
    CYRUS FRENCH WICKER v. THE UNITED STATES
    [No. C-6.
    Decided April 4, 1927]
    
      On the Proofs
    
    
      Contract; compliance with request for cancellation. — Where a contract for the furnishing of castor beans provides that upon failure of the contractor to perform the Government may either rescind the contract or grant an extension of time for performance, and the contractor, after the agreed time for performance has elapsed, states that he is unable to fill the contract and requests its cancellation and it is thereupon canceled, there is no breach for which the contractor is entitled to damages.
    
      The Reporter's statement of the case:
    
      Mr. Lords A. Spiess for the plaintiff. Mr. John Walsh was on the brief.
    
      Mr. Lisle A. Smith, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. At the time of the transactions hereinafter mentioned plaintiff was a resident of the city of New York, in the State of New York, and was and now is a citizen of the United States.
    II. On March 18, 1918, the plaintiff entered into a written contract with the United States, by its duly authorized contracting officer, Lieutenant O. It. Ewing, A. S., Sig. R. C., numbered 3283, whereby the plaintiff agreed to furnish 1,000 to 5,000 bushels of castor beans suitable- for castor oil for Signal Corps purposes, at 9.8 cents per pound, including duty, delivery to be between July 1, 1918, and October 15, 1918, f. o. b. New York City. A copy of the said contract, inclusive of the order which is a part thereof, is attached to the petition as Exhibits A and B and made a part of this finding by reference.
    III. In the negotiations preliminary to the execution of the aforesaid contract it was understood between the plaintiff and defendant’s said contracting officer that the plaintiff expected to secure the beans called for therein by growing them in Costa Nica or by purchasing them there.
    On or about March 19, 1918, the plaintiff left the United States for Costa Rica, arriving on or about April 7, 1918, and immediately began preparations for the planting of castor beans to fill the said contract. Shortly after his arrival in Costa Rica revolutionary disturbances .broke out and continued until the middle of the next July. By reason of these disturbances large numbers of laborers were conscripted into the army, and in order to avoid conscription many of them took to the hills. The result of this situation was a shortage of labor, and the planting of castor beans on plaintiff’s plantations was thereby delayed to such an extent that it was impossible for him to harvest the beans in time to make any deliveries on or before October 31, 1918, the date of the cancellation hereinafter referred to, and he made no deliveries to the defendant at any time.
    IV. Plaintiff left Costa Rica on or about September 1, 1918, and arrived in Washington, D. C., on or about September 16, 1918. He immediately went to the castor bean section of the Air Service, conferred with Capt. Charles Mayer, jr., who was in charge thereof, and Lieut. Denison W. Grant, who was an officer in the said section, apprised them of the situation described and his inability to make deliveries within the agreed time, and requested of them an extension of time. The said Captain Mayer and Lieutenant Grant were not contracting officers and had no authority to bind or obligate the United States. He had like conferences with the contracting officer, Captain Ewing (formerly lieutenant), and was told by him that an extension of time could be given upon proper proof of interference by the aforesaid revolutionary disturbances. The plaintiff did not submit evidence satisfactory to the said contracting officer of such interference, and an extension of time was not granted.
    While these negotiations were in progress plaintiff, on October 29, 1918, sent to the contracting officer, and in due course the contracting officer received, the following letter:
    Cosmos Club,
    
      Washington, D. C., October 89,1918.
    
    Lieut. O. B. Ewing,
    
      Signal Corps, U. S. A.,
    
    
      Washington, D. C.
    
    Dear Sir : In accordance with a recent conversation with Captain Mayer, of the Castor Bean Section of the Bureau of Aircraft Production, I desire tb apply for the cancellation or extension of order No. 73042, under contract No. 3283, for the furnishing to the Signal Corps of 2,000 to 5,000 bushels castor beans, at 9.8 cents per pound, delivery to be between July 1 and October 15, 1918.
    It has unfortunately proved physically impossible to make deliveries within the short time allowed. I have planted a sufficient acreage to more than fulfill the contract within the next few months, but the planting was not commenced in time to allow for October delivery. The chief reason was revolutionary outbreak in Costa Bica during March and April of this year, which, although with no serious consequences from actual fighting, led to the impressment of thousands of laborers and caused many more to take to the hills to avoid conscription. Ordinary planting could not be started for that reason until late in May and June, too late for harvesting before December.
    I have over 1,000 acres under cultivation with castor beans, planted under this contract with the Signal Corps, the first shipments from which can be made in December next. I can fulfill the maximum under the contract before the end of August of next year, up to which time I understand the Signal Corps is now making contracts for delivery of castor beans. I therefore request that the present contract be canceled and the bond returned, and a new one made tó cover such future deliveries, or that the Government will exercise Clause V of the contract, section d, and permit me to complete delivery in accordance with the contract within a reasonable time after October 15. I have also arranged, if a contract can be arranged, to undertake at once new planting, so as to largely increase my production before August 31.
    Very truly yours,
    (Signed) Cyrus F. Wicker.
    V. Upon representation by plaintiff that he desired to have the contract canceled, or its time extended, the contracting officer, the said Ewing, suggested that he secure from the aforesaid Captain Mayer a memorandum directed to the contract department recommending the cancellation of plaintiff’s contract, since the castor bean section, of which Captain Mayer was chief, was interested in the fulfillment of the order.
    The plaintiff accordingly requested of and secured from Captain Mayer and presented to the contracting officer the following memorandum:
    October 30, 1918.
    Memorandum for Contract Department. (Attention of Captain Ewing)
    1. It is suggested that contract with C. F. Wicker, covered by aero order No. 73042, calling for delivery of from 2,000 to 5,000 bushels of castor beans before Oct. 15th, be canceled, as Mr. Wicker called at this office and states that he is unable to fill this contract.
    (Signed) Chas. Mayer, Jr.,
    
      Capt., A. N, A. P.,
    
    Chief, Castor Beam, ana! Oil See.
    
