
    GROVER & GARDNER’S CASE. Grover & Gardner v. The United States.
    
      On the Proofs.
    
    
      The claimants engage to deliver 50,000 bushels of corn to the United Slates, at 75 cents per bushel. Of this amount 22,100 bushels are delivered md paid for. The balance they refuse to receive, a part of which, being stored by the claimants, is damaged, and they are compelled to sell it at a loss. The amount of this loss, together with the profits they would have realized, is claimed as the measure of damages.
    
    The case arises upon the identical contract of “ Hughes'‡ Fullers ” Case, (4th C. Cls. R., p. 64,) and is subject to the same ruling, which is, that where a contractor elects to hold grain, which the purchaser refuses to accept according to agreement, the former is chargeable with the duties and responsibilities of a trustee, and may not hold it for the chance of obtaining a better price, if under the circumstances it be a perishable article.
    
      Messrs. Hughes, Denver & Peck for tbe claimants :
    This is an action brought by original petition to recover damages for the non-fulfillment of a contract for the purchase of 50,000 bushels of corn.
    The contract was entered into by Colonel James Belger, quartermaster in the United States Army, on behalf of the defendants, on the 17th of December, 1861. The claimants agreed to deliver 50,000 bushels of corn at the Government depots in the city of Baltimore' within forty-five days, and the defendants agreed to receive the corn within five days after it was offered for delivery, and to pay for it at the rate of 77 cents per bushel in bags, or 70 cents per bushel in bulk.
    The claimants rented warehouses in Baltimore and purchased a large quantity of corn, which they held on hand for a long time, and repeatedly urged the quartermaster to receive it.
    The amount of corn received from these contractors is shown by the returns from the War department to have been 20,877 bushels; the balance, amounting to 29,122 bushels, was never received, and it is to recover the loss of profits upon this balance that, this action is brought.
    It is shown that after the corn had been stored and tendered to the United States, and after the time had elapsed in which by the terms of the agreement it should have been received, a considerable portion of it was damaged without any fault on the part of the claimants.
    These two amounts of $3,785 86 for loss of profits, and $4,125 for damages to the corn, fix the amount of our claim, the total'of which is $7,910 86.
    
      Mr. Assistant Attorney General Talbot for the defendants:
    The testimony does not show that these claimants tendered the corn which they contracted to furnish within the time limited in the contract for delivering the same; nor that, -within such time, the defendants refused to receive any corn tendered under the contract. Where a contract by its terms is to be performed within a fixed time, the court cannot say that the time of performance is immaterial. (Sill v. School Fist., 5 Shep., 316 $ Allen v. Cooper, 9 Shep., 133; Cromwell v. Wilkinson, 18 Ind., 365.)
    The contract was not made “ by advertising a sufficient time previously,” and was therefore prohibited by law. (Act of March 2,1861, sections 10, 12, Stat. L., p. 220.)
    The facts upon whieh the claimants base their claim show conclusively that the “public exigencies” did not require “the immediate delivery” of the corn.
    The corn which became damaged was therefore kept by the claimants at their own risk, and they must suffer the consequences. (Hughes & Fuller’s Case, 4 C. Cls. R., j>. 65.)
   Casey, Ch. J.,

delivered the opinion of the court:

- This case is founded upon the same contract which was passed upon by this court in the case of “ Hughes & Fuller, ” (4 C. Cls. R., p. 64.)

By this contract these claimants engaged to deliver to the United States 50,000 bushels of corn, at 77 cents per bushel. Of this amount 23,100 bushels were received and paid for by the United States. The balance of 27,900 bushels they refused to receive. They allege that a part of this corn, amounting to over 16,000 bushels, was procured by claimants and tendered to the United States, and that they refused to receive it. Thereupon it was stored by the claimants, and kept for some months. That it was tendered at various times to the proper officer of the United States, wbo refused to receive it; and that, in the mean time, it was greatly damaged and deteriorated by heating; in consequence of which they were compelled to sell it at a loss and depreciation. And this damage, together with the profits they would have realized on the corn not received, they claim to recover in this case.

In the case referred to we held that the claimants there were not entitled to claim for the damage to and deterioration of the corn which the quartermaster refused to receive. It had at all times a market value; and rvhen the proper officer refused to receive it when tendered under the contract, it was the duty of the claimant to have sold it in the market. This was especially the case, as it was known to be an article liable to damage and deterioration. In that event he would have had a claim for the difference between the market value and the contract price, if any. When they stored it and kept it after the delivery was refused, it was at their own risk and peril. The loss arising from the heating of the corn was the immediate result of their own want of precaution, and they cannot visit the damages on the United States.

The claimants show that they were ready and willing to deliver all the corn contracted for, and that the proper officers refused to receive it. For this breach of the contract the ciaimants are entitled to be compensated in damages. The measure of those damages is the profits they would have realized on the corn if the government had received it and paid for it, as the contract provided, after allowing for all expenses and contingencies. And after a careful review of all the facts and proofs, we adhere to the amount allowed in the case of Hughes and Fuller; which was the sum of 10 cents on each bushel of corn which the United States refused to receive. The number of bushels in this case which the quartermaster refused to receive from these claimants was 27,900; and, allowing 10 cents per bushel on these, gives $2,790 as the damages to which they are entitled. And for this amount judgment is to he entered in their favor.

Peck, J., did not sit in this case nor take part in the decision.  