
    Amherst H. Wilder v. The United States.
    
      On the Proofs.
    
    
      Formerly army transportation contracts extend through the transportation months- and disregard the division of the fiscal year. Subsequently statutes are passed which restrict expenditures and expenses to the specific appropriations for each fiscal year. Wilder is the transportation contractor of the tndian Bureau for the year ending June 30, 1877; Charles, the contractor for the year beginning July 1,1877. Charles is also the agent of Wilder, and conducts and transacts all of the business under his contract. They are also partners in business, and will share directly or indirectly in the 'profits or losses of both contracts. During the life of Wilder’s contract, the Indian Bureau orders its supplies for the ensuing fiscal year to be turned over to Charles for transportation under his contract. He receipts for them as agent of Wilder, and sends them forward. Wilder claims that he performed ; Charles prefers no claim, and is a witness for Wilder. The defendants insist that they turned over the supplies to Charles, and that Wilder had no authority, either in fact or in law, to transport them.
    
    1.A government contract must be construed in accordance witli such provision of law as may exist; and if it transcends the law the officer who made it must be held to have transcended his authority.
    II.A contract for the transportation of “ such goods and supplies as may be offered to the contractor” mast be construed to mean “such goods and supplies as may be [laxvfully] offered to the contractor.”
    III. The Commissioner of Indian Affairs cannot buy supplies with money appropriated for the expenditures of one fiscal year, and transport them to the agencies with money appropriated for the expenditures of another fiscal year.
    IV. The Revised Statutes ($§ 3GC0, 3864, 3665, 3675, 3678, 3679, 3690) restrict in every possible way the expenditures, expenses, and liabilities of the government, so far as executive officers are concerned, to the specific appropriations for each fiscal year.
    V.When the defendants file no plea charging a claimant with fraud or collusion, and where no issue of fraud has been made and tried, the court is nob at liberty to impute fraud.
    
      VI.Where a person occupies the double position of "being "both contractor and general managing agent for another contractor, notice to him is notice to his principal as to matters relating to the latter’s contract ; hot notice to him personally as a contractor on his own behalf is not notice to his principal in matters outside of the agency.
    VII.A contractor who stands by and sees another recover for services which [he was entitled to perform, who testifies as a witness, assists in the prosecution of the ease, and asserts no claim of his own, will be estopjmd from afterwards setting up a demand.
    VIII.Where the defendants ordered one contractor to perform a certain service and supposed that it was done by him, but he turned it over to another contractor by whom it was performed, it cannot be ascribed to the express contract with the latter. But an implied contract arises from service thus rendered in good faith, and the contract with the former contractor becomes evidence to show what the service was worth.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The contract set forth in the petition was entered into as stated in the petition.
    II. Said contract was entered into in pursuance of an advertisement published by the Commissioner of Indian Affairs, dated August 16,1876, inviting proposals for transportation from the points of departure named in said contract to the various Indian agencies. The claimant made a proposal for the transportation to be done between the points named in said contract, which proposal was accepted, and the contract was entered into as above found.
    III. It does not appear that the said contract received any formal declaration of approval by either the Commissioner of Indian Affairs, the Board of Indian Commissioners, or the Secretary of the Interior $ but after its date it was acted upon by the Commissioner of Indian Affairs, by requiring claimant to transport Indian supplies under it, and paying claimant for such transportation according to the terms of said contract $ such action of said Commissioner of Indian Affairs extending into the month of June, 1877.
    IV. During the whole period of time covered by said contract, that is to say, from the date thereof till the 30th June, 1877, the claimant resided at Saint Paul, Minn., and bad an agent, one Jobn II. Charles, at Sioux City, Iowa, on the Missouri River, who represented and acted for him in all matters connected with transportation under said contract on that river from Sioux City to the points of destination named in the' contract. For all supplies delivered at Sioux City for transportation by the claimant under that contract the said Charles gave receipts on behalf of the claimant, and signed to them the claimant’s name.
    V. During the period of time covered by the claimant’s aforesaid contract, the transportation of supplies done thereunder was from Sioux City to Yankton, Dakota Territory, by railroad, and from Yankton to points on the upper Missouri River by four steamboats, in which the claimant then was, and before said contract was entered into had been, a part owner. One of those steamboats was called Silver Lake; and the claimant was, in June, 1877, the owner of one half of her, and the said Charles was the owner of the other half.
    YI. The Indian agencies in Dakota and Montana Territories, before and during the year 1877, were, in part, on the Missouri River, and supplies were transported to them by said steamboats ; and, in part, were in the interior more or less distant from that river, and supplies were transported to them by said steamboats to points on that river, and thence by wagon to the places of delivery. In order to facilitate the delivery of goods to those agencies, and to prevent delays, and the probable lying over of the goods through the winter at intermediate points, a usage had prevailed in the office of the Commissioner of Indian Affairs, in and prior to the year 1877 when a contract for transportation of supplies had been made before the beginning of the fiscal year, to ship as soon as possible after the contracts were completed and supplies could be got ready for delivery, even though it was prior to the commencement of the fiscal year for which they were purchased. It does not appear that the claimant had knowledge of that usage.
    VII. On the 14th of May, 1877, one James B. Booge entered into a written contract with the Commissioner of Indian Affairs, for furnishing, at Sioux City, bacon and mess pork for divers Indian agencies for the fiscal year ending June 30,1878, among which were Standing Rock and Fort Peck Agencies. The said Booge had no contract with said Commissioner for furnishing -bacon to such agencies during tbe fiscal year ending June 30, 1877.
    VIII. On the 26th day of May, 1877, the said Charles entered into á written contract with the Commissioner of Indian Affairs for the transportation of goods and supplies of the Indian Department from four different points, to wit, Chicago, Saint Louis, Saint Paul, and Sioux City, to divers points named in said contract, among which were Standing Bock and Fort Peck agencies; and in that contract it was stipulated as follows :
    “That the said party of the second part shall receive during the fiscal year ending June 30, 1878, all such goods and supplies of the Indian Department as may be offered or turned over to him for transportation by the party of the first part or his agents, and shall transport the same with dispatch, agreeably to the instructions of the said party of the first part or his agents and stipulations of this contract, and shall deliver them in like good order and condition to the officers and agents of the Indian Department designated to receive them, at the several points named,' and for the rates given in the tabular statement hereto annexed, which tabular statement is hereby made part hereof.”
    IX. In the said contract of said Charles it was stipulated, also, that for goods and supplies transported by him from Sioux City to Standing Bock Agency he should be paid 65 cents per 100 pounds; and for those transported from Sioux City to Fort Peck Agency he should be paid $1.35 per 100 pounds.
    X. On the 5th of June, 1877, said Booge had bacon for Standing Bock and Fort Peck Agencies ready at Sioux City for inspection under his said contract.
    On that day the said John H. Charles sent to the Commissioner of Indian Affairs .the following telegram and letter:
    “The Western Union Telegraph Company,
    “ Sioux City, la., June 5, 1877.
    “Hon. Comm’r Ind. Affairs:
    “The bacon and corn for Standing Bock and Fort Peck are ready for inspection. The boat is ready to load them. Will you authorize Maj. Hughes to inspect them?
    “Jno. H. Charles,
    “ Transportation Contractor.”
    
