
    William J. Chandler v. The United States.
    
      On the Proofs.
    
    1864 a quartermaster on the frontier advertises for hay. On the 1st Jane, a contract is entered into whiehhinds the defendants to furnish, “sufficient guards arid escorts to protect tire contractor while engaged in the fulfilment of the contract.” On the ZOtli July, notice is given of the rescission of the contract, and a new agreement is entered into by the parties. Subsequently the property of the contractor is destroyedby theenemy, and the want of sufficient guards prevents him from performing and realizing a profit. After the rescission of'the first contract, he pays expenses previously incurred on it. More than six years after the rescission he brings this action.
    
    I.Where a quartermaster on the frontier hinds the defendants by contract to furnish sufficient guards and escorts to protect the contractor in the fulfillment of the contract, and military exigencies prevent the defendants from so doing, they are liable for the damage suffered.
    II.The measure of damages where the contract binds the defendants to furnish military protection is the value of property lost for the want of it; not prospective profit on work which the contractor was prevented from performing by the public enemy.
    
    III. Where one contract is rescinded and another substituted in its stead, the statute of limitations begins to run as to expenses incurred prior to the rescission at the date thereof. The fact that the contractor paid them subsequently cannot take the case out of the operation of the statute.
    IV. Where a contractor agrees to do work at a certain place, his expenses in transporting teams, &c., to that place must be b«rne by himself in the absence of an agreement to the contrary.-
    
      
      The Reporters’ statement of the ease:
    The following are the material parts of the contract originally entered into by the parties :
    “I. That the said William J. Chandler shall deliver at certain points on the south side of the Arkansas River, within a distance of twenty-five (25) miles of Fort Smith, twelve thousand tons of hay to the authorized agent of Captain Greene Durbin; said hay to be put up in good stacks of not less than one hundred tons to the stack, and not less than four hundred tons at any one point. The delivery of said twelve thousand tons shall commence on or before the 25th of July, 1864, and be all delivered before the 1st day of September, 1864. The said party of the first part reserves the right of receiving from the said party of the second part only eight thousand tons of hay under this contract, if he judges it to be for the interest of the service, upon giving timely notice to the said William J. Chandler.
    “ II. The said William J. Chandler shall receive twenty-four dollars per ton for each and every ton of hay delivered and accepted under this contract.
    “ III. Payment shall be made upon the acceptance of each one thousand tons, in certified accounts or such funds as the assistant quartermaster'may have for that purpose.
    “IV. In case of failure or deficiency in the quality or quantity of hay stipulated to be delivered, then the assistant quartermaster shall have power to supply the deficiency, by purchase, special contract, or otherwise, and the said William J. Chandler shall be charged with the difference of cost.
    “V. It is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the government to protect the contractor while engaged in the fulfillment of this contract.”
    From the evidence in the case, the court found the following facts:
    I. In the year 1864, Brig. Gen. John M. Thayer was in command of the District of the Frontier, Department of Arkansas, with headquarters at Fort Smith, and Greene Durbin, captain and assistant quartermaster, was chief quartermaster of said district, which included the western part of Arkansas and the adjoining Indian Territory.
    The said Durbin published the following advertisement:
    Office Depot Quartermaster,
    
      u Fort Smith, Ark., May 12th, 1864.
    “ Sealed ¿proposals will be received at this office until Wednesday the 1st day of June, 1864, 12 m., for furnishing hay for this depot.
    
      “ 12,000 tons will be accepted.
    “ The bid will state at what date the delivery of the hay can commence; how many tons will be delivered at the post; how many within 10, 15, 20, and 25 miles from Fort Smith, specifying particularly the location of the place of delivery outside' of the post and the exact distance therefrom, and the amount that will be delivered at each point. Not less than- 400 tons will be received at any one point distant from Fort Smith five miles or more.
    “ Any military protection that is required will be furnished by the government, so far as the interests of the service may admit, and in considering- the proposals made under this advertisement the extent of such military protection will be. decided on by the commanding officer and will be defined in the contract for delivery.
    “A bond for the faithful performance of the contract entered into, in the sum of five thousand dollars, will be required, the names of the sureties to accompany the bid, and if not acceptable the bid will not be considered.
    “Proposals will be made out in duplicate with a copy of this advertisement attached, and endorsed 1 Proposals for furnishing hay.’ The right is reserved to reject any and all bids, as the interests of the service may require.
    “Greene Durbin,
    
