
    DOLD’S CASE.
    Andbes Dold v. The United States.
    
      On the Proofs.
    
    
      The claimant enters into a contract with a commissary for the sale of1,000,000pounds of corn. There is aprovision that the quantity may be increased at the option of the defendants’ officers. The commissary allows a third person to deliver corn on this contract. The commanding general disapproves of the transaction, refuses to issue vouchers for the corn, but pays the third person for it at the m a/r-Tcet rate, and allows the claimant an extension of time to perform. The claimant delivers his l,000,000jpo»ííc&, but now seeks to adopt the delivery of the third person and recover the difference between the price paid him and the contract rate.
    
    Where A agreed to seE and deliver com, and B, with, the assent of the defendants’ officers, delivered his corn upon the contract of A, without A’s knowledge or authority, and was subsequently paid for it hy the defendants, it must he held that A was not privy to the transaction, either in law or in fact; and that not being hound hy it, he can reap no benefit bom it, and cannot maintain an action in regard to it.
    
      
      The Reporters'1 statement of the case:
    The court found the following facts:
    I. In October, 1864, the chief commissary of subsistence for the Military Department of New Mexico caused to be issued and published' the following advertisement:
    “ Sealed proposals in duplicate will be received at this office until Monday, 12 m., 2nd day of January, 1865, for the delivery of corn at Fort Sumner, for the use of Navajo and Apache Indian prisoners on the government reservation near Fort Sumner, N. M., as follows:
    “PORT SUMNER, N. M.
    “ 1,000,000 pounds of corn, to be delivered in three installments, as follows:
    “ 1st delivery, of 500,000 pounds, not later than the 31st May. 1865.
    “ 2nd delivery, of 250,000 pounds, not later than the 30th June, 1865.
    “3rd delivery, of 250,000 pounds, not later than the 15th July, 1865.
    “ The corn to be good, sound, clean, shelled corn, to be pm-chased in the States, and to be delivered to the A. C. S. at Fort Sumner, N. M., in good strong sacks of 100 pounds nett of corn in each. sack.
    “ The undersigned reserves the privilege of rejecting any or all bids which appear exhorbitant or which appear at so low a rate that the responsibility of the bid might be questioned.
    “Ample security will be required, and all subject to the approval of the general commanding the department.
    “ Two responsible persons must sign each bid, guaranteeing that, if the contract is awarded to the person or persons therein proposing, they will be security for the faithful performance of the contract.
    “ The proposals to be sealed and endorsed ‘Proposals for corn for Subs. Department.’
    “W. H. BELL,
    “ Gapt. & G. 8., U. 8. A.
    
    “Oeeice Chief Comst. oe Subs.,
    “Department oe New Mexico,
    “ Santa Fé, N. M., Oct. 27,1864.”
    
      The claimant thereupon sent in proposals under this advertisement, and on the 2d January, 1865, his bid was accepted. Subsequently the contract annexed to the petition was duly signed and executed, and, with the bond of his sureties, was transmitted to Gen. James H. Oarlqton, commanding the department, for his approval, pursuant to the terms of the advertisement. On the ■ 8th February, 1865, the general commanding indorsed his approval on the contract,
    II. On the 30th of January, 1865, one O. W. Kitchen made to the commissary who executed the contract described in the first finding the following proposition•
    “Las Vegas, N. M.,
    
      “January 30,1865.
    “Dear Sir: My corn-train is’now close at hand. Would you have the kindness, if convenient,- to authorize the A. O. S. at Fort Sumner to receive corn on Andres Dold’s contract 1 I will have about 85,000 pounds, I think, which I will get an order from Mr. Dold to turn in on his contract.
    “ Very respectfully, your obedient servant,
    .“ C. W. KITCHEN.
    “ Capt. W. H. Bell,
    “ C. S., Santa Fé, N. Hi.”
    And the commissary, on the 6th February following, returned the following acceptance:
    “Oeeice Chiee Commissary oe Subsistence,
    “Department oe New Mexico,
    “ Santa Fé, W. M., February 6,1865.
    “ Sir : ,1 am just in receipt of the contract signed by Andres Dold and securities.
    “ Your proposition on behalf of Andres Dold to deliver 85,000 pounds which you have now on hand on his (Dold’s) contract is accepted. You will proceed to deliver it without delay.
    “ The A. C. S. at Fort Sumner will be directed to receive it.
    “I am, sir, very respectfully, &c.,
    “W. H. BELL,
    “ Capt. á G. S., U. S. A.
    