      “Office of John H. Charles & Co.,
    “ Sioux City, Iowa, June 5,1877.
    “Hon. S. A. Galpin,
    “ Acting Qoninúr Indian Affairs, Washington, D. C.:
    
    “Dear Sir : Mr. Booge, who is contractor for bacon, & Mr. Woolworth, contractor for corn for your department, have the bacon and corn ready for Standing Boclc and Fort Peck Agencies. I have a boat ready to load these supplies, and would like to get them at the agencies while the water is in good stage.
    “ I would also request that all the supplies for F’t Peck, especially, should be forwarded as early as possible, to enable me to get them to destination before the close of navigation. The Fort Peck supplies should all be at Sioux City before July 20th, to insure certain delivery at destination this fall.
    “By giving this matter attention you will confer a favor upon me.
    “ Yery respectfully, &c.,
    “John H. Charles,
    “ Transp. Contractor.”
    XI. On the 6th of said month of June, the Commissioner of Indian Affairs addressed to said Booge a letter, the parts of which relating to the bacon referred to in the said telegram of said Charles are as follows:
    “Under your contract of the 14th ult. for furnishing bacon and mess pork, I have to request that you prepare the following quantities of the said articles for immediate shipment to the respective agencies hereinafter named, viz:
    “Bacon: 65,000 pounds for Fort Peck Ag’y.
    80,000 “ “ "Standing Bock “
    # # # # . * # #
    “ The bacon for Fort Peck and Standing Bock Agencies to be shipped under contract of John H. Charles. Inspection will be made by Major W. B. Hughes, who has been informed of these instructions, and whom you will please notify when ready for shipment.”
    On the said 6th of June the Commissioner of Indian Affairs sent to Major Hughes, the government inspector at Sioux City, the following telegram:
    “Office of Indian Affairs,
    “ Washington, D. G., 6, 6, 1877.
    “To Major Hughes,
    “ Sioux Oity, lotoa:
    
    “Charles, transportation contractor, reports bacon and corn for Fort Peck and Standing Bock ready for transportation and desires them inspected. Copy of bacon contract has been sent you. Corn is to be of quality named in advertisement. Will you inspect soon %
    
    “Galpin,
    “ Aetfg Oom’r.”
    
    To this telegram Major Hughes returned, by telegraph, the following answer:
    “ Western Union Telegraph Company,
    
      “Sioux City, Iowa, June 9, 1877.
    “Hon. Comm. Indian Affairs,
    “ Wash’n D. C.:
    
    “Yes; will inspect Indian supplies; ready at once. Have just returned from an absence at wreck of the steamer Cameron.
    “Hughes, Q’master.”
    On or before the 15th of said June, the said Hughes inspected 778 sacks of bacon presented by said Booge, and signed the following certificate of inspection:
    “ Quartermaster’s Office,
    “ Sioux City, Iowa, Jane 15th, 1877.
    “I hereby certify that I have carefully inspected for the Indian Department seven hundred and seventy-eight (778) sacks of bacon, presented by James E. Booge, of Sioux City, Iowa, contractor, weighing one hundred and forty-five thousand and twenty-two pounds, net, and found the same to be clear sides, winter-cured, sound and sweet, and put up in gunnies. The same has, this 15th day of June, 1877, been properly marked by the contractor, and stamped by me, and delivered to John S. Charles, of Sioux City, Iowa, contractor for transportation to the U. S. Indian agents, at Standing Bock, D. T., and Fort Peck, M. T., and I also certify that I have signed this receipt in duplicate.
    “W. B. Hughes,
    “ Major & QVm’r, If. 8. Army, Insp’r Ind. Supplies.”
    
