
    LOBENSTEIN’S CASE. W. C. Lobenstein v. The United States.
    
      On the Proofs.
    
    
      A contract provides “ that the said party of the second part shall have all the hides of the heef-cattle slaughtered for Indians at Fort Sill” “ which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about 4,000.” The contractor prepares for receiving the hides. The superintendent of Indian affairs directs that the cattle shall all he turned over to the Indians on the hoof, and no cattle are slaughtered for the Indians hy any one acting for the Government. The contractor consequently obtains no hides and suffers loss. He brings his action for the profits which he might have made.
    
    Where a contract provides that the contractor “shall have all the hides of beef-cattle slaughtered for Indians at Fort Sill” “ which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians; the number of hides to be about 4,000,” and the superintendent, after the contractor has made ready to receive the hides, turns over the cattle on the hoof to the Indians, hy whom they are slaughtered, there is no breach of the contract; for the decision of the superintendent is to the effect that all the hides are required for the comfort of the Indians, and the contract is made subject to that decision.
    
      The Reporters’ statement of the case:
    The court found the following facts :
    In the year 1869, an arrangement was entered into between the Department of the Interior and the Department of War for the supply, through the Subsistence Department of the Army, of beef-cattle to the Indians, in pursuance of the fourth section of the act of April 10,1869, “ Malting appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30,1870.” (16 Stat. L., 13, 40.)
    By that arrangement the Department of War undertook to supply, through its Subsistence Department, such cattle an should be needed for Indians in the vicinity of Camp Supply and Fort Sill; and in reference thereto, as well as to other-matters, the Commissary-General of Subsistence of the Army, on the 26th of May, 1869, gave written instructions to Bvt. Maj. Gen. H. F. Clarke, assistant coratnissary-general of subsistence in the Military Division of the Missouri; which instructions, in connection with the matter of furnishing said cattle, contained the following words: '
    
      “ The cattle should be by contract, if possible, delivered by the contractors monthly or weekly ; and, when received, actually weighed upon the scales, to be transferred to the agents on foot; the Indians to have the benefit of the fifth quarter extra; the hides to be preserved and saved for sale when practicable.”
    The agents here referred to were officers of the Army, appointed to act as Indian agents at the several places where subsistence supplies were to be issued to the Iudians.
    Gen. M. E. Morgan, chief commissary of subsistence of the Military Department of the Missouri, stationed at Fort Leavenworth, Kansas, was charged with the supervision of the subsistence of the Indians on the southern reservation, which ■included those to be supplied from Gamp Supply and Fort Sill; .and the aforesaid instructions to General Clarke were transmitted to him for his guidance..
    Supposing himself thereto authorized by the above-quoted words of said instructions, the said Morgan entered into the •two written contracts with the claimant sued on, of which the following is the essential part, to wit:
    •“ This agreement witnessetli: That the party of the second part shall have all the hides of beef-cattle slaughtered for Indians at Fort Sill, Indiau Territory, up to and including Juné 30, 1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indian's; the number of hides to be about four thousand, (4,000,) more or less. The hides shall be of average size, and, when turned over, dry-cured and in good order and condition. They shall be turned over on the spot, to the said party of the second part or his authorized agent, at the end of each month, at which time said agent of the party of the second part shall give a receipt for the number of hides turned over to him in good order and condition, and the responsibility of the party of the first .part on account of said hides shall then cease.”
    In.September, 1869, the Commissioner of Indian Affairs directed that the eattle should all be turned over to the Indian agents on the hoof, which was done, and they gave them out from time to time to the Indians, by whom they were killed and cut up; and no-cattle were slaughtered for the Indians at Fort Sill or at Camp) Supply by any one acting under the authority of the United States; and the claimant obtained no hides of cattle furnished to the Indians at either of those posts during the period of time covered by the said contracts.
    
