
    PHOENIX HORSESHOE COMPANY, INC. v. THE UNITED STATES
    [No. B-9.
    Decided February 11, 1924]
    
      On the Proofs
    
    
      Contract; reformation: mutual mistake. — Where a contract lias been fully performed and the consideration named therein received in full, in the absence of satisfactory proof of mutual mistake at the time of its execution, such contract will not be reformed.
    
      The Reporter's statement of the case:
    
      Mr. J. Raymond Hoover for the plaintiff.
    
      Mr. Howard J. Bloomer, with whom was Mr. Assistant Attorney General Robert H. Lovett,. for the defendant.
    The following are the facts of the case as found by the court:
    I. Plaintiff employed during the World War, in common with other manufacturers of horseshoes, the services of Mr. W. J. McCurdy as agent to represent them before the War Industries Board and to arrange for contracts that might be entered into by the Government for horseshoes.
    
      II. The plaintiff through its representative made a proposal dated February 26, 1918, to furnish horseshoes at the price of $5.25 per keg per 100 pounds, “base Pittsburgh.” On the 22cl day of March said proposal was accepted by the following communication from the representative of the defendant, but the place of delivery was changed to f. o. b., Chicago, Ill.:
    Emergency purchase. No. 447-3. Purchase order No. 7686. Required for immediate use. File Ro. 456.6.
    War DEPARTMENT,
    Oeeioe oe tiie Depot Quartermaster, Jeffersonville, Indiana, March 88,1918.
    
    Phoenix Horse Shoe Co.,
    
      Chicago, III.:
    
    Your quotation is hereby accepted for furnishing and delivering the folloAving supplies, subject to the usual inspection.
    Three copies of your bill, with number of this order noted thereon, must be sent to this office as soon as the supplies are shipped. Invoice to be accompanied by bill of lading.
    Place of delivery: F. o. b. Chicago, Ill. Delivery to begin at once, with proportionate monthly shipments^ and to be completed on or before December 3Í, 1918. As soon as possible inform this office as to number, weight, and cubical measurements of packages and Government bill of lading-will be furnished covering shipment.
    (Req. S-307 — (A-l). Replenishment of stock. (S.S.&T.) F.Y. 1918.)
    1,702,087% (25%) pounds slioes, horse, light steel or iron. 100 lbs. to keg, as per accepted sample; front and hind shoes to he packed separately:
    75,000 pounds #1—
    (1) 34,375 pounds front, per 100 lbs., $5.39: for all_$1, 852. 81
    (2) 40,625 pounds hind, per 100 lbs., $5.39 for all_ 2,189. 69 363.750 pounds #2—
    (3) 179,375 pounds front, per 100 lbs., $5.145 : for all_ 9. 229. 84
    (4) 184,375 pounds hind, per 100 lbs., $5.145 ; for all__ 9, 486. 09 904.500 pounds #3—
    (5) 457,500 pounds front, per 100 lbs., $5.145 ; for all_ 23, 538. 38
    (6) 447,000 pounds hind, per 100 lbs., $5.145; for all__ 22, 998.15 308,125 pounds #4—
    (7) 153,125 pounds front, per 100 lbs., $5.145 ; for all— 7, 878. 28
    (8) 155,000 pounds hind, per 100 lbs., $5,145; for all_ 7,974.75 26.500 pounds #5—
    (9) 11.000 pounds front, per 100 lbs. $5,145; for all 565.95
    (10) 15.500 pounds hind, per 100 lbs., $5.145; for all 797.48 22,500 pounds #6—
    (11) 12,125 pounds front, per 100 lbs., $5.145; for all 623. 83
    (12) 10,375 pounds liind, per 100 lbs., $5.145; for all__ 533. 79 1,712% pounds #7—
    (13 ) 775 pounds front, per 100 lbs., $5,145; for all 39.87
    (14)937% pounds hind, per 100 lbs., $5,145; for all 48.23 881,250 pounds shoes, mule, light steel or iron, 100 lbs. to keg, as per accepted sample:
    (15) 10,375 pounds #0, per 100 lbs., $6,615; for all_ 686.31
    (16) 181,250 pounds #1, per 100 lbs., $5.39 ; for all_ 9, 769. 38
    (17) 171,250 pounds #2, per 100 lbs., $5.145; for all_ 8, 810. 81
    (18) 250,000 pounds #3, per 100 lbs., $5,145; for all_ 12, 862. 50
    (19) 214,375 pounds #4, per 100 lbs., $5.145; for all_ 11, 029. 59
    (20) 51,250 pounds #5, per 100 lbs., $5,145; for all_ 2,636.81
    (21) 2,750 pounds #6, per 100 lbs., $5,145; for all_ 141. 49
    Note. — It is requested that upon completing delivery of supplies called for on this purchase order a notation be placed on the last invoice stating that delivery is completed.
    A few days before supplies are ready for delivery, please inform this office and an inspector will be sent to your factory to inspect the supplies before shipment.
    By direction of D. Q. M.
    Chas. R. Sherman,
    
