
    W. H. Moore et al v. The United States.
    
      On the Proofs.
    
    
      The contract is for 000,000 hard-burned, red brick. Delivery is to be diering the progress of the building, upon' requisition ; payment, upon approval and acceptance by the superintendent. During the first building-season the contractors deliver 12,500 brick. Without fraud, misrepresentation, or concealment on their part, these are accepted and paid for. Subsequently an inspector reports that they are of inferior quality. Thereupon the Supervising Architect of the Treasury “cancels” the contract. The contractors then have on hand 100,000 brick. They make no tender of them,- but sell them at less-than the contract price. They now seek to recover their loss, and profits on brick not manufactured, and extra expenses in making molds for “full-faced” brick.
    
    I.Where a contract requires manufacturers to furnish brick subject to the approval and acceptance of the defendants’ superintendent, lie is thereby made the responsible judge of their quality.
    II.It is no ground for rescinding a contract, that goods delivered by the manufacturers and acoei>ted by the defendants’ superintendent were inferior to the quality prescribed by the contract, if the. acceptance was without fraud, misrepresentation, or concealment on the part of the manufacturers.
    III. A tender is not necessary where a contract has been rescinded by the purchaser, and the manufacturer has been notified that no goods will be accepted under it.
    IV. When a contract for the manufacture and delivery of brick is rescinded wilhont just cause, the manufacturer is entitled to recover prospective profits on brick not manufactured, to be estimated under the rule in Floyd & Speed’s Cases.
    V.Whore a written contract is for the manufacture of hard-burned, red brick, parol evidence is admissible to show whether the brick intended by the parties wore “ full-faced” or “ concave.”
    
    
      The Reporters7 statement of tbe case:
    The following are the facts of the case as found by the court:
    I. On the 31st of May, 1875, Seth W. Beals, superintendent of the construction of the United States court-house and post-office building at Lincoln, Nebr., caused to be published the following advertisement:
    
      11 Proposals for brioles for the United States court-house and post-office, Lincoln, Nebraska.
    
    “Office of Superintendent,
    “ May 31, 1875.
    “ Sealed proposals will be received at this office until 12 m. the 12th day of June, ’75, for furnishing and delivering at the site of the Uiiited States court-house and post-office, Lincoln, Nebraska, six hundred thousand ((>00,000). more or less, hard-burned, red bricks of the best quality, taken from the heart of the kiln; no salmon or arch bricks will be received.
    “A sample brick must be submitted with each proposal.
    “ Delivery will be made at such times and in such quantities as may be required by the superintendent and the progress of the work.
    “ All bids must be made on the printed form to be obtained on application at this office, and must be accompanied by a penal bond of two responsible persons in the sum of one thousand dollars ($1,000). The bidder will accept and perform the contract if awarded to him, or, in case the United States should so devise, will execute a contract in accordance with the terms of this advertisement and his proposal, and give such security for the faithful performance thereof as shall be satisfactory to the United States, the sufficiency of the security in each case to be certified to by the U. S. judge, the clerk of the U. S. court, or the district attorney of the district in which he resides.
    “ Payments will be made monthly, deducting ten per cent., until the completion of the contract.
    “ The department reserves the right to reject any or all bids if it be deemed for the interest of the government to do so.
    “ Proposals must be enclosed in a sealed envelope, endorsed 1 Proposals for bricks for the United States court-house and post-office, Lincoln, Nebraska,’ and the samples must have a label with the name of the bidder, and both must be addressed to—
    “Seth W. Beals,
    “ Superintendent.”
    II. Under said advertisement the claimants made proposals for furnishing the bricks, and in pursuance thereof the following contract was entered into between them and the said Beals, superintendent as aforesaid:
    “ Contract between the United States of America and Moore & Krone.
    
