
    NEW YORK MARKET GARDENERS’ ASSOCIATION v. THE UNITED STATES.
    [No. 22742.
    Decided January 6, 1908.]
    
      On the Proofs.
    
    
      The contract is to furnish 23,000,000 packets of field and flower seeds to the Department of Agriculture for distribution. The contractor is to procure a building in Washington suitable for storing and packing the seeds; to provide all bags, envelopes, wrappers, etc.; to deliver the seed in bulk in the building, subject to inspection and tests; to provide a superintendent and laborers for putting up the seeds in packets; to replace seed rejected on inspection or after germinating tests. Some of the packets are underweight, some overweight, and there is a surplus of packets, which is retained by the Department. Fraud is charged, but not proved. Substituted seed is accepted and paid for at contract rates, though of a different kind and of less value, and without the written consent of the Secretary.
    I.It is the duty of the court, under the Revised Statutes (section 1088), to declare an entire contract forfeited if fraud be established as to any part of it. But the burden of proof rests upon the defendants, and circumstances relied upon must be clear and convincing.
    II. Where a contract was for the delivery of a specified quantity of seed at a prescribed place subject then and there to inspection, which seed the contractor subsequently was to put up in packets for distribution by the Department of Agriculture, fraud can not be imputed because some of the packets were of light weight if the defendants received all the seed contracted for and retained the surplus of packets of light weight.
    III. Where a quantity of seed was delivered pursuant to the contract and the defendants’ officers inspected and accepted it and might have ascertained its weight but did not, the court can not rely upon subsequent weighings and estimates made in the absence of the contractor as evidence that the quantity was less than that which the contract called for.
    IV. Where a given quantity of seed was to be delivered at a certain place subject to the defendants’ inspection, and subsequently the contractor was to put it up in small packets for distribution, the intent of the contract was that the weight of the seed should be ascertained before being mingled with paper in packages.
    
      V.In such a case the responsibility of the contractor for the quantity of the seed ceased with delivery and acceptance in bulk.
    VI.Where a contract provided that under certain conditions the contractor might substitute other seeds for those specified, upon the written order of the Secretary of Agriculture, and that payment should be “ at the rates fixed in the contract for the specific hinds and varieties actually furnished,” the contractor must furnish seeds of equal value. For seeds of inferior value there must be a diminished compensation, based on that named in the contract.
    VII.Verbal agreements and oral understandings are not sufficient to change the terms of a written contract to the prejudice of the Government. Revised Statutes, § 3744.
    VIII.But where the Government receives goods in lieu of those specified in a contract, the contractor may recover the fair and reasonable value of the substituted goods. The evidence in this case presents great perplexities relating to performance and to the reciprocal duties of the parties, which are examined and stated by the court.
    
      The Reporters1 statement of the case:
    The following are the facts of the case as found by the court:
    I. On June 2', 1900, claimant entered into the following contract with the Department of Agriculture of the United States:
    
      Contract for supplying seeds to the United States Department of Agriculture for the fiscal year ending June 30, 1901.
    
