
    THE MILLIKEN IMPRINTING COMPANY v. THE UNITED STATES.
    [No. 24574.
    Decided December 19, 1904.]
    
      On 'the Proofs.
    
    The Commissioner of Internal Revenue issues a circular to contractors for imprinting stamps, stating that for the ensuing fiscal year contracts will contain certain requirements not In the existing contracts, and that “no application for ¿contract to imprint stamps will lie considered from any person, firm, or- corporation not now engaged in printing stamps under contract with the government." The claimant’s president executes a new contract without reading it on the assurance that the provisions of the circular are embodied in it. Subsequently the Commissioner enters into a contract with a corporation which had not been engaged in printing stamps at the time of the circular. The claimant then finds for the first time that that provision of the circular has been omitted from the contract. It files a bill to reform the contract and to recover damages directly caused by the diversion of its business to the new company.
    I. Prior to the passage of the Tucker Act (24 Stat. L., p.-505) this court was without equity jurisdiction. But by that statute it was invested with equity jurisdiction “ when the party would he entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States uyere suable."
    
    II. The difference between this case and Jones v. United States (131 U. S. It., 1) is that this is a suit to reform a contract and recover money, while the other was a suit to compel the performance of a specific act by an executive officer, the delivery of a patent for public land.
    III. The reformation of written contracts for fraud or mistake is an ordinary exercise of equity jurisdiction.
    IV. The equity jurisdiction of this court is not general. It can not grant injunctions or 'decree the performance of contracts; but where a suit will result simply in a decree for the payment of money, it has jurisdiction as fully as other courts of equity.
    V.To accept and execute a contract without reading it upon the assurance of a Government clerk in charge of the business that it contains the provisions of a certain circular is not such negligence as will defeat a party’s right to have the contract reformed for mutual mistake of fact,
    
      VI."Where a provision of tlie preliminary agreement in writing is omitted by the party who prepares the formal contract it constitutes a mutual mistake, and tlie correction of the mistake can not be defeated by his showing that the provision was intentionally omitted without the knowledge of the other party, who executed the formal contract in the belief that the provision was embodied therein.
    VII.The written bid of the contractor in consequence of tile advertisement of the Government and the acceptance of the bid by the Government constitute the contract between the parties so far as regards the question whether the provisions of the one are contained in the other.
    VIII.Where a provision of the preliminary agreement was that the Government would not increase the number of manufacturing contractors during the period of the contract, it was a provision intended to increase the business of the contractor, and a material part of the contract.
    IX.Where the claimant is able to show that the new contract diverted a certain number of his customers, and the amount of business which lie lost thereby, and the profits which he would have made, the damages are neither conjectural nor uncertain.
    
      The Reporters' statement of the case:
    This being a case in equity, the facts were not formally found by the court but are stated in its opinion. The following are the exhibits referred to in the opinion:
    “ Exhibit A.
    “ Treasury Department,
    “ Office of ti-ie Commissioner of Internal Revenue,
    “ 'Washington D. 0., April 85,1899.
    
    “ To contractors for imprinting stamps:
    
    “ In awarding contracts for imprinting stamps on checks, drafts, and other instruments for the year commencing July 1st, 1899, it has been determined to add the following provisions to contracts in addition to those now contained in the existing contracts for imprinting stamps:
    “ Each contractor will be required to pay salaries aggregating thirty-four hundred dollars ($3,400) per annum for one Government stamp agent and two counters, payable monthly.
    “As compensation in full for imprinting stamps, the contractor shall charge all persons requiring the same the sum of 80 cents per thousand stamps imprinted, when imprinted upon sheets containing fire or more stamps, and $1 per thousand stamps when imprinted upon sheets containing less than five stamps to the sheet. In order to secure absolute uniformity in prices these charges shall be rigidly adhered to, and any evasion or attempted evasion of the express terms hereof shall be deemed a violation of the terms of the contract.'
    “No application for contract to imprint stamps for period named will be considered from any person, firm, or corporation not now engaged in imprinting stamps under contract with the Government.
    “ Each application for contract must be accompanied by the guarantee of at least two responsible persons, that in case contract is entered into and accepted bond will be furnished in the sum of twenty-five thousand dollars ($25,000) for the faithful performance thereof.
    “ The Commissioner reserves the right to reject any or all applications and to cancel any contract wherever and whenever it shall appear to the interests of the public and the Government to do so.
    “Applications will be received at the office of the Commissioner of Internal Revenue, Washington, D. C., until 12 m., May 25, 1890, such applications to be carefully sealed and marked ‘Applications for contract for imprinting internal-revenue stamps ’ and addressed to the Commissioner of Internal Revenue.
    “ G. W. Wilson,
    “ Commissioner.”
    “ Exhibit B.
    “ Contract for imprinting internal-revenue stamps on checks, drafts, and orders.
    
    “ This contract, made in duplicate, and entered into this 19th day of June, in the year of our Lord one thousand eight hundred and ninety-nine, by and between the United States of America, by G. W. Wilson, Commissioner of Internal Revenue, party of the first part, and the Milliken Imprinting Company, of the city of New York, State of New York, party of the second part,
    
      “7Vitnesseth, That the said party of the second part, for the consideration hereinafter mentioned, hereby covenants and agrees to print from plates furnished to an authorized agent of the Government internal-revenue stamps of the denomination of two cents, of such other denominations as may be required by law, upon such blank checks, drafts, certificates of deposit or orders, drawn upon or issued by any bank, banker, trust company, or other person, firm, or corporation, or upon such other documents as may be offered for that purpose by the public, and to pay the cost of renewing, whenever it may be necessary, any of the plates approved and furnished for the purpose aforesaid;
    “And the said party of the second part further agrees that the plates for which the stamps herein contracted for are to be printed shall be kept bright and sharp, new and additional designs or plates shall be made or changed at its expense, at the pleasure of said Commissioner of Internal Revenue, and that all plates which may be furnished in anticipation of this agreement, or may be made under the operations thereof, shall be and remain the property of the United States:
    “And it is further agreed by the party of the second part that the consideration to be received by it for the undertaking herein stipulated to be by it performed, shall be such compensation as may be received from the persons, firms, or corporations who may present checks, drafts, orders, or documents for the purpose of having stamps imprinted thereon, and the amount so received shall be the sum of eighty cents per thousand stamps imprinted, when imprinted upon sheets containing five or more stamps, and one dollar per thousand stamps when imprinted upon sheets containing less than five stamps to the sheet; and the said party of the second part covenants and agrees that the consideration herein provided for shall be in full satisfaction for all and singular the undertakings to be by it performed, and the operations of this contract, including the cost of engraving and reengrav-ing all new and additional designs and plates that may be required from time to time in the conduct of said printing, the expenditure for superintending and counting the stamps as herein provided, and all other expenses connected with the printing of said stamps as aforesaid.
    “And it is further agreed that no stamps shall be imprinted in the manner aforesaid, except upon the requisition of the Commissioner, or a collector of internal revenue, or authorized agent of the Government, and under the regulations of the Commissioner of Internal Revenue, and that all printing provided for in this agreement shall be under the immediate personal supervision and control of the agent of the Government stationed in the establishment; that the receipt of the checks and papers upon which the stamps are to be imprinted, and the printing and delivery of the stamps, shall be conducted in a room or rooms exclusively devoted to that purpose, and in communication with the office of the agent, and the entrance or entrances to said room or rooms shall be under the exclusive control of said agent.
    
