
    Frederick Z. Salomon v. The United States.
    
      On the Proofs.
    
    
      The claimant has a written contract duly made for the sale and delivery of corn to-the Qna/rtermaster-Department, hat the time in which it should he performed has expired. A parol agreement is then made hy him with the chief quartermaster of a department, to the effect that he may deliver the balance remaining due wilder the contract. Se accordingly places go'od, sound, merchantable corn in a Government warehouse, and leaves it to await inspection. A clerk of the chief quartermaster examines it, and gives the claimant a receipt. The claimant presents the receipt to the chief quartermaster, and receives from him a vouchei' in the ordinary form, which ascribes the sale and delivery to the 
      
      written contract. Some of the corn is then fed, to the Government teams, at the point of delivery, and some is carried to a post 150 miles distant. It is discovered that all of the corn was not needed at the post where it was delivered, and its maturity tohen delivered is a subject of dispute. The claimant loses all of the corn, andhrings his action for the agreed price under theioritten contract, and upon the voucher given to him.
    
    A parole agreement ■with, tlie chief quartermaster of a military department for the sale and delivery of corn, there being neither previous advertisement nor a public exigency, is in direct antagonism to three acts of Congress, and void; and the contractor cannot recover for the corn delivered, even though it was accepted by the quartermaster’s agent, and a portion of it transported to another place; but he may recover for so much as was actually used -in the Government’s service.
    
    
      Mr. T. J. D. Fuller for the claimant:
    This suit is brought on a quartermaster’s voucher, delivered to the claimant by Captain Turnley, dated October 15, 1805, for the sum of $4,116.20.
    The consideration of the voucher was the delivery of thirty-seven thousand four hundred and thirty pounds of corn at Camp Fillmore, at eleven cents per pound, about the 1st of October, 1865, in fulfillment of a contract made in July, 1864, between Captain Mullin, assistant quartermaster, and the claimant.
    Under the rules of this court the claimant, by way of inducement merely, has set out this contract in his petition. But he relies and declares upon the voucher as the basis of his claim. The voucher upon its face expresses that it was given in fulfillment and in extinguishment of the contract.
    Hananer, the agent of the claimant, informed Turnley, at the time of the demand, that he would have to deliver new corn, and there would be danger of its injury if piled in considerable quantities. Turnley replies, “No matter, as it is wanted for immediate use; and if I receive it, and receipt for it, it will keep Salomon harmless.”
    The question is, did the claimant deliver such corn as his agent, Hananer, in his agreement with Turnley, promised to deliver, and did Turnley, by Ms agent, Butter, accept it, with the knowledge, or the means of knowledge, of the quality of corn delivered?
    
      1. There can be no fraud imputed, or scienter shown, because claimant was in Europe. Hananer, his agent, never saw the corn.
    2. The corn was delivered upon the new verbal agreement between Hananer and Turnley, made in 1865.
    3. There was no warranty as to the quality of the corn delivered.
    4. After the acceptance of the corn by the Government, and giving the voucher or receipt for it, claimant paid for the corn the same price the Government promised to pay him, without notice of any dissatisfaction upon the part of the Government.
    5. The Government, by receiving the corn, using a part of, it, and hauling the balance one hundred and fifty miles from the place of its delivery, cannot rescind the contract, even if it should be shown the article delivered was inferior to the quality promised to be delivered.
    The authorities distinguish between a warranty of quality and a description of quality. In the former case, the warranty is a part of the contract, continues after the delivery and acceptance of the article, and attaches to the subject-matter of the contract.
    In the latter, the delivery and acceptance and use of the article, with due knowledge of its quality, discharges the contract by its acceptance.
    ■ 6. The Government is estopped by its own conduct from claiming a reduction in price, or refusing to pay for the corn delivered. Judge Kent says, (vol. 2, p. 376,) “a contract made and executed cannot be rescinded without mutual consent, if the circumstances be so altered, by a part execution, that the parties cannot be placed statu quo ; for if it be rescinded at all it must be rescinded in toto
    
    The corn was placed by Faquín in the Government jacal. The title of the property did not vest in the Government until its acceptance. It had ample opportunity to examine the corn before accepting it. It did so; it used it, fed from it, hauled it away. Turnley had taken up the property, and made his return of it as returned property.
    Subsequently, under these chan ged circumstances, it is sought to rescind and repudiate the contract, throwing the property back upon the hands of the claimant.
    Under these circumstances it cannot allege fraud, for it does not exist. It cannot show failure of consideration. It does not show any warranty of quality. It was not a sale by sample.
    If the money had been paid for the corn, it is contended, upon the facts here shown, the money could not be recovered back. Nor can the United States maintain successfully an action on a warranty of quality. Nor can,it now, in an action for the price, avoid payment or show failure of consideration in whole or in part; nor rescind the contract in part and affirm it in part. The giving the voucher is like the giving of a note, upon settlement of a bill of sale.
    
