
    ROBERT DARRAGH v. THE UNITED STATES.
    [No. 18776.
    Decided April 25, 1898.]
    
      On the Proofs.
    
    TRe claimant enters into a contract, dated June 29, 1892, subject to the approval of the Quartermaster-General, to build a road. It provides that work shall begin June 29 to prevent the lapse of an appropriation. July 16 the officer in charge mails the contract and writes the Quartermaster-General, who declines to approve it. August 7, the claimant is notified of this, and that when grading and bridge building be completed no further work will be done. He protests against the curtailment of the contract work, and now sues to recover the profit on the work he was not permitted to perform.
    I.Where a contract in terms is “subject to the approval of the Quartermaster-General,” approval is a condition precedent to the legal effect of the agreement.
    II.Though the failure of the Quartermaster-General to act within a reasonable time might validate a contract, he is nevertheless entitled to time for inquiry and investigation and the discharge of the ordinary business of his department.
    III.The refusal of the Quartermaster-General to approve a contract after work has been begun by the contractor is not a rescission. The contractor who begins work before approval does so at his own risk; and if he is paid for the work done, he can not recover profits as if there had been a breach.
    
      
      The ’Reporters’ statement of the case:
    Tlie following are the facts of the case as found by the court.
    I. The claimant is a citizen of the United States and a resident of Los Angeles, in the county of Los Angeles and State of California.
    On June 20,1892, the following advertisement for proposals was made by J. G-. 0. Lee, major and chief quartermaster, U. S. A.:
    
      “Proposals for construction of wagon road.
    
    “Headquarters Department oe Arizona,
    “Oeeice oe the Chiee Quartermaster,
    
      “Los Angeles, Cal., June 20, 1892,
    
    “Sealed proposals, in triplicate, will be received here until 10 o’clock a. m., June 27,1892, and then opened in the presence of attending bidders, for the construction of a wagon road from Wingate Stn., N. M., to Fort Wingate, N. M., according to lilans and specifications which may be seen at this office, where all necessary information, blanks for bidding, etc., can be obtained.
    “The U. S. reserves the right to reject any or all bids.
    “Envelopes containing bids should be marked ‘Proposals for wagon road,’ and addressed to the undersigned here.
    “ J. G. 0. Lee,
    
      “Major and Chief Quartermaster.”
    About the same time Major Lee issued to prospective bidders a circular containing a copy of Che advertisement, instructions prescribing the form in which the proposals and bonds should be presented, information with regard to payments and other matters connected with the contract, and specifications prescribing the character of labor and materials to be employed in the construction of the road; the time within which it should be completed; and, in detail, the dimensions and structure of the roadway, the number and size of the culverts, the places where bridges were to be placed, and the materials of and manner in which they should be built.
    II. On June 27,1892, the claimant, liobert Darragh, submitted the following proposal for the construction of the said wagon road, accompanied by a bond in due form:
    “Los Angeles, Calie., June 27,1892.
    
    “To J. G. C. Lee, Esq.,
    
      “Major and Chf. Q. M., Los Angeles.
    
    “Sir: In accordance with your advertisement of June 20, 1892, inviting proposals for-and subject to all the con ditious and requirements thereof, and of your circular to bidder and specifications dated May 7th, 1892, copies of both of which are hereto attached, and, so far as they relate to this proposal, are made a part of it, I propose to do the following work:
    1. For preparation and grading of road to receive the rockwork
    (state sum for the whole work)...$2,700.00
    2. For construction of bridges:
    No. 1. Bridge over ravine... 250.00
    No. 2. Bridge over creek...■-- 450.00
    No. 3. For construction and placing of culverts.each.. 25.00
    No. 4. For placing stonework per lineal yard, prices to be stated in figures.
    
      
    
    “-make this proposal with a full knowledge of the kind, quantity, and quality of the articles required, and, if it is accepted, will, after receiving written notice of such acceptance, enter into contract within the time designated in the advertisement, with good and sufficient sureties for the faithful performance thereof.
    “Robert Darragh,
    
