
    AKERS’S CASE. Benjamin F. Akers v. The United States.
    
      Ok the Proofs.
    
    
      During the war of the rebellion, Major General Blunt, commanding the district of Kansas, directs the quartermaster at Fort Scott to procure horses and mules. The quartermaster' advertises and awards the contract to the claimant as the lowest bidder. A further supply is ordcredby the general to be purchased in open market. They arepurchased thus of the claimant at the same price. The district quartermaster' pronounces the prices too high, and refuses to pay the voucher's.
    
    
      A. purchase of horses and mules for military purposes by the quartermaster of a military depot, under orders of the general commanding, which is regular and in due form of law, is not subject to the supervision or approval of the quartermaster of the district, and constitutes a valid sale.
    Messrs. Hughes, Denver & Peck for the claimants:
    This is an action to recover balances due the claimant on several contracts for the purchase of horses and mules.
    It appears from the evidence that there were two contracts and one purchase in open market.
    In the month of April, 1863, Major General Blunt, then commanding the district of Kansas, in the department of the Missouri, directed Captain Insley, the depot quartermaster at Fort Scott, Kansas, to advertise for bids for a sufficient number of mules to make the transportation belonging to that post, as also that with the troops in the field, complete and in good condition for active service.
    The requirements for the service indicated in this order called for 300 mules, and Captain Insley therefore advertised for bids in the usual manner for that number. The petitioner was the lowest bidder, and a formal contract was entered into between him and the quartermaster in the usual form for 300 mules at $140 each. The petitioner gave bonds in the sum of $50,000, and took the oaths required in such eases, and furnished under the contract 325 mules, the necessities of the service calling for a larger number than was supposed when the contract was let. These mules were all delivered, inspected, and accepted, and put into the government service, and no objection has ever been made as to the manner in which the contract was filled.
    On the 17th of April, 1863, Captain Insley received another order from General Blunt, directing him to purchase in the same manner 500 cavalry horses.
    
      In pursuance of this order, Captain Insley advertised in the usual manner for bids, and the petitioner was the lowest bidder.
    He gave bond in the sum of $75,000, and fulfilled the contract in a manner highly satisfactory to the officers of the government. The 500 horses were furnished, inspected, accepted, and put into the government service.
    Again, on the 29th of May, 1863, General Blunt ordered Captain Insley to purchase a sufficient number of horses to fill the requisitions in his office,-at a rate not to exceed the price paid for horses then being delivered on contract.
    The order states that, as there were several new companies of cavalry that could not be made available for service until mounted, and the demand for more force in the field was immediate and urgent, Captain Insley was expected to procure the horses with as little delay as possible.
    The number required to fill these requisitions was 400. Captain Insley called upon the business men and horse dealers accessible to him, and found that Mr. Akers was the only person from whom he could purchase horses at the price limited by the commanding general.
    The quartermaster then purchased four hundred horses of Mr. Akers, at the last contract price, viz: $129 45 each — all of which were delivered, inspected, accepted, and put into the government service.
    It also appears that Mr. Akers performed all of the stipulations on his part to be performed in the several contracts, and that regular vouchers were issued to him by the depot quartermaster.
    From these papers in the Quartermaster General’s office, it appears that, after the contracts had been completely executed by the petitioner, payment of his vouchers was refused. The grounds for this action are not very clearly stated.
    On the 8th of May, 1863, the department directed Major Easton (the chief quartermaster of the district) to inform Captain Insley that his advertisement was objectionable in form, and that the contracts ought to have been made by the chief quartermaster, but that as he had acted under written orders from the general commanding, funds would be supplied to pay the vouchers.
    It will be observed that this was twelve days before the voucher was issued under the first contract for the mules, and from three to seven weeks before they were given undertthe second contract and the purchase.
    At this time but a small number of animals had been furnished, and if Mr. Akers bad been promptly notified of tbe intention of the department, he could have exercised his option to complete the contract or not, but he was permitted to go on under the express direction of the Quartermaster General's office that the vouchers should be paid when issued.
    If the rights of contractors are to depend upon their written agreements and the faithful performance of such agreements by them, there would seem to be no doubt that the sum of $13,021 is now due to Mr. Akers. But if, on the other hand, contracts confer no rights which the Quartermaster General is bound to respect, and there is always an implied understanding that the contractor must take his chances upon being able to manipulate those who may intervene between him and that functionary, it must be expected that so soon as the subject is properly understood, bidding for government contracts will be limited to those who are confident of success in such an undertaking. We do not charge that in this particular case the vouchers were suspended and finally cut down because some one was not propitiated, but we call your attention to the fact that the refusal to acknowledge a contract upon trivial grounds, which were distinctly waived while the contract remained an executory one, has the direct tendency to exclude from competition every man who does not feel assured that he is a favorite.
    Such action brings into public contracts an element which should not belong to them; that is, the chance of arbitrary exactions, which may or may not be made, according to the disposition of some official.
    The Assistant Solicitor for the defendants:
    General Blunt’s explanation of the reasons which induced him to direct these purchases to be made is given in an official report made by him to Major General Schofield; and that portion of it which relates to this question is as follows :
    HEADQUARTERS, DISTRICT OF THE FRONTIER,
    