    XIII. Meantime, the said Charles knew, before the 13th of June, that he was to have the said bacon for transportation; and on that day he went from Sioux City to Yankton by railroad to superintend the shipment of the bacon by steamboat at Yank-ton. Before going to Yankton he left with said Hughes blank property receipts, such as the Indian Department required, for said Hughes to fill up and deliver to Booge. These blank receipts were signed by said Charles in Wilder’s name, and were filled up, in part, by Charles; and Hughes, after inspecting tbe bacon, completed tbe filling up of them, so that, when finally filled up, they were as follows :
    
      U. S. hill of lading.
    
    (Original.)
    “Sioux City, Iowa, June 15,1877.
    “Received from Hon. Commissioner of Indian Affairs, at Sioux City, Iowa, the following articles and packages of Indian goods and supplies as specified below, in apparent good order ■ and condition, to be forwarded to Standing Rock Agency by A. H. Wilder, contractor for transporting Indian supplies, &c.,. and there to be delivered in like good order and condition unto Maj. W. T. Hughes, H. S. Ind. agt., for which I have signed bills of lading in duplicate.' Freight to be paid by the proper officer of the United States at the rate of contract, and to the order of A. H. Wilder, on the presentation and surrender of both these bills of lading properly receipted by the party receiving the said supplies.
    “By-, Agent.”
    
    
      “ A. H. Wilder, Contractor.
    
    Maries. XT. S. Indian agent, Bock Agency, D. T. St. No. of packages. 409 Contents and. numbers on packages. Sacks bacon (Booge). ■Weight, lbs. Gross w’t80,9001bs.
    
      U. S. hill of lading.
    
    “Sioux City, Iowa, June 15th, 1877.
    “Received from Hon. Conunr. of Indian Affairs, at Sioux City, Iowa, the following articles and packages of Indian goods and supplies as specified below, in apparent good order and condition, to be forwarded to Fort Peck Agency by A. H. Wilder, contractor for transporting Indian supplies, &c., and there to be delivered in like good order and condition unto U. S. Indian agent at Fort Peck Agency, for which I have signed bills of lading in duplicate. Freight to be paid by the proper officer of the United States at the rate of contract, and to the order of A. H. Wilder, on the presentation and surrender of both these bills of lading properly receipted by the party receiving the said supplies.
    “A. H. Wilder, Carrier.”
    
    Marks. TT. S- T-nrlinn a<wut., Peck Agency, M. T.. Fort No. of packages. 3GD Contents and numbers on packages. Sacks bacon. Weight, lbs. xrossw’t 65,800 lbs»
    
      These receipts were delivered by said Hughes to one George Weare, a partner of said Booge, in charge of Booge’s business.
    XIY. The said bacon was sent by railroad from Sioux City to Yankton, where Charles then was, consigned to him; and where ■ he caused the same to be shipped on the steamer Silver Lake, and took her bills of lading therefor, filled up by himself, as follows:
    “Yankton, D. T., June 15,1877.
    “Shipped in good order and condition by the D. S. B. B., Sioux City and Yankton Packet Line, on board the good steamboat Silver Lake, 4, the following packages or articles, marked or numbered as below, which are to be delivered without delay, in like good order and condition, at as below (unavoidable dangers of the river and fire only expected), unto as below, or to-, assigns, he or they paying freight for said goods at the rate of-and charges.”
    Starts. Articles. "Weight. Adv. cligs. Rate. Total. J. ST. Sheple, Co. IS, 20th Inf’y, Cheyenne. % J. IT. Charles, m’k’d Standing Bock. Capt. O. Bennett, Stand’s Bock. Douglass & Co., St’d’g Bock. 1 cas. goods.Gta 409 sax hacon. 1 saus. machine. 1 box H. "W. 70 80,286 340 50 75 2 25 75 45 Paid. 1 55 45
    “My signature hereon written certifies that this is the original receipt given by the steamer Silver Lake 4, Clevenger clerk, to the Dakota Southern Bailroad, for the articles above described.
    “Geo. F. Wheelock,
    “ A’gt D. 8. B. B. at Yankton.
    
    “Clevenger,
    “ CVk Silver Lake.”
    
    “Yankton, D. T., June 16,1877.
    “Shipped in good order and condition by the D. S. B. B., Sioux City and Yankton Packet line, on board the good steamboat Silver Lake, 4, the following packages or articles, marked or numbered as below, which are to be delivered without delay, in like good order and condition, at as below (unavoidable dangers of the river and fire only expected), unto as below, orto-assigns, he or they paying freight for said goods at the rate of -and charges.
    
      Marks. Articles. ■Weiglit. Adv. cligs. Hate. Total. J. C. Hobb, Cheyenne, % .Charles.. Maj. W. T. Hughes, Standing Hock, % Charles. % Jno. H. Charles.. 4 box hilliards, 2 pa. slates . C1 cart. \ 1 hdl. harness. 369 sax bacon. 1,380 475 50 65,752 13 80 3 45 Paid. Paid.
    “My signature hereon written certifies that this is the original receipt given by the steamer Silver Lake, Clevenger, clerk, to the Dakota Southern Railroad, for the articles above described.
    “G-eo. F. Wheelocic,
    
      uA(ft D. 8. li. B. at Ycmliton.
    
