
    William A. Saylor v. The United States.
    
      On the Proofs.
    
    
      The claimant enters into a contract to supply the Quartermaster Department with a certain quantity of grain, and one-third more if required. The department notifies him that he must furnish the additional one-third. JSemalces arrangements in JSew Orleans for procuring it and sends forward aporiion. Thedepartmentref uses to receive the portion tendered. Without tender of thewhole, he maltes repeated requests that the department will allow him to deliver it, hut is uniformly ref used. He brings his action for his gains prevented.
    
    I. In an action brought liy a contractor to recover the profits -which ha might have made if the other contracting party had allowed him to perform according to filio terms of the contract, it is immaterial whether he had or had not acquired a legal title to the thing which he sought and was entitled to deliver.
    II. Where a contract hinds a party to deliver a certain quantity of grain, and he seeks to do so and tenders a portion, hut is met hy repeated refusals to receive any of it, it is not necessary for him to make a formal tender of the whole.
    
      
      The Reporters' statement of tlie ease:
    The following are the material portions of tlie contracts upon which the suit -was brought and the facts as found by the court:
    FIRST CONTRACT.
    First. That the said Wm. A. Saylor shall furnish or cause to be furnished the Quartermaster’s Department, U. S. Army, at the military post of Ringgold Barracks, Texas, with four hundred and ninety-four thousand pounds, more or less, of good merchantable oats of the best qualffy, free from dirt and dust, and in new burlap sacks of about four bushels each (weight of tlie sacks to be deducted), subject to a rigid inspection.
    Second. That the said Wm. A. Saylor shall deliver the said four hundred and ninety-four thousand pounds of oats, more or less, the increase in said quantity not to exceed one-third of aforementioned quantity, between the first day of July, 1876, and the thirtieth day of June, 1877, at such times and in such quantities as the receiving officer may require for the wants of the post during the fiscal year ending June thirtieth, 1877: Provided, That when the oats herein stipulated to be delivered is deficient in quantity or quality, the receiving officer shall have power to supply the deficiency by purchase, and have the contractor charged with the difference in the cost to the government, subject to the approval of the department commander.
    Third. That the said Wm. A. Saylor shall receive for each and every bushel of oats so delivered the sum of one dollar and nineteen cents per bushel, in Uuited States currency: Provided, That the United States is not liable for any amounts beyond the sums appropriated for such purpose during the' fiscal year in which the supplies are to be delivered, and that this contract shall bo of no effect until such appropriations are made, and shall terminate and cease June 30, 1877. Payment to be made monthly when the department is for this purpose in funds; and that at any time when two thousand bushels of oats have been delivered, inspected, and received, a voucher may be prepared and payment thereon made for one thousand bushels of the same, and thereafter for such amount as may be delivered, until final delivery, when the one thousand bushels retained shall be paid for on final settlement upon duly made voucher.
    SECOND CONTRACT.
    First. That the said Wm. A. Saylor shall furnish or cause to be furnished the Quartermaster’s Department, U. S. Army, at the military post of Fort Brown, Texas, with one million one hundred and twenty-six thousand pounds, more or less, of good merchantable oats, of the best quality, free from dirt and dust, and in new burlap sacks of about four bushels each, (weight of the sacks to be deducted), subject to a rigid inspection.
    
      Second. That the said Win. A. Saylor shall deliver the said one million one hundred and twenty-six thousand pounds of oats, more or less, the increase in said quantity notto exceed one-third of aforementioned quantity, between the first day of July, 1876, and the thirtieth day of June, 1877, at such times and in such quantities as the receiving officer may require for the wants of the post during the fiscal year ending June thirtieth, 1877: Provided, That when the oars herein stipulated to be delivered is deficient in quantity or quality, the receiving officer shall have power to supply the deficiency by purchase, and have the contractor charged’with the difference in the cost to the government, subject to the approval of the department commander.
    Th¿rd. That the said Win. A. Saylor shall receive for each and every bushel of oats so delivered the sum of eighty-seven cents per bushel in United States currency: Provided, That the United States is not liable for any amounts beyond the sums appropriated for such purpose during the fiscal year in which the supplies are to be delivered, and that this contract shall be of no effect until such appropriations are made, and shall terminate and cease June 30, 1877. Payment to be made monthly when the department is for this purpose in funds; and that at any time when four thousand bushels of oats have been, delivered, inspected, and received, a voucher may be prepared and payment thereon made for two thousand bushels of the same, and thereafter for such amount as may be delivered, until final delivery, when the two thousand bushels retained shall be paid'for on final settlement upon duly made voucher.
    THIRD CONTRACT.
    First. That the said Win. A. Saylor shall furnish or cause to be furnished the Quartermaster’s Department, U. S. Army, at the military post of Fort Brown, Texas, with two million two hundred and fifty-two thousand pounds, more or less, of good merchantable corn of the best quality, free from dirt and dust, and in new gunny sacks of about two bushels each (weight of the sacks to be deducted), subject to a rigid inspection.
    Second. That the said Win. A. Saylor shall deliver the said two million two hundred and fifty-two thousand pounds of corn, more or less, the increase in said quantity not to exceed one-third of the aforementioned quantity, between the first day of July, 1876, and the thirtieth day of June, 1877, at such times and in such quantities as the receiving officer may require for the wants of the post during the fiscal year ending June thirtieth, 1877: Provided, That when the corn herein stipulated to be delivered is deficient, in quantity or quality the receiving officer shall have power to supply the deficiency by purchase, and have the contractor charged with the difference in the cost to the government, subject to the approval of the department commander.
    
