
    WILLIAM R. MERRIAM v. THE UNITED STATES.
    [No. 14488.
    Decided April 27, 1885.]
    
      On the Proofs.
    
    A contractor tenders cattle in November weighing 850 pounds. An Indian) agent erroneously refuses to receive them. Subsequently they are accepted. In the interval they have lost weight and fallen below 850> pounds, but are receipted for as “fully equal to the requirements of the-contract."
    
    I. Where a contract requires a contractor to deliver cattle weighing 850’ pounds (the weight going to the quality and not to the price), but. provides that if “ the necessities of the service” compel Indian agents to. receive cattle which fall belo-w the standard weight there shall be a. reduction from the stipulated x>rice, the provision must be restricted to its purpose. It cannot be enforced where the government accepted) cattle without objection and without being compelled to do so by the necessities of the service, receipting for them at the time as “fully equal to the requirements of the contract.”
    
    II. If the agents of the government allow a contractor to believe that he is-complying with his contract at the time of performing, and thereby prevent him from supplying a defect which he might remedy, the-government cannot afterward claim a reduction intended by the-agreement to apply when the contractor was in fault.
    
      The Reporters’ statement of tbe ease:
    The following are the facts as found by the court:
    1. May 10, 1881, the claimant entered pito a contract, of which'the parts material in the present case are as follows:
    .“This agreement, made and entered into this tenth day of May, one thousand eight hundred and eighty-one, by and between H. Price, Commissioner of Indian Affairs, for and on behalf of the United States of America, party of the first part, and William R. Merriam, of Saint Paul, Minnesota, party of the second part, for his heirs, executors, administrators, and assigns—
    
      “ Witnesseth that the said parties have convenanted and agreed, and by these presents do covenant and agree, to and. with each other, as follows :
    “Art. 1. That the said party of the second part, for him>~ self, his heirs, executors, and administrators, hereby covenants; and agrees with the said party of the first part'to furnish andi deliver, at the places herein designated, to such agent or agents-of the United States as may be appointed to receive them, beef cattle on the hoof, in the quantities and at the prices herein-stated, and subject to such inspection by Army officers, or' otherwise, as may be deemed necessary by the par ty of thej first part, as follows:
    Quantity. Place of delivery. Price per 100 pounds, gross ■weight.
    Two million (2,000,000) pounds. Rosebud Agency, Dakota. Tbreeand dollars ($3.93)-
    * * * # * * *
    “ Art. 4. That the party of the second part agrees to keep beef cattle, as described in article 5 of this contract, in the vicinity of the places of delivery, in such quantities as to give-assurance of his ability to make deliveries when required; and should he fail to collect such cattle at such points fast enough,, or should he fail to deliver them as required, the party of the first part shall have the right to purchase, or cause to be purchased, beef cattle, as he may elect, at the expense of the party of the second part. * * *
    “ Art. 5. That it is further agreed by and between the parties hereto that the beef cattle furnished under this contract shall be good, healthy, merchantable steers and cows (no bulls, or stags), not over seven .years of age, and not more than one-fourth of which at each delivery shall be cows.
    “That they shall be delivered on the government scales,, upon which the weight shall be ascertained, at the agency aforesaid, at the time and in the quantities required by the respective Indian agent in charge, upon five days’ notice by said Indian agent to the said party of the second part, Or liis authorized agents or representatives.
    “ That they shall be ‘lotted’ without food or water during-the twelve hours immediately preceding each and every delivery.
    “ That the average gross weight thereof at each delivery from' May 1st to December 1st shall not be less than eight hundred and fifty (850) pounds per head, and from December 1st to May 1st not less than eight hundred (800) pounds per head; that all animals offered under this contract weighing less than sevei-n hundred (700) pounds, gross, or being in such conditioní\» f o neb less than fifty per centum of their gross weights m good, mer-charitable beef, from May 1st to December 1st, or less than forty-five per centum in such beef from December 1st to May 1st, shall be rejected (except as they may be received under the provisions of article 6 hereof) as inferior to the requirements of this article.
    ‘‘Art. 6. That it is also further agreed by and between the parties hereto that for all the cattle offered under this contract which are not in conformity with the requirements of article 5, but which the respective Indian agents may be compelled by the necessities of the service to receive, there shall be a. reduction of one (1) per centum in the price agreed upon in article 1 for each and every five (5) pounds or fraction thereof that said cattle so received shall fall short of the standard weights agreed upon in the preceding article.
    “ And if the respective Indian agents are compelled by the necessities of the service to receive cattle whose condition as to quality — although weighing the required average, as expressed iti article 5 of this contract — renders them inferior to the requirements of said article 5, then the value of the cattle so received shall be determined by annulment- of this contract, so far as the United ¡States are concerned ; all rights of action, however, for any breach of this contract by the contracting parties being reserved to the United States.”
    II. November 11, 1881, said contract was modified by the parties as follows, omitting the parts not material to the present controversy:
    “ That whereas, to wit, on the IOth day of May, A. D. 1881, an agreement was made and entered into between H. Price, Oommissioner of Indian Affairs, tor and in behalf of the United States of America, party of the first part, and the said William R. Merriam, of St. Paul, State of Minnesota, party of the second partj by the terms and conditions of-which the said party of the second part agreed to furnish and deliver to the authorized agent of the United States at Rosebud Agency, Dakota, two million pounds (2,000,000) of beef cattle on the hoof, in the manner therein provided for, and in consideration of the sum of three dollars and ninety-one cents ($3.91) for one hundred pounds gross, to be paid to the party of the second part in the manner provided in the said agreement;
    “And whereas, on the 21st of July, A. D. 1881, saidMerriam was directed to deliver, under article second of his contract above mentioned, five hundred thousand pounds of beef cattle on the hoof, in addition to the two million pounds (2,000,000) provided for in said contract, making the total amount to be delivered under said contract two million five hundred thousand pounds (2,500,000) beef cattle on the hoof; * * *
    “And whereas it is to the interest of the United States that tbe beef cattle mentioned in said contract shall be delivered at Bosebud Agency before the end of this month, when the delivery of the two million pounds (2,000,000) of beef cattle on the hoof, under the contract of Levi Wilson, is to be made at said agency, in order to avoid confusion and possible loss to the government, and the contractor has offered to make a reduction in the price to be paid :
    “ It is therefore agreed between the parties aforesaid, by mutual consent, that said contract before mentioned be, and the same is hereby, modified so as to authorize, allow, and require the said party of the second part to deliver, not later than the 30th day of November, 1881, at the convenienceof the agent, at Bosebud Agency, the balance.of the two million five hundred thousand pounds (2,500,000) of beef cattle on the hoof not yet delivered under the above contract.
    “And it is also mutually agreed between the said parties that, in consideration of the modification herein contained of the stipulations of the fourth article of said agreement to the extent herein set forth, the said party of the second part, his heirs, executors, and administrators, shall be paid for the balance of the beef cattle yet to be delivered under the above-named contract of May 10th, 1881, to wit:
    “For all delivered after the 20th day of November, 1881, eighteen (18) cents per 100 pounds gross less than the price fixed in the original agreement, to be paid in the manner herein provided, to wit, three dollars and seventy-three cents ($3.73) per 100 pounds.
    “ It is also mutually understood and agreed that the terms and conditions of said agreement of May 10th, 1881, are in no wise altered, changed, modified, or abridged except to the extent herein mentioned, but remain in full force and effect.”
    III. November 11,1881, the claimant caused the following-notice to be sent to the Commissioner of Indian Affairs :
    “ St. Paul, Nov. 11th, 1881.
    “ Hon. H. Price,
    