    “(On the margin:) Clevenger, c’lk Silver Lake.”
    XY. After the bacon was so shipped on said steamer, Charles returned from Yankton to Sioux City, on the 18th of June, when the said Weare called upon him and said that the receipts which Charles had left, as aforesaid, when he went to Yankton, were not correct ones; and showed him the aforesaid letter of the Commissioner of Indian Affairs, directing the bacon to be delivered to Charles; which letter Weare had overlooked up to and after the time that the receipts signed in Wilder’s name had been delivered to him by Hughes. This was the first knowledge that Charles had of the existence of that letter. To avoid any difficulty in Booge’s obtaining payment for the bacon, and to comply with the instructions of the Commissioner of Indian Affairs, Weare requested Charles to give him his own receipt for it; and thereupon Charles gave said Weare, for said Booge, the following receipt:
    Sioux City, Iowa, June 15,3877.
    “Received in good order and condition from James E. Booge, of Sioux City, Iowa, contractor for supplying the Indian Department with bacon, for shipment to Indian agencies on the Missouri River as per list below.
    Marks. Description. Gross weight. TLS. Ind. agt., Standing Hock,D.T. V. S. Indian agt., Fort Peck, M. T. Lbs. Four hundred & nine (409) sackshacon. 80,826 Three hundred & sixty-nine (369) sacks of bacon. 65,752
    “Inspected by—
    “Wi. B. Hughes,
    
      11 Major & Q’rm’r, U. 8. Army, Inspector Ind. 8upplies.
    
    “Signed in duplicate.
    “Jno. H. Charles,
    “ Transportation Contractor.”
    
      Upon the delivery of tbis receipt by Charles to Weare, the latter gave back to Charles the two shipping receipts given as aforesaid by Charles in claimant’s name to said Hughes.
    XYI. The steamboat Silver Lake duly transported and delivered the 409 sacks of bacon at Standing Bock Agency to W. T. Hughes, and the 369 sacks at Fort Peck Agency to W. Bird.
    When the bacon arrived at said agencies, respectively, the aforesaid shipping receipts given by Charles in the name of the claimant were at the respective agencies, having been sent there by said Oharles'jby mail; and on the delivery of the 409 sacks to said Hughes, he signed the following receipt, written at the bottom of the shipping receipt given by Charles in claimant’s name:
    “ Standing- Bocic, June 27th, 1877.
    “ Beceived from A. H. Wilder the Indian supplies, &c., specified above, in good order and condition, weighing eighty thousand nine hundred (80,900) pounds, and for which 1 here sign duplicate bills of lading.
    “W. T. Hixg-hes,
    “ U. 8. Indian Agent?
    
    And on the delivery of the 369 sacks to said Bird, he signed the following receipt, written at the bottom of the shipping receipt given by Charles in the claimant’s name:
    “Fort Peck Ag-enoy, July 14,1877.
    “Beceived from A. H. Wilder the Indian supplies, &c., specified above, in good order and condition, weighing sixty-five thousand eight hundred (65,800) pounds, and for which I here-sign duplicate bills of lading.
    “W. Bird,
    
      “ U. 8. Indian Agent?
    
    These receipts of said Hughes and said Bird were written in part by John H. Charles before the bacon left Sioux City.
    The claimant had, at the time, no personal knowledge of the transactions set forth in findings X,XI, XII, XIII, XIY, XT, and XYI.
    XYII. It lias not yet been determined between Wilder and Charles, in the adjustment of their accounts, to whom or upon which contract the payments shall be charged which were made by Charles on account of the transportation of these goods. He has presented no demand to, and has made no claim upon, the defendants’ officers for such transportation under his own contract; and he has assisted the claimant in the prosecution of this case, and has testified as a witness on the trial of the same, and has asserted no right or demand of his own for the transportation aforesaid.
    XYIII. In August, 1877, Clum and Dingman, of Washington, D. 0., as attorneys for the claimant, presented to the Commissioner of Indian Affairs an account in claimant’s name for 41a© transportation of said bacon; and the Commissioner refused to pay the same, because the bacon was of the supplies for the Indian service for the fiscal year ending June 30, 1878, and was to be transported by the transportation contractor for that year, to wit, the said John H. Charles; and that the Commissioner had, on the Oth of June, 1877, given directions to the said Booge to have the bacon for Standing Bock and Fort Peck Agencies shipped under the contract of said Charles.
    XIX. The bacon transported to Standing Bock and Fort Peck Agencies was purchased by the Commissioner of Indian Affairs out of the appropriation for Indian supplies for the fiscal year ending June 30,1878.
    XX. On the same trip that the Silver Lake took said bacon to those agencies she carried for the claimant other supplies for other agencies, purchased by said Commissioner out of the appropriation for Indian supplies for the fiscal year ending June 30, 1877.
    