      8d Lieut., Q. M. G. N. A., Asst, to D. Q. M.
    
    On the same date a contract was prepared and thereafter executed by the parties, as follows:
    CONTRACT FOR SUPPLIES TO BE DELIVERED IN BULK AT DEPOTS AND TO PURCHASING QUARTERMASTERS FOR DISTRIBUTION OR USE IN MANUFACTURES, ETC.
    (To be used 'for all purchases of supplies, clothing, wagons, harness, bacon, etc., which are purchased in bulk or large quantities to be delivered at depots or to purchasing q
    Between C. R. Falk, Captain, Q. M. R. C. U. S. A., Jef-fersonville, Indiana, and Phoenix Horse Shoe Co., Chicago, Ill., for 1,702,087% pounds shoes, horse, and 881,250 pounds shoes, mule, at Jeffersonville, Indiana.
    Date contract: March 22, 1918. Contract expires December 31, 1918.
    Sureties: United States Guarantee Company, New York, N. Y., $14,000.00.
    Appropriation and amount:, S. S. & T.; F. Y. 1918; $133,-693.03.
    These articles of agreement, entered into this twenty-second clay of March, nineteen hundred and eighteen, between C. R. Falk, captain, Quartermaster Reserve Corps, United States Army, of tbe first part, for and in behalf of the United States of America, and Phoenix Horse Shoe Co. (a corporation existing under the laws of the State of Illinois), of Chicago, in the County of Cook, and State of Illinois (hereinafter designated as contractor), of the second part: Witness, That the said parties do hereby mutually covenant and agree to and with each other as follows:
    1. That the said contractor shall furnish and deliver the following-named supplies in the manner, at the rates or prices, at the place or places named herein, at the time or times stated, and for such supplies so delivered and accepted, the said contractor shall receive the prices as specified below: and that the supplies so delivered shall be like and equal in all respects to the accepted samples on file in the office of the depot quartermaster at Jeffersonville, Indiana, and each piece or article, or package, thereof, as the case may be, shall be marked with the contractor’s name, date of the contract, and depot of delivery, as directed by the receiving officer, if practicable, viz: F. o. b. Pittsburgh, _ Pa.: delivery to begin on or before April 1st, 1918, with proportionate monthly shipments, and delivery to be completed on oi‘ before December 31, 1918.
    ■One million seven hundred two thousand eighty-seven and one-lialt (1,702,087%. pounds shoes, horse, light steel or Iron, 100 lbs. to keg, front and hind shoes to be packed separately:
    Seventy-five thousand (75,000) pounds #1—
    Thirty-four thousand three hundred seventy-five (84.375) pounds front, for all, eighteen hundred fifty-two and
    81/100 dollars ($1,852.81)_(Per 100 lbs., $5.39)
    Forty thousand six hundred twenty-five (40,625) pounds, hind, for all twenty-one hundred eighty-nine and 69/100
    dollars ($2,189.69)_(Per 100 lbs., $5.39)
    Three hundred sixty-three thousand seven hundred fifty (363,750) pounds #2—
    One hundred seventy-nine thousand three hundred seventy-five (179,375) pounds, front, for all, ninety-two hundred twenty-eight and 84/100 dollars ($9,228.84)
    (Per 100 lbs., $5,145) One hundred eighty-four thousand three hundred seventy (184,370) pounds, hind, for all, ninety-four hundred eighty-six and 90/100 dollars ($9,486.09_(Per 100 lbs., $5,145)
    Nine hundred four thousand five hundred (904,500) pounds #3—
    Four hundred fifty-seven thousand five hundred (457,500) pounds, front, for all, twenty-three thousand five hundred thirty-eight and 38/100 dollars ($23,538.38)
    (Per 100 lbs., $5,145)
    Four hundred forty-seven thousand (447,000) pounds, hind, for all. twenty-two thousand nine hundred ninety-eight and 15/100 dollars ($22.998.15)_(Per 100 lbs. $5,145)
    