      11103 Market st, Los Angeles
    
    This proposal was accepted on June 28,1892.
    III. On June 28, 1892, the United States, acting through its agent, Major Lee, and the claimant entered into a contract, of which the said advertisement, circular to bidders, and specifications were made part, as follows:
    “Articles of agreement entered into this 28th day of June,eighteen hundred and ninety-two (1892), between Major J. GL O. Lee, quartermaster, United States Army, of the first part, aud Robert Darragh, of Los Angeles, of the county of Los Angeles, State of California, of the second part.
    “This agreement witnesseth that the said Major J. G-. C. Lee, quartermaster, U. S. Army, for and in behalf of the United States of America, and the said Robert Darragh (designated in this instrument as the contractor), for himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutally covenant and agree, to and with each other, as follows, viz:
    “Article 1. That the said Robert Darragh shall, at his own risk and expense, as and in the matter set forth in the circular to bidders, specifications and plans hereto attached, all of which are made a part hereof, construct a wagon road between Win-gate station, New Mexico, and Fort Wingate, New Mexico, as • follows:
    “He shall prepare and grade the entire road to receive the rockwork, construct and place all bridges and culverts required, and place all the stonework required for roadbed and top dressing, as may be directed by the officer in charge of the work.
    “Article 2. The party of the second part shall be responsible for and pay all liabilities incurred for labor and materials in fulfillment of the contract.
    “Article 3. That work on this contract shall commence on the twenty-ninth day of June, eighteen hundred and ninety-two, anything heretofore stated to the contrary notwithstanding.
    “Article 4. That for and in consideration of the faithful performance of the stipulations of this agreement the contractor shall be paid at the office of the chief quartermaster, Depart ment of Arizona, at Los Angeles, Cal., or by an officer to be designated by him, as follows:
    “ For the preparation and grading of the road to receive the rockwork, the sum of two thousand seven hundred (2,700) dollars.
    “ For constructing and placing bridge No.-l, the sum of two hundred and fifty (250) dollars.
    “ For constructing and placing bridge No. 2, the sum of four hundred and fifty (450) dollars.
    “ For constructing and placing of culverts, twenty-five (25) dollars each.
    “ For placing stonework, per lineal yard, as may be directed by the officer in immediate charge of the work:
    
      
    
    • “Article 5. That in case of failure of the contractor to comply with the stipulations of this contract, according to the true intent and meaning thereof, then the party of the first part shall have the power, either by hire in open market or contract, to have the work herein described performed, and any excess in cost to the United States over the rates herein prescribed shall be made good to the United States by the contractor, and such excess of cost may be deducted from any moneys due or or to become due tbe contractor.
    “Article 6. Neither this contract nor any interest therein shall be transferred by the contractor to any other party or parties, and any such transfer shall cause the annulment of the contract so far as the United States is concerned. All rights of action, however, for any breach of this contract by the contractor are reserved to the United States.
    “Article 7. No Member of or Delegate to Congress, nor any person belonging- to or employed in the military service of the United States, is or shall be admitted to any share or part of this agreement or to any benefit which may arise herefrom.
    “Article 8. This agreemen t shall be subject to the approval of the Quartermaster-General U. S. Army.
    “In witness whereof the undersigned have hereunto placed their hands and seals the date first hereinbefore written.
    “J. G. C. Lee, [seal.]
    “ Major and Quartermaster, U. 8. Army.
    
    “Bobert DarrÁgh. [seal.]
    “Witnesses:
    “F. J. Nolan,
    “C. J. Uthoee.
    “Headquarters Department oe Arizona,
    
      uI/os Angeles, Cal.
    
    “Approved July 2, 1892.
    “H. C. Corbin,
    
      “Assistant Adjutant- General.
    
    “(By command and in the absence of the Department commander.)”
    IY. At the special instance and request of Major Lee, it was provided that the contract work should be commenced on June 29,1892, in order to prevent the lapse of an appropriation for the fiscal year ending June 30,1892. To comply with this requirement the claimant proceeded, immediately after the execution of the contract, to purchase a grading machine, picks, shovels, drills, powder, fuse, and other materials, and to employ meu and teams to perform the labor which would be needed in and about the construction of the said wagon road.
    Y. Work on the road was begun on the 12th of July by the claimant, and diligently prosecuted until September 7,1892.
    
      On August 7, 1892, the post quartermaster at Fort Wingate gave tlie claimant a copy of the following telegram:
    “Headquarters Department op Arizona,
    “Office of Chief Quartermaster,
    
      “Los Angeles, Cal., August 6, 1892.
    
    “ Post Quartermaster,
    
      “Fort Wingate, New Mexico:
    
    “Notify Mr. Darragh that when grading and bridge building are completed no further work will be done.
    “ J. G-. 0. Lee, Chief Quartermaster.”
    
