
    PARISH & CO.’S CASE. Joseph W. Parish et al. v. The United States.
    
      On the Proofs.
    
    
      The medical purveyor at Louisville advertises for hospitalice. The contract is awarded to the claimants. A m'ittcn agreement is executed for the delivery of the ice at anumber of points on the Mississippi, specified in a schedule mmexed. The agreement is in terms subject to the approval of the Surgeon General. It is approved by him, but before it is delivej'ed to the parties he recalls it, and substitutes a second. The second differs from the first inform, but not in substance. Before execution, the Secretary of War orders that the item of ice for New Orleans be strichen out of the schedule. The claimants allege that they have then procjtred the ice on the faith of the award. They object to annulling the first contract, b nt, nevertheless, execute the second.
    
    Where the parties deliberately execute a second agreement, which omits an item contained in the first, they must be deemed to have substituted voluntarily the one for the other, and cannot perform under the second and recover damages under the first. And when the claimants aver in their petition that a doubtful contract was “an entirety,” the substitution of another in its stead must be taken as an entire revocation of the first.
    Mr. A. L. Merriman for the claimants :
    On the 27th of November, 1863, the Surgeon General instructed D. L. Magruder, medical purveyor at Louisville, to advertise for proposals for furnishing ice for all the general hospitals at the west. Ma-gruder advertised, as directed, in the leading newspapers in the western States for proposals, to be received until December 20, 1863. Among the bidders were the claimants, who put in a bid for all the points designated, and which was the lowest bid received, not only for all the points named, but also for New Orleans alone. These bids were forwarded to the Surgeon General, who, on the 25th day of December, instructed Surgeon Magruder to award the contract as might be by him deemed most advantageous to the service. Surgeon Ma-gruder forthwith awarded the contract for the entire district advertised to claimants, at the prices named in the bids.
    On the 30th day of December, the contract so made was reduced to writing and signed by claimants and Surgeon Magruder, and forwarded to the Surgeon General for approval.
    In due course of mail this written contract was received by the Surgeon General, was approved by him, and returned to Surgeon Magruder. Before, however, it was received by Magruder, the Secretary of War dispatched a telegram to Sugeon Magruder, directing him not to deliver the contract, but to return all the papers to him ; therefore, this contract was not delivered to the claimant, but was sent to the Secretary of War. This approval of the Surgeon General was a completion of the contract as between the claimants and the government, according to the understanding which Magruder had of the award, although it is evident that the claimants considered the award as made by Magruder as a completion of the contract.
    The claimants, therefore, with this understanding immediately proceeded to purchase and charter steamboats and barges of sufficient capacity to transport all the ice that would be required to fulfil this contract; also, to erect ice-houses for the reception of the ice; employed men, and proceeded to cut and collect the ice for the purpose. These immediate preparations were necessary for the reason that the ice season is short; that'no ice of a suitable quality could, as a general thing, be obtained after the middle of January, aud as this contract was for so large a quantity of ice that any delay therein would be equally disadvantageous to the government and to the contractors. The ice was obtained in the upper part of the Illinois and Mississippi rivers ; and it was necessary either that the boats should be in readiness to receive the ice when cut, or that temporary ice-houses should be built therefor. This year the cold weather commenced in the latter part of December or first of January, and during this season the weather was very favorable for the cutting of ice.
    Matters remained in this situation, the contract undergoing the examination in the War Department — the claimants in the mean time making use of the only period of that year in which to procure the ice — until the 27th day of January, 1864, on which day C. A. Dana, assistant Secretary of War, to whom the matter had been referred for examination, made his report to the Secretary of War, in which he makes his conclusions as follows :
    “ Being satisfied that the agreement with Parish & Co. was so honestly made, and that, considering the risk involved, the prices were not extravagant, I recommend that the contract be confirmed. But the stipulations in the papers executed do not appear sufficiently precise and guarded to secure faithful fulfilment, and I therefore also recommend the execution of new and amended papers for that object.”
    In conformity with this report, a new contract was drawn up and forwarded to Magruder, dated 28th January, 1864, embracing the entire territory embraced in the previous contract, and was in all respects in substance the same, varying only in its language, and in some unimportant formal particulars. This second contract was not received by Magruder for some time after its date.
    Before, however, this contract reached Magruder, a change came over the War Department, and either because the propositions of Messrs. Addison, Gage & Co., to ignore the contract with Parish & Co., were received with greater favor, or for some other unexplained cause, the Secretary of War telegraphed Magruder not to sign this contract, and shortly afterwards instructions were given him to sign the contract, after having stricken out the provisions relating to the delivery of ice at New Orleans.
    This second contract, so amended, was executed by Parish Sr Co., who at the time objected to the first contract being annulled, but stated that having gone so far they would go on and fulfil the. new contract, to the best of their ability, but would not waive their right on the old contract, expecting to have that made satisfactory when all the facts were laid before the officials at Washington.
    The award to claimants by Surgeon Magruder, upon their bid, was a contract complete in itself, Magruder being fully authorized to award the contract as might by him be deemed most advantageous to the service, even if it had not been afterwards reduced to writing. It was upon the basis of this award, and upon the a'surance of Surgeon Ma-gruder, that the contract was awarded to claimants, that they proceeded under the contract. It was impossible to await the entire completion of all the formalities attending such a contract; of its being reduced to writing formally; of its execution by the parties ; of its being forwarded to Washington for approval by the Surgeon General; and of its return and delivery.
    The ceremony of reducing the contract to writing did not affect the validity of the contract, but was for the purpose of preserving the evidence of the same.
    The contract between these parties and the government was complete when the proposal was made by claimants and accepted. Case of Charles H. Adams, 1 C. 0. R., p. 192.
    The Assistant SOLICITOR for the defendants.
    The record in this case discloses the following facts:
    1st. That D. L. Magruder, assistant surgeon in the United States army, and medical purveyor, stationed at Louisville, advertised for proposals for furnishing ice to certain United States military hospitals in tbe west; said advertisement is in tbe words and figures following, to wit:
    ARMY Medical Pueveyor’s Office,
    
