
    HARDY’S CASE. William H. Hardy v. The United States.
    
      On the Proofs.
    
    
      A quartermaster enters into an express contract, founded upon advertisement, and approved by his commanding officers, for army transportation. The contract provides that the contractor shall transport “ the following amount of United States Government storesfromllardyville to Fort Whipple: 486 tons,more or less.” The Government furnishes only a small part of the freight contracted for-, hut its officers require the contractor to remain ready to transport thewhole. He purchases and hires teams, and is put to substantially the same expense as if allowed to perform.. He brings his action for the whole of the contract price.
    
    I. Where a quartermaster enters into a written contract, founded upon advertisement made in due form of law, and approved by the district, department, and division commanders, the contractor is not responsible for an error of the quartermaster in contracting for a greater amount of service than the Government will actually require.
    II. The qualifying words “ more or less,” used in a contract, are words of intention, and must be understood in their ordinary and popular sense. They have by usage no technical moaning, and must be understood to effectuate the immediate intention of tho contracting parties. Where they are used in a contract for army transportation, they give the Government no more right to withhold a portion of the freight contracted for, than the contractor would have to refuse to transport the same quantity were it offered to him.
    III. Where the defendants have failed to furnish to the contractor the quantity of freight which it was agreed he should carry, they cannot claim an abatement in damages under the words “more or less” in the contract, but must be hold to the full measure of damages for all the freight withheld, although if they had carried out their agreement in good faith the quantity furnished might have been slightly varied without a breach.
    IY. Where it is agreed that the contractor shall transport a specified quantity of freight within a certain time, and he during the whole period of the contract is kept by the defendants in a state of constant expectation, ready, willing, and able to meet his engagement, so that the expense and liability thus imposed upon him are nearly equal to that which would have followed full performance, it is equivalent to actual performance, and the measure of damages is.the full contract price.
    V. Where the contract is payable in gold, the judgment rendered will be made payable in gold.
    
      
      The Reporters’ statement of the case :
    The facts found in this case sufficiently appear in the opinion read.
    
      ?dr. J. A. Wills for the claimant:
    Upon the well-established principles of the law of contracts, this contract being in writing, and the words “more or less” being free from ambiguity or technical significance, they must be interpreted according to their plain, ordinary, and popular meaning. (Chitty on Contracts, Perkin’s cd. of 1880, pp. 85, 88.)
    Promises are binding in the sense in which the promisors intended at the timé that the promisees should receive them. (Leniry v. Ralston, 11 Harris,Penn. St., 137. See also Rowland & Go. v. Lehigh Goal and Navigation Company, 4 Casey, p. 215.) Giving to these words “ more or less” their “ plain, ordinary, and popular meaning,” and a “rational and just construction,” their true meaning is stated by Captain Tuttle, who made the contract, when he says: “It was my general custom, in making contracts for the Government, to insert the words 4 more or less f not intending by such toords that the amount mentioned in the contract might be materially varied in weight or quantity, but only to cover slight discrepancies in weight or quantity which might occur.” There are two classes of cases illustrating this point; one relating to the sale of lands, and the other relating to the sale of chattels, and contracts in reference thereto. In contracts for the sale of lands, a distinction is made between contracts which remain executory, and contracts which have been consummated by the execution of a deed.
    
