
    DANOLDS’ CASE. Charles A. Danolds v. The United States.
    
      On the Proofs.
    
    
      An Officer, specially detailed by the Quartermaster General to purchase horses in conjunction with the Cavalry Bureau, agrees to tahe a certain number if delivered hy a certain day. The agreement is made after the Act 2d June, 1864, (12 Stat. L., p. 411,) but is not in writing. Before the day specified the government stops the purchase of horses, and the Cavalry Bureau refuses to inspect and receive these. The chief of the bureau orally agrees with the claimant that he shall winter the horses, and that the government will talce them in the spring and pay for their leeeping. The claimant does so, and the government receives them in the spring. It does not appear positively in the evidence tvhether they ivere received under the previous agreement nor ivhat ivas Che price paid.
    
    I. Since the Acts 2d June, 1862, (12 Stat. L., p. 411,) widi V7th July, 1862, (ib.,p. 600,) “ every contract” made hy the Secretaries of War, of the Navy or of the Interior Departments, or hy their officers under them, must he “ reduced to writing and signed by Che contracting parties;” or, as an executory contract, it Trill he void.
    II. An unwritten agreement, executory in its nature hut invalid under the Aei 2d June, 1862, (12 Stat. L., p. 411,) because not in writing and signed hy the parties, may receive a legal ratification from the acts of the parties. Faithful performance hy the contractor and a benefit received hy the gov-eminent will take the ease out of the statute so far as to leave it within tlie equitable rule of implied contracts.
    III. Where the validity or ratification of an agreement depends wholly upon the defendants having received certain property, and having paid tlie stipulated price, the burden of proof is on the claimant. It is not sufficient for him to show simply that they did receive the property; he must also show the price paid.
    
      Messrs. Hughes, Denver & Tech for tb.e claimant :
    In the fall of 1863, 0. E. Fuller, a captain and assistant quartermaster in tbe United States Army, was ordered by tbe Quartermaster General to proceed to tbe State of New York and purchase borses in.tbe open market in as large numbers and as rapidly as possible to meet tbe pressing exigencies of tbe public service. Considerable latitude of discretion being permitted to Captain Fuller, be at once advertised for borses to be brought in to tbe principal cities for sale at tbe fair market rate.
    It was found impossible to procure borses in this way, and, upon inquiry, be ascertained that great injustice bad been done to horse-dealers by inducing them to collect large lots of borses at tbe government depots, which tbe government would not receive if any change bad occurred in its necessities.
    Tbe usage bad been for tbe quartermaster to advertise that be would receive all borses presented at a time and place named which would pass inspection.
    The authorities at Washington would frequently give orders to tbe quartermaster to cease buying, and this order would be construed by tbe officer receiving it to forbid him to receive tbe borses which were then ready for delivery.
    This fast and loose course of dealing produced its natural result. Tbe advertisements of tbe quartermaster were neglected and no borses were offered.
    In order to restore tbe business and enable tbe government to procure tbe animals needed, Captain Fuller, in addition to tbe usual advertisement, made an express agreement with this contractor and others that be would absolutely receive all borses passing inspection which they would present at tbe time and place agreed upon, and pay for them tbe stipulated price.
    Mr. Danolds, in pursuance of tbe advertisement and this express contract, purchased and tendered for delivery at Rochester, on tbe 10th of December, 1863, about three hundred borsesj about two hundred and thirty were actually in the city, at the government depot — the remainder were in the immediate vicinity.
    On the 9th of December orders were received from Washington to cease buying. Captain Fuller, for reasons given in his deposition, insisted that he was bound to receive these horses notwithstanding the order, because they had already been purchased. In this he was overruled by Captain Cram, the inspecting officer, who refused to inspect them. They were therefore left on the hands of the contractor. »
    Mr. Danolds then sent an agent to Washington to urge upon the chief of the Cavalry Bureau his claims to have the horses received and paid for. This interview resulted in a second agreement, which is embraced in a statement of General Stone-man, as follows: Tell him (Mr. Danolds) to take good care of the horses and government will take them all in the spring, and will pay him for the liorses and their keeping.
    In pursuance of this contract made with General Stoneman, the claimant built the necessary corrals and kept three hundred h orses until the following May. Two hundred and seventy-four horses were then received by the United States and paid for. Fifteen were rejected by the inspecting officer, and eleven had died.
    The expense of providing the necessary corrals for the lot of two hundred and forty was $2,000 00. This is an extremely low estimate, and we were unable to procure evidence as to the expense of stabling the other lot.
    Expense of grain for 274 horses. $12,393 00
    Expense of hay for 274 horses. 10,120 00
    Expense of labor for 274 horses. 4, 027 00
    Expense of stabling for 274 horses. 2, 000 00
    28,540 00
    As to the twenty-six horses which died and were rejected, we insist that under the contract made with Captain Fuller the claimant was entitled to have them inspected and received on the 10th day of December, 1863. The United States having failed to fulfil its obligations on that day, all that occurred after that must be held to be at the risk of the government.
    We have proved that these horses were all in good condition and in every way up to the government standard on the 10th of December. The claimant did not become the insurer of them after that.
    
