
    SALOMON’S CASE. Frederick Z. Salomon, appellant, v. The United States, appellees.
    (7 Court of Claims R., p. 482; 18 Wallace R., p. — )
    
      On the claimant's Appeal.
    
    
      The claimant has a written contract, duly made, for the sale and delivery of corn to the chief quartermaster of a department, hut the time in which it should he performed has expired. A parol agreement is then made to the effect that he may deliver the balance remaining due under the contract, lie accordingly places corn in a Government warehouse and leaves it to await inspection. A cleric of the chief quartermaster examines and receipts for it. The claimant presents the receipt to the chief quartermaster, and receives a voucher in the ordinary form, which ascribes the sale a/nd delivery to the written contract. Some of the corn is then fed to Government animals at the place of delivery, and some is carried to a post one hundred and fifty miles distant. Allofthe corn was not needed where it was delivered, and its condition when delivered is the subject of subsequent dispute. The greater part of it becomes spoiled after delivery, and is not used by the Government. The contractor brings his action for the agreed price under the written contract and upon the voucher given to him. The cowrt below decides that the claimant may recover for the portion actually used, but not for the entire qucmtity actually delivered, upon the ground that there ivas no valid contract, and that the implied contract only extended to the portion actually used. Judgment accordingly. The claimant appeals.
    
    I. The Act 2d June, 1862, (12 Stat. L., p. 411,) requiring all contracts with the Government to he reduced to writing and signed by the contracting parties, is not infringed if the proper officer, having charge of the matter, accept delivery of such supplies after the day stipulated; nor is a verbal agreement to extend the time of performance invalid.
    
      II. Where a quartermaster in charge receives of a party com for the Government, giving a voucher for the full, amount at a certain price, and the Government uses only a portion of it and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of all the corn delivered. And this is valid notwithstanding the Act 2d March, 1861, (12 Stat. L., p. 220,) requiring all contracts for supplies to he based on advertisement, unless “ immediate delivery is required by the public exigency,” and the Act ith July, 1864, (13 Stat. L., p. 396,) vesting in the commanding officer the discretion of procuring supplies to meet an emergency, and the Act 2d June, 1862, (12 Stat. L., p. 411,) requiring all contracts with the Government to he reduced to writing.
    III. Where goods are delivered to an officer of the Government for public use under an implied contract, their value, in the absence of other evidence, may he presumed to be the price fixed in the voucher given by the receiving officer.
    
      The Reporters’ statement of the case:
    The following are tlie material facts found by the court below:
    I. On the 28th July, 1864, the defendants, through their assistant quartermaster, entered into the written contract with claimant which is described in, and annexed to, the petition.
    On the 1st May, 1865, there had been delivered on account of the said contract only about nine thousand bushels of corn, for all of which the defendants have paid, and as to which there is no dispute. In September, 1865, the claimant applied to Captain Turnley, the chief quartermaster of the Department of the Plains, at his office in Denver, (he being the successor of the quartermaster who entered into the contract,) to receive the undelivered balance of the corn.
    The chief quartermaster at first declined, but learning that Camp Fillmore was about to be broken up, and that he would immediately need corn to subsist his transportation trains, he determined to receive so much of the claimant’s corn as might be sufficient for that purpose, and to that end requested him to deliver about six hundred bushels within thirty days, it being at the same time stipulated by the claimant, that if he should so deliver six hundred bushels within the specified time, he might deliver new corn. Thereupon, the claimant, by his agents, proceeded to Camp Fillmore, and on the 15th October, 1865, completed the delivery, in the military store-house of that place, of the 37,420 pounds of corn referred to in the petition. The corn was so placed in tlie warehouse, without the authority or knowledge of the commanding officer at Camp Fillmore.
    II. There being no quartermaster at Camp Fillmore, as the post was in process of being broken up, the chief quartermaster sent his clerk from Denver to take charge of the Govern ment stores and property there. On the 19th October, 1865, he instructed him by letter with regard to the claimant’s corn :
    “As to the corn of Mr. Salomon’s, you can examine and see that it is good, sound corn, put up in good sacks; but do not receive it until further orders.”
    And on the 22d October he further instructed him :
    “You will not receive any on Salomon’s old (and long since expired) contract.”
    And on the 30th October he further instructed him :
    “Should you require more corn, you may receive some of his corn, giving him receipt for the same.”
    And on the 1st November he further instructed him :
    “Salomon’s corn, near Fillmore, I have directed you in previous letter not to receive on his contract; but instill later letter I did direct you to receive for current use at contract price, so far as your public teams required. You will do this, and render account of the amount.”
    These instructions were not communicated to the claimant; but on the 6th November, 1865, the chief quartermaster’s clerk examined the claimant’s corn in the military store-house, but did not critically examine it, to see if it was good, sound corn; but he weighed some of the sacks and counted the remainder, toward the ascertainment of the weight. And he thereupon executed and delivered to the claimant the following receipt, which the claimant accepted and took, to wit:
    “Booneville, C. T., November 6,1865.
    “Deceived at Government store-house at Camp Fillmore, C. T., of J. H. Hayden, agent for J. Z. Salomon, thirty-eight thousand and eighty-four pounds of corn, to complete his contract made with the United States, and dated July 28,1864.
    “ O. L. EUTTEE,
    “ Q. M., Ag'tfor Capt. P. T. Turnley, A. Q. M., U. 8. A.”
    
