
    DAVID H. MITCHELL v. THE UNITED STATES.
    [No. 11940.
    Decided January 7, 1884.]
    
      On tlie Facts.
    
    The claimant enters into a contract to deliver oats at Fort Harker. It is in terms subject to the approval of certain commanding officers and is approved by them. By permission of the receiving officer at the fort, the claimant delivers corn in lieu of oats, pound for pound. The Chief Quartermaster of the military division repudiates this arrangement. He pays the claimant for the corn delivered what he deems its reasonable value and refuses to pay the price per pound which was to be paid for oats.
    I.Whore a controversy exists as to the quantity of grain delivered by a contractor to officers of the Quartermaster Department, the burden is on him to establish it.
    II.Where a contract is in terms subject to the approval of two designated superior officers, none below them have a right to change the terms of the agreement.
    III.Where a contract made by superior authority is for the sale and delivery of oats at a designated post, the receiving officer there cannot agree to receive corn instead.
    IY. An oral agreement to accept corn instead of oats under a written contract is void under the provision of the Revised Statutes (§ 3744) whichrequires contracts in the War, Navy, and Interior Departments to be reduced to writing.
    y. Where an inferior officer without authority to dispense with the requirements of a contract allows the contractor to deliver corn instead of oats, the contractor cannot recover the price stipulated for oats, but is entitled to the fair and reasonable value of the corn.
    
      
      'The Reporters' statement of the case:
    . This case was transmitted to the court by the Secretary of War under the Revised Statutes, section 1063. The following are the facts as found by the court:
    I. On the 9th of November, 1868, the claimant entered into a contract with the defendants, of which the following are the material parts:
    “This contract, made and entered into at Fort Leavenworth, Kansas, on the ninth day of November, in the year of our Lord one thousand eight hundred and sixty-eight, by and between chief Bvt. Brig. Gen’l B. C. Card, ass’t q’r’m’r U. S. Army, acting quartermaster Department of the Missouri, for and in behalf of the United States of America, of the first part, and D. H. Mitchell of the city and county of Leavenworth, State of Kansas, of the second part witnesseth:
    “ That the said D. H. Mitchell agrees to furnish and deliver to the quartermaster at Fort Harker, Kansas, sixteen thousand (16,000) bushels oats, of the best quality, free from dirt, chaff, or other foreign matter, and securely sacked in good sacks.
    “And the said party of the second part further agrees that the said oats shall be subject to the inspection, acceptance or rejection of the quartermaster at Fort Harker, Kansas, or such person or persons as he may designate; and further that if the oats presented for delivery under this contract shall be of an inferior character to what is hereinbefore stipulated to be furnished by the said party of the second part, the said party of the second part shall thereupon forthwith furnish other oats of the proper character, in place thereof; and that if default shall be made by the said party of the second part in the time of the delivery of the said oats, or in any of the provisions of this contract, the said party of the first part shall have power to supply any deficiency that may exist by purchasing in open market, or in such manner as he may elect, the said party of the second part shall be charged with the difference in cost.
    “ The said party of the first part hereby agree for and on behalf of the United States of America to pay or cause to be paid to the said party of the second part, in such funds as may be provided by the Government for that purpose, the sum of eighty-seven (87) cents for each and every bushel of thirty-two (32) pounds of oats delivered and accepted, in accordance with the terms of this contract.
    “Upon mutual agreement this contract may be changed, altered, modified, or abrogated in whole or in part.
    “ This contract is subject to the approval of the commanding general of the Department of the Missouri and Military Division of the Missouri.
    “ In witness whereof the said parties have hereunto set their hands and seals on the day and year first above written.
    “Benj. O. Caed, [seal.]
    “ Bvt. Brig. Gen’l U. 8. A., Acting Chief Q’rm’r Dept. Mo.
    
    “D. H. Mitchell, [seal.]
    “Headquaetees Depaetment op the Mo.,
    “ Fort Leavenworth, Kas., November 12th, 1868.
    “Approved.
    “By command of Major-General Sheridan:
    “Wi. Embey,
    “ Brevet Lieut. Colonel U. 8. A.,
    
    
      “Acting Ass’t Adj’t-General.
    