      Mr. Assistant Attorney-General MeMichael for defendants.
    
      Finding of fact by the Court.
    
    ■ “ 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, 1865, 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 shrivelled and some portions had rotted and others were mixed with dirt; whereupon the defendant’s disbursing officers refused to pay the vouchers held by the claimant, and the quartermaster tendered to him at Denver the portion of the corn transported there; but the defendants did not • return or offer to return the same to Camp Fillmore. The Government-storehouse at Camp Fillmore in which the corn was kept after the delivery, was defective and leaky and the corn was injured while there. But it was good merchantable corn when it was placed there by the claimant.”
    
      
      The diversity of tlie opinions in tbis case, renders an analysis of the decision exceedingly difficult. The point stated by tbe reporters may be an imperfect and incorrect exposition of the ease.
    
   Drake, Ch. J.,

delivered the following opinion :

Upon the facts found by the court, my views are as follows:

The claimant’s case is presented ,on two theories, one contained in his petition, and the other in the brief of his counsel.

The former proceeds upon the contract of July 28, 1804, entered into between the claimant and Captain Mullin, assistant quartermaster, and annexed to and made part of the petition; under which the claimant’s petition avers “that he delivered at Camp Fillmore, in tbe month of September, 1864, sis hundred and forty-nine bushels of corn, of the weight, character, and quality specified in said contract, in sacks, to the proper officer at said post authorized to receive it for the United States, and the same was duly examined and inspected by a proper officer of the United States, and found to be conformable to said contract, and was accepted by the United States in fulfillment of said contract. And the officer not having funds in his hands at the time of delivery to pay for the same, on the 15th day of October, 1865, a voucher, in the customary form of quartermaster’s voucher, was made out by Captain F. T. Turnley, of the United States Quartermaster’s Department, for the sum of $4,116.20, in payment for said corn, and delivered to petitioner, whereby the United States became liable to pay the amount of said voucher to petitioner.”

The other theory of the claimant’s ease, as stated in his counsel’s brief, is, that the contract was set out in the petition by way of inducement merely; that he relies upon his voucher as the basis of his claim; that the voucher was issued in pursuance of a new and independent agreement; and that the defendants cannot now, after the delivery of the corn, set up the old contract.

Upon neither of these theories, in my opinion, can the claimant recover the amount of that voucher.

If his case is rested on the theory of a new and independent agreement, in pursuance of which the voucher was issued, such agreement is in direct antagonism to three acts of Congress, viz: 1. The tenth section of the Act March 2d, 1861, (12 Stat. L,, 220,) requiring all contracts for supplies to be made after advertising therefor, unless “immediate delivery is required by the public exigency;” 2. The fourth section of the Act July 4th, 1864, (13 Stat. L., 396,) vesting in the commanding officer of an army or detachment the power to order the chief quartermaster thereof to procure the supplies to meet an emergency requiring their immediate procurementand 3. The first section of the Act June 2d, 1862, (12 Stat. L., 411,) requiring all contracts to be reduced to writing, and signed by the contracting-parties.

It is clear that if the corn in question was delivered by the claimant outside and independent of the written contract sued on, then it was delivered under a parol agreement with an assistant quartermaster, without any authority from the commanding officer of the army or detachment with which he was connected, and without any emergency being shown, and without the contract being reduced to writing. The contract was therefore void. {Renderson1 s Case 4 C. Cls. B., 75; McKinney's Case, ibid., 537.) The second theory is, therefore, la my opinion, untenable.

I hold, therefore, that the corn, if delivered at all, was delivered under the written contract sued on. But in my view there was no delivery in accordance with the terms of that contract. Though it was put into the G-overnment store-house at Camp Fillmore, yet it was not delivered to, nor received or inspected by, the commanding officer at that post, or by any officer of the United States, before it was placed therein; and its deposit there by the claimant or his agent, without the authority, inspection, or knowledge of the commanding officer of the post, or any other officer, imposed per se no liability upon the Government for it or its custody.

