
    TENNEY’S CASE.
    Alvan Tenney v. The United States.
    
      On the Proofs.
    
    
      The claimant enters into a written contract with the proper quartermaster at Austin for the sale of corn. The contract is founded upon advertisement andqiroposals, and the quartermaster toas instructed by the chief quartermaster of the department to aceepit the claimant’s hid. As soon as the hid is accepted the claimant begins delivering. The commanding officer does not in writing approve the contract, hut from time to time he indorses approvals on the vouchers issued thereunder. The commanding officer also Jcnew of the claimant’s hid and its acceptance, and the awarding of the contract to him. After the commanding officer has been superseded, his successor disregards the contract, on the ground that it had not been approved, and directs his quartermaster to buy corn of other persons. The former commanding officer thereuponindorses an approval on the contract. He has then been mustered out of the service. The claimant brings his suit for profits lost on the corn bought of third parties.
    
    I. Where the chief quartermaster of a military department orders an assistant quartermaster to accept a hid and award a contract, it is a ratification of the previous acts of the assistant, and renders them as valid as though expressly authorized.
    II. Where a contract does not in terms require the approval of any officer, and there is no provision of law or regulation of a department requiring it so to he approved, its validity cannot he questioned on that ground. But in any case, if the approval is not required to he in writing, it may he shown substantially ; and the fact that a commanding officer knew of a contract being awarded to a party, and then approved vouchers issued under and referring in terms to it, is sufficient evidence of such approval.
    
      The Reporters' statement of the case :
    At Austin, Tex., in the month of January, 1866, Lieut. A. L. Jones, acting assistant quartermaster of cavalry forces in the department of Texas, in pursuance of general instructions given to his predecessor, Captain Lyon, by Lieutenant-Colonel Planning, chief quartermaster of said military department, to make purchases of forage and feed, after inviting proposals and receiving bids, awarded to the claimant, who was the lowest bidder, the contract which is annexed to his petition. Before accepting said bid, Lieutenant Jones telegraphed to Colonel Manning, the chief quartermaster at Galveston, and was directed by him to accept the bid and enter into contract with Mr. Tenney, the claimant.
    Thereupon the contract annexed to said petition was written, January 20,1866, but, on account of the difficulty experienced by the claimant in procuring a surety on his bond for the large amount then required, it was not signed until a subsequent date. On the 31st day of said January the following indorsement was made on said bond annexed to the contract:
    “Office Chief Q. M. Cat. Dept., Texas,
    “ Austin, January 31, 1866.
    “ The forage on this contract having all been furnished except ten thousand six hundred and fifty-two bushels of corn, the bond was only made for $50,000.
    “ A. L. JOBES,
    “ 1st Lieut. 1th Ind. Gav. and A. A. Q. M.”
    
    On the 5th of February, 1S66, the claimant procured a surety, and on that day said contract and bond were signed by the parties thereto in quintuplícate, and were delivered and accepted, and have ever since been in the custody of the defendants7 officers. Major-General Ouster was in command of the cavalry forces in Texas until February 1, 1866, when he was mustered out as major-general of volunteers, under which he had been in such command, and returned to his rank of captain of cavalry in the Regular Army. General Ouster, while in said command, knew of the claimant’s said bid, its acceptance, and the making of the contract. In January, 1S66, he indorsed his official approval on vouchers issued to the claimant for supplies, in which vouchers it was specified that the supplies were delivered on this contract. But the contract does not appear to have been presented to him for his written approval thereon until he had been mustered out as aforesaid. After being so mustered out of that service, but at what time it does not appear, he indorsed his approval on said contract in writing.
    Immediately after said contract was awarded and reduced to writing, and before it was signed by the parties, the claimant commenced making deliveries of supplies in accordance with the terms of the contract, and continued to make such deliveries until March, 1866, and the same were accepted by the officers charged with the duty of receiving supplies at said Austin. For all supplies so delivered the claimant has been paid upon vouchers issued to him under the contract and so paid by the defendants.
    On the 1st of March, 1866, the claimant had fulfilled all the terms of the contract on his part to be performed, except the delivery of 4,500 bushels of corn, when Captain Spangler, the then acting assistant quartermaster and successor to Lieutenant Jones, by direction of Colonel Sturgis, who had succeeded General Custer in command of the cavalry forces at Austin, refused to receive of the claimant any more corn on said contract, for the alleged reasons that corn could then be purchased at a lower rate and the contract had not been properly approved by General Custer. The claimant was ready and willing to deliver the balance of said corn according to contract, and then and there tendered part thereof, but the defendants’ officers refused to receive the same or any other quantity under the contract, for the reasons above stated.
    
      Mr. George W. Paschal for the claimant:
    The Government contracts are governed by the same rules as individual contracts. Where there is no power reserved to cancel them, there is no arbitrary right to do so. And if the contract be broken, without lawful cause pleaded and proved, the measure of damages is the loss which the party has sustained, and that loss is measured by the profits which he could have made. Had Tenney failed to fulfill his contract, he would have been liable for any increased price which the Government might have been compelled to pay. And, on the other hand, the Government is liable for decreased value of the corn. {Senderson's Case, 4 O. Gis. E., 81; The United States v. Speed, 2 O. Gis. B., 441; 8 Wall., 77.)
    
