
    GARRISON'S CASE. C. K. Garrison v. The United States.
    
      On the Proofs and motion for New Trial.
    
    
      Major General Butler is authorized by the Secretanj of War to '1 uniform and equip a volunteer force." He agrees with the claimant for Liege rifles at $27, ‘ ‘ or such less sum as the Ordnance department may have paid for guns like in quality and description, or contracted to pay for, to said Gajrison. Subsequently it is agreed to accept Enfield rifles “ upon the value conditions as herein specified." The department has not contracted for other Enfields with the claimant, but has bought of other parties at $23. A motion for a new trial is made on the ground of newly-discovered evidence.
    
    X. Where a military officer contracts with (Jarrison for Liege rifles at $27, ‘ ‘ or such less sum as the Ord/nance department may have paid for gums like in quality and description, or contracted 
      
      to pay for, to said Garrison,” and it is subsequently agreed that Enfield rifles be substituted, “ upon the value conditions as herein specified,” tlie price is limited by the amount winch the Ordnance department has paid or agreed to pay for Enfield rifles ; and if there has been no other contract with Garrison for Enfield rifles, then the only standard of value is the price which the department has paid for Enfields to other parties.
    II. A motion for anew trial on the ground of newly-discovered evidence will not be granted where ‘ ‘ due diligence would have discovered the evidence before the first trial,”
    
    Mr. T. J. D. Fuller for the claimants:
    1. Butler had authority to make the contract.
    2. Contract specifies $27 for each gun and bayonet, or such less sum as the Ordnance department had paid, or had contracted to 'pay, to said Garrison.
    3. Ordnance department have agreed to pay Garrison $27 for these identical guns.
    4. The contract was based on this letter. The agreement was $27, or less, if that letter made it so. The letter does not reduce the sum ; it renders the price certain.
    5. The arms were all delivered seasonably. They were of good quality. The date of the voucher does not refer to the date of the delivery of the arms, but to the time of the completion of the inspection by the proper officer.
    6. The contract specifies the arms shall be paid for on a day certain, either by cash in hand or by vouchers in due form.
    
      7. The illegal, unauthorized and arbitrary order of the Assistant Secretary of War, Scott, after the arms have been delivered, alone prevented payment being made.
    8. Payment of the money was demanded of General Butler) who had it in hand, and would have paid it but for the ‘‘ order.”
    9. Payment was demanded on the vouchers of the proper disbursing officers of the government and refused.
    ' 10. The performance of the contract on the part of the contractor íb clearly proved, and no pretence to the contrary.
    11. The breach of the contract on the part of the government is as clearly shown; no pretence for an excuse.
    12. It is about time that the sacredness of contracts fairly made be vindicated, and even high public functionaries should understand (whatever their individual morality may be) that the public faith and credit cannot be capriciously trifled with.
    13. The claimants seek to recover damages for this wanton violation of their contract.
    
      14. Wliat shall be the measure of damages ? The amount of money agreed to be paid in 1861 is feo compensation in 1866.
    Nothing less than a sum equal to the sum agreed to be paid, and interest on that sum from December, 1861, to the time of rendition of judgment, will satisfy any honest man’s sense of justice, and for that sum the court are asked to render judgment for claimants.
    The Assistant Solicitor for the defendants:
    General Butler, on the seventh day of October, A. D. 1861, entered into a contract by which said Garrison agreed to sell and deliver to the United States Minie rifles, of the Liege pattern, with sabre bayonets, and all appendages complete, in such order and of such construction as should pass the inspection of an ordnance officer of the United States army, within fifteen days of the date of the contract; for which the United States agreed to pay for each'and every of said rifles with sahre bayonets and appendages complete, as should pass such inspection, “ the sum of twenty-seven dollars, or such less sum as the Ordnance department may have paid for guns like in quality and description, or contracted to pay for to said Garrison, such payment to he made forthwith upon the delivery and inspection of said arms, by an account duly certified by said Butler to the Ordnance department, with a copy of the contract annexed, or in cash, at the option of said Butler.” Subsequently a change in the conditions of the contract was made, and indorsed on the back thereof, without date, as follows : “It is agreed by the United States to accept from O. K. Garrison, the contractor, the long Enfield rifles, with bayonets of the triangular pattern, in place of the sahre bayonets, upon the value conditions as are herein specified.”
    Garrison was paid twenty dollars each, and now brings this suit to recover the additional sum of seven dollars each for the said thirty-two hundred Enfield muskets; also, the sum of two dollars and fifty cents each for three hundred arm chests, (balance of account upon which the above payment was made ;) being in all twenty-three thousand one hundred and fifty dollars, with interest thereon from December, 1861, claiming this amount as damages for breach of the said contract on the part of the United States.
    If the claimant shall recover anything in this suit, recovery must be had upon the contract upon which he brings his suit, and upon that alone.
    