      “Oapt. <& A. Q. ill.”
    William J. Chandler, the claimant, made the following proposal under said advertisement:
    “Fort Smith, Are., June 1, 1864.
    “Oapt. Greene Durbin,
    “A. Q. M., Fort Smith, Arh.:
    
    “Captain: I will deliver within twenty-five (25) miles of this post 12,000 tons of hay in accordance with your advertisement, at $24 per ton, and commence delivering by (or before if practicable) the 25th day of July. I cannot state the exact number of tons to be delivered within 10,15, 20, or 25 miles, but the greater distance shall not exceed 25 miles and as much nearer as the hay can be procured.
    “ The following-named gentlemen will sign the bond required if the contract is awarded to me: Clark & Co., bankers, Leavenworth, Kans.; McDonald & Bro., bankers, Fort Scott, Kans.
    “ Í am, captain, very respectfully, your ob’t serv’t,
    “ W. J. Chandler.”
    II. Thereafter, on the same day the contract set out in claimant’s petition, marked Exhibit A, was entered into. In this contract both parties contemplated the delivery of prairie hay.
    
      III. Soon after this contract was made, the claimant, at the request of General Thayer, set a small party to work cutting hay on the north side of Arkansas Eiver, near Fort Smith, for immediate consumption. At that time there were about 2,600 animals to be fed in this locality. It was understood by the parties that this hay, although delivered north of the river, should be received and paid for under the contract the same as if delivered south of it. With this understanding, claimant kept a small party cutting hay north of the river during the months of June, July, August, and September.
    IV. General Thayer exercised military authority over said' Chandler and his property employed in putting up hay during the continuance of his work.
    V. In the fore part of July the claimant, returning from Kansas, where he had been to purchase supplies and machinery, organized a large haying party and, with a military escort furnished by General Thayer, established a camp south of the Arkansas Eiver, about 25 miles from Fort Smith, and began work on a large scale. In' a few days after General Thayer, learning from his scouts that an attack was soon to be made by the enemy upon this haying party, and finding himself unable to protect them, ordered them to return to the north side of the river. The order was readily obeyed, and here the claimant again set his whole party to work.
    VI. On the 30th of July, 1864, the contract of June 1,1864, was modified, as appears by the following correspondence. Some time prior to this correspondence General Thayer informed Chandler “ that he must have hay cut near Fort Gibson, and if Chandler did not do so, he (Thayer) should be obliged to take possession of his stock, machinery, and other means of cutting, and have it cut.
    “Headq’rs Dist. Frontier Dept. Aril,
    “ Fort Smith, Arle., July 30,1864.
    “ Captain : I think it will be impossible to afford the necessary military protection to Mr. William J. Chandler to enable him to fulfill, the contract to cut and deliver 8,000 tons of hay within 25 miles of Fort Smith, entered into by you with him on the 1st day of June, 1864. The hay can only be put up on the south side of the river, and in the present condition of affairs it would require a force to protect the contractor, and the hay after being cut, that the interests of the service would not justify in being detailed for that purpose. You will therefore notify Mr. Chandler that the military protection guaranteed him in the contract cannot be furnished, and that so far as the delivery of hay on the south side of the river is concerned the contract rescinded.
    “ You will, however, without delay, arrange with the contractor for the delivery of the amount of hay yet to be cut and delivered on the contract of the 1st of June,-at Fort Gibson, on the bank of the river, well baled and ready for shipment.
    “The hay to be cut and delivered by the 1st of October, 1864, according to all applicable terms and limitations of the origicontract.
    “ Should Mr. Chandler accept this proposition you will direct him to move his machines and laborers to Fort Gibson, and immediately enter upon the fulfilment of the subsequent contract.
    
      “ Resp’t’y,
    ‘John M. Thayer,
    
      uBrig. Gen’l, U. S. V.
    
