
    WANLESS’ CASE. John Wanless v. The United States.
    
      On the Proofs.
    
    
      The claimant enters into'a written contract with a quartermaster for the sale and delivery of hay at Fort Lyon, Colorado. LCe transfers this contract to one 6-. G. delivers part of the hay and receives pay for it, and tenders the balance. Because of the removal of Fort Lyon, the quartei'masier in charge refuses to accept it. There is a dispute as to the true construction of the contract and, the amount the defendants %vere hound to accept.
    
    The ActnthJuly, 1862, (12 Stat. L., p. 596,) prohibits any transfer of a government contract by the party to whom it is given, and provides that such a transfer “ shall cause the annulment of the contract, so far as the United States are concerned." This is imperative and absolute, and bars any action by the assignor as well as the assignee.
    
      
      Mr. O. F. Peelc for tbe claimant:
    This is a claim for unliquidated damages, arising out of the violation of a contract by defendants, and has not been presented for settlement in any department.
    The defendants contracted, on August 25, 1866, with John Wanless, for the purchase and delivery, at Fort Lyon, Colorado Territory, of eight hundred tons of hay — two hundred tons at $16 per ton, and six hundred tons at $17 41 per ton. The defendants incorporated in the contract a right to change the amount to be delivered.
    All the hay was to be delivered between the 15th of September and the 15th of November, 1866. This contract is set forth at length in claimant’s petition, and it is proven by certificate of the chief quartermaster, department of Missouri.
    The amount to be delivered on the contract was never changed by defendants.
    The defendants refused to receive the hay within the time fixed by the contract, but required the performance of the same subsequent to the time fixed in the contract. This requirement the claimant acceded to, and the full amount — eight hundred tons — was delivered at Fort Lyon, and demand made repeatedly by claimant and his agents for receipts and settlements for the full amount.
    This the defendants refused, but received and paid for, under said contract, five hundred and thirty-nine tons, during the months of December, 1866, February and May, 1867.
    The remainder, two hundred and sixty-one tons, with the exception of forty-four tons, sold at $10 per ton, proved a total loss, for the reason that there was no demand for hay at Fort Lyon, except for government use, with the exception named— that of the stage company for forty-four tons — and there was no longer any demand for government use, because the fort was removed in June 1867.
    We insist that the defendants were bound by their contract to receive and pay for, at contract price, the two hundred and sixty-one tons of hay referred to, and that, having refused so to do, the claimant is entitled to the recovery, as damages, the contract value of said hay, less the amount realized on that portion which he was able to sell.
    
      
      Mr. Alexander Johnston (with whom was tbe Assistant Attorney General) for the defendants:
    On the 25th August, 1866, John Wanless had awarded to him, in pursuance of a bid he made, a contract to furnish two hundred tons of hay at Fort Lyon, Colorado Territory. In the said contract the said Wanless agreed to furnish at the said fort six hundred tons of hay, (in addition to the said two hundred tons,) u or such amount as may he required, to he determined hy the chief quartermaster of the department of the Missouri.”
    
    Upon the execution of this contract it was assigned to one A. J. Grill, by the contractor, Wanless.
    This suit was instituted by the said Grill, December 16,1868, and prosecuted by him up to the 20th of August, 1869, when he assigned all his interest herein to one Harvey Spalding.' Wanless has not, and never had, anything to do with the prosecution of this suit.
    The chief quartermaster of the department of the Missouri determined, after the contract was entered into, that the quartermaster at Fort Lyon should receive, under the contract with Wanless, such amount of hay as might be necessary for use at that post, until such time as the post should bp discontinued, and no more.
    The post quartermaster received from A. J. Grill, or his agents, five hundred thirty-nine and three-fourths tons of hay; and payment for the hay so received was made at the rates specified in the said contract. This was all the hay required at Fort Lyon.
    The contract referred to required that the delivery of hay thereunder should commence on the 15th day of September, 1866, and be completed by the 15th day of November, 1866. After the contract was executed, no hay was offered for acceptance at Fort Lyon by the said Wanless, or the said Gill, until after the 15th of November, 1866.
    I. Upon the facts of the case, Wanless, if he had made no assignment of his contract, could not recover. The government has received and paid for all the hay it was required to receive or pay for thereunder. This proposition can be successfully maintained without reference to the breach of the contract on the part of Wanless or Gill, in not furnishing hay according to the contract. But still, on the argument of the cause, we will make the point that there was a breach of the contract on the part of the claimant.
    II. But the case is clearly within the decision of this court, in the case of Wheeler, (6 C. of Cls., 504.) In that ease, the court held that, under the Act 11th July, 1862, (12 Stat. L.-, p. 596, § 14,) a suit cannot be maintained for damages for breach by the United States of a contract transferred in contravention of the said act.
   Losing-, J.,

delivered the opinion of the court:

The action is for an alleged, breach of contract in not receiving at Fort Lyon two hundred and forty-one tons of hay, a portion of eight hundred tons contracted for. But the contract is not for an entire quantity of eight hundred tons. It provides, first, as follows: “The said Wanless agrees to deliver at Fort Lyon, Colorado Territory, two hundred tons of good merchantable hay; ” as to this provision the quantity is specific. The contract then provides as follows : “The said Wanless agrees, in addition to the above, to deliver at Fort Lyon, Colorado Territory, six hundred tons, or such amount as may be required, to be determined by the chief quartermaster of the department of the Missouri.” Here are two propositions distinct from each other: one for six hundred tons, the other for such quantity as the chief quartermaster of the department of the Missouri shall determine to be required by the post. And these propositions are alternative; only one is to be acted on; and the evidence shows that the former was not acted on, and that the latter was •, and the reason for this, and for inserting the latter provision in the contract, was that Fort Lyon was to be and was removed to another site. The contract, therefore, as the government had the election between the two propositions, and elected the latter, is to be construed as if the latter proposition had alone constituted the contract, and that was, that as much hay should be delivered and received as General Easton determined to be required for the post. And if that is the contract legally, then the burden is on the plaintiff to show how much General Easton determined was required, and of this the plaintiff has given no testimony whatever, while the testimony of the defendants shows that General Easton directed no more than was received and has been paid for.

But tbe evidence shows that Mr. Wanless transferred bis contract to A. J. Gill in August, 1886; and that Mr. Gill made tbe deliveries of bay above specified, and received tbe money paid for them. ' .

This transfer by Wanless to Gill annulled tbe contract therefrom, so that there could be neither a performance of it nor any right of action upon it against the United States; for the Act 11th July, 18C2, (12 Stat. L., p. 59G,) expressly prohibits any transfer of a contractor order by the party to whom it is given, and then provides that such transfer shall, in the words of the statute, “cause the annulment of the contract, so far as the United States are concerned.” This is imperative and absolute, and necessarily bars any action against the United States by the assignor, for it prevents as to them any right or interest in the contract from vesting in him.

It was contended for the claimant that, as the proviso reserved a right of action on the contract to the United States, it made the contract voidable as distinguished from void; and that the United States had acted on the contract, and thereby affirmed it. But the enacting clause of the statute does not provide that the transfer of the contract shall make it void, but that it shall cause its “ annulment as against the United States,” and by this peculiar phrase it precludes as against them any implication of the distinction between “void” and “voidable.”

The proviso is as follows: “ Provided, That all rights of action are hereby reserved to the United States, for any breach of the contract by the contracting party or parties.” This, does not reserve to the United States any right of action against the assignee, and it in no way relates to him or qualifies the action of the statute as to him. And it does not contemplate or suggest a transfer of rights which the enacting clause of the statute forbids and precludes. It in express terms is confined to the contracting party, and, as to him, it is in legal, effect a term of the contract to which he agrees by entering into that, and by which, if he does that which the statute prohibits, he is, as the wrong-doer, to forfeit his rights under the contract, and the United States, as the injured party, are not to lose their remedy. And the effect of the proviso, construed with the enacting clause of the statute, is to make the transfer of the contract a breach of it, and this is done because otherwise the contracting party might, by transferring the contract, and thus, in the words of tbe enacting clause, causing its annulment,” discharge himself of all liability. And it is observable that the statute annuls not the transfer only, but the contract itself. Had it annulled the transfer only, it would have prevented the assignment, but left to the contractor his rights under the contract, as well as his obligations. But by annulling the contract it precludes its transfer, and at the same time destroys the rights of the contractor, as against the United States, and thus punishes him for his violation of the statute. Between individuals it is, as a general proposition, true that a contract annulled as to one party is annulled as to both. But that is no reason, and there is no reason, why a public statute may not, for public policy, forfeit the rights of a contractor for his violation of law, and yet reserve to the government their remedy for any inj ury resulting to them. And where a contract is annulled as to any action by the contractor, he can transfer no rights under it. And it is certain that no action of the officers of the Quartermaster Department can restore vitality to a contract expressly annulled by act of Congress. All that any action of such officers.could do would be to make a new contract with the assignor for what was done bjr him. And if in this case any such contract was made with Mr. Gill, it is shown by the evidence to have been fully performed with the United States.

The judgment of the court is that the petition be dismissed.  