    This agreement, made and entered into at the city of Washington, in the District of Columbia, this second day of June, in the year one thousand nine hundred, by and between James Wilson, Secretary of Agriculture, for and on behalf of the United States Department of Agriculture, party of the first part, and the New York Market Gardeners’ Association, of 39 and 41 Cortlandt street, New York, N. Y., by A. C. Nellis, manager, party of the second part.
    Witnesseth, That in response to an invitation issued and promulgated by the said James Wilson, Secretary, etc., in the form of a circular letter dated January 27, 1900, headed “Proposals for Supplying Seeds,” etc., a copy of which, marked “Exhibit A,” is hereunto attached, the said New York Market Gardeners’ prepare proposal in the form of a letter bearing date of February-1900, addressed to the “ Hon. James Wilson, Sec. Agriculture,” etc., a copy of which (marked “ Exhibit B ”) is likewise appended hereunto. The said proposal having been duly considered by the said Secretary of Agriculture, in connection with other proposals submitted by other dealers, has been approved and accepted upon the following conditions, wit:
    In consideration of the payments hereinafter provided for, to be made by or on behalf of the said United States Department of Agriculture, the said New York Market Gardeners’ Association, for itself and its successors, does hereby promise, covenant, and agree to do and perform, or to cause to be done and performed, the acts, deeds, and services hereinafter specifically and generally described and set forth, as follows:
    Clause I. To provide a safe, commodious, and conveniently located building or buildings within the city of Washington, in the District of Columbia, suitable for and adajated to the business and work of storing, handling, packing, and mailing seeds for the purposes and in the manner hereinafter set forth; the selection of such building or buildings to be subject to approval and confirmation by the Secretary (or Acting Secretary) of Agriculture.
    Clause II. To provide all seed pockets and bags and all envelopes and wrappers of the kinds, qualities, and descriptions set forth in the paper hereunto appended, marked “ Exhibit A,” and all mailing tags that may be necessary in the distribution of the seeds hereinafter mentioned, which such pockets, bags, envelopes, and wrappers shall be well and strongly made of the materials described in said “ Exhibit A,” and they shall also be properly and plainly printed, marked, and labeled in such manner and form as may be prescribed by the statute, or required by the regulations, orders, or instructions, written or oral, of the Secretary (or Acting Secretary) of Agriculture.
    Clause III. To furnish and deliver to, at and within the building, or buildings, hereinbefore mentioned, the vegetable seeds, the flower seeds, and the field and lawn-grass seeds, of the several kinds and varieties and in the quantities named and described in the list hereunto appended marked “ Exhibit Dall the seeds so furnished and delivered to be true to their names and fully up to the standards of purity and germination described in the schedule dated January 27,1900, entitled “ Standards for seeds for the U. S. Department of Agriculture,” of which a copy, marked “ Exhibit E,” is hereunto appended. All of the onion seeds are to be of American growth. All of the beet, lettuce, onion, radish, pea, and grass seeds mentioned in the said “ Exhibit D ” are to be provided, delivered, and stored in the aforementioned building, or buildings, by or before the fifteenth day of November, 1900; all the sweet corn shall be so provided and delivered on or before the thirty-first day of December, 1900, and all other seeds to be furnished under this contract must be delivered and stored within the said building, or buildings, on or before the thirtieth day of November, 1900: Provided, however., That the Secretary (or Acting Secretary) of Agriculture may, in his discretion, extend the time for the delivery of any specific lot, or lots, of seeds; but no such extension of time shall be effective unless it be in writing and in triplicate, the three copies of such writing to go with and to be attached to the three copies, or parts, respectively, of this instrument.
    Clause IV. To submit the seeds so furnished and delivered to inspection by the agents and representatives' of the Department of Agriculture, and to such tests regarding purity, germinating power, and trueness to names as may be established and maintained by the authority of the Secretary (or Acting Secretary) of Agriculture. Should any portion, or the whole, of the seeds so supplied, inspected, and tested, fail in any particular to fulfill the requirements, or fall below the standards, of the tests so established and maintained, the said New York Market Gardeners’ Association shall upon notice of such deficiencies, promptly remove the same from the aforesaid building, or buildings, and promptly furnish and deliver other seeds of the same varieties and kinds and of the required standards in lieu thereof: Provided, however, That in the event of the said seeds falling twenty-five per centum or more below tbe standards of germination given in “ Exhibit E,” such seeds shall be forfeited to the United States Department of Agriculture; and Provided, further, That the Secretary (or Acting Secretary) of Agriculture may, in his option, accept any or all of the seeds that may fall less than twenty-five per centum below the prescribed standards to be paid for at the prices named in this contract, less a percentage equal to the percentage that such seeds shall fall below the said standards — that is to say, seeds falling five per centum below standard shall, if accepted, be paid for at prices five per centum below the prices named in this instrument for packeted seeds; for seeds falling ten per centum below standard a deduction of ten per centum shall be made from the contract prices, and so forth.
    Clause V. To provide the necessary appliances and apparatus and to employ the necessary superintendence and labor for arranging and assorting, for subdividing and weighing, for packeting and bagging, the seeds furnished under this contract; also for assembling such packets and bags into groups of five or more as may be required by the Secretary (or Acting Secretary) of Agriculture; each such group of five packets to be made into and accounted for as one package; for enclosing such packages in envelopes, or wrappers, in accordance with the requirements of the Department, on which such envelopes or wrappers, there shall be printed, stamped, or written legends describing the contents of the several enclosed packets; for affixing to the said packages, with paste of the best quality, such mailing franks as may be furnished by, or through, the Department of Agriculture; for properly placing such franked packages in mail-sacks to be furnished by the United States; for addressing, or labeling, mailing tags in such manner as may be required by the Secretary (or Acting Secretary) of Agriculture, and for delivering the seeds so packeted, bagged, wrapped, labeled, franked, and sacked to the United States post-office or elsewhere in the city of Washington, D. C., in accordance with directions from the proper officials of the Department of Agriculture. And the said New York Market Gardeners’ Association shall cause the said seeds to be properly arranged, assorted, subdivided, weighed, and packeted, as provided in Exhibits “A,” “ D,” and “ E,” and shall cause such packets to be put up in packages properly prepared in every particular for distribution and placed in the mail. And the said A. C. Nellis, manager, etc., shall personally supervise the work of putting up and distributing the said seeds, or shall employ for such purpose a competent assistant, or assistants, whose employment must be approved and confirmed by the Secretary (or Acting Secretary) of Agriculture.
    In consideration of the acts, deeds, and services to be done and performed, and of the supplies of seeds to be furnished, delivered, prepared for distribution, and distributed under this contract, the said James Wilson, Secretary of Agriculture, for and on behalf of the United States Department of Agriculture, does hereby promise, covenant, and agree as follows:
    Clause VI. To pay or cause to be paid to the said New York Market Gardeners’ Association, or its successors, out of the appropriation made by Congress for the “ Purchase and distribution of valuable seeds, 1901,” in the act approved May 25, 1900, upon the presentation of vouchers properly prepared in duplicate (on blanks to be provided by the Department) for the seeds supplied, delivered, prepared for distribution, and distributed as hereinbefore and hereinafter provided and required, the amount named in the aforesaid proposal, dated February 19, 1900, ataehed herewith as “ Exhibit B,” to wit, the sum of sixty-eight thousand eight hundred and seventy-four dollars and twelve cents ($68,874.12), in the manner and form as follows:
    For fourteen million nine hundred and thirty-six thousand five hundred and sixty-eight (14,936,568) packets of vegetable and flower seeds of the varieties and in the proportionate quantities set forth in said “ Exhibit D,” the sum of sixty-six thousand four hundred and sixty-seven dollars and seventy-two cents ($66,467.72) — that is to say, at the rate of four dollars and forty-five cents ($4.45) for each thousand packets.
    