      ■ Third. That the said Wm. A. Saylor shall receive for each and every bushel of corn so delivered the sum of one dollar and twelve cents per bushel, in United States currency: Provided, That the United States is not liable for any amounts beyond the sums appropriated for such purpose during the fiscal year in which the supplies are to be delivered, and that this contract shall be of no effect until such appropriations are made, and shall terminate and cease June 30,1877. Payment to be made monthly when the department is for this purpose in funds; and that at any time when four thousand bushels of corn have been delivered, inspected, and received, a voucher may be prepared and payment thereon made for two thousand bushels of the same, and thereafter for such amount as may be delivered, until final delivery, when the two thousand bushels retained shall be be paid for on final settlement upon duly made voucher.
    EACTS ROUND BY THE COURT.
    I. On the 8th day of August, 1876, the claimant entered into three contracts with the United States (copies of which are annexed to the petition), whereby he undertook to deliver to ■the Quartermaster’s Department of the Army grain as follows, viz:
    At the military post of Fort Brown, Texas, 40,2144£ bushels of corn, more or less.
    At the same post, 35,187£§ bushels of oats, more or less.
    At the military post of Binggold Barracks, Texas, 15,43711-bushels of oats, more or less.
    All of this grain was to be delivered between the 1st day of July, 1876, and the 30th day of June, 1877.
    The corn and oats were to be good merchantable corn and oats of the best quality, free from dirt and dust, and in new sacks.
    II. By the terms of the contracts, the United States reserved the right to require an increase of one-third of these quantities of grain to be delivered at each post.
    III. The claimant was to receive $1.12 per bushel for the corn, and 87 cents per bushel for the oats delivered at Fort Brown, and $1.19 per bushel for the oats delivered at Binggold Barracks.
    IY. These contracts were made upon advertisement, and were duly approved by the commanding officer of the Department of Texas and of the Military Division of the Missouri.
    Y. The claimant was required to give, and did give, three several bonds for tbe faithful performance of these contracts, amounting, in the aggregate, to $20,000.
    VI. Prior to the 15th day of May, 1877, the claimant had delivered 16,872||- bushels of corn and 17,829j-f bushels of oats at Fort Brown, Texas; and there remained to be delivered, exclusive of the one-third increase that the United States had the right to demand, 23,341|-$ bushels of corn and 17,357 §-£ bushels of oats.
    Prior to May 15, 1877, the claimant had delivered 13,010ff bushels of oats at Binggold Barracks; and there remained to be delivered, exclusive of the one-third increase, 2,141^ bushels.
    VII. On the 10th day of May, 1877, General Ord, commanding the Department of Texas, ordered the commanding officers of the military posts of Fort Brown and Binggold Barracks, Texas, to “notify contractors that full amount of forage, with the additional third, will be required as soon as practicable,” as shown in the following telegram:
    “Headquarters Department oe Texas,
    
      11 San Antonio, Texas, May 10th, 1877.
    “O. O., jF’t Broivn:
    
    “Graze your cavalry all you can conveniently. Husband your forage, & notify contractors that full amount of forage, with the additional third, will be required as soon as practicable. '
    
      “A. G.
    
    “ Official copy respectfully furnished the chief quartermaster of the department for his information. Similar telegrams sent com’d’g officers Forts Clark, Concho, Davis, Duncan, Griffin, McIntosh, McKavett, Biehardson, Stockton, & Binggold Barracks, & San Felipe.
    “By command of Brigadier-General Ord.
    “J. H. TAYLOB,
    “Ass’i Aclj’t-General.
    
