(concurring in part and dissenting in part).
I agree that the plaintiff has no legal cause of action — since it failed to file a claim for adjustment on or before August 17,1953 — but I think that it does have an “equitable” claim in the sense that that concept has developed in our Congressional-reference j urisprudence.
The ultimate fact is that plaintiff has paid, at the agreed rate, for some 1940 tons of steel which it did not receive and the Government has obtained compensation for 1940 tons which it did not deliver. Usually, such a situation suggests an inquiry whether the Government is retaining monies it cannot morally keep. I am not convinced by the reasons given in Judge DURFEE’s and the Chief Judge’s opinions for concluding that that should not be the result here. The pertinent factors seem to me to favor plaintiff.
The absence of a claim by August 17, 1953, is not a bar to “equitable” recovery; that provision of the contract is close kin to the statute of limitations which has long been held avoidable, in a Congressional reference, where adequate cause is shown.1 To my mind there was good reason for plaintiff’s failure to have the steel weighed (or the tonnage otherwise calculated) before it was shipped out. The only practical method of determining the tonnage was at the time the steel was loaded for shipment. “It would have been virtually impossible to calculate the exact amount of steel in each of the several piles, and it would have been very costly and would have taken months to weigh the steel in each of the piles.” Finding 8(a). For quite a while after plaintiff bought the steel it could not resell much of it, although it advertised continuously and nationally. Its first big sale was at a loss of $11 a ton. Finding 14. The fair inference from the record is that plaintiff continued to sell the steel, in lots, as soon as it received a reasonable price for the particular batch. There is no reason to believe that sales were postponed because plaintiff felt that the Government would ultimately reimburse it for any deficiencies and thus insure its profits. In fact, the first indication that the piles were short did not come until April 1956; and it was not until October 1956 that the last of the steel was loaded for shipment, and plaintiff really knew how short its purchase was. Findings 23-24. With respect to the “equitable” *647aspect of plaintiff’s claim, this delay in weighing was both reasonable and excusable. Plaintiff was not casually or underhandedly deferring ascertainment of the weight until the most favorable time; rather, in the light of business realities, plaintiff had little choice. The prohibitive expense of having the piles weighed before the steel was loaded would probably have led to a large overall loss on the transaction. It was therefore appropriate and practical, in the common sense world of business, to await the weighing which was necessarily incident to shipping. Similarly, plaintiff should not be penalized — in this special type of proceeding in which it seeks relief only from the overpayment — because it did not accelerate the shipments by selling at a great loss or at too low a price.
Nor does the characterization of the contract as an “as is” sale of surplus property settle the issue of “equitable” entitlement for steel not received. The contract must be read as a whole. The plaintiff knew that the weights indicated by the Government were estimated and approximate; it knew, too, that the Government was making no guaranty or representation that any particular tonnage was included in the piles. These provisions meant that, so long as the buyer paid only for the tonnage he received, he could not complain that the amounts actually delivered varied from those set forth in the invitation. But these clauses did not say or provide that a purchaser who paid the bid price for 10,465 tons had no recourse if he received 1940 tons less. This was not the kind of surplus sale in which a lot is offered “as is, where is” at one total price, with all risk as to the number of component units placed squarely on the purchaser. The contract specifically contemplated an adjustment based on the tonnage actually delivered (paragraphs 8 and 22); to that end the bids were not to be submitted as a total dollar amount but “on a net ton basis” (paragraph 19). The transaction, to that extent, was not at the buyer’s risk — was not fully an “as is, where is” sale. As to amount, the buyer had a very important right; he could obtain an adjustment if he paid for more steel than he got. True, the adjustment was to be claimed by a set date (August 17, 1953), but I have already given the reasons why I believe that this time-limitation should be removed in this “equitable” proceeding. The plaintiff could not reasonably have been expected to weigh in advance, and after the sale there was solid excuse for waiting until the steel was resold and shipped. The excess payment was discovered and claimed in a reasonable time.
It is not inequitable to the Government, in the moral sense, to require it to give up this excess payment. It holds money for which it did not deliver steel. The defendant has argued, however, that the plaintiff’s delay has added materially to the difficulty of combatting the inference that the Government originally miscalculated the tonnage in the piles. The Trial Commissioner and the court have found, and I agree, that the discrepancy was due to an initial governmental error of this kind, not to later activities for which the Government cannot be held responsible. Aside from defendant’s unpersuasive speculation before us, there is little indication that defendant’s proof on this point would have been substantially better if the shortage had been discovered late in 1953 or in 1954 or 1955, instead of 1956. The vague possibility that the delay hampered defendant’s proof should not outbalance the plaintiff’s considerable equity. It is also said that the Government would be prejudiced, if relief were given here, because the Government cannot recover for an underpayment by a purchaser (as in the related instance of Boston Metals). One answer is that in these Congressional references the United States is often held “equitably” liable even though, if the shoe were on the other foot, there could be no recovery at law. The sovereign has many special protections, but it has also followed, in proceedings under 28 U.S.C. §§ 1492 and 2509, the policy of noblesse oblige. In addition, it does not seem an unfair discrimination to make the Government abide by the estimated weights it itself has established while permitting relief to the purchaser on the *648basis of the actual tonnage.2 And since the contract did not put the entire risk as to amount on the purchaser, the defendant should have no more of a vested right in the date of August 17, 1953, than it has, in this class of proceeding, in other time-bars.
I would determine that plaintiff is equitably entitled to recover $117,913.20, without interest.
COLLINS, Judge, joins in the foregoing opinion concurring in part and dissenting in part.
. See 28 U.S.O. § 2509; Clark v. United States, Ct.Cl., Cong. No. 10-58, decided July 17, 1964, slip op., p. 2; S.N.T. Bratelli Gondrand v. United States, Ct. Cl., Cong. No. 7-58, decided June 12, 1964, slip op., p. 9; Ralph Feffer & Sons v. United States, Ct.Cl. Cong. No. 5-60, decided June 12, 1964, slip op., pp. 2-3; Erie Railroad Co. v. United States, 156 F.Supp. 908, 909, 140 Ct.Cl. 398, 399 (1957); Zadeh v. United States, 111 R. Supp. 248, 250, 124 Ct.Cl. 650, 653 (1953).
. Of course, Boston Metal’s gain cannot be set off against this plaintiff’s loss. The companies are not connected.