
    RYAN’S CASE.
    (8 Court of Claims R., 265;
    not reported in Wallace.)
    Matthew Ryan, appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      On the 3d May, 1869, a commissary of subsistence advertises for proposals “ for supplying t>eef from the block to the troops and others supplied at Camp Supply.” On the 18th the claimant sends in proposals. On the 26th a formal contract is executed for cattle on the hoof “ in such numbers and at such time as may be required.” On the 28th the commissary is instructed by his superior officer to supply Indians with beef. Thereupon he advertises for proposals, and enters into a contract with a third party at a reduced price- In the mean time, the first contractor is required to furnish beef for the Indians. It subsequently appears that the resolution of the Government to place the subsistence of these Indians wider the Commissary Department was made on the 20th May, under the Appropriation Act April 10, 1869, (10 Stat. L.,p. 40, § 4,) but was unknown to both commissary and contractor at the time of executing their contract on the 26th. The contractor insists that he was entitled under the contract to furnish the beef for the Indians, and brings his action for the alleged breach. The court below decides that in May, 1869, a commissary of subsistence had no right to contract for the subsistence of Indians under the act until the Government should determine to place them within the care_ of the Commissary Department and issue instructions to that effect; also that the contract in question contemplated only subsistence for troops and ordinary camp followers, and not for Indians. Judgmeht for the defendants. The claimant appeals.
    
    The decision of the Court of Claims affirmed without an opinion being delivered by the Supreme Court.
    
      The Reporters’ statement of the case:
    The contract upon which the claimant brought his action contained the following provision, which was all that related to the quantity of the cattle to be delivered:
    That the said Mathew Ryan aforesaid, his heirs, executors, or administrators, shall furnish, weigh, and issue, at Camp Supply, Indian Territory, or such other post as may be established in the northern part of the Indian Territory, on the Arapahoe and Cheyenne reservation, on the order of the acting commissary of subsistence at that post, fresh beef, of a good and marketable quality,in equalproportion of fore and hind quarter meat, (necks, shanks, and kindey-tallow to be excluded,) in such quantities as may be from time to time required, and on such days as shall be designated by the commanding officer. The necks of the cattle slaughtered for beef to be delivered under this agreement shall be cut off at the fourth vertebral joint, and the breast trimmed down. The shanks of fore-quarters shall be cut' off from three to four inches above the knee-joint, and of hind-quarters from six to eight inches above the gambrel or hock-joint. Each beef, when so trimmed, must net at least 400 pounds. He shall also furnish and deliver to the acting commissary of subsistence at the post mentioned, on the order of such acting commissary of subsistence, beef-cattle on.the hoof, (all steers, between four and six years of age in good healthy condition, average weight 1,000 pounds, and none received under 800 pounds,) in such numbers and at such time as may be required.
    The court below found the following facts:
    On the 3d day of May, 1869, Bvt. Brig. Gen. M. E. Morgan, chief commissary of subsistence, Department of Missouri, by public advertisement, gave notice that u sealed proposals, in duplicate, would be received at his office, (Fort Leavenworth, Kansas,) or at the office of the assistant commissary of subsistence at Fort Lyon, Colorado Territory, and Fort Wallace, Kansas, until 12 o’clock m., Tuesday, May 18, 1869, for supplying net beef from the block to the troops and others supplied at Camp Supply, mouth of Beaver Creek, or such other post as may be established in the northern part of the Indian Territory, on the Cheyenne and Arapahoe reservation, at which post there will be six companies. It is expected, when Camp Supply is discontinued, that the other post in the Indian Territory here referred to will have been established. The contracts will commence at all the posts July 1, 1869. They will expire December 31, 1869, at Harker, Hays, Wallace, and Lake Station, and June 30 at all the other posts. There is nothing positive as to the number of troops at each post. The above is as close to it as we can get at this time.”
    In response to the foregoing advertisement, the claimant, on the 18th of May, 1869, proposed to “furnish and deliver to the United States, at the subsistence depot at Camp Supply, Beaver Creek, Fort Larned, and Camp Beecher, the following stores: Fresh beef from the block and on the hoof, net weight, for the sum of 7.4 cents per pound,” &c.
    Claimant’s bid was accepted, and the contract, in words and figures as set forth in the petition, entered into on the 26th May, 1869, by and between him and M. E. Morgan, brevet brigadier-general and commissary of subsistence, chief commissary of subsistence Department of Missouri, acting on behalf of the United States Government.
    About the time this contract was awarded to the claimant, other contracts for supplying troops were also awarded to him, none of which', however, are involved in this controversy.
    This contract was not terminated by the Commissary-General of Subsistence, .but ran fora period of twelve months, from the 1st day of July, 1869, to the 30th day of June, 1870, during which time he furnished and delivered at the points specified, and of the quality specified, all the fresh beef upon the block required by the Subsistence Department, for which he has been paid.
    It also appears that he expressed himself ready, on a little notice, to furnish such cattle on the hoof as might be needed for supplying the Indians; and he is shown to have furnished a quantity of beef for that purpose soon after his contract, was executed, for which vouchers were issued, and he has been paid.
    The duty of supplying the Indian service with provisions had been in charge of the Interior Department, but on May 20,1869, the War Department, such duty devolving upon it, directed the Commissary-General of Subsistence to furnish the supplies for the Indian service, which would be paid out of the appropriation of $2,000,000 made specially for said service.
    On May 22, 1869, General Eaton, Commissary-General of Subsistence, at Washington, informed General Clarke, acting commissary-general of subsistence Military Division of Missouri, headquarters in Chicago, in which division Camp Supply was situated, that the Subsistence Department would furnish the Indians on the reservation with supplies under the above order, 'but said be could not give detailed instructions, but would furnish them at a later date. On May 26,1869, the date of the contract with Ryan, General Eaton forwarded to General Clarke the detailed instructions he had promised, and it was not until May 28, 1869, that General Clarke officially notified General Morgan, his subordinate, who was at Fort Leavenworth, Kansas, that the Subsistence Department would furnish the supplies to the Indians on the reservations.
    On June 5,1869, General Morgan, in performance of a special and extraordinary duty imposed upon him by General Clarke, advertised for proposals for furnishing beef-cattle for the Indian service at camp on Arapahoe and Cheyenne reservation, Indian Territory, and certain other places, and directed that proposals should be indorsed “Proposals for supplies for Indians.” A proposal of D. W. Powers, for the delivery of 1,400 head of cattle for the Indian service having been accepted, a contract, dated July 13,1869, was entered into with Powers and General Morgan for the defendants.
    