      Three hundred eight thousand one hundred twenty-five (308,125) pounds, #4—
    One hundred fifty-three thousand one hundred twenty-five (153,125) pounds, front, for all, seventy-eight hundred seventy-eight and 28/100 dollars ($7,878.28)
    (Per 100 lbs., $5,145)
    One hundred fifty-five thousand (155,000) pounds, hind, for all, seventy-nine hundred seventy-four and 75/100 dollars ($7,974.75)_(Per 100 lbs., $'5.145)
    Twenty-six thousand five hundred (26,500) pounds, #5—
    Eleven thousand (11,000) pounds, front, for all, five hundred sixty-five and 95/100 dollars ($565.95)
    (Per 100 lbs., $5,145) Fifteen thousand five hundred (15,500) pounds, hind, for all, seven hundred ninetS’-seven and 48/100 dollars ($797.48)
    (Per 100 lbs., $5,145)
    Twenty-two thousand five hundred (22,500) pounds, #6—
    Twelve thousand one hundred twenty-five (12,125) pounds, front, for all, six hundred twenty-three and 83/100 dollars ($623.83)_(Per 100 lbs., $5,145)
    Ten thousand three hundred seventy-five (10,375) pounds, hind, for all, five hundred thirty-three and 79/100 dollars ($533.79)-(Per 100 lbs., $5,145)
    One thousand seven hundred twelve and one-half (1,712(4) pounds, #7—
    Seven hundred seventy-five (775) pounds, frdnt, for all, thirty-nine and 87/100 dollars ($39.87)
    (Per 100 lbs., $5,145) Nine hundred thirty-seven and one-lialf (937(4) pounds, hind, for ail, forty-eight and 23/100 dollars ($48.23)
    (Per 100 lbs., $5,145)
    Eight hundred eighty-one thousand two hundred fifty (881,250) pounds, shoes, mule, light steel or iron, 100 lbs. to keg':
    Ten thousand three hundred seventy-five (10,375) #0, for all, six hundred eighty-six and 31/100 dollars ($686.31)
    (Per 100 lbs., $6,615)
    One hundred eighty-one thousand two hundred fifty (181,250) pounds, #1, for all, ninety-seven hundred sixty-nine and 38/100 dollars ($9,769.38)_(Per 100 lbs., $5.39)
    One hundred seventy-one thousand two hundred fifty (171,250) pounds #2, for all, eighty-eight hundred ten and 81/100 dollars ($8,810.81)-(Per 100 lbs., $5,145)
    Two hundred fifty thousand (250,000) pounds, #3, for all, twelve thousand eight hundred sixty-two and 50/100 dollars ($12,-862.50)-(Per 100 lbs., $5,145)
    Two- hundred fourteen thousand three hundred seventy-five (214,375) pounds, #4, for all, eleven thousand twenty-nine and 59/100 dollars ($11,029.59)_(Per 100 lbs., $5,145)
    Fifty-one thousand two hundred fifty (51,250) pounds, #5, for all, twenty-six hundred thirty-six and 81/100 dollars ($2,636.81) (Per 100 lbs., $5,145)
    Two thousand seven hundred fifty (2,750) pounds, #6, for all, one hundred forty-one and 49/100 dollars ($141.49) (Per 100 lbs., $5,145)
    Ill addition to the ordinary precautions heretofore adopted by the contractor for the guarding and protection of his plant and work, the company shall provide such additional watchmen and devices for protection of its plants and property and the work in process for the War Department against espionage, acts of war, and of enemy aliens as may be required by the Secretary of War. The contractor shall, when required, report to the Secretary of War the citizenship, country of birth, or alien status of any and all of its employees. When required by the Secretary of War it shall refuse to employ, or if already employed, forthwith discharge from employment and exclude from its works any person or persons designated by the Secretary of War for cause as undesirable for employment on work for the War Department.
    2. That the United States shall have the right at any time to inspect, in the manner deemed necessary, by duly authorized officer or agent, the articles in process of manufacture and to reject any materials or workmanship not conforming to requirements; the action of such inspector to be in an advisory capacity only, the final inspection to be made at the place where delivery is required.
    3. That the articles herein contracted for shall be examined and inspected, without unnecessary delay after being-delivered, by a person or persons appointed by the United States; and upon such inspection the articles found to be in all respects as required by this contract shall be received and become the property of the United States. Any and all articles that may, upon such inspection, be condemned or rejected, shall be removed from the premises by the contractor within 10 days after the said contractor or his agent shall have been notified of such rejection; otherwise, at the risk and expense of the contractor.
    
