
    LOBENSTEIN’S CASE.
    (9 Court of Claims R., 135; 91 U. S. R., 324.)
    William C. Lobenstein, appellant, v. The United States, appellees.
    
      On the clmmcmfs Appeal.
    
    
      A contract provides “that the said party of the second part shall have all the hides of the beef-cattle slaughtered for Indians at Port Sill” “ which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians, the number of hides to be about 4,000.” The contractor is ready to receive the hides, when the superrn-tendent directs that all the cattle he turned over to the Indians on the hoof. No cattle are slaughtered for the Indians hy any one acting for the G-overnment; consequently, the contractor obtains no hides and suffers loss. Se brings his action for the profits ivhiah he might have made. The court below decides that the decision of the superintendent to turn over all the cattle on the hoof to the Indians was in effect that all the hides were required for their comfort. Judgment for the defendants. The claimant appeals.
    
    I. A contract which provides for the sale of “all the hides of beef-cattle slaughtered for Indians” by the Government at a certain place does not impose an obligation on the Government to slaughter any.
    II. A contract for the sale of “ all the hides of beef-cattle slaughtered for Indians” at a certain place, “which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indiams,” followed by a decision to turn all of the cattle over on the hoof to the Indians, is in effect a decision that all the hides are required for the comfort of the Indians, and relieves the Government from furnishing any to the contractor.
    III. When a contract for the sale of hides does not bind the Government to furnish any certain number, but only such as shall not be required for the comfort of Indians at an Indian agency, an estimate in the contract stating “the number to be about 4,000, more or less,” must be construed to be merely a representation of the probable number, and does not bind the Government to furnish any.
    
      The Reporters’ statement of the case:
    The court below found the following facts:
    In the year 1869, an arrangement was entered into between the Department of the Interior and the Department of War, for the supply, through the ¡Subsistence Department of the Army, of beef-cattle to the Indians, in pursuance of the fourth section of the act of April 10, 1869, “ making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1870.” (16 Stat. L., 13, 40.)
    By that arrangement the Department of War undertook to supply, through its Subsistence Department, such cattle as should be needed for Indians in the vicinity of Camp Supply and Fort Sill; and in reference thereto, as well as to other matters, the Commissary-General of Subsistence of the Army, on the 26th of May, 1869, gave written instructions to Brevet Major-General H. F. Clarke, assistant commissary-general of subsistence in the Military Division of the Missouri ; which instructions, in connection with the matter of furnishing said cattle, contained the following words :
    “ The cattle should be by contract, if possible, delivered by the contractors monthly or weekly, and when received, actually weighed upon the scales, to be transferred to the agents on foot; the Indians to have the benefit of the fifth quarter extra. The hides to be preserved and saved for sale when practicable.”
    The agents here referred to were officers of the Army, appointed to act as Indian agents at the several places where subsistence-supplies were to be issued to the Indians.
    General M. R. Morgan, chief commissary of subsistence of the Military Department of the Missouri, stationed at Fort Leavenworth, Kansas, was charged with the supervision of the subsistence of the Indians on the Southern Reservation, which included those to be supplied from Camp Supply and Fort Sill; and the aforesaid instructions- to General Clarke were transmitted to him for his guidance.
    Supposing himself thereto authorized by the above-quoted words of said instructions, the' said Morgan entered into the two written contracts with the claimant sued on, and which are in the words following, to wit:
    This agreement witnesseth : That the said party of the second part shall have all the hides of beef-cattle slaughtered for Indians at Fort Sill, Indian Territory, up to and including June 30,1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about four thousand, (4,000,) more or less. The hides shall be of average size, and, when turned over, dry-cured and in good order and condition. They shall be turned over on the spot, to the said party of the second part or his authorized agent, at the end of each month, at which time said agent of the party of the second part shall give a receipt for the number of hides turned over to him in good order and condition, and the responsibility of the party of the first part on account of said hides shall then cease.
    The agent of the said party of the second part shall superintend the skinning and curing of the hides.
    For and in consideration of the hides received, the party of the second part shall pay, monthly, the party of the first part the sum of two dollars ($2) for each and every hide received, upon the party of the first part surrendering the receipt of the agent of the party of the second part for the number of hides received.
    It is understood that while the party of the first part, after the turning over of the hides to the party of the second part, is not responsible for their safety and care, he will furnish such protection and shelter for the hides as he can conveniently control.
    [The second contract is in the same form.]
    It does not appear that any other authority than the above-quoted words from the Ootnmissary-GeneraFs instructions was given, either to said Clarke or said Morgan, in reference to the preservation, saving, or sale of hides.
    In September, 1869, the Commissioner of Indian Affairs directed that the cattle should all be turned over to the Indian agent on the hoof, which was done; and they gave them out from time to time to the Indians, by whom they were killed and cut up ; and no cattle were slaughtered for the Indians at Fort Sill or at Camp Supply by any one acting under the authority of the United States •, and the claimant obtained no hides of cattle furnished to the Indians at either of those posts during the period of time covered by the said contracts.
    The number of cattle supplied to the Indians from the date of said contracts to June 30,1870, was, at Fort Sill, 2,641; and at Camp Supply, 1,172.
    The claimant fully prepared himself to carry out and perform said contracts on his part; and to that end he sent an agent to Fort Sill, and one also to Camp Supply, to receive hides for him; and for their services and necessary expenses he paid them $1,256.76. Said agents were not sent to those points by-order of General Morgan, nor did they in any way represent him or any other officer of the United States.
    If the hides had been delivered to the claimant’s agents at Fort Sill and Camp Supply, they could have been sent thence to Leavenworth, Hans., by trains returning thither, after having taken out supplies to military posts. At Leavenworth they would have been worth 21 and 22 cents per pound; which after paying the price stipulated in said contracts, and the expense of agents and of transportation to that place, would have yielded the claimant a profit.
    At Fort Sill and Camp Supply there was no market for hides, and none were sold there, except by Indians to traders.
    
