
    DAVID G. BROWNE v. THE UNITED STATES.
    [No. 18015.
    Decided February 25, 1895.]
    
      On the Proofs.
    
    A contractor agrees to cut and deliver “Montana upland hay." The bay crop in Montana is an entire failure. The defendants purchase other hay at an advance price and seek to charge the contractor with the difference. He also agrees to deliver at Fort Custer 800,000 pounds of oats “at such times and in quantities as the public service may demand" during a fiscal year. During the year he makes inquiries and is informed that “ it is not novj probable that further requisition will be made." Subsequently oats are required, and, the claimant not furnishing- them, are purchased at a higher price.
    I. A total failure of a crop of “Montana upland hay," by natural causes rendering the performance an impossibility, relieves the contractor from performing. •
    II. Where a contractor agrees to furnish during a designated period an article at such times and in such quantities as the public service may require, he is not relieved by being told what the probabilities will be as to the quantities.
    
      The Reporters’ statement óf tbe case:
    The following are the facts in this case as found by the court: ' I. The claimant entered into three contracts with the defendant, as set out in the petition. •
    II. On contract 1, for the delivery of wood at the military station of Fort Shaw, Mont., the claimant delivered 800 cords, all that was required, which at the contract price entitled him to $3,976, no part of which has been paid.
    III. On contract 2, for the delivery of 800,000 pounds of oats, requisitions were made as follows:
    
      
    
    
      Delivery of oats was commenced by claimant July 20, 1890, and continued at intervals until December' 20,1890, when he had delivered 642,192 pounds, abalance of 2,192 pounds in excess of the requisitions.
    Thereupon the following correspondence took place:
    “ Fort Benton, Mont., December 31,1890.
    
    “Lieut. J. B. Aleshire,
    
      UB. Q. M., First Cavalry, Fort Custer, Mont.
    
    “Sir: Upon checking up the amount of oats delivered at your post under my contract I find that I have delivered, according to my figures, 642,192 pounds as follows:
    By Alger and Leaverton. 510,000
    Myself. 132,192
    “1 find that vouchers here have been made for 640,000 pounds, leaving a balance of 2,192 pounds yet to be accounted for.
    “ Please inform me if the above is correct.
    “Very respectfully, your obedient'servant,
    “David G. Browne.”
    [First indorsement.]
    “ Office of Post Quartermaster,
    “ Fort Custer, M. T., January 3,1891.
    
    “Respectfully returned with information that the 640,000 pounds, for which vouchers have been issued, is the 80 per cent of your contract, for which requisition was made. The records of this office show a balance of 2,192, held subject to your order. On account of continued field service it is not now probable that further requisition will be made.
    “ J. B. Aleshire,
    “ First Lieutenant and B. Q. M.,
    
    “ First Cavalry, A. A. Q. M.v
    
    Subsequently the claimant removed said balance.
    Upon the deliveries of 640,000 pounds the claimant was paid only the sum of $9,831.40, which was $564.60 less than the amount due at contract rates.
    April 7,1891, a further requisition was made on the claimant by the post quartermaster for the delivery of 160,000 pounds on or before May 31, 1891, the public service demanding the same. In response to a telegram from the chief quartermaster, May 4,1891, asking what the claimant’s intentions were in relation to said requisition, the latter replied that his intention was to deliver the amount of oats within the time prescribed in the requisition, and that he had made arrangements for such delivery..
    
      No oats were delivered on this last requisition, and the defendants were obliged to purchase in open market the quantity required at current market prices at the cost of $4,115.73, and this was $1,832.18 in excess of the amount- at the rates agreed upon in claimant’s contract, the market price having-risen since the making of said contract. This last sum has never been paid by the claimant, and is held against him by the defendants as a set-off.
    IV. Contract 3, for the delivery of hay, was performed by the acceptance of hay which, at the contract price, came to $19,084.59, of which the claimant has been paid $17,252.41, leaving a balance unpaid of $1,832.18.
    V. May 1, 1889, claimant entered into another contract with the defendants, by which he agreed to supply 1,000 tons of “Montana upland hay” between July 1, 1889, and June 30,1890, at prices therein agreed upon. No hay under the contract was delivered, for reason that there was an entire failure of the crop of “Montana upland hay” during that season. The defendants purchased the same quantity for $4,540.60 beyond the contract price.
    
