
    ELIAS W. JOHNSTON v. THE UNITED STATES.
    [No. 23261.
    Decided January 20, 1906. |
    
      On the defendants’ Demurrer.
    
    A quartermaster accepts tlie claimant’s proposal to do some lighter-age at Cape Nome, stating in the letter of acceptance conditions which make the contract. The contract so made requires the claimant “lo furnish sufficient lighterage and tugs on twenty-four hours’ notice” and “lo expeditiously and continuously discharge any given cargo or part thereof.” A number “of vessels being expected, the commanding officer tells the claimant to “go ahead and gel all the lags and lighters together that yon can, and he ready to handle these ships as fast as possible.” The vessels proving to be private vessels, the lighterage is done by private parties.
    I.Whether a letter written to a contractor prescribing the terms and conditions on which certain lighterage service shall be performed, signed by the quartermaster, at the end, to which is added: “The above conditions are accepted," with the signature of the contractor, is a valid contract under the Revised Statutes, § 3744, which provide: “ It shall he the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Intrerior 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; a copy of which shall be filed by the officer malcmg and signing the contract in the returns office of the Department of the In-trior,” Query.
    II. An oral direction by an officer to a contractor to prepare immediately tugs and lighters and be ready to do the lighterage for vessels expected to arrive shortly, followed by the contractor getting the necessary tugs, but not being allowed to lighter the vessels, is not a valid contract, being in effect prohibited by Revised Statutes, § 3744.
    III. Where a contractor renders services or furnishes goods under an oral contract prohibited by statute because not in writing (Revised Statutes, § 3744), he may recover in quantum meruit; but he can not recover as upon a valid executory ' contract for his expenses where, being required to prepare, he suffered damages by not being allowed to perform.
    
      
      The Reporters'1 statement of the case:
    The facts of the case sufficiently appear in the opinion of the court.
    
      Mr. J. A. Tanner (with whom was Mr. Assitant Attorney-General Pradi) for the demurrer:
    The verbal direction of General Randall, U. S. A., given to the claimant to “ go ahead, etc., and be ready to handle ” the cargoes of certain steamers which were subsequently to arrive, is not a legal contract within the meaning of section 3744 of the Revised Statutes. (South Boston Iron Works v. U. S., 18 C. Cls. R., 165; ib., 118 U. S., 37; Clark v. Ü. S., 95 U. S., 537; Solomon v. U. S., 19 Wall., 17.)
    This court has no jurisdiction of the claim put forward by the claimant.
    
      Mr. R. R. McMahon opposed:
    The law is that where one party to an executory contract prevents the performance of it by putting it out of the power of the other party to perform it, the other party may demand whatever damage he lias sustained thereby. In this case one party to the executory contract: — that party representing the Government by undisputed authority — prevented the performance of the contract by putting it out of the powrer of the other party — the claimant — to perform it. The' claimant, Johnston, is therefore entitled to the damage he sustained thereby. (Lovell v. St. Louis Mut. L. Ins. Go., Ill U. S., 264; United* States v. Peek, 102 U. S., 64; Warren v. Stoddart, 105 TJ. S., 224; Behan v. United States, 18 C. Cls. R.,‘687; United States v. Behan, 110 U. S., 338.,
    In .wliat possible way can the defendants be released from obligation for the breach of this contract? The advertisement for proposals was clear and the proposals of the claimant were clear. They were accepted. When accepted a contract between the parties was completed. (Chicago v. Greer, 9 Wall., 726.)
    The claimant dealt with the Government in good faith. There was no defect of authority or other regularity on the part of the officer representing the Government. The Gov-eminent is therefore bound by the contract. (Merchants' Nat. Bank v. State Bank, 10 Wall., 604.)
    As has been stated, the officer who made the contract and the Quartermaster-General do not plead any defense, bul acknowledge the justice of the claim.
    The claimant is entitled to recover, under the rulings oí this court in the cases of Floyd and Speed, 2 C. Cls. R., 429 (affirmed on appeal 8 Wallace, 77) ; Wilder’s case, 5 C. Cls. 11., 468; Bnlldey’s ease, 7 Ibid., 543 (19 Wallace, 37); Field’s ease, 16 C. Cls. R., 434; Moore & Krone’s ease, 17 Ibid., 17.
   Barney, J.,

delivered the opinion of the court:

The petition in this case alleges that on April 6, 1900, the petitioner submitted to Capt. W. N. Robinson, jr.,.assistant quartermaster, U. S. Army, certain proposals for- furnishing lighterage and stevedoring for Government supplies and stores arriving at Cape Nome, Alaska; and further alleges that on April 19, 1900, Captain Robinson and the petitioner made a contract in regard to such lighterage in the following terms:

“ Office of the CONSTRUCTION Quartermaster,
“ CORNER First Avenue and Yesler Way,
“Seattle, Wash., April 19, 1900.
“ Mi1. E. W. Johnston, Seattle, Wash.
“ Sir : In reply to your proposal of the 6th instant to furnish lighterage and stevedoring for Government stores at Capt Nome, Alaska, I have the honor to accept said proposal as follows, with the subjoined conditions:
“ Hay and straw, 70 tons, at $6 per ton.
“ Grain, 40 tons, at $6 per ton.
“ Building materials, 35 tons, at $6 per ton.
“ Groceries, etc., 220 tons, at $6 per ton.
“ Miscellaneous merchandise, 350 tons, at $6 per ton.
“ Lumber, lightered ashore, not rafted, $7 per thousand (2,200 tons).
“ Coal, 1,500 to 2,000 tons, at $4 per ton, in sacks.
“Animals, 20, at $5 per head.
“ The Government reserves the right to handle and lighter such part of the Government freight on any vessel as may be convenient, with its own appliances in each case.
“ You will be required to furnish sufficient lighterage and tugs on twenty-four hours’ notice by the local or ship’s quartermaster, to expeditiously and continuously discharge any given cargo or part thereof designated by the local or ship’s quartermaster.
“ That all stores discharged by you shall be placed at a point on the beach designated by the local quartermaster, out of reach of high tide, and neatly piled so that they may be protected from the weather by paulins, and in such manner that the quantities may_ be readily tallied.
• “ That the vouchers for such service shall be verified by the local quartermaster and payment shall be made at this office for said service, the rates per ton being for net tons of 2,000 pounds for general merchandise, and in gross tons of 2,24-0 pounds for coal, as determined by usual commercial and shipping custom.
“ Yery respectfully,
“ W. W. Eobinson, Jr.
“Gaft, and A. Q. il/., U. S. Army.
“ The above conditions are hereby accepted.
“E. W. Johnston.”

It should be here observed that no copy of the alleged proposal is given in the petition, and that the foregoing letter of Captain Eobinson, together with the acceptance by the claimant of the conditions therein stated, alone constitute the alleged written contract relied upon; but what the proposals of the claimant were, which were accepted by Captain Eobin-son, do not appear.

The petition further states that in accordance with this contract the petitioner discharged certain transports therein named; that during the months of September and October, 1900, (Government) supplies arrived on certain steamers which the petitioner was not permitted to handle, although he notified the quartermaster that he was in readiness to do so.

The petition also sets up an interview between the petitioner and General Eandall in reference to this contract for lighterage, in which the latter said to the petitioner, “All right; go ahead and get all the tugs and lighters together that you can, and be ready to handle these ships as fast as possible; ” and that pursuant to such directions he went ahead, hired several tugs, and paid out considerable sums of money in various ways in preparation for the performance of such service. That after such preparations he offered to do the lighterage for the vessels arriving freighted with Government stores, but was not permitted to do so.

It also appears from the petition, that these vessels which the petitioner was not permitted to serve were private vessels which the Government had chartered for its service on account of its inability to handle with its own vessels the large amount of freight necessary to be carried, and that the lighterage of these vessels was done by private parties and not by the Government. Judgment is prayed for the damage thus sustained by the petitioner in the sum of $4,181.91.

The defendant demurred to this petition on the ground that it does not state a cause of action, and the issue of law thereby joined is before us for decision.

It is clear that the reply letter of the Quartermaster set out in the petition does not constitute a valid written contract under the provisions of section 3144 of the Revised Statutes, hereinafter quoted. While it may be admitted that a written contract may be made out under that section by letters of correspondence between the parties, we think it hardly needs argument or authorities to show that the letter of one party in reply to another not given does not make out such contract, and particularly so when, as in this case, the reply letter on its face shows it can not be fully interpreted without the other. If the loss of the first letter had been alleged, and the substance of its content; given, that would, perhaps, have been sufficient; but to give only one fragment of a correspondence does not make, a contract in writing by letter within the statute of frauds, or within the section citech-(13 Am. & Eng. Encyc. of Law, 254.)