      % * * ❖ ❖ *
    5. That for and in consideration of the faithful performance of the stipulations of this contract, the contractor shall be paid, at the office of the contracting officer, or by a disbursing officer designated by him to- make payments, the prices stipulated in this contract for those supplies delivered and accepted; and, except as otherwise provided, payments will be made as soon after the acceptance of each delivery as is practicable and funds on hand for the purpose will admit.
    6. That in the performance of this contract the said contractor shall not, directly or indirectly, employ any person undergoing sentence of imprisonment at hard labor which may have been imposed by a court of any State, Territory, or municipality having criminal jurisdiction, nor permit such employment by any person furnishing labor or materials to said contractor for use in fulfillment of this contract.
    7. That it is expressly agreed and understood that this contract shall be noneffective until an appropriation acle-quate to its fulfillment is granted by Congress and is available, except in so far as is necessary to provide for tlie necessities of tlie service as authorized by section 3732 of the Devised Statutes of the United States. In order, however, to provide for the necessities of the service, as authorized by section 3732 of the Devised Statutes of the United States, it is agreed that the supplies specified herein, so far as authorized by said section, shall be delivered at the times and in the manner required under this contract, and that payments for the supplies so delivered and accepted shall be made as soon as it is practicable after funds are available under appropriations therefor by Congress.
    8. That in case of the failure of the contractor to perform any part of this contract the party of the first part, or his successor, shall have the right to supply the deficiency by procurement in open market or otherwise, purchasing an3r of the supplies so required at such place as he may elect, with a view of obtaining the same promptly and at the same time endeavoring to secure fair and reasonable prices (the articles procured to be the kind herein specified, as near as practicable), at the expense of the contractor; and in case failure should occur prior to the time fixed for performance of all parts of the contract the right is hereby reserved to the United States to elect whether the contractor shall be permitted to continue performance as to such remaining part (deficiency by reason of any further failure to be supplied as above) or whether the entire unperformed part shall be procured at the expense of the contractor. In event, however, of the granting of additional time for performance, the cost of inspection and other expenses and damages to the United States over what would have been incurred had performance been accomplished by the time originally fixed therefor, if any, except in so far as the same may arise from delays for which the United States is responsible, as determined in each of these particulars by the officer in charge or higher authority, shall be charged to the contractor and may be deducted from any money due or to become due saicl contractor from the United States: Provided, That where additional time has been granted the United States shall also have the right to cause the remaining part of the contract, or any portion thereof, to be taken from the contractor whenever, in the opinion of the officer in charge, reasonable and satisfactory progress is not being made, and to secure completion at the expense of the contractor, including charges as above on account of delays.
    9. That the contractor shall hold and save the United States, and all officers, and agents thereof, harmless from and against all demands of any nature or kind for or on account of the use of any patented article, combination, or process which may affect the material delivered or’ work done under this contract.
    10. That neither this contract nor any interest therein shall be transferred to any other party or parties, and in case of such transfer the United States may refuse to carry out this contract either with the transferor or the transferee, but all rights of action for any breach of this contract by said contractor are reserved to the United States.
    11. That the following changes or alterations were made in this contract before it was signed by the contracting parties, viz: Articles four (4.) and thirteen (13) and irrelevant words in preamble, and articles one (1) and twelve (12) stricken out, and words “accepted samples” inserted line five (5), article one (1). Woi*d “Reserve” inserted in preamble, and signature of contracting officer. One extra sheet added.
    12. That no Member of or Delegate to Congress, or Resident Commissioner, is, or shall be, admitted to >any share or part of this contract, or to any benefit which may arise herefrom, but, under the provisions of section 116 of the act of Congress approved March 4,1909 (35 Stats. L., 1088), this stipulation shall not extend, or be construed to extend, to any contract made with 'an incorporated company for its general benefit.
    In witness whereof, the parties aforesaid have hereunto placed their hands the date first hereinbefore written, and the contracting officer hereby certifies that if the contractor is a corporation that said officer has satisfied himself of the authority of the person signing the contractor’s name to bind the contractor and has waived the requirements of Army Regulations as to the filing of written evidence of said authority:
    Witnesses:
    Bessie M. IIeuseu, as to—
    C. R. Poke,
    Captain, Quarter-master Reserve Corps, U. 8. A.
    
