
    GIBBONS’ CASE. Francis A. Gibbons v. The United States.
    
      On the Proofs.
    
    
      The chief commissary of a department, advertises for.proposals for “ the hides, tallow, lioof, horns, &c., of all government cattle slaughtered within the limits of the Department of Virginia and North Carolina,” daring the ensuing six months. The claimant bids, and his proposal is accepted, but he refuses to execute the contract sent to him, because it omits the “ <fc.v of the advertisement, which he insists includes the whole of the “fifth quarter,” as known to batchers. The commissary replies in writing, conceding all the articles of the fifth quarter, save three, specified. The claimant executes the contract. Within a few days the department is divided, North Carolina being transferred to another. The qlaimanl demands of two commissaries in North Carolina all the articles agreed upon. The one refuses to furnish all the articles, the other refuses to furnish any; both insist that the division of the department exempts them from the operation of the contract. The claimant neglects to seek the 
      
      offal of the slaughtered cattle at other points in North Carolina, as expressly required by the contractIn Virginia he promptly apiplies to the proper commissary, who designates two points as alone accessible at that time. The claimant takes all from those points, but does not again apply to the commissary as to others, nor does the commissary notify him that other points have become accessible. The claimant leaves in possession of a commissary a quantity of hides, but it is not shown that they or their proceeds were ever used in the government service. The claimant gives a draft for the payment of hides, but stops the payment thereof before presentation. Be seeks to recover §100,500 for the defendants’ breach of contract in refusing the hides in North Carolina, and in not famishing all the specified articles. The defendants seek to recover, by ivay of counter-claim, §36,642 for the unpaid draft, and for the claimant’s neglect to seek the hides at all points ivhere cattle were slaughtered.
    
    I. A commissary's advertisement for proposals may be admitted in evidence for construction of a written contract founded thereon, though not referring to it in terms, hut does not enlarge control or change the express terms of the contract, and is to be considered as merged therein.
    II. Where a party refuses to execute a written contract because it does not embrace all the articles which he understood to be included in his proposals, and the defendant’s commissary writes in reply that all such articles, save three specified, are conceded to be covered by the contract, and the Commissary General being advised of both the contract and the letter, and having' power t,o terminate the agreement therein given, does not do so, the defendants are estopped from objecting to the letter, and the contract stands as if all the articles, save the three, had been included therein by express words.
    III. Where the chief commissary of a military department intime of war contracts to sell the hides of all government cattle slaughtered therein during specified periods, and the contractor agrees to seek and be responsible for all, and the department shortly thereafter is divided, so that a part passes to another military dex^artment, the contract to that extent expires, the defendants relieve the contractor from seeking the hides in the part set off, and the commissaries therein are not subject to the operation of tho contract.. But if one proceeds thereunder, he adopts all its x>rovisions, and the defendants are liable if he neglects to furnish all the articles sold.
    IV. Where a contract requires the contractor to seek the hides,- &c., of all government cattle slaughtered in a military department, holding him responsible for the same, and the contractor at the time specified ap>-plies to the chief commissary for instruction, who designates two promts as alone accessible, at which the contractor duly collects the hides, it is a sufficient compliance with the contract, and the duty rests on the defendants to notify the contractor of any now xmints at which they desire to have the hides collected.
    V. Where a contractor leaves in the hands of a commissary hides, &c., but fails to show that they were ever used in the government service, or that the government ever received any benefit therefrom, the defend- - ants are not liable therefor.
    