      ..Louisville, Ky., December 4, 1863.
    Proposals will be received at tbis office until December 20,1863, for furnishing ice to all the United States general hospitals at tbe west, (those of the division of tbe Mississippi, and of tbe department of tbe gulf upon tbe Mississippi and its tributaries,) in such quantities as may be required, for tbe use of the sick and wounded during tbe year 1864.
    1st. In all cases tbe ice to be well packed and stored in properly constructed ice-houses previous to tbe 15th of April, 1864, at such points nearest the hospitals as may be designated from tbis office.
    The ice either to be delivered by actual weight of issue to tbe bos- ' pitáis by the contractors, or by inspection or measurement by tbe issuing officer, (on or before tbe first of May, 1864,) who will then receipt for actual contents of ice-houses.
    2d. The authority under which these proposals were invited was as follows:
    Surgeon G-bneral’s Office,
    
      Washington City, D. G., November 27, 1863.
    Doctor : You are instructed to advertise for proposals for furnishing ice for all the United States general hospitals at the west, those of the division of the Mississippi, and of the department of the gulf upon the Mississippi and its tributaries, in such quantities as may be required for the use of the sick and wounded during the year 1864.
    In all cases the ice to be well packed in properly constructed ice-houses, (previous to the 15th of April,) at such points nearest the hospitals as, upon consultation with medical disbursing officers at St. Louis, Cairo, Cincinnati, Nashville, Memphis, Vicksburg, and elsewhere, you may consider most advantageous.
    The ice to be delivered by actual weight of issue to hospitals by contractors, or by inspection and measurement by the issuing officer, on the 1st of May, 1864, who will then receipt for the actual contents of ice-houses.
    3d. The claimants submitted the following proposals or bids for furnishing ice to the United States military hospitals, located at the
    places specified in their proposals, to wit:
    Per ton, delivered at New Orleans. $25 00
    “ “ Natchez. '30 00
    “ “ Vicksburg.30.00
    íf* ífc ífc Jfí
    24 o c
    
