
    YATES’S CASE.
    Frank D. Yates v. The United States.
    
      On the Proofs.
    
    
      The claimant contracts to deliver at a remote military post 1,500 tons of hay, or snck other quantity as may he required for the wants of the station. The contract is in the ordinary form prepared, hy the Qaa/rtermaster Department. A subsequent notice from the officers at the post requires him to furnish the full quantity. After he has delivered 1,397 tons he is notified that no more will he required. At that lime he has no good hay on hand, and none can he bought there.
    
    I. The construction given to certain contracts of the Quartermaster Department hy this court in Merriam’s Case( 14 C. Cls. R., 289) adhered to.
    
      II. Where contracts are preparad by the government on printed blanks, it is of consequence that the unchanging portions should receive a general and unvarying construction.
    III. The renunciation of a contract by a defendant, where the other party has a right to perform, stops performance and precludes the x>lainti£f from making damages by proceeding with his work. The measure of damages in such cases and the evidenco necessary to establish damages in such cases stated.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimant and the defendants entered into the contract on the 27th June, 1877, set forth in the petition, and the defendants’ officers gave to .the claimant the notices 21st August, 1877, and 26th November, 1877, annexed to and forming part of the-petition, as follows: ;
    “Big- Horn Post, M. T., Augxist 21, 1877.
    “Mr. F. D. Yates, Contractor,
    
    “(Thro’ W. H. Brown, ag’t:)
    “Sir : Having been informed by you that you had cut and ready for delivery the entire fifteen hundred (1,500) tons of hay required to be delivered by you on contract, the commanding officer directs me to instruct you to proceed at once to delivering it as fast as the means of transportation at your disposal will admit of. He furthermore directs me to inform you that no more than fifteen hundred (1,500) tons will be required of you,, and that having cut that quantity you will now cease cutting and proceed, without delay, to deliver all that has been required of you without regard to any instructions heretofore received from this office. He desires me to state that his reasons for wishing the hay delivered at once are, to prevent destruction by depredations from Indians later in the season or by accidental fires on the prairie, which, notwithstanding all precautions that can be taken, are likely to occur at any time.
    “Very respectfully, your obedient servant,
    “George Buhlen,
    
      “1st Hcut. 11th Infty., A. A. Q. Hi.”
    “Office of A. A. Q. M.,
    “Big Horn Post, M. T.,
    
      “Nov. 26,1877.
    “ To Mr. F. D. Yates, Hay Contractor,
    
    “ (Per W. H. Brown, agent:)
    “ Sir : In reply to your inquiry of the 24th inst. in regard to the quantity of hay that may still be required of you, 1 have the honor to state that the hay now delivered is sufficient to supply the wants of the present command for the remainder of the current fiscal year. After delivering what may now be m rotite you may close further delivery under your present contract.
    “ Yery respectfully, your obedient servant,
    “G-eoe&e Buhlen,
    
      “1st Lt. 17th Inf., A. A. Q. JÍ.”
    II. At the time the contract was entered into it was known and understood by the parties that the hay to be furnished by the claimant could be procured only by cutting and making it in the vicinity of the post at which it was to be delivered.
    III. The claimant duly employed and provided a great number of men and teams and all necessary material, and sent them to the military station near the mouth of the Bighorn, and incurred the expense incident or necessary to furnish all the hay which might be required at the post; and he from time to time duly delivered and was paid for 1,397£§ tons, in regard to which no controversy exists.
    IY. Early in July, 1866, and prior to the arrival on the ground of the claimant, Colonel Buell, the commander of the post,, entered into agreements with various persons, under which they cut, made, and delivered at the post 355 tons and 1,334 pounds of hay. It was known to Colonel Buell that a contractor would probably arrive to cut and furnish the hay for the post, but, giving due regard to the advance of the season in which hay could be made, and the remoteness of the post, he-deemed it a proper military precaution to secure as much hay as possible at an early day. The consideration for these agreements was the price which it should be found the contractor of the Quartermaster Department — i. e., the claimant — was to receive; and the parties ¡were so paid. The hay furnished by them was cut in the neighborhood — i. e., within 4 or o miles of the post — and their cutting it there compelled the claimant to cut a like quantity at a great distance — i. e., from 30 to 40 miles from the post.
    Y. The defendants’ officers at the post accepted, and the claimant has been paid for, all of the hay made by him which was of good merchantable quality, and which passed the inspection of an officer detailed to examine it. On the 26th November, 1877, when the second notice annexed to the petition was given, tbe claimant bad cut and in cock upon tbe ground, at distances of from 30 to 40 miles from tbe post, upward of 300 tons of bay wbicb was not of good merchantable quality, and wbicb bad been rejected by tbe defendants’ inspecting officer as damaged by tbe weather. Tbe claimant bad no good merchantable bay wbicb be could then deliver, and tbe haying-season was over, and no bay could be procured by purchase.
    VI. If no agreements bad been entered into by tbe commanding officer at tbe post with third persons, and tbe claimant bad cut and delivered, in addition to that wbicb be did deliver, tbe quantity furnished by such third persons, as set forth in tbe third finding, be would have realized thereon a profit at tbe rate of $20 per ton.
    
