
    THOMPSON’S CASE. John A. Thompson et al. v. The United States.
    
      On the- Proofs.
    
    
      In December, 1864, an assistant Quartermaster is assigned to duty at Nashville by the chief quartermaster of the department. Du/ring the winter the Quartermaster Department at Nashville does not advertise for proposals, but buys mules in open market. The chief quartermaster is in constant communication ivith the commanding general, and keeps him informed of the measures taken to procure supplies, but no formal order is ever issued by the commanding general declaring an emergency and directing the purchase of mules. The assistant quartermaster, with the approval of the chief quartermaster, on the 9th of March, 1865, “ obligatos liimself, as an officer of the Government, ” to receive one thousand mules, at an agreed price, to be delivered “ on or before'the twentieth clay of April nest.” The agreement does not, in terms, bind the contractor to furnish any, nor express a consideration for the obligation to receive. It is the most expeditious means that can be employed for procuring one thousand mules. The contractors deliver some of the mules, for which they are paid in full, and purchase and are prepared to deliver, within the prescribed time, eight hundred more, and tender one hundred thereof, but by reason of the fall ofUiehmond the Quartermaster Department refuses to receive them. The contractors bring their action for their damages.
    
    I. The chief difference between this and Cobb, Christy Co.’s Case, (7 C. Cls. B., p. 470,) is that there the chief quartermaster was informed by General Thomas of a specific emergency, and was expressly, though informally, ordered to procure the necessary forage immediately and at all events; while in this case there was only a general knowledge on the part of General Thomas of what his chief quartermaster was doing, and no specific order to procure mules for the movement of his army.
    II. It is not free from doubt but that, under the Act 4A July, 1864, (13 Stat. L., § 4; p. 394,) a vendor, dealing with a quartermaster, is bound to ascertain that the commanding-general has exercised the discretion vested in him by the statute relating to procuring supplies in a military emergency, and has signified it by a proper order; but the majority of the court hold that this obligation is not imposed upon the contractor, and that he may rely upon the presumption that the officer with whom he deals is authorized to make the purchases.
    III. A military emergency cannot be measured by precise rules. It may continue equally imminent over a period of months. In such a case, where supplies cannot be procured by immediate purchase, literally in the open market, and the quartermaster charged with procuring them contracts without advertisement for their delivery within thirty days, the contract is valid, if it be as immediate a purchase as the circumstances admit of.
    
      IY. A contractor, dealing witli the Government, is chargeable with notice of all statutory limitations placed, upon the powers of public officers; but there is a difference between those powers expressly defined by statute and those which rest upon the discretion confided by law to an officer. Where a statute expressly defines the power, it is notice to all the world ; but where it confides a discretion to an officer, the party dealing with him in good faith may assume that the discretion is properly exercised. If the discretion be vested in a superior, while the transaction is with his subordinate, the contractor may assume that the discretion has been projierly exercised, and that the subordinate is acting in accordance with his superior’s orders.
    V. The decision in Cobb, Christy Co.’s Case. (7 0. Cls. K., p. 470,) that the Act 2d June, 1862, (12 Stat. L., x>. 411,) requiring contracts with the Government to be in writing, was suspended during the rebellion by the Act 4th July, 1864, (13 Stat. L., $ 4, p. 394, ) in cases of emergency, re-affirmed.
    VI. Though a contract be made by an agent and though the name of the principal be not disclosed, nor even the fact that the agent is acting for another, nevertheless the principal may maintain an action in his own name, and may give parol evidence of his interest dehors the terms of , the written contract.
    YII. Where a contract obligates a quartermaster to receive one thousand mules within a specified period, but no consideration is expressed for the obligation, which is not reciprocal and does not bind the contractor, the contract is valid so far as the quartermaster suffers it to be performed, but the contractor cannot recover prospective damages on mules which he had not procured when the contract was renounced by the other party.
    
      The Reporters’ statement of tbe case :
    The facts of the case sufficiently appear in the opinions read.
    
      Mr. Benjamin H. Bristow and Mr. T. J. Fuller for the claimant :
    On the 9th day of March, 1865, General Thomas, commander of the Army of the Cumberland, required an immediate augmentation of his means of transportation, for present and prospective use. The emergency was so great, that it was deemed necessary to dispense with the formalities of advertising for bids j and his chief quartermaster directed purchases to be made in open market, and his subordinates, in obedience to his instructions, inquired for and sought out responsible parties, who could supply the requirements of the army within a short space of time.
    
