
    THE PACIFIC STEAM WHALING COMPANY v. THE UNITED STATES.
    [No. 21681.
    Decided February 21, 1901.]
    
      On the Proofs.
    
    A statute authorizes the Secretary of War to relieve the suffering condition of the people of Alaska, and appropriates §200,000 therefor. Under it the chief quartermaster of the Department advertises for proposals to carry freight and reindeer between certain ports in Alaska. The claimant’s proposals are accepted by-him, but the contract is not reduced to writing. The claimant is ready to carry the freight, but the defendants fail to furnish it at a certain port, and the claimant suffers loss.
    
      The Revised Statutes (§ 3709) provide that when immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract. Where the service required was under the statute making an appropriation to relieve the suffering condition of the people of Alaska, Act December IS, 1897, (30 Stat. L., 226), it must be held that the act intended immediate execution, and that contracts thereunder were valid though not reduced to writing.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The Pacific Steam Whaling Company is a corporation chartered by the State of California, with its principal office and place of business at San Francisco, Cal., and at Seattle, in the State of Washington.
    II. The said company was, in the year 1898, the owners of a steambo.at called the Valencia, which was used in carrying passengers, freight, and animals from San Francisco, Seattle, and other ports to and from ports in Alaska.
    III. On the 26th day of February, 1898, the defendants, b}r the chief quartermaster, advertised in San Francisco papers for proposals to carry certain freight and animals, including reindeer, between the ports of Haines Mission and Port Valdes, in Alaska, at times named in the advertisement. The plaintiff answered the advertisement, making a proposal which was accepted by the defendants.
    IV. On the 19th of March the defendants wrote the plaintiff as follows:
    “Vancouver Barracks, Wash., March 19, 1898. “Mr. Claiborne,
    
      “Agent Pacific Steam Whaling Co.,
    
    “ Seattle, Washington:
    
    
      * * * “We also desire to substitute at Dyea 100 reindeer and attendants, sleds, and supplies for the 26 animals for which reservation was heretofore made. Can the Valencia accommodate so many animals ? The reindeer will take very little more space.
    “Very respectfully, “ J. W. Jacobs,
    “ Quartermaster, ü. S. Army, Chief Quartermaster."
    
    On the 23d of the same month the plaintiff answered by telegram:
    “Valencia can accommodate all the Government wishes to transport-”
    
      The plaintiff was to transport the reindeer at §30 per head.
    Y. The transportation of the reindeer in question from the port of Haines Mission, in Alaska, to Port Valdes, in Alaska, was required for the purpose of affording immediate relief to people in the Yukon River country in the interior of Alaska, ■who were represented to be in a suffering and starving condition.
    The public exigency required the immediate transportation of the reindeer, that they might be used in carrying supplies for their relief, so that there was not time to execute a written contract, as required by section 3709 of the Revised Statutes.
    YI. The Valencia left Seattle for Dyea, Sitka, and Valdes Inlet on the 7th of April, 1898.
    At the time of leaving Seattle the company reserved space on its boat for 100 reindeer, which space would have been occupied with passengers and cargo if it had not been so reserved, and for which space claimant would have earned for transportation §3,000 on that voyage.
    The vessel went from Seattle, via Dyea, arriving at Haines Mission April 12.
    The vessel remained there until the 14th of April, when the officers of the boat were notified that the reindeer were not ready. The vessel then returned to Dyea, arriving April 15, and on. the 16th sailed for Valdes. The defendants were notified by the master of the vessel that they were ready for the reindeer.
    On the 16th of April the defendants notified the plaintiff that they could not furnish the reindeer for shipment, when the vessel proceeded on its voyage.
    The plaintiff sustained damage by reason of the defendants failing to furnish the freight: First. In the amount of the contract price, namely, 100 reindeer, at §30 per head, §3,000. Second. Demurrage or loss of time in the delay of the vessel at Haines Mission,.by reason of their.having to wait for the reindeer, and change of course, §785.
    
      Mr. James Ooleman for the claimant.
    
      Mr. Felix Brcvnnigan (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   WeldoN, J.,

delivered the opinion of the court:

This case was submitted on the 22d day of May, A. D. 1900, upon written briefs, in which the theory of the plaintiff’s claim was, that it had the right to recover as upon a qucmtuno meruit, and upon that theory it was held that the claimant had no rig’ht to recover, upon the ground that the defendants had not been profited by the acts of the claimant, and therefore not bound to reimburse the claimant for any expense which it might have incurred in the attempted performance of the agreement.

In the argument of a motion for a new trial the claimant has based its right upon the further ground that the contract is binding on the defendants, although not in writing and signed by the respective parties, as required by certain sections of the Devised Statutes, and in support of that theory of the law directs the court’s attention to section 3709, which reads as follows:

“All purchases and contracts for supplies or services in any of the Departments of the Government, except for personal services, shall be made bjr advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.”

The authority to contract in reference to the subject-matter of the controversy arises under the provisions of the act of December 18, 1897 (30 Stat. L., 226), bjr which the Secretary of War is authorized to relieve the suffering condition of the people of Alaska, and for that purpose an appropriation of $200,000 is made, to be expended by the Secretary in such manner as would best relievo the suffering incident to the then condition of that people.

From the very nature of the subject the act was passed for immediate execution, and to apply the ordinary safeguard of the statute as to the making and execution of a contract would probably result in defeating the object and purpose of the law. This view of the situation was not apprehended at the time the case was decided, and hence the court applied the strict requirement of the statute to the rights of the claimant.

Upon reargument and the question of the emergency of the situation being presented, it is the judgment of the court that the former judgment is hereby set aside, new findings filed, and, the case now being submitted on its merits, a judgment is hereby ordered in favor of the claimant for the sum of $3,785.  