    And the chief quartermaster’s clerk, at the same time, accepted and took the actual possession and custody of the corn.. But it was not further inspected by him nor by any officer of the defendants. The claimant, shortly after receiving the receipt before set forth, presented it to the chief quartermaster at Denver, and received from him the voucher described in and annexed to the petition, which he accepted. The chief quartermaster, at the time of giving- the voucher, had no personal knowledge of the transaction, and acted upon the receipt of the clerk.
    III. Of the corn thus sold and delivered, a portion was used in the military service of the defendants; a portion was transported by them, during the month of December, I860, to Denver; and the remainder was left at Camp Fillmore.
    After the arrival of that transported to Denver, some of it was found to be shrunken and shriveled, and some portions had rotted, and others were mixed with dirt; whereupon the defendants’ disbursing officers refused to pay the voucher held by the claimant, and the quartermaster tendered to him, at Denver, the portion of the corn transported there, but the defendant did not return or offer to return the same to Camp. Fillmore.
    The Government store-house at Camp Fillmore, in which the corn was kept after its delivery, was defective and leaky, and the corn was injured while there. But it was good, sound, merchantable corn when it was placed there by the claimant.
    
      Mr. T. J. D. Fuller for the claimant, appellant:
    The contract was authoritatively made, in strict compliance with law. Parol evidence of the enlargement of the time of performance, in a written contract, is admissible in evidence. (See Emerson v. Slater, 22 How., p. 42.)
    By implication, or necessary intendment, here was an extension of time for the delivery of the corn. The error of the court below, in their conclusions of law, is that the decision is in conflict with the rulings and decisions of this court in the case of Lyon v. Bertram, (20 How., p. 149.) The contract, so far as the corn in question is concerned, was an entire one, and the acceptance and use of a part, and the hauling of the balance (with a difference of a small quantity left in Camp Fillmore) one hundred and fifty miles to Denver City, was an acceptance of the whole.
    The court find the fact to be, that the quality of the corn,. when delivered, was of the quality called for in the contract— good, sound, merchantable corn; that the corn subsequently became injured by reason of the insufficient protection of the Government store-house. The Government could not rescind the contract as to part and not the whole: acceptance of part was acceptance of the whole. The offer to return a part in a damaged condition, one hundred and fifty miles from the place of delivery, was without law and authority.
    The reduction of claimant’s voucher was wholly illegal anu unauthorized. He has constantly refused to receive any part •of his voucher without getting the whole of it.
    
