
    FLOYD AND SPEED’S CASES. Robert Floyd v. The United States. J. Smith Speed v. The same.
    
      On the Proofs.
    
    
      A commissary of subsistence, acting with the knowledge of the Commissary General and of the Secretary of War, contracts with a party to slaughter and pack 50,000 hogs, for which he is to receive 92£ cents per 100 pounds net of meat. The defendants furnish only 36,177 hogs. •
    
      The contract is in terms made subject to the approval of the Commissary General. It is not transmitted to him for approval, but he is informed of its contents and provides funds for camying it into effect.
    
    
      The contract is not made by the advertisement prescribed by act of March 2, 1861, (12 Stat. L., p. 220,) and no 1 ‘public exigency ” requiring immediate performance is shown.
    
    I. Tlie commissary department, under acts April 14,1818, (3 Stat. L., p. 426,) and March 2,1861, - (12 Stat. L., p. 220,) is authorized to slaughter and pack pork for the use of the army ky contract.
    II. When there is no legal necessity for the approval of a contract by the Commissary General of Subsistence it need not be transmitted to hijn; and though it be made in terms subject to his approval, yet his approval maybe inferred from his letters and acts, and need not be indorsed formally upon the contract.
    III. An agreement by one of theparties to a contract ‘1 to slaughter, dress, cut, pack, and cure into pork or bacon fifty thousand hogs," and to “ receive therefor the sum of 92& cents per 100 ' pounds net of hog meat” from the other party, in the absence of anything evincing adif-ferent intent, implies an agreement by the latter to furnish that number to be slaughtered, &c.
    IV. The measure of damages for the refusal to furnish for the slaughtering the whole number of hogs stipulated by a contract is the clear net profit the contractor would have made if the whole number had been delivered according to the contract. And such profit is the difference between the amount which it would have cost the contractor to do the work and the amount which he was to receive for doing it, less the worth of the time, risk, and responsibility from which he is relieved by the rescission of the contract.
    
      V. Upon the question whether a contract for the subsistence of the army shall bo adjudged valid which was made by an officer acting under the authority of the Commissary General, but without advertising, as prescribed by the act of March 2,1861, (12 Stat. L., p. 220,) and when no “public exigency ” required an immediate performance, the courtis divided.
    Messrs. Hughes, Denver & Pecic for claimant :
    This is a case brought into court by original petition, and is founded upon a written contract made bétween the claimant and Major Henry C. Symonds, commissary of subsistence, for slaughtering 50,000 hogs. The price to be paid by the United States was 92¡!¡ cents per hundred pounds, or $1 90 for each hog of 207 pounds. The claimant, in order to fill the contract, hired two large pork-houses in the city of Louisville ; employed a number of competent experts and laborers to do the work, and kept himself ready during the packing season to fill the contract. The United States furnished, under the contract, 16,177 hogs, which were all killed and packed by the claimant in a satisfactory manner, and be has received his pay for these at contract price. This action is brought to recover the damages caused to the plaintiff by the government failing to furnish the balance of 33,823 hogs to be slaughtered.
    The law in relation to the damages in this case is very fully considered in Sedgwick on the Measure of Damages, chap. 3, pp. 69 and following, to which we refer. The leading case upon the subject is that of Masterton v. The Mayor of Brooklyn, 7 Hill, 62. The opinion of the court was delivered by Nelson, C. J. After commenting upon speculative and remote damages, he says :
    “ But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties stand upon a different footing. These are part and parcel of the contract itself, enter: ing into and constituting a portion of its very elements — something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfilment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed perhaps the only inducement to the arrangement.”
    This case has been expressly affirmed by the court of appeals, in the case of Story v. The New York and, Harlem Railroad Company, 1 Seldon, 85.
    In the case of The Philadelphia and Baltimore Railroad Company v. Howard, (13 Howard’s S. C. E., p. 344,) the same rule was laid down:
    
      “ We bold it to be a olear rule that tbe gain or profit of wbicb tbe contractor was deprived by tbe refusal of tbe company to allow him to proceed with and complete the work, was a proper subject of damages.”
    In tbe case of Moore and Boice, beard by this court in April, 1864, tbe claimants bad entered into a contract with tbe War Department for carrying government stores across tbe plains. Tbe Secretary of War having refused to recognize tbe contracts of tbe claimants as a valid agreement, they brought suit to recover tbe damages they bad sustained by reason of the refusal of tbe Secretary of War to allow them to perform the service and receive the compensation under their contracts. These damages they alleged were the profits which they would have realized if they bad been permitted to perform the service stipulated, or, in other words, tbe difference between the cost of performing it to them and the amount they were to receive for it under tbe contract. Casey, C. J., who delivered tbe opinion of tbe court, said : “ A majority of tbe court coincide in tbe following conclusions:
    # # He #
    “ 3d. That the measure of damages for such violation is tbe clear net profits tbe claimants would have realized if they bad been permitted to perform tbe contract, or tbe difference between what it would have cost them to perform tbe service and tbe amount they were to receive for it.”
    Tbe principles stated in these authorities wbicb we have cited have been uniformly recognized and adopted by tbe courts in this country and in England. We refer the court to the following cases :
    
