
    MASON’S CASE. William Mason v. The United States.
    
      On the Proofs.
    
    
      The Chief of Ordnance, by direction of the Secretara of War, offers to the claimant an order for 100,000 Springfield muskets, if they he manufactured in the claimant’s own establishment; the claimant accepts the offer, and proceeds with the manufacture of the muskets. The “-Holt-Owen commission” is next appointed by the Secretary of War to investigate claims and contracts respecting ordnance, arms, and ammunition. They decide, while the claimant is still engaged in the manufacture of his arms, that his contract be confirmed to the extent of 30,000 muskets, provided that he give security and execute a formal contract. The claimant objects and remonstrates, but executes the new contract, and gives the security before completing or tendering the arms xmder the original agreement. Subsecpiently he completes and delivers the 30,000 muskets, and then brings suit against the defendants for abrogating the first contract.
    
    Where a contract for the manufacture and sale of goods is not yet performed by the manufacturer, and the purchaser proposes that it be modified, or else that he will renounce it, the contractor may stand upon his legal rights, and recover the full measure of his legal redress, or he may accept the alternative, and execute.a modified agreement; but, if he modify the agreement and act upon it, he cannot bring his action against the purchaser for abrogating the original contract. The case differs from Samsdell 4" Smith, (2 C. Cls. R., p. 508,) where the contractor had performed, or offered to perform, and the contract was no longer execu-tory. There the attempt of the Commission to force upon him a reduction of the price was but an agreement to take a part of the debt for the whole — a nudum pactum, and void.
    
      Mr. Thomas Wilson for the claimant:
    This action is brought in this court upon original petition, and is for the sum of $500,000 damages for the abrogation and annulment of a contract made January 7,1802, and accepted January 20, for the manufacture of 100,000 muskets of the Springfield pattern.
    In the month of January the Secretary of War made the following order to the Chief of Ordnance:
    “War Department,
    “ Washington, January 6,1862.
    
      u Please make order in favor of William Mason, of Taunton, Massachusetts, for 50,000 Springfield rifled muskets, on the same terms and deliveries as set forth in recent contracts for like numbers. Mr. Mason has an extensive establishment, devoted to machine purposes, which he proposes to convert into an armory, and believes he can deliver 100,000 stand of arms within the usual time fixed for delivery of 50,000. As we shall need the 100,000 guns, they may be received, if manufactured by him at his own establishment in Taunton, thus securing an efficient armory to furnish arms for the government.
    “ By order of the Secretary.
    “ Respectfully, &c.,
    “THOMAS A. SCOTT, ■
    
      “Assistant Secretary.
    
    “General Ripley,
    “ Chief of OrSnianceP
    
    On the next day the Chief of Ordnance, General Ripley, made the following offer to Mr. Mason:
    “Ordnance Oprice,
    “ Washington, January 7,1862.
    “ Sir: By direction of the Secretary of War, I offer you an order for fifty thousand (50,000) muskets, with appendages, of the Springfield pattern, on the following terms and conditions, viz: These arms are tó be forwarded, with the regular appendages, and are to be, in all respects, identical with the standard rifle musket made at the United States armory at Springfield, Massachusetts, and are to interchange with it and with each other in all their parts. They are to be subject to inspection by United States inspectors, in the same manner that the Springfield arms are inspected, and none are to be received or paid for but such as pass inspection and are approved by the ' United States inspectors. These fifty thousand (50,000) arms and appendages are to be delivered at your armory as follows, viz: Not less than one thousand (1,000) in each of the months of July, August, and September, 1862; not less than two thousand (2,000) in each of the months of October and November, 1862; not less than three thousand (3,000) in December, 1862; and not less than four thousand (4,000) per month thereafter until the entire fifty thousand shall have been delivered; and you are to have the right to deliver more rapidly than according to the number of arms before specified, if you can do so. In the case of any failure to make deliveries to the extent and at tlie times before specified, you are to forfeit tlie right to deliver whatever number may be found deficient for the month in which the failure occurs. All the arms and appendages are to be delivered by you, and this order, if transferred to another party, is to be thereby forfeited. Payments are to be made in such funds as the Treasury Department may provide for each delivery, on certificates of inspection and receipt by the United States inspectors, at tlie rate of twenty dollars ($20) for each arm, including appendages. All these arms and appendages are to be packed by you in cases of the regular pattern, with twenty (20) muskets and appendages in each box, for which a fair price, to be determined by the inspector, will be allowed.
    “Please signify, in writing, your acceptance or non-acceptance of this order, on the terms and conditions before stated herein.
    “ Respectfully, your obedient servant,
    “JAS. W. RIPLEY,
    “ Brevet Brigadier General.
    