      The jdaintiffs, being well known as men of fidelity and means, and large, experienced mule-growers and dealers, were offered tlie contract; and accordingly, through their agent, T. T. Taylor, they entered into a contract, in writing, with Henry Howland, assistant quartermaster, under instructions from the chief quartermaster, General Donaldson, to furnish at Nashville, for the use of the United States, one thousand mules, of not less than fourteen, fourteen and a half, and fifteen hands high, and which would inspect up to the required Government standard, and for which the United States promised the petitioners to pay them $165, $167.50, and $175 per head for each mule according to its height, and the mules to be delivered on or before the 20th day of April ensuing. The petitioners at once set about fulfilling their contract with great energy. It was a large contract, and required the immediate command and use of over $140,000, in ready money or short credit.
    They progressed so far in the execution of their contract as to purchase and collect together the requisite number of mules, to wit, nine hundred of them, and actually delivered twenty-five, and had one hundred at Nashville ready to deliver, and between two and three hundred mules on the cars between Lebanon, Ky., and Nashville, and five hundred and seventy mules corraled at Lebanon, Ky., waiting for car transportation, and all the arrangements complete for the seasonable delivery of the whole number; when, in this state of facts, in consequence of the fall of Kichmond, the surrender of General Lee’s army, and the sudden termination of the war, on the 10th day of April, 1865, the United States, with the full knowledge of the condition of the claimants in reference to their contract, by their chief quartermaster notified the petitioners that the Government would not now need, and did not want, the mules, and had more mules on its hands than it knew how to dispose of, and therefore would not receive any more mules under the contract, and referred the petitioners to the chief quartermaster of the United States and to the Government for redress and compensation.
    The sudden and unexpected termination of the war, and the knowledge of the fact that the Government had on hand, and would soon place upon the market, several hundred thousand well-broken and seasoned mules, broke down entirely the market-price of mules. For months there was no sale of mules, and no price fixed for them.
    
      The petitioners have undertaken to show, from the best and most reliable graziers and mule-growers in the States of Kentucky and Tennessee, and elsewhere, the prices and value of the mules, such as the petitioners purchased for the Government, at the time the contract was broken.
    The difference between the contract-price of the mules and what they would have sold for, at or within a reasonable time after the termination of the contract, is undoubtedly the true measure of damages to be ascertained in the case, and must govern as the well-settled rule of law applicable to this class of cases.
    Suffice it, therefore, to refer merely to Maris Case, (3 0. Cls. R., p. 413,) which is very similar to the one at bar. The Government refused to receive the knapsacks in that case because the “ war had come to an end.” And the court say, iu awarding, damages in that case, it is gratifying to know that it does not inflict a greater loss upon the United States than if the knapsacks had been received and paid for. If the Government had received the mules, they would have had so many more on hand to feed, and sell for ruinous prices, and for less than we credit them to the Government. Wormer's (Jase, (4 0. 01s.. R., p. 259,) states the rule to be that “in an executory contract, determined and put an end to by the Government without the fault of the other party, the Government should place the other party■ in as good a condition as he would lime been by performance.” ■ (Woodruff & Bouchard's Case, 7 G. 01s. R., p. 605.) Also see Cobb, Christy & Co.'s Case, (7 C. Cls. R., p. 472,) where there was a contract to deliver corn at Nashville, which was determined by the same general order of OolonelDonaldson. The rule of law applicable to that case was, that the claimants having incurred all the expense necessary to fulfill their contract, and being in a position where they had the ability to and offered to perforin, and the other party having put an end to the contract, by refusing to accept the property, the claimants may recover the difference in value between the contract-price and the market-value of the property in cash at the time and place of its delivery. Of course a reasonable time must be allowed to ascertain this fact and to sell at public auction after reasonable notice has been given.
    
      Mr. Assistant Attorney-General Goforth for the defendants :
    The contract on which this claim is based does not bind defendants. It is executed only by “ H. Howland, captain and assistant quartermaster,” and purports to bind him, “ as an officer of the Government,” meaning thereby to bind the Government to one “ T. T. Taylor, agent.” The Act 2d June, 1862, (12 Stat. L., 411,) requires that such a contract shall be “ signed by the contracting parties with their names at the end thereof.” This provision being mandatory, and binding as well upon the contractor as upon the Government officer attempting to contract, must, in all cases, be complied with, and, if not complied with, what purports to be a contract is no contract, but is absolutely void. (Henderson’s Case, 4 0.01s. B., p. 75.) “ Exigency ” does not take such a case out of the statute. The Act 2d March, 1861, (12 Stat. L., § 10, p. 220,) provides that “when immediate delivery or performance is required by the public exigency, the •articles or service may be procured by open purchase or contract,” and dispenses with advertisement “ for proposals respecting the same.” This of course does not affect the provision of the subsequent act, which requires contracts to be in writing and to be signed by the parties. Nor is that provision affected by the 4th section of the Act July 4, 1864, “to provide for the better organization of the Quartermaster’s Department.” (13 Stat. L., p. 396.) The object of the provisions of the acts of 1861 and 1864, referred to, was to save time,’and the only means of such saving mentioned is the omission of advertisement. Advertisement for proposals to enter into contract is to be made; but where a contract is to be made, its execution, according to the actof 1862 involving no material expenditure of time — nothing to interfere with the “expeditious” procurement of supplies —it must be so executed. In any case it would be the work of but a few minutes to draught and execute a proper contract; in this case hardly ten minutes would have been necessary. But, further, under the section of the act of 1864, above referred to, the quartermaster had no authority whatever to contract for defendants without first advertising for proposals. He could not assume that there was an exigency, nor was it within the authority of the chief quartermaster of General Thomas’s army to declare the existence of an exigency. Only the commanding officer of the army to which both were attached could do this, and the contracting officer could lawfully proceed only upon the commanding officer’s order in writing. Without such written order no agreement or contract could bind the United States, and tbe party undertaking to contract with, the quartermaster was bound to ascertain whether such order had been given. (Henderson’s Case, 4 0.01s. B., pp. 85-87.) No such order appears in the record. Were the writing-purporting to be a contract a valid contract as between defendants and “T. T. Taylor, agent,” the claimants not being parties to it, performance on their part could not have been enforced. And as they were not parties to it, they would not be entitled to sue for a breach of it. Neither a general nor a special partnership between the claimants in the purchase and sale of mules is shown, and their names even were not disclosed until after the refusal of the Government to accept mules under the parol arrangement of Agent Taylor with the quartermaster. This Mr. Taylor showed no authority to the quartermaster to bind anybody, but appears to have constituted himself “agent” for everybody that had mules to sell; and, after the refusal of the Government to receive more mules, he might probably have found several other principals within striking distance of Nashville who had mules corraled, ready to be forwarded and delivered.
   Nott, J.,