      Mr. J. K. McOammon (with whom was the Assistant Attorney-General) for the defendants:
    The contract not having been signed and delivered until the delivery of four-fifths of the corn and all of the hay and fodder specified in the instrument, the delivery of the corn was not, therefore, under the contract; and the agreement to receive having been executed in the major part before the signing and delivery of the instrument, the contract was ipso facto void and of no effect, not only as to the part executed, but as to the small portion remaining executory. It was not a contract -for the delivery of 25,000 bushels of corn and so much fodder and hay, because 20,500 bushels of corn and all the fodder and hay having been delivered contrary to law, under no written contract at the time of their delivery, and without the existence of a military exigency, no officer of the Army had the authority of law to cure the illegality of his official conduct in accepting and giving vouchers for stores and supplies on a parol contract by the making of an executory contract to cover an executed one. If the contract failed to make Lieutenant Jones’ action valid, it was illegal; and if it was illegal as to the portion executed, it certainly cannot be considered as a contract for 4,500 bushels when 25,000 were specified. On an action for non-payment of the contract price for the 20,500 bushels delivered, claimant could only recover on a quantum, valébat and not the contract price.
    It may be argued that if this point is correctly taken, the claimant could demand damages for the non-acceptance of the full amount of supplies named in the contract made between himself and Lieutenant Jones. The answer to this is, that the contract being void because of its illegality, it falls entirely and ceases to exist.
    There was no advertisement for proposals shown by the production of the same, and no military exigency declared, and the contract was made in contravention of the law. (Act July 4,1864, 13 Stat. L., pp. 394, 396, § 4; Henderson's Case, 4C. Ols. R., 75. The Quartermaster-General did not appfove of the contract, which was necessary. (Filor v. The United States, 9 Wall., 45; Act July 4,1864, 13 Stat. L., 384.) There is no allegation in the petition of the claimant’s readiness and willingness to deliver, nor any proof of these, which is necessary to the recovery of a judgment of the part of the corn undelivered, less the 900 bushels tendered and refused.
   Richardson, J.,

delivered the opinion of the court:

The acting assistant quartermaster at Austin, Tex., having invited proposals and received bids, awarded to the claimant, who was the lowest bidder, the contract annexed to his petition. When he invited proposals the assistant quartermaster acted upon general instructions given to his predecessor in office by the chief quartermaster of the military department in Texas$ but it is not necessary to determine whether or not he succeeded to the authority thus given to his predecessor, because, before making an award upon the proposals, he telegraphed to the chief quartermaster, and was specially directed to accept the bid and make the contract with the claimant. This direction of the chief quartermaster was a ratification and adoption of the acts of his assistant, and rendered them as valid as though they had been previously authorized.

After some delay the contract was signed by the assistant quartermaster and by the claimant, a bond, with surety, was given by the latter for the performance of his agreements, and said contract and bond were then accepted by the defendants, and have ever since been retained by them. As soon as the bid was accepted the claimant commenced delivering the supplies therein provided for, and continued to perform the terms of the contract on his part, both before and after the same was signed, without objection from General Custer, the commanding officer, who indorsed his approval in writing upon vouchers issued to the petitioner, wherein it was expressly set forth that the supplies were furnished under this contract, and these vouchers, so indorsed, were paid by the defendants. General Custer knew of the claimant’s bid, its acceptance, and the awarding of the contract to him.

Subsequently, after the petitioner had delivered all the supplies required of him except 4,500 bushels of corn, and after General Custer had been superseded in command by General Sturgis, the latter refused to receive any more corn of the claimant on his contract, for the reason that he could purchase the same at a less price in the market, alleging at the same time that the contract was not valid and binding on the defendants, because it had not been properly approved by General Custer. The approval of General Custer was not indorsed on the contract in writing until after he was mustered out of service, and that appears to be the only objection to its validity.

In Speed v. The United States, (2 C. Cls. R., 492,) this court held that where a contract provides that it shall be subject to-the approval of the Commissary-General, but does not prescribe any mode by which the approval shall be evidenced, there being no rule of law which prescribes any, it may be proved circumstantially; and on appeal that decision was affirmed by the Supreme Court. (7 id. 93, and 8 Wall., 77.)

In this case the contract itself does not in terms require the approval of any officer, and there is no provision of law or regulation of the War Department expressly requiring the approval Of the commanding officer to such a contract. If the approval of General Ouster were necessary, he certainly was not required to indorse it in writing on the contract, and it may be inferred from the circumstances. We give no force to the written indorsement of General Ouster made after he was mustered out of service, but his previous acts, while in command, are sufficient to establish the fact of his approval. He knew of the bid of the claimant, its acceptance, and the awarding of the contract. He knew also that the claimant was delivering supplies under the contract, and he indorsed his written approval on the vouchers issued to the petitioner for the supplies so delivered, and the defendants made payments on said vouchers. We think that these acts of General Ouster were much stronger evidence of the approval of a contract than were those of the Commissary-General in Speed’s Case, which the Supreme Court held to be sufficient proof of the fact, and that such approval, in addition to the facts that the contract was accepted by the defendants and payments made thereunder, fully established its validity.

The claimant was bound to perform his part of the contract, and so were the defendants bound to perform their part, and for the breach thereof by them the claimant is entitled to recover the sum of $5,625, found by the court to be the amount of his damages.  