    “ W. Mason, Esq.,
    “ Taunton, Massachusetts.
    
    “P. S. — It is further directed by the War Department that double the number of arms and appendages, viz, one hundred thousand, will be received, if manufactured at your own establishment in Taunton, Massachusetts, and delivered within the times before specified for' the delivery of the fifty thousand arms and appendages, all the other terms and conditions of this order remaining unchanged for the additional fifty thousand.
    “ J. W. R.”
    Which Mr. Mason accepted on the 20th of January, as-follows:
    “ Taunton, January 20,1862.
    “ Ser : I have the honor to acknowledge the receipt of your ■order for muskets, dated January 7, 1862. In reply, I accept the order, and hope to be able to execute it so much to your satisfaction as to merit a more extensive- contract.
    “ I am, sir, respectfully, jmur obedient servant,
    “WILLIAM MASON.
    “ General JAMES W. Ripley,
    “ Ordnance Office, Washington, JD. O.”
    
    
      In January, 1862, Mr. Cameron resigned bis position as Secretary of War, and Mr. Stanton was appointed. He immediately issued orders that every person having contracts for furnishing ordnance should report the same to him. This Mr. Mason did, as follows:
    “ Taunton, Massachusetts, February 7,1862.
    “ Sir : In compliance with your orders, I have the honor to transmit herewith á copy of an order issued to me from the War Department, through the Ordnance Office, for Springfield muskets.
    “ I accepted this order, and am proceeding to manufacture the muskets, to the best of my abilities.
    aI have purchased material and a part of the machinery, and have the remainder in such a forward state of completion that I anticipate being able to deliver muskets as early as many of the parties whose contracts are dated five or sis months anterior to mine.
    
      “ I am, sir, respectfully, your obedient servant,
    
      “ WILLIAM MASON.
    “ Hon. Edwin M. Stanton,
    “ Secretary of War, Washington, D. GP
    
    On the 13th of March, 1862, the Holt-0 wen commission was appointed “ to audit and adjust all contracts, orders, and claims on the War Department in respect to ordnance, arms, and ammunition, their decision to be final and conclusive, as respects this department, on all questions touching the validity # ■ * * 0f sueft contracts,” &c.
    On May 30 this commission abrogated the aforesaid contract, and reduced the same to 30,000 muskets, and refused to allow or permit Mr. Mason to deliver more than that number. Notice of this abrogation was conveyed to Mr. Mason by the Chief of Ordnance, against which he protested, but which was again, on the 10th of June, reiterated by the commission.
    Mr. Mason proceeded to manufacture, and actually delivered these 30,000 guns; they were received, and he has been paid in full for them, and no claim is made in that behalf.
    For the damages resulting to him by the abrogation of this contract, and the refusal to receive the 100,000 guns, as specified in the original contract, this suit is brought. His claim for damages is made up of two items: first, the actual loss accruing by reason of tlie abrogation of the contract; and, second, the loss of those profits which would have accrued to him had it not been abrogated.
    In such cases the law is plain that the plaintiff is entitled to the loss resulting to him by reason of its abrogation, and in this damage the loss of profits is an element of calculation. (B. B. Go. v. Howard, 13 Howard, 307; Moore and Boiee v. United States, 1 C. Gis. R, 90; •Theodore Adams v. United States, id., 106; Floyd and Speed v. United States, 2 0. Ols.'R, 441; same case Supreme Court, 8 Wall, 77.)
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    The correspondence between the War Department and the claimant, as stated by the claimant’s counsel, is not questioned.
    On the 29th day of January, 1862, the following order was issued from the Department of War :
    “War Department,
    “ Washington Oity, January 29, 1862.
    “ The urgent necessity that required the immediate purchase of arms, clothing, and other military supxilies from foreign countries having ceased, it is ordered:
    “ 1st. That no further contracts be made by this department, or any bureau thereof, for any article of foreign manufacture, that can be produced or manufactured in the United States. '
    “ 2d. All outstanding orders, agencies, authorities, or licenses for the purchase of arms, clothing, or anything else in foreign countries, or of foreign manufacture, for this department are hereby revoked and annulled.
    “3d. All persons claiming to have any contract, bargain, agreement, order, warrant, license, or authority, of whatsoever nature, from this department, or any bureau thereof, for furnishing arms, clothing, equipment, or anything else to the United States, are required, within fifteen days from this date, to give written notice of such contract and its purport, with a statement in writing of what has been done under it, and to file a copy thereof with the Secretary of War.
    
