
    O. P. Cobb et al v. The United States.
    
      On the Proofs.
    
    
      In November, 1864, a written contract exists between the Government and the claimants for a certain quantity of corn- and oats. While it is in execution a mili
      
      tary emergency arises, and Major-General Thomas orders his chief quartermaster to procure necessary forage immediately and at all events. The quartermaster does so by agreeing with the claimants by parol, that they shall duplicate the quantity of the written contract,. The claimants purchase the required quantity and deliver as requested, but the emergency passes away and the Government refuses to accept all. At the same time the price falls and the claimants lose heavily. They seek to recover their losses caused by the refusal to accept.
    
    I. The purchase of military supplies for a military emergency during, the rebellion is governed exclusively by the-Act ith July, 1864, (13 Stat. L., p. 394, § 4,) and not by tbe Aet 2d March, 1861, (12 Stat. L., p. 220,) nor by the Act 2d June, 1862, (12 Stat. L., p. 411.) Therefore when the emergency has been declared by the commanding general, the necessary supplies need not be purchased by advertisement, nor need the contract he in writing.
    II. Where the Government refuses to accept goods uuder its contract, the measure of damages is the difference between the contract price and the market value at the time of the breach.
    
      Messrs. Lincoln, Smith <& WanooJc for claimants.
    This is a suit brought for the breach of two contracts, made by the Government with the petitioners, for the delivery of six hundred, thousand bushels of coru and oats.
    On the 25th of November, 1864, the Quartermaster’s Department, through D. W. Me Clung, captain and assistant quartermaster of the Army, then stationed at Cincinnati, Ohio, entered into a written contract for the purchase of one hundred and fifty thousand bushels of merchantable shelled corn, in new, resewed gunnies, with O. P. Cobb, Christy & Co., at the rate of $1.55 per bushel) fifty thousand bushels of merchantable ear-corn, in sacks — to be furnished by the Government — at $1.24 per bushel; one hundred thousand bushels of merchantable oats, in new burlap bags — to be furnished by claimants — at $1.10 per bushel; to be delivered at different points, on Government transports, at and between Maysville, Kentucky, and Madison, Indiana, or at railroad depots, or in store in Cincinnati, on or before the 1st day of March, 1805.
    ‘ This contract was made after advertisement in the regular way.
    The parties proceeded to fill this contract. On or about the 1st of December, 1864, the vast depot of forage gathered at Johnsonville, Tennessee, for the use of the armies of General Thomas, with all the supplies and forage there gathered, was burned, to prevent the transports from falling into the hands of the confederate forces under General Forrest. They were set on fire, and this communicated to the forage and supplies, which were all consumed.
    This, with the large number of troops being concentrated at Nashville and vicinity, the immense number of cavalry horses that were to be collected for General Wilson’s command, the artillery and draught horses that were required, (amounting tn about one hundred thousand animals, to be fed in that department,) and the condition of the railroad and means of transportation, created a most pressing emergency for the immediate purchase and supply of forage, to meet which General Thomas, then in command of the armies at Nashville and vicinity, required General Donaldson, the quartermaster having the same in charge, to meet the emergency with an immediate supply of grain, in any way it could be obtained. At that time there was no chance of obtaining the necessary supply of forage at Louisville, or by any other means than by immediate purchase in the open market.
    This emergency was so great that General Allen, the chief quartermaster of the Military Division of the Mississippi, then stationed at Louisville, ordered Captain McOlung and Colonel McKim, who was also a quartermaster at Cincinnati, having charge of the procuring of forage, to seize the same if necessary.
    In this condition of things a verbal contract was at once made between the petitioners and the Government, that they should at once proceed to duplicate the contract aforesaid, and deliver grain under it as rapidly as possible.
    Under this verbal contract, O. P. Cobb, Christy & Co. proceeded immediately to purchase the grain to fill the same, having previously purchased enough to fill the previous written contract within the time therein named. The grain was hurried in under this contract, while delivery was also made under the written contract of November 25,1864.
    In fulfilling this contract O. P. Cobb, Christy & Co. had hurried up their deliveries, and made provision for delivery, so that from this and other sources the amount of forage during the month of February had accumulated to such an extent that the petitioners were requested, by the quartermaster, to hold back deliveries for the accommodation of the Government, they promising to receive the grain as soon as provision could be made for its storage. .
    The successful result of the war, not foreseen at the time, and the various times at which the forage was provided, was such ■that from this and other sources the Government had purchased a greater amount than was needed, and the quartermaster at Cincinnati was therefore required to give notice to the contractors that no more .would be received, and on the 10th day of April, 1865, such notice was given to O. P. Cobb, Christy & Co., and no more grain was received.
    I. This verbal contract is clearly shown by the most unimpeachable evidence, to wit, the Government officers who made it, and who were connected with it.
    II. The emergency that authorized this contract is also fully and clearly shown by a variety of' evidence.
    