      Mr. John B. Sanborn for tbe claimant:
    A contract entered into between tbe United States and an individual, to supply, at a fixed compensation, a fixed amount, or all tbe bay that may be required at a certain place during a certain period of time, is obligatory upon both parties; and while tbe individual is bound to deliver such fixed quantity, or all required for such compensation, or pay damages resulting from a failure so to do, the other party, tbe United States, is bound to receive such fixed quantity, or all required, or pay damages for a failure so to do. Tbe contract clearly intended, and fairly construed provided, that tbe claimant should deliver all bay required at the designated point between tbe dates •specified, and that tbe United States would receive all bay required at that point from Mm, and pay him tbe contract price therefor. Tbe true intent of tbe parties must govern. (Ohitty on Contracts, 11th Amer. ed., vol. 1, p. 106, and Note A; Wilson v. Troup, 2 Oowen, 195; Sumner v. Williams, 8 Mass., 214 ; Fowler v. Bigeloio, 10 Mass., 379; Hopkins v. Yotmg, 11 Mass., 302; Howland v. Leach, 11 Pick., 154; Hollingsworth v. Fry, 4 Dallas. 345; Robinson v. Fish, 25 Me., 401; Ratrich v. Grant, 14 Me., 233; Littlefield v. Winslow, 19 Me., 393; Nettleton v. Billings, 13 N. H., 446; Washbicrne v. Gould, 3 Story, 122; Brown v.' Slater, 16 Conn., 192.)
    Tbe rule of damages in a case where one party to a contract has refused to receive from tbe other tbe supplies or material as in said contract provided, and has received tbe same from other parties, is the difference between, the amount the party would have received if there had been no breach of the contract and the amount saved by the party by his release from the fulfillment of that portion of the contract covered by the breach. (Gcmson et al. v. Madigan, 13 Wis., 67; Barrow - v. Arnaucl, 82 B., 595, CIO; Phillpots v. Fvans, 5 M. & W., 475; Leigh v. Patterson, 8 Taunt., 540 ; Boorman v. Nash, 9 B. & C., 145; Gordon v. Norris, 49 N. H., 376; Thompson v. Alger, 12 Met., 428; Allen v. Jarvis, 20 Conn., 38; Orr v. Bigelow, 14 N. Y., 556; Dana v. Fiedler, 2 Kern., 41; Ballentine v. Robinson, 46 Penn. St., 177; Whitmore v. Goats, 14 Mo., 9; Northup v. Go oh, 39 Mo., 208; Haines v. Tucker, 50 N. H., 307; Gris-wold v. Sabin, 51 N. H., 147; Chit. Con, 11 ed., p. 1331; Sedg. Dam., 5 ed., pp. 315, 316, 317; Masterson v. The Mayor, &c., of Brooklyn, 7 Hill, p. 61; Philadelphia, Wilmington and Baltimore Railroad Go. v. Hayward, 13 How. S. C., p. 344; Speed’s Case, 8 Wal., p. 77; Wilder’s Oase, C. Cls. R., 469.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The clause of the contract upon which claimant rests his rig'ht of recovery in this action is identical in its provisions with the one in controversy in the case of Merriam. (14 C. Cls. R., 289.)
    The facts that on the 26th of November, 1877, he had no good hay on hand except such as was subsequently received, and his inability to cut any after that date, are fatal to his claim. And herein the case in hand differs from that of Speed (8 Wall., 77), for there claimants “ during the whole season kept the full complement of hands necessary to have slaughtered the whole 50,000 within the customary season.”
    Now, if Yates had the facilities for cutting 1,500 tons, why did he not do so ? He received no intimation until the 26th November that any less than that amount would be received. And if Colonel Buell on the 26th November had insisted on delivery of the whole 1,500 tons the claimant could not have complied. How, then, was he injured?
    In the case of Wormer (4 C. Cls. R., 258), the court held that renunciation of the contract only dispensed with proof of one of tbe facts involved in a formal tender and refusal, leaving’ it for the plaintiff still to show that he was ready and willing to perform.
   Nott, J.,

delivered the opinion of the court:

The contract in this case, so far as it requires interpretation, is identical with the contract in Merriam's. (14 C. Cls. R., 289.) Its language is that the claimant should furnish at a certain military station 1,500 tons, “ more or less, of hay," or such other quantity, more or less, as may be required, from time to time for the wamts of said station between the 1st day of July, 1877, and the 31 st day of December, 1877.” The claimant contends that these words “ required ” “ for the wants of the station ” entitled him to furnish all the hay which the station might require during-the period designated; the defendants insist that the word “ required ” relates to the claimant, and that the intent of the clause was that the claimant should furnish only such hay as should be required of him.

In Merriam’s Case the true interpretation of the contract was rendered clearer by the existing circumstances amid which it was made. The station, Bismarck, was a depot, at which large quantities of grain were received and resliipped by the Quartermaster Department, and the grain delivered there was not strictly “ for the wants of said station; ” other contracts, in like terms, were made at the same time with other persons, which fact was well known to the claimant; a contemporary construction favorable to the defendants had. been given to the contract by both parties, and the defendants had acted upon the faith of it. But, while these circumstances are set forth as confirmatory in the opinion, the court construed the contract to mean that the contractor was to furnish only the quantity specifically named therein, unless he should be “required,” within a reasonable time, and by proper notices from the defendants’ officers, to furnish a greater or less quantity. Moreover, these contracts of the Quartermaster Department are made upon printed blanks, prepared under the supervision of the Quartermaster-General, distributed to every portion of the country where a quartermaster or acting quartermaster is on duty, and used in all kinds of transactions for the purchase of military supplies. It'is of consequence, therefore, that the unchanging portions of these contracts should receive a general and unvarying construction, and if doubt existed here — which is not the case, however — we should not feel at liberty lightly to undo the construction heretofore given to the identical language of the contract. We must, therefore, hold that the claimant was not entitled to furnish the hay furnished for the use of the post by third persons, and confine our further inquiry to the difference in quantity between that named in the contract and that actually delivered by him.

No controversy exists now, and no controversy apparently ever existed, as to the claimants right to deliver 1,500 tons of hay. The contract specified that quantity and the defendants’ notice of August 21 called for it. If the claimant had tendered it, then unquestionably it would have been accepted. The notice of November 26, if it had any effect on the claimant’s rights, operated as a renunciation of the contract as of that time, and not as an attempt to reduce the quantity specifically named under the “ more or less ” clause of the contract.

The renunciation of a contract by a defendant, where the other party has a right to perform, stops performance and precludes the plaintiff from making damages by proceeding with his work. On proof of the fact that he was ready and willing to perform, a plaintiff will be entitled to recover nominal damages. If he proceeds further with his proof, and shows that he had expended money in performing or preparing to perform before notice of the renunciation, he will be entitled to recover back his expenses incurred. If, after establishing his positive losses or without having established them, he proceeds with his proof and shows that if he had been allowed to perform he would have made a profit, he will be entitled to recover his gains prevented. The general purpose of the law is to make the rightful party whole; to place him in the same resulting position that he would have been in if the other party had not interfered.

But the claimant here, while proving his expenditures and profits, has failed in making the primary proof that he was ready and willing to perform. His contract was not for work and service, but for the sale and delivery of good merchantable hay. To establish the fact that he was ready and willing to perform on the 26th of November, 1877, a time when the haying season had passed, it was necessary for him to show one of two things: either that lie bad good merchantable hay on hand ready for delivery, or that he could have gone into the market and purchased it for delivery under his contract. Neither of these facts was established, and it is clear that neither existed. There was no hay in that remote and uninhabited region which the claimant could have purchased; and the case shows that the hay which he had on hand undelivered was rejected because it was in a damaged condition.

’ For these reasons we must hold that if the notice of November 26, 1877, operated as a renunciation of the contract, it caused to the claimant no actual damages.

The judgment of the court is that the petition be dismissed.  