      Chamberlin v. Scott, 33 Vt., (4 Shaw,) 80; Royalton v. Turnpike Company, 14 Vt., 311; Clark v. The Mayor, fyc., of New York, 4 Comst., 338; Story v. New York and New Haven Railroad Company, 2 Seld., 85; Durhee v. Mott, 8 Barbour, 423; Clark v. Marsiglia, 1 Denio, 317; Shannon v. Comstock, 21 Wend., 457; Hay v. Gronoble, 34 Penn. St. R., 9 ; Miller v. Mariners’ Church, 7 Greenl., 51; Shaw v. Nudd, 8 Pick., 13 ; Swift v. Barnes, 16 Pick., 196; Haggin v. Price, 8 Dana, 48; Thompson v. Jackson, 14 B. Mon , 114 ; Western v. Sharp, 11 B. Mon., 177 ; Palmet al. v. Ohio and Mississippi Railroad Company, 18 Ills., 217; County of Christian v. Overholt, 18 Ills., 223; George v. Cahawba Rctilroad Company, 8 Ala., 234; Cunningham v. Dorsey, & Oal., 19; Diboll v. Minott, 9 Iowa, (1 With.,) 403 ; Tait v. Sherman, 10 Iowa, (2 With.,) 60 ; Hadley v. Baxendale, 9 Exch., 353.
    
      The Assistant Solícitos for defendants :
    The questions presented by the facts developed in this case are as follows :
    1st. Was the contract upon which this suit is instituted binding upon the United States ?
    2d. If said contract was and is binding- upon the United States, what number of hogs were they bound to furnish to the claimant to be slaughtered under the provisions of said contract %
    
    3d. What is the measure of damage the claimant is entitled to recover if he has judgment in this proceeding 1
    
    It will be observed that this contract was made “ subject to the approval of the Commissary General of Subsistence.” That he never-had an opportunity of approving or knowing the provisions of this contract the evidence clearly shows.
    The approval of the Commissary General was essential to the validity of this contract.
    The mere fact that the Commissary General was passive, and made no objection to the acts of Major Symonds, is not sufficient evidence of his assent or approval of this contract. He could not approve its provisions because it was not submitted to him, and until it was submitted to him he was not called upon to object to its provisions. It is only in cases where it is incumbent upon a party to express his dissent that his silence will be construed as assenting to the provisions of a contract. (Story on Contracts, § 379, p. 297 )
    This contract did not become binding upon the United States until the assent to its provisions had been given by the Commissary General.
    The general rule upon this subject is well announced by Addison in his work on Contracts, page 24, where he says :
    “ If the terms of a contract founded upon mutual promises have not been finally agreed upon, if either party withholds or has not given his full assent to them, the contract is incomplete, it binds neither of the parties, and can give rise to no came of action.”
    
    He cites, in support of this proposition, the following authorities : Rutledge v. Grant, 1 M. and P., 717; 4 Bing., 653; Roe v. Cartwright, 3 B. and Aid., 327; Cope and Alburson, 8 Exch., 185.
    This contract was not sanctioned either by law or army regulations. By section 1178, article 43, Revised Army Regulations, 1863, page 241, it is provided that purchases of subsistence stores for the army shall be procured under written contract with suitable bonds, made with the Commissary General or other authorized officers of the Subsistence department.
    The 1179th section of said article of the army regulations is as follows :
    “ Contracts for subsistence stores shall be made after due public notice, and on. the lowest proposal received from a responsible person who produces the required article. These agreements shall expressly provide for their termination at such time as the Commissary General may direct,” &c.
    None of the provisions of the army regulations contemplate contracts of the character attempted to be made by Major Symonds with this claimant.
    We have not deemed it important to examine the question of damages in this case, as it is believed that, for the sufficient reasons herein-before stated, said contract never became binding upon the United States, and that therefore the claimants cannot recover in this proceeding.
   Casey, C. J.,

delivered the opinion of the court:

Some time in September, 1864, Major Henry C. Symonds, commissary of subsistence at Louisville, Kentucky, was directed by General Eaton, Commissary General of Subsistence, to inquire into the feasibility of purchasing hogs and slaughtering them on behalf of the United States, to furnish pork for the army. On the 14th and 16th days, respectively, of the same month, Symonds made his first report on the subject, accompanied with a detailed statement. On the 21st General Eaton wrote to Symonds that his letters had been received and referred to the Secretary of War, with a recommendation that Sy-monds be authorized to purchase, cure, and pack pork, bacon, See., as proposed ; and that the Secretary of War had approved of the measure. The letter added :