      Mrst. It is a matter of public history that the condition of the railroad, the large gathering of cavalry and other troops in and around Nashville, and the burning of the supplies and forage at Johnsonville, put the whole service in peril for want of forage.
    
      Second. The cavalry force organized for Wilson’s army was the greatest ever collected for one command on this continent. It was the cavalry force that swept through the South after the battle of Nashville, which took place on the 15th and 16th of December, 1864 5 it was estimated by the officers whose duty it was to provide the forage, that there were about 100,000 animals to feed.
    
      Third. This evidence is all through the record, and cannot be read without producing the conviction that there was a most pressing emergency, requiring immediate contracts for the furnishing of forage.
    III. The contract in question was entirely fair and just. Cases of this kind are most generally presented with some strong mark of extravagant price paid for whatever supplies were thus obtained, or other marked disadvantage to the Government. (Beard v. The United States, 3 O. U. S. It., 129,130.)
    IY. The claimants fully performed on their part. Under the decisions, it is only necessary that the party should show his readiness and willingness to perform, and that he was prevented by the other party refusing to perform on his part. (Hughes v. The United States, 4 O. Cls. K.., 73; Clarice v. The 
      
      United States, 1 0. 01s. R., 244; Gibbons v. The United States, 2 0. Cls. R., 426, 427 ; Banson v. Johnson, 1 East., 208, 209; Sager v. Beed, 11 Ohio St., 633; Cobb v. Nhii, 33 Yt., 238; Granson v. Madigrn, 13 Wis., 72.)
    This rule has been applied in Government eases. (Grover’s Case, 5 C. Cls. R., 429; Wilder's Case, 5 C. Cls. R., 472 ; Hughes v. United States, 4 C. Cls. R., 73; Clarke v. United States, 1 C. Cls. R., 244; Gibbons v. United States, 2 C. Cls. R., 320, 327.)
    In this case the proof is complete, not only that the claimants were ready, willing, and able to perform, but had fully prepared themselves to perform, had the grain purchased and on hand, and that during the month of February they were requested to hold back their deliveries for the convenience of tho Government, and did so, and ¡were not notified that the grain ' would not be received until the 10th of April, 1865. Their ability, readiness, and willingness to perform fully appears.
    
      First. That the parties had purchased the grain and had it on hand appears from the testimony.
    
      Secondly-. The grain was ready and tendered.
    
      Thirdly. The Government requested the claimants to hold back deliveries for their convenience, and that they might find places to store it, and promised to receive it as soon as they could find places to store it.
    The rule of damages for a recovery in such a case is the difference between the contract price and the market value at the time the vendee refused to receive the grain. (Shepherd v. Hampton, 3 Wheat., 204; Hughes v. The United States, 4 C. Cls. R., 72; Grover v. The United States, 5 C. Cls. R., 429; ■ Wilder v. The United States, 5 O. Cls. R., 472; Bhilpotts v. Evans, 5 Mees. & W., 475; Boorman w. Wash, 9 Barn, & C., 152; Thompson v. Alger, 12 Met., 443; Bider v. Kelley et al., 32 Yt., 272 ; Shreve v. Brereton, 51 Penn. St., 185; Bickering v. Bandell, 2T Wis., 564; Girrard v. Taggart, 5 S. & R., 32; Ganson v. Madigan, 13 Wis., 72.)
    This rule is sometimes stated to be the difference between the contract price and the value when the contract should have been performed. (Allen v. Jarvis, 20 Conn., 48, 49; Hamilton v. Ganyard, 34 Barb., 207.)
    These are but different modes of expressing the same rule.
    The vendor in such a case has no doubt an option to consider the property as that of the vendee, and to make sale of it within a reasonable time for the vendee, and recover the differerence between the contract price and the net value received for it. (Hughes v. The United, States, 4 C. Cls. B., 74; Pickering v. Parckcell, 21 Wis., 584, 565; Crooks v. Moore, 1 Sand., 303 ; Patten v. Le Boy, 30 N, Y., 556, 558 ; Sands v. Taylor, 5 Johns., 405; 2 Parsons on Contracts, 484.)
    'But this right of election rests wholly with the vendor, and cannot be claimed by the vendee who has broken his contract, nor can he insist upon it. (2 Parsons on Contracts, 484; Hughes v. The United States, 4 C. Cls. B., 74.)
    This rule of resale for the vendor does not require that the goods be sold at auction, or that notice of the day of sale be made. — (Crooks v. Moore, 1 Sand., 303;.Patten v. .Le Boy, 30 N. Y., 557.)
    Though the vendor has the right t-to elect to resell, yet he need not do so, and as this mode is always 'open to collateral questions as to the time, manner, and good'faith of the resale, the ordinary rule, and the one generally followed, is that first above stated.
    In cases where it was impossible to .'sell on the very day of the breach, there has been some dispbsition of the courts to allow reasonable time for a sale. And in a case like this, where the proof shows that there was no market for large sales of the kind, the court would allow some few days for a sale. (Shreve v. Brereton, 51 Penn. St., 185; Allen v. Jarvis, 20 Conn., 49; Thompson v. Alger, 12 Met., 443.) „
    This would seem to result from the general rule that the vendor should be made whole, and is quite consistent with the rule that authorizes him to elect to consider the property as that of the vendee, give notice thereof, and proceed to sell within reasonable time, and recover the difference between the contract price and the net proceeds of the sale.
    The rule, however, that the difference between the contract price and the market price at the time of the breach is the more definite; and certainly the vendee who has refused to comply with his contract cannot object to it.
    The presumptions upon the question of loyalty are also full and complete, arising from the whole evidence, and from the transaction itself, the employment of these men by the officers of the Government to aid it in a case of emergency, to put down the rebellion, and by their coming forward and furnishing grain for the horses belonging to the Army at a time when and at a price for which no other contractor for the% Government would have furnished it.
    
