
    TICE’S CASE.
    Isaac P. Tice’s Administrators v. The United States.
    
      On the Proofs.
    
    By the Act of July 20, 1868, the Commissioner of Internal Revenue had no authority to contract to pay for meters which might he left on hand after discontinuance of the use of the meter adopted and prescribed under the provisions thereof. On the facts found in this case it is held that he did not so contract.
    
      The Reporters’ statement of tbe case:
    Tbe Secretary of tbe Treasury baying adopted tbe meter invented by tbe claimant’s intestate, tbe Commissioner of Internal Revenue, on tbe 17tb April, 1867, contracted with him for tbeir delivery to distillers for use, and agreed that in case of their discontinuance be should be paid for tbe instruments completed or in process of completion at tbe time of tbe revocation, “provided that at no time shall you have more than twenty sets in precess of manufacture at any one time, unless directions shall be given hereafter for tbe manufacture of a larger number.” This contract was terminated by joint resolution of Congress, passed February 3,1868 (15 Stat. L., 247.)
    On tbe 16th September, 1868, tbe Commissioner of Internal Revenue, under tbe authority conferred upon him by tbe 2d section of the Aet of July 20,1868 (15 Stat. L., 125),' agreed with tbe intestate for tbe further use of tbe said meter. In tbe new agreement it was provided:
    
      Third. The 117 meters now finished will be immediately made ready for delivery, and tbe 36 now in process of manufacture will be completed as soon as possible. Tbe manufacture of others, to tbe number of 500 in all, is to be proceeded with as soon as possible, and thereafter not more than 20 sets are to be in process of construction at one time, unless a greater number is directed by tbe Commissioner of Internal Revenue.
    
      Fourth. Tbe commissioner reserves to himself, or bis successorin office, tbe right at any time to adopt any improvement of tbe meter or system, or to revoke tbe order adopting tbe meter, and to direct, on tlxe part of the government, a discontinuance of its manufacture.”
    June 8,1870, the Commissioner wrote the intestate as follows:
    “Any regulations heretofore prescribed, addressed to you by or from this office, directing or'authorizing you to construct, or proceed with the construction of, or to furnish meters, and especially those of September 16,1868, are revoked, except” “in respect to meters heretofore delivered, and also those you may now have on hand or in process of construction, not exceeding 20 sets.”
    “ Newrules, regulations, and orders have been prescribed, * * * it being distinctly understood that neither the Government of the United States, nor any department or officer thereof, is or will be responsible for or on account of any spirit meters or the attachment or adjustment thereof:”
    And on the 8th day of June, 1871, the Commissioner issued a circular, in which, referring to the Tice meter, it was said:
    “It having been ascertained by experience that these meters as a class do not fully answer the purpose for which they were intended, their use is hereby discontinued, and all existing orders prescribing the same are hereby revoked.”
    At the time of this discontinuance Tice had on hand 14J sets of meters. This action is brought to recover the value of the same ($25,000) and the storage 'of the same ($733.33). A bill in conformity with this claim was presented to the Commissioner of Internal Revenue for allowance, and was allowed and approved by him, but has never been paid.
    Mr. J. W. Douglass for claimant:
    1. The power given to the Secretary of the Treasury by sections 33 of the Act of July 13,1S66, and 15 of the Act of March 2,1867, and section 2 of the Act of July 20,1868, transferring the subject to the Commissioner of Internal Revenue, constituted a full and complete authority to-contract for the manufacture of meters, subject to such prudent conditions as the department and the person contracting might agree upon. (See the above sections, Stat. L.; Gilbert & Secor Case, 1 C. Cls. R., 28, 8 Wall., 358; Speed’s Case, 7 C. Cls. R., 93, 8 Wall., 77'.
    • The official communications ’to Mr. Tice by the Secretary and the Commissioner, and his acceptance of their terms by tbe expenditure of labor and money thereunder, constituted a binding contract between tbe .government and Tice that will be enforced by this court. (Curtis's Case, 2 0. 01s. R., 144; Brooks's Case, ib., 180; Smoots Case, 7 id., 97; Corliss’s Case, ib., 502.)
    3. “Circular No. 90,” promulgated by tbe Commissioner of Internal Revenue, June 8, 1871, constituted that complete and final revocation of “tbe adoption of tbe meter” and order “of discontinuance of proceedings ” contemplated and provided for by tbe “fourth” condition of tbe department letter of April 17, 1867; 'in view of which- tbe department contracted to pay Tice, at an agreed price, for all completed or uncompleted instruments on band at tbe time of final discontinuance, not to exceed “twenty sets” in all; repeating’ this condition in tbe department letters of September 10,1808, and June 8,1870, and “ Circular to all collectors,” dated June 7,1870. Tbe sum of tbe prices of the meters on band at tbe time of tbe final discontinuance ivas of tbe nature of liquidated damages and is due in full. (Sausser’s Case, 21 C. Cls. R., 562; Garrison’s, 2 id., 382, 7 Wall., 088; Bee-side’s Case, 7 id., 89, 8 Wall., 38; Chitty on Contracts, 759, 701, 763;. 71 Pa., 180; 11 Barb. N. Y., 127; 5 Sandf. N. Y., 040; Story on Contracts, § 1021, p. 096.)
    4. Tbe presentation by Tice, on tbe 12th of April, 1873, of bis account for meters “on band” June 8, 1871, tbe date of discontinuance, and tbe approval of tbe account by tbe Commissioner of Internal Revenue, is conclusive as to tbe interpretation of tbe contract, being by the parties themselves, and makes a jprima-faeia case for tbe claimants, entitling them to judgment for tbe full amount ($25,000) claimed. (JJ. P. B. B. Co. Case, 10 C. Cls. R., 548 ; Mrs. Alexander’s Case, 4 id., 218; Farrish Case, 2 id., 341.)
    
