
    GIBBONS’S CASE. Francis A. Gibbons v. The United States.
    
      On the Proofs.
    
    
      The claimant agrees to deliver 200,000 bushels of oats 1 ‘ within thirty days." At the expiration ofthe thirty days the defendants have refused to receive a pari of them, without just cause. The claim-amt notifies them that his obligations undea' the contract are at an end. Subsequently the price of oats rises. The defendant’s quartermaster then requires the claimant to deliver the balance of the 200,000 bushels by threatening to buy them in open market, and vñthhold the dijfej'ence in price from moneys due to the claimant. The claimant therefore furnishes the balance. He is paid with “ certificates of indebtedness,” below par.
    
    I. Under a contract for the sale and delivery of 200,000 bushels of oats ' * within thirty days, ” the obligation to receive is as strong as the obligation to deliver — the oats being offered during the life of the contract, at different times and in reasonable quantities.
    H. Under a contract for the sale and delivery of 200,000 bushels of oats “ within thirty days," the contractor is not bound to deliver after the contract has expired; bpt if he doos, it will be at tho contract price.
    III. A party who accepts “ cei'tificates of indebtedness,” instead of money, iu payment of his demand against the government, cannot recover the difference in valuó.
    Mi-. A. L. MerRIMAN for the claimant:
    The claimant entered into a contract with Colonel Thomas, chief quartermaster, in Baltimore, on the 16th of November, 1863, for the delivery of 200,000 bushels of oats within thirty days from the date of the contract, payment to be made upon the completion of the contract, as follows : 100,000 bushels to be delivered at Baltimore, at 98 cents per bushel, and 100,000 bushels at Fort Monroe, at $1 Olf per bushel.
    Captain Newport was assistant quartermaster at Baltimore under Colonel Thomas; Mr. C. L. Branch was his clerk, in charge of the forage department; J. R. Magruder was the clerk who had charge of receiving forage at Baltimore, Maryland; Mr. Stier was inspector on the part of the government, under Magruder, whose duty it was before 'receiving the forage to inspect and ascertain whether it was in conformity with the contracts; Magruder testifies that he received no grain except upon orders from Captain Newport, which were usually given through Mr. Branch.
    Mr. Branch testifies that some time after Gibbons’s contract was made the demand for oats for use in the army became very dull, the warehouses occupied by the government were full, and of comparatively small capacity, and as the quartermaster’s department did not desire to increase its storage capacity, they refused to receive Mr. Gibbons’s oats, although he was continually urging them to receive his oats. Thus matters continued until the time for the completion of the contract had more than half expired, when the department signified their willingness to receive oats. Mr. Gibbons immediately commenced delivering oats ; but the same difficulty still existed, there was no room for them and they were constantly refused. Mr. Stier, the government inspector, says that although he in several instances gave different excuses for not receiving the grain, yet the real reason was that they had no place to put them, and therefore it was that dray load after dray load was sent back, causing the claimant an expense for drayage, and expenses of taking out and putting in storehouses. So matters run on until the 16th of December,’A. D. 1863 — the time within which the grain was to have been delivered — at which date the entire quantity of the oats that were to have been delivered in Baltimore, received, amounted to 29,759 bushels, and of the amount to be delivered at Fort Monroe there were then received 25,317 bushels.
    It seems that the issue was first made between the claimant and Captain Thomas on or about the 30th of December, 1863, the date of a letter referred to by Captain Newport in his letter of 8th January, 1864, and about which time the claimant was seen leaving his warehouse in the company of an officer. The quartermaster insisted upon the delivery of the balance of the oats specified in the contract. Gibbons contended that as the government refused to receive the grain during the existence of, or within the time specified in, the contract, he was not bound to deliver any more oats on the same. He was, however, told that he must deliver the oats, otherwise they would purchase in open market and charge the difference to him. And, as the government was then owing him some $50,000 for oats already delivered, and were using the military power oyer contracts, he was in their power, both in a pecuniary sense and corporally. He therefore proceeded to furnish the balance of the oats specified in the contract, under protest.
    He received for the whole of said oats the sum of $196,828 63 in certificates of indebtedness, or what was commonly called “pink checks,” which in order to convert into money cost the claimant $2,173 8S, as follows: The discount on $101,117 09, paid, was $1,371 40 ; $40,657 96 was sold at a discount of $625 85 to the Farmers and Merchants’ Bank, Baltimore, in February, and $29,760 09 was sold to the Citizens’ Bank, in April, at a discount of $186 63. These were the lowest rates of discount of that species of payment at the several times when sold. Gibbons protested against receiving these certificates, contending that he should receive money, but made a virtue of necessity and took what he could get.
    The claimant, therefore, insists that the contract was terminate dupon the 16th day of December, 1863, and that for all grain delivered after that period, he should be paid the market price at the time of delivery, which would average about ten cents per bushel over and above the prices specified in the contract; that the payments in certificates of the quartermaster, even for the grain delivered upon the written contract, was not such a payment as that instrument contemplated, and that both for that portion of the grain and also the other portions delivered after that period, claimant ought not to be charged therefor more than the market value of the same ; that he ought to be allowed the extra expenses of delivering the grain caused by the refusal of the officers to receive the grain where tendered, including drayage, storage, and handling the same, and demurrage of vessels, and. also the overcharge on 7,000 bags.
    The Assistant Solicitor for the defendants :
    The legal questions presented by this record are embraced within very narrow limits. The questions are mainly questions of fact. We think as propositions resulting from the facts we shall be able to establish the following:
    1st. That there was no refusal on the part of the agents of the gov eminent to receive the oats offered by the claimant under his contract, until after the time for completing the contract had expired, unless such refusal resulted from the rejection of the oats by the inspector provided for in the contract.
    