Therefore, whichever theory is. relied on, no action exists against the Government for the whole quantity of 37,420 pounds of corn mentioned in the voucher.

The claimant,however, insists that the execution and delivery to him of the quartermaster’s voucher for that quantity concludes the defendants. This court has not at any time ac-accorded to such vouchers any greater weight and effect than as prima-faeie evidence that their statements are true. This view was taken in Parish's Case, (2 O. Cls. B., 341,) and, in my opinion, is the true view.

As such evidence, it is, I consider, wholly overthrown by the other evidence in the case. In point of fact, as has been shown, the corn was not delivered in conformity with the contract, and the voucher was issued upon the faith of the receipt given for the corn by the quartermaster’s clerk, and presented to the quartermaster by the claimant or his agent; and the quartermaster, when he issued it, was ignorant of the facts which have appeared here, and which afterward became known to him, and upon learning which he ordered the voucher to be canceled. The voucher, therefore, concludes nothing against the defendant.

If, therefore, the claim were to be decided upon as a whole, it ought to be rejected as a whole.

But it was held by this court in Lindsley's Case, (4 C. 01. B., 359,) andin BxireMel’s Oase, (ibid., 549,) that tbe actual delivery of goods to, and acceptance and use thereof by, tbe Government, under a void contract, created an implied obligation to pay tbe value of tbe goods so delivered and used; and I bave no doubt as to the correctness of that view. I therefore consider that tbe claimant ought to recover the value of so much of tbe corn placed in tbe Government store-house at Camp Fillmore as was actually used by tbe Government.

That quantity appears only in tbe voucher jbr 5,991 pounds, which was made out and offered to claimant, and which he refused to receive. The defendants have admitted the use of that much, and the claimant has not proved the use of more. For that quantity, at the admitted price of eleven cents per pound, amounting in the aggregate to $659.01, judgment should be entered.

Milligan, J.,

concurring:

I assent to the judgment in this case, but upon entirely different grounds than those upon which it is placed in the opinion just read. The written contract was made and entered into by the claimant and Captain Mullen, the predecessor of Captain Turnley, on the 28th July, 1864, which, by its own terms, expired four or five months before the corn involved in this controversy was delivered. The order on which it was delivered was given by Captain Turnley, but with no reference whatever to Mullen’s contract. On the contrary, he expressly disclaimed its existence, and stated that it had long since expired. After this disclaimer, as I understand the record, there was no valid recognition of its vitality by either party, and the claimant’s counsel now puts the case éxpressly on the subsequent parol agreement, and rejects the former written contract.

At law the time for the performance of a contract is deemed of the essence of the contract, although a court of equity, in proper cases, will carry the agreement into execution after the time appointed for its fulfillment has expired; but this is not done without the concurrence of both parties at law. (2 Sch. & L., 347-684; Bank of Columbia v. Hagner, 1 Pet., 455, 465; also, Chitty on Contracts, p. 799, and Story on Contracts, § 971.)

There is, I admit, a class of cases of which Ciarle’s Case, decided by the Supreme Court, (ante p. 24) is an example, in which tbe contract itself declares no penalty for its non-performance within tbe time stipulated, or authorizes the defendants to forfeit or terminate it; that nothing but damages can be claimed' by the Government, which tbe claimant’s bond for performance is executed to secure. But this case is widely different from the case in hand. It contemplates the regular continued efforts of tbe plaintiff to perform Ms contract after tbe lapse of tbe time appointed for its fulfillment, with the implied assent and acceptance of such performance on the part of tbe Government, which waives tbe claim for damages and continues tbe existence of the agreement$ while, in tbe case under consideration, tbe work of performance bad ceased for months, and tbe contract became absolutely extinct — utterly dead — and it cannot, as I think, be again, at the mere pleasure of the parties, resumed and vitalized.

Quartermasters are but special agents of the Government, with all their powers limited by law, which is presumed to be as well known to the party dealing with them as to the agents themselves. Both* are charged with notice of tbe law, and bound by its provisions. The power to revive, by parol, an extinguished contract, implies tbe i>ower to make a new one in tbe same way. The admission of authority in the one case carries tbe right in tbe other, and defeats tbe terse and salutary provisions of tbe Acts March 2, 1861, (12 Stat. L., 220,) June 23, 1862, (12 Stat. L., 411,) and July 4,1864.