      “And the said party of the second part further agrees that it will not afford any information to one person, firm, or corporation, presenting instruments to be stamped, relative to the work to be done for another person, firm, or corporation, nor will any advantage be afforded to one person, firm, or corporation over another person, firm, or corporation as to the order in which, price at which, or expedition with which stamps are imprinted. That all stamps shall be printed at the price herein named without discount or rebate, and only upon checks, drafts, orders, or other documents delivered entirely at the expense of the persons, firms, or corporations presenting the same.
    “And it is further agreed that said party of the second part shall furnish without cost to the Government a suitable and sufficient room in the establishment where the stamps herein referred to are printed, to be used as an office by the agent of the Government to be designated by the Commissioner of Internal Revenue, the same to be supplied with appropriate furniture and fixtures, and shall also provide without cost to the Government an iron fire and burglar proof safe or vault, the same to be placed at the disposal of said agent, who shall make use thereof for the purpose of the safe-keeping of the stanqps while in his possession, and all plates used in the imprinting of the stamps provided for in this contract.
    “And it is further agreed that the plates which may be furnished under the operations of this agreement shall continually be in the custody of said agent of the Government, and at the termination of said contract, or whenever any of the said plates shall become so worn as to be unfit for use, or, by reason of a change in the design, may no longer be required, they shall be delivered to the Commissioner of Internal Revenue.
    “And the said party of the second part further agrees to produce and deliver such good and perfect stamps as may be ordered as herein provided, without charge to said party of the first part, and to keep the same until delivered by the direction of the said Commissioner of Internal Revenue, a collector, or agent of the Government, in a place which is safe against fire and burglars, provided that such stamps shall, until delivered, be in the joint custody of the agent of the Government and of the party of the second part.
    “And the party of the second part, is required, and further agrees, to reimburse the expenditure for superintending and counting the stamps, as herein provided, at the rate of thirty-four hundred dollars ($3,400) per annum, viz, sixteen hundred dollars ($1,600) for the agent’s salary, and nine hundred dollars ($900) each for the salary of two counters, such reimbursement to be made monthly under the direction of the Commissioner of Internal Revenue.
    “And it is further agreed that the party of the second part shall, under the direction and supervision of the said agent, at its own expense and charge, pack in a proper manner for shipment all checks, drafts, orders, or documents upon which stamps are imprinted by them and ship the same at the expense and according to the direction of the person, firm., or corporation that presented them:
    “And it is further agreed that the stamps herein contracted for shall be printed exclusively at the printing establishment of the party of the second part, in the city of New York and State of New York.
    “ This contract shall commence on the first day of July, A. D. 1899, and shall subsist and continue for the period of one year from that date, unless sooner terminated, as hereinafter provided; and it is further mutually agreed by and between the party of the first part and the party of the second part that this contract may be terminated at any time by the Commissioner of Internal Revenue upon thirty (30) clays’ notice in writing: Provided that the same may be terminated at any time by the Commissioner, without notice, for cause satisfactory to himself; and provided further that the said party of the second part shall have- the right to terminate this contract, upon giving to the Commissioner of Internal Revenue notice of said intention in writing sixty (60) days prior to the intended termination thereof.
    “ Exhibit D.
    “ David Milliken, Jr., & Company,
    “ 22 Thames StReet,
    “ New Y orle,, May 05,1899.
    
    “ Pión. Geoege W. Wilson,
    “ Commissioner of Internal Revenue.
    
    “ SiR: We have now the privilege conferred by the honorable Commissioner of Internal Revenue to imprint stamps on checks, drafts, etc., and would most respectfully make application to you for a contract to continue the same for the period of one year, commencing July 1, 1899, and in accordance with your official communication dated April 25, 1899, we to pay salaries aggregating thirty-four hundred dollars for one Government stamp agent and two counters, and to receive as compensation for imprinting stamps the sum of eighty cents per thousand when imprinted upon sheets containing five or more stamps and one dollar per thousand when imprinted upon sheets containing less than five stamps to the sheet.
    “ We beg to attach guarantee of American Surety Company, of'New York, to furnish the required bond in the sum of $25,000 for the faithful performance of the contract, and to respectfully refer you to letters filed in your office in June, 1898, and which accompanied our application for the original contract, as to our standing and integrity. We have the honor to be,
    “ Yours, very respectfully,
    “ David Milliken, Jr., & Co.”
    