    “Capt. Greene Durbin,
    “ Ass’t Quartermaster, Fort Smith, Ar7c.”
    On the same day Captain Durbin addressed the following letter to Chandler:
    “Ofeioe Depot and Chief Q’rm.,
    Dis. Frontier, D. A.,
    
      Fort Smith, July 30,1864.
    “Mr. War. J. Chandler:
    “Sir: In • compliance with instructions from Brig. Gen’l Thayer, com’dg District of the Frontier, a copy of which instructions I enclose,-1 have to inform you that it will not be possible to furnish the necessary military protection to enable you to carry out your contract for the delivery of hay within 25 miles of Fort Smith, and to that extent it will be necessary to rescind the contract.
    “1 am ordered by the general commanding to inform you that if you see proper so to do you may complete the fulfilment of your contract by the delivery of the hay, baled and ready for shipment, on the bank of the river at Fort Gibson, according to all the applicable terms and limitations of the original contract.
    “You will inform me upon the receipt of this of your acceptance or rejection of this modification of the contract.
    “Resp’t’y,
    “Greene Durbin,
    “ Capt. and A. Q. M.”
    
    “Fort Smith, Aric’s, July 36th, 1864.
    “Captain : 1 have the honor to acknowledge the receipt of yours of this date, with enclosures.
    “At considerable expense I have imported from Leavenworth,.. Kans., a number of mowing-machines and laborers for the purpose of fulfiling the contract entered into on the 1st of June last for the delivery of 8,000 tons of hay. It is now too late to secure employment in the filling of any contracts at other points. I am therefore compelled to accept the offer tendered by you as made, although I think an additional allowance should be made me for baling the hay and delivering it ready for the shipment on the Arkansas River.
    “I will start with my mowing-machine for Fort Gibson tomorrow morning.
    “ I am, captain, respectfully, your ob’c serv’t,
    “W. J. Chandler.
    “Captain Greene Durbin,
    “ Chief Q1master, Dist. of Frontier, Fort Smith, ArWs.”
    The locality selected for cutting and delivering hay by this modification of the contract is about 60 miles north from Fort Smith.
    YII. The claimant arrived at his new location, established his camps, and went to work under the modified contract about the 8th day of August, 1864. In this neighborhood, he cut and in part delivered the hay and suffered the losses set forth in the fourth paragraph of his petition. It was shown on the trial, and admitted by claimant’s attorney, that all hay and losses in said fourth paragraph mentioned had been settled for and paid by the defendant, except the 200 tons destroyed on the night' of the 19th and 20th of September at Salisaw River, Cherokee Nation. This 200 tons was cut by claimant under the contract, was destroyed as set forth in said fourth paragraph of his petition, and the $ 16 per ton claimed by him is a fair compensation. It thus amounts to $3,200.
    YIII. That'the claimant failed to prove the delivery of the hay set forth and described in the third paragraph of his petition and amendment thereto, and the court finds that the whole or any part thereof which may possibly have been delivered was embraced in the 1,647 tons for which vouchers were given him by Captain Durbin, and that said vouchers were subsequently paid by the defendant.
    IX. That the removal of claimant and his haying party from the south to the north side of Arkansas River was ordered by General Thayer because, in his opinion, he was unable to protect the life and property of the contractor and the lives of his men on the south side. The second removal, to wit, from near Fort Smith to near Fort Gibson, was made under the modification of the contract dated August 30,1864. By reason of these two removals the claimant suffered a loss of $5,000 ; but how it is divided between the two removals does not appear from the evidence. This loss is set forth in the fifth- paragraph of claimant’s petition at $7,625. Claimant arrived at his new location about the 8th day of August, 1864, and the losses and expenses were all incurred prior to that date. They were then, in part, reckoned up, although some of them were not paid to his agents and men until about the middle of October following.
    X. The amount of hay to be delivered was at first limited to 12,000 tons. This amount was afterwards (under the right reserved in the contract) reduced to 8,000 tons.
    The following correspondence was had, August 4 and 7, relative to the amount of hay to be delivered:
    “Office Depot Quartermaster,
    “ Fort Smith, Ark., August 4, 1864.
    “Mr. War. J. Chandler:
    “Sir: In addition to my letter to you dated July 30,1864, I have to state that owing to circumstances that were not previously fully comprehended, and by the advice of the general commanding, not more than 4,000 tons of hay can be accepted on your contract of June 1st, 1864, and you can use your machinery and force to put up that amount on the north side of the river, according to the limitations and conditions of, and at the price stipulated in, the contract of June 1st, 1864, or you may deliver the amount on the river at For t Gibson, O. N., baled and ready for shipment. Should you prefer to accept .these terms you will notify me of the fact immediately. Your answer to be written in duplicate.
    “Respectfully, your ob’t serv’t,
    “Greene Durbin,
    “ Ccipt. <& Ghf Q’r’m’r.”
    