      The Assistant Attorney General for the defendants ^
    I. There was no contract between the United States and the claimant for the purchase of the horses. The action of Captain Fuller was not only without sanction of law, but in direct violation of law, Act Mar. 2,1861, (12 Stat. L., p. 220, § 10,) Act June 2,1862, (12 Stat. L., p. 412;) his action was also in violation of the orders of General Meigs, directing Fuller to cease purchasing and report to the Cavalry Bureau. Hence these horses, on the refusal of the government officers to receive them in December, remained the property of the claimant. There was no legal obligation on the part of the government to receive them, and theywere not received.
    II. The supposed contract entered into by General Stoneman, by which the government was to pay the claimant for keeping his own horses, was not only illegal, but improbable.
    III. There being no testimony as to the price to be paid by Fuller, nor as to the price eventually paid by the government, we must, under the circumstances, consider that the sale was effected at a price which reimbursed the claimant the cost of the horses, and remunerated him for the trouble and expense of keeping them. The final sale, in April and May, 1864, was, so far as the record shows, a transaction by itself, having no reference to what had gone before.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $32,239 upon a contract for the sale of horses, and for their subsistence.

. In November, 1863, Captain O. E. Fuller, an officer in the Quartermaster Department, acting directly under the orders of the Quartermaster General and in conjunction with the Cavalry Bureau, (a bureau attached to the War Department,) agreed with the claimant that the defendants should purchase so many cavalry horses, not exceeding four hundred, as he should present for inspection at Rochester, New Tork, on the 11th December following. The horses were to be such as would pass inspection, and the defendants were to pay for them $130 apiece. The contract was not in writing.

At tlie time and place appointed, the claimant was ready and willing to deliver three hundred horses pursuant to the agreement, but the inspecting officers refused to inspect them. During the following spring two hundred aud seventy-four were accepted by the defendants, fifteen were rejected by reason of injuries received during the winter, and eleven had died. The fifteen rejected the claimant sold for account of the defendants, and they brought just half the contract price. The claimant seeks to recover for the cost of subsisting the horses, for his loss on the fifteen horses rejected, and the contract price of the eleven horses that died.

The action of the inspecting officers was caused by orders received from the Chief of the Cavalry Bureau forbidding the further purchase of horses. They construed these orders to apply to horses already contracted for, and accordingly refused to inspect the claimant’s.

Therefore the claimant applied directly to the Chief of the Cavalry Bureau for redress. That officer replied that the claimant should “ build corrals or barns for the horses, feed them well during the winter, take good care of them, and that the government would accept them in the spring and pay for their keeping.” The claimant shows that he complied with these directions.

The officer who made this purchase was specially detailed to that service by the Quartermaster General. A jmblic exigency demanded an immediate supply of cavalry horses, and Captain Fuller was sent to procure them in the most 'expeditious manner. The ordinary channels of supply had ceased to bring horses to the government, because the ordinary dealer had found that after he had collected a quantity the order to purchase would be revoked and the horses left on his hands. Hence the special condition of this agreement: that the defendants should take all the horses, not to exceed four hundred, which the claimant should produce on a certain day.