    In the first case, the question is whether the sale was made “in bulk” — that is, as a whole, for a fixed and determinate sum; or per acre, at an agreed rate per aere. If the sale has been made in bulle, then the use of the words “more or less” in the contract are held to cover excesses or 'deficiencies above or below the specified quantity. If the sale was made at so much per acre, then it is held that the excess or deficiency at that rate must be accounted for, so long as the sale remains execu-tory or unconsummated by the execution and delivery of a deed. But if a deed has been executed, then, in the absence of all fraud, accident, or mistake, the transaction is regarded as ended, and the words “ more or less” are held to cover all slight or reasonable excesses above or deficiencies below the quantity named in the deed. This is the result of the oases, and hhey need not be more particularly stated in the brief. (See Eaiore v. Martin, 3 Selden’s N. Y., pp. 210,215,219; Eichelberger v. Barnitz, 1 Yeates, Penn. St., p. 307, fee.; Smith v. Evans, 6 Binney, Penn. St., p. 102, and especially the dissenting opinion of Judge Yeates; ib., pp. 112,113, and the authorities there cited; Glen et al. v. Glen, 4 Serg. So R., 493; 5 ib., 260; Stebbins v. Eddy, 4 Mas. C. C., pp. 418-420.) This last case contains a general review of the authorities by Judge Story, and contains a very able statement of the whole doctrine. Other illustrations in land cases are to be found in the decisions of the Supreme Court of the United States. Distance is taken positively, and the words “about” or “nearly” are rejected in determining quantity. (2 Wheat., p. 106.) In Mexican land grants, leagues, “ more or less,” have been held to mean leagues and fractions of a league, that being regarded as the unit of measurement. (United States v. Estudillio, and United States v. Eossatt, 1 Hoffman’s Laud Cases, p. 204; ib., pp. 211, 376.) But in the latter case, on review in the Supreme Court .of the United States, (20 How., pp. 426, 427,) the court says, on the contrary, “ We reject the words ‘ a little more or less,’ as having no meaning in a system of location and survey like that of the United States, and that the claim of the grantee is valid for the quantity clearly expressed;” &c.; that is, for one league only. Under the doctrine of the district court of California, the words more or less, in this contract, would cover discrepancies to the extent of fractions of a ton, that being the unit of measurement in this case; but by the decisions of the Supreme Court all fractions would be rejected. Under a contract to sell and deliver “ about 300 quarters, more or less, of rye,” the vendee is not' bound to take 350 quarters; the excess of '50 quarters, that is, one-sixth of 300, being held to be too great an excess in such a quantity. (Gross v. Eglin, 2 Barn. & Adol., p. 106; Lord Tenterden, pp. 110-112.) In this case the deficiency is more than nine-tenths of the quantity agreed to be furnished ; that is, only 78J out of 837 tons. For the meaning of the word"“say,” in a mercantile contract, see Leeming v. Smith, (16 Q. B., p. 275 ; 20 L. J., Q. B., p. 164;) Guil-lim v. Darnell, (2 O. M. & E., p. 61.)
    A recent case in this country, illustrating both aspects ox the question under consideration, is that of Allen v. Cabot, (Allen’s Mass., p. 546.) It is the case of a sale of “ 500 bundles, more or less, gunny-bags.” An abstract of the report will be found in 1 Parsons on Contracts, edition of 1866, pages 541, 542, note (z.)
    The whole drift of these authorities clearly establishes the position for which we contend on this point, that the words “ more or less, ” in the contract in question, cannot reasonably be interpreted to cover so gross and so unreasonable a delinquency on the part of the Government as its failure to furnish more than nine-tenths of the whole quantity agreed to be furnished; that, on the contrary, this phrase was used and intended, by both parties, in its ordinary and popular sense, to cover slight discrepancies of excess or deficiency which might happen on either side in the performance of the contract; that, no attempt having been made by the Government to fulfill the contract on its part to so great an extent, it is impossible to say practically what definite significancy should be given to these words; and that therefore they must be entirely rejected in ascertaining the damages in this case. This is a necessary consequence, resulting in the first place from the indefinite meaning of the words; and, in the second, from the negative action of the Government, -which is not now in a condition to say what they mean; and, in the third place, from the total absence of all proof tending to fix any other and definite limit to its liability for the delinquency proved.
    The only remaining questions relate to the measure of damages, the amount of the damages due under the contract for its violation, and the form of the judgment.
