
    DANOLDS’ CASE. Charles A. Danolds v. The United States.
    
      On the Proofs.
    
    
      A Quartermaster contracts with the claimant T>ij parol, in 1883, for a certain number of cavalry horses, at a time, plaee, and price specified. The purchase of cavalry horses is stopped by the War Department before delivery. The claimant tenders his horses, and the Chief of the Cavalry Bureau advises him to beep the horses till spring, when the government will want them and pay him a good price for the wintering. The claimant understands the advice to be an agreement, and on the faith thereof leeeps the horses. In the spring they, with other horses in the claimant’s possession, are inspected and turned over to another Quartermaster at an advanced price. The advanced price is the marhet value of such horses at the time of delivery. The vouchers given by the Quartermaster, accepted by the claimant, paid by the defendamts, do not refer to the previous parol contract with the first Quartermaster. The claimant now seelcs to recover for the care and beeping of the horses during the winter, and for the price of some of the hor'ses which died during the winter.
    
    Where it is a question under which of two contracts certain personal property was delivered, the consideration given and accepted is a controlling-fact. And where the obligation cast upon the defendants by the one contract is to pay $130 a horse, and the obligation cast upon them by the second is to pay $140, and the contractor accepts the greater price, it is an election to unite on a resale, which, estops him from resorting to his former contract as a cause of action.
    
      
      Mr. G. F. Peck for the claimant:
    This is an action brought by original petition, and founded upon two contracts with the officers of the Quartermaster Department.
    In the fall of 1863,0. E. Fuller, a captain and assistant quartermaster in the United States army, was ordered by the Quartermaster General to proceed to the State of New York and purchase horses in the open market, in as large numbers and as rapidly as possible to meet the pressing exigencies of the public service. Considerable latitude of discretion being permitted to Captain Fuller, he at once advertised for horses, to be brought in to the principal cities for sale at the fair market rate.
    It was found impossible to procure horses in this way, and, upon inquiry, he ascertained that great injustice had been done to horse-dealers by inducing them to collect large lots of horses at the government depots, which the government would not receive if any change had occurred in its necessities.
    The usage had been for the quartermaster to advertise that he would receive all horses, presented at a time and place named, which would pass inspection.
    The authorities at Washington would frequently give orders to the quartermaster to cease buying, and this order would be construed by the -officer receiving it to forbid him to receive the horses which were then ready for delivery. In other words, the advertisement had come to mean that the officer would receive the horses at the time and place named if he did not in the mean time change his mind or receive directions to the contrary.
    This fast-and-loose course of dealing produced its natural result. The advertisements of the quartermaster were neglected, and no horses were offered.
    In order to restore the business and enable the government to procure the animals needed, Captain Fuller, in addition to the usual advertisement, made an express agreement with this contractor that he would absolutely receive all horses passing-inspection which he would present at the time and place agreed upon, and jtay for them the stipulated price.
    Mr. Danolds, in pursuance of this express contract, purchased and tendered for delivery at Rochester, on the 10th of December, 1863, about tliree hundred horses. About two hundred and thirty were actually in the city, at the government depot; the remainder were in the immediate vicinity.
    On the 9th of December orders were received from Washington to cease buying. Captain Fuller, for reasons given in his deposition, insisted that he was bound to receive these "horses notwithstanding the order, because they had already been purchased. In this he was overruled by Captain Oram, the inspecting officer, wdio refused to inspect them.- They were therefore left on the hands of the contractor.
    Mr. Danolds then sent an agent to Washington to urge upon the Chief of the Cavalry Bureau his claims to have the horses received and paid for. This interview resulted in a second agreement, which is detailed by the witness Graves, as follows:
    “I acted as special agent for Mr. Danolds in the month of December, 1863; I came to the city of Washington, called upon General Stoneman, Chief of the Cavalry Bureau, on the 25th December. Said he, ‘ You go and tell Mr. Danolds to build corrals or barns for these horses, feed them well during the winter, take good care of them, and the government will accept the horses in the spring and pay Mr. Danolds for their keep-' ing.’”
    In pursuance of this contract made with General Stoneman, the claimant built the necessary corrals and kept three hundred horses until the following May. Two hundred and seventy-four horses were then received by the United States and paid for. Fifteen were rejected by the inspecting officer, and eleven had died.
    As to the twenty-six horses which died and were rejected, we insist that under the contract made with Captain Fuller the' claimant was entitled to have them inspected and received on the 10th day of December, 1863. The United States having failed to fulfil its obligations on that day, all that occurred after that must be held to be at the risk of the government. The contractor was only bound to use reasonable care in keeping the animals until spring, and this he has done.
    
      The Assistant Attorney General for the defendants:
    This suit is to recover $28,326 50 for- keeping the horses' received by the government; $1,430 as the price of the eleven horses that died; $1,507 50 for keeping the fifteen horses rejected; and $975 as the difference between $130 per head for the rejected horses and the amount for which they sold.
    I. There was no contract between the United States and the claimant for the purchase of the horses. The action of Captain Fuller was not only without the sanction of law, but in direct violation of law, (Act March 2, 1861, 12 Stat. L., p. 220, § 10; Act June 2, 1862, 12 Stat. L., p. 412;) his action was also in violation of the orders of General Meigs, directing Fuller to cease purchasing and report to the Cavalry Bureau. Hence these horses, on the refusal of the government officers to receive them in December, remained the property of the claimant. There was no legal obligation on the part of the government to receive them, and they were not received. The assumption of Fuller to promise to take these horses, whether he was ordered to “stop buying or not,” deserves rather the condemnation than the sanction of this court.
    II. The supposed contract entered into by General Stoneman, by which the government was to pay the claimant fpr keeping his own horses, was not only illegal, but improbable. General Stoneman had not lawful authority to make such a contract, and the idea that he would attempt it is so absurd that we cannot believe, on the testimony, that he did.
    III. There being no testimony as to the price to be paid by Fuller, nor as to the price eventually paid by the government, we must, under the circumstances, consider that the sale was effected at a price which reimbursed the claimant the cost of the horses, and remunerated him for the trouble and expense of keeping them. The final sale, in April and May, 1864, was, so far as the record shows, a transaction by itself, having no reference to what had gone before. Neither Captain Fuller nor General Stoneman had anything to do with it.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $32,239 10, for the care and keeping of cavalry horses during the late rebellion.