    “ This contract, made and entered into by and between Seth W. Beals, superintendent of the construction of the United States court-house and post-office building at Lincoln, Nebraska, for and in behalf of the United States of America, of tlie first part, and William H. Moore and Frederick W. Krone, of the city of Lincoln, county of Lancaster, State of Nebraska, doing business under the name, style, and firm Moore & Krone, to whom was awarded the contract for furnishing aud delivering six hundred thousand (600,000), more or less, hard-burned bricks for the construction of the United States court-house and ¡>ost office building at Lincoln,.Nebraska, on their bid for the same, received under advertisement dated May thirty-first, A. D. 1875, on the second part, witnesseth:
    “That the parties of the second part covenant and agree to and with the party of the first part to furnish and deliver on the site of the United States court-house and post office building at Lincoln, Nebraska, six hundred thousand (600,000), more or less, hard-burned red bricks of the best quality taken from the heart of tli.e kiln, and to be equal in every respect to the sample of brick furnished by them to the party of the first part, and in full accordance with the terms of the advertisement hereunto attached and forming a part of this contract; and the parties of the second inert further agree to deliver said bricks at such times and in such quantities as may be required by the superintendent of said building, or as the progress of the work demands.
    “And the said party of the first part, acting for and in behalf of the United States, doth covenant, promise, and agree to pay) or cause to be paid, unto the said parties of the second part, or to their heirs, executors, administrators, or assigns, in lawful money of the United States, the sum of ten dollars ($10) ■ per thousand for said brick delivered in accordance with the terms of this contract.
    “Payments to be made in the following manner, viz: Ninety per cent, (nine-tenths) of the value of the bricks delivered will be paid from time to time in monthly payments, the said value to be ascertained by the superintendent; and ten per cent, thereof (one-tenth) will be retained until the completion of the delivery of said brick and the approval and acceptance of the same by the superintendent, which amount shall be forfeited by said parties of the second part in the event of the non-fulfilment of this contract to the entire satisfaction of said superintendent.
    “It is further covenanted and agreed by and between the parties to this contract that if, from any cause whatever, the said parties of the second part should fail in required promptness in the delivery of said brick by or within the time or times specified above, it shall become the duty of the said superintendent; and he shall be, and hereby is, authorized and empowered, after eight days’ due notice thereof, in writing, left at the shop, office, or usual place of abode of the said parties of the second part, or with, their agent, without effect, to purchase and supply any deficiency of said brick caused by the delinquency of the said parties of the second part; aud the actual cost thereof, together with fifteen per cent, thereon, shall be deducted from any moneys due or owing to the said parties of the second part on account of this contract; and if that amount he not due them, then their bondsmen are to be held liable for any deficiency, to be recovered of them by suit in the name of the United States; or the said party of the first part may elect that, if the parties of the second part should fail to deliver said brick by or within the time or times specified above, that they shall forfeit the sum of fifty dollars ($50) per- diem for each and every day thereafter until the final completion of delivery of said brick, which sum shall be deducted from any moneys which may be due them; and if that amount be not due them, then their bondsmen are to be held liable.for any deficiency, to be recovered of them by suit in the name of the United States.
    “ It is further covenanted and agreed between the parties to this contract that the parties of the second part shall execute, with two or more good aud sufficient sureties, a bond to the United States in the sum of one thousand dollars ’($1,000), conditioned for the faithful performance of this contract, aud the agreements and covenants herein made by the said party of the second part.
    “It is also covenanted and understood that no member of Congress, or other person whose name is not at this time disclosed, shall be admitted to any interest in this contract; and it is further covenanted and agreed that this contract shall not be assigned except by consent of the Secretary of the Treasury ; and that any assignment thereof, except as aforesaid, will be a forfeiture of the same.
    “It. is further covenanted aud agreed by and between the parties hereto that this contract shall be valid and binding when approved by the Secretary of .the Treasury, and not otherwise, and no departure from its conditions shall he made without his written consent.
    “ In witness whereof the parties hereto harm, hereunto subjwaribed their names and affixed their seals this twenty-sixth (2(1) day of June, A. 1). 1875.
    
      “ Seth W. Beals. seal.
    “WilliaM H. Moore. [seal.
    “Frederick W. Krone.” seal.
    III. During the building season of 1875 claimants delivered i2,500 bricks, one-third of which were of the quality required by the contract, and the other two-thirds (being largely composed of arch and salmon brick) were much inferior to it. But they were all approved and accepted by the superintendent, Setb TV. Beals, and afterwards used in the building, and paid for by the defendants. It does not appear that this approval and acceptance was procured by any fraud, misrepresentation, or concealment of the claimants.
    IY. In the summer following, when work upon the building was about to be resumed, an inspector Avas. sent out by the Treasury Department to make an examination, and upon the reception of his report the following letter was addressed to the superintendent, and by him communicated to the claimants, during the month of July, 1876:
    “Treasury Department,
    “ Office of Supervising Architect,
    “ July 17, 187C.
    “Seti-i W. Beals, Esq...
    “ Superintendent U. ¡3. court-home and post-office,
    
    Lincoln, Neb.:
    
    “ Sir: The report of the supervising inspector upon the condition of the Avork under your superintendence has been received and the facts therein noted and rex>orted to the Secretary of the Treasury under date of June ID last, Avith recommendations that the contracts of M. E. Hill to supply Beatrice stone, and Messrs. Moore & Krone'to supply brick for the construction of said building, may be canceled.
    “ Under date of the 15th instant the Secretary of the Treasury directs the cancellation of the contracts, and you Avill please inform the contractors accordingly.
    “ Very respectfully,
    “H. G-. Jacobs,
    
      '■'Acting Supervising Architect?
    