      Mr. O. F. Feclc for the claimant:
    This is a claim* for money expended and damages sustained by the claimant on two contracts, made with him by General M. E. Morgan, commissary of subsistence, acting on behalf of the Government, no part of which was performed on the part of the Government.
    By these contracts the claimant was bound to employ,-send, and maintain an agent, skilled in handling hides, at each of the places mentioned. Fort Sill was ñve hundred and forty-five miles distant, and Gamp Supply was four hundred and ninety miles. This obligation he performed at an actual expense of $1,256.75. He continued this service and expenditure at Gamp Supply till November 7,1869, and at Fort Sill till December 1,1869, when the same were discontinued by definite notices, from the agents of the Subsistence Department, that the hides could not be delivered. These contr'acts were made by General Morgan in order to save and sell the hides from beef-cattle slaughtered for Indians at the places mentioned, in pursuance of the instructions of A. B. Eaton, Commissary General of Subsistence, communicated through General H. F. Clarke. And in a report to the Secretary of War, speaking of these contracts, the Commissary-General of Subsistence states as follows: “ Brig. Gen. M. E. Morgan, chief commissar y of subsistence of the Military Department of the Missouri, very judiciously made provisions for saving all the hides of the beef-cattle to be slaughtered for the Indians.” These hides could not be saved without the employment of skilled men for that purpose, and the claimant agreed to furnish the skilled labor at these remote points for such purpose at his own expense, and the sole consideration for this undertaking on his part was, that he was to have all these hides, when thus saved aud cured, at the price of $2 each, delivered on the spot; and the Subsistence Department agreed to have these beef-cattle skinned, and the hides cured tinder.this supervision, and delivered to these agents; and to perforin this undertaking the officers of. the Subsistence Department failed altogether. The hides of these beef-cattle were not needed nor used for the comfort of the Indians. Snch of them as were taken off were thrown away or sold by the Indians. The Subsistence Department was charged with the subsistence of these Indians, and its duties and functions were confined to this. In the performance of this duty about 7,000 beef-cattle were purchased. It was the right and duty of the officers having charge of this service to incur such expense and obligations to save and sell the hides of these cattle, when slaughtered, as was necessary, and it was for them to decide what expenses or obligations were necessary for this purpose; and, having determined this, the expenses incurred and the obligations contracted are binding on the Government, and must be discharged, whatever they may be. And the obligation contracted in this case was not only to deliver the hides to the claimant, but to skin the cattle and cure the hides, uuder claimant’s directions. Having failed in the performance of these obligations, and the claimant having performed his, the Government is bound to make good the resulting damages. The number of hides that the Government might be required to retain could not then be determined, and accordingly the number was not specified, but the purpose for which hides might be retained was specified, namely, the comfort of the Indians. It follows, that of all the hides, from all. the beef-cattle slaughtered, such only as were needed for this specified purpose could be retained. The comfort of the Indians was the requirement to be met by this reservation, and it was necessary for some one conversant with providing for the comfort of the Indians to determine how many hides were necessary to meet that requirement. Accordingly, it was agreed that the superintendent should decide this question. The provision, “ Which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians,” means no more or less than that he shall decide how many hides are required for the comfort of the Indians; for a decision that from a given number of hides a certain number was not required, is equivalent to a decision that the number left are required. The claimant, was a dealer in hides, leather, &c., at Leavenworth, who could "not well know what would be the extent of this requirement, and a restriction was put upon it by specifying the number of hides — “ about 4,000, more or less”— that he should receive. This was 600 less than the number of cattle, as then computed and contracted for, which were to be purchased and slaughtered for Indians at that place withiu the time of the contract. The number of cattle to be purchased and slaughtered was about 4,600, more or less, and the number of hides the claimant was to receive was about 4,000, more or less, being a margin of about 600 hides for the comfort of the Indians, should they be required for that purpose.
    That this was the intention of the contracting parties is shown by the language of the contracts themselves, for no effect can be given to the specification of the number of hides in the concluding portion of the first sentence of the contracts except as a limitation as to the number of hides which might be retained for the comfort of the Indians. And if the surrounding circumstances be considered, this is rendered conclusive. Ordinarily it would not be understood in what way dry beef-hides could conduce to the comfort of Indians. This was explained by Colonel Morgan and his chief clerk to have been solelyformending their lodges. And it is shown that the claimant refused to sign the contracts until this explanation was made, coupled with the statement on the part of the Government agents that very few would be needed for that purpose.
    This reservation of the right to retain some of these hides for the specified purpose was waived altogether. None of the hides were required or used for the comfort of the Indians. They were either destroyed, thrown away, or sold by them. We insist, therefore, that by these contracts the Government was bound to cause all the cattle slaughtered for Indians at the places named in the contracts to be skinned, and to cure all the hides under supervision of the claimant’s agents, and deliver all the hides to them.
    
