
    RYAN’S CASE. Matthew Ryan v. The United States.
    
      On the Proofs.
    
    
      On the 3 cl of May, 1869, a commissary of subsistence advertises for proposals “for supplying "beef from tlao Mock to the troops and others, supplied at Camp Supply.” On the 18tk of May the claimant sends in proposals for “ fresh heef from the block and on the hoof.” On the 26th of May a formal contract is executed, which provides that the claimant shall furnish beef cattle on the hoof “ in such numbers and at such time as may be required.” It is lo continue for twelve months. On the 28th of May the commissary is instructed by his superior officer to supply the Indians with beef. He advertises for proposals and issues a contract to another party at a reduced, price. In the mean time the claimant is required to furnish beef for the Indians. The 
      
      resolution of the Government to place the subsistence of these Indians under the Commissary Department, it appears, was made on the 20ih day of May, under the Appropriation Act, April 10, 1869, (16 Stai. L., 40, § 4,) but was unknown to both the commissary and the claimant at the time of executing the contract.
    
    I. In May, 1869, a commissary' of subsistence liad no authority to contract for the subsistence of Indians under the Appropriation Act, April 10,1809, (16 Stat. L., 40, § 4,) until the determination of the Government to place the Indians within the care of the Commissary Department and instructions issued in pursuance thereof.
    II. Where a commissary of subsistence is without statutory authority to contract for the support of Indians, a contract entered into by him for beef-cattle “ in such numbers and at such time as may be required,” founded on proposals for supplying beef “ to the troops and others at Camp Supply,” cannot be construed to include cattle subsequently needed for Indians at the same camp ; and no action will lie for a breach if the commissary subsequently, under authority, enter into a contract with a third party for supplying the Indians. The first contract will be construed to have been limited in purpose to the subsistence of troops and ordinary camp-followers.
    
      The Reporters’ statement of the case:
    The court found the following facts :
    On the 3d of May, 1869, Bvt. Brig. Gen. M. E. Morgan, chief commissary subsistence department of Missouri, by public advertisement, gave notice that “ sealed proposals, in duplicate, would be received at his office, (Fort Leavenworth, Kansas,) or at the office of the assistant commissary subsistence at Fort Lyon, Colorado Territory, and Fort Wallace, Kansas, until 12 o’clock m., Tuesday, May 18, 1869, for supplying net beef from the block to the troops and others, supplied at Camp Supply, mouth of Beáver Creek, or such other post as may be established in the northern part of the Indian Territory, on the Cheyenne and Arapaho reservation, at which post there will be six companies. It .is expected when Camp Supply is discontinued that the other post in the Indian Territory, here referred to, will have been established. The contracts will commence at all the posts July 1, 1869. They will expire December the 31st, 1869, at Harker, Hays, Wallace, and Lake Station, and June 30 at all the other posts. There is nothing positive as to the number of troops at each post; the above is as close to it as we can get at this time.” * * * * *
    