      Mr. Charles King for the claimant:
    The damages for the breach of a contract for the payment of work done or material furnished under an express contract is the price or compensation fixed in the contract. (Chitty on contracts, 11th Am. ed., p. 1330; Gordon v. Norris, 49 N. H., p. 376; Thompson v. Alger, 12 Mich., p. 428; Gansonv. Madigan, 13 Wis., p. 67.)
    The existence of an express contract negatives the supposition that the transportation was done under an implied contract. (■Gibbons’ Case, 8 Wall., 269.)
    The contract required a large expenditure in preparation and continuous readiness to perform, and therefore implies an obligation on the part of the government to do whatever may be necessary on its part to enable the claimant to perform all that lie bad covenanted to do. The facts and circumstances show that the contract was approved. (Speed’s Case, 8 Wall., p. 77; 7 C. Cls. B., p. 93; Gibbons’ Case, 2 id., 429.)
    When a claimant, under a contract with the Ucited States to carry all the supplies of the Indian department between certain points on the Missouri Biver for the fiscal year ending June 30, 1817, had made full preparation to carry the same, and was ready and willing to perform said contract fully on his part, and the United States failed to deliver to him for transportation a large amount of said supplies, and delivered them to and had them transported by another party, the contract is broken on the part of the United States, and the claimant is entitled to recover as damages the difference in the amount he would have received' at his contract rates if he had transported the supplies and the expense saved by release from such transportation; in other words, the difference between the amount it would have cost him to do the work and the amount which he was to receive for doing it. (Floyd <& Speed’s Oase, C. Cls. B., vol. 2, j>. 429, Moore’s Case, 1 id., p. 90,7th Hill, 62. Sedg-wick on the Measure of Damages, 6th ed., page416, and authorities.)
    
      Mr. Assistant Attorney- General Simons for the defendants:
    The main defense is that defendants never contracted for transportation of any of the freight mentioned, so that claimant was neither damaged by the delivery of any part to another nor by non-payment for any part if transported by him, which transportation, however, is denied.
    The gist of the claimant’s legal position is, that his agreement in the first article of the contract to “receive during the fiscal year ending June 30,1877, all such goods and supplies of the Indian department as may be offered or turned over to him for transportation by the party of the first part or his agents ” at certain points to be transported to certain other points, was of such legal effect that no other person could transport any such supplies between such points for defendants during said fiscal year (except as will be noted), nor even receive any such within that time for transportation then or thereafter, without violation of the said agreement.
    The covenant relied on bears on its face a quite different meaning. Unilateral in form, it binds the carrier to receive all such goods and supplies of the Indian department as may be offered or turned over to him by the other party, and transport the same according to the stipulations of the contract. Literally taken, he agrees to carry whatever the other may choose to give him, and his first step in an action like this must be to ask the court to declare by construction that his rights do not wholly depend on the will of the other party, but that the covenant is mutual in effect and relates to some specific subject-matter which he not only was bound to carry but the other was alike bound to deliver.
    Not questioning for the purposes of this case the correctness of such a contention, we submit that a party who by such a covenant has to call on the court to define his status is hardly in a position to demand an aggressive construction of his agreement. He may well ask to be protected from any oppression exercised or injury inflicted under cover of such a stipulation, but it would be strange if a court should permit it to become the means of oppression or injury to the other party, which we contend is what is contemplated in this action.
    We submit, therefore, that the court should be specially careful to regard the defendants’ rights in determining the precise nature and extent of the subject-matter involved in the covenant in question, upon which the parties differ, as will be seen, so widely.
    The claimant would have it understood as an agreement to deliver to him exclusively all the supplies which defendants should have occasion to deliver for transportation to certain points within the fiscal year, thus making delivery on time the essential feature. The defendants say that the subject of agreement was for transportation to said points of the supplies pertaining to the given fiscal year (a perfectly defined or definable subject-matter), the delivery of which only could be claimed by this contractor to the exclusion of others. It is for the court to decide from the instrument, and all the circumstances, which construction represents the intent of the parties.
    The court will take judicial notice that in pursuance of the annual appropriations for Indian supplies and their transportation, the contracts therefor are made by the proper authorities annually with reference to the ensuing fiscal year, so called, and as these contracts are not at all likely to be made in sue-cessive years with the same parties, it is apparent that a claim like this affects the whole course of business of the Indian department in the letting of contracts, and seriously involves the rights of other contracting parties.
    Again, it should be remarked that the claimant not only puts himself in this position of gratuitous injustice to others, but that he does it with such knowledge of the facts as to give his action a strong semblance of bad faith.
    It appears from Bender’s testimony, as might be expected from the circumstances, that the usage had been for many years to forward supplies as soon as they were ready and before the fiscal year for which they were intended. In some cases, as in the claimant’s contract of 1873, there was an express stipulation which included such transportation. It brings home to him knowledge of the lawful subject-matter of such contracts and of the necessities of the case. In short, the conduct of all the contracting parties is intelligible only on the theory that they knew of and were governed by such usage.
    A legislative recognition of it appears also in the Act March 3, 1877, sec. 3 (19 Stat. L., 293). It is idle to contend that Congress here meant to provide for liabilities already incurred rather than for those to be incurred for transportation. Congress knew that it was customary, when appropriation was seasonably made, to buy and transport supplies so as to get them to the agencies at the begining of the fiscal year, and it provided the means for prompt payment to the contractors in such ease.
    The case is worse, if anything, as to the other branch of the claim. Charles must have known that deliveries were being made at Sioux City on June 7, 8, 9, and 12, of goods to Prim-eau and power for agencies included in the Wilder contract just as he had requested delivery to him; but if, as we must assume, he then thought Wilder had the sole right to carry them, what justification is there of his course in not giving notice of the claim? Until receipt of Wilder’s account, including the bacon charge, the Indian Office had no suspicion that such a construction was entertained. Under the circumstances, the parties ought surely to be estopped from setting it up. By their acts they gave the contract a practical construction which is binding. (Merriam’s Case, 14 O. Cls. R., 289.)
    In this case, as in that, all the equities are with the defendants. They have acted in perfect good faith. They gave the contractor everything that one in his place ought to have, and no less than any other in like situation did have. They contend that they have not stipulated to give him any advantage over others such as he claims, but that the petition should be dismissed.
   Nott, J.,

delivered the opinion of the court:

The primary and important question in this case is whether the transportation contracts of the government are limited by law to the supplies of the same fiscal year.