delivered the opinion of the court:

The following I regard as the only ultimate or specific facts in the case, and they present all of the legal questions which the case involves:

I. During the year 1865 Maj. Gen. George EL Thomas commanded the Department of the Cumberland, and Bvt. Brig. Gen. J. L. Donaldson had been assigned to duty as chief quartermaster of the department, in accordance with the Act ith July, 1864. (13 Stat. L., p. 394.) The official relations between General Thomas and his chief quartermaster were of the most intimate and informal character. All the measures taken by the chief quartermaster to procure supplies and means of transportation for the army were known generally to General Thomas, and received his implied approval and assent: but no specific or formal orders were issued by him in regard to these measures. The chief quartermaster was also informed by General Thomas of a series of military emergencies running through the months of December, 1864, and January, February, and March, 1865, requiring the utmost exertions of the Quartermaster Department, but no formal order was ever issued by General Thomas declaring these emergencies, or any of them, or directing the purchase in open market of the necessary supplies or means of transportation then required by the army under his command.

II. On the 12th day of December, 1864, Oapt. Henry Howland, assistant quartermaster, was assigned to duty at Nashville, by the order of the chief quartermaster, and was charged with the duty of purchasing and procuring public animals, and he remained there on that duty until the 11th March, 1865. During this period horses and mules needed for the movements of the army could not be procured at other depots, and were purchased without advertisement in open market, with the knowledge and approval of the chief quartermaster, but without any express or formal order to that effect being issued by him. On the 8th day of March, 1865, Captain Howland reported to the chief quartermaster, (who was also then at Nashville,) in writing, that the price which he was then paying for mules was less than was then paid in other military depots, and recommended that, in order to supply the immediate requirements of the Army of the Cumberlaud, he be authorized to increase the price over the existing rates to $160, $167.50, and $175, for 14, 14J, and 15 hand mules. He also reported at the same time that, in the event of being thus authorized, he could secure from fifteen hundred to two thousand mules within the next thirty days. The chief quartermaster, on the same day, returned the report to Captain Howland, indorsed with his approval. The report did not refer to the contract hereinafter set forth, nor specify in terms 'whether the mules were to be purchased by advertisement or by purchase in open market; but the intent of both the chief quartermaster and Captain Howland was that the mules should be procured without advertisement and in the most expeditious manner possible.

III. On the 9th day of March, 1865, Captain Howland, acting under the authority before referred to, entered into the following written contract with the claimants, and delivered the same to their agent at Nashville:

“Oeeice Assistant Quartermaster,

Nashville, Term., March 9,1865.

u I hereby obligate myself, as an officer of the G-overnment, to receive of T. T. Taylor, agent, one thousand (1,000) good serviceable mules, that will inspect up to tlie required standard; said mules to be delivered in Nashville, Tenn., ou or before the 20th day of April next, at the following prices, to wit: One hundred and sixty, (160,) one hundred and sixty-seven and fifty one-hundredths, ($167.50,) one hundredaud seventy-five ($175) dollars each, respectively, for fourteen, (14,) fourteen and one-half, (14J,) and fifteen, (15,) hand mules.

“ HENRY HOWLAND,

u Captain and, A. Q. M.n

This agreement, amid the circumstances then existing in the Department of the Cumberland, was the most expeditious means that could have been employed by Captain Howland for procuring one thousand mules.

IY. The claimants immediately proceeded to fulfill the terms of this agreement, and on the 1st of April delivered twenty-four mules, at Nashville, for which they were paid in full; and on the 10th of April tendered at Nashville one hundred other mules, in pursuance of the agreement; but the officers of the Quartermaster Department refused to receive these mules, or any more mules, under the agreement, from the claimants, upon the ground that the fall of Richmond and the approaching termination of the war rendered them unnecessary for the use of the army. And the chief quartermaster renounced this and all existing contracts for supplies, and notified all contractors that they must apply to the Quartermaster-General or to the Government for relief. On the 7th or 8th of April the claimants had also shipped two hundred other mules at Lebanon, Ky.,for Nashville, but these were turned back incon-sequence of the refusal of the officers of the Quartermaster Department at Nashville to receive any more mules. At that time the claimants also had purchased and collected, and then held at Harrodsburgh, Ky., and at Lebanon, and on the railroads, about eight hundred and seventy mules, in good serviceable condition, ranging from fourteen to fifteen hands high. This number included the one hundred which were refused at Nashville and the two hundred which were turned back at Lebanon. At the time of the refusal of the Quartermaster Department to receive the claimants’ mules, the price of mules had fallen to $27 and $28 each, and the claimants suffered loss on the eight hundred and seventy mules which they then held to the extent of §108,750, being the difference between the agreed rate and the prices at which the claimants disposed of the mules. On the remaining one hundred and six mules the claimants, if they had been allowed to perform, would have realized a profit of $140 per mule, amounting in the aggregate to $14,840.