    “ C. W. Kitchen, Esq.,
    “ Las Vegas, FT. M.”
    
    
      And thereupon tbe said Kitchen delivered to officers of the Commissary Department at Fort Sumner 63,327 pounds of corn, being the same corn set up and declared upon in the petition; and the commissary transmitted to the commanding general for his approval vouchers or accounts for the said corn in the name of the claimant; but the commanding general disapproved of the said vouchers, and directed that the corn delivered by Kitchen should not be considered as a part of the claimant’s contract. Subsequently a voucher was made out in favor of Kitchen for this corn as “purchased in open market by order of the department commander,” at 16.37 cents per pound ; and Kitchen, on the 23d of July, 1865, received and accepted this, amounting to $10,303.30, and at the same time receipted therefor as “ in full of the above account.”
    III. On the 23d July, 1865, the claimant addressed to the commissary in charge the following communication:
    “ SANTA Fas, New Mexico,
    
      “July 23,1865.
    “ Sib : I have just received information from the general commanding this department that sixty-three thousand three hundred and twenty-seven pounds of corn, delivered by Mr. O. W. Kitchen, in February last, which was intended and considered by me as corn delivered under my contract of date January the 2d, A. D. 1865, is not considered by the general commanding this department as corn delivered under said contract, and that I will be required to deliver the million of pounds of corn under said contract exclusive of the sixty-three thousand three hundred and twenty-seven pounds above referred to.
    “Having made my arrangements for the delivery of the million of pounds of corn including the sixty-three thoxxsand three hundred and twenty-seven pounds, if I am required now to deliver the million of pounds of corn exclusive of the sixty-three thousand three hundred' and twenty-seven pounds referred to, I most respectfully ask for an extension of time for the delivery of said amount until some time in the coining fall.
    “Respectfully, your obedient servant,
    “ANDKES DOLD.
    “Capt. W. H. Bell,
    “ Commissary Subsistence, United States Army,
    
    
      Santa Té, W. M.”
    
    
      Tbe commissary referred tbis to tbe commanding general, who, on tbe 29tli July following, ordered tbat tbe claimant’s time for tbe delivery of tbe corn under bis contract be extended until tbe 15tb November next ensuing. Tbe claimant debvered, at various times under bis contract, 990,586 pounds of corn, for "which be was paid tbe contract price in fall. Tbe debveries of tbe corn under bis contract were as follows:
    Deliveries under first installment of 500,000 pounds:
    Pounds.
    1865, July 16 (24J- cents). 407,561
    July 25 (24£ cents). 38,363
    July 31 (24J cents). 18,199
    July 31 (24£ cents). 36,022
    500,045
    Deliveries under second installment of 250,000 pounds:
    Pounds.
    1865, July 31 (23J cents). 61,833
    August 12 (23£ cents).. 73,918
    August 28 (23J cents). 114,245
    249,996
    Debveries under third installment of 250,000 pounds:
    Pounds.
    August 21 (22f cents).. 54,313
    August 28 (22f cents). 58,122
    August 28 (22;§ cents)...'- 40,873
    September 7 (22-| cents). 10,400
    December 6 (22| cents). 14,811
    December 30 (22| cents).. 62,027
    240,545
    Total. 990,586
    (And, on tbe claimant’s request, tbe following:)
    IV. Tbat before tbe proposition of G. W. Kitchen to tbe commissary of subsistence who made tbe contract, set forth in sec-oucl finding, said commissary addressed a notice to tbe claimant, as follows:
    “ Office Chief O. S., Department of New Mexico,
    
      “Santa Fé, New Mexico, Jarúy 15th, 1865.
    “Mr. Ande.es Dold,
    
      “Zas Vegas, N. M.:
    
    
      “ Sie : Your proposal to deliver 1,000,000 pounds of corn at Fort Sumner is accepted. Contracts for your signature null be sent you as soon as convenient. You will proceed to make your arrangements accordingly.
    “ I am, sir, respectfully, &c.,
    “W. H. BELL,
    
      “Oa/pt., G. S., U. S. A.”
    