The contract in the present case is not so limited in terms. On the contrary it binds the claimant expressly to “ receive during this fiscal year ending June 30, 1877, all such goods and supplies of the Indian Department as may be offered or turned over to him for transportation.” A subsequent article by fair implication makes this obligation reciprocal, except as to “ goods not exceeding in weight 1,000 pounds,” which the Commissioner of Indian Affairs in his discretion” may transport by other means.” Apart from statutory' restrictions the contract would probably be held to embrace all goods and supplies which the Commissioner of Indian Affiairs had occasion to ship over the claimant’s routes during the continuance of his, the claimant’s, contract.

Formerly, and, indeed, until recently, the transportation contracts of the government have extended through the transportation months of the year; that is to say, from May to November, when the .western rivers are navigable and the prairies traversable, and no attention whatever was given to the arbitrary division of the fiscal year. In the numerous transportation cases which have been before the court, we have not been able to find one contract which terminated on the 30th June; and it may be noted that in a previous action brought by the present claimant (5 C. Cls. It., 462), the contract contained no specified period of duration, and, in fact, had been continued and kept in operation from year to year.

Nevertheless, it is undeniable that the contract in suit must be construed, if possible, in accordance with such provision of law as may exist, and if it transcends the law regulating public contracts, the Commissioner of Indian Affairs, as a public agent, must'be held to have transcended his authority in making it. In other words, the contract must be construed to mean “ suck goods and supplies of the Indian Department as may be [lawfully] offered to the contractor for transportation.”

The peculiarity of this case (assuming that the claimant’s theory of the law be correct) is that the Commissioner of Indian Affairs could buy supplies with money appropriated for the expenditures of one fiscal year, and pay for their transportation to the agencies with money appropriated for the expenditures of another fiscal year. That is to say, he might so manage matters that when the supplies reached the agencies the cost of subsisting Indians at those agencies would have to be charged at the Treasury partly to the appropriation for one year’s subsistence and partly to the appropriation for another year’s subsistence.

Formerly, as we have said, but slight attempts were made to keep these accounts of the government by fiscal years. Then a department was credited with so much appropriated for transportation, and the balance, if any, was brought over at the end of the year; and as outlays.were made, they were charged simply to transportation. But the recent policy of Congress has been to keep the public accounts by the fiscal year; and now a department is credited with no balance over, and every expenditure is charged, not to transportation generally, but to the transportation of that specific fiscal year for which that specific appropriation was made.

The provisions of law which express the legislative policy are gathered together in the title on appropriations (Title xli, Rev. Stat.), and particularly in § § 3660, 3664, 3665, 3675,3678,3679, 3690. A reading of those provisions will show conclusively, we think, that Congress have restricted in every possible way the expenditures and expenses and liabilities of the government, so far as executive offices are concerned, to the specific appropriations for each fiscal year. If the Commissioner of Indian Affairs •could have compelled the claimant (as the claimant contends he might) to cany the supplies for the ensuing year under his, the claimant’s, contract for the transportation of the current fiscal year, the Commissioner could prevent by such means balances of appropriations from lapsing and being carried back into the surplus fund of the Treasury, and thereby evade the purpose and defy the terms of the statutes.

When it is determined that a contractor cannot recover upon his express contract, it becomes the duty of this court under the decision in Olarlc’s Case (95 U. S. R., 539), to inquire whether he may recover in quantum meruit, for services rendered upon the faith of that contract, and this though no count in the nature of assumpsit be set up in the petition.

Wilder, the claimant, was the transportation contractor of the Indian Bureau for the fiscal year ending June 30,1877, and one John H. Charles was the contractor for the fiscal year beginning July 1,1877. Charles was also the agent of Wilder and had conducted and transacted all of the business under Wilder’s contract. Wilder and Charles were also partners in business, and would share directly or indirectly in the profits or losses of both contracts.

The defendants have filed no plea charging Wilder with fraud or with fraudulent collusion with Charles, and where no issue of fraud has been made and tried, the majority of the court do not feel at liberty to impute fraud. Notice to Charles was notice to Wilder as to matters relating to Wilder’s contract; but notice to Charles personally as a contractor on his own behalf was not notice to Wilder in matters outside of the agency.

• In June, 1877, the Commissioner of Indian Affairs had purchased supplies for the ensuing fiscal' year; that is to say, by authority of the Appropriation Act March 3, 1877 (19 Stat. L., 291), he had contracted for supplies to be paid for out of that appropriation after it should become available, with the understanding that the goods should be deliverable to the government before the beginning of the year. In that month he directed the contractor to turn them over to Charles for transportation. The contract of Charles had not yet become operative, but he had intimated a willingness to transport the goods then, and it was in consequence of this intimation that the order of the Commissioner was given. Nevertheless he was not bound to receive the supplies untiFthe beginning of the ensuing year. When they were turned over for transportation he was not informed of the Commissioner’s order, and it was still during the life of Wilder’s contract. Instead of receipting for the supplies in his own name as for transportation under his own contract, Charles receipted for them in the name of Wilder as for transportation under Wilder’s contract.

