
    WABASH VALLEY PACKING CO. v. THE UNITED STATES
    [No. E-10.
    Decided April 4, 1927]
    
      On the Proofs
    
    
      Contract; purchase by sample; deliveries m accordance with sample.— Where in a contract for the purchase of canned goods it is provided that no article will be accepted by the Quartermaster Corps which is objectionable under the pure food laws, and that “ deliveries must be equal to accepted samples or prescribed standards,” the purchasing officer to make the determination in each case, and there is no proof that the articles delivered conflicted with the pure food laws or regulations thereunder, or that they were not equal to the samples accepted, and no standard was otherwise established by which deliveries could be governed, the contractor is entitled to the full purchase price.
    
      The Reporter's statement of the case:
    
      Mr. Wilfred Hearn for the plaintiff.
    
      Mr. Ralph C. Williamson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff, Wabash Valley Packing Co., is a corporation organized and existing under the laws of the Staté of Illinois.
    II. On or about the first day of November, 1918, the plaintiff received from the defendant, through the St. Louis depot quartermaster of the War Department, a circular proposal No. 277 requesting bids for subsistence stores, including an item of 204,908 cans of lye hominy. The said circular proposal contained the following among other provisions :
    “ Specifications and Conditions: Provisions of Q. M. C. Form No. 120, February, 1918, with such amendments as may be noted hereafter, will govern. Serial numbers indicated in attached list refer to serial numbers Q. M. C. Form No. 120.”
    The said Q. M. C. Form 120 contained among others the following provisions:
    “ Supplies purchased by the Quartermaster Corps are subject to interstate shipment, and the attention of all bidders is invited to the requirements of ‘An act for preventing the manufacture, sale, or transportation of adulterated or mis-branded or poisonous or deleterious food, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes,’ * * *. Attention is also invited * * * to the decisions of the Board of Food and Drug Inspection, issued from time to time by the United States Department of Agriculture. * * *
    “ No article will be purchased by the Quartermaster Corps which is objectionable under the above laws.
    “Deliveries must be equal to accepted samples or prescribed standards, and the purchasing officer shall make the determination in each case.”
    Under date of May 27, 1912, food inspection decision N°-144 was promulgated by the Department of Agriculture, as follows:
    “The can in canned food products serves not only as a container but also as an index of the quantity of food therein. It should be as full of food as is practicable for packing and processing without injuring the quality or appearance of the contents * * *. Canned foods, therefore, will be deemed to be adulterated if they are found to contain water, brine, syrup, sauce, or similar substances in excess of the amount necessary ror their proper preparation and sterilization.”
    Prior to November 18, 1918, the plaintiff submitted to the depot quartermaster of the War Department at St. Louis, Mo., a written proposal to furnish the said quantity of lye hominy at the price of $0.08 per can. A copy of said circular proposal No. 277, together with plaintiff’s proposal, is attached to plaintiff’s petition herein marked “ Exhibit A” and is by reference made a part of this finding.
    III. Sample cans of the hominy plaintiff proposed to furnish were submitted to the defendant by plaintiff in accordance with the requirements set forth in circular proposal No. 277.
    