    
      V. That tbe commissary of subsistence, after tbe proposition was made to liim by O. W. Kitchen set forth in finding 2, and before be accepted said proposition as set forth in said finding, made reply to said Kitchen’s proposition as follows:
    “Office Chief Commissary Subsistence,
    “Department of New Mexico,
    “ Santa Fé, N. Mex., February 5, 1865.
    “ Sir : I arnin receipt of yours of January 30, relative to delivering 85,000 pounds of corn, which you have now on hand, on the contract of Andres Dold.
    “ In reply, I have to inform you that I cannot give an order to Mr. Dold to deliver, or to the acting commissary of subsistence to receive, it until the contracts are duly signed and approved by the general commanding.
    “I am, sir, very respectfully, &c.,
    “W. H. BELL,
    “ (ja/ptam, Commissary Subsistence, United States Army.
    
    “ C. W. Kitchen, Esq., Las Vegas, N. Mex?
    
    VI. That the 63,327 pounds of corn delivered by said Kitchen to an officer of the Commissary Department at Fort Sumner was so delivered on the claimant’s contract, first installment, annexed to the petition; 28,747 pounds on the 18th February, 1865; and 34,580 pounds on the 27 th February, 1865, and was so reported by the officer of the Commissary Department who received it to the officer who executed the contract on the 18th February, 1865, and the 3d of March, 1865.
    
      YII. That all of said compassed into.tbe bands of tbe officer of tbe Commissary Department at Fort Sumner, New Mexico, on tbe IStbFebruary, 1865, and 27tb February, 1865, for expenditure in tbe public service, said officer having on said dates receipted tor said corn to tbe officer wbo made tbe contract annexed to tbe petition.
    VIII. Tliat tbe commissary wbo made tbe contract in compliance witli paragraphs 1186, 1252, Army Begulations, made returns and certificates to tbe Commissary G-eneral of Subsistence, United States Army, showing that on account of tbe subsistence of captive Indians, in tbe month of February, 1865, and during tbe month of March, I860, be made purchases of Andres Dold, tbe claimant, as follows:
    I860, February 18, 28,717 pounds corn, amounting to $7,043.01^-; 1865, February 27,' 34,580 pounds corn, amounting to $8,472.10 ; and that said purchases were made at tbe lowest market price, and were not paid for, and that certified accounts were given.
    IX. Tbe voucher or account for said corn, in tbe name of tbe claimant, transmitted to tbe commanding general, was so transmitted from tbe office of said commissary at Santa Fé, N. Mex., to tbe office of said commanding general at Santa Fé, N. Mex., on tbe 24th day of March, 1865, with report, and for tbe purpose set forth in a letter, as follows:
    “ Oeeice Chibe C. S., Department oe New Mexico,
    “ Santa M, M., Ma/rdh 2Ath, 1865.
    “Asst. Adjt. Gen’l., Dept of if. M.:
    
    “Pleasefind enclosed a certified account of Mr. Andres Dold. This corn, delivered on tbe contract of Mr. Dold, was, as I was made to understand from a statement made to me by Mr. Dold, brought from tbe States by Mr. C. W. Kitchen, and was en route from tbe States before tbe contract, was given. Mr. Kitchen himself told me when the bids were opened in my office that bis train from tbe States with corn was within striking distance, which would account for tbe early delivery.
    “ Most respectfully, your obdt. svt.,
    “W. H. BELL,”
    “ Gapt, G. S., U. S. A.”
    