The details of the business are left to your discretion. As it is an experiment that may not turn out to meet your and my anticipations, it is not desirable to arrange the matter for permanence, nor for .a very heavy pack. I advise that you aim not to exceed, say, twenty thousand hpgs, until considerable progress shall demonstrate the entire ‘feasibility and advisability’ of the measure’'’

On the 13th October Major Symonds wrote to General Eaton, detailing his negotiations with the various packers, the offers that were made, and the combinations that had been formed to extort very large prices from the government. He also refers to tbe fact of having commenced negotiations with the claimants in these cases. On the subject of the number of hogs to he slaughtered and contracted for, he says:

“ I can readily get 100,000 hogs in Kentucky, and hy General Bur-bridge’s order control the whole price and movement of them in Kentucky ; whereas, if I undertake only 20,000 or 30,000,1 will he easily outstripped by the pork packers, who, hy my present plan, will have hut little to do.”

On the 14th October Major Symonds again wrote to the Commissary General. The following extracts contain all that is deemed important in this letter:

“For 100,000 hogs, the difference between the best of my first offers and the present one, there is about $175,000 in favor of the United States, and 1 do not believe I can- do any better than this. I had no idea of the difficulties and complications, and as soon as these wealthy semi-loyal parties find that their occupation for this season is about gone, they will compass everything-to break it up. * * *

“ They claim that reasonable packing profits are $1 per hog, at least. My arrangement gives no promise of over 40 cents, and the capital and risk are with that. I know I am about right in my measures.”

On the 17th October Major Symonds wrote again to the Commissary General, giving a general statement of the progress he is making. He says :

“ General : I find that I have outgeneraled the packers, and they do not seem to feel that any wrong has been done to them, but attribute their misfortune to their own greed, and they seem to agree that I have done the best thing possible. So I think my fancied danger from that source is passed.”

To these letters General Eaton replies as follows:

“Office Commissary General Subsistence,

Washington City, October 20, 1864.

“Major : I have received your several letters of the 13th, 14th, and 17th, together with the enclosures, on the subject of pork packing. The progress you have made appears to me to be very satisfactory, considering the difficulties you have encountered.

“ Captain Elderkin has been ordered to report to you, and I have today requested that Captain Bright may be so ordered.

“The whole subject of packing pork at Louisville is placed, subject to your direction, under the advice of Colonel Kilburn. It is a novel undertaking for tbe Subsistence department, but I expect from your zeal and devotion to tbe subject to realize satisfactory results.

“Very respectfully, your obedient servant,

«A. B. EATON, G. G. S.

“ Major H. 0. Symonds,

C. S., 77. S. A., Louisville, Kentucky.

“Note. — Do you wish any of tbe enclosed papers accompanying your letters to be returned ?

“A. B. E.”

On tbe 19th October Major Symonds wrote to General Eaton. Tbe following are extracts:

“ GENERAL: I send you a copy of a letter I wrote to General Bur-bridge, commanding district of Kentucky. So many of the country people are coming in to see me that I have not felt able to go and see him in person, but it may soon be possible. I find everything is going along most satisfactorily, but it will be necessary that I go into it so largely as to control the whole business in Kentucky, or I may yet be troubled.

“If General Burbridge concurs in my wishes — and I do not doubt he will — I will, by the 25th of November, be able to forward to the front at least 2,000 barrels pork daily, and so I do not think we need make any provision for this point beyond that date.

“ I have made contracts for killing at least 100,000 hogs, and have made arrangements for cooperage. The parties are going to work to get their houses in order, .and I think we will get at least 25,000,000 pounds meat, at not exceeding 15 cents per pound, in shipping order.”

On the 25th October Major Symonds enclosed to the Commissary General his estimate for funds, as follows :

“ General : I enclose you a special estimate for funds. I have made every estimate of cost as high as I think it can possibly 'be, and every estimate of sales as low as possible with such original cost; hence I am satisfied I give inside figures. These figures will give, say—

40,000 bbls. pork, at $33. ,11,320,000

3,000,000 hams, at 20 cents. 600,000

3,000,000 shoulders, at 6 cents ... 180,000 or 14,000,000 lbs. meat, at 17 y^g per pound.

“ I feel confident that the yield will be at least 15,000,000 lbs., at 16 cents.”

On the 4th November he wrote again, giving, in general terms, the progress in the matters of making contracts for hogs, and the prospects of the adventure. General Eaton replied to this letter on the 8th November, as follows :

“Office Commissary General of Subsistence,

Washington City, November 8, 1864.

“Major : Your letter of the 4th instant, relating to your progress, &e., in arranging for packing pork, &c., &e., has been received.