      
      Mr. Orville Sorwitz (with, whom was Mr. A. L. Merriman) for the claimant:
    On the 22d November, 1864, Lieutenant Colonel M. P. Small, Commissary of subsistence of the Department of Virginia and North Carolina, issued an advertisement, inviting proposals for the “ hides, tallow, hoofs, horns, &c.,” of all government cattle slaughtered within the limits of said department, to be delivered at Fort Monroe, Norfolk, in the State of Virginia, and at New-•bern, in the State-of North Carolina.
    Claimant filed his proposal as follows:'
    “BALTIMORE, December 1,1864.
    “ I, Francis A. Gibbons, of the State of Maryland, and city of' Baltimore, offer per head, for all the hides, tallow, horns, and hoofs of all government cattle killed within the limits of the Department of Virginia and North Carolina, at Newbern, $11 40, subject to all the conditions of the advertisement herewith appended.
    « FBANCIS A. GIBBONS.”
    The proposal of claimant was accepted, and the contract was drawn up and sent to the claimant for signature. In reading the contract, claimant saw that the character “ &c.” which was contained in the advertisement, and to which his proposal referred, was omitted. He therefore, before signing, wrote to the commissary of subsistence for an explanation, and received answer: “The contractor of this department has never received the liver, heart, and'chucks, but the other articles of the fifth quarter have been turned over' to him. You asked questions enough on this subject to have been thoroughly posted. Other bidders were not misled by the ‘ &o.7 alluded to in your letter as you were.”
    Upon receipt of this, claimant executed the contract, which provided for the sale to the claimant of the hides, tallow, hoofs, and horns, of all government cattle (not captured cattle) slaughtered within the limits of the Department of Virginia • and North Carolina, at $11 40 per head. This contract was to commence on 1st January, 1865, and to be in force six months, or such less time as the Commissary General might direct.
    Directly after the contract was executed, claimant proceeded ■••with -the .fulfilment thereof, bringing men to perform the different species of labor required, and proceeded to tbe department to receive and take proper care of tbe articles to be received under tbe contract:
    Tbe evidence shows that claimant did all in bis power to ful-fil tbe- contract, but tbat be was met witb no corresponding willingness on tbe part of tbe officers of tbe army, wbo not only refused to deliver tbe articles contracted for, but, because be insisted upon bis rights under tbe contract, thrust him into confinement, and finally sent him out of tbe lines, with instructions not to return. This was a clear violation of the contract on tbe part of tbe government; and, therefore, tbe only question remaining is tbe measure and amount of damages.
    Tbe official report of tbe Commissary General shows tbat 4,800 government cattle were slaughtered in tbe Military Department of Yirginia and North Carolina during the term of this contract.
    Of this number, claimant succeeded in procuring tbe bides, portion of tbe tallow, and portion of the hoofs and horns, of between 800 and 900 cattle — say 900.
    Tbe first question arising is upon tbe true construction of tbe contract, whether claimant was entitled to receive, under bis, contract witb tbe Government, any more than tbe bides, hoofs, horns, and tallow of such cattle. Tbe advertisement was for proposals for the “ bides, tallow, hoofs, horns, &c.,” of ail tbe cattle slaughtered, &c. This expression is proven to mean what is termed by tbe butchers tbe “fifth quarter/7 tbe entire animal, except tbe beef. Tbe proposal is for tbe “ bides, tallow, hoofs, and horns,77 referring to tbe advertisement. Tbe contract was drawn up leaving out tbe character “ etc.77- Tbe parties, however, before tbe actual signing of tbe contract, settled upon tbe precise parts of tbe cattle which claimant was entitled to receive. This may always be done, and although parol evidence may not be admissible to explain or vary contracts in writing, yet any writing made contemporaneously witb tbe contract may be taken as part of the agreement, and more especially when, as in this case, such writing is explanatory of terms used in tbe contract. (Sunt v. Livermore, 5 Pick., 395; 3 Phil. Ev., note 958, p. 1420, and cases therein cited; 2 Parsons on Contracts, 66.)
    Tbe next point of defence is, tbat tbe Department of Yir-ginia and. North Carolina became extinct before the contract expired.
    The claimant entered into a stringent contract, binding himself, under a heavy penalty, to purchase all the hides, &c., of all cattle (not captured) slaughtered in the Department of Virginia and North Carolina, for the period of six months. This department, at the time the contract was made, embraced certain territory as well defined as are the States themselves, and although the President or Secretary of War might possibly change the name, neither could change the territory.
    Mr. Alexander Johnston (with whom ivas the Assistant Attorney General) for the defendants:
    At the time this contract was made, the Department of Virginia and North Carolina included Fort Monroe and sixty miles around the same, with that part of Virginia south of the Eap-pahannock Eiver, and east of the railroad from Fredericksburg to Eichmond, Petersburg, and Woklon, Northampton and Ac-comac Counties, and the State of North Carolina. On the 12th of January, 1865, the department was discontinued by the State of North Carolina being transferred to the Department of the South.
    Early in January, 1865, the claimant made arrangements for carrying out his contract at two points — FortMagruder, in Vir- • ginia, and Newbern, North Carolina. At the latter place he demanded the head, tongue, tripe, and tail, in addition to the hides, tallow, hoofs, and horns, claiming that this was the understanding with Colonel Small when the contract was entered into. Captain. Palmer, the commissary in charge at Newbern, refused to deliver anything more than the contract called for. Claimant then wrote a lettér to Colonel Small in regard to the matter j and Colonel Small, on the 16th January, 1865, replied to him, stating that he (claimant) was “ entitled to receive all the articles of the fifth quarter, except the liver, heart, and chucks.”
    Captain Palmer refused to regard this construction of the contract, because Colonel Small “ had nothing more to do with him in that department.”
    The claimant also went to Wilmington in March to look after his contract, but the commissary there, not being subordinate to Colonel Small, refused to recognize him as having any rights at that post under his contract.
    