      For one hundred and fifty thousand four hundred (150,-400) packets and bags of tobacco, cotton, and grass seeds of the varieties and in the proportionate quantities set forth in said “ Exhibit D ” the sum of two thousand four hundred and six dollars and forty cents ($2,406.40) ; that is to say, at the rate of sixteen dollars ($16.00) for each thousand packets or bags:
    Which payments shall be in full compensation for the seeds and other supplies furnished, and for the services rendered by, for, and on behalf of the said New York Market Gardeners’ Association, as hereinbefore provided: Provided, however, That ten per centum of all amounts and of each and every sum becoming due under this contract, and set forth in every bill or voucher presented by or for the said New York Market Gardeners’ Association for the seeds so furnished, delivered, and distributed, shall be withheld and not paid to the said association until the fifteenth day of September, one thousand nine hundred and one (1901), to cover any delinquencies that may arise under the terms and conditions of this contract: And provided further, That any deductions from the aforementioned rates based upon de-ficiences in the purity, germinating qualities, and trueness to names of any of the said seeds that may be disclosed by or through the tests prescribed under the provisions of the fourth clause of this instrument shall be permanently withheld and not paid at all to the said contracting association or to its successors or representatives forever.
    It is also mutually understood and agreed that—
    Clause YII. Should the aforesaid Department of Agriculture require and order seeds of the kinds and varieties described in aforesaid “ Exhibit D ” in excess of the quantities herein named, payment therefor shall be made at the rates named in this instrument, and all the conditions and provisions of this contract shall apply to such additional purchases.
    Clause VIXI. The building or buildings mentioned in the first clause hereof must be selected and the selection confirmed, rented, properly furnished and fitted up in a manner suitable for and adapted to the business of storing, packet-ing, and mailing seeds as contemplated by this agreement, on or before the tenth day of November, 1900; and the said party of the second part must be fully prepared with all necessary appliances and with a sufficient force of assistants and laborers and ready to begin on or before the thirtieth day of November, 1900, the work of packeting seeds as here-inbefore provided, at the rate of two hundred and fifty thousand (250,000) packets per day during each and every day (Sundays and legal holidays excepted) thereafter until the thirty-first day of March, 1901, or until the total quantity of seeds herein called for shall have been supplied and distributed as herein required, and to the satisfaction of the Secretary (or Acting Secretary) of Agriculture; and for each and every day’s delay in the said preparations, or in the conduct of the work caused by lack of preparation or ability, or arising from any fault or negligence upon the part of the said New York Market Gardeners’ Association, or its agents or employees, there shall be forfeited to the United States the sum of twenty-five dollars ($25.00) to be deducted from the bills or vouchers presented for payments for seeds furnished: Provided, however, That all duties relating to the furnishing, packing, and distribution of seeds shall be completed and fully executed by the said New York Market Gardeners’ Association on or before the thirty-first day of May, 1901.
    Clause IX. The authorized representatives of the Department of Agriculture shall at all times have free and unrestricted access to the storerooms, warehouses, assorting rooms, weighing rooms, packing rooms, mailing rooms, and all other premises on which the business herein contemplated shall be carried on, and they shall have the free use of such desk room, conveniently located within the said premises, as may be necessary in the inspection and supervision of such work. Also, the representatives of the Department shall have the unrestricted right and privilege of selecting and taking such samples of seeds as may be required by them in making the tests hereinbefore mentioned, to be paid for at the above rates.
    Clause X. In the event of a crop failure of any kind or variety of seeds described in “ Exhibit D ” (or for any other reason deemed by the Department sufficient), seeds of any other class or variety therein named may be substituted therefor; but no such substitution shall be made later than the thirtieth day of September, 1900, and then only upon the written order of the Secretary (or Acting Secretary) of Agriculture, and payment for the substituted seeeds shall be made at the rate or rates fixed in this contract for the specific kinds and varieties actually furnished.
    Clause XI. For failure to furnish seeds conforming to the agreed standards of purity and germinating power, for repeated delays in performing the services herein required, or for any reason by him deemed good and sufficient, the said party of the first part, or his successor in office, may, in his discretion, and upon five days’ notice in writing, to the said party of the second part, or its successors, or its agent or representative in charge of its business in Washington, cancel, annul, terminate, and make void this contract in any or all of its provisions, except as to seeds furnished and accepted prior to the date of such cancellation and annulment. In the event of a failure upon the part of the contracting association to furnish seeds of the kinds and varieties named in the aforesaid “ Exhibit D,” or to effect substitutions therefor as provided in Clause X hereof, the Secretary of Agriculture may go into the open market and purchase the said seeds at the usual market rates, and if such rates shall be in excess of the rates named in this instrument such excess of cost shall be charged to the said New York Market Gardeners’ Association and deducted from its bills or retained out of the ten per centum withheld under Clause VI of this contract.
    Clause XII. The papers hereunto attached and marked, respectively, “ Exhibit A,” “ Exhibit B,” “ Exhibit D,” and “ Exhibit E,” are hereby made parts of this contract, of the same force and effect as any other part or parts hereof.
    No Senator, Member, or Delegate in Congress is or shall be interested, directly or indirectly, in this contract, or entitled to any benefit therefrom, or will be admitted to any share, part, or interest herein.
    
      In testimony whereof the undersigned parties to this agreement have hereunto set their hands and affixed their seals on the day, month, and year first above written.
    James Wilson, [seal.]
    
      Secretary of Agriculture, Party of the First Part.
    
    Witnesses:
    R. M. ReESE,
    F. L. Evans.
    New Yoek Makket Gardeners’ Association, [seal.]
    
      Party of the Second Part.
    
    A. C. Nellis, Mgr.
    
    Witnesses:
    Wm. T. Holt,
    Daniel H. Hanckel.
    [Executed in triplicate.]
    State oe New York, County of New York, ss:
    
    On this sixteenth day of June, one thousand nine hundred, before me personally came Arthur C. Nellis, to me known, who, being by me duly sworn, did depose and say: That he resided in the borough and county of Richmond, city and State of New York; that he is the manager of the New York Market Gardeners’ Association, the corporation described in and which executed the foregoing instrument; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto as such manager by like order.
    [seal.] Wm. D. Gaillard,
    
      Notary Public, N. Y. Co.
    
    Exhibit A.
    Department oe Agriculture,
    Office of the Secretary,
    Washington, D. C., January £7, 1900.
    
    PROPOSALS FOR SUPPLYING SEEDS, ETC.
    In anticipation of an appropriation act to be approved, under which the purchase and distribution of valuable seeds, etc., during the fiscal year ending June 30, 1901, shall be authorized, the department is now prepared to receive from responsible dealers in and growers of seeds proposals for supplying field, flower, and vegetable seeds in such quantities and varieties as are named in the accompanying list.
    All such dealers and growers of seeds are invited to submit their proposals, or bids, for supplying the list herewith inclosed under the following terms and conditions, viz:
    The seeds, together with all material necessary to make them ready for distribution, and all labor connected therewith, the necessary printing on seed packets relative to variety, culture, etc., also the place of conducting and carrying-on the work of the distribution, are all to be at the expense of the contractor. In other words, the seeds are to be furnished all ready for mailing in packages of five or more packets each, as may be required, each package to show the kind of seed contained therein, and delivered in United States mail sacks at the nearest post-office, or to the mail carriers of the Senate and House of Representatives.
    The paper to be used for packeting the seeds named in accompanying list must be equal in quality and strength to manila weighing 50 pounds to the ream, size 24 by 36 inches, excepting the beans, sweet corn, and peas, for each of which rope manila paper must be used, of sufficient strength to fully insure the same against breakage while in transit through the mails; also the packets of Kentucky blue grass named in the list must each be inclosed in outside wrapper to insure its safety against breakage or leakage while being handled or in transit. Furthermore, it is the intention to have all the work of putting up the seeds and the distribution thereof done in the city of Washington, D. C., and the contractor will be required to furnish a safe and convenient building for carrying on the work in accordance therewith.
    The inclosed list on germination and purity of seeds will show the standard of each required.
    All bids must be addressed to the Secretary of Agriculture and be received at the department not later than the 20th day of February, 1900. The right to reject any or all bids will be reserved by the department.
    James Wilson,
    
      Secretary of Agriculture.
    
    
      Exhibit B.
    [Clovena Nurseries, Richmond Borough, New York City. Seeds, plants, & bulbs, 39 & 41 Cortlandt st., New York. P. O. Box 2341. Cable Address, “ New-marden, New York.”]
    New York Market Gardeners’ Association,
    
      New YorJt, Feb. 19,1900.
    