      Mr. Alexander Johnson (with whom was Assistant Attorney-General McMichael) for the defendants:
    The point argued is, that General Thomas “ declared” an emergency, and gave an order to his chief quartermaster such as is contemplated by the Act July 4th, 1864.
    Taking the testimony offered on this point in all its looseness) and we find that at various times, in conversations with the “senior and supervising quartermaster of the Department of the Cumberland,” (who was not his “chief quartermaster,”) General Thomas urged the necessity of keeping the army under his command supplied with forage. Conversations of the same character would doubtless have taken place if every storehouse in Cincinnati, Louisville, Cairo, and Saint Louis had been overflowing with Government grain. When the general of an army talks with any officer of his staff, he is very likely to take for his subject the duty to be performed by that officer.
    General Thomas gave no order to General Donaldson to purchase forage 5 General Donaldson gave no order to General Allen to purchase forage; and General Allen’s order to Colonel McKim was, ltBuy all the grain you can find in private stores, or, if necessary, seize it.”
    There can be no doubt that Mr. O. P. Cobb saw that order. He was called in for consultation, and must have known the exact state of the case. It was his duty to know by what authority McKim and McClung acted; as much so as it would have been his duty to know the extent of their authority if they had been acting as agents of a citizen.
    It is not certain that any emergency existed at Nashville on the 23d of December, 1864. On the 15th and 16th of that month the battle of Nashville was fought, and Thomas at once pursued the routed army of Hood. An army following up a victory in this way does not .move loaded down wTith forage; and if in this case it did, it carried none of the grain of O. P. Cobb, Christy & Go. The organization of Wilson’s cavalry at Eastport could not affect the supply of forage at Nashville, nor would it be likely to affect the supply at Cincinnati. With Cairo and Saint Louis to draw from, it is not probable that forage from Cincinnati would find its way up tlie Tennessee River.
    But if an emergency did exist it was not one requiring the purchase of grain, but merely its delivery. That grain enough had been contracted for is certain; but “ all the contractors every toller e were behind time?
    
    That these claimants had a legal right, under the contract of November 25, to withhold their grain until the 1st of March, is not denied. They also had a legal right to deliver itimmediately; but to discuss legal rights under the circumstances would seem inappropriate even for a speculator; it would be abhorrent to a patriot.
   Losing-, J.,

delivered the opinion of the court:

This suit is brought for the breach of two contracts made by the Government with the petitioners for the delivery of 600,000 bushels of grain.

And the court finds the facts to be., that on the 25th of November, 1864, the United States entered into the written contract with the claimants for corn and oats. While such contract was in execution, and on the 1st' December, 1864, large quantities of forage, which had been gathered at Johnsonville for the armies of the West and South, were consumed by fire.

At this time a large army, under General Thomas, was concentrated at Nashville, and was daily increasing by forces collected to repel the advance of the confederate army under General Hood, and to prepare for the operation of a large cavalry force, under General Wilson, upon the Southern States in rebellion.

These circumstances, combined with the fact that other contractors had failed to deliver grain at' other places from which it might have been drawn, and the interruption of expected mfeans of transportation, created an emergency for the immediate delivery of large amounts of forage, upon the fulfillment of which the success of our military operations in the West- and South and the safety of our armies 'depended.

In these circumstances General Thomas, the military commander of the department, ordered his quartermaster-general to procure the forage necessary immediately and at all events. And under these orders a verbal contract was made between the United States and the claimants for the duplication of the written contract, as to quantities and prices.