      “■Commissioner of Indian Affairs, Washington, JD. C.:
    
    “ Dear Sir : Enclosed please find modified contract for beef cattle at Bosebud Agency, signed by me. Please, on receipt of this, notify the agent at Bosebud to receive the cattle from me on the 20th instant, as I will be ready for the delivery on that day.
    • “ Yery respectfully,
    “William E. Merriam."
    The following telegrams and letter were sent at their respective dates, but the first two did not reach their destination until December, 1881:
    
      “ Office oe Indian Ann airs,
    
      “Washington, D. C., Nov. 15th, 1881.
    ■“‘Agent Cook,
    
      “Rosebud Agency, Dak., via Fort Robinson, Neb. :
    
    “ Merriam’s contract for beef has been modified so as to take -all that is due on the twentieth at one delivery. Make arrangements accordingly.
    “ H. Price,
    “ Commissioner.”
    
    “ Office of Indian Affairs,
    “ Washington, D. C., Nov. 23d, 1881.
    ■■“Agent Cook,
    “ Rosebud Agency, &c.:
    
    “ Merriam has been directed to deliver theadditional twenty-five per cent, of beef cattle under his contract. Receive and .receipt for them.
    “ H. Pride,
    * ‘ Commissioner.”
    
    “Office of Indian Affairs,
    “ Washington, D. 0., December 15th, 1881.
    ‘“Agent Cook,
    
      “Rosebud Agency, Dak., via Fort Robinson, NTeb.:
    
    «On November twenty-third you were instructed by telegram to receive from Contractor Merriam twenty-five per centum additional beef under his contract. He informs me that you refuse to do so j comply immediately with instructions.
    “H. Price,
    “ Commissioner.”
    
    “Department of the Interior,
    “Office of Indian Affairs,
    “ Washington, Dec. 15th, 1881.
    John Cook,
    
      “Indian Agent, Rosebud, Agency, Dak. T’y :
    
    “ Sir : Referring to telegram sent to you this day in relation •to the twenty-five (25) per cent, additional beef to be furnished •by Contractor Merriam under his contract, which he states .you decline to receive, you are requested to inform me why .you have not complied with the instructions contained in office telegram of the 23d ultimo, which directed you to receive mnd receipt to said contractor for the twenty-five (25) per cent, .additional beef cattle. An early reply is requested.
    ., “ Yery respectfully,
    “ H. Price,
    ‘ ‘ Commissioner.”
    
