
    BULKLEY’S CASE. Henry S. Bulkley, appellant, v. The United States, appellees.
    (7 Court of Claims R., p. 543; 18 Wall. R., p. —.)
    
      On the claimants Appeal.
    
    
      An army transportation contract provides, 1st, that the contractor shall receive and transport, during certain months, such military supplies as shall he turned over to him; 2d, that he shall he entitled to transport all the stores for which the Quartermaster Department may require transportation during the year; 3d, that notice shall he given to Mm of the quantity and hind of stores to he transported at any one time. He is notified of stores to he transported, and malees preparations tinder the notice, and is ready to perform, ivhen it is found that the Department does not in fact require transportation. Ho stores are furnished to him. He treats the withholding of the stores as a violation of the contract, and brings his action to recover the profits which he might have made if allowed to perform. The court helow decides that the contract being for such unlcnoivn amount as the uncertainty of military ' affairs may require, the contractor agreed to share in the uncertainty, and cannot recover his profits unless his services were actually required, hut that he should recover the needless expenses thrown upon him hy the Quartermaster’s notices. No evidence being given hy the claimant as to his damages, under the ruling judgment is given for the defendants. The claimant appeals.
    
    Where one article of an army transportation contract provides that the contractor shall transport all the supplies for -which the Quartermaster Department may require transportation, and another provides that the Quartermaster Department shall give notice -whenever transportation will he required, the giving of the notice does not hind the Government to send the supplies; and where notice is given and supplies are w ithheld, the contractor should recover the needless expenses which have been thrown upon him, hut not the profit which he might have made if the supplies had been furnished for transportation.
    
      The Reporters statement of the case:
    The following are the facts found by the court below:
    I. On the 21st March, 1865, defendants, by their quartermaster, Col. J. A. Potter, entered into a contract with the claimant, annexed to and forming part of the petition.
    II. At various times during the year 1865 the defendants, by their Quartermaster, gave notices to the claimant, under article IY of the contract, for the transportation of specific quantities "of freights between certain specified points; and the claimant, on his part, prepared and was ready and willing to transport all of such freight, and so notified the defendants’ officers. But of the freights thus notified to the claimant the defendants did not in fact need transportation for the following quantities, and did not offer them to claimant:
    Founds.
    From Fort Leavenworth to Fort Kearney. 591,308
    From Fort Leavenworth to Laramie. 643, 725
    From Fort Leavenworth to Denver. 168,296
    From Fort Leavenworth to Salt Late. 286, 765
    And these freights were withheld from the claimant, and were not in fact transported by the defendants, nor by any person on their behalf, during the continuance of the claimant’s contract.
    And the Court of Claims, upon the foregoing facts, as a conclusion of law, decides:
    I. The defendants not having violated their contract through its entire scope, the claimant should not recover as damages the profits he would have made had the freight specified been furnished him. But the defendants having thrown upon the claimant needless expense, by requiring him to make ready for the transportation of freight under the con tract .which they did not in fact require to be transported, the claimant should recover the amount of such expense.
    II. The claimant having failed to prove the amount of the said expense, his petition should be dismissed.
    