      Mr. David Milliken for the claimant:
    1. The Court of Claims, proceeding as a court of equity, has power to reform a contract. (The Tucker Act.)
    2. The defendant had power to make the contract with the petitioner. (Act of March 3, 1899.)
    3. The contract was approved by the Secretary of the Treasury. This approval may be shown circumstantially.
    4. The written application in connection with the proposal and the acceptance of that application constitutes the contract between the parties. (Reame v. Ins. Oo., 20 Wall., 488; Equitable Ins. Go. v. Reame, 20 Wall., 494; Harvey v. ü. S., 105 U. S., 671; Garftdcl v. U. S., 93 U. S., 242.)
    In the latter case the court held that proposals and acceptances are not required to be drawn as if they were subject to the criticism or dissection of a demurrer in a court of law.
    There was in the first written draft agreed upon by the claimant and defendant the contract between them. (Palmer v. Hartford Ins. Go., 54 Conn., 510.)
    5. Where the agreement, as- reduced to writing, omits terms or stipulations contrary to the common intention of the parties, the instrument will be corrected or re-formed, so as to make it conform to their real intent. (Hearne v. Marine Ins. Go., 20 Wall., 488; Hunt v. Bousmainer, 21 U. S., 174; Andrews v. Essex Ins. Go., 30 Mason, 10; Oliver v. Mutual Ins. Go., 2 Custis, 277; Van Tuye v. Ins. Go., 55 N Y., 657; Pomeroy’s Eq. Jur., vol. 2, sec. 849; 1 Story’s Eq., sec. 152.)
    “ The office of a bill for the re-formation of an instrument is not to establish and effectuate rights; not to have the effect of the deed adjudged, but rather to decline the status which the parties intended to create, and upon which such rights as they would have acquired under a correct instrument may be asserted and defended. The real question is not Avhat the real instrument was intended to mean or how it was intended to operate, but what it was intended to be.” (Tillis v. Smith, 108 Ala., 264; Gonnor v. Armstrong, 86 Ala., 265; Midland, R. R. Go. v. Brown, 98 Ala., 647; Parker v. Parker, 88 Ala., 362.)
    The question presented is one of evidence (West v. Suda, 69 Conn., 60) for Avhich it is not necessary to look beyond the preliminary agreement. (Ilarvey v. U. S.)
    
    Subsequent conduct is important in determining the fact of omission. (Simpson v. U. S., 172 IT. S., 372.)
    6. A contract may be re-formed and enforced as re-formed in the same action. (Harvey v. ü. S., 105 IT. S., 671; Avery v. Eq. Assn. Soc'y, 52 Hun., 392; Maher v. Ins. Go., 67 N. Y., 283; Jaye v. Ins. Go., 55 N. Y, 657; West v. Suda, 69 Conn.,. 60.)
    A bill or complaint which asks the rectification of a mistake in a written contract and the enforcement of the instrument as re-formed, states but one cause of action. (Hutchinson v. Ainsworth, 73 Cal., 452; Franklin Ins. Go. v. McGrea, 4 Greene (Iowa), 229; McGlurg v. Phillips, 49 Mo., 315; Mayer v. Van Gulfoim, 7 Abb. Pr. (N. Y.), 222.)
    The fact that complainant might have enforced the payment of the loss in an action at law is no answer to the exercise of jurisdiction by a court of equity upon the facts stated in the bill. (Delaware Ins. Go. v. Gillett, 54 Mel., 49.)
    7. The broad, general rule is, that the party injured -is entitled to recoArer all his damages, including gains preA^ented as AA^ell as losses' sustained, upon a breach of contract. {Adams's case, 1 Ct. Cls. K>., 106; United States v. Behan, 110 IT. S., 338; Hitchcock y. Gity of Galveston, 3 Woods,. 294; Griffin y. Oolver, 16 N. Y., 489; Witherbee y. Mayer, 155 N. Y., 446; Wittenberg v. Mollyneux, 83 S. W., 842;, 
      Bagley v. Smith, 10 N. Y., 489; Masterston v. Mayor, 7 Hill, G2; Hale on Damages, p. 73; Bussell v. Horn, 59 N. W., 901; Hale v. Ness, 46 N. W., 261; DeHorton Go. v. Hopkins, 53 N. W., 501; American Building and Loan Association v. Hunt, 50 Pac., 468; Mueller v. Bethesda Co., 50 N. W., 319.)
    The law governing the question is elementary. Damages arising naturally from a breach of contract may be recovered whether actually contemplated or not. (Hadley v. Baxendale, 9 Exch., 341.) Pecuniary losses are sustained when the profits of a contract are lost or the earning capacity is reduced. (Piale on Damages, 87.) The fact that damages are difficult of ascertainment and that the jury must, to some extent, speculate as to their amount,- can not release the party in default on his contract from liability thereon. (Stossell v. Greenwich Ins. Go., 20 App. Div., 188; 46 N. Y. Supp., 802.) In the case of the United States v. Behan (110 U. S., 338), the court held that profit and losses must be determined according to the circumstances of the case and the subject-matter of the contract. Whorley v. Tennessee Gent. Ex. Go. (62 S. W., 346) bears directly upon the case at bar.
    