The principal question in this case is as to the authority of the quartermaster to enter into the agreement with the claimants, which is the subject of the action, without previous advertisement. In the case of Cobb, Christy & Co., (7 C. Cls. R., p. 470,) the statute regulating such purchases, during the rebellion, received a unanimous construction from this court. The chief difference between this and Cobb,.Christy & Co.’s Case is, that there the chief quartermaster was informed by General Thomas of a specific emergency, and was expressly, though informally, ordered to procure the necessary forage immediately and at all events; while in this case there was only a general knowledge on the part of General Thomas of what his chief quartermaster was doing, and no specific order to procure mules for the movements of his army.

Undoubtedly the Act 4th July, 1864, (13 Stat. L., § 4, p. 394,) contemplates a formal written order from the commanding general to his chief quartermaster, declaring an emergency, and directing the procurement of .the necessary supplies; for it provides, that it shall be the duty of such quartermaster to obey such order,”.and that “his accounts of the disbursement of money for such supplies shall be accompanied by the order of the commanding officer as aforesaid, or a certified copy of the same, and also by a statement of the particular facts' and circumstances, with their dates, constituting such emergency;” but the decision of the court in Cobb, Christy cfe Go's Case determines that, so far as the validity of the contract is involved, the order need not be in writing nor of a formal nature. In this case the question is still narrower, and it comes down to the point whether the vendor is by the statute put upon inquiry as to the specific authority of the officer with whom he deals, to be evidenced by the express order of the commanding general.

In several of the earlier cases in this court that question has been answered in the affirmative, it being held that the vendor was put upon that inquiry by the terms of the statute; but those decisions were made before the decision of the Supreme Court in Speed’s Case, (7 C. Cls. R., p. 93,) by which it was determined that where a commissary had contracted without advertisement, as prescribed by the Act March 2, 1861, (12 Stat. L., p. 220,) and no “public exigency” was shown to exist, nevertheless the vendor was not chargeable with knowledge of the fact, but might rely upon the supposition that the commissary was acting within the scope of his statutory authority and upon a knowledge of an exigency not communicated to the vendor.

There is a difference between the two statutes, upon which a very substantial distinction might be placed. The one, (that of 1861,) as construed by the Supreme Court, vests the discretion in the purchasing officer; the other expressly vests it in the commanding general. It is not free from doubt but that a vendor, dealing with a quartermaster is bound to ascertain that the commanding general has exercised this discretion and signified it by proper order.

The majority of the court, however, think this obligation is not imposed upon the contractor. In the first place, the statute does not provide for every subordinate quartermaster being notified of the order. It simply contemplates the order being-issued, in some way, to the chief quartermaster of the department or army, and it is inferable that his subordinates, acting under his authority, are warranted in executing his orders without questioning his. right to give them. In the second place, military exigencies are, in their nature, affairs which are not to be disclosed to all the world, either directly or indirectly. Nothing could be more fatal to the military interests of the Government than that contractors, or the public, or even the subordinate officers of the Quartermaster Department should be informed 11 of the particular facts md circumstances” which constitute the emergency, or of “ the movements and operations of an army” which render the supplies necessary, or of the probable “continuance of such emergency,” or, indeed, of the fact that an emergency exists. Such a communication might well be made by a military commander to his confidential assistant, the chief quartermaster, and might ultimately be used as a voucher in the settlement of the chief quartermaster’s accounts; but that it should be posted about the army and shown to every man who contemplates furnishing the needed supplies, most certainly could never have entered into the intent of the framers of the statute. It was enough for the public and for the contractor to know that the statute had confided to the proper officers of the army that discretionary authority to procure supplies without advertisement; and when supplies were thus sought to be procured during’ the rebellion, the contractor, on the one hand, had no right to demand an inspection of the confidential orders and directions of the commanding general, and, on the other, was not compelled to take the risk of the purchases being made without the requisite authority.

Some question has also been made as to the extent of this emergency, and objection has been raised that the purchase was not immediate. The truth is that military emergencies are things which cannot be measured by formal or precise rules. One may require a dozen mules within the period of a single-day. Another may be of such gigantic proportions as to require them by the thousand, and continue equally imminent over a period of weeks or months. In this case the order was a very large one. There were no mules to be procured literally in the open market at Nashville. The means resorted to by the chief quartermaster constituted as immediate a purchase as the circumstances would admit of. The mules were not bought and delivered in the same hour, for that was impossible, but they were bought deliverable at what appears, by the evidence, to have been the earliest possible time; and the quartermaster was not required, and indeed had not the right, to prolong that time a single day by the formality of a “ previous advertisement.”