    By Roscoe R. FouaND,
    . M Lt., Q. M. C. N. A.
    
    S. M. KiRK, as to—
    PhoeNix House Shoe Co.,
    By J No. W. KiseR, Jr.,
    
      President.
    
    III. Thereafter, approximately about the 19th of April, the plaintiff wrote a letter which is not in the record. In reply thereto it received a communication as follows:
    
      War DEPARTMENT,
    Oeeice oe the Depot Quartermaster,
    
      Jeffersonville, Indiana, April 1918. From: Depot Quartermaster1.
    To: Wm. J. McCxmly, Chairman Hardware Mfgrs. Organization for War Service, New Brunswick, N. J.
    Subject: Change in price of Horseshoes.
    1. Replying to your letter of April 19, 1918, you are advised that the- orders for horseshoes have been changed to Pittsburgh base price rather than mill price.
    2. Please accept my thanks for the information contained in your letter.
    By direction of D. Q, M.:
    James K. Bahnerman,
    
      1st Lieut., Q. M. G., N. A., Asst, to D. Q. M.
    
    It also received another communication, which is as follows :
    War Dex'artment,
    
      Jeffersonville, Ind., April %6,1918.
    
    From: Depot Quartermaster, Jeffersonville, Ind.
    To: Phcenix Horse Shoe Co., Chicago, Ill.
    Subject: Purchase Order No. 7686.
    1. Deferring to purchase order No. 7686, dated March 22, 1918, issued in your favor for 1,702,087-1- pounds horseshoes and 881,250 pounds muleshoes, you are informed that in accordance with the recommendation of Mr. Wm. J. Mc-Curdy, chairman of the horseshoe committee, basis of delivery on your order has been changed to f. o. b. Pittsburgh, Pa., instead of f. o. b. mill.
    2. Before making shipment of supplies called for on your order, you should make request, on this office for Government bill of lading to cover shipment.
    By direction of D. Q. M.:
    James K. Bannermah,
    
      1st Lieu-t., Q. M. O., N. A., Asst, to D. Q. M.
    