      Mr. G. F. PeoJc for the appellant:
    The particular question at issue before this court in this case is as to the proper construction and meaning of the following clauses of the contracts:
    “That the said party of the second part (claimant) shall have all the hides of the beef-cattle slaughtered for Indians at Fort Sill, Indian Territory, up to and including June 30, 1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about four thousand, (4,000,) more or less.”
    “That the said party of the second part (claimant) shall have all the hides of the beef-cattle slaughtered for Indians at Gamp Supply, Indian Territory, up to and including June 30, 1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about two thousand, (2,000,) more or less.”
    The claimant necessarily expended $1,256.75 in order to send and maintain agents to superintend the skinning, and to secure and take care of hides, agreeably to the other provisions of the .contracts, but got no hides. This the Court of Claims says was no breach of the contracts, the claimant having failed to show that the decisions of the superintendents of Indian affairs were made.
    In stating the grounds of this conclusion the court omit to give their opinion as to the purpose the contracting parties had in the specifications of numbers of hides the claimant was to have. These specifications are not mentioned or referred to in the statement of the grounds of the conclusion. The conclusion is incompatible with the specification. Manifestly the specification of the number of hides the claimant was to receive was the sole guarantee under which be incurred the heavy expense necessary to send agents so far to superintend the skinning and to care for and preserve the hides. If this guarantee or specification had been excluded from the contracts, William C. Lobenstein, a discreet and prudent dealer in hides at Leavenworth, Kaus., would not have spent a dollar in the enterprise.
    Effect must be given to these clauses by way of guarantee of number of hides the claimant should have, in order to give any effect to the remaining provisions. The cattle slaughtered for Indians were to be skinned. When the skinning was accomplished, the superintendent of Lidian affairs was to decide— “shall decide,” are the words.
    The Commissary-General and his assistants decided that the cattle should be first slaughtered and the hides sold. This is evident from the instructions of the Commissary-General, and it also appears from the contract. The number of bides to be furnished was estimated, and that estimate formed the basis of the contract. The contractor protected himself from any such evasion by a stipulation that the contract should cover a sufficient number of hides to justify him in the expenses he must incur. The expression “ the number of hides to be about 4,000, more or less,” manifests plainly that General Morgan and Mr. Lobenstein both supposed and intended that about so many hides would be delivered; and the other expressions show that they supposed and intended that the cattle should be slaughtered for and not by the Indians. Good faith and honest dealing forbid that such evasions should defeat a contract fairly entered into. While the statement “ 4,000, more or less,” does not rigidly control the contract, it does not admit of any serious departure from that number. , 1
    According to Day v. Mnn, Owen, 133, cited in 9 Yin. Abr., 343, PL 10, sive plus sive minus shall be intended of a reasonable quantity, more or less, by a quarter of an acre, or two or three at the most. The words must naturally refer to the extent of the grant. Thus, in Quesnel\. Woocllief et al., cited in 2d Hen. & Munf., 173, (note,) it was decided that those expressions in a deed must be restricted to a usual or reasonable allow-anee for small errors in surveys, and for variations in instruments. In Nelson v. Matthews, 2 Hen. & Munf., 173, it was. adjudged “ that a deficiency of eight acres in a tract of 532 acres was no more or less than a purchaser who buys for more or less might reasonably expect, but that it was otherwise as to a deficiency of twenty acres. It cannot, therefore, be said here that a title for 903^ acres could be deemed equivalent to-991^ acres, although the words ‘ more or less’ are inserted in the conveyance.” (6 Binney’s R., p. 113.) “A contract for about 300 quarters, more or less,” of rye shipped on board a certain vessel, does not bind the purchaser to take 345 quarters. Gross v. Bigin, (2 Barn. & Adolphus’s R., 106.)
    It will always excuse the performance of a condition-precedent that the performance was hindered or prevented by the other party. No party can insist upon a condition-precedent when its non-performance has been caused by himself. (Williams v. The Bank of the United States, 2 Peters R., p. 102; Betts v. Ferrine, 14 Wend. R, p. 219; Gamp v. BarJcer, 21 Yerra. R., p. 469; Marshall v. Craig, 1 Bibb R., p. 384; Majors v. Hickman, 2 Bibb R., p. 218; Jones v. Walker, 13 B. Mon. R., p. 163; Fleming v. Gilbert, 3 Johns. R., p. 528; McNairy v. Bishop, 8 Dana R., p. 150; Mayor, <&o., v. Butler, 1 Barb. R., p. 338.)
    