      Mr. C. W. Horner for the claimant, appellant:
    If this were the case of a violation of an ordinary contract of charter-party between individuals, the defendants would be liable for the whole amount of the freight. (French Code de Commerce, art. 288; Bradley v. Benton, 3 Wis., 557; Sedg-wick on Damages, p. 404, ed. 1S69; Flanders on Shipping, p. 494, ed. 1853; Kleine v. Catara, 2 Gallis. R., 61.) And where profits arise immediately out of the contract, they are allowed as damages. “ They are part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the enjoyment of any other stipulation.” (Masterton v. Mayor of Brooldyn, 7 Hill, 02; United States y. Speed, 8 Wall., 77,- Railroad Company v. Howard, 13 How. 307; Hoy v. Grenoble, 10 Casey, 10.) The authorities are innumerable. (Sedgwick on Damages, 76, ed. 1869.) This plain and well-recognized principle of law should govern this case. The general rule, under all systems of jurisprudence, is that the damages due to the creditor for breach of contract, when its object is anything but the payment of money, are the amount of loss he has sustained and the profit of which he has been deprived. (See L. 0., 1928; Code Napoleon, 1149.) The distinction drawn by the lower court does not exist in law. Its opinion admits the general principle above enunciated. “Losses sustained, gains prevented;” but restricts its application to a violation of a contract through its entire scope. This is a grave error. “Damages and interest are due for every non-performance, (inexecution,) whether partial or total; that is to say, for non-performance properly so called, and for incomplete non-performance. In the incomplete or partial non-performance is embraced the tardy performance; for he who executes later than he ought to do does not execute all that he should; minus solvit qui tardius solvit.” (4 Marcadé on Art. 1145 Code Napoleon. See also Sedgwick on Damages, p. 234, ed. 1869, on “ Part-performanee.”) The entirety of a contract alludes to and regards the entirety of its consideration. “ Contract entire, consideration entire.” The test is “ the consideration to be paid, not the thing to be performed.” (Oil Company v. Breioer. 16 Smith, Pa., 351.) An entire contract corresponds nearly with the indivisible obligation of the civil law. (Logan v. Caffrey, 6 Casey, 200.) But there is no question of an indivisible obligation here. The contract or agreement between the plaintiff and the Government is, by the very findings of the lower court, clearly divisible; and no intentional allusion to the entirety of a contract is made when it is said, “ The defendants not having violated their contract through its entire scope,” &c.
    “ Where the agreement embraces a number of distinct subjects, which admit of being separately executed and closed, it must be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed.” (Perldns v. Hart, 11 Wheat., 251.)
    
      There is nothing whatever in the contract to justify the interpretation put upon it by the lower court. The damage is admitted to have occurred; the claimant has suffered loss and been prevented from gain; and the court awards the former and denies the latter, because the profits were not contemplated by the contract, and “ the defendants’ breach relates to a minor matter in the contract, and has merely thrown upon the eon-tractor needless expense.”
    Butit is'said “ the defendants’ breach relates to a minor matter in the contract, and has merely thrown upon the contractor needless expense;” therefore “he should recover only the damage which he hafe actually sustained.” Again, we are disturbed by distinctions which have no legal existence. The violation of a contract “ through its entire scope” is, as we have shown, not the only case in which the party injured is allowed his “ gains prevented.” What are the major and what are the minor matters in a contract like the one under consideration we are at an entire loss to understand. The thing to be carried is as much of the essence of a contract to carry or transport as a thing is of the essence of a contract of sale; without it there is either no contract at all, or a contract of another description. Now, in the contract under consideration the number of pounds to be transported is within certain limits (100,000 pounds, and 10,000,000 pounds in the aggregate, art. II, Bee. 3) optional with defendants, until they give due notice “ of the quantity and kind of stores to be transported at any one time.” After notice given, the number of pounds to be transported is matter of strict contract, and binding on both parties.
    We are entitled to compensation, not only for losses sustained, but for gains prevented, as all the cases cited conclusively show. The measure of damages in such cases having been settled both on reason and authority, the attempt to establish a new one in a suit against the Government by an individual must fail necessarily. We have already a proper standard in United States v. Speed, 8 Wall., 77, and “ we must take this decision as a. matter of faith, not of reason, until the case is overruled by 'the tribunal that made it. But it coincides with our reason as well as our faith.” (Meyer v. Illeg, 2 Smith, Pa., 444.) Stare decisis et non quieta inovere. See Hadley v. Baxendale, 26 L. and Eq., 398; Roper v. Johnson, L. B., 8 C. P., 137-181.)
    
      
      Mr. Assistant Attorney-General Sill for the United States:
    The decision was sufficiently favorable to the claimant. There is nothing in the contract by which the Government can be considered as having guaranteed to the claimant that he should carry all the supplies for which they notified him to get ready. It is expressly provided that he shall receive all such stores and supplies as the Quartermaster Department may need transportation for during the period. Where the Government put him to any expense to be ready to transport supplies, and afterward found that they did not require transportation for the entire amount for which notice was given, it was but just and equitable that the claimant should be compensated for any loss that he may have incurred in consequence of this notice. But clearly the contract does not entitle him to claim the profit that he might have made by transporting the same. Of course the burden of proof was upon the claimant to show what damage he received, and as he has failed to show that he has suffered any, his petition was properly dismissed.
   Mr. Justice Swayne

delivered the opinion of the court:

This is an appeal from'the Court of Claims.

The result of the case here depends upon the construction to be given to the fourth article of the contract between the parties.

The contract was for the transportation of Army supplies in the West.