    X. It does not appear that tbe voucher or account in tbe name of tbe claimant, transmitted to tbe assistant adjutant-general, Department New Mexico, by said commissary, as set forth in the last preceding request, was ever returned to said commissary, or to the claimant, or to any agent of the claimant, or that any disapproval of said voucher was, with the exception mentioned in the request next following, communicated by said commanding general to said commissary, or the claimant, or the claimant’s agent.
    XI. On the 22d day of July, 1865, said commanding general, from headquarters Department of New Mexico, Santa Fé, N. Mex., communicated to C. W. Kitchen, through said commissary at Santa Fé, the fact that he withheld his approval of the said account, and at the same time, by the same mode, proposed the payment of a less price for the said corn than the contract or purchase price, and an appeal to the War Department for the remainder if the less price was not thought to be just; and on the 23d day of July, 1865, said commanding general caused to be indorsed on the letter containing said proposition an .order of reference to said chief commissary, with directions to pay for said corn at the price he was paying per pound for breadstuff at the Bosque Bedondo, N. Mex., at the time this corn was delivered.
    XII. That the corn in excess of the million pounds specified in the contract, inclusive of the several amounts specified in the third finding, and the 63,327 pounds delivered on the 18th and 27th days of February, 1865, as set forth, was so delivered in compliance with an order communicated to the claimant on the 24th day of July, 1865, as follows :
    “Oeeice Ohiee Commissary Subsistence,
    “DEPARTMENT OE NEW MEXICO,
    “ Santa Fé, F. Mex., July 24, 1865.-
    “ Sir : The general commanding directs me to say to you that the corn delivered by C. W. Kitchen in February and March last will not be considered as part of your contract. You will be governed accordingly in completing your contract.
    “ Respectfully, &c.,
    “W. H. BELL,
    “ Captain, Commissary of Subsistence, United States Army.”
    
    “M. Andres Dold,
    “ Las Vegas, É. Mex.”
    
    
      XIII. No payment bas been made to Andres Dold by tbe defendants for tbe 63,327 pounds corn deliyered, as set forth in tbe second finding, and first, second, third, fourth, and fifth requests.
    XIY. It does not appear that tbe commanding general did not communicate verbally bis approval of claimant’s contract to tbe commissary who made tbe contract on or before February 6,1865.
    XV. It does appear that the commissary who made the contract forwarded tbe same on tbe 5th day of February, 1865, from bis office in Santa Fé, N. Mex., to the commanding general at tbe same place for approval.
    XVI. Claim was duly prosecuted for 'tbe contract value of tbe corn declared upon by tbe claimant before tbe departments at Washington, D. C., agreeably to the proposition of tbe commanding general specified in request 8, and tbe claimant addressed tbe Secretary of War upon tbe subject April 12,1866, and copies of papers relating to tbe offer and acceptance of delivery of said corn, and tbe receipt thereof by the officer of tbe Commissary Department at Fort Sumner, were duly certified by tbe commis-saiy who made tbe contract; which pajrnrs were filed in support of said claim before tbe proper department at Washington, D. C.
    
      Mr. Survey Spalding for tbe claimant.
    
      Mr. A. D. Robinson (with whom was tbe Assistant Attorney-General) for tbe defendants:
    Claimant bas not, and never bad, any legal interest in this corn, and therefore cannot recover. It never was Dold’s corn, and Kitchen cannot recover through Dold. There is no privity of interest between them.
    Kitchen is estopped from suit. He bas been settled with for this very corn, and paid and given receipt in full.
    If Dold ever bad any interest, be is equally estopped. If present, with full knowledge of all tbe facts which bad occurred that day and tbe day before, he makes no objection or protest, but allows tbe settlement to be made with Kitchen as bis corn and not Dold’s, and is estopped now to deny that it was Kitchen’s corn. If be was not-present be is equally estopped, because tbe corn was delivered and tbe delivery annulled without any agency of bis or knowledge of it, and it was not bis corn, and Kitchen bad tbe right to, make any arrangement with tbe Government that be chose about5 bis own corn without consulting Dold.
    