      In this case two questions are presented for consideration :
    1. How far is the United States bound by the contract upon which this suit is brought?
    
      2. If the contract be binding, in whole or to any extent, what amount is due the claimant ?
    I. And, first, it is denied that General Butler had power to make a special contract, of any description, to bind the government. (Bright-ley’s Digest, p. 53, sec. 69.)
    It is manifest from this enactment that the business and duty of contracting for and purchasing arms and equipments is placed exclusively in the hands of the chief ordnance officer of the government.
    But an examination of the order itself shows most clearly that it never was intended thereby to grant to General Butler the power to contract for or purchase arms.
    General Butler is authorized to raise, arm, and equip six thousand men, and for this purpose his orders and requisitions on the quartermaster’s, ordnance and other staff departments of the army are to be obeyed and answered.
    II. But if it were admitted that generally the Secretary of War and the President have power legally to authorize contracts to be made, independent of the Ordnance department, for arms and equipments, still every contract must, in its terms, be measured by, and subordinate to, the authority so granted.
    By the terms of the authority to General Butler in this case he was limited in his expenditures by the following proviso : “ Provided, The cost of such recruitment, armament, and equipment does not exceed, in the aggregate, that of like troops • now or hereafter raised for the service of the United States.”
    It is in evidence in this case, by the records of the Ordnance department, and by the testimony of the officers of that department, who are the legal agents of the government for the purchase of arms, that from October 1, 1861, before the date of this contract, till long after, up to January 1, 1862, the general and uniform price of long Enfield rifles with triangular bayonets, paid by government, did not exceed twenty dollars each.
    III. But, putting aside all questions touching the validity of the contract on legal grounds, what are the equities of the plaintiff ? If it should be conceded that he would have been entitled under the original contract to twenty-seven dollars for Liege guns with sabre bayonets, and that the Enfield guns actually delivered are of equal value, he has actually received payment in full from the government, already, and a large excess besides. For the first invoice of guns, delivered November 20, 1861, twenty-eiglit hundred Enfields, be received twenty-seven dollars each, and for the second invoice of thirty-two hundred Enfields, delivered December 11,1861, being the balance of the contract, he was paid twenty dollars each.
    The contract called for the delivery of the guns to the government absolutely and at the expense of the claimant, with no stipulation for free entry or exemption from duties.
    But the government admitted them without duty, and thus remitted on each of the six thousand guns over five dollars, and in the aggregate the sum of thirty-one thousand six hundred and forty-eight dollars, as appears by the invoices and appraisements of the Boston customhouse, and which must be considered as an advance of so much money to Garrison by the government.
   Casey, C. J.,

delivered the opinion of the court:

This case has its inception in the following order:

WAR DEPARTMENT,

Washington City, September 10, 1861.

Major General B. F. Butler is hereby authorized to raise, organize, and uniform and equip a volunteer force for the war, in the New England States, not exceeding six (6) regiments of the maximum standard, of such arms, and in such proportions, and in such manner as he may judge expedient; and for this purpose, his orders and requisitions in the quartermaster, ordnance, and other staff departments of the army are to be obeyed and answered, provided the cost of such recruitment, armament, and equipment does not exceed, in the aggregate, that of like troops now or hereafter raised for the service of the United States.

SIMON CAMERON,

Secretary of War.

On the 7th October, 1861, General Butler entered into a written contract with the claimant, by which the latter agreed to furnish to the United State, within fifteen days, not exceeding six thousand Minie rifles, of the Liege pattern, with sabre bayonets and all appendages complete, and subject to the inspection of an ordnance officer of the United States army, the United States to pay to claimant the sum of twenty-seven dollars for each gun so delivered, “ or such less sum as the Ordnance department may have paid for guns like in quality and description, or contracted to pay for to said Garrison.” An addition to the contract, without date, signed by General Butler, is as follows :

It is agreed by the United States to accept from C. K. Garrison, the contractor, the long Enfield rifles, with bayonet of the triangular pattern, in place of the sabre bayonet, upon the value conditions as are herein specified.

B. F. BUTLER,

Major General Commanding.

On the 9th November, 1861, Garrison had delivered two thousand eight hundred Enfield rifles, with triangular bayonets, for which he was then paid at the rate of twenty-seven dollars per gun, amounting to the sum of seventy-five thousand six hundred dollars. By the 11th December, 1861, the balance of the guns, viz : three thousand two hundred (3,200) of the same make and pattern of the others were delivered. No guns of the Liege pattern were delivered under the contract.