      IV. Under date of November 22,-. 1918, tire defendant, through the depot quartermaster of the War Department at St. Louis, Mo., pursuant to the said written proposal of the plaintiff, issued to the plaintiff purchase orders Nos. S-756 to S-760, inclusive.
    A copy of purchase order No. S-760 is attached to plaintiff’s petition herein marked “ Exhibit B ” arid is by' reference made a part of this finding. All of the said purehase orders áre identical in all respects with the exception of those provisions relating to quantities and places of shipment.
    Item No. 233, Q. M. C. Form No. 120, of February 15,1918, referred to in. each of said purchase orders, is as follows:
    “Hominy, lye: No. 3 cans, 24 to case, liquor to be clear, hominy to be well cleaned and free from black spots.”
    V. On January 20, 1919, the plaintiff shipped 24,000 cans of lye hominy of the invoice value of $1,920 to the zone supply officer of the defendant at St. Louis, Mo., in fulfillment of purchase order No. S-756; on January 21, 1919, 18,140 cans of the invoice value of $1,451.20 to the zone supply officer of the defendant at Chicago, Ill., in fulfillment of purchase order No. S-757; and on January 29,1919, 24,000 cans of the invoice value of $1,920 to the zone supply officer of the defendant at El Paso, Tex., in fulfillment of purchase order No. S-758. These three shipments were received, accepted, and paid for by the defendant according to the terms of the invoices and the purchase orders.
    VI. On January 30,1919, the plaintiff shipped 24,000 cans of lye hominy of the invoice value of $1,920 in car designated as C., C., C. & St. L. No. 84691, and on February 6, 1919, 27,600 cans of 'the invoice value of $2,208 in car designated as L. S. & M. S. 144273, and on March 21, 1919, 12,048 cans of the invoice value of $963.84 in car designated as Sou. 269214 to the zone supply officer of the defendant at New Orleans, La., in fulfillment of purchase order No. S-759. The shipments of January 30, 1919, and February 6, 1919, were received, accepted, and paid for by the deferidant in accordance with the terms of the invoices and the purchase order.
    VII. On February 11, 1919, the plaintiff shipped 24,000 cans of lye hominy of the invoice value of $1,920 in. car designated as N. Y. C. 139358, and on February 12,1919, 19,392 cans of the invoice value of $1,551.36 in car designated as N. Y. C. 138453, to the zone supply officer of the defendant at Fort Sam Houston, Tex., in fulfillment of purchase order No. S-760.
    VIII. On March 6, 1919, the zone supply officer at Fort Sam Houston reported by wire to the Director of Purchase and Storage at Washington, D. C., the solid and liquid contents of the 43,392 cans of lye hominy received in cars N. Y. O. 139358 and N. Y. C. 138453, and on the same day the said zone supply officer was instructed to reject the two cars of lye hominy because of slack fill and excess liquid. The plaintiff was, on March 24, 1919, notified accordingly.
    After the plaintiff was notified that shipments made to Fort Sam Houston would be rejected, the plaintiff, on March 26,1919, wrote to the zone supply officer at St. Louis, in part, as follows, with reference to the Fort Sam Houston shipments:
    “ We are willing to allow whatever reduction is necessary to cover this shortage, but to have these cans rejected will mean absolute bankruptcy to us. * * * We earnestly solicit you to make some adjustment of this that will not ruin us.”
    The plaintiff was notified by the defendant on April 5, 1919, and again on April 21, 1919, that car No. 84691, C., C., C. & St. L., shipped to New Orleans, although this car had previously been received, accepted, and paid for by the defendant, and cars N. Y. C. 138463 and. N. Y. C. 139358, shipped to Fort Sam Houston, would be rejected unless the plaintiff would accept a deduction of 13.4 per cent, 14.1 per cent, and 18.4 per cent, respectively, on its invoices covering those three shipments. The plaintiff wrote to the zone supply officer at St. Louis, Mo., on May 8, 1919, protesting against the deductions being made, but stating that on account of its financial condition it would be forced to accept the defendant’s terms if better terms could not be had from the defendant.
    IX. The Quartermaster General caused samples to be secured from all of the shipments of lye hominy previously made to the several zone supply depots. An examination of from 6 to 27 cans of lye hominy in each of said shipments was made by a captain, Quartermaster Corps, United States Army, a former chemist in the Department of Agriculture for a few years. The captain at the time had had no experience as to the adulteration of canned lye hominy, and after conducting experiments fixed upon 22 ounces of hominy as the proper standard of solids in a can No. 3 in size. The standard so fixed was obtained from a book, and the captain, prior to fixing the same, sought the opinion and collaboration of others in the department. The Quartermaster General’s office accepted this standard. The depot quartermaster at St. Louis, from whose office the purchase order issued, made no complaint about the plaintiff’s hominy and rejected none. From said examination as aforesaid the Quartermaster General determined that the said shipments contained less than 22 ounces drained weight per can to the following extent: St. Louis shipment, purchase order No. S-756, 23,-995 cans, 7 per cent; Chicago shipment, purchase order No. S-757, 18,140 cans, 8.2 per cent; El Paso shipment, purchase order No. S-758, 24,000 cans, 11.2 per cent; New Orleans shipments, purchase order No. S-759, 23,976 cans 13.4 per cent, 27,572 cans 14.2 per cent, 12,048 cans 5.2 per cent; Fort Sam Houston shipments, purchase order No. S-760, 23,934 cans 18.4 per cent, 19,111 cans 14.1 per cent.
    On June 14, 1919, the Quartermaster General ordered that deductions be made from the purchase prices of the various shipments in accordance with the shortages determined upon. These deductions amounted to $1,667.67, and were charged against the plaintiff and deducted in making payments for the shipment of March 21, 1919, to New Orleans, and the shipments of February 11 and February 12 to Fort Sam Houston.
    X. When the final payment of $2,763.57 was made by the defendant to the plaintiff, the plaintiff signed the vouchers under protest in the manner and form prescribed by the defendant.
    XI. There is no evidence to show that the lye hominy delivered to the defendant by the plaintiff, pursuant to the said proposal and the purchase orders, was not in all respects equivalent to the samples submitted by the plaintiff to the defendant at the time said proposal was made.
    