    Dear Sir: In reply to your proposal for supplying seeds, dated Jan. 27, 1900, we beg to submit our bid on the entire, list and quantities as per your specifications for sixty-eight thousand eight hundred and seventy-four dollars and twelve cents, made up as follows:
    14,936,568 packets of vegetable and flower seeds, containing tbe varieties and quantities of each as specified, for_ $66, 467. 72
    150,400 packets and bags of tobacco, cotton, and grass, containing tbe varieties and quantities of eacb as specified, for_ 2, 406.40
    68, 874.12
    Awaiting your commands, we remain,
    Yours, respectfully,
    N. Y. Market Gardeners’ Ass’n.,
    (Signed) A. C. Nellis, Mgr.
    
    To the Hon. James Wilson,
    
      See. Agriculture, 'Washington, D. G.
    
    District oe Columbia, City of Washington, ss:
    
    I do hereby certify that the foregoing is a true copy of the original proposal on file in the Division of Accounts, Department of Agriculture.
    [seal.] F. L. Evans,
    
      Notary Public and Chief of Div. of Accts.
    
    Exhibit D.
    TJ. S. Department of Agriculture,
    
      Office of Secretary.
    
    
      List of seeds for furnishing which proposals are ashed, 1900-1901.
    
    VEGETABLE SEEDS.
    Beet: Packets to pound.
    4,500pounds Egyptian- 64
    
      4,B00 pounds Eclipse- 64
    4,500pounds Bastian’s Bed Turnip- 64
    4,500pounds Dewing’s Blood Turnip- 64
    4,000 pounds Early Edmand- 64
    4,000 pounds Long Dark Blood_ 64
    Total packets_ 1, 664, 000
    
      Cucumber: Packets to pound.
    5,200pounds Long Green_ SO
    5,200pounds White Spine_ 80
    5,200pounds Early Green Prolific_ SO
    5,200pounds Early Erame_ SO
    Total packets_ 1, 664,000
    Lettuce:
    2,600pounds White Summer Cabbage_ 128
    2,600pounds Hanson_ 128
    2,600pounds B. S. Simpson_ 128
    2,600pounds Salamander- 128
    2,600pounds Early Prize Head_ 128
    Total packets_ 1, 664, 000
    Melon (musk) :
    4,160pounds Hackensack_ 80
    4,160pounds Osage_ 80
    4,160pounds Banquet_._ 80
    4,160pounds Emerald Gem_ 80
    4,160pounds Netted Gem (oblong)_ 80
    Total packets_ 1, 664, 000
    Melon (water) :
    4,160pounds Boss- 80
    4,160pounds Mountain Sweet_ 80
    4,160pounds Florida Favorite- 80
    4,160pounds Bound Light Icing- 80
    4,160pounds Seminole___ 80
    Total packets_ 1, 664, 000
    Onion:
    3,600pounds Large Bed Wethersfield- 96
    3,600pounds Yellow Globe Danvers_ 96
    3,600pounds Extra Early Flat Bed_ 96
    3,600pounds Prize Taker_ 96
    3,600pounds Yellow Danvers_ 96
    Total packets- 1, 728, 000
    Badish:
    5,400pounds Early Scarlet Turnip_ 64
    5,400pounds Early Dark Bed_ 64
    5,400pounds Improved Chartier_ 64
    5,400pounds Long White Vienna_ 64
    5,400pounds E’rench Breakfast_ 64
    Total packets. 1,728, 000
    
      Bean : Packets to pound.
    500 bushels Refugee (1,000 to 1)- 240
    500 bushels Early Red Valentine- 240
    500 bushels Imroved Golden Wax- 240
    500 bushels Kidney Wax- 240
    500 bushels Red Kidney- 240
    500 bushels Early Mohawk_ 240
    Total packets_ 720,000
    Pea:
    500 bushels American Wonder- 240
    500 bushels Horsford’s Market Garden- 240
    500 bushels Abundance- 240
    600 bushels Pride of the Market- 240
    500 bushels Alaska- 240
    500 bushels McLain’s Advancer- 240
    Total packets_ 720, 000
    Sweet corn :
    500 bushels Early Cory- 240
    500 bushels Early Minnesota- 240
    500 bushels Stowell’s Evergreen- 240
    500 bushels Crosby’s Early- 240
    500 bushels Country Gentleman- 240
    500 bushels Black Mexican- 240
    Total packets_ 720, 000
    Total number of packets of all vegetable seeds- 13, 936,000
    FIELD AND LAWN GRASS SEEDS.
    Tobacco:
    CO pounds White Burely-TH © CO
    60 pounds Ohio Seed Leaf-
    CO pounds Tennessee Bed--- ^ © CO
    60 pounds Zimmer’s Spanish-
    60 pounds Yellow Pryor-
    Total packets_ 91, 200
    Quarts (in cloth
    Cotton: bags) to bushel.
    145 bushels Peterkin- 32
    145 bushels Hawkin’s Prolific- 32
    145 bushels Drake’s Cluster- 32
    145 bushels Jones’ Improved- 32
    145 bushels Cook’s Improved Long Staple- 32
    Total quarts_ 23,200
    Grass, for lawns:
    18,000 pounds Kentucky Blue, fancy, put up in ¿-pound papers, each to be inclosed In outside heavy wrapper, total packets_,_ 36,000
    
      FLOWER SEEDS.
    Flower seeds. Pounds of seed. Packets of seed to the pound. Number of packets. Alyssum, sweet. Balsam, double flowering. Aster, choice double varieties, mixed colors. Candytuft, mixed colors. Canna, mixed, large flowering type. jDianthus, double, mixed, China. Gaillardia, mixed colors. Larkspur (Delphinium), mixed colors. Linum grandiflorum, rubrum. Marigold, mixed colors. Mignonette, plain. Nasturtium, dwarf, mixed colors. Pansy, German, mixed colors. Petunia, fine mixed colors, hybrid blotched and striped. Phlox Drummondii, grandiflora... Portulaca, single, mixed colors.. Stocks, double dwarf German, ten weeks. Sweet peas, mixed colors. Sweet William, mixed colors. Zinnia, double, mixed colors. Total pounds and packets.,. 100 62, 100 100 390 50 62i 100 125 83i 83i 250 50 42 100 60 50 782 100 100 2,781 600 800 500 500 128 1,000 800 500 400 600 600 200 1,000 1,200 600 1,000 1,000 64 500 600 50,000 50,000 50,000 50,000 49 920 50,000 50,000 50,000 50,000 50.100 60.100 50,000 50,000 60,400 60,000 50,000 50,000 50,048 50,000 50,000 1,000,568
    The seeds named in the above list (flower) are to be American grown as far as possible.
    Exhibit E.
    U. S. DEPARTMENT OF AGRICULTURE,
    
      Office of the Secretary.
    