Under orders received from the War Department, the ordnance officer paid but twenty dollars on each gun, and deducted from the amount claimed by Garrison the sum of twenty-two thousand four hundred dollars, ($22,400.) He prosecutes this suit to recover this amount.

On the trial some very difficult and abstruse questions were raised and discussed. Among these questions were the power of General Butler to make this contract, and the right of the President to confer such authority upon him ; also, whether there was such an exigency as justified a departure from the ordinary mode of making contracts, by advertising for proposals, and whether General Butler had a right to decide on such exigency ; and whether his decision was conclusive, or subject to review here. But in the view we take of this case we are relieved' from entering on the consideration of these questions in this cause, as its decision must rest on other grounds. The contract recited fixes the price for the Liege guns at twenty-seven dollars, or such less sum as the Ordnance department may have paid for guns of the same quality, or such price as they had contracted to pay to the claimant for similar guns. The evidence shows that the government had, previous to the date of this contract, agreed to take from the claimant guns of the Liege pattern with sabre bayonet at twenty-seven, dollars each, bat does not stow that he ever sold or contracted to sell to the United States any Enfield rifles other than the six thousand referred to in this contract.

The proof is that the price paid by the United States for similar arms, between the date of the contract and the last delivery under it, was from twenty to twenty-three dollars per gun. This fact, we think, is conclusive of this case. According to the addition to indorsement on the contract, by General Butler, the value or amount to be paid for the Enfields was to be determined in the same way as provided for in the body of the contract in reference to the Liege guns — that is, the amount to be paid for these Enfields was to depend on what the United States “ may have paid for guns, like in quality and description,” or “ contracted to pay for to said Garrison.”

Now, as the United States had no other contract with Garrison for Enfields, there was nothing in that clause to fix and settle the price. The only other rule or standard given by which the value is to be determined is the price that was paid by the Ordnance department for guns of like quality. This the uncontradicted testimony shows was from twenty to twenty-three dollars per gun. Taking the highest price named for the whole six thousand guns delivered, it will be found that the claimant has already been more than paid the outside contract price for the guns. For it is very clear and plain to us that the effect of the addition to the contract by General Butler was for the twofold purpose of allowing the substitution of the Enfield for the Liege gun, and providingt he same mode of determining its value that had been stipulated for the other in the body of the agreement. There is nothing in the words of this addition that makes it obligatory on the government to pay the same price for these substituted guns that was agreed' upon for an arm.of a different description. But the same mode of determining the value is provided for in both cases, and that mode is by reference to such “ sum as the Ordnance' department may have paid for guns like in quality and description, or contracted to pay to said Garrison.” The Ordnance department had neither purchased nor contracted to purchase from Garrison any other Enfield rifles than those in suit. We must, therefore, resort to the only other mode provided of fixing the value, and that is, by the amount the Ordnance department paid for Enfield guns. This, the evidence makes clear, was from twenty to twenty-three dollars per gun. Taking the highest price as that to which the claimant is enti-tied, and we find that be has already been overpaid the contract price of the guns delivered, as the'folio wing calculation shows :

6,000 guns at $23. $138, 000 00

2,800 guns at $27.■... $75, 600

3,200 guns at $20 . . 64, 000

- 139,600 00

Overpaid... 1, 600 00

If we take the average price paid for Enfields between the date of the contract and the last delivery of guns under it, the amount overpaid will he greatly increased, viz :

6,000 guns, at $20 30. $121,800 00

Amount paid as above. 139, 600 00

Overpaid..'... 17, 800 00

Under the construction we give to this contract, in any application or view that can be taken of the evidence, the claimant has no cause of action. His petition must, therefore, be dismissed.

PER CuRíam

: On the motion for a new trial.

1st. Neither the application nor the evidence offered to sustain it come within the rule by which the granting of new trials is regulated. We think due diligence would have discovered this evidence before the first trial.

2d. The evidence proposed to be introduced would not change the result. The document proposed to be put in shows that the United States, prior to the date of this contract, purchased the same guns as low as $19. The contract says : “or such less sum as the Ordnance department may have paid.” Nineteen dollars was surely a less sum, and might, under the construction insisted upon, be the standard of value. We think the contract intended to fix the fair current price at or about the time of delivery as the measure or standard of value.

3d. We have carefully reviewed our construction of the contract, and do not think we erred in the interpretation we gave it, or its supplement. On every ground, we think, both on the law and the facts, the case is in as favorable condition for claimant, for review before the Supreme Court, as it could be after another trial.

We overrule the motion.  