    The principle which underlies this branch of the law is thus clearly stated in 1 Parsons on Contracts, edition of 1866, page loo: “ The principle which measures damages, at common law ,is that of giving compensation for the injury sustained; a compensation which shall put the injured party in the same position in which he toould have stood had he not been injured.” Again: “And in modern times, courts seek to apply to each case such-rules as icill carry out the universal principle, as far as may be, that the actual damages must measure the compensation given for it by law.” (lb., p. 190; ib., p. 192.) But in view of the decision of the Supreme Court of the United States in the case of the United States v. Speed, (8 Wall., p. 77,) and of the decisions of this court both before and since, it would be a waste of time to make any parade of learning on the law of the measure of damages. Ordinarily, the measure of damages, in cases like the present, is the difference between the cost of performance and the contract price for performance. (Masterton v. Mayor of Brooklyn, 7 Hill, 61; P., IF. and B. B. B. Company v. Iloicard, 13 How., p. 344; 8 Wall., p. 77; Wilder's 2d Case, 5 C. Cls' E., p. 476.)
    By the terms of the contract, the,stipulated prices are “to be paid in United States gold coin, or the market value thereof in United States currency on the day of payment. Payment to be made in such funds as [shall be] furnished by the Government for public disbursement, if on hand; if'not on hand, certified accounts will be given.”
    By the practice under this contract, as shown by the vouchers certified from the Treasury Department, it appears that the gold value was equalized in currency at the market rates, at the different times .of payment, at from 70 to 75 cents on the gold dollar. If the claimant had been paid in full at the close of the year 1866, he would therefore have been entitled to be paid, under his contract, in gold, or at the average market rate at that time, say 70 cents on the dollar. But this is important now only so far as it relates to the form in which the judgment shall be entered in this case. Under the decisions of the Supreme Court of the United States in Bronson v. Bhodes, (7 Wall., pp. 254, 255,) Butler v. Horwitz, (ib., pp.260, 261,) and Dewing v. Bears, (11 ib., p. 380,) the judgment in this case must be entered for coined dollars and parts of dollars, instead of Treasury notes, equivalent in market value to the gold coin agreed to be paid.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants:
    On the 31st day of May, 1886, the claimant entered into a contract with Joseph Tuttle, a captain and assistant quartermaster, acting for the United States, by which the claimant agreed to transport from Hardyville to Fort Whipple'486 tons, “ more or less,” and from Hardyvilleto Camp Lincoln 351 tons, “ more or less.” The contract was to commence on the 1st day of July, 1866, and the stores to be transported were to be delivered on or before the 31st December, 1866. Payment for this transportation was to be made iu gold coin, at the rate of 8J cents per pound for stores delivered at Fort Whipple, and 12|- cents per pound for stores delivered at Gamp Lincoln. It seems that stores to the amount of 78J tons were transported by the claimant under this contract, for which he received $14,110. He now claims the contract price for the transportation of the 758| tons not transported. All of the stores and ■ supplies which were carried, or which the Government service required to be carried, from Hardyville to Fort Whipple and Camp Lincoln, from July 1 to December 31,1886, were delivered to and u'ere transported by the claimant.
    No quartermaster or any other agent of the Government has-authority to contract for anything that the Government does not need. If such authority were vested in any agents of the Government, the Treasury would soon be bankrupt. . And, what does not always happen, the statute comes in to assist and strengthen the-common-sense view of this case. “No contract,”' says the statute, “ or purchase, shall hereafter be made, unless the same be authorized by law, or be under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, fuel, quarters, or transportation, which, however, shall not exceed, the necessities of the current year.” The quartermaster, Tattle, had no authority to make a contract to furnish the claimant with 837 tons of stores for transportation. He had authority (subject to the approval of his superiors) to contract for the transportation of such stores as the Government service rendered necessary, and for no more. In case the court should come to consider the question of the measure of damages in this case, there is no need of going beyond the case of the United States v. Speed, (8 Wall., p. 77.) The testimony in the ease shows what it would have cost the claimant to transport the stores ; and the difference between that and the coutract price, “ making reasonable deduction for the less time engaged, and for release from the care, trouble, risk, and responsibility attending a full execution of the contract,” is the true measure of damages.
   MilligaN, J.,