Through an inadvertence of the contractor who turned over the supplies, this error was not discovered until afterwards. Subsequently Charles gave to the contractor receipts in his own name, in order, as he says, that he might get his pay for his goods, but he presented no demand to the department under his own contract, and ascribed the transportation to Wilder and not to himself. He has also assisted in the prosecution of this case, and has testified as a witness for the claimant.

The court understands from both the evidence and the arguments of counsel that the real controversy is whether a recovery should be had at. the higher rates of the Wilder or the lower rates of the Charles contract; that it is' immaterial to Wilder and Charles whether the transportation be paid for to the one or the other of them, and that it is immaterial to the gov- ‘ ernment whether a recovery be in the name of Wilder or in the name of Charles so long as it be limited to the lesser rate, and so long as there be no liability over to the other contractor. Moreover, the conduct of Charles was the sole cause of this litigation; if anybody is to blame for it, he is the person; and it seems manifest to the majority of the judges that the court should not by a technical application of the law defeat a recovery by Wilder, in order that a cause of action maybe reserved for the benefit of Charles.,

In this view of the case the majority of the court hold as follows :

1. Charles by standing by and seeing the claimant Wilder recover in this case, upon payment to Wilder will be estopped from setting up any demand of his own for the transportation of the supplies referred to.

2. Charles was not bound to receive the supplies under his own contract-which had not yet gone into operation, and occupies the position of having turned them over to Wilder, and of having permitted Wilder to perform; and the defendants occupy the position of having received transportation services which they ascribe to Charles, but which he from the first has utterly disclaimed.

3. The defendants having turned the goods over for transportation at the rates prescribed by the Charles contract, the recovery of Wilder must be limited to those rates, and the Charles contract is also evidence to show the value of freight at the time the service was performed, and to establish the rate at which Wilder should recover in quantum meruit.

The judgment of the court is. that the claimant recover of the defendants the sum of $1,413.01.

Drake, Ch. J.,

dissenting:

I dissent from the judgment just rendered, not because the-amount of it has not been fairly earned, but because it Avas not earned by this claimant.

The case, though occupying a large space in the finding of facts, can be stated, in its essential points, with brevity.

The claimant sues on a contract entered into between him and the Commissioner of Indian Affairs on the 25th of September, 1876, for the transportation, between that date and the 30th of June, 1877, of all such goods and supplies of the-Indian department as might, during thai period of time, be offered or turned over to him by the Commissioner or Ms agents. The transportation had to be done principally by steamboats running up the Missouri Diver from Yankton, Dak.

The claimant resided at Saint Paul, Minn., and gave no personal attention to the service under the contract, but intrusted the entire management of that to an agent, one John H. Charles, who, at Sioux City, Iowa, and Yankton, conducted all the operations under the contract, and was jointly interested with the claimant in the several steamboats which were engaged in carrying the supplies.. Of those vessels one was called Silver Lake, and the claimant owned one-half and Charles the other half of her.

On the 26th of May, 1877, Charles, still the claimant’s agent, entered into a contract with said Commissioner, by which he, for himself, and not as agent, agreed to “receive during the fiscal year ending June 30, 1878, all such goods and supplies of the Indian department as might be offered or turned over to him for transportation by the Commissioner or his agents, and transport the same.”

Bach of those contracts, for its own period, covered transportation from Sioux City to Standing Dock and Fort Peck Indian Agencies, but at different rates of compensation j that, of the claimant fixing higher rates than the other; for Fort-Peck, about two and a third times higher.

In order to secure the seasonable delivery of supplies at the Indian agencies far up the Missouri Diver, it was a usage of the Commissioner, where a contract for transportation to them was made before the beginning of a fiscal year, as in Charles’s case, to purchase supplies in advance of that beginning, and to ship them, also, in advance of it, under such contract.

On the 5th of June, 1877, while the claimant’s contract was still in force, and had yet twenty-four days to run, one Booge, a contractor at Sioux City, had a large quantity of bacon ready for delivery to the Indian department, under his contract for furnishing Indian supplies for the ensuing fiscal year, to begin on the 1st of July, 1877, and end on the 30th of June, 1878.

On said 5th of June, Charles telegraphed, and wrote by mail, ■ to the Commissioner about this bacon, asking him to order its inspection, saying that he had a boat ready to load it, and would like to get it at the agencies while the water was in good stage; and requesting that all the supplies for Fort Peck especially should be forwarded as early as possible. The telegram and letter were each signed “John H. Charles, Transportation Contractor.”

On the 6th of June the Commissioner telegraphed the government inspector at Sioux City to inspect the bacon, and wrote to Booge to deliver it, when inspected, to Charles for. transportation under his contract.

The inspector, after inspecting the bacon, gave Booge a certificate of its inspection, and of his having delivered it to “ Charles, contractor for transportation.”

On the 13th of June, Charles knew that he was to have the bacon for transportation, and went to Yankton to superintend its shipment there on a steamboat; and he left with the inspector two blank receipts for the latter to fill up after he inspected the bacon. To those receipts Charles signed the claimants name, and not his oivn, and the inspector, knowing no reason why they were not proper receipts, filled up the blanks; thereby making it appear that the claimant, and not Charles, had received the bacon for transportation.