    “D. T., May 16, ’77.
    “A true copy.
    “J. O. OBD,
    
      “2nd Lieut. 25th Infantry, A. T>. G.
    
    VIII. On the 12th day of May, 1877, the quartermaster at Binggold Barracks telegraphed the claimant that his contract for oats was increased onedhird, and requiring him to commence to deliver as soon as practicable; and on the 14th day of May, 1877, the quartermaster at Fort Brown telegraphed claimant, in compliance witli the order of the general commanding the department, that the whole amount of his grain contract at that post would be required by the 30th of June, 1877, thus requiring of claimant the balance named in the contract with the additional one-third called for by General Ord.
    IX. Between the 21st and the 23d day of May, 1877, the claimant purchased in New Orleans, La., the customary and best market for such purchases, the entire amount of grain necessary to close his contracts at Fort Brown and Ringgold Barracks, Texas, including the additional one-third demanded by the United States, and began to. ship the same. •
    X. The defendant received from the claimant 26,694f£ bushels of corn and 25,645^2 bushels of oats at Fort Brown under said contracts, and 15,151f J bushels of oats at Ringgold Barracks, but wholly neglected and refused to receive the balance of the grain demanded of him under said contracts, though tendered by the claimant under the conditions thereof.
    XI. The ruling market price for corn, Of the quality specified in the contract, in New Orleans, La., from the 21st to the 23d day of May, both inclusive, was 59 cents per bushel, and the ruling market price for oats, of the quality, specified in the contracts, at the same place and during the same period, was 50 cents per bushel.
    The freight per bushel on corn from New Orleans to Brownsville was 28 cents and on oats 16 cents. The freight on oats from Brownsville, Texas, to Ringgold Barracks, Texas, was 20 cents per bushel.
    XII. The cost to claimant of the corn delivered at Fort Brown, Texas, was 87 cents per bushel, of the oats delivered at the same post 66 cents per bushel, and of the oats delivered at Ring-gold Barracks 86 cents per bushel.
    XIII. The defendant refused to receive from claimant 26,942/¥ bushels of corn and 21,271f§ bushels of oats at Fort Brown, Texas, and 5,431-i-| bushels of oats at Ringgold Barracks, Texas.
    XIY. This refusal was communicated to claimant for the first time after he had purchased and negotiated for the full amount of forage, including the additional third, ordered as aforesaid. Claimant protested immediately against the refusal, by letters and telegrams from himself and his attorney, but was informed by the defendants’ agents that the orders were modified, and no more would be received, if tendered.
    XY. The whole number of bushels of grain called for in the first contracts (exclusive of the one-third increase) was...;. 90,838
    The whole number of bushels of the one-third increase (exclusive of what remained to be delivered on the first contract)... 30,279+
    Total number of bushels called for by both contracts (first and second) was. 121,117+
    The whole number of bushels of grain delivered prior to the'telegraphic requisitions of May 12 aud 14, 1877, under the original contracts, was .. 47,712+
    The whole number of bushels of grain remaining to to be delivered under the original contracts, before the telegraphic requisitions of May 12 and 14 were sent, was. 43,126
    The whole number of bushels of grain called for by the original contracts and the telegraphic requisitions remaining to be delivered after May 12 and 14 was ... 73,405+
    The whole number of bushels of grain delivered after May 12 and 14,1877, was. 19, 778+
    The whole number of bushels of grain received by the United States under both contracts was. 67,491+
    The whole number of bushels of grain which the United States refused to receive under both (original and telegrams) contracts was. 53, 626+
    The whole number of bushels of grain of the original contracts which the United States refused to receive was. 23, 348—
    
      Messrs. Grafton & Ladd, for the claimant:
    If Saylor had made default to the United States, it would have been no answer to his liability-that he could not purchase the grain or deliver it in time. Saylor made tender of the grain, and the United States by its agents refused to receive it, and thereby broke the contract and are liable therefor. It was not necessary that Saylor should actually ship all the grain from New Orleans to Fort Brown and Binggold Barracks, and there-make a physical tender of it, when he had been notified that it would not be received.
    Saylor complied with his part of the contract in good faith and at great expense. The defendant failed to comply.
    