    . No change in the terms of the contract was ever made by anyone having authority to make such a change.
    IV. Under an arrangement between the parties the defendant was entitled to a. 2 per cent discount upon the gross amount involved in the material delivered. The defendant paid the freight from the point of origin to the point of destination. The plaintiff began delivery of the material on the 6th day of April and continued to deliver it up to and including May 4, 1918, when it completed the deliveries called for by its contract. A statement of the deliveries as made and the theory upon which the plaintiff claims that the payments should have been made is contained in the following-:
    Cr:AiMANT:s Exhibit No. 5
    Date April 6/18 _ _ April 12/18. April 16/18. April 18/18. April 30/18. May 4/18... Destination San Antonio. Chicago, Ill_ Chicago, Ill. Chicago, Ill. Jeffersonville, Ind. Jeflersonville, Ind. Base price, Pittsburgh $5.25 5.25 5.25 5.25 5.25 5.25 2% cash count >. lOJ^ .10J^ .10^ • 10K .10A .10H Net, Pittsburgh $5.14^ 5.14^ 5.14 A 5.WA 5. liH 5. WA Freight, Pittsburgh to destination 81.7$ per keg. 21 K$ per keg. 21H$ per keg. 21K$ per keg. 21$ per keg. 21$ per keg. Freight, Joliet to destination 74$ per cwt. 3$ per cwt. 3$ per cwt. 3$ per cwt. 18$ per cwt. 18$ per cwt. Date Destination April 6/18... April 12/18.. April 15/18.. April 18/18.. April 30/18. . May 4/18... San Antonio. Chicago. Ill. Chicago, Ill_ Chicago, Ill. Jeffersonville, Ind.. Jeffersonville, Ind.. Actual cost del. Total of invoice less 2% $5.962 5.36 5.36 5.36 5. S5A 5.35A $4,982.52 17,887.48 20,662.02 21,296.70 35,301.66 36,429.46 136, 559.84 Paid by U. S. on a/c $4,959.20 16,921.32 19,865.04 20,456,52 35,187.82 35,901.81 Amount due and owing as fair compensation $23.32 966.16 794.98 840.18 113.84 527.65 133,291.71 3,268.13
    The plaintiff ivas paid for the material, or much the greater part thereof, from time to time as the material was delivered and not according to the invoices upon the basis of the price alid terms contained in the contract and received and accepted the payments without protest or objection until it came to the matter of signing the final voucher, which by agreement between the parties was signed for the purpose of getting a decision from the Comptroller of the Treasury on the matter then in dispute and which is here for decision. In connection with the signing of this voucher the plaintiff attempted -to reserve its rights in the amount sued for in this case and had a hearing before the Comptroller of the Treasury, whose decision was adverse to the plaintiff. The matter was presented to the purchase section of the War Claims Board and thereafter, on the 21st day of July, was decided adversely to the plaintiff. Subsequently, on the 9th day of January, 1922, plaintiff brought this suit.
   Graham, Judge,

delivered the opinion of the court.

This suit grows out of a contract for the saie of certain horseshoes by the plaintiff to the defendant. The horseshoes were delivered and accepted by the defendant. Under an arrangement between the parties the defendant was entitled to a 2 per cent discount upon the gross amount involved in the material delivered. The defendant paid the freight from the point of origin, Joliet, Ill., which in effect is Chicago, to Jeffersonville, Ind., the point of destination. Plaintiff received the net sum of $133,291.71, being the basic contract price for the horseshoes delivered less 2 per cent discount. It is suing here to recover the sum of $3,268.31, being the difference in amount between the freight charges from the point of origin to the point of destination and the freight charges from Pittsburgh to the point of destination.