    In response to the foregoing advertisement, the claimant, on the IStb of May, I860, proposed to‘‘furnish and deliver to the United States, at the subsistence depot, at Camp ■ Supply, Beaver Creek, Fort Dodge, Fort Earned, and Camp Beecher, the following stores: Fresh beef from the block andón the hoof, net weight, for the sum of 7.4 cents per pound,” &c.
    Claimant’s bid was accepted, and the contract, in words and figures as set forth in the petition, entered into on the 26th May, 1869, by and between him and M. E. Morgan, brevet brigadier-general and commissary of subsistence, chief commissary of subsistence department of Missouri, acting on behalf of the United States Government.
    About the time this contract was awarded to the claimant , other contracts for supplying troops were also awarded to him, none of which, however, are involved in this controversy.
    This contract was not terminated by the Commissary-General of Subsistence, but ran for a period of twelve months from the 1st day of July, 1869, to the 30th day of June, 1870, during which time he furnished and delivered at the points specified, and of the quality specified, all the fresh beef upon the block required by the Subsistence Department, for which he has been paid.
    It also appears that he expressed himself ready, on a little notice,, to furnish such cattle on the hoof as might be needed' for supplying the Indians; and he is shown to have furnished a quantity of beef for that purpose soon after his contract was executed, for which vouchers were issued, and he has been paid.
    The duty of supplying the Indian service with provisions had been in charge of the Interior Department, but on May 20,1869, the War Department, such duty devolving upon it, directed the Commissary-General of Subsistence to furnish the supplies for the Indian service, which would be paid out of the appropriation of $2,000,000, made specially for said service.
    On May 22, 1869, General Eaton, Commissary-General of Subsistence, at Washington, informed General Clarke, acting commissary-general of subsistence military division of the Missouri, headquarters in Chicago, in which division Camp Supply was situated, that the Subsistence Department would furnish the Indians on the reservation with supplies under the above order, but said he could not give- detailed instructions, but would furnish them at a later date. On May 26, 1869, the date of the contract with Eyan, General Eaton forwarded to General Clarke tbe detailed instructions be bad promised, and it was not until May 28, 1869, that General Clarke officially notified General Morgan, bis subordinate, wbo was at Fort Leavenworth, Kansas, that tbe Subsistence Department would furnish tbe supplies to tbe Indians on tbe reservations.
    On June 5,1869, General Morgan, in performance of a special and extraordinary duty imposed upon bim by General Clarke, advertised for proposals for furnishing beef-cattle f6r tbe Indian service at camp on Arapaho and Cheyenne reservation, Indian Territory, and certain other places, and directed that proposals should be indorsed “ Proposals for supplies for Indians.” A proposal of D. W. Powers, for tbe delivery of 1,400 bead of cattle for the Indian service, having been accepted, a contract dated July 13,1869, was entered into with Powers and General Morgan for tbe defendants.
    Tbe bond given by Eyan for tbe performance of tbe contract of May 26,1869, was for $5,000. Tbe bond given by Powers on the contract of July 13,1869, was $20,000.
    The contract entered into with Powers provides as follows :
    ‘‘Article first. That tbe said D. W. Powers aforesaid, bis heirs, executors, or administrators, shall furnish and deliver to the acting commissary of subsistence for Indians, United States Army, at such point on tbe Arapaho and Cheyenne reservation, Indian Territory, as may be designated by tbe Subsistence Department, 1,400 bead of beef-cattle, all steers, in good healthy condition, to be weighed when delivered, in tbe presence of the acting commissary of subsistence for Indians, wbo is tbe inspector of these cattle, and to average at least 1,000 pounds gross each; tbe above number of bead of cattle to be delivered in such numbers and at such times as tbe acting commissary of subsistence for Indians may require. Tbe delivery to commence not later than August 20,1869.
    “ Second. * * * Provided, That tbe party of tbe first part may require tbe said D. W. Powers aforesaid to increase tbe number (1,400) of bead of beef-cattle contracted for 25 per cent, or less.”
    “ Fourth. That tbe said D. W. Powers aforesaid shall receive payment for tbe beef-cattle delivered and accepted by virtue of this agreement at tbe rate of two cents and two and three-tenths mills (2 23-100ths cents) per pound, gross weight.”
    
      “ Sixth. This contract shall remain in force for not more than one year from the date hereof.”
    During the continuance of the claimant’s contract, no change was made in the location of the post.
    From September] 30, 1869, to June 1, 1870, the defendants purchased of D. W. Powers under his contract 1,629 head beef-cattle on the hoof, and they were delivered under said contract at Camp Supply to an officer of the Subsistence Department, and were paid for by Gen. M. B. Morgan, commissary subsistence.
    The net weight of cattle purchased under the contract with Powers was 814,564 pounds, and if they had been furnished by the claimant, he would have received for the same the sum of.... $60,277 73 The price Powers received and the defendants paid was. 36,329 55
    23,948 18
    
