
    COBB’S CASE. Oliver P. Cobb v. The United States.
    
      On the Proofs.
    
      In the winter of 1864-’65, a pressing emergency existing, General Thomas orders his chief quartermaster to do whatever is necessary to procure the necessary forage. The chief quartermaster commimicates the necessity to the chief quartermaster at Louisville. A contract is entered into by one of his subordinates, with his approval, for 500,000 bushels of corn, deliverable at the rate of 150,000 bushels per month. Before all of the corn is delivered the war ends, and the Government refuses the balanee. The conti'actor sues fiyr hisi damages. The defendants insist that the contract ivas void, not being founded on previous advertisements nor being in terms for immediate delivery.
    
    Where, during the rebellion, a commanding officer exercises his discretion for the immediate procurement of supplies to meet an emergency, his order has the force of law; and discretion to purchase without advertisement is thereby conferred upon his subordinates charged with the duty of procuring the supplies; and a contract entered into by thorn for 500,000 bushels of corn, deliverable at the rate of 150,000 bushels per month, is within their discretion and valid.
    
      The Reporters1 statement of the case:
    The facts of this case were found to be as follows:
    I. About the time of the fall of Atlanta, in August, 1864, the Quartermaster Department charged with the duty of supplying General Sherman’s and General Thomas’ commands found itself sliorfc of forage, ancl active measures were taken by General Donaldson, chief quartermaster at Nashville, to supply the deficiency. In November, 1864, he had gathered a vast amount of stores, grain, and hay, at Johnsonville, on the Tennessee Elver, for the supply of these commands.
    II. About the 1st of December, 1864, only fifteen or sixteen days before the battle of Nashville, all the stores collected at Johnsonville, amounting to nearly 2,000,000 bushels of grain and vast quantities of hay, were consumed by fire. -The destruction of these stores produced a panic in the Quartermaster Department, and every effort, under the instructions of General Thomas, then in command at Nashville, was put forth to replace them. A pressing necessity for forage existed, which extended through the months of December and January.
    III. General Thomas’ army was then 'concentrated at Nashville, which was daily increasing by forces collected to repel the advance of the confederate army under General Hood ,• and preparations were also being made for the operations of a cavalry force, about 30,000 strong, under General Wilson, upon the Southern States.
    IV. These circumstances, combined with the fact that the corn-crop of 1863 was nearly exhausted, and the crop of 1864 was light, and, owing to the season, did not ripen in the field, and had to be put up in the cribs to dry before it could be shelled, created a pressing emergency for the immediate delivery of large amounts of forage, upon the fulfillment of which the success of our military operations in the West and South depended.
    V. In this state of affairs General Donaldson was- in daily communication with General Thomas as to the needs of the Quartermaster Department, and Thomas informed him that he trusted the whole matter to him, and directed him to do whatever was necessary to procure the proper supply of forage.
    VI. Under this authority General Donaldson wrote and telegraphed to General Allen, chief quartermaster at Louisville, to send forward supplies as rapidly as possible. Allen was unable to meet the demand, and in turn appealed to Colonels McKim and McClung, at Cincinnati, but they had but little grain on hand, and none of consequence could be obtained from Saint Louis.
    VII. Under these circumstances a meeting of the quartermasters from Cincinnati, Saint Louis, and Nashville was held in General Allen’s office, in Louisville, with reference to the emergency; and it was ascertained that no adequate supply could be obtained from any established depot of the Quartermaster Department, or from the heads of divisions charged with the duty of furnishing such supplies, within the time required, and that the best, cheapest, and most efficient way of meeting the emergency was to rely on purchases in the open market.
    VIII. Some short time after this conference O. P. Cobb, the claimant, made to Captain De Wolf, assistant quartermaster under General Allen, the following proposition, in writing, viz:
    “Louisville, January 10, 1865. “D. O. De Wole, Gapt. and A. Q. M.
    
    “Dead Sir: I propose to furnish you, for the United States Government, with five hundred thousand (500,000) bushels shelled corn, in sack, at Cairo, Illinois, at the rate of 150,000 to 200,000 bushels per month, at one dollar and fifty-five ($1.55) cents per bushel. Also one hundred thousand bushels oats,' at one dollar and five cents per bushel.
    “ .Respectfully, yours,
    “O. P. COBB.”
    After consulting with General Allen, Captain De Wolf, under Allen’s direction, wrote and indorsed the following acceptance on the claimant’s proposition, viz:
    “Oeeice Assistant Quartermaster,
    “Louisville, January 10, 1865.
    “The above proposition is accepted, with the proviso that in case this department is furnished with currency for payment on delivery, the price of corn shall be reduced five cents per bushel and the price of oats four cents per bushel.
    “D. O. DE WOLF,
    “ Gapt. and A. Q. M.”
    
    Andthecourtfurtherfound, attherequest of the claimant, the following facts, in addition to the general finding:
    1st. That the purchase in this case was understood in the Quartermaster Department as a purchase in the open market, and such a one as was usual in the Quartermaster Department during the war in cases of emergency.
    