      4th. On the 30th day of December, 1863, a contract was drawn up by Surgeon Magruder, embracing the pointskpecified in the foregoing proposals, and signed by said Magruder and also by the claimants.
    5th. On the 1st day of January, 1864, Surgeon Magruder transmitted the above contract to the then acting Surgeon General, accompanied by the following letter :
    Colonel: I have the honor to enclose herewith a contract with J. W. Parish & Co. for furnishing ice to all the general hospitals at the west; the contract subject to your approval in every part before it will be binding.
    6th. On the 7th day of January, 1864, the Surgeon General having received said contract, indorsed it “approved.”
    7th. On the 8th day of January, the Secretary of War sent to Surgeon Magruder, at Louisville, a despatch of which the following is a copy:
    “You will suspend, until further orders, all action in respect to contracts for ice in the medical department. The awards made by the acting Surgeon General are set aside, and you will forward here immediately all proposals for ice contracts and all papers relating thereto, and return to me the awards made.”
    8th. The result of the suspension of this contract by the Secretary of War resulted in the striking from the contract thát portion of it which provided that the claimants should furnish the ice required by the military hospitals in the department of the gulf.
    It is admitted that the contract of the 28th of January, 1864, was signed by the claimants after the rescission of the contract made by them with Surgeon Magruder, on the 30th of December, 1863, and that the claimants fulfilled said contract, and have been paid in full for the ice furnished by them under it. This suit is to recover the profits the claimants allege they would have made had they been permitted to furnish the ice required by the United States military hospitals in the “ department of the gulf.”
    The questions presented for consideration by the foregoing facts are as follows:
    1st. Had the Secretary of War the right to annul the contract made by Surgeon Magruder, and approved by the acting Surgeon General?
    2d. Was the contract complete and binding upon the United States without the approval of the Secretary of War ?
    3d. Did not the signing of the contract of the 28th of January, 1864, by the claimants, constitute, a new contract, and operate as an acqui-esence by the claimants in tlie change in the contract made by the Secretary of War ?
    I insist, 1st, that every contract authorized to be made by any one of the bureaus of the War Department is, in contemplation of law, made subject to the approval of the Secretary of War.
    2d. The agreement between Dr. Magruder and the claimants, dated December 30th, 1863, was an instrument under seal. That instrument was therefore in its legal import a deed, and deeds take effect only from the time of their delivery. This instrument or deed was never delivered to the claimants by the agents of the United States, and therefore never became binding upon the United States.
    3d. The contract of the 28th of January, 1864, was a new contract, and was therefore a waiver of the contract which might otherwise have resulted from the acceptance of the proposals of the claimants of the 21st of December, 1863. Courts may infer that there has been a re-scisión or change of a contract from circumstances. It is not essential that there be an absolute consent to such alteration; this may be in-fered either from circumstances or the consent of the parties. Here we have evidence of the consent of the parties, and are not obliged to resort to circumstances. It is therefore assumed that the claimant consented to the alteration made in his contract by the Secretary of War; and if he did so, he cannot recover in this action anything on account of the supposed breach of the contract which he claims had an existence from the acceptance of his proposals by Surgeon Magruder.
    It is true, the witness Lewis says, that “ the claimants, Parish and Hadley, objected to the first contract being annulled.”
    But against this protest we have the admitted fact, that the claimants did receive this amended contract, and performed all their obligations under it, when, if their assumption as to the law of this case is correct, they might have treated the contract as at end, and sued for their profits upon it without the labor and trouble of performance.
   Peck, J.,

delivered the opinion of the court:

The petitioners, Joseph W. Parish, George C. Hadley, and William L. Huse, late copartners, doing business under the name and style of J. W. Parish & Co., represent that,-on or about the first of the month of January, A. D. 1864, (the precise date they cannot state,) they entered into a contract with the United States, the latter being represented by D. L. Magruder, surgeon and medical purveyor of the department of the west, which contract was approved by the Surgeon General of the United States, by which it was agreed that the petitioners should furnish all the ice that might be required in the said department during the year 1864, at sundry points on the Mississippi river, including Cairo, St. Louis, Memphis, Vicksburg, Natchez, New Orleans, and Nashville, Tennessee, at certain fixed prices. For ice delivered at New Orleans, the price to be paid was twenty-five dollars per ton.

That proposals for ice had been invited by advertisements, and the petitioners were the lowest bidders. They also allege that the contract made and entered into was an entirety, but that the Secretary of War, contrary to the wishes of petitioners, ordered the said contract to be suspended, and afterwards annulled it, when a new contract was entered into for the delivery of ice at all the points named in the first contract, except New Orleans, at which place they were not permitted to deliver.

That the ice to be delivered at New Orleans under the contract first made would have amounted to two thousand and two hundred tons, and that, by reason of the change in the contracts, the petitioners lost the profits upon the ice which, under the first contract, was to be delivered at New Orleans, which they aver would have amounted to seventy-five thousand dollars.