“ Your task is a very great one, and, it is to he supposed, attended with many difficulties. While you secure the interests of the government, let your general course of action and tone as a public officer be free from any show of a disposition to injure the business interests of other parties.

“ Our packing may interfere with the business of the regular packers ; this, however, is not our object nor our wish. If it incidently occurs, and we have conducted our business in a fair and unoppressive manner, reasonable people will not complain, and the government will sustain us.

“Very respectfully, your obedient servant,

“ A. B. EATON, C. G. S.

Major H. 0. Symonds,

C. S., U. S. A., Louisville, Kentucky.”

The contracts made by Major Symonds with the claimants were dated, respectively, 25th and 27th October, and were identical, except the names of claimants. The material parts of these contracts were as follows :

“First. That the said Robert Floyd shall slaughter, dress, cut, pack, and cure into pork or bacon, fifty thousand, (50,000) hogs, as follows, or otherwise, as the commissary of subsistence shall direct.

Second, That, for the purpose of carrying out this agreement, the said Robert Floyd shall provide himself with such buildings, pens, tools, water, and labor of every description as shall be necessary to perform the work in the most thorough and business-like manner, and they shall receive therefor from the United States, in currency or its equivalent, the sum of ninety-two and, one-half cents (92¿c.) per one hundred (100) pounds net of hog meat, the weight to he determined by weighing the hogs when cooled ready for cutting at the block.

Eighth. This contract to be subject to the approval of the Commissary General of Subsistence.”

The pork-packing season in the latitude of Louisville, Kentucky, commences about the 10th of November and ends about the 25th of December in each year. The claimants, Speed & Davis, sub-let their contract to Jarvis & Co., at a rate which secured to them from seventy to seventy-five cents for their time, trouble, and responsibility as the principal contractors. Mr. Floyd undertook to perform his contract himself. There were furnished to Speed & Davis, under this contract, seventeen thousand one hundred and thirty-two hogs, and to Robert Floyd sixteen thousand one hundred and seven hogs, all of which were slaughtered, packed, and cured as the contract requires. Finding hogs much scarcer and prices higher than had been anticipated would be the case, and that all the saving effected by curing would be more than counterbalanced by the increased price of pork occasioned by the government competition in the purchase of hogs, Major Symonds, with the approbation of the Commissary department, gave up the business and declined to furnish -any more hogs to either of the contractors. The proof is full and explicit that both of the contractors were fully prepared to slaughter and cure the maximum number of hogs mentioned in the contracts. All their arrangements had been made in contemplation of being furnished with the full number, and that the stoppage of the work by the United States entailed upon them a heavy loss. Speed & Davis, to avoid a lawsuit with their sub-contractors, settled with and paid them ten thousand dollars ($10,000) in damages.

Speed & Davis claim that they are entitled to recover from the United States the sum of twenty-four thousand six hundred and fifty-one dollars, ($24,651,) being at the rate of seventy-five cents on thirty-two thousand eight hundred and sixty-eight hogs (32,868) not delivered.

Floyd claims that his profits on ■ the thirty-three thousand eight hundred and twenty-three hogs (33,823) not delivered would have amounted to the sum of fifty-nine thousand six hundred and twenty-eight dollars ($59,628.) The parties respectively claim to recover the amounts stated.

The United States by their solicitors resist a recovery, in both cases, upon the following grounds :

I. That the contract is not binding on the United States :

1st. Because there was no authority of law for the Commissary department to enter into the business of packing and curing pork.

2d. Because the contracts expressly provided that they should be approved by the Commissary General, when in fact they were never so approved.

3d. Because no advertisements for proposals were published before ,the contracts were made, as the act of Congress and the army regulations require.

II. Because there is no covenant or engagement on the part of the United States to furnish and pay for the whole number of fifty thousand hogs mentioned in the respective contracts.

1st. The Commissary department is charged by law with the duty of procuring and purchasing supplies for the army, under the control and direction of the Secretary of War. The act of 14th April, 1818, (sec. 7, 3 Stat., 426,) enacts that “ supplies for the army, unless in particular and urgent cases the Secretary of War should otherwise direct, shall he purchased by contract, to be made by the Commissary General on public notice, to be delivered on inspection, in the bulk, and at such places as shall be stipulated, which contract shall be made under such regulations as the Secretary of War may direct.” The same act, (sec. 6) enacts, that “ the Commissary General and his assistants shall perform such duties in purchasing and issuing of rations to the army of the United States as the President may direct.”

The act of 2d March, 1861, (sec. 10, 12 Stat., 220,) provides 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 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.”