    STANDARDS FOR SEEDS FOR THE U. S. DEPARTMENT OF AGRICULTURE.
    The vegetable, field, and flower seeds must be true to name as to kind and variety; must be entirely free from weed seeds and injurious fungi and insects or their eggs or larvae, and must come up to the standard of purity and germination given in the table below.
    The lawn-grass seed must be true to name, practically free from smut, bunt, ergot, insects or their eggs or larvae, the seeds of dodder (Cuscuta spp.), wild mustard (Brassica spp.), wild flax (Oamelina spp.), Russian thistle (Salsola tragus), Canada thistle (Garduus arvensis), cockle (Agros-temma githago), chess (Bromus seoalinus), quack grass 
      (Agropyron repens), penny cress (TKlaspi arvense), wild oat (Avena fatua), bristly ox-tongue (Picris echioides), bindweed (Convolvulus arvensis), and bitter weed (Helenium tenuifolium), and the bulblets of wild onion (Allium vineale). It must not contain more than one per cent of other weed.seeds and must come up to the percentages of purity and germination given in the table below.
    
      Percentage of purity and germination.
    
    
      
    
    
      a Impurity allowed refers to inert matter and 1 per cent (only) of weed seeds other than those practically prohibited, as above noted.
    &Each beet fruit, or “ball,” is likely to contain from 2 to 7 seeds. One hundred balls should yield 150 sprouts.
    James Wilson,
    
      Secretary of Agriculture.
    
    WASHINGTON, D. C., January £7,1900.
    
    Department oe Agriculture,
    Oeeioe oe the Secretary,
    Washington, D. O., April 1, 1901.
    
    The New York Market Gardener’s Association,
    ■ 39 and 4.1 Gortlandt Street, New York, New Yorh.
    
    Gentlemen: Under the provisions of the seventh clause of the contract entered into between the New York Market Gardener’s Association and the United States Department of Agriculture, dated June 2, 1900, you are hereby advised that the said department will require seeds of the kinds and varieties named in said contract in the proportions named in Exhibit “ D ” attached thereto, in addition to the quantities therein mentioned, to the amount of forty thousand dollars ($40,000), and you are hereby authorized and directed to furnish seeds of the said kinds and varieties, and in the proportions mentioned, in accordance with the terms and conditions of the contract referred to.
    Very respectfully,
    James WilsoN,
    
      Secretary of Agriculture.
    
    II. Pursuant to the terms of Clause VII of said contract, the Secretary of Agriculture, on April 1, 1901, directed the claimant company to furnish additional seeds to the amount of $40,000.
    III. After the claimant company entered upon the execution of said contract, and while the work thereunder was progressing, receipts and vouchers were issued to said claimant from time to time by the Department of Agriculture amounting in the aggregate to $100,638.14, all of which has been paid to claimant except the ten per centum retained under the contract, amounting to $10,063.78. Upon the completion of the contract the final voucher for $8,235.79, covering the balance alleged to be due under said contract, was issued to the claimant company and has not been paid, making a total of $18,299.57 unpaid.
    Each of said vouchers was marked “ O. K.” by Colonel Morrison, the government inspector in charge of the work under Colonel Brigham, and contained a certificate of Bobert J. Whittleton, Chief of Seed Division, in the following-words :
    “I certify that the foregoing account is correct; that the prices are just and reasonable; that the supplies and services therein described were necessary to the proper and efficient execution of the business of the department, and were procured under written authority of the Secretary of Agriculture ; that the services were performed as set forth, and that the supplies were received in good condition and have been or will be applied to public uses in the following manner, viz, congressional distribution.
    “(O. K.)
    “ J. M. “ Kobert J. WhittletoN,
    “ Chief of Seed Division.” and each voucher was approved by the Secretary or Acting Secretary of Agriculture, except the final voucher for $8,235.79, referred to above. Two of said vouchers, paid May 3 and July 16, 1901, respectively, were approved by B. T. Galloway, the representative of the department in charge after April 24, 1901.
    IY. Instead of weighing all the seeds in bulk as delivered to the Government, from two to five bags of each lot were weighed and an average weight per bag arrived at, and a system was devised and followed whereby the packets were filled by a large number of girls seated at tables and using spoons graded in size so as to take the requisite quantity of seeds per packet. A forewoman had charge of this room and passed from table to table and tested the work by weighing such a number of packets as was required to make up a quarter of a pound of the seed on which each employee was engaged. Government inspectors, two in number, and the representative of claimant were in the room making repeated weighings. When packets were made too heavy or too light numbers of them were thrown aside, making a considerable accumulation left over after the distribution. Quantities of packets were rejected by the inspectors for being light weight, and these were put in baskets, boxes, and heaps around the warehouse, and at the end of the distribution were gathered up and with what remained in the bins transferred in boxes to the Department.
    Although it appears that in the beginning of the distribution of seeds under said contract some of the packets ran heavy, that is to say, had a less number of packets to the pound than called for by the contract, and toward the latter part of the distribution they ran light, or had a greater number of packets to the pound, the court finds from all the evidence in the case that the quantity of seeds actually supplied equaled the whole quantity of seeds called for by the contract.
    The court finds from the evidence that there was no fraud in the matter of quantity of seeds delivered under the contract and that there was no material variation from the terms of the contract in the actual quantity of seeds supplied thereunder.
    V. The claimant company furnished one hundred and sixteen varieties of vegetable seeds, twenty-nine of which were of the varieties called for by the contract, and no part of the other twenty-four varieties specified in the contract was furnished by claimant. Instead, on the authority of the Secretary and Acting Secretary of Agriculture, given orally, substitutions, under clause 10 of the contract, of celery, squash, and spinach seeds were made by claimant for a portion of said twenty-four varieties, and an extra quantity of some of the twenty-nine varieties and additional varieties of the same families of seed were furnished as substitutes for some of the twenty-four varieties called for by the contract, but not furnished as aforesaid. These substitutions were made after September 30, 1900, and were made without any written authority from the Secretary or Acting Secretary of Agriculture.
    , The substituted seeds appear to have been useful, but some of them were of less value under normal conditions than the seeds for which they were substituted. Spinach, which was substituted for beet seed, was of less value per pound than beét seed. The total quantity of beet seeds required by the contract was 41,080 pounds. Claimant supplied 8,918 pounds of beet seeds and substituted 32,162 pounds of spinach seed for the remainder. The average difference in value between spinach and beet seed during the period from January to May, 1901, as shown by the evidence, was 6 cents per pound, making the value of the spinach seed so substituted $1,929.72 less than the beet seeds for which the substitution was made.
    The evidence does not establish to the satisfaction of the court that the beet crop of 1900 was a failure, or that claimant could not have obtained the quantity of beet seeds required by the contract.
    Claimant supplied 18,099 pounds of Australian brown onion seeds as a substitute for other varieties of onion seeds. The price of Australian brown onion seeds during 1900 and the early part of 1901 was 50 cents per pound, as shown by the evidence, and it appears that all the varieties of onion seeds required by tbe contract, except Prize Taker, could have been purchased at that price at some time during that period. Prize Taker onion seeds could have been purchased during said period at as low as 70 cents a pound. The quantity of this variety of seed called for by the contract was 5,688 pounds, none of which was furnished by claimant, and he substituted therefor Australian brown onion seed, which was not of equal value.
    On this item the value of the seed substituted is at least 20 cents per pound less than the value of Prize Taker onion seeds; that is to say, 20 cents per pound on 5,688 pounds, or $1,137.60.
    VI. Under Clause IV of the contract the seeds to be furnished were to be submitted to inspection by the agents and representatives of the Department of Agriculture, and to such tests regarding purity, germinating power, and trueness to name as might be established by the Secretary of Agriculture. The standards for the test as to purity and germination were established by Exhibit “ E,” attached to the contract and made a part thereof.
    On October 10, 1900, the Secretary formally notified the claimant of the standard which he had established for trueness to name, as follows:
    “ The standard of trueness to name for each variety shall be the average of the percentage of trueness to name in not less than five commercial samples of the same variety purchased under the direction of the Secretary of Agriculture in the open market from five or more reliable seed houses, and the Secretary of Agriculture shall be the sole judge of the results of the tests reported by the officer or officers charged therewith by him. Not less than 100 plants from each lot of the seeds furnished by the contractor shall constitute a test. The Botanist of the Department of Agriculture has been entrusted with the purchase of the commercial samples and instructed to make the tests for genuineness and report the results to me.”
    VII. In the tests for mechanical purity made by the Department, five lots of seed, namely, lots No. 656 Summer Cabbage Lettuce, No. 707 Big Boston Lettuce, No. 747 Scarlet White Winter Radish, No. 749 Long Scarlet Radish, and No. 631 White Summer Cabbage Lettuce, were found to be below the standard required by the contract, but less than 25 per cent below said standard. A deduction of $31 should be made on this account.
    VIII. A portion of the seeds furnished by claimant did not coihe up to the standard of germination required by Exhibit “ E ” of the contract, while other seeds were above said standard.
    IX. Approximating three-fourths of the seeds deliverable under the contract, the tests for trueness to name made under the direction of the chief botanist of the Department of Agriculture for cucumber, muskmelon, and watermelon seeds were not made in accordance with the terms of the letter of the Secretary of Agriculture, dated October 10, 1900, and set forth in Finding VI, in that less than 100 plants were grown from each lot of these seeds furnished by the contractor and in some cases less than five commercial samples of seeds of the same variety purchased from other seed houses were used.
    A portion of the seeds — something more than one-fourth— were not true to name. Some of these were rejected and not paid for. Others, though not rejected, were used from the necessities of the situation. Tests of these were made according to the contract and averages showed diminished value of these.
    X. An average of the three tests for purity, germination, and trueness to name, where such tests were made in accordance with the provisions of the contract, shows that the seeds furnished by claimant fell below the standard of quality required by the contract to the amount of $5,041.21.
    XI. During the latter part of the distribution some packets of seeds were put up, under oral instructions from the Acting Secretary of Agriculture, in envelopes or wrappers marked “ Selected variety,” without specifying any particular variety to which'the seeds belonged. Some of the packets of seeds so marked were sent out, but the greater portion was turned over to the department as surplus seeds after the completion of the distribution.
    XII. A portion of the seeds called for by the contract was delivered and stored after the dates mentioned in Clause III of the contract and was accepted by the department. No extension of the time for the delivery of said seeds was ever made in writing by the Secretary or Acting Secretary of Agriculture, as required by said contracts. The quantity of seeds so delivered and stored after said dates is not shown.
    