The Supreme Court has held that a contractor dealing with the Government is chargeable with notice of all the limitations of authority which the statutes place upon the powers of public officers and agents. But there is a difference between those powers which are expressly defined by statute and those which rest upon the discretion confided by law to an officer or his superiors. The distinction that should be made seems to be that where a statute expressly defines the powers, it is notice to all the world; but where a statute confides a discretion to an officer, a party dealing with him in good faith may assume that the discretion is properly exercised; and if the discretion is vested in a superior officer, while the transaction is with his subordinate, the contractor may assume that the discretion in like manner has been properly exercised, and that the subordinate is acting in accordance with. Ms superior’s orders and carrying out the exercise of the superior’s discretion.

It is also a ground of defense that the contract, though in writing, was not signed by the contracting parties as required by the Act 2d June, 1802, (12 Stat. L., p. 411.) But the same objection was raised in the case of Cobb, Christy & Co., and after mature deliberation it was thought by the whole court that in these purchases to meet military exigencies neither the statute requiring advertisement, nor the statute requiring written contracts, applied; and, on the contrary, that when a military emergency is to be provided for, the only duty of the quartermaster is to procure the needed article on the most reasonable terms and in the most expeditious way.

There is a further objection taken, that the contract purports upon its face only to be an agreement between the agent and the quartermaster, and not to bind the principals. But the cases of Ramsdell & Smith, in this court, (2 C. Cls. R.,) and of Ford v. Williams, in the Supreme Court,(21 How. B., 287,) authoritatively settle the fact that, though the contract is made by the agent, and though the name of the principal is not disclosed, nor even the fact that the agent is acting for another, still the principal may maintain an action in his own name and give parol evidence of his interest dehors the terms of the written contract.

It is proper to say that only three objections were raised on the trial: 1st, that the contract should be in writing and signed by the parties; 2d, that the claimants were bound to ascertain that an exigency had been declared by the commanding general; 3d, that the claimants were not parties to the contract. As to the contract itself and the construction which should be given it, very little was said upon the argument. We are inclined to think that it is not one of those contracts for the sale of a specific thing, which, upon being renounced by the defendant, entitles the plaintiff to recover all the profits which he might have made$ but that it is one of those in which the plaintiff’s relief is limited by the extent of, his performance at the time of the renunciation. In this case the claimants had performed to the extent of procuring eight hundred and seventy mules. Having tendered one hundred of them, it was unnecessary for them to tender the remainder, and it would have been improper for them to have increased the damages by shipping the remainder to Nashville for the needless purpose of a formal tender. For the damages they have suffered in performing, or being prevented by the defendants from performing, they should recover. For their prospective profits on the remaining one hundred and six mules, which they had not purchased when the contract was renounced, they should not recover.

The average value of the mules held by the claimants, was $167.50; the price at which they were sold was $42.50; the loss which the claimants have sustained is $126.

The judgment of the court is that the claimants recover of the defendants the sum of $108,750.

Drake, Ch. J.,

dissenting:

I do not concur in the opinion just read, and deem the case of sufficient importance to justify an extended expression of the views which compel my dissent. Its importance is not less in its large amount than in the value of stability and uniformity in judicial decisions.

One of the foundation-stones of common-law jurisprudence is the maxim' stare decisis ; a maxim not blindly to be adhered to regardless of .circumstances, but still of great virtue and lasting value. No court can safely disregard its general influence, though every court may, and ought, when satisfied of the error of its previous decisions, to overleap the barriers of the rule, and correct its own mistakes.

In this case I adhere to the maxim, because I believe the precedents made by the unanimous judgment of this court in cases similar to this, none of. which were appealed from, were eminently sound, and ought not to be unsettled.

The first point to be considered is as to what statute governs the case. Without doubt it is either the tenth section of the Act of March 2,1861, (12 Stat. L., 220,) or the fourth section of the Act of July 4, 1864, .(13 Stat. L., 394.)

The former is in these words: “ That all purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.”

The latter is iu the following words: u That when an emergency shall exist, requiring the immediate procurement of supplies for the necessary movements and operations of any army or detachment, and when such supplies cannot be procured from-any established depot of the Quartermaster’s Department, or from the head of the division charged with the duty of furnishing such supplies, within the required time, then it shall be lawful for the-eommanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, but no longer, in the most expeditious manner, and without advertisement; and it shall be the duty of such quartermaster to obey such order 5 and his accounts of the disbursements of moneys for such supplies shall be accompanied by the order of the commanding officer as aforesaid, or a certified copy of the same, and also by a statement of the particular facts and circumstances, with their dates, constituting such emergency.”

It is not, in my opinion, any longer an open question in this court as to which of those statutes controls this case. I consider that settled by our judgment in Cobb, Christy & Co.’s Case, (7 C. Cls. R., p. 470,) which, like this, grew out of transactions of the Quartermaster Department of the army of the Cumberland, simultaneously with those herein involved. The two cases bring into view the same officers and the same general condition of military affiairs in Tennessee between December, 1864, and April 10,1865; and both are connected with the last-named date, when the fall of the rebel city of Bichmond at once broke the power of the rebellion, and dispensed with the necessity of further extraordinary efforts to sustain the armies of the Union engaged in its suppression.

In that case the court, without dissent, held that the Act of July 4, 1864, exclusively, and not that of March 2, 1861, controlled ; and the grounds of that decision seem to me incapable of question.