delivered the opinion of the court:

On the 31st of May, 1866, the claimant entered into a written contract with the United States, acting through Oapt. Joseph Tuttle, assistant quartermaster, United States Army, which, among other stipulations, contains the following:

“ The said William H. Hardy shall transport from Hardy-ville, A. T., to Fort Whipple, A. T., and Camp Lincoln, A. T., the following amount, United States Government stores; from Hardyville to Fort Whipple, A. T., 486 tons, more or less; from Hardyville, A. T., to Camp Lincoln, A. T., 351 tons, more or less; said stores to be delivered at Hardyville in sufficient quantity to enable the said William II. Hardy to deliver the same to the above-mentioned posts within the time specified in this contract.”

The contract was to go into effect on the 1st day of July, 1SG6, and to be performed on or before the 31st.day of December following.

For the stores delivered at Fort Whipple he was to receive 8.} cents per pound; and for those delivered at Camp Lincoln 12| cents per pound, “ in United States'gold coin, or the market value thereof in United States currency on the day of pay

. During the time the contract was in force the defendants furnished only 10,453 pounds for transportation to Camp Lincoln, and 149,916 pounds to Fort Whipple, making an aggregate of 160,369 pounds, or about 78¿- tons, leaving 758¿ tons which were not offered for transportation.

The claimant has been paid for the 7SJ tons transported under the contract, and now prosecutes this suit to recover damages on an alleged breach of the contract by the defendants.

The proof establishes the fact that immediately after the contract was executed the claimant, at great expense, put himself in readiness to fulfill its stipulations within the time specified, and kept himself in readiness at all times during the life of the contract to perform his obligations under it.

The defendants were fully apprised of the claimant’s continued ability and readiness to perform, but failed to notify him that no other stores than those before mentioned would be sent forward for transportation. On the contrary, the senior quartermaster at San Francisco, Cal., through whom the supplies were to come, as late as the 29th of September, 1866, informed the claimant by letter that he fully appreciated his position, and regretted the delay in sending forward stores, but from information derived through the quartermaster at Yuma, he could but believe a large shipment of grain and other stores must have reached him before that time.

But none arrived, nor was there any excuse or apology offered for their non-arrival; but the claimant was kept under an expense from day to day equal to the expense of performance, in constant expectation of being called by the defendants to meet the obligations of his contract, until it expired by its own limitation.

I. The first question presented for consideration, under the general facts here stated, which are more at length set out in the findings heretofore filed, is in respect to the validity and scope of the contract. The defendants insist that the quartermaster had no authority to contract for the transportation of the quantity of stores mentioned in the contract, and that the words “ more or less,” used in the first clause, limit the number of pounds to be hauled to the quantity actually needed by the Government at Fort Whipple and Camp Lincoln.

The courtis unable to concur iu this proposition. The contract was made by an officer of the United States authorized by law to negotiate such contracts, and in the discharge of his duty he conformed with remarkable accuracy to all the formalities of the statute. Nothing is wanting to make it a valid agreement and binding on both parties.

The quantity of stores to be delivered is specifically mentioned in the contract, with the ¡daces from and to which they were to be transported, and the whole approved by the district, department, and division commanders. If too much was required, the claimant is not responsible for the mistake. It was not his error, for he had no discretion in the matter, and cannot be held in any way accountable for it.

But it is claimed, as the contract obliges the claimant to transport 4S6 tons, “ more or less,” to Fort Whipple, and 351 tons, more or less,” to Gamp Lincoln, the defendants fulfilled their part of the agreement when they furnished 10,453 pounds for Gamp Lincoln, and 149,016 pounds for Fort Whipple.

The qualifying words 11 more or less,” used in the contract, rae words of intention, and must be understood in their plain, ordinary, and popular sense. They have by usage no technical meaning, aud must always be so understood as to effectuate the immediateintention of the contracting parties. This intention is obvious from, the contract itself, and needs no resort to extraneous evidence to show it.

The contract, as shown in the clause hereinbefore incorporated, constitutes a dependent agreement, in which the obligation of tbe claimant to perform bis part of the engagement rests and depends wholly upon th e fulfillment of the defen dants’.promise. If the defendants had first delivered the stores in season to the claimant at Hardyville, he would have been bound to transport them to the points of destination named in the contract. But the performance of the obligation to deliver is a condition-precedent to the performance of the obligation to transport, and the non-performance of the former discharge d the claimant from all liability under the latter.

But the exact number of tons to be delivered and trans-porte d is qualified by the words “ more or less,” employed in the contract, and may be slightly varied by either party without infringing his obligatio n, or in any way defeating the actual intent and meaning of the contract. But the defendants had no more right to withhold one-half, one-third, fourth, or fifth of the number of tons mentioned, than the claimant had to refuse to transport the same quantities when offered.