      Mr. John G. Chaney and Jír. J. R. Garrison for the claimant.
    Jír. Samuel A. Putnam (with whom was Mr. Assistant Attorney-General Dodge) for the defendants:
    It is contended by claimant that he was prevented from performing his contract for furnishing hay by the total failure of the crop of that kind of hay, and that this failure of the hay crop was an act of God and excused him from the performance of his part of the contract. I am unable to find any authorities with which to meet this contention, and shall not attempt any argument upon this x>oint.
    Whatever may be said of the defendants’ attempt to charge claimant with his default upon the hay contract, it seems x>er-fectly clear that they were justified in charging him for his default upon the oats contract.
    The contract was for 800,000 pounds of oats, to be delivered at Fort Custer “ at such times and in such quantities as the public service may demand, between the 1st day of July, 1890, and the 30th day of June, 1891, said quantity to be subject to increase or diminution of not exceeding 20 per cent, if circumstances of the service require sucb change at any time during tbe continuance of this contract.” Tbe claimant furnished only 640,000 pounds, and defendants bought 160,000 pounds from other sources, at a cost of $1,832.18 in excess of the contract price. By stipulation of counsel, filed after the record was printed, it is agreed that defendants made the written requisition upon claimant for the delivery of the 160,000 pounds, and that the prices they paid after claimant’s default were fair and reasonable.
    The claimant contends that he was excused from delivering any oats over the 80 per cent by the election of defendants to accept that as a full performance, and relies upon the case of Gibbons v. United States (2 O. Ols. B., 421, and 8 Wall., 269). This case, however, is essentially different from that. In that case the refusal to receive more oats was made by the officer who made the contract, an assistant quartermaster. In this case the refusal was made by a post quartermaster, who had nothing to do with the execution of the contract, and who was subordinate to the departmental quartermaster who did execute it (p. 10). In that case the refusal was to receive oats which claimant had a right to deliver at that time. In this case the refusal was to receive more than 80 per cent of the oats provided for in the contract, and 80 per cent was all that claimant had a right to deliver until a written requisition had been made upon him, which had not been done at that time. In that case the demand for the additional oats was made after the expiration of the time provided in the contract for its performance. In this case it was made while the contract was still alive.
    Clearly, the reasons which controlled the court in the Gibbons Case should not control it in this one.
    Claimant also contends that he was excused from further performance of this contract by the fact that Lieutenant Gal-braithe told him that 80 per cent was all that would be required of him. This Lieutenant Galbraithe denies, but I do not consider it material which statement the court accepts. The contract was not with Galbraithe, but with his superior officer, Major Bockwell, and Lieutenant Galbraithe had' no authority to vary its terms, and claimant must have known he did not. Indeed, I contend that Major Bockwell himself could not have surrendered in that manner and for no consideration a valuable right which the Government had secured for itself by-contract. The evident purpose of this contract was to secure a reserve supply of oats, which would be available if needed, but would not have to be paid for unless used. For this purpose the contract was made to run for a year, and provided that claimant should furnish the oats at any time when demand Avas made.
    This purpose was in the contemplation of the parties when the contract was executed, and doubtless affected the prices fixed. Under this contract the United States secured a valuable right, and no officer of the Government had a right to surrender it unless for a valuable consideration. The court ' should therefore find that claimant defaulted upon this contract without lawful excuse, and that by that default the United States was damaged in the sum of $1,832.18.
   RichardsON, Oh. J.,

delivered the opinion of the court:

The claimant had four contracts with the defendants for the delivery of wood, hay, and oats.

It appears from the facts, not controverted at the trial, that the claimant earned for wood, hay, and oats delivered on the first three contracts the sum of $6,372.78, for which no payment has been made.

The defendants file a plea of set-off, and all the law involved in the case arises upon the facts on which that plea is founded.

By the fourth contract, as appears by finding v, the claimant agreed to deliver 1,000 tons of “Montana upland hay” between July 1, 1889, and June 30, 1890, at prices therein stated. No hay was delivered on this contract, because there was an entire failure of the crop of “Montana upland hay” during that season.