    “Headquaetees M. D. Missouei,
    “ Oeeice Chieb -Quaeteemastee,
    “ Saint-Louis, Mo., Nov’r 23, 1868.
    “Approved.
    “L. C. Easton,
    
      “Deputy Q’rm’r-General U. 8. A.,
    
    
      “Acting Chief Q’rm’r M. D. Missouri,
    
    “Headquaetees M. D. Missouri,
    
      u8aint Louis, Mo., Nov’r 23, 1868.
    “Approved.
    “ By command of Lieutenant-General Sherman:
    “W. A. Nichols,
    
      “Ass’t Adj’t-General.”
    
    II. General Card was acting chief quartermaster of the Military Division of Missouri, which was included in -the Military Department of Missouri, of the whole of which General Easton was acting chief quartermaster, and was General Card’s superior officer. General Sheridan was in command of the Division of Missouri, under General Sherman, who was in command of the department. Lieut. L. W. Cooke was post quartermaster at Fort Harker, Kansas (in the Division of Missouri), in the absence of Capt. Henry Inman, acting quartermaster, from October, 1868, to January, 1869, when Captain Inman returned to duty there.
    III. After the claimant had delivered some oats under the contract, he was given permission, orally, by said Lieutenant Cooke, to deliver corn in lieu of oats, at the same rate per pound that he was to have for oats, and he went on delivering corn, in pursuance of said permission, up to some time in February, 1869. As soon as General Easton learned of the permission given by said Lieutenant Cooke he repudiated it, and so notified the claimant by letter, of which the following is a copy:
    “Headquarters Department oe the Missouri, “Office of the Chief Quartermaster,
    
      uFort Leavenworth, Kan., Febr’y 2ith, 1869.
    “ Sir : You are hereby required to deliver without delay at Fort Harker, Kansas, under your contract with this office dated Nov. 9,1868, for the delivery of oats at Fort Harker, all the oats which you have not yet delivered.
    “ The corn you have delivered there of course cannot be considered as a delivery of oats.
    “ Your contract was made with me, and I have not authorized any departure from its terms, but, on the contrary, refused to entertain your application to deliver corn in lieu of oats.
    “As they are entirely out of oats at Fort Harker, and need some immediatelyfor horses and sick animals, I shall ship from here, at your expense, if you do not commence delivering oats immediately.
    “ The quantity of oats remaining to be delivered under your contract appears from information at this office to be upwards of 336,000 pounds.
    “Bespectfully,
    “ L. O. Easton,
    “ Deputy Q. M. G., O. Q. M. Left Mo.
    
    “ Mr. D. H. Mitchell,
    “ Leavenworth, Kansas. ”
    Thereupon the claimant ceased delivering corn and renewed the delivery of oats, which he continued from time to time until some time in April, 1869.
    IY. The defendants received from the claimant and used 463,343 pounds of oats, for which he has been paid at the contract price. They also received from him and used 346,744 pounds of corn, for which he has been paid at the rate of $1.25 per bushel of fifty-six pounds, and that was its fair and reasonable value. It does not appear that the claimant delivered any other quantity of either corn or oats, as alleged in his petition. In making payments to the claimant he was overpaid to the amount of $1,323.16, which has been retained by the defendants from other moneys due him on other contracts.
    
      Mr. I. G. Kimball and Mr. Samuel Shellabarger for the claimant.
    
      
      Mr. F. R. Rowe (with whom was the Assistant Attorney-General) for the defendants:
    1st. The verbal contract is invalid as affecting the written contract, because, of the terms of that contract.
    2d. It is invalid both- under the statute of frauds and under section 3744, Revised Statutes. (Jones’s Case, 11 O. Cls. R., 733; Solomon’s Case, 19 Wall., 17; Burehiel’s Case, 4 O. Cls. R., 549; Lindsley’s Case, id., p. 359.)
    The evidence shows that the alternative was offered to the claimant either to receive back all corn delivered by-him or to receive pay for it at an agreed price. He refused to receive back the corn. He accepted the price offered by the Secretary of War. He is estopped now from denying either that that price was not a reasonable one or that that amount was not the whole amount delivered by him. Under the circumstances of this case the law will presume acquiescence. ( Wilcoeks v. Phillips, 1 Wall., jr., 47; Newton’s ■ Case, 18 O. Cls. R., 435; Greek's Case, 17 C. Cls. R., 238; Gilbert’s Case, 1 O. Cls. R, 108; Adams’ Case, 7 Wall., 463; United States v. Childs & Co., 12 Wall., 232; Justice’s Case, 14 Wall., 535.)
   Richardson, J.,

delivered the opinion of the court:

This case was transmitted to the court under the provisions of Revised Statutes, § 1063, by a letter of transmittal from the Secretary of War, of which the following is a copy:

“ The honorable the judges Court of Claims, Washington:
The undersigned, Secretary for the Department of War ot the United States, hereby respectfully represents that a claim has been made against said department by David H. Mitchell for grain furnished the government at Fort Harker, Kansas, in 1868, 1869. This claim involves disputed facts and controverted questions of law, and the amount in controversy exceeds three thousand ($3,000.00) dollars, and it is therefore deemed proper to transmit the claim, with all the vouchers, papers,proofs, and documents pertaining, thereto, to the Court of Claims, to be there proceeded in according to law.
Geo. W. McCrary,
“Secretary of War.
War Department, May 13,1878.”

On the 20th of June, 1879, in accordance with the established practice, as recognized by the court in Bright’s Case (6 C. Cls. R., 118), the claimant filed his petition alleging that the defendants were indebted to him in the sum of $13,004.79 as an unpaid balance due him for oats and corn delivered for the use of the Army on contract therein set out.

The principal controversy between the parties, both here and in the War Department, has been upon a question of fact as to the quantity of corn actually delivered to the defendants’ officers. The evidence is voluminous and unsatisfactory. As the burden of proof is upon the claimant, and he has failed to satisfy us of the correctness of many of the allegations contained in his petition-which are material tb his case, we have been obliged to find against him on the main facts in the controversy.

There is but a single question of law involved, and that arises upon these facts, concisely stated:

On the 9th of November, 1868, the claimant entered into a written contract with General Card, acting chief quartermaster of the Military Division of Missouri, under General Easton, acting chief quartermaster of the Military Department of Missouri, to furnish and deliver to the quartermaster at Fort Darker, Kansas, 16,000 bushels of oats, for which he was to be paid 87 cents for each and every bushel of 32 pounds delivered and accepted.

The contract expressly provided-that it should be subject to the approval of both the commanding general of the Division of Missouri and the commanding general of the Department of Missouri. It was so approved, and was also approved by General Easton, the'superior officer of General Card.

It was clearly the purpose of that provision to secure to the high commanding officers a supervision over the matter, and to control or prevent the making of such a contract on the part of an inferior officer, if they or either of them saw fit to do so. When thus made the contract could not be afterwards altered by any officer inferior to those whose approval had been necessary in the first place to give it validity. They were the officers who were acting for the United States in giving the consent of the defendants to the terms of the contract, and none below them in authority had a right to change the terms of their agreement.

. And yet the post quartermaster at Fort Darker, who was but a receiving officer to take such oats as the contractor had agreed with his superior officers to deliver at that post, enteréd into an oral agreement with the claimant that he might deliver corn instead of oats, at the same price per bushel of 32 pounds as he was to be paid for oats.

Upon this oral agreement thus made the claimant relies as .establishing the price to which he was entitled for all the corn delivered. As we have shown, such an agreement could have no force or effect as an alteration of an existing contract made by higher authority. Nor was it valid as a new contract, even if the post quartermaster, Lieutenant Cooke, had authority to bind the United States by contract in such matters, because it was not made in conformity with the requirements of the statute.

The Revised Statutes, section 3744, provide:

“ It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the government, or by their officers under-them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof.”

In the South Boston Iron Company’s Case (18 C. Cls. R., 165) we held that this provision requires a formal written contract in every case, to be signed by the parties at the end thereof, and that not even written correspondence containing proposals on the one side and acceptance on the other, separately signed by the respective parties, is sufficient to make a valid contract.

For the corn actually delivered to the defendants’ officers and used by them for the Army the claimant was entitled to payment at the fair and reasonable value of the article, upon an implied assumpsit, independently of any written contract. (Burchill’s Case, 4 C. Cls. R., 549; Heathfield’s Case, 8 id., 213; Solomon’s Case, 19 Wall., 17, and 9 C. Cls. R., 54.)

Having been SO' paid, he has no cause of action, and his petition must be dismissed.

Weldon, J., had, not taken his seat when this case was heard, and took no part in the decision.  