That Surgeon D. L. Magruder, acting under instructions from the Surgeon General, did, at Louisville, Kentucky, under date of December 4, 1863, give notice that proposals would be received at his office until the 20th of that month for furnishing ice to all the United States general hospitals at the west, including the division of the Mississippi, and the department of the gulf, upon the Mississippi and its tributaries, in such quantities as might be required for the use of the sick and wounded during the year 1864.

J. W. Parish & Co., these claimants, were the lowest bidders for the whole amount required, and their proposal was accepted.

On the thirteenth day of said December a contract was prepared and signed by Surgeon Magruder and Parish & Go., by which the latter were to furnish ice, packed, &c., for twenty different places, one of which was New Orleans, which contract it was by parole agreed was not to be binding on the United States until it should receive the approval of the Surgeon General.

The contract was forwarded to the Surgeon General for his approval, and was approved by him and despatched by mail to Magruder, but before reaching him the approval was reconsidered and the contract, by order of the Secretary at War, was recalled, and another contract, substantially like it, having -different phraseology, was forwarded in its stead.

After the second contract had reached Surgeon Magruder, he was directed by the Secretary of War to erase from it the name of New Orleans, and have it executed in lieu of the first contract, which was done; but, on executing it, after the erasure had been made, Parish & Co. protested against the alteration, stating that they would lay all the facts before the officials at Washington and seek for redress, but, nevertheless, after it was executed, treated it as the only contract between the parties, and carried out their obligations under it, never delivering or offering to deliver ice at New Orleans.

Upon these facts, and the averments of the petition, a majority of the court do agree upon the following conclusions :

This record shows that the claimants were not fairly treated by the agents of the government; and had they stood upon the advantage which the first contract gave them, if it was, as they now insist, execu-tory, they might have been entitled to recover such damages as the facts would authorize. Whatever the motives which influenced the claimants — whether it was deference to the exercise of power, the pressure of necessity, or the hope of gain — it appears that they consented to the change of contracts, thereby relinquishing whatever advantage they might have gained by adhering to the contract as prima.-rily made.

Surgeon Magruder, with whom the contracts were made, was examined by claimants, and he testifies that the name of New Orleans was stricken from the contract before it was executed. Alfred Lewis, an attesting witness to the second contract, states that Parish & Hadley “ objected to the annulling of the first contract, but stated that, as they had gone so far, they would go on and fulfil the new contract to the best of their ability, but would not waive their right on their old contract, expecting to have that made satisfactory when all the facts were laid before the officials at Washington.” He says, moreover, that the second contract was substantially the same as the first, except that the words “the Department of the Gulf, and at the city of New Orleans, Louisiana, were not in it.” This witness says he cannot give the precise language the claimants used at the time, but that they “ protested to the annulling of the first contract.”

This testimony shows that the claimants well understood that the first contract was to be annulled, and that the new contract was to be substituted for it. No doubt they objected to the erasing of the name of New Orleans, but preferred to accept the new contract, with tlie erasure, than to relinquish the benefits they would receive under it.

Surgeon Magruder deposes that it was distinctly understood between himself and Parish & Co., at the time of the signing of the first contract, that it was not to be binding upon the government, nor delivered until after it should receive the approval of the Surgeon General, to whom it was to be sent for examination. The contract was, therefore, to receive the concurrence of a third party before it should become obligatory, or, in other words, the agent of the Surgeon General reserved the right to have his principal approve his .acts before they should be binding.

The second contract was tendered as a substitute for the first, upon the condition that Parish & Co. would perform what it required for the compensation to be paid, and waive that which had been previously prepared, and they cannot avail themselves of the performance and repudiate the condition. They chose to perform the services required by the new contract, and received their share of the benefits; against this their protest can avail nothing. It was not like the case of a debt due upon a consideration that was past, but here the contract was subsequently to be performed, and the benefits were prospective. Nothing had been done, nor was anything due. The claimants had an alternative presented; they made their selection, and ought not now to be permitted to undo what they deliberately preferred as most beneficial to themselves.

The claimants aver that the first contract was “ an entirety,” and seek to recover because it was so. This is their own construction of the instrument; they insist that it was indivisible, and dependent one part upon the other. Of course, the substitution of another contract in its stead would cause its complete revocation, and no recourse would be left for any partial recovery under it.

It is to be observed that 'Several of the depositions offered by claimants were taken prior to the filing of the amended petition, and within nineteen days of the bringing of the suit, and are in the record irregularly.

The petition is dismissed, and judgment is for the defendants.

■Casey, C. J., dissented.  