We do not think that these enactments limit the President to the simple right to direct and make purchases. We think the government has as much right to slaughter and pack pork for the use of the army as it has to buy beeves and kill them and distribute the meat in rations to the soldiers. This is done at all times, in every army, wherever practicable. There is no specific enactment authorizing either, but there is no prohibition. And wherever a duty is enjoined, the right to use all the necessary and proper means to perform it is implied. We find nothing in these enactments that, in our opinion, prevents the Commissary General, under the direction of the President, or Secretary of War acting in that behalf for the President, from lawfully entering into such contracts as those now before us.

2d. Was the condition that these contracts should be approved by the Commissary General either fulfilled or waived ?

Under the letters and instructions from the Commissary General to Major Symonds, given in evidence, in these cases, full power and authority to make the contracts had been conferred upon the latter.

There was, therefore, no necessity that such a provision should he inserted. Tet we think its requirements are fully met by the various letters and correspondence between Major Symonds and General Eaton, the Commissary General, cited above. In these Symonds communicates to General EatonS that he had made these contracts for one hundred thousand hogs, with the main provisions and an estimate for the money necessary to carry them out. By these letters and communications the Commissary General was nearly as well advised and informed of the nature and extent of the obligations Symonds had assumed on behalf of the United States as if the contracts had been laid before him. General Eaton’s letters, in reply, are as clear and distinct a recognition and approval of them as if indorsed upon the agreements themselves.

3d. Upon the necessity for an advertisement in cases of this kind, I have given my views fully in the recent cases of Reeside and others v. The United States. My views, as there expressed, remain unchanged. I think the officer charged with the duty of buying the supplies or making the contract — the President, Secretary of War, or general commanding — is, by the law, to judge whether the exigency does or does not exist. That the party from whom he purchases the articles, or contracts with for the service, cannot know the facts, and in most cases, as matter of public safety and policy, ought not to be informed of them. He is not therefore called upon at his peril to decide whether the urgent necessity — the public exigency contemplated by the acts of Congress — exists or not. The officer in resorting to the mode provided when no exigency exists — when there are no facts to justify him — may be guilty of a wrong, and punishable for it; but where there is no participation in the wrong by the contractor, no fraud and collusion by the claimant, the contract or purchase will be unaffected by the officer’s mistake or malfeasance. Some of my brethren, however, differ with me on this question, and hold that the court is to judge, in each case, from the evidence, whether there was such an emergency— such an exigency as authorized the contract or purchase without the advertisement.

Applying the various views of the judges in this case, one of my brethren holds that the facts did not justify a departure from the mode prescribed by the acts, and that the contract is therefore void. Another, is of opinion that there was an exigency, and the proofs show such an immediate and pressing urgency for these services'as justified the commissary in dispensing with the advertisement, and in contracting for these services, in the manner usually practiced between individuals. These latter views reach the same conclusion that I arrive at by a different path, and therefore result in a majority of the court affirming the right of the commissary to make these contracts.

• As this question is constantly recurring, and occasions no little difficulty and embarrassment, it is to be hoped that the judgment of the Supreme Court of the United States will before long be invoked upon that point, and that it may be put at rest.

For my own part, and speaking for myself alone, I do not think the evidence proves that there was any exigency — any such public emergency — as justified the officer who made these contracts in dispensing with the advertisements. Such may have been the facts, but I do not think they have been brought out in the proofs; in these I can find nothing, except the omission and delay of the officer charged with the duty, that discloses any pressing or urgent necessity. On the other hand, I think there was abundant time after the matter was canvassed and decided upon to have published the advertisements, and I fear their omission may have been detrimental to the United States.

But there has been no proof of any fraud or deception on the part of these claimants in procuring or making these contracts. The omission, therefore, of this important prerequisite by the agent and officer of the United States does not, in my opinion, affect the validity of the contracts, however remiss or mistaken the officer may have been.

II. A fair and just interpretation of the contract is that fifty thousand hogs were to be furnished and delivered by the United States, and that number were to be slaughtered, cured, and packed for them by the claimants, respectively. The claimants were bound to make provision in every respect and be prepared to dispose of that number. If the full extent of the agreed service had been required of them, and they had been unable or unprepared to perform it, they would have been in default; they would have been liable in damages for whatever injury the United States might' have sustained by their remissness. Mutuality, in this, respect, is but equity. Being required to prepare for that number, they had a right to insist upon that complement. It was a fair, mutual engagement to deliver fifty thousand hogs, on the part of the United States, and by the claimants to slaughter, cure, and pack them; and the claimants, as in similar cases between individuals, are to be compensated in damages for that part of their contract which the United States saw fit to abrogate or relinquish.