The case has previously been before the court. On the former trial, a fact deemed important was not disclosed by the evidence. The court believing the claimant’s case to be meritorious, and that he was not chargeable with laches in having failed to offer evidence of this fact, remanded the case to the docket for further evidence and a second trial. (5 O. Cls. B., p. 05.

The existence and legality of two contracts are involved. An officer specially detailed by the Quartermaster General to purchase horses, in conjunction with the Cavalry Bureau, did, in November, 1863, agree with the claimant, by parol, that the defendants should purchase so many cavalry horses, not exceeding four hundred, as he should present for inspection at Bochester, New York, on the 11th December following. The horses were to be such as would pass inspection, and the defendants were to pay for them $130 apiece. The agreement was made after due advertisement in the public papers had been made, but no competitive bids were offered or received, and the officer, in fact, fixed the price and allowed it to all contractors at that place and time. A public exigency, however, required an immediate supply of cavalry horses.

The claimant was ready and willing to deliver three hundred horses, pursuant to the agreement, but the inspecting officers refused to inspect them. He applied, by an agent, to the Chief of the Cavalry Bureau for redress. There is some conflict of testimony at this point as to what passed between the chief and the agent. It may be stated, however, to be this: On the part of the agent it was understood that if the claimant would “build corrals or barns for the horses, feed them well during the winter, and take good care of them, the government would accept them in the spring and pay for their keeping.” On the part of the Chief of the Bureau it was understood that he simply “advised” the claimant to take good care of the horses until spring, when, if the war continued, the government would need more horses, and pay for them very much advanced prices; and he did not agree to pay for these horses’ keeping, nor pledge the government at any time to take them. There was no present consideration paid, no memorandum in writing given, no meeting of minds taking place, no mutual understanding reached. The supposed parol pledge of the officer to pay for the keeping of horses w'hich the government did not own, and might never need, was too vague and loose to be considered a contract. The question therefore is, Did the defendants in any way adopt the mistake of the claimant1? Did they make it their contract and reap from it advantages which preclude them from questioning its validity now?

When the case was first tried there was no conflict of testimony upon this point, and it was assumed by the court that such a parol agreement had, in fact, been entered into by the Chief of the Cavalry Bureau. But it was at the same time held that such a parol agreement, if it existed, was void, and the case was sent back, that its ratification might be shown. Therefore, the attention of both parties has been directed to this subject of ratification, its importance and its necessity.

Upon this, the second trial, it appears by the testimony of one witness that certain inspecting officers came to the farm of the claimant, in the spring of 1864, to inspect horses; that no bargain was then made; that the claimant told the officers “that these were the same horses he had sold Captain Fuller;” and that one hundred and eleven horses not belonging to the claimant were put in under his contract by neighboring farmers, and included in his vouchers.

These vouchers are produced by the defendants. They are simple accounts, referring to no contract — “ The United States to 0. A. Danolds, Dr., for one hundred and ninety-three cavalry horses, at $135 each;”' “The United States to C. A. Danolds, Dr., for one hundred and seventy-nine cavalry horses, at $140 each” — and they are certified and paid by Captain J. L. Trumbull, an assistant quartermaster. In one of the certificates of the inspecting officers it is stated that the one hundred and seventy-nine horses were “presented by C. A. Danolds on agreement made with the chief quartermaster of the Cavalry Bureau.” These are all the facts presented, from which the court is asked to deduce a ratification, by the defendants, of the agreement with Captain Fuller, and an adoption of the supposed agreement with the Chief of the Cavalry Bureau.

As to the inspecting officers, their conversation and their certificate, we are of the opinion that their only oficial duty was to inspect the horses, and that they were neither clothed with authority to bind the defendants by express agreement, nor charged with the care and custody of the horses when they had inspected them.

As to the action of the quartermaster, Captain Trumbull, into whose official cutody these horses actually did go, we think that it was based on some order or authority which is not disclosed; and that while be might have been authorized to buy horses in the market, and, sympathizing' with the claimant for his heavy losses, have chosen to give him a preference in his purchases, yet, that he had neither right nor power- to involve the defendants needlessly by attempting to ratify tbe acts of another assistant quartermaster, of the same rank as himself.

But the greater prices allowed and paid constitute the controlling fact of the case. The consideration being different is conclusive that the contract was different. The obligation cast upon the defendants by Captain Fuller’s agreement was to pay' $130 a horse; the obligation cast upon the defendants by Captain Trumbull’s vouchers was to pay for some $135, and for others $140 a horse. These vouchers are the evidence of the transaction. They were given by the one party and accepted by the other, and have been conclusively ratified by payment. They, moreover, were given for a different and greater number of horses, as well as for a different, and greater price. The parol evidence offered to explain the excess in number explains also the excess in price. It shows thait they were given for the present value of horses in the market. The claimant reaped the benefit of this value in the spring; whether it be little or much, cannot affect the legal character of the transaction. If the agreement with Captain Fuller, and the conversation with General Stoneman, had both been valid contracts, and the parties had then united on this resale, it would have been an election estopping each from ever resorting to his former cause of action.

The judgment of the court is, that the-petition be dismissed.  