      “ 4th. All contracts, orders, and agreements for army supplies should be in writing, and signed by the contracting parties, and the original, or a copy thereof, filed, according to paragraph 1049 of the Regulations, with the head of the proper bureau.
    “It is seldom that any necessity can prevent a contract from being reduced to writing, and, even when made by telegraph, its terms can be speedily written and signed; and every claim founded upon any pretended contract, bargain, agreement, order, warrant, or license now outstanding, of which notice and a copy is not filed, in'accordance with this order, within the period mentioned, shall be deemed and held to be prima facie fraudulent and void; and no claim thereon will be allowed or paid by this department, unless upon full and satisfactory proof of its validity.
    “EDWIN M. STANTON,
    “ Secretary of War.”
    
    This order was complied with by the claimant on the 7th day of February, 1862, upon which day he addressed the following communication to the Secretary of War:
    “Taunton, Massachusetts, February 7,1862.
    Sir : In compliance with your orders, I have the honor to transmit herewith a copy of an order issued to me from, the War Department, through the Ordnance Office, for Springfield muskets.
    “ I accepted this order, and am proceeding to manufacture the muskets to the best of my abilities.
    “ I have purchased material and a part of the machinery, and have the remainder in such a forward state of completion that I anticipate being able to deliver muskets as early as many of the parties whose contracts are dated five or six months anterior to mine.
    “ I am, sir, respectfully, your obedient servant,
    “ WILLIAM MASON.
    “Eton. Edwin M. Stanton,
    “ Secretary of War, Washington, D. CP
    
    On the 13th day of March, 1862, the Secretary of War issued the following order:
    “WAR. DEPARTMENT,
    “ Washington City, D. O., March 13,1862.
    “ Ordered, That the honorable Joseph Holt and the honorable Eobert Dale Owen be, and tliey are hereby, appointed a special commission to audit and adjust all contracts, orders, and claims on the War Department in respect to ordnance, arms, and ammunition, their decision to be final and conclusive, as respects this department, on' all questions touching the validity, execution, and sums due or to become due -upon such contract, and upon all other questions arising between contractors and the government upon such contracts.
    “2d. The said commission will proceed forthwith to investigate all claims and contracts in respect to ordnance, arms, and ammunition in the War Department, or pending settlement and final payment, and adjudicate the same. All persons interested in such contracts may appear in person, but not by attorney, before said commissioners, and be heard respecting their claims at such time and place as the commissioners shall appoint. The Chief of Ordnance and all other officers in the department will furnish such books and papers as the -commissioners may require.
    “Major Hagner, of the Ordnance Department, is specially assigned to aid and assist the commissioners in their investigations. All claims that they may award in favor of shall be promptly paid. No application will be entertained by the Department respecting any claim or contract which they shall adjudge to be invalid.
    “ 3d. If in their investigation they shall find reason to believe that any agent or employe of the War-Department was directly or indirectly interested in any contract for ordnance, arms, or ammunition, or received any consideration for its procurement, they shall give notice thereof to the claimant, and proceed to investigate and determine the fact, taking such testimony as they may deem proper; and, if the fact of such interest be established, it shall be good cause for adjudging the claim to be fraudulent.
    “EDWIN M. STANTON,
    “ Secretary of War.”
    
    The papers relating to the claimant’s order were transmitted to the said special commission by General James W. Eiploy; and afterward, to wit, on the 4th day of April, 1862, the claimant appeared before the said commission and made a statement in regard to his case.
    