In this view of tbe case, I hold, tbe contract on which tbe corn was delivered was a new and independent agreement, resting wholly in parol, and without any exigency, either in fact or by the declaration of the commanding officer, to support it. The case, so far as it rests on the parol agreement, falls within tbe principles of Henderson's Case, (4 O. Gis. B., 75,) and must be ruled by it.

But I yield to the judgment of tbe court, because it rests on the value of tbe corn actually received and used by the Government, and tbe law in all such cases implies a contract to pay for what it has used.

Boeing-, J.,

concurring:

In this case I find the facts tó be that a contract was made between the petitioner and the United States, by due authority and in due form, for tbe delivery witbiu a time specified of a specified quantity of “ matured corn? That the corn was not 'delivered within the time specified, and was not “matured corn,” nor in conformity with the contract. That it was not accepted by the United States under the contract, but that a small part of it was used from necessity, and because no other could be had on that frontier post. And for this, according to previous rulings of this court, the claimant is entitled to be paid.

Nott, J.,

dissenting:

It has been the misfortune of that branch of public justice which is administered only by means of this court, that statutes enacted before the court existed have entered into and bound the judicial relief which it decrees; that provisions scattered about through various acts of Congress, designed originally to assign powers and duties among public officers and regulate their official action, have become obligatory as a part of the law of the land upon every man having commercial dealings with the Government.

Thus one statutory provision enacts, that no contract or purchase shall be made “ unless the same he authorized hy law, or he under an appropriation adequate to its fulfilment,” {Act 2d March, 1861,12 Stat. L., p. 220, § 10 ;) another, that “ all purchases and contracts for supplies or services,” 11 when the public exigencies do not require the immediate delivery,v shall he made hy advertising a sufficient time previously for proposals,” (ibid.;) a third, that when a military emergency exists “ requiring the immediate procurement of supplies for the necessary movements and operations of an army,” the emergency must be declared by the commanding officer, and then the chief quartermaster may “procure supplies during the continuation of such emergency, hut no longer,” (Act Ath July, 13 Stat. L., p. 394, § 4;) a fourth, that every contract in some of the Executive Departments must “ he reduced to ivriting and signed hy the contracting parties with their names at the end thereof,” (Act 2d June, 1862,12 Stat. L., p. 411, § 1;) a fifth, that no “ contract,” nor “ any interest therein, shall he transferred,” and that “ any such transfer shall cause the annulment of the contract,” (Act 11th July, 1862,12 Stat. L., p. 596, §14;) a sixth, that “ all transfers and assignments ” u of any claim tipon the United States, or any part or share thereof, or any interest therein,” shall he absolutely null and void,” unless tbe same be made and executed at a time and in a manner pointed out by tbe statute; and all of these statutory provisions have been found fatal to causes of action which, as between man and man, would have been adjudged meritorious and valid.

Immediately after the xe-organization of this court it was supposed that the rule regarding the effect to be given to a contract with the Government is the same as between individuals. (Gilbert & Seeor’s Case, 1 0. Cls; It., p. 28.) But, subsequently, in the Floyd Acceptance Case, (ibid., p. 270,) it was held that there is this difference between individuals and the Government ; that the former are liable 'to the extent of the power that they have apparently given to their agents, while the Government is liable only to the extent of the power it has actually given to its officers. The Supreme Court, in the same case, pushed this doctrine further, and held, though by a divided court, that uour statute-books are filled with acts authorising the malting 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 Ms contract comes within the terms of the law.” (7 Wall. B., p. 680.)

The citizens of the United States live and move under their respective State laws and know little of the Federal statutes; but under this decision of the Supreme Court, ignorantia legis exeusat neminem; the officers of the Government are but special agents with but limited powers and circumscribed discretion ; special agents cannot vary their instructions nor exceed their authority; the instruction and authority are written in the statute-books, and the person who would enter into a contract with the officers of the Government “must look to the statute under which it is made and see for. himself that his contract comes within the terms of the law.” And thus it comes that a laborer who has chopped wood for. the Government cannot recover the contract price because his contract was not in writing, (Henderson’s Case, 4 O. Cls. If.., p. 75;) that a farmer who has sold and delivered hay must lose it because he had before performance transferred an interest in the contract, (Wamless’s Case, 6 C. Cls. B., p. 123;) that a builder who has built barracks for the army should not be paid because he dealt with an officer of engineers instead of an officer of tbe Quartermaster Department, (Travers’s Case, 5 C. Ols. It., p.329;) that a contractor who furnishes fuel for the troops should not receive the price of it because the military emergency that required it was not declared by the commanding general, (MeKenney’s Case, 4 0. Ols. B>., 537;) that a grain-dealer who has delivered his corn to a quartermaster must stand the loss of its destruction in the hands of Government officers because his agreement was not founded on advertisements and proposals. (Adams’s Case, ante, p. —.)