But even if it should be supposed that the Act of March 2, 1861, bears upon this case, still, under the ruling of this court in McKinney’’s Case, (4 C. Cls. R., p. 537,) these claimants could not recover. That was a case of a contract entered into on the 1st of December, 1864, for the delivery of wood from the 1st of March to the 1st of May, 1865. It was entered into by the authority of the chief quartermaster of the Army of the Cumberland, without advertisement for proposals; and in reference to it the court said: “ It was made for a future supply, and on the authority of the chief quartermaster of General Thomas’s army, and is thus within the prohibition of the Act of March 2, 1861.”

Treating this case as governed exclusively by the Act of July 4, 1864, I hold that the following positions in regard to that act are not only tenable, but have been taken by this court without dissent, and without appeal to the higher court:

I. That to the commanding officer of the army or detachment is left the question of the existence of the emergency authorizing the immediate procurement of supplies, without advertisement. (Henderson’s Case, 4 C. Cls. R., p. 75.)

II. That he is the sole judge of when the emergency exists. (Baker & Folsom’s Case, 3 C. Cls. R., p. 343; Emery & Blake’s Case, 4 ibid., p. 401; Wilcox’s Case, 5 ibid., p. 386.

III. That his orders in the premises are, as to the existence of the emergency, conclusive upon the officers charged with obtaining the supplies. (Henderson’s Case,ut supra.)

IY. That without his order a quartermaster would have no lawful authority to contract without advertisement for future supplies. (Henderson's Case and Emery & Blake’s Case, ut supra.)

Y. That the commanding officer’s authority to give an order for the immediate procurement of supplies, without advertisement, continues only so long as the emergency exists. (Emery 6 Blake’s Case, ut supra.)

VI. That under such an order the supplies must be obtained in the most expeditious manner.” (Cobb, Christy & Co.’s Case, 7 C. Cls. R., p. 470.)

VII. That under such an order a contract could not be made extending beyond the period of the existence of the emergency. (Emery & Blake’s Case, ut supra.)

VIII. That he who contracts with a quartermaster for the delivery of supplies, without advertisement and proposals, is bound to inquire and know whether the proper commanding officer has declared the exigency, and authorized the officer making the contract to dispense with the usual safeguards which the laws of Congress have thrown around the operations and engagements of subordinate officers and agents.” On this point the language of the court was emphatic, as follows:

It is a fact easily ascertained; and, as it furnishes the very foundation and authority of a subordinate officer to make contracts or purchases in a particular manner, there is no hardship in requiring persons dealing with such officer to first ascertain whether he has the requisite legal authority to enter into the proposed stipulations and obligations for the United States. So much is required of all persons dealing with an agent. Whenever a bargain or transaction out of the ordinary usages of trade is proposed by an agent or factor, the first duty of the other party is to satisfy himself that the agent has authority from his principal to enter into the proposed stipulations. If he fail to do so, he takes all the risk of the agent’s authority upon himself. There is every reason, where the law has prescribed definitely and precisely, as here, the evidence of the public agent’s power and authority, to apply, the same rule.” (Henderson’s Case, ut supra.)

Such are, in condensed form, the positions taken by this court in its construction of the Act of July 4,1864. I hold them all to be sound and incontrovertible, and, as yet, they are unopposed by any ruling of the appellate court. In view of them, I can see no way to render a judgment in favor of the claimants in this case, for the following reasons:

1. Ho order was given by General Thomas to his chief quartermaster on or before March 9, 1865, to. procure one thousand mules to meet a then-existing emergency.

2. In the absence of such an order from him, this court cannot judicially determine that an emergency existed, requiring the procurement of that or any other number of mules by exec-utory contract, without advertisement.

3. That the authority given by General Donaldson’s approval, indorsed on Captain Howland’s letter of March 8, 1865, allowing him to offer and give higher prices for mules. than those previously paid, did not authorize Howland to make the contract sued on.

4. That the claimants were bound to inquire and know whether General Thomas had given an order which would legally authorize the procurement, without advertisement, of that number of mules.

5. That the paper signed by Howland, even supposing a previous order to have been given by General Thomas to procure one thousand mules to meet an emergency, showed by its very terms that it could not have been intended to meet that order, for it did not require any mules at all to be delivered, but only agreed to receive one thousand mules if delivered on or before the 20th of April, 1865 ; and because, even if it should be held to require such a delivery, there was no requirement to deliver a single mule.before that day, which was forty-two days after the date of the contract; but the contract, being for the delivery of one thousand mules on or before that day, would have been fulfilled if the whole number had been delivered on that day; which wholly disproves the idea of an emergency, as was substantially held under similar circumstances in McKinney’s Case, ut supra.

6. That the uniform practice of the Quartermaster Department of the Army of the Cumberland, for months prior to this contract, of buying supplies in open market, without advertisement, however it may have been tacitly approved by General Thomas, as “the most expeditious manner” of supplying the urgent needs of his Army, could not justify a contract of this description for future supplies. “Immediate procurement of supplies for the necessary movements and operations of an army” does not mean a contract for delivery at the end of forty-two days; nor does obtaining supplies “in the most expeditious manner ” mean, presumably, contracting for them at that long range. In such a case, present, instant procurement, if possible, and if not, procurement as nearly present and instant as practicable, is what the act requires. In an emergency requiring such an order, a contract for the delivery of supplies at the end of forty-two weeks would seem hardly less inconsistent with the circumstances than one for delivery at the end of so many days.

