
    RUFFEE’S CASE.
    Charles A. Ruffee v. The United States.
    
      On the-Proofs.
    
    
      The chief quartermaster of Dakota employs the claimant to cut and cord wood on a military reservation. He complies with Ms agreement. After the wood is cut, two surveys of it are made by military boards. Between the first and second surveys a quantity is stolen. Payment is made to the clamant for the quantity which remained at the second surrey.
    
    I.Where a contract was to cnt> so uincli merchantable wood as might he needed for a military post, subject to inspection and measurement by the proper officers an inspection by a military board, followed by ■ a measurement, warrants tbe presumption that tbe wood inspected and measured came within the terms of the contract.
    II.Where delivery of wood cut for the use of a military post was to be made on the ground as corded, notice by the contractor that the wood was ready for inspection operated as a tender, and the subsequent inspection and measurement, of the wood by a military board operated as an acceptance.
    III. Tlie distinction between this ease and Brawley’s (11 C. Cls. R., 522; 96. U. S., 168) pointed out.
    IV. Where a contractor has finished his work of chopping wood, and it has been inspected and measured by government officers, so that the fact of the quantity and kind of wood (hard or soft) is exclusively within the knowledge of the defendants, tlieir proof on the subject must be taken in the form most adverse to themselves.
    
      
      The Reporters1 statement of the case:
    'The following are tlie facts of this case as found by the court:
    I. In the winter of 18G7-’68, the claimant had the hauling contract on Route 4 in the Quartermaster’s Department, and a contract to carry the mail from Fort Totten to-, Montana. Some of his force being unemployed, he proposed in writing to Col. S. B. Holabird, chief quartermaster of the Department of Dakota, to cut and cord wood in the vicinity of Fort Totten for a price therein named.
    II. The said Holabird thereupon in writing accei>ted the said proposition rtpon the condition that the wood should be merchantable of its kind, and that it should be cut convenient and accessible to the post, and that it should be subject to inspection and measurement by the proper officers, and that delivery of the wood should be had upon inspection and measurement where the wood was corded, and that payment should be made after delivery.
    III. Said written proposal and said written acceptance are both lost. The quantity of the wood to be cut was from 500 to •800 cords, more or less, according to the needs of the post, and the price which the claimant was to receive was $2.75 per cord for hard wood, and $2.50 per cord for soft wood.
    IY. Before the 1st day of August, 1868, the claimant had cut and corded from 800 to 900 cords of wood. The said wood was cut and stacked in a large number of small piles over a tract of land in the form of a semicircle, of about four or five miles in length, the nearest being about one mile and the farthest about two miles from the post.
    Y. The claimant from time to time called upon said Holabird and stated verbally that his men had cut certain quantities of wood, and that he desired an inspection, measurement, and payment. He never gave said Holabird notice that his alleged contract was completed, but his agent at Fort Totten notified the acting quartermaster at that post of that fact when it took place.
    YI. The defendants had two surveys of said wood. No formal delivery or acceptance of the wood is shown. It does not appear when the first survey was had. By the second survey it’ was found that the claimant had cut and corded 447 cords of hard wood and 105 cords of soft wood, and that amount was accepted and paid for by the defendants and the payment receipted for by the claimant on the following voucher:
    
      a The United States to GluOs A. Buffee, Dr.
    
    Date of purchase. Dollars. Cents.
    1869.
    March 6th. For four hundred and forty-seven (447) cords of merchantable hard wood for fuel, at $2.75 per cord.. 1,229 25.
    “ one hundred and five (105) cords of merchantable soft wood for fuel, @ $2.50 per cord. 262 50'
    $1,491 75-
    “ I certify on honor that the above account is correct and just;' that I purchased the articles above enumerated of the said Cha’s A. Buffee at the price therein charged, amounting to fourteen hundred and ninety-one dollars and seventy-five cents, and that I have not paid the account.
    
      u Platte M. Thokne, .
    “ 1st Lieut. 31sí Inf’ty, A. A. Quartermaster.”
    (Indorsed:) No. 25. No. 1. Abstract D. March, 1869. Cha’s A. Buffee. Dollars, 1,491.75.
    YII. The exact amount of the wood found there by the first survey is not shown. It was shown to be from 150 to 20Q cords more than the second survey made it. It does not appear that the first board of survey made any objection to the quality of the wood then cut and corded and offered for inspection and inspected and measured, nor does it appear how much of the wood surveyed by the first board was hard wood, nor how much of the same was soft wood.
    YIII. The wood which disappeared between the time of the first survey and the time of the second survey was stolen by half-breeds. . The assistant quartermaster at the x>ost was in the habit of riding about daily through the woods where portions of the Buffee wood was. He knew that there were about 500 half-breeds within a radious of about eight miles from the post, the greater part within three miles, and that they were dishonest, thriftless, and improvident, and the said corded wood was, admirably fitted for their use. In his rides he frequently missed piles of said wood, and saw marks of where it had been, and he-once caught a half-breed in the act of hauling some of it away.
    IN. The claimant and those representing him left the post before either survey, and were not present when either was made. The wood taken by the half-breeds was taken after the ■claimant and his representatives left.
    