To giv e the words u more or less,” or their equivalents, such an interpret ation 'would defeat every contract into which they may be inserted, and render ineffectual all attempts to provide against slight discrepancies which business or convenience may re quire.

If support is needed for the positions here assumed, it may be found in the following cases: Stebbins v. Eddy, (4 Mason’s. C. C. R., pp. 410, 418, and authorities cited;) Faure v. Martin, (3 Selden’ s N. Y. R., pp. 210, 215, 219;) Cross v. Eglin, (2 Barn. & Adol., p. 106;) Allen v. Cabot, (1 Allen’s Mass. R., p. 546, cited in 1 Parsons on Contracts, pp. 541, 542, note 3.)

Assuming tha t the contract is valid, and that its scope was liable to only a sligh t change by the qualified words 11 more or less,” it follows that the defendants were bound to furnish the whole number of tons m entioned in the contract at Hardy-ville in time for the claimant to deliver them at Fort Whipple and Camp Lincoln within the time specified in the contract, and their failure to do so constituted a breach, for which they are answerable in damages.

Doubtlessly, if the contract had been ■ carried out in good faith by both parti es, the number of tons specified might liavebeen slightly varied by either party without working a breach; but as the defendants only delivered 78J tons out of the whole 837 tons mentioned in the contract, they cannot, on account of their own default, claim an abatement in the damages under the words u more or less,” but must be held to the full measure of damages resulting from the breach of their expressed obligation. *

II. This brings us to the consideration of the rule by which the damag'es are to be measured. Few cases exactly similar to this in all their features have been found in the books, but the principle on which the damages' are to be estimated is abundantly recognized.

At the common law, the principle is to give a compensation which shall put the injured party in the same position in which he would have stood had he not been injured. And in modern times, says Parsons on Contracts, edition of 1806, volume 1, page 190, “ courts seek to apply to each case such rules as will carry out the universal principle, as far as may be, that the actual damages must measure the compensation given for it by law.”

The Supreme Court, following this principle in the case of the Philadelphia, Wilmington & Baltimore Railroad v. Howard, (13 How., p. 344,) after declaring that actual damages include the direct and actual loss sustained, conclude their •opinion by saying: “ We hold it to be a clear rule, that the gain or profit of which the contractor was'deprived by the refusal of the company to allow him to proceed with and complete the work w;as a proper subject of damages.”

Again, in Speed’s Case, (8 Wall., p. 77,) which went on appeal from this court, the Supreme Court, in laying down the rule of damages, say: “We do not believe that any safer rule, or one nearer to that supported by the general current of authorities, can be found than that adopted by the court, to wit, the difference- between the cost of doing the work and what claimants were to receive for it, making reasonable deduction for the less time engaged, and for release from, the care, trouble, risk,, and responsibility attending the full execution of the contract.”

However just and accurate this rule maybe in cases in which the contract has been put an end to, and the hope and expectation of full performance entirely cut off, it does not in all respects meet the facts of the case now under consideration.

In this case the defendants not only failed to perforin their part of the contract, but by their promises kept alive the hopes -and expectations of the claimant that they would comply with their obligation and require the fulfillment of his. The result was that the claimant, during the whole period of the contract, ,was kept in a constant state of expectation, ready, willing, and able to meet his engagements.

The expense and liability thus necessarily imposed upon him, • as shown by the proof, were nearly or quite equal to that which would have followed full performance.

The readiness and ability of the claimant to perform, in this case, is equivalent to actual performance; and in such cases the measure of damages is prima faoie the. contract price; but circumstances may be shown which will mitigate the damages. Here no attempt has been made to excuse the default of the defendants or to mitigate the damages, and we can but give the rule its full effect. (Masterton v. Mayor of Brooklyn, 7 Hill, p. 75.)

Assessing the damages on the basis of the contract price, the account stands as follows :

Stores to be carried from Hardyville to Fort Whipple,

486 tons, or 972,000 pounds, at 8£ cents per pound.. $82,620 Stores to be carried from Hardyville to Gamp Lincoln,

351 tons, or 702,000 pounds, at 12-J¡ cents per pound. 89,505

Total.,.-.172,125

By amount received. 14,110

158,015

Judgment will therefore be entered in ftivor of the claimant for $158,015 in United States gold coin.  