      On tbe 15tb day of May, 1862, tbe said commission reported upon tbe ease of tbe claimant, and made tbe following decision therein:
    “ It is therefore decided that tbe order to Mr. Mason be confirmed, subject to all its terms, to tbe extent of 30,000 muskets, upon condition that be shall, within fifteen days after notice of this decision, execute bond, with good and sufficient sureties, in tbe form and with the stipulations prescribed by law and tbe regulations for tbe performance of tbe contract as thus modified, resulting from said order and acceptance; and, upon bis failure or refusal to execute such bond, then tbe said order shall be declared annulled and of no effect.”
    This decision having been communicated to the claimant, be, by letter addressed to tbe commissioners," dated May 28,1862, made objection to it, and asked a revision of tbe award, stating that be was willing to have bis order reduced to 75,000 muskets. This was considered by the commissioners, and on the 10th day of June, 1862, they “ decided that tbe number of arms assigned to Mr. Mason is as large as tbe commission think it proper at this time to assign to one contractor at tbe price of $20.”
    On tbe 25th day of June, 1862, the claimant executed a contract with General James W. Ripley, Chief of Ordnance, for 30,000 muskets, in accordance with the decision of tbe special commission as aforesaid. By the terms of tbe said contract, tbe claimant was to deliver tbe 30,000 arms and appendages “ at tbe armory where made, as follows, viz: Not less than six hundred in each of tbe months of July, August, and September, 1862;. not less than twelve hundred in each of tbe months of October and November, 1862; not less than eighteen hundred in December, 1862; and not less than twenty-four hundred per month thereafter until tbe entire thirty thousand shall have been delivered; and tbe party of tbe first part is to have tbe right to deliver more rapidly than according to tbe number of arms before specified, if be can do so. In case of any failure to make deliveries to tbe extent and within tbe times before specified, tbe said party is to forfeit tbe right to deliver whatever number may be deficient in tbe specified number for tbe month in which tbe failure occurs.”
    On tbe 27tb day of July, 1863, tbe claimant addressed a letter to tbe Chief of Ordnance, stating that “ after many vexa- • tious delays” he bad “succeeded in producing first-quality Spring-field muskets,” and asking- that time for making the deliveries under Ms contract be extended for ten months, which extension was granted.
    The contract, as so modified, was filled, and the claimant was paid for the 30,000 muskets, according to the terms of the contract.
    I. The offer of the order of January 7,1862, by General Ripley, and its acceptance by the claimant, did not constitute a valid contract.
    
      (a.) There was no such mutuality between the parties as would constitute a contract. If there was any agreement by the Government, it was simply to pay $20 each for such number of guns as might be delivered. There was no contract which bound the claimant to furnish the guns.
    If the claimant had neglected or refused to deliver any guns, • he would have incurred no liability whatever.
    That there must be entire mutuality in a contract, consisting of a “promise for a promise,” is a proposition too plain for argu- ' ment.
    (5.) The pretended contract was not entered into according to law, but contrary to law. (Act of April 21, 1808, § 3, 2 Stat. L., p. 4S1; Act of Ma/roli 2, 1861, § 10,12 Stat. L., p. 220.)
    By this latter act it is provided that all i>urchases and contracts for supplies, when the public exigencies do not require immediate delivery, shall be made by advertising for proposals, and, when immediate delivery is required, that the articles may be procured by open purchase, or contract, at the places and, in the manner in which such articles are 'usually bought and sold between individuals.
    
    Had the claimant actually furnished the guns before any action by the special commission, no question as to the existence of a public exigency could have affected him; but he had not furnished them, nor any of them. By the terms of the order, he was not required to furnish any for six months. If immediate delivery were required, it was certainly not contemplated by the parties. There was no contract for immediate delivery — no contract that brought the case within the exception of the statute to the general provision for advertising for proposals.
    That a contract entered into without conforming to these statutes may, wbilo it remains executory, be rescinded. (See 6 Opinions, p. 408; also, Henderson's Case, 4 O. Cls., p. 75.)
    II. All matters of difference between the Government and tlie claimant in respect to the subject-matter of this suit have been finally determined and settled. (The United States v. Adams, 7 Wallace, p. 463; also, Smith's Case. 5 0. Cls., p. 496.)
    The claimant accepted the proposition of the special commission to substitute a contract for 30,000 muskets for the order which he held, and, in legal intendment, this act of the claimant -was voluntary. It does not lie with him now to say that this was not his intention. If he did not intend this, he intended to deceive the special commission and the War Department ; he intended a fraud.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover §500,000 for non-performance on the part of the defendants, under their agreement for the purchase of 100,000 muskets.

On the 7th January, 1862, the Chief of Ordnance, by direction of the Secretary of War, offered to the claimant an order for 100,000 Springfield rifled muskets, at §20 apiece, to be delivered at various specified times, beginning with the month of July, 1862. The claimant, on the 20th of January, accepted the offer.

This agreement was sought by the United States. A leading object in that early stage of the war -was to acquire, in the extensive machine works of the claimaut, “an efficient armory to furnish arms for the government.”

“Mr. Mason,” as appears from the evidence, “had been engaged in manufacturing cotton machinery and locomotives principally — of cotton machinery since 1842, and of locomotives since 1852. At the breaking out of the war his works were extensive, having, in 1861 and 1862, about five hundred hands; at this date he employed seven hundred' hands. His works extended over, in 1862, six or seven acres, and inclosed about .thirty buildings; at that time he had invested iu his works some four or five hundred thousand dollars. His manufactures amounted in I860 to §381,000, in 1881 to §400,000, in 1882 to §340,000, in 1863 to §600,000, in 1864 to §740,000.”