    “Fort Gibson, O. N., August 7,1864.
    “ Captain Greene Durbin.
    “ Chief Quartermaster, Fist, of the Frontier:
    
    “Captain: Your favor of the 4th• inst. has just been received, and I will endeavor to put up the limited amount of hay indicated immediately; about half at the camp of the troops on the north side of the river, within 25 miles of Fort Smith, and near the Salisaw, and the balance baled at Gibson, ready for shipment.
    “Respectfully, your obedient s’v’t,
    “ W. J. Chandler.”
    
      The amount of bay cut and delivered by the claimant, and cut and not delivered, but allowed in former settlements, is 3,436 tons. If the 200 tons referred to in Finding No. YII is allowed, it makes a total of 3,636 tons. The failure to furnish more than this amount was caused by the failure of General Thayer to furnish “sufficient guards and escorts.” The prospective profits on so much of claimant’s contract as was not fulfilled would have been at the rate of $10 per ton. If the amount of hay which he had a right to deliver was rightfully limited by the foregoing correspondence to 4,000 tons, his prospective profits on the undelivered remainder would have amounted to $3,640.
    The claimant was directed to stop the further fulfillment of his contract about the 27th day of September, 1864. Upon the foregoing finding of facts the court decides as conclusions of law that the claimant have judgment for $3,200.'
    
      Mr. 8. W. Johnston and Mr. R. B. Warden for the claimant:
    If General Thayer believed that the interests of his command or of the government would be best served by a guarantee of protection to the contractor, it was his duty to authorize and approve of the giving of such guarantee.
    If, afterwards, he believed that these interests would be best subserved by the withdrawal of Chandler’s haying forces, mowing-machines, wagons, horses, mules, supplies, &e., from the south side of the river; in order that the only means of procuring forage might be used and preserved or better protected on the north side of the river, it was lawful for him to order and enforce such withdrawal.
    Such enforced withdrawal, or other interference delaying the contractor, was, however, a breach of the contract, and entitles the claimant to recover damages.
    The contract was broken by the failure to furnish sufficient guards and escorts to protect the contractor while engaged in the fulfillment of his contract and by the enforced stoppage of cutting and the withdrawal of the haying party of Chandler from the south side of the Arkansas Itiver, and by subsequent military interference. Either of these breaches made the defendants liable for damages. The measure of damages is the increased expenses to which the contractor was subjected, and the profits he would have earned if he had not been interfered with and delayed.
    
      The rule of law is that “ in all cases of the prevention of the performance of contracts, where the plaintiff has been deprived of the benefit of the contract, the plaintiff is entitled to receive what he has lost by the act of the defendant.” (Addison on Contracts, 1081.) “In such case, the promiser stands in the same situation as though the performance of the contract on his part had been perfected.” (Ohitty on Contracts, 738; Speed’s Case, 7 C. Cls. K., 95.)
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants: 4
    
    The claim itself is too vague and shadowy to be easily handled or to be directly met, but the following objections wholly dispose of it.
    So far as it seeks compensation for the substitution of the second contract the claimant is remediless, for he accepted the substitute volenti non fit injuriahe chose to perform the services required by the new contract, and even if he protested his protest would avail nothing. (Parish v. The United States, 2 C. Cls. B., 360.)
    So far as it is a claim for delays,, or interference with the contract of June 1, 1864, it is barred by section 1069, Bevised Statutes, for with the substitution the old contract perished and eo instanti he might have brought suit for injuries theretofore inflicted on him by reason of interference by the commanding officer, or delays in furnishing him an escort. If claimant contends that the old contract was not superseded by the new, then he could have brought his action for interference therewith as early as the 1st of September. There is nothing in the evidence tovshow any delays or interferences by the United States alter the 30th July and the 7th August.
   Scoeield, J.,

delivered the opinion of the court:

The facts in this case are fully stated in the findings by the court, and it is unnecessary to repeat them here.