Tt should also be noted that the letter omitted from the correspondent» is the claimant’s own letter, and it is well settled that greater certainty of pleadings is required when the facts lie in the knowledge of the party pleading. (Bliss Code Pleading, sec. 223 et seq.; 18 Am. & Eng. Encyc. Law, 500.)

But even if it is admitted that this one reply letter is a written contract under the statute, there is no allegation in the petition that it has not been fully performed by both parties. In fact, that it has thus been fully performed is the fair inference from the statements therein contained, and its consideration has nothing to do with this case only as it may explain the verbal contract relied upon.

Section 3744 of the Revised Statutes is as follows:

“ 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; a copy of which shall be filed by the officer making and signing the contract in the Returns Office of the Department of the Interior as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers, or proposals for the same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return.”

' It has been repeatedly held by this court and by the Supreme Court that this statute is mandatory, and that any contract made contrary to its provisions is absolutely void. (Lindsley v. United States, 4 C. Cls. R., 359; Henderson v. United States, ibid., 75; Clark v. United States, 95 U. S. R., 539; South Boston Works v. United States, 18 C. Cls. R., 165; 118 U. S. R., 37.)

If this rule is applicable in the determination of what are alleged to be written contracts, then a fortiori it is applicable to a somewhat indefinite interview between the claimant and an army officer.

It clearly appears from the petition that all of the preliminary expenses incurred by the claimant, and for which he seeks to recover in this action, were made by him pursuant to this verbal contract, if it can even be called that, which is very doubtful.

If it is admitted that the circumstances of this case made an emergency contract permissible within section 3709, Revised Statutes, it has been frequently decided that that section only relieves from the necessity of advertising for proposals in cases of public exigency, and does not relieve from the necessity of having such contracts in writing. (Cobb v. United States, 18 C. Cls. R., 514; Clark v. United States, 95 U. S. R., 539.)

This case is clearly distinguishable from that class of cases where recovery is sought for the value of services rendered and accepted, or of articles actually purchased and used by the Government. It is well settled that in the latter class of cases recovery can be had upon quantum meruit or quantum 'oalebat,

In this case recovery is sought for the nonperformance on the part of the Government of a void executory contract, and such an action can not be sustained.

It is ordered that the demurrer be sustained with leave to the claimant to amend his petition within sixty days.

Howiiy, J.,

dissenting:

If the quartermaster was clothed with authority to contract on behalf of the Government for the lighterage (and as to this there is no dispute), then the correspondence between the quartermaster and plaintiff was a substantial compliance, so far as the latter was concerned, with the requirements of section 3744 of the Revised Statutes for everything contemplated to be done by the plaintiff. The rule which calls for a copy of all correspondence is not doubted where necessary to show what the contract is. But where the contract is complete an unnecessary and an immaterial letter need not be introduced. The contract consists of one paper writing, being the letter of the quartermaster to plaintiff and plaintiff’s acceptance of the terms and conditions in writing at the foot thereof. This made the contract complete in itself, and the matter must be determined by the obligations arising from the proposal of the quartermaster and its acceptance by plaintiff.

The written proposal to do the lightering set forth in the petition and which plaintiff undertook likewise in -writing to perform bound the latter to furnish lighterage and steve-doring for Government stores at Cape Nome in the specific quantities and at the prices first set forth in the petition. Whether plaintiff ivas paid for lightering the specific articles in the amounts and quantities set forth is not clear, and for anything not paid for and provided under that part of the Avritten agreement the Government is bound.

t>ut there is something -more in the further clause of the accepted proposal. Plaintiff ivas required “ to furnish sufficient lighterage and tugs on twenty-four hours’ notice by the local or ship’s quartermaster to expeditiously' and continuously discharge any given.cargo or part thereof designated by the local or ship’s quartermaster.”