      Mr. Assistant Attorney-General Goforth and Mr. Joseph K. MeCammon for the defendants:
    There was no authority for General Morgan to sell the hides by contract. Paragraph 1227 of the Revised Army Regulations provides that “ sales of subsistence supplies by the Government, except sales of stores to officers for their personal use, and in like cases, shall be on due public notice, and in such market as the interests of the service may require;” and paragraph 1228 provides that subsistence supplies in good condition, but not required for use, will be disposed of by orders from the Commissary-General. In urgent cases, and on the advice of an inspecting officer, they may be sold as prescribed in the preceding paragraph.”
    Hides are subsistence supplies. (¶ 1233 Eev. Eeg.) It is proved conclusively that no cattle were slaughtered for Indians, and as the contracts provided that the claimant in this suit should have all the hides of beef-cattle slaughtered for Indians, it follows that there was no subject for the contracts to operate upon. The cattle were turned over to the Indians on the hoof, and became the absolute property of the Indians, subject to no control by Government officers. If the officers or Government agents at the posts acted contrary to orders in turning the’cattle on the hoof over to the Indians, as the claimant appears to allege, they were guilty of tort, having exceeded their authority, and the Court of Claims cannot take cognizance of their action. (Gibbons v. UnitecL States, 8 Wallace, 269.)
    The contracts further provided, that the claimant should have all the hides of beef-cattle slaughtered for Indians at Fort Sill and Oamx> Supply which the superintendent of Indian affairs at each of these places shall decide are not required for the comfort of the Indians.” At Fort Sill, Mr. Tatum was acting superintendent of Indian affairs, and informed the agent of Mr. Lobenstein that the hides were required for the comfort of the Indians. But the claimant must prove that the superintendent of Indian affairs decided that the hides were not required for the comfort of the Indians, as this was a condition precedent to the delivery of any hides and to his recovery.
   Drake, Oh. J.,

delivered the opinion of the court:

In the view we take of this case it is not necessary to discuss the question whether General Morgan was authorized to make, on behalf of the United States, the contracts sued on.

The claimant’s case assumes that, under the contracts, he was entitled to all the hides taken from the cattle issued to Indians at Fort Sill and Camp Supply. This does not appear to us to be the meaning of the contracts. The words are, “ That said party of tbe second part shall nave all the bides of beef-cattle slaughtered for Indians at Fort Sill, Indian Territory, up to and including June 30, 1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians, the nnmber of the hides to be about four thousand, more or less.” The same words, in substance, are in the contract relative to the cattle to be slaughtered at Camp Supply.

These words did not entitle the claimant to all the hides, but only such as the superintendent of Indian affairs at either place should decide were not required for the comfort of the Indians. The decision of that officer to that effect was, therefore, the very foundation of the claimant’s right to any hides at all; and yet it does not appear that any such decision was made; but, on the contrary, we are authorized to infer that if. that officer made any decision on the subject, it was that all the hides were required for the comfort of the Indians; for all the cattle, were turned over to them on foot, to do with as they pleased.

The claimant has, therefore, failed to show the very fact that was indispensable to establish his right to any hides; failing in which, there is no ground for alleging a breach of the contracts.

His petition must, therefore, be dismissed.

Loring-, J., did not sit at the hearing of this case, and took no part in the decision.  