      It is claimed that the United States violated the contract by officers of the army refusing to deliver the articles contracted for, and claim is made (in the brief for claimant) for the value of the hides, tallow, hoofs, horns, heads, tongues, tails, and tripe of 3,900 head of eattle slaughtered in the Department of Virginia and North Carolina from January 1 to July 1, 1865, this being the number from which none of these articles were collected by the claimant.
    I. The contract made and signed by the parties must be interpreted as written.
    II. Colonel Small had no authority to make a contract of this character, which would be effective beyond the limits of the command of the general commanding the department of which he was chief commissary. When the State of North Carolina was transferred to the Department of the South all jurisdiction of Colonel Small in that State ceased.
    III. The failure of the claimant to collect the hides, tallow, hoofs, and horns of the cattle slaughtered, from whatever cause, raises no liability upon the part of the defendants to remunerate him for any loss in the premises. He became, by the terms of his contract, liable to the United States “ for all the hides, fallow, hoofs, and horns coming from every animal slaughtered within the limits of the department.” If he shows that he used “all due exertion, diligence, and care” to obtain them, his liability will be removed, but that is all.
    The defendants seek to recover from the claimant the sum of $36,642 58, as follows :
    For the value of the hides, tallow, horns, and hoofs of 2,975 head of cattle, slaughtered within the limits of that part of' the Department of Virginia and North Carolina not transferred to the Department of the South, at $11 40 per head...•. $33, 915 00
    For the amount of a certain draft drawn by claimant upon Lapham <fe Clarendon in favor of Captain William L, Palmer, commissary of subsistence, dated June 2) 1865, which draft is owned and held by the defendants, and remains wholly unpaid.. 2, 727 58
    • 36, 642 58
    
      The first of' these items is founded upon the contract involved in this case. The second item consists of a draft given in payment of articles received under the said contract, payment of which was refused by the drawees.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover damages for the violation by the defendants of their contract for the sale of the hides, hoofs, horns, and tallow of all cattle slaughtered by them in the late military Department of Virginia and North Carolina. The claimant’s damages are laid at $100,500. The defendants on their side set up a counter-claim, based on the nonperformance of the contractor, and lay their damages thereon at $33,915. They also set up a draft given to them by the claimant for $2,727 58, and demand judgment for $36,642 58.

The case being exceedingly involved, and the court being-divided on some of its most important points, we reduce the decision to the form of ultimate findings and conclusions, which may best enable the parties, if it be desired, to have the case reviewed by the Supreme Court.