The allegation that during the months of September and October, 1900, supplies arriving on the steamers named were to be unloaded and that plaintiff ivas ready and fully prepared to carry out the contract, but was not permitted to handle the freight, brings this further lightering within the agreement, because it is alleged that the quartermaster notified plaintiff to hold himself in readiness to discharge the further supplies on the steamers named which had stores aboard for the department and because the general commanding at Nome declined to cancel the contract for further lightering vessels as they came in, but directed plaintiff to get together all the tugs and lighters that he could, so as to be ready to handle the ships as fast as possible. The contract, therefore, ivas not an agreement to merely lighter the specific articles described in the petition, but was an agreement also to discharge any given cargo or part thereof designated by the proper officer. This necessarily meant the inclusion of all lightering to be done there as the ships came in.

It appears that plaintiff kept his outfit in readiness, and with no other work to do except for Government he maintained his men and outfit ready to proceed under that part of the contract. But when the ships arrived it ivas found that the stores on board had been shipped on bills of lading-calling for delivery of the stores and coal on the beach, and plaintiff was not permitted, over his protest, to discharge the ships, although he boarded each one as it came in for that purpose. During this time plaintiff paid wages, board bills, and fuel, and in consequence of a storm lost one of his scows and had two others crushed in the ice. On the face of the petition it is shown that plaintiff would have discharged his men and laid up his outfit- for the winter, thereby saving these expenses and losses, had he not been notified to hold himself in readiness to continue the lightering under the written agreement with the quartermaster.

For the continued lightering stipulated by the contract, but not performed without fault of the contractor, the latter ought to be indemnified at least for his expenses and losses because the contract for more lightering was unrescinded when the expenses were incurred and the losses were sustained. It would be inequitable to refuse payment where it is shown that plaintiff, during the season, was ready to perform and was actually called on to perform presumably under the written agreement, and then denied the right to proceed. He acted in good faith on the agreement to continuously perform under the terms of the contract; he relied upon the agency of the Government officers to direct him when to proceed and incurred expenses and sustained losses set forth in his petition, which seems to me clearly brings him within the terms of the agreement. If plaintiff was misled by the terms of the written agreement, so were the officers of the Government. Both parties interpreted the contract to mean what the petition shows it to have meant. The sole reason that plaintiff was not paid appears in the properly pleaded statement of the quartermaster that plaintiff was entitled to collect the full amount of his bills duly allowed by quartermaster’s vouchers for $4,781.91 not paid because the Auditor of the War Department said he could not settle a claim for unliquidated damages. That departmental rule can not supersede plaintiff’s right in the courts to recover expenditures and losses incurred by him in his endeavor to comply with the written contract.

On the face of the petition it is shown that the' officer at the place of shipment had no means of knowing whether plaintiff was able to carry out his contract, in consequence of which freight was billed for delivery on the beach. Plaintiff had nothing to do with this, but was bound to hold hiln-self in readiness as directed by the officers of the Government at his end of the line to carry out the agreement. The ignorance of the officer at the place of shipment does not excuse the Government for interfering with what plaintiff and all parties to the agreement understood he was to do under the agreement. Everything is shown on the face of the pleadings material to be shown. It might better be stated in different language, but the petition presents a just cause of complaint because in addition to the circumstances shown which operated to prevent plaintiff from performing and caused him loss there is a distinct allegation that none of the freight was handled by appliances of the Government, which left the contract in full force. Upon both authority and principle plaintiff is certainly entitled to recover- something because there was improper interference. (Kelly's case, 31 C. Cls., 361, U. S., 214; Bulkley v. United States, 7 C. Cls. R., 543.)

But if the services rendered were not within the terms of the written contract they nevertheless come within the exceptional clause mentioned by the Supreme Court in the case of Clark v. United States (95 U. S. R., 539). That is the leading case upon this question of written contracts. After laying down as the rule that the statute is a statute of frauds and that the claimant could not recover upon the executory parol contract, the court is careful to add: “ We do not mean to say that, where a parol contract has been wholly or partially executed and performed on one side, the party performing will not be entitled to recover the fair value of his property or service. On the contrary, we think that he will be entitled to recover such value as upon an implied contract for a quantuni meruit.”

It must also be noted that the parol contract, if it be"; deemed such, was made by an army officer to meet what'he deemed a public exigency. Such agreements need not rest upon advertisements nor be in writing, (Speed's case, 8 Wall., 77.) The services rendered by the claimant were part performance, and under either of the cases cited the claimant is entitled to recover to that extent.  