      Mr. 'William, D. Gaillard for the claimant. Holt c& Gail-lard were on the brief.
    
      Mr. James A. Tanner (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff is a corporation and sues to recover the balance on the contract set forth in the findings, whereby it obligated itself for the sum of $108,874.12 to supply about twenty-three millions of packets of certain vegetable, field, lawn grass, and flower seeds for distribution by the United States. Ten per cent of all amounts becoming due under the contract was to be withheld to cover delinquencies which might' arise and for deductions from the rates named in the contract if there were deficiencies in the seeds delivered either in quantity or quality. Defendants having withheld this 10 per cent, together with other sums claimed not to be due, plaintiff asks for judgment in the sum of $18,299.57. Defendants urge fraud in the methods adopted by plaintiff in the execution of the contract, as well as failure to perform, out of which counterclaims have arisen, and for which judgment is asked against the corporation in various sums.

The suggestion of fraud rests upon the allegation that plaintiff’s manager and superintendent, with intent to defraud, instructed the employees engaged in filling seed packets to fill at a weight lighter than that provided for by the agreement, and that pursuant to these instructions the packets were filled at light weight, by means of which defendants were materially defrauded. Practically, the charge is conspiracy, inasmuch as it is alleged that the superintendent was to notify the girls engaged in filling the packets that they were to let the weights run lighter than the contract rates, and that if the department inspectors complained of short weights the superintendent “ was to pacify and to smooth it over ” and let the short weights continue; and that when the manager of the company was told that these packets were being put up at light weight he instructed plaintiff’s superintendent to let the improper work go on, in consequence of which the packets of seeds ran short all the time. Though there is no formal plea, the suggestions of fraud in this connection, supplemented by testimony and requests for findings, is authority enough to enable the court to give the matter consideration. As no surprise is suggested, the court has proceeded on the record as presented regardless of a formal plea.

Parenthetically we may say here that, could the court sustain the charge, the results would be far more consequential than those indicated by the assertion of limited counterclaims. The Revised Statutes provide that any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance of any part of any claim against the Government shall ipso facto forfeit the same. It would be the duty of ■ the court to declare forfeited the entire contract if the proof certainly established the charge made. Harsh as the statutes are which impose such severe penalties for fraud in making up a claim, it is yet a necessary statute for the protection of the Government, and when such a charge is established this court will not only not hesitate to enforce such penalties but will go to whatever extreme under the law which can be justified by the facts proven.