The bacon was sent by rail from Sioux City to Yankton, on the 14th and 15th of June, consigned to Charles, who there received and shipped it on the steamboat Silver Lake, taking therefor her bills of lading, filled up by himself, stating tha.t the bacon was shipped on his account.

On the 18th of June Charles returned to Sioux City, and was immediately called upon by Booge’s partner — Booge being absent, and having been so when the bacon was inspected and shipped from Sioux City — who informed him that the receipts be bad left with tbe inspector, signed in tbe claimant’s name, and wbicb tbe inspector had filled up, were not correct, and that upon those receipts Booge could not get pay from tbe Indian Department for tbe bacon; and asked Charles to take them up and give bis own receipts in lieu of them; and then showed Charles the Commissioner’s letter, directing that tbe bacon should be shipped under Charles’s contract; wbicb letter be bad previously overlooked, and it then, for tbe first time, came to Charles’s knowledge. Charles immediately complied with this request by giving bis own receipts for tbe bacon, and taking up tbe others. Unfortunately, Booge’s partner, instead ■of destroying tbe receipts signed in tbe claimant’s name, let Charles have them; and out of that circumstance has grown tbe present controversy.

As before stated, the rates of transportation under tbe claimant’s contract were higher than those under Charles’s. If payment for tbe transportation could be got at those higher rates, it would amount to nearly $3,000 more than if got under Charles’s contract. Tbe claimant applied at tbe Indian Office for payment for tbe transportation of the bacon under bis contract at those higher rates, wbicb was refused, on the ground that tbe Commissioner bad ordered tbe bacon to be shipped under Charles’s contract, and not under tbe claimant’s. Tbe claimant brought this suit to recover that demand, insisting ■that he performed tbe service under hits contract, and should be paid accordingly. The majority of tbe court bold that be did, in fact, perform the service; but, inasmuch as tbe Commissioner did not order him to perform it, be can be paid no more than the rates fixed in Charles’s contract, under wbicb that •officer ordered tbe transportation to be done. I bold that tbe claimant did not, in any possible view, perform tbe service, and therefore is entitled to nothing. Tbe grounds of my judgment will now be stated.

I. This caséis clearly distinguishable from that of Clark v. United, States (95 U. S. R.., 539), for in that case tbe contract sued on was an oral one, wbicb did not bind tbe government; but inasmuch as it bad been performed on tbe part of Clark, tbe Supreme Court held that be ought to be paid what bis service was fairly worth to tbe government. Here, however, tbe contract sued on is a written one, lawfully executed, and tbe question is whether the claimant actually rendered the service - for which lie claims pay.

II. The claimant’s contract binds the United States to pay him only for the transportation of such goods and supplies of' the Indian Depanrtment as should he offered or turned over to-Mm by the Commissioner of Indian Affairs or Ms agents, for transportation; and that officer did not turnover to the claimant the bacon in question; but, on the contrary, ordered it to be transported under Charles’s contract.

III. The claimant, though having no personal knowledge of the transaction, is, in law, just as much chargeable with full knowledge of it as if he had been personally present and acting; for Charles was his managing agent -in the business, and knew every fact in connection with it.

IV. There could be found no sort of evidence tending even prima facie to prove that the claimant performed the service, if the receipts which Charles gave in the claimant’s name had been destroyed when Charles took them up and gave his own receipts in lieu of them. When so taken up by the claimant’s agent who had given them, they ceased to have any sort of legal force or existence as the basis of any liability on the part of the defendants to the claimant.

V. Charles, the claimant’s agent, knew that the bacon was to be transported under his own contract, and not under the claimant’s ; and that knowledge bound the claimant as fully as if he had been there present; and yet, so knowing, he receipted in the claimant’s name for the bacon. Such receipts made no contract between the claimant and the government.

VI. If it be said that though the bacon was not delivered to the claimant under his contract, yet, as he actually did the carrying of it to the Indian agencies, he ought, ex cequo ei bono, to be paid for the transimrtation what it was reasonably worth, my answers are manifold. 1. That view changes the claimant’s position, from that of a contractor suing for a contract price, to tjuit of a common carrier recovering what he did not sue for. 2. The claimant having sued on an express written contract, averring performance on his part and claiming the stipulated price, he cannot be allowed to recover for that performance under a quantum meruit. 3. If he is to be treated as a common carrier, he cannot recover in this suit, because the steamboat which carried the bacon was hot his alone, but belonged to him and Charles jointly, and the suit should be in their joint names' 4. But even if he could recover as a common carrier, it would not be at the rate specified in either of the contracts; but at the rates specified in the steamboat’s bills of lading, or, in the absence of such standard, the rates which the boat, at the time, carried other freight for between the same points. The bills of lading for this bacon express no rate of freight, and the court has not found what was the rate charged by the boat for carrying other freight. There is, therefore, no basis for computing the amount, if any, which ought to be paid. 5. But were it otherwise, the claimant has no right to recover as a common carrier, for the bills of lading, filled up by Charles himself, show that the freight, whatever it was, was paid to the boat at the time, and so nothing is due to her owners on that score.

Such are my views of this case. They lead me to the fixed conclusion, that the claimant’s demand has not the least foundation in law or justice, and ought to be dismissed.  