These are cases of extreme hardship, but they do not illustrate the ruinous effect of these statutes upon contracts and transactions meritorious and just in themselves, more completely than the case at bar.

The only point determined by the decision — that is to say, the only point in the case upon which the majority of the judges who pronounce the judgment are agreed — is that the claimant cannot recover upon his'theory of parol agreement, consummated by performance on the .one side and the giving of a formal official voucher on the other. The facts upon which the claimant presents his theory of the case, and upon which that point of the decision rests, are these: A citizen of the United States in good faith agrees, not with some irresponsible subordinate unauthorized agent, but with the chief quartermaster of a great military department, for the sale of six hundred bushels of corn. The contract is not in writing, but by parol. Its object is not unlawful, but to support the wagon trains of the Government engaged in moving military material. The citizen, in good faith and within the prescribed time, delivers the six hundred bushels of corn at the appointed place. It is found by the court to be good, sound, and merchantable corn, and, moreover, it remains for three weeks in a Government warehouse, awaiting Government inspection. At the end of that time the chief quartermaster sends his clerk to examine it, with authority to accept it. The clerk weighs it, accepts it, and gives to the vendor a receipt for it. The vendor carries the receipt to the chief quartermaster, who ratifies the action of the clerk by issuing a formal official voucher, at the agreed price, which, moreover, is the fair market value of the article. The corn, meanwhile, goes into the actual possession of the Government’s agents; some is fed to the Government teams; some is destroyed by tbe leaking of tbe Government warehouse ; none is ever returned to tbe vendor, though a portion of it, spoiled and worthless, is tendered to him at a point one hundred and fifty miles distant from the place of sale and delivery. And upon this presentation of the case a majority of the judges hold that the citizen’s claim for recovery “ is in direct contravention to three acts of Congress.”

Wherefore I conclude that if a cause of action so just, so simple, and so completely established by well-settled principles of mercantile law, cannot be maintained against the Government when the Government goes into the market and has commercial dealings with its citizens, but, against all received principles of law and morality, is barred by no less than “three” acts of Congress, the time has come when Congress should radically reform the statute law of the United States.

The doctrine laid down by the Supreme Court that uour statute-books are filled with acts authorizing [“restricting” would be the better word] the making of contracts with the Government, 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 within the terms of the lato,” may be well enough as an abstract theory, but the practical operation of these statutes is such that the wary can take advantage of the unwary; that the citizen finds in them, instead of protection, a snare, and that they fail to accomplish the purpose of securing safety and justice which is the purpose of all laws.

If doubt can still exist as to the necessity of statutory revision, a conclusive demonstration is afforded by those cases which have been reviewed by the Supreme Court. They may be taken as a type of the whole in the first place; and, in the second place, are unquestionable expositions of the existing law, in being decisions of the court of last resort. The whole number of decisions thus far rendered (putting aside the abandoned or captured-property cases, which rest on special legislation) is thirty-nine. Of that large number there are but three reversals against the Government, (Wm. Clark, ante, p. 24;. Garrison, p. 78; Reeside, p. 89;) and but three affirmances in favor of the claimants, (Hosmer, p. 141; Russell, p. 227; Burns, p. 219.) Of those thirty-nine decisions, twenty-nine give judgment against the claimant by decrees absolute and final, (DeGroot, p. 2; Alire, p. 27; Adams, p. 58; Dorsheimer, p. 43; Floyd Ac ceptance Cases, p. 65; Gordon, p. 46; Grant, p. 53; Kellogg, p.56; Kendall, p. 33; Nicholl, p. 36; Gilbert & Secor, p. 113; Gilmore, p. 109; Lane, p. 97; Parish, p. 110; Stansbury, p. 87; Bonner, p. 133; Filor, p. 119; Meade, p. 161; Merrill, p. 155; Mahoney, p. 183; Ward, p. 187; Reed, p. 195; Clark & Co., p. 32; Child, Pratt & Fox, p. 158; Wormer, p. 257; Clyde, p. 262; Perrin, p. 223; Scott, p. 224; Alexander, p. 205;) only six are in favor of the claimant, [Garrison,Peeside, Speed,Bosmer, Pussell,and Burns; two are in the nature of a venire de novo, Wm. Ciarle, p. 24; Tillou p. 18;) and two affirm judgments nominally in favor of the claimants, but substantially in favor of the Government, (Gibbons, p. 105; and Kimball, p.234.)

