Supp. 541, 545.
The defendant's motion for summary judgment will be granted.