      Mr. Assistant Attorney-General Pradt for the defendants:
    The relief sought for is purely equitable, and hence the petition asking therefor can be considered only in the exercise of equitable jurisdiction.
    “A suit in equity is the only known remedy for the reformation of a written contract.” (Stockbridge Iron Go. v. Hudson Iron Go., 102 Mass., 48; Pomeroy’s Eq. Jur., sec. 188.)
    Such jurisdiction the court does not possess. This was explicitly stated bjr the Supreme Court in the case of Ilaruey v. United States (105 U. S., 679). The claimant, however, relies upon the Tucker Act, which was passed since that decision; but the Supreme Court has also held that the Tucker Act does not confer equitable jurisdiction, in the case of United States v. Jones (131 U. S., 1).
    Nor does the fact that the claimant here prays for a money judgment after the contract shall have been reformed alter the situation. The essential preliminary action of the court which is invoked is the reformation of the contract. Indeed, reformation of a contract may be and sometimes is asked for in a court of equity, with a view to a subsequent action in a court of law upon the reformed contract (Pomeroj^’s Eq. Jur., sec. 1375). And hence if the court has jurisdiction to entertain the application of the claimant for reformation of its contract in this action, it would have equal jurisdiction to entertain an action brought in the court asking for such equitable relief only. There can be no question in the light of the decision in the Jones case, supra, that the court has no such jurisdiction.
    The purpose of an action for reformation of a contract on the ground of mistake is not to interpret the written contract, but to correct it, so that it shall truly state the agreement of the parties. Since in such an action the court is simply called upon to declare the true and complete contract of the parties, which the written contract, through mistake, does not fully set forth, it is clear that the mistake alleged must be mutual. And such is the settled rule of law. (Alabama Midland By. Go. v. Brown, 98 Ala., p. 648; Pome-roy’s Eq. Jur., sec. 870 and sec. 1376.) It is enough to authorize the reformation of a contract if it appears that, through the mistake of both parties to it, the intentions of neither have been expressed in it. (Maher v. Hibernian Insurance Go., 67 N. Y., 290.) The evidence of this mutual mistake must be clear and convincing — “ the strongest possible.”
    “ Courts of equity do not grant the high remedy of reformation upon a probability nor upon a mere preponderance of evidence, but only upon a certainty of the error.” (Pome-roy’s Eq. Jur., sec. 850; 1 Story’s Eq. Jur., sec. 152; Phomix Fire Ins. Go. v. Gurnee, 1 Paige Chancery Rep., p. 279; Newton v. Holley, 6 Wis., 604.)
    The mistake, indeed, according to the current of authority, must be established beyond reasonable doubt. (Ilearne v. Marine Ins. Go., 20 Wall., 490; Stoekbridge Iron Go., supra, 102 Mass., p. 49; Meade v. West Chester Fire Ins. Go., 64 N. Y., 455.)
    See also authorities cited in 1 Story’s Eq. Jur. (13th eel., 1886), p. 153.
    “ The power of courts of equity to reform written instruments is one in the exercise of which great caution should be observed. To justify the court in changing the language of the instrument sought to be reformed (except in case of fraud), it must be established that both parties agreed to something different from what is expressed in the writing, and the proof upon this point should be so clear -and convincing as to leave no room for doubt. Losing sight of these cardinal principles in the administration of this peculiar remedy would lead to the assumption of a power which no court possesses, of making an agreement between parties to which they have not both assented.” (Meade et at. v. West Chester Fire Insurance Co., 64 N. Y., 455.)
    In the present case, so far from there being any clear and convincing evidence of mutual mistake, there is an absolute failure of proof of any mistake whatever on the part of the Commissioner of Internal Revenue. So far as the Commissioner was concerned, the contract contained precisely what he intended it should contain, after deliberate consideration of the matter.
    The cases cited by claimant’s counsel to support the proposition that in a suit to re-form a written contract, evidence of the true contract may be found in a preliminary agreement, present in every instance an absolutely different state of facts than in this case.
    In the case of Hearne v. Marine Insurance Co. (20 Wall., 488), there was a preliminary agreement consisting of a request for insurance on terms specified, and reply stating that the policy would issue accordingly, and reciting the voyage it would cover.
    A similar state of facts obtained in the case of Equitable Insurance Co. v. Hearne (20 Wall., 494). The same is true, also, of the case of Harvey v. United States (105 U. S., 671), and all the various other cases cited by claimant. In Gar-;iielde v. United States (93 U. S., 242) the only contract between the parties was contained in the notice, proposal, and acceptance.
    In this case, as has been already pointed out, there was nothing like any preliminary agreement between the parties, but simply a notification by the Commissioner to parties contemplating making applications for contracts, and in reply thereto an application by the claimant for such contract, which was accepted by the Commissioner. If anything more were needed to absolutely dispose of the claim of mistake made in this case it is to be found in the gross and absolutely inexcusable negligence of the claimant, through the action of its president and representative, David Milliken, jr., in failing to read the contract before he executed the same on behalf of the claimant. This negligence is all the more inexcusable and indefensible when it is remembered that Mr. Milliken was not acting in his own behalf nor even in behalf of the former copartnership, but of a coloration, which corporation had intrusted to him the duty of applying for and executing an important contract with the Commissioner of Internal Revenue.
    In Glenn v. &'tañer (42 Iowa, p. 110), a bond was delivered to. W. to sign as surety, who did so without reading it, being told that it was a delivery bond. It turned out, however, to be otherwise. TIeld,, that his gross negligence precluded him from relief on the ground of mistake, citing Story’s Eq. Jur., sec. 146.
    The general principle regarding such negligence is defined by Story as follows: “ Courts of equity do not sit for the purpose of relieving parties under ordinary circumstances who refuse to exercise a reasonable diligence or discretion. (1 Story Eq. Jur., 13th ed., p. 226.) But relief is not even given in equity in cases of mistake falling within its rules when the party seeking it could by reasonable diligence have discovered the fact which caused the injury.” (Butman v. Hussey, 30 Me., p. 266.)
    The rule is the same even where misrepresentation' is relied upon as a ground for relief.
    “ The rule being in such case that a misrepresentation, in order to affect the validity of a contract, must relate to some matter of inducement to the making of the contract, in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and trust which he reposes in the representations of the other on the subject of the contract; for, if the means of information are alike accessible to both, so that, with ordinary prudence or diligence, the parties might, respectively, rely upon their own judgment, they must be presumed to have done so; or, if they have not so informed themselves, must abide the consequences of their own inattention and carelessness.” (Hill v. Bush, 19 Ark., 528; <Tuzan v. Toulmin, 9 Ala., 684.)
    The decisions in this connection relied upon by the claimant are in no way parallel to this case.
    The most that the evidence establishes in this case is the mistake of the claimant alone — a one-sided mistake which is not ground for reforming a contract. (Ilearne v. Marine Insurance Go., 20 Wall., p. 491.)
   Weldoh, J.,

delivered the opinion of the court:

The petitioner is a corporation created and existing under the laws of the State of New York, with its place of business in the city of New York.

On the 19th day of June, 1899, the Commissioner of Internal Revenue entered into contract with the claimant under the provisions of the act of Congress entitled “An act to provide ways and moans to meet war expenditures, and for other purposes,” approved June 13, 1898 (30 Stat. L., sec. 25, p. 445), by which contract the claimant was to print internal-revenue stamps for the defendants of certain denominations at the price of 80 cents per thousand, which contract is annexed to the petition and made a part of the same, marked “ B.” The contract was to commence on the 1st day of July, 1899, and continue for the period of one year, with the right of either party to terminate upon certain conditions.

On the 25th of April, 1899, the Commissioner issued a notice as follows, to wit (Exhibit A) : “ To contractors for imprinting stamps,” in which it is provided that the year in which the stamps were to be printed should commence on the 1st day of July, and that in addition to the provisions in contracts now existing there shall be added in substance as follows: That each contractor will be required to pay salaries aggregating the sum of $3,400 for one Government stamp agent and two counters, payable monthly; that contractors shall charge all persons requiring the same the sum of 80 cents per thousand; that “ no application for contract to imprint stamps for a period named will be considered from any person, firm, or corporation not now engaged in printing stamps under contract with the Government.” Then follow other provisions not necessary to be qxioted. Said notice is annexed to the petition and marked “ Exhibit A.”