      Mr. Bobinson for the defendants:
    1. Tbe Secretary of tbe Treasury bad no authority by law to bind tbe United States to such a contract as tbe claimant attempts to enforce. (Floyd Acceptance Cases, 7 Wall., 000.)
    2. Admitting tbe legality of tbe contract of April 17,1807, under tbe Acts of July, 1860, and March, 1807, it was abrogated by tbe Act of February 3, 1868, and tbe subsequent acts.
    3. Tbe first contract was not only abrogated by law, but it was waived by tbe irarties to it.
    
      4. Tlie Commissioner of Internal Revenuehad no power under the statute of 1868 to make silcli a contract as the Secretary had made under the previous statute.
    5. In any event, the claimant cannot recover -without a tender ■of delivery of the meters (2 Parsons on Contracts, 647), nor without shoving the market price.
   Davis, J.,

delivered the opinion of the court:

The loth section of the .¿Lei of March 2,1867 (14 Stat. L., 481), authorized the Secretary of the Treasury to adopt, procure, and prescribe a meter for ascertaining the strength and quality of spirits subject to tax. On the 27th April, 1867, the Secretary decided to adopt the Tice meter, should it prove acceptable ■on trial, and agreed with Tice that should it be adopted, and should the order adopting it be revoked, Tice should be paid for all instruments, not to exceed, twenty-sets, completed or in process of completion at .the time of the discontinuance. The meter gave satisfaction and was adopted.

On the 3d February, 1868, by joint resolution of Congress (15 Stat. L., 247), all work on the construction of meters was suspended until a meter should be adopted according to law, and it was provided that no further contracts should be made by the .Secretary of the Treasury for the construction of meters.

By section 2 of the Act of -July 20,1868 (15 Stat. L., 125), the Commissioner of Internal Revenue was empowered to adopt and prescribe meters for use. On the 16th September, 1868, he adopted the Tice meter, and agreed with Tice that the sets then completed or in process of completion should be made ready for delivery at once. It is not questioned that all such sets were delivered and paid for.

From time to time changes were made in regulations and instructions concerning meters, until, on the 8th June, 1870, all previous ones were revoked by the Commissioner, except as to meters in hand or in process of construction, not exceeding twenty sets, and Tice was informed that neither the government nor any department or officer thereof was or would be respon.sible for or on account of any meters. ■ The use of the Tice meter was entirely discontinued on the'Sth June, 1871.

At the time of this discontinuance the claimant’s intestate, Tice, had fourteen and a half sets on hand, for the value of which this suit is brought, the claimants contending that the contract made by the Secretary of the Treasury in 1867, to pay for the instruments on hand at the time of the discontinuance to the extent of twenty sets, was adopted by the Commissioner of Internal Revenue in 1868, and was made part of all the subsequent proceedings.

We are of opinion that the contract with the Secretary of the Treasury was terminated by the joint resolution of February 3, 1868. The Commissioner of Internal Revenue was authorized by the Act of July 20,1868, only to adopt and prescribe a meter, while the Secretary of the Treasury, under the Act of 1867, had authority to adopt, procure, and prescribe one. The Commissioner, therefore, had no authority to renew the obligation to purchase sets which might be left on hand on discontinuance of their use, and, in point of fact, he contracted no such obligation. Even had such contract been made, however, it would have been terminated by the revocation of June 8,1870, except as to the instruments then on hand, not exceeding twenty sets, and it does not appear from the findings (because not proved as a fact) that any of the fourteen and a half sets above referred to as on hand on the 8th June, 1871, were on hand on the 8th June, 1870.

It was urged at the bar that the original agreement to indemnify the claimant’s intestate against eventual loss was the controlling motive which induced him to invest his capital in the manufacture of articles which became valueless the moment the demand created by government orders was withdrawn. It was argued that the continuing reference throughout the correspondence to the “twenty sets” gave him reason to believe that he was to be indemnified under the contract with the Commissioner as he was entitled to be under the contract with the Secretary, and it was said that, the expected indemnity being eventually refused, he was ruined.

These considerations may properly be addressed to the lawmaking power as a reason for relief; but they cannot be entertained by this court, whose duty is to administer the law as it is.

As it appears that the claimants fail to establish their claim both in law and on the facts, the petition must be dismissed.  