    
      IY. Thereafter, in the month of December, said agent complied with the. orders of the Commissioner and received the> •claimant’s cattle, the average weight of which was less than ■850, but more than 800 pounds per head. The agent gave claimant the following receipt, and it does not appear that any objection was made to the weight of the cattle nor that the Indian agent was compelled by the necessities of the service to receive any of those which weighed under 850 pounds:
    •“77. S. Indian Service. Receipt for beef and beef cattle delivered under contract.
    
    “ Rosebud Agency, Dec. 21st, 1881.
    “ Received at Rosebud Indian Agency, Dakota, December '21st, 1881, of Win. R. Merriam, thirteen hundred, and four {1,304) head of beef cattle, weighing one million and sixty-four thousand seven hundred and fifty lbs. gross (weight ascertained by weighing on agency scales), under terms of a contract dated May 10th, 1881, for subsistence of Indians at the •said agency, and for which I have signed receipts in duplicate.
    
    “ I hereby certify that the beef here receipted for is fully •equal to the requirements of the contract above mentioned, ■and in this delivery and receipt each and every condition, provision, and stipulation of the contract has been fully and honestly complied with, and that payment has not been made for the same.
    “John Cook,
    “77. S. Indian Agent.”
    
    Y. At $3.73 per 100 pounds, the price fixed by the modification of the original contract, the amount payable to the claimant (if no reduction be made under article 6) would be. $39,715 18
    He has already been paid. 36, 837 99
    2, 877 19
    Jfr. Harvey Spalding for the claimant.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-<General) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant had a written contract with the defendants to ■deliver at Rosebud Agency, in Dakota Territory, beef cattle to the extent of 2,000,000 pounds weight, for which he was to be paid $3.91 per hundred pounds gross weight.

The deliveries were to be made at the time and in the quantities required by the Indian agent in charge, upon five days’ notice to the contractor. By article 5 the average gross weight at each delivery from May 1 to December 1 was not to be lesa than 850 pounds per head, and from December 1 to May 1 not less than 800 pounds per head. By article 6 it was provided—

“ That for all the cattle offered under this contract which are not in conformity with the requirements of article 5, but which the respective Indian agents may be compelled by the necessities of the service to receive, there shall be a reduction of one (L) per centum in the price agreed upon in article 1 for each and every five (5) pounds or fraction thereof that said cattle so-received shall fall short of the standard weights agreed upon in the preceding article.”

Subsequently the contract was modified “for the interest of the United States,” as set out in the agreement, by which the claimant was to deliver all the balance not previously delivered, between November 20 and 30, 1881, and was to be paid therefor $3.73 per hundred pounds, subject to the stipulation that the terms and condition of the original contract were in nowise altered, changed, modified, or abridged except to the extent mentioned, but were to remain in full force. This kept in force the provisions of articles 5 and 6 of the original contract as to the kind, condition, quality, and weight of the cattle.

Had the cattle been received in November, as required by the modified contract, their average weight should have been 850 pounds per head. But, without any fault of the claimant, they were not then received, although tendered. The Indian agent, being without instructions, refused to accept them, and they were left on the contractor’s hands.

Subsequently, by special order of the Commissioner of Indian Affairs, the cattle were all accepted by the agent, in the month of December, when the contract weight was 800 pounds per head, and they exceeded that average. In the mean time the contractor had been put to the expense of keeping the animals-nearly a month, and had borne the risk of loss by death, injury, and falling off in weight.

But even if the November contract weight of 850 pounds applied to these cattle thus delivered in December, which is by no means clear, we think that, by reason of other action of the defendants and the circumstances disclosed by the findings, the modified contract price is not now subject to any reduction on account of the weight falling below that average.

The contract contemplated that cattle were not to be furnished by the contractor under the specified average contract, weight, nor accepted by the Indian agent unless he was compelled by the necessities of the service to receive them. They were all required to be inspected, and if, in kind, weight, or-otherwise, they did not come up to the contract terms, the defendants’ officers were in duty bound to notify the claimant,, that he might withdraw the objectionable cattle and supply others.

It does not appear that the agent was compelled by the-necessities of the service to accept those cattle which were below 850 pounds weight per head, nor that he made any objection to their weight. On the contrary, he appears to have voluntarily accepted them as they were, and to have been, fully satisfied that they came up to the terms of the contract in every material particular.

In his receipt, given at the very time the deliveries were-made, he says:

“I hereby certify that the beef here receipted for is fuliy equal to the requirements of the contract above mentioned., and in this delivery and receipt each and every condition, provision, and stipulation of the contract has been fully and honestly complied with, and that payment has not been made for the same.”

After thus leading the claimant to understand that he bad complied with all the terms and requirement of his contract,, the defendants could not afterwards legally claim a reduction, in price for underweight when it was too late for him to remedy the matter, even if he would have been obliged to do so at the-time of delivery.

Judgment will be entered for the claimant for the sum of $2,877.19.  