
    WILLIAMS’S CASE.
    Charles Williams v. The United States.
    
      On the Proofs.
    
    
      A chief quartermaster contracts with the claimant for 7,000 cords of wood, more or less, as might he required for a post on the frontier. Subsequently the quartermaster of the post notifies the contractor that he must deliver all of the wood called for by the contract. Some of the wood is delivered and paid for ; some is tendered,, but not accepted because not needed; some remains in the-forest and, is a total loss. After the breaoh the contractor, as the defendants maintain, abandons his contract and leaves the neighborhood, because of supposed complicity in a ciime of one of his agents.
    
    I. Where a quartermaster’s contract in the usual form is for 7,000 cords of ■wood, more or less, as may he required at a certain military post, and the post commander subsequently notihes the contractor that he will be required to deliver all the wood called for by the contract, it will constitute a breach of the contract if the officers of the post refuse to accept the full amount.-
    II. After a breach committed by ¿he defendants in refusing to accept wood when tendered according to 'the terms of their agreement, it is no defense that the contractor abandoned the contract.
    
      The Reporters1 statement of tbe case:
    Tbe contract in tbis case was in tbe usual form of tbe Quartermaster’s Department. See Yates’s Case (ante, p. 119). Tbe facts of tbe breach were as follows:
    I. On tbe 20tb day of June, A. D. 1874, Benjamin O. Card was a quartermaster in tbe United States Army and chief quartermaster Department of Dakota, and on duty at Saint Paul, Minn., and held tbe rank of major.
    II. On tbe 2d day of February, A. D. 1874, said Benjamin C. Card, chief quartermaster, advertised, as required by law, that sealed proposals would be received at bis office and other places named, until 12 o’clock m., on tbe 23d day of April, 1874, for furnishing and delivering at such posts and stations such fuel, forage, and straw as may be required at each during the fiscal year commencing July 1, 1874, and ending June 30, 1875, viz: * * *
    Fort Abraham Lincoln, Dak., 4,000 cords hard or 7,000 cords soft wood, * * * and that in pursuance of said advertisement for proposals the claimant, on the 12th day of April, A. D. 1874, submitted and made proposals to said quartermaster.
    And that afterwards, on the 16th day of May, said Benjamin C. Card, chief quartermaster, awarded the contract for furnishing said soft wood to the claimant, set forth in the petition, which was duly executed by both parties.
    III. On the 18th day of December, A. D. 1874, G. B. Dandy was captain and assistant quartermaster, United States Army, and on duty as post-quartermaster at Fort Abraham Lincoln, Dab., and on that day made out and delivered the following notice and order to the claimant by and through his agent, Charles A. Boberts, viz:
    
      a Office -A- Q
    
      u Fort Abm. Lincoln, I). Tn Dec. 18, 1874.
    “Mr. Chas. A. Roberts,
    
      a Attorney for Charles Williams,
    “ Wood contractor, Bismarclc, D. T.:
    
    “ Sir : The post commander directs me to notify you that you will be required to deliver all the wood called for by your contract of June 20, and- that it will not be received as merchantable wood unless at least one-half of it is dry wood. On this basis there should be delivered eight hundred and ninety-six cords dry wood and thirty-one hundred cords green wood ; the dry wood must be delivered at the infantry barracks.
    “ Respectfully,
    
      “ G. B. Dandy,
    “ Cwpt., A. Q. M.”
    