Accordingly it was inserted in a postscript to the offer that, instead of 50,000 muskets, as originally proposed in the body of the offer, “ 100,000 will be received, if manufactured in your oten establishment in Taunton, Massachusetts P

The claimant proceeded “to manufacture and purchase the necessary tools and machinery,” making expenditures and incurring liabilities to the amount of nearly $800,000, of which $75,000 were for tools and machinery, and $500,000 for materials to be used in manufacturing the guns.

On the 13th of March, 1802, the Secretary of War appointed the Holt-Owen commission, “to investigate all claims ancl contracts in respect to ordnance, arms, and ammunition in the War Department, and adjudicate the sameP

On the 15th of May, 1862, the Holt-Owen commission decided “ that the order to Mr. Mason be confirmed, subject to all its terms, to the extent of 30,000 muskets, upon condition that he shall, within fifteen days after notice of this decision, execute bond, with good and sufficient sureties,n &c., “for the performance of the contract as thus modified.” The commission also decided that upon his failure or refusal to execute such bond, “ the said order shall be declared annulled and of no effectP

On the 20th of June the claimant wrote to the Chief of Ordnance:

“X have executed the quadruplicate copies of contract and bond for 30,000 Springfield muskets, and transmit the same to be filed in your officeP

This letter was not written, and the contract and bonds which it inclosed were not executed, until after much remonstrance and many appeals to the justice of the government; but this letter ends (as the order of the Holt-Owen commission begins) those transactions between the parties which constitute either a violation or a modification of their original agreement. On the part of the claimant it is said, “ The whole case resolves itself into this: That a contract was made with the claimant by the Chief of Ordnance, under the order of the Secretary of War, for the manufacture of 100,000 muskets, and that afterward a future Secretary of War, whether with the advice of this commission or not can make no difference, abrogated and set aside that contract, and refused to allow it to be performed only to the extent of the number of 30,000 muskets.”

On the part of the defendants .it- is said: “The claimant accepted tbe proposition of tbe special commission to substitute a contract for 30,000 muskets for the order which he held; and, in legal intendment, this act of the claimant was voluntary. It does not lie with him now to say that this was not his intention.”

Laying aside the other points made by the defendants’ counsel, we rest our decision upon this one.

The contract was wholly unperformed on the part of the claimant. The defendants, through the Holt-Owen commission, proposed to the claimant one of two things: that it should be mutually “modified,” or that'it should be by them declared annulled. If the contract was valid, the commission had no power to annul it, and the claimant might have stood upon his legal rights, and have recovered the full measure of his legal redress, as did the claimant in Stevens’s Case. (2 O. Ols. R., p. 95.)

Instead of so doing, the claimant elected to accept the alternative and modify the agreement.

That modified agreement has been acted upon and executed by both parties. The defendants did not annul the original agreement; they merely gave notice that they would do so in a certain contingency. That contingency never happened, and its happening the claimant himself prevented. The original agreement was never, in fact, violated by the one party, nor performed by the other.

The case is entirely different from that of Bamsdell dr Smith, (2 O. Cls. R., p. 508,) for there .the claimant had performed, or offered to perform; his contract was no longer executory on his part, but executed. His legal rights were fully established in law; he had a complete and perfect cause of action. The arbitrary attempt of the Holt-Owen commission to force upon him a reduction of the price was but an agreement to take a part of the debt for the whole, when the whole was due — a nudum pactum, and of no legal" obligation.

The case at bar is a “ hard case,” and the court reaches its conclusion with lingering regret. The claimant made great expenditures on the faith of an agreeinent with his government, and at a time when it was believed that his expenditures would redound greatly to his country’s good. The work which he did was well and honestly done; the losses which he suffered remain wholly unrequited.; the officers of the government induced bim to enter into tbe agreement, and tbe officers of tbe government prevented its performance. Tbe contract was not of bis seeking, and tbe losses under it are not to be ascribed to bis fault; yet it is a case where tbe claimant’s own act precludes a further consideration on tbe merits.

Tbe judgment of tbe court is that tbe petition be dismissed.

Drake, Cb. J., did not sit in this case, which was- tried before be took bis seat upon tbe bench.

Peck, J., dissented, on tbe ground that tbe defendants exercised duress, in compelling tbe claimant to submit to a modification of bis original contract.  