      Mr. Thomas J. Durant for the claimant:
    The claimant on May 26, 1809, entered into a contract in writing with Bvt. Brig. Gen. M. B. Morgan, O. S., C. C. S. department of Missouri, for furnishing fresh beef and beef-cattle at Camp Supply, Indian Territory, or such other post as may be established in the northern part of the Indian Territory, on the Arapalio and Cheyenne reservation. The provisions of this contract involved in this case are as follows :
    “Art. 1. * * * He shall also furnish and deliver to the acting commissary of subsistence beef-cattle on the hoof, (all steers, between four and six years of age, in good healthy condition, average weight one thousand pounds, and none received under eight hundred pounds,) in such numbers and at such times as may be required.”
    “Art. 2. That this contract shall run for a period of twelve (12) months, from the 1st day of July, one thousand eight hundred and sixty-nine, to the thirtieth of June, one thousand eight hundred and seventy, or such less time as the Commissary-General of Subsistence shall direct.”
    The claimant’s contract remained in force the time mentioned in the contract, but the defendants on the 13th day of July, by their agent, Bvt. Brig. Gen. M. R. Morgan, O. S., 0. 0. S. department of Missouri, entered into a written contract with D. W. Powers, for delivery of beef-cattle on the hoof, of which the following are provisions :
    “Art. first. That the said D. W. Powers aforesaid, his heirs; executors, or administrators, shall furnish and deliver to the acting commissary of subsistence for Indians, United States Army, at such point on the Arapaho and Cheyenne reservation, Indian Territory, as may be designated by the Subsistence Department, one thousand and four hundred (1,400) head of beef-cattle, all steers, in good healthy condition, to be weighed when delivered, in the presence of the acting commissary of subsistence for Indians, who is the inspector of these cattle, and to average at least one thousand (1,000) pounds gross each; the above number of head of cattle to be delivered in such numbers and at such times as the acting commissary of subsistence for Indians may require.”
    “ Sixth. This contract shall remain in force for not more than one year from the date hereof.”
    During the continuance of the claimant’s contract no change was made in the location of the post. On August 31, 18C9, 100 head beef-cattle on the hoof were purchased of the claimant. These were all the cattle purchased of the claimant under his contract.
    From September 30,1S69, to June 1, 1870, the defendants purchased of D. W. Powers under his contract 1,629 head beef-cattle on the hoof, and they were delivered under said contract at Camp Supply to an officer of the Subsistence Department, and were paid for by Gen. M. It. Morgan, O. S. They were paid for out of the same fund as all other payments for beef and beef-cattle purchased by the Subsistence Department were made from. See extract Report Secretary of War, Forty-second Congress, second session.
    The net weight of the cattle purchased under the contract with Powers was 814,564 pounds, and if they had been furnished by the claimant, he would have received for the same the sum of... $00,277 73
    The price Powers received and the defendants paid was. 36,329 55-
    23, 948 13
    
      Thus it turned out, as appears, that the cattle required at Camp Supply during the year covered by claimant’s contract could be and were furnished at an actual cost of $23,948.18 less than the price for which the claimant had previously agreed (to wit, May 26, 1869) to furnish them, and the defendants, without terminating the claimant’s contract, availed themselves of this favorable turn of the market. If the claimant had a ■ right to furnish the Subsistence Department with the cattle which were purchased of Powers, he is entitled to recover of the defendants the profits he would have made if this right had not been denied him.
    The question at issue is, therefore, whether the claimant had a right under his contract to furnish and deliver the cattle which were purchased of Powers. The measure of the claimant’s obligations, and reciprocally of his rights, as fixed by his contract, was as to a certain period of time, (viz, from July 1, 1869, to June 30,1871,) and a certain point of supply, (viz, Camp Supply or other post, &c.,) to meet and fill the requirements of the Subsistence Department for beef-cattle on the hoof, (quality specified, suitable for issue.) In this undertaking, taken at great disadvantage for a future period beginning at a future date, there was no restriction or limitation other than the one named. He was therefore bound to meet any and every requirement of the Subsistence Department at the point specified within the period specified for the supplies specified, and reciprocally he had a right to meet and fill every requirement of that Department within that period at that place for such supplies. The claimant’s contract was not a contract to furnish and deliver beef-cattle, &c., in such numbers and at such times as may be required, except what may he required for issue to Indians. If the parties had intended this agreement to have this limitation and meaning, they would have so expressed themselves. That this was not done is conclusive of the fact that it was not to have this effect and meaning. No such qualifying or restricting words can now be put into this contract.
    