It may also be observed that these thirty-nine cases fall into three classes:

1. There are twelve cases of a character not strictly identical with ordinary actions on contract — suits brought by soldiers for pensions, by officers for pay — depending on statutes rather than on transactions. Of these, eleven decisions are for the Government, and one for the claimant.

2. There are fourteen cases decided on what may be termed ordinary legal principles, i. e., applicable to suits where the Government is not a suitor, and, of these, nine are for the Government, and five for the claimants.

3. There are thirteen cases, all of which are for the Government, where the decisions avowedly stand on the ground that the defendant is the Government; that is to say, they are eases where a plaintiff suing an individual in an ordinary court of law or equity might obtain legal redress; but where a claimant suing the Government is without legal redress, either because the judiciary of the United States are without adequate jurisdiction, or because the Government, as a contractor, possesses powers and immunities that could not be maintained were the Government an individual or a corporation.

For my own part, I think that this ease will render res judicata every construction of these statutes tending to destroy ordinary agreements with officers of the Government. Believing that what is res judicata is law, and agreeing with the President that the rigid enforcement of bad laws is the surest method to secure their repeal, I shall offer hereafter no opposition to the application of these decisions to other cases, nor hesitate to carry out tbeir doctrine to the inevitable consequence.

There is also an early statute “ concerning public contracts,” which prohibits members of Congress from holding or enjoying uin whole or in part” any contract with the Government, and which expressly provides that every contract in which a member of Congress participates shall be “ absolutely void and of no effect.” The same statute then declares that in every contract made by officers of the Government on its behalf, u there shall be inserted an express condition that no member of Congress shall be admitted to any share or part of such contract or agreement, or to any benefit to arise therefrom.” (Act 21 st April, 1808, 2 Stat. L., p. 484.) This statute has never been brought before the present court, and seems to have escaped the vigilant attention of the Attorney-General. I perceive no distinction in principle between it and others that have been held to be mandatory upon the contractor, and not merely directory to the agents of the Government. On the contrary, the statute appears to me to be more clearly mandatory than any of the others. The contracts which it is directed against are declared to be “ absolutely voidf and future contracts were required to contain an express provision that no member of Congress should be subsequently admitted to any share therein. Such a provision thus inserted would bind the contractor and not the officer. It would form the contractor’s agreement not to admit members of Congress to a participation in his contract. The statute, according to the construction given to other statutes, says to the contractor, “The Government will not enter into an agreement with you, unless you will agree that no member of Congress shall, directly or indirectly, become a beneficiary under the Government.” And, in consonance with previous decisions, we must hold that no officer of the Government can waive this condition, and that every person dealing with the Government has received through the statute notice of the limited.authority of the officer and the absolute necessity of the condition. When that statute shall be thus enforced, the cordon of statutory defenses will be complete.

So far as this case is concerned, my conclusions are:

1. That the contract, being unfulfilled, it was competent for the defendants’ agents to waive the forfeiture by lapse of time, under the decision of this court in Lester1 s Case, (1C. Ols. R., p. 52,) and of the Supreme Court in Clarlc’s Case, (6 Wall. B., p. 543.)

2. That the parties mutually referred the delivery of the corn to the written contract ■ both before and after the transaction, and it being perfectly legal and proper for them so to do, the sale, as a delivery under the contract, should be sustained.

3. That when the claimant delivered “ good, sound, merchantable corn” at the agreed place, and left it in the Government warehouse for inspection, he had fully performed all that the contract required him to do, and that the defendants were bound within a reasonable time to inspect the corn, and notify the claimant of its rejection, if it were rejected.

4. That in either alternative, whether the corn was delivered under the old express contract or under a new parol agreement, the defendants did, in law, accept it when their agents toot it into their actual custody, and put it to the use of the United States, so that the vendor could not reclaim it as his own; and the use of a portion of the corn in the military service of the defendants, and the transportation of the larger part of it one hundred and fifty miles from the place of sale and delivery by their officers and agents, confirms the acceptance of the whole, and establishes, so far as the vendor is concerned, the user of the defendants.  