Bulkley agreed to transport any quantity of such supplies, between 100,000 and 10,000,000 pounds, that might be turned over to him for that purpose, from April to September, 1865. The fourth article provided, “ that in order that the said Henry S. Bulkley shall be in readiness to meet the demands that shall be made upon him for transportation under this contract and agreement, due notice shall be given him or his agent of the quantity and kind of .stores to bo transported at any one time, at what points the stores will be ready for delivery to him, and the place of their destination, subject to such changes as shall be decided upon while in transitu, as herein provided for, that is to say,” &c. The period of the notice before the time of performance in each case was then prescribed, being twenty-five days for 300,000 pounds, and increasing according to tbe increased quantity of the stores specified. On the 4th of June, 1865, an officer of the Government advised Bulkley that transportation from Fort Leavenworth to the extent of 1,700,000 pounds was needed, and inquired whether, as he had been notified already to the extent of his contract, he was prepared to transport that additional quantity of freight. He assented. This enlarged so far the maximum quantity covered by the contract. .•

The Court of Claims found that of the freights notified under the fourth article, the United States did not need transportation for 1,690,074 pounds, and to that extent, therefore, did not offer any to him.

It was further found that Bulkley, on his part, was prepared and ready to transport all such freights, and so notified the proper officers of the United States. The court held, as a conclusion of law, that he could not recover the profits he would have made had the freights withheld been furnished to him, but that, the United States having thrown upon him needless expense by requiring him to make ready for the transportation of freights which they did not in the end require to be transported, he was entitled to recover for the expense to which he was. thus subjected.

Bulkley, insisting upon profits as the measure of his damages, declined to furnish proof of the expense incurred.

The Court of Claims thereupon dismissed his petition, and he has removed the case to this court for review. Here the claim for profits, as the rule of compensation, is renewed. It is insisted that every notice was a specific agreement, within the original contract, on the part of the Government, that the freight specified should be furnished, and that the United States are liable accordingly.

We think this theory cannot be maintained, and that the Court of Claims came to the right conclusion.

Outside of the fourth article there is nothing in the contract which gives the slightest support to the claim. The other stipulations are that Bulkley should transport, in the manner provided and within the times mentioned, all the freights between the maximum and .minimum quantities specified that should be offered to him.

If none had been offered, lie would certainly have had no claim upon the Government for anything. The fourth article provides, that in order that he might be in readiness to meet the demands of the Government, due notice should be given him of the time, place, quantity, and kind of stores to be transported and their place of destination. There is still no agreement to furnish such freights, or any freights. The effect of the notice was to signify a purpose on the part of the Government, and that purpose was liable to be changed at any time before it was executed. Indeed, it is expressly stipulated that it might be altered while the stores were in transitu, and there is no limit prescribed as to the extent or character of the changes that might be made. If the day after the transportation commenced the wagons had been ordered back to their place of departure, unloaded, and the transportation abandoned, there would have been no breach of the contract. The change would have been within its letter and meaning. A multo fortiori might such a change be made and carried out before the transportation began. If it were intended that after the notices were given the Government should be bound as claimed, that intent should have been expressed in the contract. It is neither expressed nor implied. It was doubtless known to the officer who entered into the contract on behalf of the United States that in the exigiencies of the public service more or less transportation, or none, might be required at any given time or place, contrary to what had been anticipated and intended down to the last moment. Hence, while it was stipulated that actual transportation should be paid for at the rates specified, an unfettered discretion was reserved to the Government as to everything beyond that point. It is to be presumed that with this view the contract was framed as we find it. It commits the Government to nothing but to pay for service rendered. It is partly printed and partly written, and is according to the formula used by the Government in all such cases. In making ready to meet the requirements of the notices, Bulkley was subjected to the loss of time, to trouble, and expense. He is entitled to be paid accordingly. Such is the implication of the contract, and what is implied in a contract, deed, will, or statute is as effectual as what is expressed. (United States v. Babbit, 1 Black, 61.) Human affairs are largely conducted upon the principle of implications.

In relation to the large amount of stores transported, there is no complaint. It is to be presumed that everything in relation to them has been satisfactorily adjusted. This claim is confined to stores not transported.

Although we concur entirely with the Court of Claims in their view of the case, yet as the appellant acted in that court upon a mistaken notion of his rights, the judgment will be reversed and the cause remanded, that he may have another opportunity to produce the proof which he declined before to give. If he shall again refuse, the petition must be finally dismissed.  