The claimant’s cause of action is set out in the third, fourth, fifth, and seventh paragraphs of his petition.

Thethird paragraph, including the amendment thereto, claims compensation for 1,159 tons and 348 pounds of hay delivered in the mouths of June, July, and August, 1864. This claim is entirely swept away by the eighth finding of fact. By that finding it appears that'so much of this hay as was in fact delivered was included in vouchers given by Captain Durbin to the claimant, and that the vouchers were afterwards paid by the defendant. The whole of the claim included in said third paragraph must, therefore, be disallowed.

It appears by the seventh finding of fact by the court that the claimant’s cause of action, as set forth in the fourth.paragraph of his petition, has all been settled and paid by the defendant, except 200 tons of hay cut on Salisaw River, Cherokee Nation, and destroyed by the enemy September 19 and 20, 1864. It appears by said seventh finding that the $16 per ton demanded by the claimant was a fair and reasonable price, and that the hay was lost by the failure of the defendant to furnish sufficient protection. For this hay, in the opinion of the court, the claimant is entitled to recover $3,200. It comes within the rule laid down by Justice Miller, in delivering the opinion of the court in United States v. McKee (97 U. S. R., 235, and repeated on page 236,) to wit: “That the failure to afford such protection renders the United States responsible for the value of property actually lost for want of it.”

The cause of action set forth in the fifth paragraph of the claimant’s petition consists of expenses and loss of time occasioned by the failure of the defendant to furnish sufficient protection. He states his loss at $7,625, and it appears by the ninth finding of facts that the loss amounted to $5,000. This sum is made up, first, by loss of time and expenses incurred in the removal from the south to the north side of the Arkansas river in the month of July; and second, by loss of time and expenses in going from Fort Smith to Fort Gibson, between the 30th of July and the 8th of August. These two bills should have been separated; for, in one view of the case, one might be allowed and the other rejected. They were not, however, separated in the findings of the court; because, as it there appeared, they were, in the evidence, inextricably mixed. But, in the view of the case taken by the court, their separation becomes unimportant. In the opinion of the court the claim for loss of time and expenses occasioned by the removal from the south to the north side of the river prior to July 30, 1864, is barred by the statute of limitations. On that day his work, under the contract of June 1, 1864, was terminated, audit was . thenceforth carried on under the new or modified contract of July 30. • At that time these expenses were all incurred. On the 8th of August, in the settlement with his hands, he reckoned them up. It makes no difference that some of these expenses were not paid by him until about the middle of October following. His right to recover from the defendant ivas not contingent upon the payment of his own debts. The statute would run from the 30th of July, 1804, and this suit was begun September 15,1870. The claim for loss of time and expenses in going from Fort Smith to Fort Gibson, between the 30th of July and the 8th of August, originated under the new or modified contract of July 30,1864. In that modification no provision was made for transportation or expenses. Having contracted to do the work at Fort Gibson, lie is bound, in the absence of agreement to the contrary, to defray the expenses of his journey.

In the seventh paragraph of the petition the claimant asks to be allowed prospective profits on the hay which he contracted to.deliver, and which he failed to deliver by reason of the failure of the defendant to furnish u sufficient guards and escorts.” By the correspondence between Captain Durbin and the claimant, dated August 4 and 7, 1804 (recited in the tenth finding of facts), as understood and construed by the court, the amount of hay to be delivered is reduced to 4,000 tons. The amount for which the claimant is entitled to be credited, as appears by said tenth finding, is 3,630 tons,- leaving to be delivered 364 tons. It also appears by said tenth finding that the prospective profits were $10 -per ton. If this claim is allowed, it amounts to $3,640. But the court holds that it cannot be allowed. In the case of the United States v. McKee (97 U. S. R.), the Supreme Court rules against such prospective profits. That case and this are exactly alike. The two contracts are in the same words, and the claim for prospective profits originated from the same causes.

The decision of the court is that the claimant recover of the defendants the sum of $3,200.  