7. If it be supposed that the acceptance by the assistant-quartermaster who succeeded Howland of the twenty-four mules delivered to him by the claimants under the contract was a ratification of the contract by the defendants, entitling the claimants to recover in this action, it seems to me that the all-sufficient answer is, that neither an agent transcending his authority in the making of a contract, nor a succeeding agent of the same grade and powers, can, by his own act alone, ratify the contract so as to bind the principal. 1

There is no pretense here of any ratification except of that description. It does not appear that General Donaldson, or any other superior officer, ratified it. So far, then, as binding the Government is concerned, we have nothing of ratification to look to but the acts of the assistant quartermaster who succeeded Howland. If we should charge the Government upon the basis of those acts alone, the Government would always be at the mercy of its subordinate officers, however unlawful their acts might be.

Beyond doubt, as this court has repeatedly, and in my judgment most justly, held, the Government, however illegal and void the contract, ought to pay the value of whatever was received and used by it under the contract. But that is not the question here; for the mules delivered to and received by How-land’s successor have been paid for. The question is whether the Government shall respond in damages for the refusal to accept other mules when the contract was unlawfully entered into. In my view, no act of the officer who made the contract, or of his successor, is such a ratification by the Government as subjects it to such liability.

8. It is, however, claimed that, under the ruling of the Supreme Court in Speed’s Case, (8 Wall., p. 77,) the contract was, in fact, lawful, and that therefore the decisions of this court, above cited, construing the Aet J.uly 4, 1864, do not apply. To this view there are, to my mind, two insuperable objections: 1. That in that case the contract was made by the War Department, and not by an officer in the field, and therefore did not at all come within the purview of the Aet July 4, 1864, but was directly governed by the Act March 2, 1861; . and, 2. That the Supreme Court decided the case expressly under the Aet 1861, and did not, in the most distant manner, allude to the Aet 1864; following in that respect the course of this court, as appears by the report of the case in 2 C. Cls. R., p. 429.

The difference between the purpose and scope of those acts was fully considered and deliberately stated by this court in Cobb, Christy & Co.’s Case, where we held, on the one hand, that the Act 1864 was enacted in the civil war, and for it; that its purpose was to reconstruct the Quartermaster Department, to adapt it to the extended services the civil war required ; and that it contemplated and provided machinery for the supply of armies for operation in the field and for the vicissitudes to be encountered there,* but that, on the other hand, the Act 1861 had no such special purpose, was not made in time of war, and did not relate specially to service in the field nor to military service; for in terms it applies to contracts in any Department of the Government, and is applicable to an emergency for stationery in the State Department, or for blanks in the Post-Office Department, or for fuel in barracks, or for any other emergency that the failure of a contractor may-make for the supply of anything needed in the ordinary routine of public business.

I adhere to these views, and hold that the decision in Speed’s Geese has not the least applicability here.

9. There is another view which, in my opinion, is fatal to the-claimants’ case.

The first section of the Act Dime 2,1862, (12 Stat. L., p. 411,) contains the following provisions:

“ That it shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally on behalf of the Gov-' eminent, or by their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed, by the officer making and signing the said contract, in the ‘returns office’ of the Department of the Interior.”

This provision has several times been before this court in connection with verbal contracts entered into by Government officers, and in every case, except that of Cobb, Christy & Co., it was held that a verbal executory contract entered into by an officer of the Government after the passage of. that act, was void. In that case the verbal contract was to duplicate the supplies called for in a previous and still subsisting written contract, and it was entered into under circumstances of great and almost unparalleled emergency. This court sustained it, because it was “ the most expeditious manner ” of obtaining the supplies needed in that emergency, and therefore came within the provisions of the Act July 4, 1864; and the Government paid, without appeal, the heavy judgment rendered against it in that ease.

In Henderson’s Case, previously cited, the nature and effect of that provision were fully considered, and the following points ruled: 1. That it is mandatory and imperative upon the parties to contracts with the Government, and not merely directory to the Government officers; and, 2. That it makes it as much the duty of contractors as of officers to see that its requirement is fulfilled. And this ruling has been followed in Lindsley’s' Case, (4 C. Cls. R., p. 359;) Adams’s Case, (7 ibid., p. 437;) and Lender’s Case, (ibid., p. 530.) When, therefore, the contract herein involved was entered into, the claimants’ agent, who acted in the premises for them, was bound to see and know that it conformed to the statute; as was held by the Supreme Court in Pierce v. United States, (7 Wall., p. 666,) where that court said: “Our statute-books are filled with acts authorizing the making of contracts with the Government through its various officers and Departments, but in every instance the person entering into such a contract must look to the statute under which it is made, and see for himself that his contract comes witJdn the terms of the law.”

Applying these views to' this case, I hold that the paper signed by Howland — though for convenience I have called it a contract — is no contract of the United States, because it was not “ signed by the contracting parties with their names at the end thereof,” as required by the Act June 2,1862. Let-it be observed that the statute requires the signature of “the contracting parties;’ that of the party on the one side is not sufficient; both must sign it.