Plaintiff alleges that in the calls for twenty-three millions of packets, which in the case of small vegetable seeds ranged from 64 to 128 packets to the pound; and in the case of large seeds ran 24:0 packets to the bushel, it was impossible to weigh each packet within the time limit and that the only practicable manner of executing the contract was to devise a system of filling by which a fair approximation to the required weights would be reached. It seems that the packets were filled, according to the custom of prior distributions, by a large number of girls seated at tables and using spoons graded in size so as to take the requisite quantity of seed. A forewoman had charge of this room and passed from table to table and tested the work by weighing such a number of packages as was required to make up a quarter of a pound of the seed on which each employee was engaged. Government inspectors, two in number, and the representative of plaintiff were in the room making repeated weighings. When packets were made too heavy or too light, numbers of them were thrown aside; and there seems to have been a considerable accumulation of such packets in baskets, which were left over at the close of the distribution. Under this system plaintiff claims to have made complete deliveries of the requisite number of packets in pounds. Defendants, however, made general estimates, and allege that weighings of packets were made out of the bags of packets and not out of the packages containing 5 packets each. Quantities of packets were rejected from time to time by the inspectors for being light weight, and these were put in baskets, bags, and heaps around the warehouse and at the end of the distribution were gathered up with what remained in the bins and then transferred in boxes to the department. Elaborate calculations and weighings and estimates have been presented to the court to prove light weights, and general averages have been presented upon which deductions have been made to prove failure to deliver the requisite quantity of seeds. There is also much evidence, in the form of depositions, tending to show improper conduct in the deliveries and distribution of seeds and detailing circumstances indicative of an intent to cheat the Government and deprive it of its just dues.

But out of this voluminous record, comprising several hundred pages of printed testimony, of accusation and denial, of tabulated statements and averages, of circumstances and deductions arising out of the competent evidence, the court is unable to find that there was any fraud in the matter of quantity of seed deliveries. It is true that it is not necessary in order to establish fraud that it is incumbent upon the party making the allegation to prove it by direct and positive evidence. Indeed, in a matter of this kind circumstantial evidence would likely afford the only proof that could be adduced, and circumstantial evidence is frequently of more force than direct testimony. Circumstances altogether incon-elusive, if separately considered, may, by their number and joint operation, be sufficient to constitute conclusive proof. But the burden of proof rests upon defendants to make good the charge, and the circumstances-ought to be so clear and convincing that the mind can rest with safety upon the result.

The court has not been able to bring itself to the belief that this charge has been made out.

Though the fraud charged is not proven, the court can not for that reason refuse to make deductions for such deficiencies in the quantity of seeds delivered from causes not resulting from fraudulent intent. But here again the court is confronted with great uncertainty. In adopting the tables of average light-weight percentages the findings would show that plaintiff had not established the delivery of the contract quantities, but manifestly the court can not do this unless it first be shown that these percentages truly represent the weights of the sum total of seeds deliverable. These lightweight percentages were made when plaintiff’s representatives had made the deliveries and gone; they are predicated upon hearsay testimony, and the witnesses who present them do not identify any particular lots of the seeds on which the estimates are gathered. Made up as they were some time after the volume of seeds had been distributed, the court can not rely upon them to make a finding that the amount delivered was not the amount called for by the contract.

Independently of the facts which involve the methods adopted in filling and distributing the seeds and the methods of making the weighings and estimates, it seems clear to the court that the seeds had to be delivered in gross so that they could be inspected before being sealed up in bags and weighed before having the weight of the paper packages added to them. It follows that the responsibility of the plaintiff for the quantity of seeds ceased with their delivery and acceptance in bulk, and if defendants did not weigh the seeds when delivered, it was their neglect. It looks like a case of attempting to lock the stable door after the horse is alleged to have been stolen to offer a counterclaim for failure to perform.

The other defenses which relate to the plaintiff’s right to recover involve the construction of the contract in connection with the findings. These defenses refer to the substitution ■of a different and cheaper variety of seeds than those called for, and deliveries below the fixed standards.

The contract provided that in the event of a crop failure of any kind or variety of seeds described in the schedules, or for other reason deemed sufficient by the department, seeds of any other class or variety might be substituted for the goods first agreed to be delivered; but no such substitution should be made later than the time fixed in the contract, and then only upon the written order of the Secretary of Agriculture or the'Acting Secretary; and payment for the substituted seeds should be made at the rates fixed in the contract for the specific kinds and varieties actually furnished. The evidence does not establish to the satisfaction of the court that there was a crop failure within the intent and meaning of the contract, and plaintiff did not, in any event, substitute proper goods for the beets and onions deliverable according to the agreement, but substituted spinach in place of beets and Australian brown onions for the onion seeds scheduled for delivery. (There were some other substitutions not material enough to be noticed.) It clearly appears that the goods actually delivered in the material substitutions were worth less than those agreed to be delivered under the specifications. Plaintiff contends that the Acting Secretary of the Department waived the fixed contract supply and agreed to the changes and that these substitutions were proper. The findings, however, show that the substitutions were of seeds of less value and usefulness than those agreed to be delivered, and that plaintiff reaped a considerable profit by the failure to deliver according to contract.

It is argued that, notwithstanding the failure to obtain written authority for the delivery of the substituted seeds after the time named in the contract, written authority was not necessary for substituting seeds, and that defendants are bound to pay for the substitutions at the rates fixed in the contract for the specific kinds and varieties there mentioned. This contention is not sound if by it the Government is asked to receive seeds of less value than those scheduled for delivery. Though the act under which the seeds were purchased gave the Secretary power to expend the appropriation in the purchase of seeds, either at public or private sale, the best he could obtain ” (31 Stats., 201), the measure of the written obligation fixed the price for the goods therein named or the equivalent in value of those goods.

While verbal agreements to extend the time of performance have been held valid, there was no authority to permit an agreement in writing to be so changed by parol as to prejudice the Government. Nor was it permissible to import into the written agreement, after it was reduced to writing, oral understandings, nor competent to change its terms without consideration. (Stansbury's case, 8 Wall., 33; 21 Atty. Gen. Ops., 116; 22 Ibid., 101; 9 Comp. Decs., 16.) Though payment for seeds substituted for those fixed in the contract at the same rates was expressed, this did not mean that there could even be a written modification so as to permit the substitution of goods of less value than the goods agreed to be delivered without the accompaniment of fair diminution in the price.