    IY. The claimant was at all times ready, willing, and able to fulfil said contract on his part, and incurred all the expense and performed all the labor requisite to furnish and deliver said seven thousand cords of wood, except the hauling of eleven hundred and seventy-seven and one-quarter cords.
    Y. The United States failed and refused to receive from the claimant more than four thousand two hundred and seventeen cords under said contract.
    YI. The claimant would have received for the balance of said seven thousand cords of wood, if it had been received by the United States, the following amount, viz:
    2,783 cords of wood, at $2.60 per cord.$7,235 88
    And he saved by the refusal of the United States to receive the same the following sums, viz: From the sale of the 1,300 cords delivered at the post'. $1,300 00
    From the cost of hauling 1,483 cords in the woods where cut to the post, $1.50 per cord. 2,224 50
    - 3,524 50
    Balance due claimant. ... 3, 711 38
    There was no market value for wood at Fort Abraham Lincoln at the time the United States stopped receiving wood under the contract, and the value ivas wholly precarious, depending entirely upon the letting of contracts by the United States, and no more than $1,300 was ever received from said wood left on the hands of the claimant. The country on the west side of the Missouri Fiver and about Fort Lincoln was un surveyed and wholly unsettled in 1874-’75.
    VII. Charles A. Eoberts acted, and was dealt with throughout, as the real contractor. Henry Gager was his agent in the performance of the contract. In June, 1875, said Gager was duly convicted of the larcency of forage belonging to defendants, at Fort Abraham Lincoln, alleged in the indictment to have been committed on the 22d of March, 1875. On the 23d of March, 1875, or a few days thereafter, Gager was ordered away from said post by the post quartermaster, G. B. Dandy. About the time Gager was ordered away, Eoberts suddenly left the vicinity of the post, to avoid, as was generally understood, arrest by the military authorities for alleged complicity in the theft of government property. It does not appear that after Gager was ordered away Eoberts made any attempt or offer to complete the contract either in .person or by any other agent than said Gager.
    
      Mr. George A. King for the claimant:
    We believe the true rule of damages here to be the difference between the contract price and the market price, and think this position is sustained by the following authorities. (2 Chit. Con. 1,331; 3 Pars. Con. 208-210; Masterton v. Mayor of Brooklyn, 7 Hill, 61; P, W. & B. B. B. Go. v. Howard., 13 How., 307; Moore’s Case, 1 C. Cls. It., 90; Adam’s Oase, 1 C. Cls. B., 106; Mantis Case, 3 C. Cls. E., 404;- OobVs Case, 7 C. Cls. B., 470; Saylor’s Oase, 14 C. Cls. B., 453.)
    
      Mr. F. J. Lippitt (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

This action is founded upon a contract for the'sale and delivery, at Fort Abraham Lincoln, Dak., of 7,000 cords of wood. Some of the wood was delivered and paid for; some was tendered at the fort, but was not accepted because not needed; some remained in the woods where it was cut and was a total loss. No question arises as to the construction of the contract, and hardly a question as to the liability of the defendants.

There was clearly a breach of the contract by the defendants refusing to accept the wood tendered to them; and we must assume that the post quartermaster correctly and truly, in his testimony, sets forth the reason for the breach, viz, that by reason of a change of troops the wood was not needed at the fort.

It is objected by the defendants’ counsel that the claimant’s subcontractor, for complicity in a crime of his, the subcontract- or’s agent or employé, abandoned the contract about the same time. But this so-called abandonment must have been subsequent to the breach. After the breach had been committed by the defendants refusing to accept the wood tendered, the contractor was not bound to further performance, and was at liberty to abandon the contract and dispose of the wood on hand as best he could.

The defendants have also attempted to reduce the damages by endeavoring to show that the wood cut and piled in the woods was worth $2 per cord there, and that the cost of hauling it to the fort would have been $1.50 per cord. This computation would make the value of the wood, when delivered at the fort, $3.50 per cord, whereas the contract price for it there was only $2.60 per cord. As the value of wood there had not increased after the making of the contract, it is manifest that this computation proves too mucli. The claimant did not own tbe standing- wood, which was on the public domain, and his contract was in reality, though not in form, a contract for work and service. We are satisfied that he suffered a heavy loss by the refusal of the government officers to allow him to deliver that which he had cut, and we think the amount found will not more than cover his actual loss.

■The judgment of the court is that the claimant recover of the defendants the sum of $3,711.38.  