      2d. That the claimant continued the deliveiy of oats under his contract, without objection, until after the 1st day of January, 1864. He cannot, therefore, claim anything on account of the increased value of oats from the time of the expiration of his contract until the 8th of January, when he received a notice from Captain Newport to complete his contract.
    3d. The claimant cannot recover the amount which it is alleged he lost on account of the depreciation of the certificates of indebtedness, because the evidence shows that he accepted these certificates of indebtedness in full payment of the indebtedness of the United States to him.
    There is no evidence in the record that the claimant made any objection to receiving in payment for the oats delivered by him in fulfilment of his contract the “pink checks” upon which he now seeks to recover back the loss he sustained upon them, selling them at a discount.
    Even the.testimony of the claimant on this subject fails to show the alleged protest. All the claimant says on this subject is as follows :
    “ The pink checks referred to in the depositions of Enoch Pratt, Wesley Guest, and Alexander M. White, heretofore taken in this cause, were received by me from Quartermaster Thomas, at Baltimore, on account of this contract. There was nothing said at the time I entered into this contract, by Colonel Thomas, as to paying me in pink checks ; Colonel Thomas said that he intended paying the money, and therefore he put no provision in the contract concerning the payment in such funds as the government might have on hand.”
    It was the general practice of the agents of the government at Baltimore, at the time this contract was made, to make payment in these certificates of indebtedness, and of this practice the claimant had notice. The witness Van Ardle testified on this subject as follows :
    “ The payments made to Mr. Gibbons were the same as made to all persons whose claims amounted to one thousand dollars and upwards. These certificate checks were convertible at option of the holder into one-year certificates of indebtedness — the certificate of indebtedness hearing interest from the date of the original check or certificate, and after maturity it is convertible into government bonds, which are known as the 5-20, 7-30, and 10-40 bonds. These certificates were not payable in money. This custom of making payments for supplies furnished the government in this city was general, and generally known to all persons dealing with the government at this place.”
    There is nothing, therefore, in this record to rebut the presumption that the claimant received these certificates of indebtedness in absolute payment, and without objection; and if he did so, he is just as much concluded by it as if he had been paid the coin, or in legal-tender notes of the United States.
   Pecic, J.,

delivered the opinion of the court:

This claimant states that on the 16th day of November, 1863, he entered into a contract with Captain Charles W. Thomas, assistant quartermaster of the United States army at Baltimore, by which it was agreed that Gibbons should deliver, for the use of the United States, one hundred thousand bushels of oats at Baltimore within thirty days, at the price of ninety-eight cents per bushel, to be of the weight of thirty-two pounds, and a like quantity at Fort Monroe, of the same quality, for the price of one dollar and three-fourths of a cent per bushel. The oats were to be delivered in sacks of two bushels each, or thereabouts, and to be dry and of the best merchantable quality. The oats were to be subject to the inspection of government agents, and to be delivered within thirty days. They were shipped on vessels to Fortress Monroe for delivery under the contract; but the government being unprepared to receive them, the vessels were detained, by reason of which claimant was forced to pay by way of demurrage $333 35. That, in further fulfilment of his contract, large quantities of oats were offered at Baltimore which were not accepted because of want of storage and transportation, wherefore claimant was obliged to have the oats rebauled to his warehouse and re-stored, which caused him expense amounting to the sum of four hundred dollars. That he was ready at all times during the continuance of the contract to fulfil on his part; but that the government refused to receive, when offered, all but a part of the oats, and at the expiration of the contract the claimant notified the quartermaster that his obligations under the contract were at an end. Notwithstanding this, the quartermaster required the claimant, after the expiration of the contract, to furnish other oats to the extent of 140,742 bushels, at the price fixed in the contract, oats having in the mean time advanced in price, while other parties were receiving ten and twelve cents more per bushel from the agents of the United States; for which he claims the sum of $14,047 26.

The claimant also avers that he was compelled to receive for his oats certificates of indebtedness instead of money, whereby he lost $1,646 88.

That he purchased of the United States five thousand second-hand bags, for which he was to pay the market price, but that he was charged for the bags in bis settlement with the government two cents per bushel more than the market rates, making the sum of $330. In addition to this sum, the government withheld the sum of §1,446 52, on the pretence that the government had been compelled to pay that sum over and above the price named in the contract for oats purchased to make up what claimant had failed to supply under it. That he was forced by his necessities to submit to these exactions in his settlement with the government agent, but did so under protest. Claimant insists that there is due to him from the United States by reason of the premises the sum of §19,006 71.

There is abundant proof in the record to show that the claimant attempted to carry out the contract in good faith, but that he was prevented by the agents of the government. Several witnesses testify to the fact that oats were offered at various times under the contract which were refused. There is proof that some of the oats offered were not good; but it is also shown that oats which wore rejected because of quality were afterwards approved and accepted, and that claimant was prepared to execute the contract. Charles L. Branch, who says he was clerk in charge of the forage and fuel desk in the office of the quartermaster in Baltimore, testifies that previous to the expiration of Mr. Gibbons’s contract, the demand for oats ceased, and our warehouses were filled. The terms of the contract required the delivery of 100,000 bushels of oats within thirty days at Baltimore, Maryland. Owing to the facts above stated, and that it was not deemed expedient that the government furnish temporary storage, the oats could, not be received. I gave Mr. Gibbons instructions for the delivery of oats under-his contract by order of Captain Newport, and delivery was made until the warehouses were filled, as well as the railroad platform capacity at Camden station in use of quartermaster’s department, when I declined to receive any more, and Mr. Gibbons was •so notified. I always found Mr. Gibbons prepared to deliver oats under the contract when they could be received.” Again he says : “ The quartermaster’s department refused to receive oats from the claimant as soon as their warehouses were full; but I don’t remember whether the time of the contract was half completed, or at what time it was. This was the only reason assigned for such refusal.” ‘‘ I was superintendent and inspector to receive the oats.” “ John C. Magruder was in charge of the government warehouse at Camden station, which was full when the oats from Mr. Gibbons were refused.” Magruder says : My orders came to me from the assistant quartermaster, through the ehief clerk, Mr. Branch,” (the above-named witness.) “ During Mr. Gibbons’s contract we sometimes declined to receive oats from bim because we could not procure transportation for them.” William H. Stier, a witness for claimant, says he was in November and December, 1863, engaged in Baltimore as hay and grain inspector for the United States. He knew that Mr. Gibbons had a contract to deliver oats in the fall of 1863, “and that frequently during the delivery-by him of oats, his drays were sent back because we had no place for storing them, and they were frequently returned to him on account of the movements of the army.” This testimony clearly shows that the government rejected oats for its own convenience, and that the claimant was not in fault for non-delivery. The refusal of the government to receive merchantable oats within the life of the contract, when offered, as these oats were, at different times and in such quantities that they might have been disposed of conveniently if there had been any disposition to do so, will excuse the claimant from any obligation under the contract on his part. The obligation to receive the oats when they were offered was as strong as the obligation to deliver; the claimant was ready, but he could not perform because the government would not permit him ; he was not bound under continuing obligation, and any reasonable offer and improper refusal put an end to the contract.