I. Lieutenant Colonel Small, commissary of subsistence for the military department of Virginia and North Carolina, advertised in December, 1864, for proposals for the “hides, tallow, hoofs, horns, cfee., of all government cattle slaughtered within the limits of the department,” as set forth in the petition, being Exhibit A,- annexed thereto. The claimant sent in a proposal, which was accepted by the commissary. A contract was drawn up by the commissary, bearing date the 10th December, 1864, (being Exhibit B, annexed to the petition,) and sent to the claimant to be executed. The contract thus tendered varied from the advertisement in several particulars, and made no reference to it. The claimant refused to execute the instrument, and wrote to the commissary, demanding several explanations, and among others, as to the “ &e.f of the advertisement, which was omitted from the contract, and he insisted that when bidding he understood the “ &cP to refer to and include all of what is known among butchers as the “fifth qua/rterf which term is understood to embrace the u hide, tallow, hoofs, horns, Iwer, heart, head, tongue, tripe, and tailP The contract tendered to the claimant specified as the subj ect of the agreement only the first four of these items. The commissary replied in writing, on the 14th December, 1864: “ The contractor in this department has never received the liver, heart, and chucks, but the other .articles of the fifth quarters have been turned over to him.” On the faith of this assurance, the claimant then executed the contract, but no written alteration was inserted in the body thereof. The commissary subsequently returned to the Commissary General a copy of his letter to the claimant, being Exhibit C, annexed to the petition.

And upon these facts the court, as a conclusion of law, decides that the advertisement for proposals may be admitted in evidence for the better construction of the contract, but that it does not enlarge, control, or change the express terms of the contract, and is to be considered as merged in it.

And the court also decides as a conclusion of law that the letter of the commissary, written after the claimant had refused to execute the instrument, and. as an inducement for him so to do, is not open to the ordinary objection of parol evidence offered to change the terms of a written contract, but that, on the contrary, it is admissible, either as a written reformation of the instrument before execution, or as an agreed construction to be given to it;. and the claimant having executed the contract upon the faith of it, and the Commissary General being-apprised of the letter, and having power to terminate the contract therein given at any time, and not having done so, the defendants are estopped from objecting to the letter, and from denying the construction which it gives to the agreement.

And, also, that the contract thus reformed stands as if the parties by exjn-ess words had included therein all the articles of the fifth quarter, except the liver, heart, and chucks.

II. At the time this contract was entered into the Department of Virginia and North Carolina included Fort Monroe, and sixty miles around the same, with that part of Virginia south of the Rappahannock River, and east of the railroad from Fredericksburg to Richmond, Petersburg, and Weldon, Northampton and Accomae Counties, and the State of North Carolina. On. the 12th of January, 1865, the department was divided by the State of North Carolina being transferred to the Department of the South. The Department of Virginia remained, and Lieutenant Colonel Small continued to be the chief commissary thereof. The claimant, on the 1st January, 1865, the day when the contract went into operation, as provided by the second article thereof, was ready to perform the obligations thereof at Newbern, in North Carolina, but he was not ready to perform at any other place where cattle were slaughtered in that State, and did not offer to do so, except that on the 10th March, 1865, he demanded the offal óf the cattle slaughtered at Wilmington. The defendants’ commissary at Wilmington refused to deliver the same. But the commissary at Newbern did furnish to the claimant the offal of the cattle slaughtered at that place, both before and subsequent to the 12th January, 1865, notwithstanding the division of the department.

And upon these facts the court, as a conclusion of law, decides that under the provision of the contract, which provides for the sale of the “ hides, tallow, hoofs, and horns of all government cattle (not captured cattle) slaughtered within the limits of the Department of Virginia and North Carolina,” the claimant was not entitled to the offal of the cattle slaughtered in North Carolina after that State had been transferred to the Department of the South. And 'the court also decides that the claimant was, at the same time, by the transference of the said State, released from all obligations of his contract, so far as they extended to the government cattle slaughtered therein.