A failure of the crop was an event beyond the control of the claimant, was not contemplated by the parties in making the contract, and could not have been avoided by any acts of i the contractor, who was fully absolved from his obligations 1 thereby.

The law on the subject is thus stated by the Supreme Court in the case of Chicago, Milwaukee and St. Paul Railway Company v. Hoyt (149 U. S., 14, 15):

“There can be no question that a party may, by an absolute contract, bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance, and such construction is to be put upon an unqualified undertaking where the event which causes the impossibility might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor.
“ But where the event is of such a character that it can not be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens.”

This is so well settled by abundant authority, and is so familiar, that the plea of set-off under this contract is not pressed.

Another item of set-off grows out of the facts appearing in finding hi, in relation to the second contract annexed to the petition.

The first article of the contract provided:

“Article I. That the said David G-. Browne, in accordance with his proposal, dated April 10th, 1890, shall supply or cause to be supplied and delivered to the quartermaster’s department at the military station of Fort Ouster, Montana, eight hundred thousand (800,000) pounds of oats, at such times and in such quantities as the public service may demand, between the first day of July, 1890, and the thirtieth day of June, 1891. Said quantity to be subject to increase or dimunition of not exceeding twenty (20) per cent, if circumstances of the service require such change at any time during the continuance of this cotract, and no more than eighty (80) per cent shall be delivered by the said David G-. Browne except upon the written requisition of the past quartermaster.”

Requisitions were duly made for 640,000 pounds of oats, which the claimant delivered at different times between July 20 and December 20, 1890. In complying with these requisitions the claimant delivered 2,192 pounds beyond the quantity required.

January 3,1891, in answer to his letter of inquiry, the claimant was notified that the records showed a balance of 2,192 pounds received beyond the 640,000 pounds called for by the requisitions, the latter being 80 per cent of the contract, and that said balance was held subject to his order, and at the same time he was advised that “on account of continued field service it is not now probable that further requisition will be made.” The claimant removed said balance.

April 7,1891, tbe public service demanding tbe fall quantity contracted for, a further requisition was made in writing by the post quartermaster for the delivery of the remaining 160,000 pounds, and this requisition was never complied with. The defendants purchased that quantity in open market at current market rates at a cost of $1,832.18 beyond the price agreed upon by the contract.

This excess the defendants hold in set-off to the amounts due the contractor on the several contracts.

The claimant resists the set-off on the ground that when the defendants’ officer notified him that, having delivered an excess of the quantity called for by the requisitions (being 80 per cent of the contract), the balance was held subject to his order, and he was permitted to remove the same, it was an election on the part of the defendants to receive the 80 per cent in full performance of the contract, as contemplated by the terms of article 1.

In this we think the claimant is not supported by the law on the facts as found by the court. January 3, 1891, the claimant was notified that there was a balance of 2,192 pounds of oats delivered in excess of requisition, which was held subject to his order, and he was at the same time informed that “ on account of continued field service it is not now probable that further requisition will be made.” This was nearly six months before the expiration of the term of the contract, and it could not then be known what quantities the public service might demand; nor did the quartermaster undertake to say that no more would be required. He said only “that it is not now,” at that date, “probable that further requisition will be made.”

Three months later the post quartermaster, finding that the public service demanded it, made a requisition for the delivery of the balance contracted for, 160,000 pounds.

That the claimant still regarded his contract unfulfilled is apparent from the fact that after this requisition, in answer to a telegram of inquiry from the chief quartermaster, as appears by finding in, he replied that his intention was to deliver the amount of the oats within the time prescribed, and that he had made arrangements for such delivery.

Tbe claim of set-off on tbe second contract is sustained, and tbe amount on tbe whole case may be stated thus:

Due the claimant on the first contract. $3,976.00
Deliveries on the second contract unpaid for. 564.60
Balance due on the third contract. 1,832.18
6, 372.78
Due defendants for nondelivery on second contract in set-off... 1,832.18
Balance due claimant. 4,540.60

For tbis sum tbe claimant will bave judgment.  