      Mr. A. I). Robinson (with whom was the Assistant Attorney-General) for the defendants. -
   Hunt, J.,

delivered the opinion of the court:

The claimant entered into three written contracts with the government, on the 8th August, 1876, for the delivery of certain oats and corn at Binggold Barracks and Fort Brown, in Texas. The contracts were made under an advertisement and rvith the approval of the military officers in command of the Department of Texas and of the Military Division of the Missouri, and the claimant gave bond in the sum of $20,000, with satisfactory sureties, for the faithful performance of the obligations entailed upon them by the contracts.

Bach contract stipulated that the quantity of grain to be furnished was to be more or less than the number of pounds named, and the increase which the government might demand was not to exceed one-third of the quantity named.

Bequisitions for grain, when made under these contracts, continued to be regularly filled by the claimant. In May, 1877, there was still remaining to be furnished by him an aggregate of 43,126 bushels of corn and oats. On the 12th of that month the quartermaster at Binggold Barracks telegraphed the claimant, then at Austin, Tex., that his contract for oats was increased one-third, and requiring him to commence delivering them as soon as practicable. On the 14th, the quartermaster at Fort Brown telegraphed him to the same effect, and that the whole amount of his contract for that post would be required by the 30th June following.

On the receipt of these instructions, the claimant at once proceeded to New Orleans and there negotiated for and purchased the entire amount of grain thus ordered. A considerable portion was immediate^ shipped to Texas, but a part only of the shipment was accepted by the defendants. The balance of the grain ■contracted for, made up of tbe portion of tbe shipment thus tendered and of the increased quantity ordered by telegraph -on the 12th and 14th of May, was refused. The reason for this refusal was that General Ord had modified his former orders, and had directed his post-commanders to receive only such an amount of grain as might be needed till November 1. This last order had the effect of diminishing the quantities called for in the three first contracts, and led to the refusal of a portion of the shipment last tendered and to the rejection of the whole of the increase that had been ordered.

In spite of repeated requests promptly made by the claimant, that the grain might be received, of his assurances that he had already engaged the whole amount ordered on the 12th and 14th of May and would not be released from his engagements, and notwithstanding his reiterated protests and appeals, the defendants persisted in refusing any further shipments and declined all further tender.

The claimant, having been paid for the grain delivered to and actually received by the defendants, now brings this suit to recover the amount of profit of which he has been deprived by the refusal of the defendants to allow him to proceed with and complete his contracts.

The findings of the court show that after deducting the market value of the grain at the prices prevailing at the time it was ordered by the government and was to be delivered, and the prices of transportation to the two points of destination mentioned in the contracts, the profit which the claimant would have realized would amount to the sum of $12,990.45.

There is no evidence in the case except that offered by the claimant. This establishes the contracts, their breach by the defendants, and his own ability and readiness and willingness to furnish the supplies contracted for.

It remains for us to consider the legal objections urged against the claimant’s right of recovery. It is argued that the claimant purchased the grain he was to furnish for delivery in the future ; and that by the law of Louisiana, where the claimant contracted for his purchases, such purchases were incomplete until the property was delivered.

■ It is an undoubted principle of the law of that State, as it is •of every other system of enlightened jurisprudence, that in the .sale of movable or personal property the thing sold is at the risk of tire vendor until delivery. But this principle has no. application to the present controversy. The claimant was. bound to deliver to the defendants the amount of grain they contracted to buy from him and to obtain it when called for; but such delivery became unnecessary after their active breach of the contract by steadily refusing to receive it. In the face-of such repeated refusals the claimant was released from the-obligation of actually tendering the grain. It would have been an utterly vain and nugatory eeremony for him to have done sounder the circumstances. Lex neminem cogit ad vana. (8 La., 522; 2 Hen. Dig., 1021.)

If the defendants had adhered to their contract instead of abruptly modifying and receding from it, the claimant would have been compelled to furnish the full quantity of grain when required to do so. Failure of performance by him would have entailed heavy responsibility upon himself and his sureties. Upon the principle of reciprocity, which exists in all commutative contracts, it is just and lawful that the defendants should indemnify him for the advantage and profit of which, by their breach of faith and without any fault on his part, he has been deprived. (Cobb's Case, 7 C. Cls. R., 470; Bulkley’s Case, 7 id., 547; Mann’s Case, 3 id., 404; Adams v. United States, 1 id., 106; Moore & Boice v. United States, id., 90, 13 How., 334; United States v. Speed, 8 Wall., 77.)

It is therefore ordered, adjudged, and decreed that the claimant do have and recover judgment for the sum of $12,990.45.

Drake, Oh. J., was absent when this case Aras heard and took no part in the decision.  