III. The commissary at Newbern furnished to the claimant, on and after the 1st January, 1865, and during the continuance of the period specified in the contract, the hides, tallow, hoofs, and horns of all government cattle slaughtered at Newbern, and he continued to deliver the samé notwithstanding the division of the Department of Virginia and North Carolina. The claimant demanded of him the remaining articles contracted for, viz, the head, tongue, tripe, and tail, and produced before the commissary sufficient evidence of the contract as reformed by Lieutenant Colonel Small before execution as aforesaid. But the commissary refused to deliver such articles to the claimant both before and after the division of the department. The cattle there slaughtered were 720, and the value of the parts withheld was $1 50 per head, the aggregate value being $1,080.

And upon these facts the court, as a conclusion of law, decides that the commissary at Newbern, having elected to continue the contract, with a full knowledge of the provisions thereof, thereby adopted all of the obligations thereof, and that the claimant, thereunder, was entitled to receive, both before and after the division of the Department of Virginia and North Carolina, the head, tail, tripe, and tongue of all cattle slaughtered by such commissary, and is entitled to recover the value thereof.

IV. The claimant, at the termination of his contract, held in his possession at Newbern 174 hides and 12 barrels of tallow. Being unable to procure transportation, he left this property at Newbern in charge of the commissary. It was never returned to him. The value thereof was $2,958.

And upon these facts the court, as a conclusion of law, decides that, under the sixth article of the contract, the defendants were not bound to furnish transportation to the claimant from Newbern to Fortress Monroe, and also that the claimant, having failed to show that the hides and tallow left by him in charge of the commissary were used or expended in the service of, or for the benefit of, the defendants, the defendants are not chargeable therewith, and that for these the claimant should not recover.

V. The claimant, on the 1st January, 1865, was ready and willing and offered to collect the offal of all cattle slaughtered in the State of Virginia, as required by his contract, but the chief commissary of the department designated-Fortress Monroe and Fort Magruder as the only points in Virginia to which the commissary department then had access. The claimant collected the offal of all cattle slaughtered at these points, but he did not again offer to perform at other points, nor did the defendants ever notify him that other points had become accessible. There were slaughtered between the 1st January and 30th June, 1865, of Government cattle, not captured, in both theStates of Virginia and North Carolina, 4,800, of which the claimant collected the offal of only 758 cattle.

And upon these facts the court, as a conclusion of law, decides that, as to so much of the department as-lay within the State of Virginia, the offer of the claimant to collect the offal, followed by his performance at the points designated, was a sufficient compliance with the contract, and that it then became the duty of the defendants to notify the claimant of any new points at which they might desire to have the offal col-ected. And that as to so much of the department, as was originally within the State of North Carolina, the defendants rescinded their contract by separating it from the original depart-meat, and transferring it to the Department of tbe South, on the 12th January, 1865, as set forth in the second finding of fact. And the court therefore decides that the claimant is not liable under the fourth article of the contract for the offal of every animal slaughtered within the original limits of the Department of Virginia and North Carolina, and that the defendants are not entitled to recover damages therefor under their counter claim.

VI. The claimant, in payment of the - offal received by him, as set forth in the third finding of fact, gave to the defendants his certain draft, or bill of exchange, dated the 2d day of June, 1805, at Newbern, North Carolina, and drawn upon the firm of Lapham & Clarendon, in the city of New York, payable to the defendant’s commissary, Captain William L. Palmer, being for the sum of $2,727 58. The payment of this draft was stopped by the claimant before presentation, and neither it nor the balance of his indebtedness for which the draft was given has ever been paid.

And upon these facts the court, and as a conclusion of law, decides, that the defendants are entitled to recover upon the said draft and indebtedness of the claimant the sum of $2,727 58, and that the amount of $1,080, found due-from the defendants to the claimant by the third finding of fact, should be set off and deducted from the same, and judgment be rendered against the claimant for the balance remaining.

The judgment of the court is, that the defendants recover of the claimant the sum of $1,647 58.

Peck, J.:

While I concur in the judgment pronounced by the opinion in this case, I dissent from so much of the opinion as holds that the division of the military department by one of the parties without the consent of the other changes the rights and obligations of either of them.

Poking, J., concurs in this conclusion.  