After the expiration of the contract, the government warehouses becoming empty and the demand for oats increasing, the quartermaster at Baltimore sent an orderly” to claimant requesting his immediate presence with the messenger or “ orderly” at the office of that- official, which was understood by the claimant to be an arrest. About the same time the following letter was received by claimant: “ Tour attention is respectfully called to the letter of Captain C. W. Thomas, assistant quartermaster, of 30th December, 1863, requesting the immediate delivery of the balance of your contract for oats, under penalty of a purchase in open market, the difference of cost to be charged to you. You are now requested to complete your contract and make the delivery within eight (8) days. Unless this is done, I shall purchase in open market charging the difference of cost to you, in accordance with the letter of Captain Thomas.

“ Respectfully,

“ R. M. NEWPORT,

Captain and, Assistant Quartermaster.”

The letter of Captain Thomas referred to is not in the record.

The claimant, influenced by the above assumption of power and the threats used, undertook, though not without remonstrating against the injustice of the act, to deliver the oats which the officers had previously declined to receive, in execution of the contract. Bj tbis time oats bad advanced in price, and be now seeks to recover tlie difference between what the oats cost which he had ready for delivery before the 16th of December arid the price which he was compelled to pay after that date, in order to complete the delivery, which he says was exacted from him. This he cannot do. The officers who threatened had no authority to compel him to deliver the oats. He was released from his obligation by the conduct of the government, and the threats used were superserviceable and improper. If he was so unwise as to submit to the unauthorized menaces of the quartermaster, he must take the consequences. It is not to be presumed that the government ever authorized its agents to resort to illegal means to accomplish any purpose whatever.

If the government refused to receive the oats under the contract, when they were offered in proper time, it will not be permitted to compel a delivery of them after its right to demand them had ceased; and this the claimant should have known. Hence he cannot recover the difference in price between that named in the contract and that ruling in market after its expiration for the oats subsequently delivered under the assumed compulsory power of the quartermaster. Nor can the government withhold from the sum justly due to the claimant any difference which was paid for oats purchased after the expiration of the contract exceeding the price fixed by it. Therefore the claimant should recover the sum of $1,063 17, which was so withheld at the time of the settlement.

The claimant purchased of the quartermaster a number of grain sacks, for which he was to pay six cents per bushel, but the quartermaster deducted for these eight cents per bushel, which was withheld from the sum due to claimant making him pay for the sacks $330, more than the price for which they were sold to him. This was an improper deduction, and the claimant is entitled to a judgment for that sum.

The claim for demurrage is sustained as to two of the vessels only, viz: the Townsend and Martin, and for this account the claimant should recover $333 35.

We would make compensation to the claimant for the vexation and expense he suffered in hauling and offering to deliver oats under his contract which were not received, but the proof in that regard is not so explicit as to time and quantities as to enable us to fix upon any satisfactory amount for his damages. The uncertainty of the proof prevents a judgment for the injury the claimant suffered in this respect.

The claim for discount suffered upon the certificates of indebtedness is not recognized. The claimant accepted the certificates in payment, and he cannot now repudiate his own action and be compensated for doing so.

Judgment will be rendered for claimant for one. thousand seven hundred and twenty-six dollars and fifty-two cents, ($1,726 52.)

Loring, J., dissented.  