      Mr. Assistant Attorney-General Smith for the United States, appellees:
    General Morgan could not bind the United States by the alleged contracts, which he was not authorized to make. By the Revised United States Army Regulations, pp. 251,252, §§. 1227,1228, the sales of subsistence supplies are to be by auction, after public notice, upon order of the Commissary-General, and § 1233 expressly enumerates “hides” as among the articles to be so sold. These regulations have the force of law. (United States v. Freeman, 3 How., 567; Gratiot v. United States, 4 How., 117.) As the contract only proposed that the claimant should have the hides of cattle slaughtered (by the Government agents) for the Indians, there was never anything for it to operate upon, since the animals were turned over alive to the Indians, and became their absolute property, subject to no control by Government officers. The claimant, in any event, was only to have such hides as the superintendent of Indian affairs should decide were not required for the comfort of the Indians. This decision was a condition precedent to his becoming entitled to any hides; and it makes no difference whether that- official never made any decision, or decided that all the hides were required by the Indians, for their comfort; in either case the claimant cannot recover. (Thurnell v. Balbirnie, 2 M. 6 W., 786,790; Worsley v. Wood, 0 T. E., 710; Milner v. Field, 5 Exch., 829; Morgan v. Birnie, 9 Bing., 672 ; Goole v. Jennings, 7 T. B., 384; Moaldey v. Riggs, 19 John., 69 ; Taylor v. Bullen, 6 Cowen, 629.)
    The contract was subject to the superintendent’s arbitration upon the point of what was required for the comfort of the Indians ; if he declined to arbitrate, or decided adversely to the claimant’s having any hides, the result would be the same. In either contingency the contract was at end. (Oases cited supra ; Palmer v. Ciarle, 106 Mass., 389; Flint v. Gibson, id., 391; Grafton v. Fastern Cos., 8 Exch., 699.)
    Of course the Court of Claims has the right to choose its own phraseology in stating the facts found, and no exception can be taken that it declined to adopt the language of the claimant, or refused to find a fact not proved, or which (if proved) was wholly immaterial.
   Mr. Chief-Justice Waite

delivered the opinion of the court:

We agree entirely with the Court of Claims in its construction of the contracts sued upon in this case. By one contract Lobenstein was to have “all the hides of beef-cattle slaughtered for Indians at Camp Supply, * * * up to and including June 30,1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about two thousand, more or less.” The other contract is similar in its terms, for the hides of cattle slaughtered for Indians at Fort Sill, the number to be about four thousand, more or less.

The Commissioner of Indian Affairs directed that all the cattle should be turned over to the Indian agent on foot, and this was done. None were slaughtered by any person acting under the authority of the United States, but they were all given out from time to time to the Indians, by whom they were killed. Consequently no hides could be delivered under the contracts.

There was no obligation on the part of the United States to slaughter the cattle or any portion of them for the Indians, and they were only bound to deliver the hides of such as they did slaughter, in case the Commissioner of Indian Affairs did not decide that they were required for the comfort of the Indians. If he decided that all were required by the Indians, that excused the United States from delivery to Lobenstein. He did in effect so decide when he directed that the cattle should all be delivered on foot. Lobenstein took this risk when he entered into the contracts, and he undoubtedly made his calculations of profits in case of success accordingly. The best evidence of this is to be found in the fact that he claims in this action to recover more than $15,000 for alleged loss of profits, while he has actually expended in preparation to meet his obligations only $1,256.75.

The estimate of the number of hides as made in the contracts does not create an obligation on the part of the United States to deliver that number. That estimate was undoubtedly intended as a representation of the probable number of cattle that would be delivered to the Indians. In point of fact the number actually delivered was very much less. Neither party could determine how many would be reserved by the commissioner for the use of the Indians. Therefore, necessarily, when the contract was made, the number specified could not have been understood to be a guaranteed number. If that number or its approximation was not guaranteed, none was. It follows, as a consequence, that this claimant has no right of action. He took his risk, and insured himself in his anticipated large profits if his venture proved a success.

The judgment of the Court of Claims is affirmed.  