      Mr. Joseph K. McCammon (with whom was the Assistant Attorney-General) for the defendants:
    The contract of May 26,1869, with Byan was made under the appropriation for Army subsistence and the authority of tbe Regulations for the Army. (Revised Regulations, paragraph 1178, page 241.)
    General Morgan on May 26, 1869, had no legal right to contract with Ryan for supplying the Indians, as orders to supervise and direct the supplying of the Indians were not sent to him until May 28, 1869, and, being a subaltern officer or special agent authorized to perform specific duties only, and said duties being limited and prescribed by the Regulations, he could notenter into a contract not authorized by the Regulations unless he was specially authorized so to do under the orders of the Secretary of War. — Stevens v. The United States, (2 0. 01s. R., p. 101.)
    The Regulations forbid the issuing of supplies to Indians except in small quantities, and without special orders a contract made on May 26, 1869, which included plainly or by inference the supplying of beef-cattle to Indians would have been illegal and void. (Revised Regulations, paragraphs 1202,1203, page 246.)
    If General Morgan had received the order to supervise the supplying of Indians after he had advertised for Army supplies, and prior to the date of Ryan’s contract, he still would have had no right to include Indian supplies in that contract, as he had not advertised for proposals for this latter service as the law and the Regulations require, (12 Stat. L., p. 220, § 10, Revised Regulations, paragraph 1044, p. 155,) and a contract including this would have been void.
    The contract with Powers made July 13, 1869, was under an appropriation separate and distinct from that for army subsistence, and was under the appropriation of $2,000,000 for a special purpose. (16 Stat. L., p. 40, § 4, act of April 10, 1869.) It was for a large, unusual, and extraordinary supply of beef-cattle, neither for the Army nor for “Indians visiting-military posts,” but for the continued subsistence of Indians collected on a reservation for a long period of time, such continued subsistence being unauthorized by the Regulations. (Revised Regulations, paragraph 1202.)
   Milligan, J.,

delivered the opinion of the court:

On the 26th of May, 1869, the claimant entered into a written contract with Brigadier-General M. R. Morgan, commissary of subsistence, United States Army, “to furnish, weigh, and issue at Camp Supply, Indian Territory, or such other post as may be established in the northern part of the Indian Territory, on the Arapaho and Cheyenne reservation, on the order of the acting commissary of subsistence at that post, fresh beef of a good and marketable quality, in equal proportions of fore and hind quarter meat, (necks, shanks, and kidney-tallow to be excluded,) in such quantities as may be from time to time required, and on such days as shall be designated by the commanding officer.”

The contract further provides, that the claimant “ shall also furnish and deliver to the acting commissary of subsistence, at the post mentioned, on the order of such acting commissary of subsistence, beef-cattle on the hoof, (all steers, between four and six years of age, in good, healthy condition, average weight one thousand pounds, and none received under eight hundred pounds,) in such numbers and at such time as may be required.” * * * * *

This contract was to run for a period of twelve months, from the 1st of July, 1869, to the 30th of June, 1870, or for such less time as the Commissary-General of Subsistence shall direct; and the claimant was to receive seven cents and four mills for the fresh beef delivered and accepted, and the same for beef-cattle per pound, net weight.

In case of failure on the part of the claimant to fulfill the stipulations of the contract, the acting commissary was authorized to supply the deficiency, holding the claimant liable for all such damages or loss as might be sustained by the United States.

On the 13th of July, 1869, Bvt. Brig. Gen. Morgan entered into another contract with one D. W. Powers for the delivery of beef-cattle on the hoof) the substance of which is as follows :

The first section provides, “that the said D. M. Powers aforesaid, his heirs, executors, or administrators, shall furnish and deliver to the acting commissary of subsistence for Indians, United States Army, at such points on the Arapaho and Cheyenne reservation, Indian Territory, as may be designated by the Subsistence Department, one thousand and four hundred head of beef-cattle, all steers, in good, healthy condition, to be weighed when delivered, in the presence of the acting commissary of subsistence for Indians, who is the inspector of these cattle, and to average at least one thousand pounds gross, each; the above number of cattle to be delivered in such numbers and at such times as the acting commissary of subsistence for Indians may require, the delivery to commence not later than August the 20th.

Second. * * * * Provided, That the party of the first part may require the said D. W. Powers aforesaid to increase the number (1,400) of head of beef-cattle contracted for 25 per cent, or less.”

Powers was to receive payment for the cattle delivered and accepted under his contract at the rate of two and three-tenth mills per pound, gross weight.

By the terms of this agreement it was to remain in force for a period not longer than one year from its date; and the proof shows that from the 30th of September, 1869, to the 1st of June, 1870, there were one thousand six hundred and twenty-nine head of cattle delivered under it, which is the foundation of this action.