    VI. In accordance with plaintiff’s request, the contracting officer canceled the contract in suit October '31, 1918, and so informed plaintiff by letter, as follows:
    October 31, 1918.
    To: Mr. Cyrus French Wicker, No. 60 Broadway, New York.
    1. Your attention is called to order No. 73042, which is covered by contract No. 3283, providing for the sale to the Government of two thousand to five thousand bushels of castor beans. The above order contains a provision stating that delivery of the beans covered by this order should be between July 1,1918, and October 15, 1918.
    2. In view of the fact that you have delivered no beans under this contract, you are hereby advised that the same is canceled.
    3. This will acknowledge receipt of your letter of October 29,1918, giving your reasons for failure to fulfill the contract within the time specified.
    By direction of the Director of Aircraft Production.
    (Signed) O. R. Ewing,
    
      Captain, A. 8., A. P.
    
    VII. A claim for compensation and damages under the contract in suit was filed with the Secretary of War in the amount of $14,490.00 and was by him rejected, and plaintiff has not been paid the said amount or any part thereof.
    The court decided that plaintiff was not entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

On March 18, 1918, plaintiff, Cyrus French Wicker, entered into a written contract with the Government by the terms of which plaintiff agreed to sell and deliver to the United States from 1,000 to '5,000 bushels of castor beans, for which the Government agreed to pay plaintiff 9.8 cents per pound, including duty, same to be delivered between July 1, 1918, and October 15, 1918. It was understood between plaintiff and the contracting officer for the Government that plaintiff expected to secure the beans called for in the contract in Costa Pica, either by growing or purchasing them. The contract contained the provision that: “ If the contractor is prevented from furnishing beans by reason of floods, earthquakes, fires, tornadoes, or other acts of God, or conditions beyond the possible control of the contractor, including revolutions in Costa Rica, he shall be relieved from his obligation to furnish said beans to the extent to which he has been thus prevented from furnishing the same.”

After the execution of the contract plaintiff left at once for Costa Rica and there began the preparation of lands and the collection of seed for the purpose of producing castor beans for the fulfillment of his contract with the Government. It is alleged by plaintiff that by reason of the shortage of labor due to revolutionary disturbances he was delayed in planting at the proper season and was therefore unable to make delivery of any part of the production within the time specified in the contract.

The contract further provided that: “ In the event of the failure of the said contractor to perform the stipulations of this contract within the time and in the manner specified herein, the said party of the first part may elect one of the following courses:

“(a) May rescind the contract;
“(b) May supply the deficiency by purchase in the open market or otherwise, charging the said contractor with any loss occasioned by a difference between such purchase price and the original contract price;
“(c) May take over from the contractor any or all items completed or in process of manufacture, payment for which shall be the difference between the contract price and the cost to the United States of having the articles or equipment completed;
“(d) Or may permit the party of the second part to-complete delivery within a reasonable time after the date or dates specified herein and in this event liquidated damages shall be deducted as provided in the attached order.”

Plaintiff returned to the United States and came to Washington about the middle of September, 1918, and conferred with certain Government officials connected with the castor bean section of the Air Service concerning his inability to make delivery within the specified time, and requesting an extension of time under the terms of the contract; and plaintiff contends that the time was verbally extended to March 31, 1919, by Captain Mayer and Lieutenant Grant. Negotiations were continued, however, for an extension of time, and on October 29, 1918, plaintiff wrote a letter to the contracting officer, Lieutenant O. R. Ewing, requesting the cancellation or extension of the contract, stating the circumstances which had served to prevent his compliance with same. In this letter it is stated, “.I therefore request that the present contract be canceled and the bond returned and a new one made to cover such future deliveries, or that the Government will exercise Clause Y of the contract, section d, and permit me to complete delivery in accordance with the contract within a reasonable time after October 15. I have also arranged, if a contract can be arranged, to undertake at once new planting so as to largely increase my production before August 31.” In response thereto on October 31, 1918, Captain Ewing, disregarding the alternative proposals contained in plaintiff’s letter, canceled the contract, using the following language: “In view of the fact that you have delivered no beans under this contract you are hereby advised that the same is canceled.”

The evidence discloses the fact that neither Captain Mayer nor Lieutenant Grant had authority to extend the time for the completion of the contract. However, in view of the conduct of the plaintiff in continuing negotiations with Captain Ewing on the subject, it is manifest that plaintiff himself did not rely on the alleged extension by those officers. Plaintiff had a number of conferences with Captain Ewing prior to the date of plaintiff’s letter requesting a cancellation, in which the subject was fully discussed. Plaintiff was assured that if satisfactory evidence should be presented to the effect that the revolution was the direct occasion of a shortage of labor, which in turn caused the delay in planting, thus preventing the delivery within the specified time, the Government might be authorized to extend the time. In the midst of these negotiations plaintiff wrote the letter of October 29,1918.

Plaintiff presented a claim to the Secretary of War for compensation and damages in the sum of $14,490, which was rejected, and this action is for the recovery of that amount.

It is the opinion of the court that plaintiff is not entitled to recover. It is therefore adjudged that plaintiff’s petition be, and the same is hereby, dismissed.

Graham, Judge; Hat, Judge; Booth, Judge; and Campbell, GTdef Justice, concur.  