It is alleged that by mutual mistake and accident said last paragraph was omitted, from the contract dated on the 19th dajr of June, 1899, and known as “ Exhibit B.” It is also alleged that there is omitted from said contract, by accident and mutual mistake, the provision that applications will be received at the office of the Commissioner of Internal Revenue, Washington, D. C., until May 25, 1899.

It is also alleged, as' an amendment to the fifth paragraph of the original petition, that the said contract of July 19, 1899, was accepted by your petitioner without examination or reading, upon the assurance of the representative of the defendants that it contained all the provisions of the preliminary contract.

The seventh paragraph of the original petition avers in substance that several weeks after the 25th of May aforesaid, in violation of the said contract, the defendants did receive and grant applications for a similar contract to the American Imprinting Company, a corporation not engaged in imprinting stamps under contract with the Government on the 25th of April, 1899.

It is alleged that many of the persons composing the American Imprinting Company had been, before the 1st of July, 1899, customers of the claimant in the printing business, and satisfied with the work performed before that time b}^ the claimant, and would have continued to have the claimant do their work; but that, in consequence of the defendants having awarded a contract to the said American Company, the said customers procured their work to be done' by said company, to the prejudice and damage of the right of the claimant.

By the amended petition it is charged that the loss and damage to the claimant during the period for which said agreement was made with the claimant amounted to the sum of $20,584.99, in the way of a loss of profits in not being permitted to perform the work which had been diverted from the claimant to the American Imprinting Company, and also the sum of $500 for loss on press.

On the 25th of May, 1899, the claimant company addressed to the Commissioner-of Internal Revenue a communication marked “-Exhibit D,” made a part of the petition, in which it is in substance stated that application is made for a contract to continue for one year from July, 1899, in accordance with official communication dated April 25, 1899, to pay salaries aggregating $3,400, for one Government agent-and two counters, and to receive the sum of 80 cents joer thousand and $1 per thousand, depending on the size of the sheets. Attached thereto is guaranty of the American Insurance Company to furnish bond in the sum of $25,000 for the faithful performance of the contract.

The prayer of the amended petition, founded on the foregoing allegations, is that the contract aforesaid be amended by the insertion of the following:

“ And it is further agreed by and between the parties hereto that the party of the first part shall not receive, consider, or grant, and has not received, considered, or granted any application for a similar contract to imprint stamps as hereinbefore described and provided, from any person, firm, or corporation, which was not actually engaged in imprinting said stamps under contract with the party of the first part on the 25th day of April, 1899.” And also that a judgment be rendered against the United States in the sum of $21,084.99.

This proceeding is based upon the first section of the act entitled “ An act to provide for the bringing of suits against the Government of the United States,” commonly known as the Tucker Act (24 Stat. L., p. 505). In that act it is provided, in defining the jurisdiction of the courts of the United States in suits against the United States, that they shall have jurisdiction: “First, all claims founded upon the Constitution of the United States or any law of Congress, except for pensions; or upon any regulation of an Executive Department; or upon any contract, expressed or implied, with the Government of the United States; or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to wliicli claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable.”

It is contended on the part of the claimant that under said provision the Court of Claims has .complete and ample jurisdiction to correct the contract, if a common and mutual mistake was made by the parties, in the reduction of the contract to writing; and that, having jurisdiction for that purpose, the court has full jurisdiction and authority to settle and adjudicate the rights of the parties on the contract as amended, as their rights may appear from the facts of the case as established by the proof. It is insisted on the part of the defendants that the court is without jurisdiction to reform the contract, as asked by the prayer of the petitioner.

The question of the jurisdiction being preliminary to all other questions, the court must determine that question before reaching the facts and the law upon the merits of the controversy. Prior to the passage of the Tucker Act it must be conceded that the court was without jurisdiction except where given by a special act of Congress; but in the passage of the Tucker Act, which was intended to define accurately and enlarge the jurisdiction of this court, the Congress have employed an enlarged statement of the jurisdiction of the court in this, to wit, “ in respect to which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty', if the United States -were suable.”

In support of the contention that the court has jurisdiction the counsel for the claimant relies on the terms of the Tucker Act and the decision of this court in the case of the South Boston Iron Works v. The United States (34 C. Cls. R., p. 200), in which it is said, “ Since the passage of the act of 1887 the Court of Claims has equity power to reform a contract so to effectuate the full intention of the parties.” The authority of that case is questioned by the counsel for the defendants. The proceeding involved the question of the reformation of the contract, which was in the case by the pleadings of the claimant and by the contention of the parties, ivas material in the determination of the rights of the litigants, and was decided by a full bench.

In the case of Harvey v. The United States (105 U. S. R., 671; 8 C. Cls. R., 501) the court took jurisdiction under a special statute (19 Stat. L., 490), the law providing “And to that end jurisdiction is hereby conferred on said court, to proceed in the adjustment of the accounts between said claimant and the United States, as a court of equity jurisdiction, and may, if according to the rules and principles of equity jurisprudence, in its judicial discretion reform said contract and render such judgment as justice and right between the claimants and said Government may require.” It was held in substance by the Supreme Court that it was competent for the Court of Claims, proceeding as a court of equity jurisdiction under the authority of the statute, to reform the contract, and to determine and adjust the accounts of the parties arising thereunder. The legal condition in that case and this case differs in this, that in the Harvey ease the court proceeded under a special act giving equitable j uriscliction, and in this case the proceeding is under a general statute which as it is claimed gives equitable power to the court as to the subject-matter and relief sought by the claimant.

In support of the theory that the court is without jurisdiction, counsel cites the case of Jones v. The United States (131 U. S., p. 1). That was a proceeding to enforce a demand or claim against the United States bjr compelling an executive officer to do and perform a certain act, to wit, to deliver to the plaintiff a patent for public land which, as he alleged, he had purchased from the United States; the court held that, under the Tucker Act, the District and Circuit Courts and Court of Claims of the United States had no jurisdiction, and refused the relief by reversing the decree. It is said:

“ It seems, therefore, that in the point of providing only for money decrees and money judgments, the law is unchanged, merely being so extended as to include claims for money arising out of equitable and maritime as well as legal demands. We do not think that it was the intention of Congress to go further than this.”