Though the substitutions were made in disregard of the contract and without the necessary authority, the department received and used a considerable quantity of seeds in lieu of those agreed to be delivered, and the Government having received the benefit of the same, plaintiff is entitled to be paid the fair and reasonable value of the substituted goods. (Salomons case, 19 Wall., 17; 9 C. Cls. R., 54; Burchiel's case, 4 Ibid., 549; Heathfield's case, 8 Ibid., 213; Mitchell's case, 19 Ibid., 39.) The findings establish the delivery of substituted seeds by which plaintiff reaped a profit and the Government suffered a corresponding loss. The presumption, arising from the execution of the voucher and its possession by plaintiff, that the terms of the contract were fulfilled, has thus been overthrown; onions and beets delivered were not the same agreed to be delivered; and under the circumstances and at the time of the substitutions the products so substituted were not the equivalent in value and price of those agreed to be delivered.

Again, by the contract seeds were to be furnished and delivered for inspection by the agents of the Department of Agriculture, and for such tests regarding purity, germinating power, and trueness to name as might be established and maintained. By a proviso it was stipulated that the Secretary of Agriculture, or Acting Secretary, might accept the seeds falling below the prescribed standards, less a percentage equal to the percentage that such seeds should so fall below the standards, according to a scale fixed in the agreement. Plaintiff was to provide for assembling packets and bags into groups of five, or more, as might be required; each such group of five packets was to be made into and accounted for as one package, and for inclosing such packages in envelopes or wrappers, in accordance with the requirements of the department, and there were to be printed, stamped, or written legends describing the contents of the several inclosed packets on the envelopes or wrappers. Plaintiff’s manager was required to personally supervise the work of putting up and distributing the seeds, and to that end employ for such purpose a competent assistant, whose employment was to be approved by the Secretary or Acting Secretary. Deductions from the rates were to be based upon deficiencies in the purity, germinating qualities, and trueness to names of any of the seeds that might be disclosed by or through the tests prescribed and permanently withheld and not paid at all, according to the deficiencies. The standards for the test as to purity and germination were established by an exhibit attached to the contract, while the standard of trueness to name was notified to plaintiff as established by the Secretary, in accord with its terms.

The findings requested by plaintiff to the effect substantially that the terms of the contract with respect to the delivery of seeds of the necessary contract germinating quality were verbally waived can not be made. We have seen that the agents of the Government had no such authority, and it would serve no useful purpose to inquire into the immaterial matter of the alleged waiver. Valuable seeds suitable for planting and culture in the various sections of the country were directed to be purchased by the law under which the contract was made. The Secretary of Agriculture had no authority to contract for seeds that would not grow, and the authority to stipulate for seeds of necessary purity and trueness to name was implied by the same law which authorized the purchases. The question then is did the delivery of such seeds measure up to the standards fixed by the contract.

The findings show that tests as to mechanical purity were made and five lots of seed were found to be below the contract standard. While the proof of these tests as to freedom from dirt is barely negligible, nevertheless the court finds the fact to be that there was a small deficiency of $81 on this account, for which a deduction must be made.

It is conceded by plaintiff that if there could be no verbal waiver for deficiencies in vitality of those seeds delivered, the sum or $2,842.10 is the utmost that should be deducted on this account. Plaintiff presents a schedule of seeds confessedly lacking in germinating power, which it says should be the basis of settlement if the alleged waiver of the penalties by the Secretary of Agriculture be held by the court ineffective. But the court finds that while it is true that a part of the seed supply was above the standards, plaintiff failed to meet the requirements of the agreement in material particulars. That there were inaccuracies in the tests applied by the Government in determining the extent of the deficiences in vitality is possible, and though these tests may not be absolutely satisfactory to the mind of the court, nevertheless we think they are more than a mere approximate guide. They certainly show that plaintiff reaped a profit and defendants suffered the corresponding loss of a greater amount than plaintiff admits for its failure to meet the requirements of the agreement in this behalf. Rejecting those tests not made in accord with the agreement, the court is of opinion that the deductions proper to be made lie somewhere between the estimates of the respective parties. The general result is covered in the tenth finding in connection with the small deficiency for seeds lacking in purity and for those other deficiencies growing out of the failure to deliver seeds true to name.

Conforming to that provision of the act authorizing purchases and which required the contents of each envelope or wrapper containing packages of seeds to be plainly indicated, and acting under the general authority to have the seeds so purchased true to name, tests were prescribed pursuant to the contract as set forth in the sixth finding. Plaintiff now says that it should have had the privilege of making the tests. But this contention is in contradiction to the fourth clause of the agreement, which required the seeds to be furnished for inspection of the Department of Agriculture, and in contravention of the notice formally given to the plaintiff as set forth in the sixth finding. The Secretary having notified the plaintiff of the standard established for trueness to name and reserved the right to be the sole judge of the results of the tests reported by the officers charged with the duty of making and reporting the tests, plaintiff’s right can not be said to be violated for not making-tests of its own.

Nor do the findings establish that the methods adopted of procuring commercial samples of some of the seeds violated the contract. It had been notified to the plaintiff that the Botanist of the department would be intrusted with the purchase of the commercial samples and instructed to make tests for genuineness. Nothing unfair in the purchase of these samples as far as they went is shown, and the court can not wholly reject such of the tests actually made as conform to the contract.

But in determining proper deductions on this account the court has encountered greater difficulty because of the insistence on the part of plaintiff that the tests made to determine genuineness and trueness to name were not conducted in accordance with the terms of the agreement. Undoubtedly there was much looseness about this part of the business and there is much conflicting testimony respecting the methods adopted by the Government in making these tests. Upon careful consideration the court is of opinion that approximately three-fourths of the seeds deliverable under the agreement were not tested in accordance with the contract. If the defendants sustained a loss on this account, plaintiff can not now be charged with it for want of something definite to fix the amount of such loss. On the other hand, we find that approximately a fourth of the seeds delivered were not true to name; that some of these were rejected and not paid for, while others, though not rejected, were used from the necessities of the situation and pressure for the transmission through the mails of such seeds as were supplied. Tests of these seeds were made according to the contract, and averages made showed diminished, value of these seeds, and we are of opinion that plaintiff derived some advantage from its failure to comply with the contract in this regard. The matter is not entirely clear because of the conflicting statements of the agents of the plaintiff and the officers of the Government. But out of all the mass of conflicting evidence the court has reached its conclusions, upon such reflection as a careful study of the record has afforded.

Accordingly the court has made an average of the three tests prescribed by and under the agreement for purity, germination, and trueness to name, and these averages show that of the seeds supplied there were deficiencies by which plaintiff reaped the profit disclosed by the tenth finding. Deducting the amount there shown and the amounts to which plaintiff is not entitled (because of the substitutions) from the amount of the balance claimed in the petition, plaintiff is entitled to recover the sum of $10,190.98, for which judgment will be entered.  