The measure and extent of the damages are the only remaining questions to be disposed of in these eases. In the ease of Speed & Davis it is proved they had sub-let their contract, by which they had reserved to themselves from seventy to seventy-five- cents per hog. This sub-contract has not been furnished us, although Mr. Jarvis, in his deposition, says it is in writing' and professes to annex it to his deposition. On this subject we follow the rule laid down by the Supreme Court of the United States, in- the case of The Railroad Company v. Howard, 13 How. R., 307, that the profits which the party would have made, or the difference between the cost of doing the work and the price to be paid for it, is the rule óf damages in cases of this kind. In the application of the rule we find great difficulty. In many cases we have in some measure to be governed by the opinions of witnesses. These are nearly always unsatisfactory and .often unsafe guides. In the cases of Moore and Boice v. The United States, 1 C. Cl’s R., 90, and Theo. Adams v. United. States, 1 C. Cl’s R., 106, where we adopted the rule, but to a great extent discarded the opinions of .witnesses on the one side and the other, and rested our findings on the facts and elements for computation furnished by the proofs. The subcontract with Jarvis & Co. is probably as true a criterion as could be obtained. What competent, skilful, responsible persons are- willing to undertake the performance of any work for, and do really bargain to perform it, is a fair mode of estimating what it will cost.

From the amount reserved on the sub-letting is to be deducted a reasonable sum, on account of the relief of the contractor from responsibility for a large part of the contract, and for the time and trouble which a full performance would have required and imposed upon him. The balance will show the. clear net profits that would have accrued on the unperformed part of the contract, and the damages to which the claimants are entitled. As they were relieved, by the relinquishment of two-thirds of the contract by the United States, of all the responsibility and risks involved in so much of it, as well as from devoting their time and attention to it to that extent, there ought to be a reasonable deduction on those accounts. Applying these rules and principles to the cases in hand, we think that, making all reasonable deductions, the sum of sixty (60) cents per hog would represent the true net profits to the contractors.

Nor do we see any good reason for making any distinction between the two . cases. They are identical: for the same number of hogs, to be slaughtered at the same place, at the same time, in the same manner, at the same price. The application of the same rule ought to produce the same result, although, in the opinion of the witnesses testifying, the damages in the Floyd case would he nearly treble that claimed in the Speed & Davis case. The opinions of these witnesses prove too much, if they are not mistaken. ' They would make the clear profits of Floyd’s contract nearly eighty per cent, of the total sum to he received for the service. Such an exhibition would expose a contract to great suspicion of unfairness or collusion, or that an undue advantage had been taken of the ignorance or incompetency of the officer in reference to the subject-matter of the contract. The claimants put in evidence Major Symonds’s letter to the Commissary General, in which he states that the profits to be made by the contractors would he about forty cents per hog. Instead of that, Mr. Floyd now attempts to show that his would have been more than three times that sum.

It shows how carefully testimony resting merely on the opinions of witnesses, however respectable and truthful they may be, should be weighed and considered, and how uncertain it is as to amounts. We therefore adopt and apply the same rule in both cases.

We therefore find as follows, in the case of Speed & Davis : 32,868 hogs at 60 cents, amounting to nineteen thousand seven hundred and twenty dollars and eighty cents, (#19,720 80,) for which sum judgment is to be entered in their favor.

In the case of Robert Floyd we find thirty-three thousand eight hundred and twenty-three hogs not delivered, at sixty cents per hog, amounting, in the whole, to the sum of twenty thousand two hundred and ninety-three dollars and eighty cents, (#20,293 80,) and for which a judgment is entered in favor of said Robert Floyd.

Loring, J.,

dissenting:

The statute requires that purchases and contracts for supplies or 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.” By force of the word “immediate” the exigencies referred to are of time only. And this is not a contract for “ services,” as that word is used in the statute, for there it refers to contracts on which the gervice to be rendered is the final object of the government, as in contracts for transportation, &c. But this contract is only a mode of obtaining supplies of pork, and it is not shown or claimed that the pork was needed for “ immediate delivery,” or that it could not be obtained in the usual modes, and as readily as by this contract. And, all that is claimed is tíiat — the shortness of the packing season made an exigency, not for pork, but for this contract. That is not the exigency contemplated by the statute; and if it is, it is not proved, for the contract was contemplated early in September, 1864. Major Sy-monds was authorized to make the contract September 21. He had previously collected his information and statistics, and made and reported his calculations, and he made his contract the 27th of October, 1864, so that he had about five weeks in which to advertise for proposals and make his contract; and there is, I think, no evidence that shows or indicates that.this was not time enough for the purpose, or that he so thought.

If the requirement of the statute for advertising has not been complied with, the question arises whether it is directory only, or whether it is imperative. If directory only, then the officer is liable to punishment, but the contract is binding on the United States ; while, if the statute is imperative, the contract made against the law, which the contractor is to be held to know, would be invalid, and not a ground of action for him nor of liability on the part of the defendants.

The question is certainly important, for it affects every contract made without advertising by the officers of the United States, and must necessarily arise as often as such contracts are the subject of litigation here.