The Jones case (supra) was not to recover a money judgment, but to compel the performance of a specific act of executive duty. This case is wholly for the purpose of recovering a judgment against the United States for 'the violation of a reformed contract. The relief is not in the abstract, so far as enforcing a pecuniary obligation is concerned, but directly bearing upon such an obligation. In the Jones ease much stx-ess is laid on the subject-matter of the litigation, to wit, the public lands. In justification of the conclusions at which the court arrived it is said:

“ We should have been somewhat surprised to find that the administration of vast public interests like that of the public lands, which belong so appropriately to the political department, had been cast upon the courts, which it surely xvould have been if such a wide door had been opened for suing the Government to obtain patents and establish land claims, as the counsel for the appellees in these cases seems to imagine.”

The grant of judicial power in the Harvey case (supra) is:

“ Jurisdiction is hereby conferred on said court to proceed in the adjustment of accounts between the claimant and the United States as a court of equity jurisdiction., and may, if according to the rules of equity jurisprudence, in its judicial discretion reform said contract and í'eñder such judgment as justice and right between the claimants and said Government may require.” The court was dmected and empowered to proceed in the adjustment of the rights of the parties as a court of equity juinsdiction.”

That is, there was a grant of power; and as incident to that grant the Supreme Court decided that it clothed (in connection with the other provisions of the statute) this court with complete equity jurisdiction to settle the questions of controversy incident to the subject-matter of litigation and affected by such reformation.

Recurring to the provisions of the Tucker Act, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable:”

If the United States were suable in a court of equity like an individual, could any question arise as'to the jurisdiction of a court of equity to entertain a suit for the reformation of' the contract upon the grounds alleged in the petition and the subject-matter of this suit?

This court having equity power by the Tucker Act, is not its jurisdiction as complete as it was in the Harvey case, under the special act giving the court jurisdiction? Equity jurisdiction is given by both, and the reformation and correction of a contract is among the landmarks of equitable jurisdiction of courts of chancery.

In the case of Hearne v. Marine Insurance Company (20 Wall., 490) it is said by the Supreme Court, upon the question of the reformation of a contract: “ The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense, and are well settled. Where the agreement as .reduced to writing omits or contains terms or stipulations contrary, to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred.” (Kerr on Fraud and Mistake, 419, 420.)

The jurisdiction of the Court of Claims is not general. It may not have the right to grant injunctions or decree the performance of contracts; but where a suit will result simply in a decree for the payment of money it has jurisdiction under the Tucker Act as fully as other courts of equity, and as fully as it- has under certain special acts, such as that under which the Harvey case was brought.

Having decided that the court has jurisdiction to reform the contract upon sufficient proof, and the incident right to determine the whole case as to the question of the alleged error and the damages to claimant because of the alleged misconduct of the defendants in violation of the contract as it is amended (if the court determines that a reformation is justified by the proof), we proceed to consider whether the claimant is entitled to a reformation of the contract in the particulars alleged in its petition.

It is contended by the claimant that the proof establishes the fact that both parties, to wit, the Commissioner of • Internal Revenue and the agent of the claimant, made a mutual mistake, omitting from the contract the provision as to not letting contracts to persons who on the 25th of April, 1890, had not already subsisting contracts with the United States for imprinting stamps upon checks, etc., and also the omission of the clauses that no bids would-be received after noon of the 25th of May, A. I). 1899.

The defendants’ counsel insist that the proof is insufficient to establish that a mutual mistake was made, and the contract as written should govern and determine the result in this proceeding. “ The law has laid down the fundamental rule that in all cases if the mistake is clearly made out bj'-proofs entirely satisfactory, equit}^ will reform the contract so to make it conformable to the precise intent of the parties. But if the proofs are doubtful or unsatisfactoi-y and the mistake is not made entirety plain, equity will withhold relief upon the ground that the written paper ought to be treated as the full and correct expression of the intent, until the contrary is established beji-ond reasonable controversy.” (Story’s Equity Juris., vol. 1, sec. 152.) If the rights of the parties are to be determined by the oral testimony in the case, they might be controlled by the strict rule prescribed in this authority. But the court is not left to the consideration of the oral testimony alone; the advertisement for bids must be considered in the determination of the question as to whether a mistake was made in the reduction of the contract to writing in the form of Exhibit B.

The evidence as to the making of the written contract on the 25th of June, 1899, is substantially confined to the testimony of Mr. Milliken, the agent and president of the claimant company, and Mr. Johnson, chief clerk of the stamp division of the Internal Revenue Bureau, and by their testimony in connection with the exhibits and circumstances is to be determined the issue as to whether there was a mistake made in the reduction of the original agreement to the terms as they are exemplified in the written contract.

The president of the claimant company testifies that on May 25, 1899, he had an interview with the Commissioner of Internal Revenue, in which the Commissioner asked him whether he intended to make application for renewal of the contract, to which he answered that he so intended, but not until the time approached 12 o’clock, the time for closing; that he clid not want to take any chances of any applications being put in by persons who did not have contracts on April 25, 1S99, and that the Commissioner assured him that no such application would be received. He was afterwards informed by the Commissioner that his application would be accepted and that the contract would be renewed. The defendants object to this testimony on the ground that the Commissioner was dead at the time the testimony was taken.

The president then called upon Mr. Johnson, chief clerk of the stamp division of the Internal Revenue Bureau, and informed him that his contract had been renewed, and was told by Mr. Johnson that it had been decided that the application of any person who had a contract would be granted. The chief clerk then delivered to the president of the company two copies in blank of the contract to be executed, whereupon the president said: “ I presume the only changes from the other contract are those contained in the letter or communication dated April 25, 1899,” and the chief clerk answered: “ That is all.”

The president of the claimant company then took the contracts to New York, and subsequently executed them without reading and returned them to the Commissioner of Internal Revenue. Prior to the 1st day of July, 1899, the president was informed that a contract for the same kind of work had been granted to the “American Imprinting Company.” The president then states that said company did not have a contract to imprint stamps on April 25, 1899, and also did not make an application prior to 12 o’clock of May 25, 1899. He .examined his contract, and then for the first time discovered that it failed to state that no application would be received from any person, firm, or corporation who did not have a contract on May 25, 1899, and that it did not state that no application would be received after 12 o’clock of said date.