The said verbal contract was the. most expeditious way in which the forage required by the emergency could have been obtained, and the claimants proceeded immediately to its execution, and, under that and the written contract, they delivered forage promptly and without any delay, until they were notified by the Quartermaster’s Department to withhold and forbear for a time- their deliveries,because the Department was restricted in storage-room.

By the success of our armies in the South and West the war was brought to a sudden and unexpected termination, and in consequence the grain contracted for and not delivered was not needed by the Government, and the quartermaster at Cincinnati was ordered by the War Department to notify contractors to deliver no more forage. And on the 10th of April, 1865, the claimants were notified that no more forage would be received from them under the contracts above specified, and thus further deliveries were prevented by the United States.

Of the forage contracted for under the two contracts above specified the Government thus refused and prevented the reception of—

1st. 150,000 bushels of shelled corn.

2d. 40,774 bushels of corn in the ear.

3d. 9,978 bushels of oats.

On the 10th day of April, when the claimants were notified . that further deliveries would not be received, the market price, of oats was 64 cents per bushel; the market price of shelled corn was 70 cents per bushel; the market price of corn in the ear was 70 cents per bushel.

And the difference between the contract price and the market value of said articles on said 10th day of April was-—

350,000x85 (155 — 70) shelled corn.$127,500 00

40,744x54 (124 — 70) corn in ear... 22,017 96

7,978 x 46 (110-64) oats.. 4,589 88

Amounting to... 154,107 84

As to the measure of damages, the rale has been repeatedly declared here to be the difference between the contract price and the market value at the time of the breach of the contract, and on this the judgment rendered is 'founded.

It was objected that the contract in this case did not comply with the Act 2d March, 1861, (12 Stat. Ij., p. 220,) enacting that articles or services required in ease of exigency for immediate delivery or performance might be purchased or contracted for in open market; or with the statute of 2d June, 1862, requiring contracts to be in writing.

We think this case is governed exclusively by the fourth section of the Act 4ih July, 1864, (13 Stat. L., p. 394,) which is subsequent to the statutes above mentioned, and was made for cases like this, while the other statutes were made for other cases.

Th£ statute of 4th July, 1864, was enacted in the civil war, and for it. It was by express limitation to exist u during the present rebellion and one' year after.” It expired at the time limited, and has not been renewed. Its purpose was to reconstruct the Quartermaster’s Department, to adapt it to the extended services the civil war required. It contemplated and provided machinery forthe supply of armies for operation in the field, and for the vicissitudes to be encountered there. And the fourth section of the statute is a provision for emergencies, on which the safety of armies and the final issue of the civil war might depend, and which might thus involve the fate of the Union. Andinreferencetothis it gave the direction the subject suggested and made indispensable, viz, that in such emergencies of armies in the field the supplies should be procured “ in the most expeditious manner.” This is the language of the statute, and its single direction. Nothing is added to it, because nothing eonld add to its force, and anything added might in some way, possibly, trammel the execution of its purpose, and in this case the evidence is that the pressing and increasing need of the army of General Thomas, as well as of the army of General Sherman, was the subject of frequent and anxious conference between General Thomas and Ms staff, áhd resulted in imperative and repeated commands from him to his chief quartermaster to procure the supplies needed in “ the most expeditious manner possible.”

Now, the statute of 2d March, 1861, has no such special purpose. It was not made in time of war, for its inception goes back to 1809. It does not relate specially to service in the field, nor to military service, for in terms it applies to contracts in “ any department of the Government,” and is applicable to an emergency for stationery in the State Department, or for blanks in the Post-Office Department, or for fuel in barracks, or for any other emergency that the failure of a contractor may make for the supply of anything needed in the ordinary routine of public business.

So the statute of 2d June, 1862, which requires contracts to be in writing, relates not specially to military service, but to all contracts made in the Department of War, of the Navy, and of the Interior; and it provides that the contracts must be in writing and signed by the parties at the end thereof, and a copy filed in the returns-office within thirty days, and, together with all bids, offers, and proposals, and copies of advertisements, be attached together by a ribbon and numbered numerically. These detailed provisions show that the statute is made in reference to the ordinary business of the Departments specified, and not to the special emergency contemplated in the fourth section of the statute of 4th of July, 1864, and which existed when these contracts were made, for then the army of General Sherman had begun its memorable march, and its base of operations on the western cities was defended by the army of General Thomas, and contractors had failed to furnish their supplies, and the want of food for man and beast was imperiling the operations that resulted in national safety; and in these circumstances all was saved by the literal execution of the statute, i. e., procuring the supplies in the most expeditious manner, which, on the evidence, was by these contracts.

The claimants are entitled to judgment for $154,107.84.  