      Fort Scott, Kansas, June 25, 1863.
    General : I have the honor to acknowledge the receipt of the enclosed papers from the quartermaster’s department, relative to the purchase of horses and mules by Captain M. H. Insley, assistant quartermaster at Fort Scott.
    For report, I have the honor to state for your information—
    1st. That circular No. 1, chief quartermaster’s office, department of the Missouri, St. Louis, February 20, 1863, was never sent to my office, nor ever seen by me until to-day.
    2d. I was in command of the district of Kansas, and not a quartermaster, and, as commander, was supposed to know the wants of the troops under me, and what the interest of the service required in my command. Fort Scott is a permanent military post, with a depot quartermaster, and is properly the base of operations for the troops in the field under my command.
    3d. The horses and mules have been bought at a less cost to the government, considering the quality, than any horses purchased at St. Louis at $103, if those lately sent here invoiced to Captain Insley are a sample of the one hundred and three dollar horses, which are not worth as much by $50 per head as those purchased here, it being necessary to recruit the former at Fort Leavenworth, to enable them to undergo the trip to Fort Scott, and then several of them died on the way; nor is the price paid on contract by Captain Insley greater than that paid by Major Easton for the same kind of animals, frequently without letting contracts, when he can get a requisition upon him approved by me.
    In regard to the purchase of horses for the 2d Kansas cavalry, I will state that Colonel Cloud, of that regiment, then commanding the district of southwest Missouri, sent his quartermaster to me with a requisition for five hundred horses, with a statement that he had failed to get them at St. Louis, and had been authorized to purchase them at Springfield, but that they could not be had there.
    Although the regiment was not in my command, they were expecting to he ordered to me, and being a regiment ■ that, had done hard service with me during the campaign last fall, and to which I was under many obligations for its gallant service, I felt disposed to do what I could to put them in a condition for efficient service.
    Major General J. M. Schofield,
    
      Commanding Department of the Missouri, St. Louis, Mo.
    
    The questions in this case are not essentially different from those which arose in the case of Joseph W. Parish v. The United States, (C. Cl’s B,., p. 357, v. 1,) decided at the last term of this court. In that case, as in this, the purchase had been made by the order of the general in command of a military department or district where the purchases were ordered to be made. The orders in that case, as in this, were executed by the chief quartermaster of the district or department. The vouchers in each case were issued by the officer who made the contract, and were approved by such officer.
    There is, however, a question as to a portion of this claim which did not arise in that. This question arises from the facts stated in the official communication of General Blunt, in which he reveals the fact that Jive hundred, horses, purchased by Captain Insley, under his order, were purchased for troops not under his command or in his department. It is not believed that the authority to make contracts in such a case was conferred upon Captain Insley, acting under the order of General Blunt. Those who have claimed that a general in command of a military department or district may make such contracts or purchases as the efficiency of the troops under their command may require, have never sought to extend the principle so as to give him a right to make purchases for the equipment of troops not under his command and beyond his jurisdiction. It is not believed that this principle will be extended here. There is little warrant either in law or the regulations for the government of the army to sanction th & first of these assumptions, and none at all to sanction the last.
   Casey, C. J.,

delivered the opinion of the court:

In April, 1863, Slajor General Blunt, in command of the district of Kansas, directed his quartermaster to procure horses and mules for the service, to be delivered at Fort Scott. Captain Insley, the quartermaster, had proposals published in the usual way, and the contract was awarded to the claimant as the lowest bidder. The price was one hundred and forty dollars ($140) for mules, and one hundred and •twenty-nine dollars and forty-five cents ($129 45) for horses. Three hundred and twenty-five mules and five hundred horses were delivered and received under the contract. It is clearly proved that both classes of animals were quite up to the standard, in quality and all other respects, required by the army regulations. Finding the number of horses insufficient to meet the immediate wants of his command, General Blunt ordered Captain Insley to purchase, in the open market, the additional number of four hundred horses. ' These were purchased of the claimant at the same price paid for the same kind of horses under the proposals and contract, viz : one hundred and twenty-nine dollars and forty-five cents a head. Captain Insley gave to the claimant vouchers for the mules and horses, according to the contract and the prices stipulated, for those purchased. The department quartermaster refused to pay the vouchers iu full, alleging that the prices were too high. He paid to the claimant at the rate of one hundred and thirty-three dollars for the mules, and one hundred and seventeen dollars and fifty-one cents for the horses ; and deducted from the aggregate of the voucher the sum of thirteen thousand and twenty:one dollars, ($130 21.)

This deduction was made without any right, and even without reason. He might as well have deducted twice or thrice that sum, or any other amount. The contracts were regular, and made by a duly authorized officer of the United States. They were made under the orders and direction of his commanding general. The purchase in open market was equally regular, and made to meet an urgent and immediate want. It was the very exigency contemplated by the act of Congress. The animals were of good quality. There is no proof that throws the least shadow on the transaction, or that in any way justifies the withholding of the balance of the price of the animals.

We therefore find for the claimant, and that there is due to him the sum of thirteen thousand and twentij-one dollars, and for which amount judgment is to be rendered in his favor.  