      Messrs. Durwnt & Kornor for the claimant, appellant:
    It is contended that the same United States officer executing both of these contracts for the United States was authorized to act only in one; and hence the other contraet is void. The grounds for this are that the Act of Congress March 2,1861, (12 Stat. L., 220,) did not confer any power upon the commissary to enter into the contract with claimant; and besides, he is expressly forbidden to exercise it by the Army Regulations. The lower court seems to have but little confidence, however, in the operation of the act of Congress, for it says that the act “ confers the authority on the commissary to purchase army supplies,” and the officer in letting this contract appears to have strictly pursued its provisions. But the act does not confer any such power on the commissary (the power to contract for Indian supplies,) but he is expressly forbidden to exercise it by the Army Regulations. The court below in its opinion quotes paragraphs 1202 and 1203 oftheRegulations. Theact of Congress referred to is a general law, and applies as well to the Powers contract as to the plaintiff’s; and as for the regulations quoted, it is submitted that they do not in any wise sustain the construction put upon them. The contract of Ryan involved great expense and great risk in its fulfillment. He was bound by its provisions. If be failed, tbe Government would bold bim to the strict letter of bis contract. But when tbe wrong is on its side, it pleads -want of capacity to act and deficient ■legal relations. If it be conceded that tbe Government is to be treated in the present case precisely as a private individual, tbe right of plaintiff to recover is clear, and the judgment appealed from should be rendered in bis favor for tbe amount •sued for.
    
      Mr. Attorney-General Williams and Mr. Solicitor-General Phillips for tbe United States, appellees:
    That there was no public exigency for tbe immediate delivery of tbe Indian supplies at the time when these contracts were made is shown by tbe fact that- General Morgan advertised for them. (12 Stat. L., 220.) Therefore tbe power of General Morgan to contract with Byan for beef on the 26th of May depended, among other things, upon whether be bad advertised, and the extent of bis power depended upon tbe terms of bis advertisement. {Act of 1861, oh. 84, § 10,12 Stat. L., 220.) General words in the contract are to be restrained by tbe specific expressions of tbe “ enabling ” advertisement;
    Genera] Morgan could not, upon tbe 26 tb of May, 1869, have made a contract for Indian supplies based upon an advertisement for such supplies running from tbe 3d to tbe 18th of that month, because, previously to the 20th of that month, tbe War Department could not have authorized such an advertisement. As a subordinate officer, General Morgan, unless specially authorized, could make no such contract until after tbe 28th of May, 1869. {Stevens v. United States, 2 O. (Jls. B., 95.)
    Taking tbe contract and tbe advertisement together, General Morgan did not attempt to make such a contract, as it is very plain that bis advertisement was only for supplies for troops, (say) some six companies, with such other persons as from experience it was known would attend incidentally upon such, a body of troops situated at such a place. In this connection we submit that the advertisement, the whole source of General Morgan’s power, which calls attention to the number of the troops to be supplied, viz, six companies, (adding, “there is nothing positive as to the number of troops at each post; the above is as close to it as we can get at this time,”) did not and was not understood by the parties to extend to other persons unmentioned, whose number should have constituted them the principal subject of the contract. The contemporaneous action of the parties is also to be considered, i. e., the advertisement of General Morgan a week after his contract with the claimant, and the apparent acquiescence of the latter in that practical construction. (1 Ohitty on Con., 1834, 126.)
   The judgment of the Court of Claims was affirmed by the Supreme Court, no opinion being delivered.  