      2d. That the mode adopted in this case to supply the necessary forage to meet the emergency then existing was the only mode known to those whose duties it was to supply the forage required.
    3d. That General Allen was at the time of these transactions chief quartermaster of the Department of the Mississippi, and had general supervision over all the quartermaster purchases for all the armies stationed or operating- in the West and Southwest ; and General Donaldson was the chief quartermaster of the Department of the Cumberland, and had immediate charge of the depot at Nashville.
    4th. That the emergency was of a character so pressing, that General Allen, and those procuring forage under him, feared that the animals of General Thomas’ army and General Wilson’s cavalry would starve, and such that advertisements in the usual way would tend to defeat the obtaining of supplies within reasonable time and at a reasonable price, and that seizures were discussed, and both rejected as being inadequate to meet the existing emergency.
    
      Mr. T. D. Lincoln for the claimant.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Millig-AN, J.,

delivered the opinion of the court:

The contract which constitutes the foundation of this action was made without previous advertisement •, and the principal question in the case is as to the claimant’s right to hold the United States responsible for its breach. The Assistant Attorney-General makes no objection to the claimant’s right of recovery, other than the want of conformity in the contract to the acts of Congress, respectively, approved March 2, 1861, (12 Stat. L., p. 220,) June 2, 1862, (12 Stat. L., p. 412,) and July 4, 1864, (13 Stat. L., p. 394.)

It can scarcely be necessary to review these statutes at length, since they have been so recently considered in the cases of Cobb, Christy & Co., (7 C. Cls. R., p. 470,) and John A. Thompson & Co., (ante.) In the former, the court held, without dissent, that the purchase of military supplies for a military emergency during the rebellion is governed exclusively by the Act July 4, 1864, and not by the Act March 2,1861, nor the Act June 2, 1862.

Since this decision we have had no occasion to change or modify it, and therefore farther consideration of the acts of 1861 and 1862 may be dismissed.

The act of 1864 alone governs this case, as it did the decision of Cobb, Christy & Co., which, in its facts and circumstances, is essentially the same as this. The chief difference in the two cases is found in the fact that in the former the contract was in parol and in the latter in writing. The same military emergency existed in both cases, and the commanding general’s authority to purchase supplies in the open market is proven in each case by precisely the same testimony.

In this case, as well as in Cobb, Christy & Co., the chief quartermaster at Nashville was specifically, though informally, informed by General Thomas of the emergency, and charged with the duty of providing for it in the most expeditious manner in his power.

Under this authority the quartermaster at Nashville at once appealed to the chief quartermaster of the division at Louisville for aid, and he, being unable to furnish it, in turn applied to his subalterns at Cincinnati and Saint Louis, but no adequate supplies could be furnished by either. None could be obtained from the heads of divisions charged with furnishing such supplies, or from any established depot of the Quartermaster Department. What, in such circumstances, was to be done ? The emergency was imminent, and the order of the commanding general unrevoked.

Theheads of the quartermaster departmentin Nashville, Saint Louis, and Cincinnati met in General Allen’s office at Louisville, and after consultation as to the necessities of the department, determined that the most expeditious manner of procuring the needed supplies within time was to purchase them in the open market.

Under such circumstances this contract was entered into, and the claimants at once began its execution, and at the time performance was stopped by the defendants they had delivered more than three-fourths of the grain required under it, and had on hand enough to complete its fulfillment.

The justice of the claimant’s demand is not denied, but this court can afford no relief unless the contract was authorized by law; and since in Cobb, Christy & Go. we upheld a parol contract, made under the same circumstances, and to meet the same emergency, it is difficult to see bow we can refuse to sustain this contract.

The act of 1864 was passed during the war, and for exactly such cases as are presented in this record; and without it the movements of great armies in the field, exposed to the accidents and misfortunes of war, would often be greatly crippled or rendered wholly powerless at the very time they should put forth their greatest strength.

To provide against such contingencies, the legislature has wisely clothed the commanding officer with power to order the chief quartermaster of his army or detachment to procure the necessary supplies, during the continuance of an emergency, without advertisement, and in the most expeditious manner. {Act July 4, 1864,13 Stat. L., § 4, p. 396.)

The commanding officer’s order confers on the chief quarter-muster new and additional powers, which he could not exercise without it; and after it has been given, he is clothed with a broad discretion to procure the needed supplies in the most expeditious manner. The order has the force of law, and the exercise of the authority conferred by it necessarily carries with it the right in the chief quartermaster to use all the aids and machinery which his department furnishes to effectuate the new and additional power with which he is thus clothed. He can thereof in person, or through his inferior officers, procure the needed supplies during the continuance of the emergency directly by purchase in the open market, or by verbal or written contract, as the circumstances of each, case may justify; and in either event the contract of purchase as effectually binds the United States as if it had been made in the regular way under previous advertisement.

A narrower construction of the Act July 4,1864, and a more-restricted limitation on the power conferred by the commanding officer’s order in cases of emergency, would render the statute itself ineffectual to meet a great exigency like the one under consideration; for it would be impossible for the chief quartermaster in person to make all the necessary purchases immediately and literally in the open market, or, in fact, to procure in time the quantity of supplies required, without the aid of his subalterns and the power to contract for deliveries to meet the exigency.