The Cavalry Bureau, which made the further agreement with the claimant that he should subsist the horses till spring, at the expense of the government, was a “ bureau attached to the War Department,” having “ charge of the organization and eqiiipment of the cavalry forces” and ufor the mounts and remounts of the sameP It was established by an order of the War Department of July 28, 1863, (General Orders No. 236.) Under that order “ the purchases of all horses for the cavalry service” were to be made “ by officers of the Quartermaster’s Department, under the direction of the Chief of the Cavalry Bureau,” and “ depots ” were to be established ufor the eolleetion, care, and training of crnalry horses, which depots were to be “ under the general Charge of the Cavalry Bureau

' Upon these facts there are several points making for and against the claimant which are plain:

1. The “Act to prevent and punish fraud on the part of officers intrusiedivith making contracts for the government,” (2d June, 1862, 12 Stat. L., p. 411,) makes it the duty of the Secretaries of the War, Navy, and Interior Departments “to cause and require every contract made by them,” “or by their officers under them,” “ to be reduced to toriting and signed by the contracting parties.” The construction given to that act by this court (Henderson’s Case, 4 C. Cls. R., p. 75) is that the act is mandatory and obligatory upon the contractor as upon the officer. The oral agreement, therefore, with Captain Fuller, as an executory contract, was void.

2. The statute also extends not merely to quartermasters and ordinary purchasing agents, but to all officers in the War, Navy, and Interior Departments and to the Secretaries themselves. It also embraces “ every contract” made by them. The Chief of the Cavalry Bureau was invested with ample power and complete discretion by the War Department over the subject-matter of the contract, but no power or discretion which the War Department could give would authorize him to legally bind the defendants in an illegal way. It is therefore evident that the claimant’s further oral agreement with the Chief of the Cavalry Bureau was likewise, as an executory contract, void.

3. But this court has held that the act of 1862 is, as between the government and its contractors, a “statute of frauds.” (Lindsley’s Case, 4 C. Cls. R., p. 359.) It does not prohibit contracts, but only regulates the manner of making them. - Performance on the one side and acceptance bn the other are, to a certain extent, sufficient to take a case out of the prohibition of the statute and to leave it within the equitable rule of implied contracts. If in this case there was a faithful performance on the part of the contractor, and a benefit received on the part of the government, there is no reason why it should not operate as a legal ratification by the defendants of the agreement. Therefore the whole ease turns on this subsequent transaction. If the defendants did accept the horses in the spring under the agreement made in tbe fall, at the same price and in their improved condition, they must be deemed to have taken them with the burden of their winter’s keeping, and by reaping the advantages to have ratified the obligations of their agent’s agreement. On the contrary, if the claimant in the spring-ignored his unbinding bargain of the fall before, selling to the defendants by a new agreement and receiving a better price, there can be no propriety in the court affirming a transaction which the claimant has himself ignored.

It does not appear positively in the evidence whether the agreement was thus ratified or disavowed. The learned counsel for the claimant seems to rely upon the presumption that doubtless would arise if the transactions had been between two men. But the government has so many agencies, and acquires its property through so many channels, that it would be a dangerous doctrine that we should use against it all the presumptions that a court would turn against an individual. It is true that the defendants might show, in avoidance of the presumption, that they bought the horses through another quartermaster at an advanced price, and with no pretense on the part of the claimant that they already belonged to the government ; and it is of little moment bjr which party the actual circumstances of the transaction are shown; but after due reflection we incline to think that the safer rule is to hold that the burden of proof is here upon the claimant.

Believing that this proof can be readily supplied, and thinking that the claimant cannot justly be held to have anticipated its necessity, the case will be remanded to the general docket for further proof on this point, if the claimant so elect within twenty days. On failure of the claimant to file such election within the prescribed time, the judgment of the court will be entered dismissing the petition.  