The president then went to Washington and had an interview with the Secretary of the Treasury, and mentioned to him the fact that the American Company had a contract in violation of his agreement. Pie states that it was admitted by the Secretary that the American Company had a contract, granted inadvertently. The Secretary refused to revoke the contract of said company for the reason that the Commissioner was absent from the city, but said that if it should be violated in any way he would revoke it at once.

The contract of the “American Imprinting Company ” was revoked for violation, to take effect November 30, 1899, but was extended, as witness states, to January 1.

The attention of witness, the president, is called to the letter of acceptance by David Milliken, dated May 25, 1899, omitting any reference to that clause of the contract which recites that “ no application for contract to imprint stamps for the period named would be considered from any person, firm, or corporation not now engaged in imprinting stamps under contract with the Government.”

To the inquiry with reference to that contract witness replies: I did not consider it relating to the subject-matter of the contract. I considered it in my mind in making application. I did not consider it relating directly to the subject-matter of the contract; I did not look at the contract when I received it to see what it contained.

In a subsequent examination for the purpose of correcting his testimony he says: Where it appears that it was after I received the contract in duplicate that I did not consider that the omitted provisions related directly to the subject-matter of the contract, what I meant to say was that it was at the time I made application for the contract. In my letter of acceptance, as it appears, it was made in accordance with the circular letter of April 25,1899, and the matters specifically mentioned by me are only those I claim I was obliged to do.

Upon cross-examination he says in substance: What I meant was that at the time when I considered that the restriction did not relate to the subject-matter of the contract, was when I made the application for the contract and not when I received the contract in duplicate.

Mr. Johnson testifies in substance: I did not at any time make any statement to the agent of the company regarding contents of the intended contract, which I intended he rely on to the exclusion of his finding out for him-what was in the contract. I prepared the original con-in 1898, Contracts of 1899 were prepared prior to 1899, filled up, omitting signatures, and forwarded to parties who had signified their intention and willingness sign contracts. There were changes made from contracts 1898. After such changes were made twenty-five or thirty copies of the contracts were prepared in blank for the new contractors. I went over the contracts with the Commissioner, conferred about terms and conditions, as I did about business of that importance. No reference was made in contract as to number of bidders or bond to be furnished, that no applications would be received after 12 o’clock. Such matters were not omitted from the contract by mistake my part. There was no intention on the part of the Internal Revenue Bureau to put those provisions in the contracts. I had several conversations with Mr. Milliken as to the method of doing business, but I have no recollection of the matters discussed which he refers to. I made no statement to him as to the contents of the second contract, upon which I intended to have him rely as to such contract. The Commissioner and myself agreed upon the changes to be made. We intended at the time the letter of April 25, 1899, was written to restrict contracts to those who had them on that date; that was the intention when the letter was written. Our intention was not to receive applications after 12 o’clock; it was our purpose not to receive applications after 12 o’clock. I remember conversations with Mr. Milliken, but do not recollect any conversation in which the language used by him was made use of by me. I am not prepared to saj' that such conversations were not had. I do not recall whether the Commissioner actually read the contract or not. I was impressed with the idea that he did. He was a very careful business man, and in matters of that importance he would run over things which I did, either with me or by his comparing it or reading it himself. I was not authorized at the time of the alleged contract with Mr. Milliken to make statements to intending contractors as to what the contracts they were going to sign contained for the purpose of having them rely solely upon what my understanding was of the contents of those contracts.

If the testimony of the president of the claimant company is taken as true, it must be conceded that he thought and believed at the time he received the contract from Mr. Johnson, the chief clerk, that the provisions in controversy were in the agreement, and upon the faith-of that belief, founded on the assurance of the clerk, he accepted and executed the contract without reading.

It is insisted by counsel for the defendants that he was guilty of-negligence in that particular, in not reading the contract, but relying upon the word and assurance of the clerk. While that in the abstract might be considered carelessness, it is not such carelessness as relieves the opposite party from the obligation imposed upon him by his representation of the terms of the agreement. If the United States had been misled or prejudiced by the carelessness of the president of the claimant company it might operate as an estoppel against the company, but in the absence of any such consequences to the rights of the defendants they can not insist that the confidence which he reposed in the statements of the clerk was carelessness upon his part. Mr. Johnson, the clerk, substantially contradicts the testimony of the president of the claimant company in some particulars, in which he says: “ I made no statements to him (the president of the claimant company) as to the contents of the second contract upon which I intended to have him rely as to such contract. The Commissioner and myself agreed upon the changes to be made. We intended at the time the letter of April 25, 1899, was written to restrict contracts to those who had them on that date; that was the intention when the letter was written. Our intention was also not to receive applications after 12 o’clock. He remembers conversations with the president of the claimant company, but does not recall any conversation in which the language given by him was used. Mr. Johnson is not prepared to say that such- conversations were not had, and does not recollect whether the Commissioner read the contracts or not, but that he usually ran over such things with the clerk by comparing them or reading them himself; that the provisions were not omitted from the contract by mistake on his part.

It is stated by the clerk that he and the Commissioner conferred about the terms and conditions of the contract; that as a result of such conference the contracts were prepared in the form in which they were, and that there was no intention on the part of the Internal Revenue Bureau to put those provisions into the contract.

' Both provisions are contained in Exhibit A, which constitutes the basis and terms upon which the claimant company contracted with the United States, and that these terms were important to the interest of the claimant is shown by the fact of the interest which the president of the claimant company took in ascertaining as to whether any persons not then contractors with the United States would be regarded as competent bidders in the letting of new contracts, and the fact that the president did not put in the bid of the company xmtil the exact time that proposals for the contract were to be received; that these provisions, especially the one with reference to not receiving bids from any person not theretofore contractors, were important is shown by the result of other persons being permitted to make bids in violation of the policy announced by the defendant in the notice to contractors.

The persons forming the American Imprinting Company, who have received upon their contract a large proportion of the printing matter, had been the customers of the claimant during the execution of the former contract, and having succeeded in getting a contract of their own for the company in which they were the stockholders, they transferred their patronage from the claimant company to the American Imprinting Company, thereby depriving the claimant company of the profits which it would have derived from the patronage of the stockholders of the new company if the new company had not been organized and had not been successful in bidding for the new issue of stamps.