      The court decided that plaintiff was entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

The plaintiff is an Illinois corporation, engaged in the canning business at Mount Carmel, Ill. On November 1, 1918, the St. Louis depot quartermaster of the Army forwarded to the plaintiff a circular proposal requesting bids for, among other subsistence stores, 204,908 cans of lye hominy. The circular contained specific reference to the national pure food law and a warning to the plaintiff that “no article will be purchased by the Quartermaster Corps which is objectionable under the above laws.” It also set forth the vitally important stipulation that “ deliveries must be equal to accepted samples or prescribed standards, and the purchasing officer shall make the determination in each case.” The plaintiff returned to the depot quartermaster its bid of 8 cents per can, accompanying the same with sample cans of hominy it proposed to furnish, in accord with the proposal. Presumably the depot- quartermaster, the purchasing officer, was satisfied with the offer and the samples, for the bid of the plaintiff was accepted. On November 22, 1918, the depot quartermaster issued and forwarded to the plaintiff purchase orders numbered consecutively from S-756 to S-760, inclusive. Upon the face of each of the said orders was a reference to “Item No. 233, Q. M. C. Form No. 120, of February 15, 1918.” The order so referred to reads as follows: “Hominy, lye: No. 3 cans, 24 to case, liquor to be clear, hominy to be well cleaned and free from black spots.”

The plaintiff on January 20, 1919, shipped 24,000 cans of the value of $1,920 to the zone supply officer at St. Louis. This shipment supplied the full quantity requisite under purchase order No. S-756. The shipment was received, accepted, and paid for.

On January 21, 1919, the plaintiff supplied the quantity required under purchase Order No. S-757 by shipping to Chicago, Ill., 18,140 cans of the value of $1,451.20, the entire consignment being received, accepted, and paid for. On January 29, 1919, the plaintiff, under purchase order No. S-758, shipped 24,000 cans to El Paso, Tex., and it was received, accepted, and paid for. On January 30, 1919, and after-wards, on February 6,1919, the plaintiff consigned a total of 51,600 cans to New Orleans, and these, like former shipments, were received, accepted, and paid for. Up to and including the last date the plaintiff had shipped 117,740' cans and received without complaint or protest from the Government officers, in payment therefor, the total sum of $9,419.20. On February 11 and 12, 1919, the plaintiff shipped 43,392 cans to Fort Sam Houston, Tex., and on March 21, 1919, shipped 12,048 cans to New Orleans. The zone supply officer at Fort Sam Houston, on March 6, 1919, wired the Director of Purchase and Storage at Washington the solid and liquid contents of the 43,392 cans received at the fort. The Washington office immediately notified the officer to reject the shipments, and on March 24, 1919, notified the plaintiff accordingly.

Following the receipt of this alleged accurate information and the peremptory order of rejection, the receipt of the information and rejection having taken place on the same-day, the Quartermaster General inaugurated an investigation. From 6 to 27 cans of hominy were secured from each shipment made, forwarded to Washington, and there submitted for examination and analysis to a captain in the Quartermaster Corps. The captain had not theretofore acquired expert knowledge as to the solid content of a No. & can of hominy, nor did he subsequently determine the minimum requirement until after he obtained through submission to and collaboration with several other officers that 22 ounces was the very least the hominy should weigh, exclusive of fluid content. No regulation of the pure-food department had ever so provided, and the fixing of the standard was accomplished exclusively as narrated. The department unhesitatingly adopted the standard, and in pursuance thereof proceeded to make deductions from the plaintiff’s contract price for the hominy upon the following basis: Relying upon the alleged shortage in the solid contents of from 6 to 27 cans out of 24,000 shipped to St. Louis, and fixing the same at 7 per cent per annum of the gross receipts, viz, 23,995 cans, a deduction of 7 per cent from the purchase price was made. This same course with varying rates of percentage was followed as to all the remaining shipments, resulting in withholding from the plaintiff $1,667.67 of the total amount due him.