      Mr. J. B. Sanborn for the claimant.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The claimant was to exercise his judgment in the selection of the material, but the manufactured article was to be u merchantable of its kind.” It is not shown that the wood tendered conformed to the contract.
    Claimant was to be paid after inspection, measurement, and receipt. Thus the parties by convention gave to claimant a special property in the wood which by the terms of the contract was not divested until inspection and acceptance. (Cross on Lien, p. 40; Mgee Cotton Cases, 10 O. Cls., R. 199.) At the time of the stealing, the general property was in the defendants and the special property in claimant, and neither was under obligations to protect the rights of the other.
    By the contract, claimant was to furnish and defendants receive a sufficient supply for the winter and spring of 1867 and 1868. Claimant has not shown that the stolen wood was necessary for such supply. (Continental Banlc Note Company's Case, 14 C. Cls. R., 78; Braioley’s Case, 96 U. S., 168.)
   Davis, J.,

delivered the opinion of the court:

In the winter of 1867-’68, the chief quartermaster of the Department of Dakota employed the claimant to cut and cord wood on the reservation near Fort Totten in Montana. He was to cut from 500 to 800 cords, more or less, according to the needs of the post; and he complied with his contract. After the wood was cut a quantity was stolen by half-breeds, and the practical question for our decision is upon whom this loss shall fall.

The claimant undoubtedly cut more cords than were measured and accepted by the government, and he claims that he should be allowed for the full amount cut by him, from 800 to 900 cords, because the defendants unreasonably neglected to inspect and measure the wood, whereby losses occurred which they might'have prevented. We think the findings do not show any unreasonable neglect of the defendants in this respect. The wood was much scattered and in small piles, and was measured within a reasonable time.

We find that 417 cords of hard wood and 105 cords of soft wood were received and paid for. We also find that there were two surveys of the wood cut by the claimant, and that these payments were made by the amounts found on the second survey.

The coutract provided that the wood should be inspected and measured by the government on the spot where it was corded, and that delivery should take place there after measurement and inspection. The chief quartermaster of the department was, from time to time, notified of the progress of the work, and the acting quartermaster of the post was notified of its completion. The government officers then made a survey which they report as showing from 150 to 200 cords more wood than was shown by the survey ou which the payments were made. Neither the claimant nor his agent was present at this survey, and no formal delivery of the wood was made then or at any subsequent time.

If the claimant had simply contracted to cut and cord the wood on that tract of land, this would have constituted a performance of his contract and a delivery and acceptance of the wood. But his contract was to cut merchantable wood, and so much merchantable wood, estimated from 500 to 800 cords, more or less, as was necessary for the supply of the post. The counsel for the government contend that it is incumbent upon the claimant to show that the surveyed wood was merchantable, and that it was needed for the post.

On the first of these points it appears from the findings that there was no proof of an objection by the first board of survey to the qualtity of the wood then inspected and measured. An inspection, followed by a measurement, warrants the presumption, in the absence of proof to the contrary, that the wood inspected and measured came within the terms of the contract. Coming thus within the terms of the contract, we are further of the opinion that, under the circumstances of this case, the measurement operated as an acceptance of the wood. The delivery rvas to be made on the ground as corded.. The notices of the claimant and his agents that the wood was ready for inspection operated as so many tenders. The corresponding action of the government operated as an acceptance.

The government’s second objection is based upon the opinion of the Supreme Court in Brawley's Case (11 C. Cls. R., 522, 96 U. S., 168); but that case does not support the contention. The claimant in that case contracted to deliver 880 cords of wood, more or less, as should be determined to be necessary for the supply of the garrison j and the proper officer within a reasonable time determined that a less quantity was necessary, and his action was sustained. The court in that case did not hold, and in our opinion did not intend to hold, that if no such notice had been given, and if the claimant had tendered the full amount of his contract, and if that amount had been actually needed for the post the government would have been justified in refusing to receive it. In the present case it is not pretended that the wood was not needed, and still less that the claimant was notified that it was not.

It only remains to consider how much was surveyed and accepted by the first survey and not paid for as included in the second. On this point the findings rest entirely on the defendants’ proof. They leave it uncertain whether it was 150 or 200 cords. The claimant and his agent had done their work and had left before the first survey was made. The fact was exclusively within the knowledge of the defendants, and must be taken as proved in the form most adverse to them. For these reasons we find that the defendants accepted at the first survey 200^ cords of wood which have not been paid for. There is no proof whether this was hard or soft wood. There was a difference in the price. This fact also was specially within the knowledge of the defendants, and must be taken against them. Judgment will therefore be entered in favor of the claimant for the agreed price of cutting and cording 200 cords of hard wood, viz, $2.75 per cord, amounting to $550.  