    At the time this notice was given to the claimants, they had on hand and ready for delivery about 300,000 brick of the average quality of the 12,500 delivered the year before, to wit, 100,000 of the quality called for by the contract and 200,000 of the interior quality, being mostly arch or salmon brick. No demand by defendants or tender by claimants was made. These brick were afterwards sold to other parties for $8 per thousand, which was then the market price. After the claimants made' no brick expressly for defendants.
    V. The net profit on claimants’ contract, after deducting the. reasonable value of the future risk, care, and responsibility from Avhich they were relieved, would have been $1 per thousand brick.
    YI. At the time the contract Avas made it was understood by both parties thereto that the brick contracted for were to be “full-faced,” not concave. The cost of making “full-faced” brick exceeds the cost of making concave by half a dollar per thousand. Molds for making “ full-faced” brick were procured by the claimants at a cost of $40.
    
      Mr. John J. Weed for the claimants.
    
      Mr. F. J. Lippitt (with whom was the Assistant Attorney-General) for the defendants.
    Assuming the brick delivered to have been equal to the sample, this was not a sale by sample. To make a sale by sample the contract must be solely with reference to the sample, and the sale intended by the parties as a sale by sample. (2 Sandf. S. C., 189, Beirne v. Dond.)
    In this case the contract made certain requirements wholly independent of the sample clause.
    Claimants cannot recover, because the bricks were unfit for the use for which they were designed. When an article is sold or agreed to be manufactured for a particular purpose which is known to the contractor, there is an implied warranty that it is fit for that purpose. (Story Sales, §§ 368, 371; 24 Vt., 117, Beals v. Olmstead; 5 Bing., 544, Jones v. Bright; 2 Chand. (Wis.), 28, Getty v. Iiovntree; Wharton Law Lexicon, Warranty; 2 M. & Gt., 279, Brown v. Fdgington; Benjamin Sales, 525.)
   Scoeield, J.,

delivered the opinion of the court:

In June, 1875, the defendants, being about to erect a public building at Lincoln, Nebr., contracted with claimants to deliver, during the progress of the work, upon requisition of the superintendent, 600,000 hard-burned red brick. After approval and acceptance by the superintendent, the brick were to be paid for at the rate of $10 per thousand. During the building season of that year, as appears by the third finding of fact, claimants delivered 12,500 brick. These brick, having been first approved and accepted by the superintendent, were used and paid for by the defendants. In the following summer, when work was about to be resumed, a government inspector was sent out to examine the building. Learning from this inspector’s report that a portion of the brick already delivered was of an inferior quality, as stated in the third finding of fact, the acting supervising architect of the Treasury, in the name of the Secretary, forthwith. canceled’? tlie contract. In the opinion of the court, the facts disclosed called for the removal of the superintendent rather than the “ cancellation ” of the contract. Without fraud, misrepresentation, or concealment on the part of the claimants, the brick were approved and accepted by the superintendent. Misled by personal interest, the contractors might have unintentionally overestimated the quality of their goods. But the superintendent was subject to no such infirmity. By the terms of the contract he was made the responsible judge. His approval and acceptance was a condition precedent to payment. And having used and paid for the brick after approval and acceptance by the superintendent, defendants .should have treated the transaction as part fulfillment. Nor did the fact that the claimants concurred in the superintendent’s decision justify the conclusion that a future requisition for brick of the contract quality by a more faithful superintendent would not have been honored.

The contract having been rescinded without good cause, the claimants are entitled to ther damages. At that time they had on hand ready for delivery 100,000 brick of the contract quality. It is true, as said by defendants’ attorney, that this 100,000 -was not tendered ; but a tender was not required after notice that it would be rejected. Besides, by the terms of the contract, delivery was to be made upon the requisition of the superintendent. .These brick were afterwards sold at the then market price for $8 per thousand. For this loss, reckoned at $2 per thousand, claimants are entitled to recover $200. In addition to these brick, claimants had a right under the contract to deliver 187,500 more, for which they demand prospective profits. It appears by the fifth finding of facts that their profits oñ this amount, after making reasonable deduction for the diminished time, care, and risk required for a complete fulfillment of the contract, should be íeckoned at the rate of $1 per thousand, making $487.50. In the opinion of the court, this amount of additional damages should be allowed. It is required by the rule laid down by thiscourt in Floyd & Speed’s Cases (2 C. Cls. R., 429; affirmed by the Supreme Court in 8 Wallace, 77). Justice Miller, in delivering the opinion of the court affirming the court below, says :

u We do not believe that any safer rule, or one nearer to that supported by the general current of authorities, can be found to wit, the difference between the cost of doing the work and what the claimant was to receive for it, making.reasonable deduction for the less time engaged and for release from care, trouble, risk, and responsibility attending the full execution of the contract.”

Claimants also ask to be allowed $500 for the additional cost of making “full-faced” brick. This is refused. • The word “brick” as used in the contract imports “full-faced,” not concave brick. But if it were at all ambiguous, the parol evidence, -which for this purpose is admissible, removes all doubt. The fifth finding of facts sIioavs that claimants understood that the contract contemplated “ full-faced” brick. For the same reason the charge for making full-faced molds is disallowed.

The judgment of the court is that the claimants recover from the defendants the sum of $687.50.  