By the terms of tbe statute tbe commanding officer’s order is addressed to tbe chief quartermaster of tbe army or detachment ” in which tbe exigency exists, and the power to purchase in the open market, without advertisement, thus communicated to him, is carried down through the bead of the department to all his subalterns authorized by law to make contracts or purchases for supplying such army or detachment, and the order need not be repeated to such inferiors, or contracts made by them otherwise specifically recognized by the commanding officer. It is enough, after the exigency has been declared, that tbe chief quartermaster is ordered, as in this case, to meet the emergency, and to procure tbe necessary supplies in tbe most expeditious manner.

The length of time this power can be exercised is limited by the words of the statute to the continuance of the emergency; and the way in which the quartermaster discharges the duties thus imposed upon him, as before stated, rests wholly in his own discretion. But he must always take care how he exercises that discretion, not because it will affect the validity of contracts made under it, but because it may affect the settlement of his accounts in the department to which he is responsible.

From this view of the whole case we think it clear the contract was not only authorized by the act of 1864, but necessary to meet a great exigency, running through a period of several months and pervading the whole western division of the Army, on the success of whose movements, at that particular time, greatly depended the final overthrow of the rebellion.

Admitting the validity of the contract, there is little controversy as to its breach. The contract bears date the 10th of January, 1865, and the corn was to be delivered at the rate of 150,000 to 200,000 bushels per month. Assuming the claimant would have fulfilled his contract by delivering 150,000 bushels per month, he would havehad until the 1st of May, 1865, within which to deliver the whole 500,000 bushels. The notice to stop the delivery was given on the 11th of April, 1865, so that it is apparent the claimant was in no, default on his part, and the breach by the defendants was clear and undisputed.

It is true, the amount of corn actually delivered at the date of the notice was not altogether equal to the minimum rate at which it was to be delivered per month; but this clearly resulted from the defendants’ own acts. The claimant was ready and anxious to deliver the grain faster than the defendants were prepared to receive it; and at their request, shortly before the notice to stop, the delivery was retarded and held back under the direct promises of the defendants’ agents that they would receive the grain as rapidly as they could handle it.

The next and only remaining question is as to the damages. The rule in this character of cases is so well settled, that we need not multiply authorities to establish it. This court has uniformly recognized the rule to be the difference between the contract price and the market price when the article contracted for should hare been received. (Cobb, Christy & Co. v. The United States, 7 C. Cls. R., p. 471; Wilder v. The United States, 5 C. Cls. R., p. 468; also Hughes & Fuller v. The United States, 4 C. Cls. R., p. 64.)

The claimant in this case not only tendered performance, but was fully able, willing, and ready to perform; and, under the universally-recognized rule of damages in such cases, he is entitled to recover the difference between the contract price of the corn and its fair market value at the time it should have been received by the defendants.

When the quartermaster refused to receive any more grain, it appears there were 124,377 bushels undelivered on the contract, which was then fairly worth in the market 76 cents per bushel, making the difference between the contract and market prices 80 cents per bushel.

Judgment will, therefore, be entered in favor of the claimant for $99,601.60.

Dkake, Ch. J.,

dissenting:

I cannot concur in the opinion just read. Having at the present term of the court, in the case of John A. Thompson & Co., fully expressed my views in regard to transactions by the officers of the Quartermaster Department of the Army of the Cumberland, which were very similar to those shown in this case, I do not deem it necessary now to go over the same ground at length, but will merely state the points which constrain me to differ from the conclusions reached by the majority of the court.

1. There was no contract between the claimant and the defendants, executed in the manner prescribed by the first section of tbe Act June 2,1862, (12 Stat. L., p. 111.) When the claimant proposed to Assistant Quartermaster De Wolf to furnish 500,000 bushels of corn at Cairo, and De Wolf accepted the proposition, the proposal and acceptance did not make a contract between the claimant and the United States, but merely furnished the basis for such a contract, “to be reduced to writing, and signed by the contracting parties, with their names at the end thereof,” as required by said act. (Henderson’s Case, 4 C. Cls. R., p. 75; Lindsley’s Case, ibid., p. 359; Adams’s Case, 7 ibid., p. 437; Lender’s Case, ibid., p. 530.)

2. If there was an emergency requiring the immediate procurement of supplies,” that did not authorize a contract which was to run through a period of more than three months. (Henderson’s Case, ut supra; Emery & Blake’s Case, 4 C. Cls. R., p. 401.)

This brings to view the essential difference between this case and that of Cobb, Christy & Co., (7 C. Cls. R., p. 470.) There the forage was required to be furnished immediately and at all events,” and the contractors “ proceeded immediately, and delivered forage promptly and without any delay.” Here, however, nothing was required to be delivered immediately; it was a clear case of contracting for future supples, without advertisement for proposals, and without any direct authority from the commanding general of the army to enter into such a contract.

In my view the claimants are not entitled to recover.  