OPINION ISSUED JANUARY 15, 1986
JOE L. SMITH, JR., INC., D/B/A BIGGS-JOHNSTON-WITHROW
VS.
DEPARTMENT OF EMPLOYMENT SECURITY
(CC-85-377)
Ben Preast, Sales Representative, appeared for claimant.
D. B. Daugherty, Attorney at Law, for respondent.
PER CURIAM:
Claimant was the successful bidder and was awarded a purchase
order for
200,000 printed
forms at a cost of $8,572.00 to respondent. As the claimant was
unable
to produce the
necessary forms, the work was subcontracted to a company in New
York.
After the forms
were delivered to respondent, its purchasing agent informed
claimant
that it intended to reject
the forms. The forms were rejected due to a defective blue carbon.
Respondent used 143,000 forms as it lacked an alternative until
replacement forms could be
printed by a company other than the claimant. Claimant was informed
by
the New York
subcontractor that claimant was entitled to a full refund for the
forms
which were returned to it.
Respondent returned only 57,000 of the original 200,000 forms to
claimant for which claimant
received a partial credit of $3,386.09. Claimant seeks $3,727.16
for the
forms not returned to it
and for which it did not receive the refund.
The Court is of the opinion that to deny an award to the claimant
would
be unjust enrichment.
The respondent used the forms. However, the forms were defective
through
no fault of
respondent. For that reason, the Court reduces the amount claimed
by 10%
and makes an
award to claimant in the amount of $3,354.44.
Award of $3,354.44.
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