The defendant stands upon the contract which called for the delivery of the goods f. o. b. Pittsburgh, Pa. The plaintiff contends that it was the understanding of the parties, confirmed by correspondence with representative of the depot quartermaster, after acceptance of the order by the defendant that the price named was upon the basis of ” Pittsburgh base,” delivery f. o. b. Chicago; that is to say, 111 at the defendant was called upon to pay the freight from Pittsburgh to the point of destination less the amount of freight from the point of origin to point of destination.

The contract, dated March 22, 1918, was duty executed by the parties.

Plaintiff asks a reformation of the contract upon the ground of mistake. The facts show that the plaintiff in its proposal fixed its price with reference to the “ Pittsburgh base.” This was not accepted by the defendant, and thereafter the contract, as stated, was executed by the parties. Deliveries began on the 6th of April, 1918, and continued through to the 4th of May, 1918, inclusive, and the material was paid for on the basis of material received and not per invoices. There is no mutual mistake shown. On the contrary, the plaintiff does not seem to' have raised any question in the matter until the 17th day of April, at which time it had delivered about one-third of the material. It accepted the payment made by the Government, although in signing the final voucher it stated that “We do not wish to place ourselves in the position of accepting payment as payment in full, and did so to facilitate matters,” the purpose of both parties in executing this voucher being to get a decision from the Comptroller of the Treasury.

It is unnecessary to go into how the amount claimed is arrived at. Suffice it to say that plaintiff is' attempting to recover an amount of money which it never paid out upon a theory of payment which is contrary to the terms of the contract entered into between the parties.

It is elementary that there is merged in an executed contract all previous negotiations and understandings between the parties and that it can not be reformed or set aside unless some fraud, accident, or mutual mistake be shown ivliich would have the effect of establishing the fact that the contract did not represent the union of the minds of the parties The presumption is in favor of the contract, and it can not be reformed or set aside without proof of a character that is clear and convincing.

The plaintiff made a proposal which embodied the basis of payment which it contends for here. The defendant accepted the proposal upon the basis which was named in the contract. The contract was prepared and sent to the plaintiff and executed by both parties and deliveries commenced thereunder. After deliveries had been commenced and a considerable portion of the material had been delivered the plaintiff took up the matter of what it claimed was an incorrect statement of the terms of the payment in the contract. There is some evidence that its view of the meaning of the contract was accepted by the representative of the depot quartermaster. No authority has been shown on the part of this representative of the depot quartermaster to alter this contract after it was executed, and that he had no authority to do so by virtue of the position which he held is well established. Wilcox v. United States, 56 C. Cls. 22A-235.

Payments were made on the basis of the contract and accepted by the plaintiff. In signing the final voucher it did in a way reserve certain rights, but this reservation does not in any way alter or affect the real principle involved. Under the terms of the contract the delivery was f. o. b. Pittsburgh. It is a well known and understood term in commercial circles. It simply meant that the defendant was to pay the freight charges up to tire charge from Pittsburgh to the point of destination; in other words, it was a maximum charge which the defendant was to pay. Should the actual charge be less than this amount, the defendant was only to pay that charge, whatever it was. Should it be more than the maximum charge, the defendant was only to jray the rate from Pittsburgh to point of destination. In this case the freight from the point of origin, Joliet, Ill., was less than this maximum charge from Pittsburgh to thc-poiut of destination and was paid by the defendant.

There is no proof in the case to justify a reformation of the contract. There is no sufficient proof of mutual mistake at the time of its execution. The plaintiff has received the full consideration fixed by the contract. In this view of the matter the petition should be dismissed, and it is so ordered.

Hay, Judge; DowNey, Judge; Booth, Judge; and Campbell, GMef Justice, concur.  