      It wiU not fail of notice that Dold, in his letter of July 23, 1865, makes no allegation that the corn was obtained according to the contract, bnt simply states that, as it cannot be received, he will need farther time to deliver according to the contract. He hi effect says, although I am disappointed, yet your conclusions are correct, and I will perform, but I shall need a little more time; which is granted him. (See Gibbons v. United States, 8 Wall., 269.) He could have insisted, if he chose, that the corn thus received was a proper delivery under the contract, and refused to deliver any more than the balance. He did not, and is therefore estopped. If wronged, his remedy is in Congress, and not here.
   Nott, J.,

delivered the opinion of the court:

The controlling facts in this case are that the claimant entered into a contract with the defendants for the sale and delivery of 1,000,000 pounds of corn, and that a third person essayed to make a delivery upon the claimant’s contract without his previous knowledge or consent. The property in the corn so delivered was avowedly in this third person, and it was never pretended or understood that the claimant had any property or interest in it. There is nothing in the record to show that the claimant at the time ratified the act of the third person or adopted the transaction. The vouchers for this delivery were never issued to the claimant, and when sent by the commissary, who accepted the corn, to the commanding general of the department for approval, he disapproved of the transaction, and notified both the claimant and Kitchen, the third person, of his refusal. Up to this point there was nothing to bind either the claimant or Kitchen; no consideration had passed, no binding agreement is shown to have been entered into, and the transaction was still an open one between them. Kitchen then availed himself of the unbinding nature of the case to consider himself the person who delivered the corn and to deal Avith the department in regard to it, and he accepted payment from them accordingly.

If this action be considered as prosecuted in the name of the claimant for the benefit of Kitchen, a sufficient answer to it is that Kitchen compromised the sxxbject of dispute, accepted the price offered, and receipted in full for the money AAdiich he received. If it be considered as prosecuted on tbe claimant’s own bebalf, a sufficient answer is, tliat it is an attempt to reap a benefit from another man’s injury, being founded on a transaction between third persons, to which tlie claimant was an entire stranger, and by which he suffered no damage.

The claimant’s contract with the defendants called for a certain quantity of corn for which he was to be paid a certain price. He has delivered that quantity of corn and has been paid that price, and concedes that there has been no breach of the contract in that regard. But he seeks to ingraft upon this contract (under a provision that it might be increased or diminished by the defendants’ officers) a transaction to which he was not privy, either in law or in fact. The corn which forms the subject-matter of the present'action belonged to Kitchen and not to the claimant; the attempt of Kitchen to deliver it upon the claimant’s contract was without his knowledge and without his authority; it did not bind the claimant, and because it did not bind him, it did not injime him, and he remained a stranger to and can reap no benefit from it.

It may be true that vouchers were made out by the subordinate officer who received this, corn in the claimant’s name; but before these were received and accepted by the claimant, the transaction came to the knowledge of the commanding general, subject to whose approval the claimant’s contract was made, and who, in legal effect, made it, and he instantly disavowed the transaction, and refused to consider Kitchen’s transaction as a delivery upon the claimant’s contract. So far as Kitchen was concerned he was paid for his corn, and receipted in full when he received the money. So far as the complainant was concerned, he was awarded additional time for delivering his corn and availed himself of the extension. - General Carleton’s steps were taken with the strictest regard to law and equity; and he made good to the claimant the only tiling whereby he could have suffered loss, viz, the time whicli had slipped away for the performing of his obligation. The claimant availed himself of the extension thus given, and' his mouth is closed to say that he was misled or injured by the quartenfiaster’s irregular proceedings.

Finally, there was neither authority given by the claimant to Kitchen to deliver this corn upon his contract nor liability subsequently assumed to Kitchen for having so delivered it. And if any sucb liability not disclosed by tlie record has been assumed by the claimant, it would be discharged by Kitchen’s having subsequently treated the transaction as his own, and accepted pay for the corn in his own right from the defendants.

The judgment of the court is that the petition be dismissed.  