Whether a statute is directory or imperative does not depend on its words as negative or affirmative, for negative words may be directory only, as in the English marriage act, (5 Juris., N 5,537) and words only affirmative may be imperative, (Dwarris, 611,) and the only criterion is here, as in all cases of construction of statutes, the intent of the legislature. And the general rules of ascertaining the intent of a legislature were early fixed and have never been changed, and they seem to me sufficient for the decision of this case. They are thus reported by Lord Coke, (3 Rep., 7; Dwarris, 563:) “For the sure and true interpretation of all statutes in general, bo they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and discovered :

“ 1. What was the common law before the making of the act 1

“ 2. What was the mischief and defect against which the common law did not provide %

“ 3. What remedy, the Parliament hath resolved andappointed to cure the disease of the commonwealth 1

“ 4. The true reason of the remedy.”

It was then held (says Lord Coke) to be the duty of tbe judges at all times to make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for continuance of the mischief ct pro privato commodo, and adding force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.

To apply these rules here—

1. What was the common law before the making of the act 1

The common law was that officers making contracts for subsistence

for the United States were free to make them at their own election, with or without advertising for proposals; and whether the contracts were made in one way or the other, the United States were bound by them.

2. The mischief was that contracts might be and were believed to have been made ignorantly or corruptly between the officers and contractors for higher prices than the market prices. (2 Opinions Attorneys General, 257.)

3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

The remedy is public advertisement for proposals, which this act specifies, and which subjects contracts to the restraint of public notice and supervision, and assures to the United States the benefits of competition. .

4. The true reason of the remedy.

The reason and the only reason was the public security, and, therefore, in the words of Lord Coke, it is “the duty of the judges at all times to make such construction as should, suppress the mischief and advance the remedy; that is, so to use the remedy as would make if best fulfil the'public interests.

Now, if the statute is held to be directory only to the officers making contracts, the remedy is suppressed instead of the mischief, for on contracts made without advertising for proposals the United States are liable, as on contracts made with advertising for proposals, and the advantages of competition are lost, and the election of using or not using the remedy is left to the officers whose abuse it was intended to prevent, and whose pecuniary gains in cases of fraud are to depend on their not using it. The officers are, indeed, liable to punishment; but so they were in cases of fraud before, and without the statute; so that to hold the statute directory is to make its only intent and effect to be to make officers liable to punishment when their action is without any fraudulent intent or practice against the United States.

Then this statute is remedial, and it alters the common law to prevent a mischief and attain an advantage involving the public interests; and in such case the established rule of construction is that the operation of the act shall be carried to the utmost extent that its words will permit. The rule is thus stated by Mr. Dwarris, p. 618: “A statute made pro bono publico shall be construed in such manner that it may, as far as possible, attain the end proposed.” And Mr. Sedgewick, paraphrasing and citing Mr. Dwarris, says: “ So again it has been held that in the case of remedial acts everything is to*be done in advancement of the remedy that can be given consistently with any construction that can be put on it.” Now all that is to be done here to hold this statute imperative is to take the words of the statute “ in their ordinary and familiar signification and import,” (Dwarris, 573,) which every text-book makes the primary rule of construction, to be used wherever it can be.

The question here belongs to one of the many classes of cases involved in the doctrine of equitable construction by which statutes are enlarged or restricted and their language departed from by courts, so as to include cases not within their text and to exclude cases not within their reason. But equitable construction in regard to remedial statutes always tends one way, and that is to the utmost advancement towards its fullest efficiency for the end sought. Mr. Dwarris says : “ Whatever doubts may be entertained of the propriety of extending the words of statutes by equitable construction to embrace other cases— conveyances, places, persons and things, besides those contained and expressly mentioned in the act — there can be no question that the words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy.”

And in determining whether a statute is directory or imperative, there is one circumstance that has always been held a decisive criterion fixing the statute as imperative, and that is that the provision of the statute, as to which the question arises, is of the substance or essence of the thing which the statute requires to be done, and not merely the form prescribed to effect it. In Rex v. Loxdale, (1.Burr, 447,) Lord Mansfield said: “ There is a known distinction between circumstances which are of the essence of the thing required to be done by an act of Parliament and clauses merely directory.” And hisillustrationis : “The precise time in many cases is not of the essence,” while on the 43 Eliz., c. 2, he says “ nobody ever thought it discretionary as to the NUMBER ” of overseers to be appointed. And Mr. Smith, in his commentaries on constitutional and statutory law, (p. 792,) says : “A distinction of the rule in cases cited should be observed, that is, between cases where certain acts' to be done are of the essence of the thing required to be done by the act, in which case it is imperative; and things which are not of the essence, in the latter case it is merely directory.” And he adds : This is one of the criterions by which to determine whether it is imperative or merely directory.”