It was decided by the Supreme Court in the case of Harvey v. The United States (supra) that the formal contract subsequently drawn was intended to embody the terms used in the advertisement inviting proposals for the work; that by such omission the contract varied essentially from the publication of proposals, and that although the contract ivas drawn in that way, it ivas a mistake against the right of the contracting party, which he had the right to reform, thereby making the contract embody substantially the terms proposed in the notice to bidders inviting proposals.

Applying the principles of law determined in the case of Ilarvey (supra) to this case, is not the plaintiff company in this proceeding entitled to have the contract executed in the form in which it would have been prepared if the substantial terms had been inserted as its provisions? In this particular there is a remarkable identity with the case of the Equitable Insurance Company v. Hearne (supra). In that case the defendant wrote a letter to the plaintiff offering to insure at a rate named. In this case the defendants likewise sent a communication to the claimant inviting it to do work at a compensation named. In the former case the preliminary agreement was followed by a formal contract, the policy of insurance. In this case the preliminary agreement Avas followed by the formal contract. In the former case the plaintiff accepted the policy of insurance without examination and raised no objection to it until after the loss of the vessel insured. In this case the claimant accepted the formal contract without examination and raised no-objection to it until after the defendants had contracted with the American Imprinting Company. In both cases it was the defendants "who prepared the form of contract, and in each case the matter complained of was the omission of one element of the contract in the preliminary agreement.

If this be true, as stated bjr Johnson, that the Bureau made no mistake in omitting the provisions from the contract, and that it was not intended to embody them in the agreement, does that fact in hvw deprive the petitioner of his right of reforming the contract so as to agree with the notice to bidders, which is the advertisement for proposals? The bid of the company was made on the basis of the notice of Avhat would be the conditions and terms of the agreement in case a contract Avas made. The bid having been accepted, the contract which was to be reduced to writing was ex- ■ pecteci to follow the terms indicated by the advertisement for proposals.

As is said in the Harvey case (671 supra), the written bid in connection with the advertisement and the acceptance of that bid constituted the contract between the parties, so far as regards the question whether the contract prices embraced the dam. (Garfielde v. United States, 93 U. S., 242.)

The restriction of contracts to persons already having-contracts, as stated in the advertisement to bidders, must have been intended as an inducement to those persons to bid, and, as is shown by the testimony of the president of the claimant company, and the result of allowing other persons to become competitors, this restriction was a very material consideration in the minds of the bidders having-subsisting contracts. The effect of the restriction was to increase the volume of the business and thereby enhance the profits arising from the performance of the work in the fulfillment of contracts. One of the items of damages is for loss on a press provided in contemplation of the extent of the work.

It may be said that a part of the consideration which induced the making of the contract on the part of the claimant was the restriction to bidders having subsisting contracts. The provision of restriction established a condition the effect of which was to increase the profits of the company, and thereby became a material part .of the contract. The payment of 80 cents per thousand was the compensation ivhich was to be received by the cbmpany, but it did not constitute the only consideration or inducement operating on the minds of those intrusted with the business of the company.

It is said in substance by the chief clerk, “ We intended at the time the letter of April 25, 1899, was written to restrict contracts to those who had them on that date, and our intention was not tó receive contracts after 12 o’clock.”

In violation of the restriction of the 25th of April the defendants did let contracts in effect to persons who under former contracts had been the customers of the claimant company, and thereby a part of- the consideration which op-eratecl as an inducement to the making of the contract failed, to the prejudice and damage of the claimant.

It is contended that the provision as to limitation of bidders is against public policy, and therefore it would have been inoperative if inserted in the contract. To that contention it may be replied that the printing of the stamps did not cost the United States anything, and therefore it was a policy which might be adopted by the Department without any violation of the rights and interests of the United States, the maximum price being fixed so as to protect the just rights of those who might be compelled to use the stamps.

The damages in this case are neither conjectural nor uncertain. The claimant has shown specifically what losses there were in consequence of the existence of the American Imprinting Company. They have shown that the}'' lost these customers because of that contract. They have shown specifically the amount of custom which these customers carried to the American Company. The only rebutting evidence which the defendants could have offered to this was that some of these customers would have withdrawn their patronage if the American Company had not existed. There has been no attempt to prove that fact, but, on the contrary, customers have testified substantially that they would not have withdrawn their business. The onty remaining question is, what would have been the claimant’s profit on the business withdrawn? And on that question the evidence is much more complete and satisfactory than in ordinary cases where a contractor is seeking to recover his gains prevented.

The contract when written should have been in substance the terms contained in the advertisement, and any substantial deviation from those terms by the mistake of the parties may be corrected in this court if such mistake is established by the evidence. The proof shows that the company, through its president, made a mistake in assuming that the restriction was in the contract and, as we have already said, was guilty of no material negligence in not reading the agreement before it was executed. The agents of the United States made a mistake when they omitted the restriction from the agreement, whether it was intentional or’ accidental ; therefore both parties have made a mistake in violation of the rights of the company.

The court having acquired jurisdiction to correct the mistake, is authorized by law to take complete jurisdiction of the subject-matter of the contract in order that the controversy may be fully and finally settled. The evidence shows that in consequence of the diversion of the trade of its former customers the claimant was damaged to the extent'of the' profits which it would have made on the work so diverted, which amounts to the sun of $21,084.99.

It is therefore adjudged and decreed that the contract be reformed according to the decree herein entered, and that the claimant recover from the defendants as shown in said decree.

The following decree was thereupon entered by the court:

This case being argued and submitted on the 7th day of November, 1904, the court, upon the evidence, and the question of law involved, hereby adjudges and decrees that the contract, dated on the 29th of June, 1904, be so reformed as to embrace the substance of the clause in Exhibit “A” of the petition filed herein, which is in the words following, to wit:

“ No application for contract to imprint stamps for period named will be considered from any person, firm, or corporation not now engaged in imprinting stamps under contract with the Government,”

and that the same be, and is, considered by the court as forming a part of Exhibit “ B ” (the contract) in the determination of the question of the claimant’s right to recover; and upon a full consideration of the case, with such reformation,

It is hereby adjudged and decreed that the claimant recover from the defendants the sum of twenty-one thousand and eighty-four dollars and ninety-nine cents ($21,084.99), its damages for the violation of said contract so reformed.  