The plaintiff, in dire financial straits, agreed to settle the shipment rejected under purchase order No. S-560 for $583.92 less than the invoice price, thus making the final claim for which this suit was commenced total $1,073.40.

This case is to be determined by the provisions of the contract under which the sales were made. Obviously there is no stipulation in any paper making up the agreement fixing the quantity of hominy in each can. The defendant deduces a conclusion in justification of the deduction made, predicated upon an alleged violation and departure from the pure food law by the plaintiff. It ivas generous of the defendant to recite provisions of the pure food law in the proposal; but manifestly a proceeding wholly unnecessary. The pure food law is a law of the land, and it is hardly to be supposed that a corporation solely engaged in the canning industry was ignorant of its provisions; even so, the familiar presumption of knowledge of the law obtains. The plaintiff could not escape the consequences of its violation though not made a part of the contract. The law was passed to protect all citizens of the country and. not for the special benefit of the defendant. Giving to the terms of the contract in this respect their widest latitude, what are the consequences? “ No article,” it is said, “ will be purchased by the Quartermaster Corps which is objectionable under the above laws.” Who is to determine the fact of objectionableness? Surely no jurisdiction is conferred upon the Quartermaster General to determine the issue. The enforcement of the pure food law is committed to other sources. The edict of the Quartermaster’s Department is not sufficient alone to convict one of a violation of the law. The court has a fixed opinion that the guilt or innocence of one charged with a violation of law is a judicial question.

If, however, the contract is to be construed as an obligation of the plaintiff to furnish an article of food Avhich meets the requirements of the pure food law, there is no fact of record in the case which would warrant a conclusion that this was not done. Whatever else may be said, it is evident beyond disputation that the hominy delivered was not unfit for human consumption. The defendant retained it and presumably has consumed it. At any rate, it was not returned to the plaintiff and no offer to do so made. No regulation or ruling of the Department of Agriculture has been cited on the subject of adulteration of canned hominy, except decision No. 144, wherein canned goods are to be deemed as adulterated containing brine, sirup, water, etc., in excess of the amount for their preparation and sterilization. The only decision as to deleterious excess of fluids over hominy promulgated in this case emanates from the purchaser of the hominy, and this same purchaser keeps the hominy as a desired article of food.

Aside from all this, however, is the controlling stipulation of the contract, “ deliveries must be equal to accepted samples or prescribed standards, and the purchasing officer shall make the determination in each case.” The findings show that the plaintiff submitted samples. They were accepted by the defendant, the hominy was purchased after their inspection, and the hominy delivered, so far as the record discloses, was the equalof the samples furnished. The purchasing officer at no time prescribed “ standards ” otherwise than in accord with the sample. The plaintiff was not advised as to “standards” until after nearly 118,000 cans had been delivered, accepted without question, and paid for. The only specification which confronted the plaintiff is found in “ Item No. 223, Q. M. C. Form No. 120, of February 15, 1918. * * * Hominy, lye: No. 3 cans, 24 to case, liquor to be clear, hominy to be well cleaned and free from black spots.” Not a can was rejected for failure to meet them.

We are not impressed with a contention that 204,908 cans of lye hominy may be considered as adulterated because in instances the percentage of solid and liquid content varies; nor are we convinced as to the correctness of the standard established by the purchaser, a standard of which the plaintiff was not advised, and more or less arbitrary in its ascertainment.

We believe the plaintiff entitled to judgment. The defendant accepted the hominy, still has what has not been consumed, and has arbitrarily partially condemned a vast amount of consumable food supply without authority given so to do in the contract of sale. Judgment for the plaintiff for $1,073.40. It is so ordered.

Moss, Judge; Graham, Judge; Hay, Judge; and Campbell, Ohief Justice, concur.  