      Mr. Assistant Attorney-General Sill for the United States, appellees:
    The claimant cannot recover for the corn for which this suit is brought under the original contract, as that was ended by his failure to deliver the corn mentioned therein within the time specified.
    Whether stipulations as to time for the performance of a contract of sale are conditions precedent, is a question to be determined by a fair examination of the language of the contract, the subject-matter of the same, and the circumstances of its execution. If from these the time appears to be of the essence of the contract, stipulations in regard to it are treated as conditions precedent to the sale. (Benjamin on Sales, p. 481, 482.)
    If there was any agreement by the quartermaster to buy the grain mentioned in the claimant’s petition, it was an oral contract, aud contrary to the act of 1862, ch. 93, (12 Stat. L., p. 411,) requiring all such contracts to be in writing. Neither were there the conditions necessary to make a valid contract-under the act of 1861, ch. 84, (ibid., 220,) requiring contracts for supplies, except in special emergencies, to be made by advertising for proposals, and the act of 1864, ch. 253, sec. 4, (13 Stat. L., p. 396,) directing that where an emergency requires an immediate procurement of supplies,, the contract shall be made by the chief quartermaster of the Army or detachment. Nor was there any delivery or acceptance of this corn to render the Government liable upon an implied contract. The grain was placed in the warehouse at Camp Fillmore without authority. The clerk was expressly directed not to receive the corn, but only to receive for current use at contract prices. Whatever there may have been in the action of the chief quartermaster’s clerk contrary to these instructions was wholly unauthorized, and could not bind the Government. The corn transported to Denver was not in good condition. As the Government never accepted the corn while it was in Camp Fillmore, it must be considered as having been at the claimant’s risk $ and he, as the owner, no title having passed, must bear the loss of any damage which it may there have received.
    The receipt and voucher given can at most be considered as only prima-facie evidence, and are contradicted by the findings of the court below. (Parrish v. The United, States, 2 0.01s. R, 341.)
   Mr. Justice Miller

delivered the opinion of the court:

The. appellant entered into a written contract on the 28th of July, 1864, with the Quartermaster’s Department, to deliver at Fort Fillmore 12,000 bushels of corn, at such times and in such quantities, of not less than 1,000 bushels per month, as the assistant quartermaster should direct: 9,000 bushels before the 1st day of January, and the whole amount by the 1st day of May, 1865.

The 9,000 bushels were delivered and paid for before the 1st day of May, and about this there is no dispute.

Some negotiations took place afterward between appellant and the quartermaster of that military department concerning the delivery of the remainder, the finding in regard to which is not very clear.

The appellant did, however, deliver the remainder of the corn at Fort Fillmore, October 15, 1865, by depositing it in the military store-house at that place.

The chief quartermaster’s clerk afterw'ard examined this corn, weighed some of the sacks, counted the remainder, and gave the claimant a receipt for the amount, stating that it completed his contract. The court finds that this clerk then and there accepted and took actual possession of the corn, and the chief quartermaster gave the claimant the usual voucher for the sum due.

The court also finds that the corn was sound when delivered, but was injured by reason of the defective and leaky condition of the store-house at Fillmore.

'Whether we regard this last delivery as made under a verbal extension of the time stipulated in the original contract, or consider it as a new transaction, in which the Government received and took possession of the corn and used part of it, and permitted the remainder to be injured in its hands, we think the claimant is equally entitled to pay for it.

That Act 2d June, 1862, (12 Slat. L., p. 411,) requiring contracts for military supplies to be in writing, is not infringed by the i>roper officer having charge of such matter accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.

And if this were not so, when the quartermaster in charge receives of a person corn for the Government, gives a receipt and voucher for the amount and the price, and the Government uses such part of it as it wants, and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn, which value may, in the absence of other testimony, be presumed to be the price fixed in the voucher by the quartermaster.

The judgment of the Court of Claims is therefore reversed, with directions to enter a judgment for claimant for the amount of said voucher.  