The claimant insists that under his contract of the 26th of May, 1869, he was justly entitled to furnish all the fresh beef and beef-cattle on the hoof which might be required at the post for the time his contract was in force. On the other hand, it is contended by the defendants that his contract is limited to the supplies required by the Army proper, and cannot, therefore, be construed to include supplies for the Indians, for which •the Powers contract was expressly made.

The breach, if any has been committed, of the first contract grows out of the fulfillment of the second, for it is clear, if the • claimant’s contract conferred on him the right to furnish all the beef required to supply both the Army and the Indians, the •Government could neither withhold that right or transfer it to another without violating their obligation to him.

But this contract, as well as all others made by subaltern ■ officers, must be construed in the light of the authority under which such officer acted. The act of Congress approved March 2, 1861, (12 Stat. L., p. 220, § 10,) confers the authority on the commissary to purchase army supplies, and the officer in letting this- contract appears to have strictly pursued its provisions. •In response to the advertisement, which was “ for supplying net beef from the block to the troops and others” supplied at that ipost, the claimant presented his bid, as shown in the findings of the court, which was accepted and the contract closed.

It cannot be doubted that the acting commissary, when he entered into the contract under consideration, had no original power derived from the statutes or the Regulations of the Army, which, by usage, have the force of law, to contract for Indian supplies. The act of Congress under which this contract was made not only does not confer any such power on the commissary, but he is expressly forbidden to exercise it by the Army Regulations.

Paragraph 1202, Revised Army Regulations of 1863, provides : “ Whenever subsistence can be spared from the military supplies, the commanding officer is authorized to allow its issue,' in small quantities, to Indians visiting military posts on the frontier or in their respective nations. The return for this issue shall be made, signed by the Indian agent, (when there is one present,) and approved by the commanding officer of the post or station.

1203. Regular daily or periodical issues of subsistence to Indians, or issues of subsistence in bulle to Indian agents for the use of Indians, are forbidden.”

It being settled that under the ordinary powers of the commissary he could not bind the Government in contract to supply the Indians, the next inquiry is, whether or not he was clothed with any such extraordinary power to do so at the time the Ryan contract was entered into.

In answering this question it seems unnecessary to resort to the internal evidence, found on the face of the instrument itself, as to the intent and meaning of the contracting parties, but it will be entirely sufficient to place the decision on the want of authority in the commissary to bind the United States, at the date of the claimant’s contract, for Indian supplies.

The “Act mailing appropriations for the current and contingent expenses of the Indian Department,” approved April 10,1869, (16 Stat. L., p. 40, § 4,) appropriates $2,000,000 to enable the President to maintain the peace among the Indian tribes, promote their civilization, and bring them, when practicable, on reservations, relieve their necessities, &c. In order to enable the President to execute the powers conferred upon him by this act, he is authorized to appoint a board of commissioners, who may, under his direction, exercise joint control with the Secretary of the Interior over the disbursement of the appropriations made by this act, or any part thereof that the President may designate.

Subsequently, under an arrangement between the Interior and War Departments, it was determined that the Indians on the Arapaho and Cheyenne reservations were to be subsisted through the instrumentality of the Subsistence Department, and to be paid for out of the $2,000,000 appropriated for that service.

This resolution of the Government was made on the 20th of May, 1869, and thereafter, on the 22d, the Commissary-General of Subsistence informed General Clarke, acting connnissary-general in the military division of the Missouri, headquarters at Chicago, in which Camp Supply was situated, that the Subsistence Department would furnish the Indians on the reservations with supplies, under the order of tbe Government. He further informed General Clarke that he could not then give him specific and detailed instructions respecting this service, but would furnish them at an early date.

On the 26th of May, 1889, the day on which claimant's contract bears date, General Baton, the Commissary-General, forwarded to General Clarke, at Chicago, the detailed instructions which he had promised; and it was not until the 28th of May, 1869, that Clarke officially informed General Morgan, his subaltern, that the Subsistence Department was charged with the duty of furnishing supplies to the Indians on the reservations.

It is plain, therefore, that at the date of Byan’s contract General Morgan had no lawful authority to contract for Indian supplies, and, as a consequence, Powers’ contract worked no breach of the claimant’s for which the Government is answerable in damages. Byan has had the full benefit of his own agreement, and has been paid for all he did under it, and be cannot now be heard to complain of the Powers contract, which was for another and a different service.

The petition is dismissed.  