Now, in the case at bar, the statute provision for advertising is not only of the essence and substance of the thing required by the statute to be done, but it is the ibing itself and the whole of it; it is the very security for the public prescribed by the statute; and to hold the provision to be merely directory is to permit the injury to the public which it was intended to prevent, and which it would prevent if held to be imperative.

And even in statutes not remedial, but which are made for the public benefit, the provisions of the statute as to time even are held directory or imperative, as the public interests may require, because the promotion of these must be assumed to be the intent of the 1 gislature. Thus in the early case of Rex v. Sparrow, (2 Strange, 123,) overseers of the poor were not appointed by the justices within the time prescribed by the statute. And the court held the provisions of the statute as to time directory only, and the election of the overseers legal, and enforced their performance of their duty, because otherwise, as it said, “ the poor could not have a specific remedy.” And Mr. Sedgewick, citing cases where notices and acts required by statute had not been given or done in the time directed, adds.: “ It being for the benefit of the public, those acts may be done after the time specified.”

On the other hand, the provisions of a statute of Michigan, requiring advertisements for proposals, were held to be imperative, because the public interests so required. And the case is so analogous to this, and the reasons given for its decision so applicable here, that I think their quotation in full allowable. In The agent of the State prison v. Lathrop, (1 Michigan Reports, 438,) decided in 1850, the facts were that a statute of the State made it the duty of the agent of the State prison to let out the convicts ior labor, and prescribed that he should give twenty days’ notice in a newspaper for sealed proposals. He made a contract without advertising for proposals, and the question was as to the validity of the contract. The court said the action was in effect against the State, and it decided unanimously against the validity of the contract. The reasons for its decision are thus given :

“ With a view to insure competition, and to give every one an opportunity of bidding for the labor, the power to let the services of the convicts is coupled with a requirement that the agent should give notice to the public in a specified mode and for a specified time for sealed proposals. The object of this is clearly manifest. It was intended, if possible, to prevent collusion between the agent and contractors, and to secure to the State the highest price that could he obtained for the labor of the convicts.

“It was foreseen that it was possible and even probable that the agent, in common with many public agents, might, from corrupt motives, sacrifice the interest of the State to secure to himself or his friend the benefits which it was desirable the State should derive from the services of the convicts. The legislature, therefore, wisely prescribed the mode in which the agency was to be executed; and if it was not intended this mode should be pursued, why was it prescribed by the law and connected with the acts authorized to be done 1 There are no general terms used in the law which denote an intention to clothe the agent with discretionary powers as to the mode of letting contracts. He is simply authorized to do certain things in a certain way, and all this is set forth in a public law, which all may read and which all are bound to notice, and particularly all who may attempt to execute any power under it or derive any benefit from its provisions. It distinctly points out the extent of the power given and the mode of its exercise, and says to agent and contractor, this is the way, walk ye in it. I therefore think that that part of the section which is claimed to be directory enters into and gives effect to the power itself, and is a limitation upon it, and that any attempt to bind the State without observing all the prescribed proceedings must be abortive.”

I think these reasons are applicable to the case at bar.

It may perhaps be possible that the wide alternative given by the statute, either of contracts or purchases on advertising for proposals, or of contracts or purchases without advertising, in any exigency of time, may not be broad enough to prevent inconvenience in some conceivable case. But the statute is made for the security of the United States in the transaction of those affairs which are necessarily of certain, regular, and constant recurrence, and so involve their daily welfare. And it is not made for an emergency which can rarely and may never happen — and no statutes are. And, therefore, inconveniences rarely happening are not admitted as a reason for equitable construction. Mr. Dwarris says, (p. 627:) “If the words of a statute do not reach to an inconvenience rarely happening, they shall not be extended to it by an equitable construction, for the objects of statutes are mischiefs queefrequentius accedunt.

I think the provision of the slatute in question here is imperative, because:

1. It is remedial and made “pro bono publico!’ and is, therefore, to be so construed as to suppress the mischief and advance the remedy.

2. Because it seeks to secure to the public the advantages of competition, and is to be so construed as to effect that purpose.

3. Because the requirement of advertising for proposals is of the essence and substance of the thing required by the statute to be done, and the very thing itself.

4. Because the ordinary and familiar import and signification of the words of the statute are plain and not to be questioned, and have full scope in its subject. And I concur with the learned judge who said : “ I am not well satisfied with the summary mode of getting rid of a statutory provision by^calling it directory.” (Quoted, Sedgewick, 377.)

For the reasons stated I think the objections of the assistant solicitor are valid, and that the contract is not binding on the defendants, and that they are entitled to judgment.

J. Smith Speed et al. v. The United States. In this case my opinion is that the defendants are entitled to judgment for the reasons given in the case of Robert Floyd v. The United States.

Nott, J., agreed with Casey, C. J.

Peck, J., held as a matter of fact that an “exigency ” was shown.

Wilmot, J., was absent by reason of illness, and took no part in the decision.  