If it be said that this is a matter of form merely, I point to the emphatic words of this court, holding the whole provision of that act to be “ mandatory and imperative.” We have no power, therefore, to exact fulfillment of one of its requirements, and dispense with the fulfillment of another. It is just as obligatory that the contract should be signed by both parties as that it sTiould be reduced to writing; and not having been signed by the claimants or their agent, it is, in my view, no contract at all.

Other reasons strengthén this conclusion. The paper does not, in terms, assume to bind the United States, but only the signer of it. True, he “ obligates hioiself as au officer of the Government;” but those are not the terms iu which aa agent legally binds his principal.

But even if this position should be deemed untenable, there is another which, in my judgment, is sufficient, namely, that the paper imposes no obligation upon the claimants to deliver any mules at all. It is essentially unilateral — -a simple engage* ment to receive one thousand mules at certain prices, if deliv* ered on or before a certain day; an engagement wholly without consideration, because the claimants came under no contract to deliver any mules. No officer can bind the Government by such a contract, unless his authority therefor be clearly shown. The Government demands, and has a right to demand, mutuality in all its contracts; and an officer assuming to bind it is bound to see that there is a correlative obligation on the party with whom he deals; and that party is equally bound to see that he furnishes a consideration through such obligation on his part.

But there is still another test which, in my opinion, this paper cannot stand. If the claimants had failed altogether to deliver any mules on or before the 20th of April, 1865, and the market value of. mules had on that day gone up to $200 per head, could the Government have recovered from them, upon this paper, the difference between that sum and the prices therein named ? I think not. It seems to me clear that they would have two sufficient defenses: 1. That they did not engage to deliver any mules; and, 2. That they never signed the paper, as required by the statute in question, and therefore could not be charged by the Government, through an instrument which did not conform to the Government’s own requirement to give it legal validity. If these views be correct, then the conclusion is inevitable that the Government connot be charged as a party to a contract where the other party could not be.

10. There is still another and a broader view of this whole matter, which seems to me to leave no ground for this claim to rest upon.

The court finds that it does not appear that General Thomas gave any order to his chief quartermaster requiring “ the immediate procurement ” of one thousand mules for his army to meet a then present emergency. In the absence of such an order it is not for tbis court, nearly nine years after tbe supposed contract was entered into, to sustain it by finding that in fact an emergency did exist, authorizing the assistant quartermaster to make the contract without advertisement for proposals.

But, even if we might do so, I propose to show that there was on the part of Assistant Quartermaster Howland an utter disregard of the law governing the case, as found in the Act July 4,1864. There was not only no emergency calling for such action as he took, but, if the existence of such an emergency should be admitted, he apparently ignored the provisions of law applicable thereto.

That act divided the office of the Quartermaster-General into nine divisions, with a distinct head anda distinct charge to each, and provided that “ the first division shall have charge of the purchase, procurement, and disposition of horses and mules for cavalry, artillery, wagon, and ambulance trains, and all other purposes for which horses or mules may be procured for the armies of the United States.”

By the second section of the act, the heads of the said nine divisions were required, under the direction of the Quartermaster-General, from time to time to advertise for proposals for the supplies necessary for the movements of the several armies, posts, detachments, garrisons, hospitals, and for other military purposes$ and, by the third section, the Quartermaster-General was required to establish depots, at places convenient to the principal armies in the field, for receiving and distributing the supplies necessary .for such armies, where the principal business connected with receiving and issuing the same should be transacted; but the Quartermaster-General, or the head of a division, might cause such supplies to be sent from the place of purchase directly to the quartermasters of the commands for whose use they were procured, in any case where it might be more economical or advantageous to do so.

The fourth section then goes on to provide u that when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army, * * * ancl token such supplies cannot be procured from any established depot of the Quartermaster's Department, or from the head of a division charged with the duty of furnishing such supplies, within the required time, then it shall be lawful for the commanding officer of snob army * *' * to order the chief quartermaster of such army to procure such supplies during the continuance of such emergency, but no longer, in the most expeditious manner, and without advertisement.

From this language it is plain that, to make such an order lawful, the following circumstances must exist: 1. The described emergency; and, 2. The inability to meet it by procuring, within the required time, the needed supplies, either from an established depot, or from the head of the division charged with procuring and issuing supplies of that description. In other words, the intention of the law was that the meeting of an emergency should no longer rest in the uncontrolled and almost irresponsible discretion of a commanding officer; but that, before resorting to the exercise of mere military will and power, he should ascertain that the supplies could not be had in time from an established depot, or from the head of the proper division. Much more was this obligatory upon subordinates.

Assistant Quartermaster Howland seems to have proceeded in this business without the least reference to the requirements of this statute, or, indeed, any other. One day he applied .for and obtained authority to pay higher prices for mules than those previously xiaid, and the next day, without authority from any quarter and -without the knowledge of his superior, he agreed to receive at those prices one thousand mules any time within the next forty-two days, and that without at the time requiring the party to whom he gave his written engagement to deliver a single one. If such a transaction as this can be sustained, so as to impose a liability upon the Government for heavy damages, it must be without my assent.

In my judgment the claimants’ petition ought to be dismissed.

Loeing, J., did not sit at the hearing of this case, and took, no part in its decision.  