    At that time the claimant had performed work upon the grading, bridges, and culverts of the road, and as that work proceeded, had kept a quantity of stone, to be used for the roekwork, or macadam, specified in the contract. This stone could have been used for filling at a saving of $50 if it had not been kept for macadam.
    The claimant protested against the curtailment of the contract work in a letter of August 7,1892, and claimed the right to complete the same in accordance with the terms of the said contract.
    To which Major Lee replied as follows:
    “Headquarters Department of Arizona,
    “ Office of the Chief Quartermaster,
    
      “Los Angeles, Cal., August 16,1892.
    
    “Robert Darragh, Esq.,
    “ (Through Post Quartermaster),
    
      “ Fort Wingate, N. M.
    
    
      “ Sir: Your letter of 7th instant has been received and will be forwarded as you request.
    “The justice of your claim seems manifest, and I have recommended that it be admitted.
    “But, your contract having been disapproved by the Quartermaster-General, I am powerless in the matter, save to recommend reconsideration, which I have done, presenting the justice of your claim to the best of my ability.
    ' “ Very respectfully,
    “J. G. C. Lee,
    
      “Major and Quartermaster, U. S. A., Chief Quartermaster.”
    
    
      [üfirst indorsemeDt.]
    “Office A. A. Q. M.,
    
      u Fort Wingate, New Mexico, August 18th, 1892. ■ “ Respectfully forwarded to Mr. Robert Darragh, Fort Win-gate, New Mexico.
    “Guy Carleton,
    
      “Lieut, and Q. M., Second Cavalry, A. A. Q. M.n
    
    On or about August 25, 1892, the claimant requested payment, as provided by the circular to bidders forming part of the said contract, on account of the portion of the work then completed, which consisted of grading and work upon the bridges and culverts. The claimant also repeated his protest against this curtailment of the contract.
    VI. On August 30, 1892, Major Lee wrote claimant as follows:
    “ Headquarters Department oe Arizona,
    “ Office of .the Chief Quartermaster,
    “ Los Angeles, Cal., August 30,1892.
    
    “Mr. Robert Darragh,
    “ Fort Wingate, New Mexico.
    
    “ Sir : I have received your letter of August 25th instant, asking part payment for work done in grading the Wingate road and building bridges and culverts.
    “Referring to my letter to you of the 16th instant, 1 regret extremely that in view of the disapproval of the Quartermaster-General of my contract made with you I find myself compelled to withhold payment for the present. I have again forwarded the papers to Washington with full statement of the case and an urgent request for approval of the contract.
    “I feel very keenly the embarrassing situation in which I have been the means of placing you, and have done, and will do, all in my power to extricate you from it. Had I entertained the slightest doubt that my action would be approved I would not have instructed you to proceed with the work, but I felt that the action taken by me was precisely what was desired in the case.
    “I realize that you are the innocent victim of a most unfortunate combination of circumstances, and I think you have a just claim for every dollar you have expended. You will, of course, undoubtedly get it sooner or later, but at present I am, unfortunately, not authorized to make payment.
    “Very respectfully, your obedient servant,
    “ J. G. C. Lee,
    
      “Major and Quartermaster, U. S. A., Chief Quartermaster.n
    
    
      The said letter was in reply to a communication of claimant asking payment on the work then done on the grading, bridges, and pavements.
    VII. On September 6,1892, the claimant completed the grad ing of the roadway and the construction of the bridges and culverts. He then wrote to the post quartermaster, in charge of the work, as follows:
    “Foet Wingate, Sept. 6,1892.
    
    “Lieut. G-uy Oaeleton,
    
      “Post Quartermaster.
    
    “Deae Sie: This is to notify you that, in pursuance .of the contract made and entered into between myself on the one part and Col. J. 0.0. Lee, as tlie representative of the United States Government, on the other, which contract is dated June 28th, 1892,1 hereby protest against the order from preventing me from the fulfillment of the whole of my contract. I furthermore certify that I hereby tender full performance of covenant therein upon my part to be performed. I assert that I am ready and willing and have the means at my disposal to fulfill everything on my part agreed by me to be performed; that I have all the necessary means and appliances therefor. I am ready and anxious to do the rockwork, and protest against the interference with the fulfillment of the contract on my part. I desire to save all my rights by tendering a full performance of the rockwork that remains to complete my contract.
    “Yours, respectfully,
    “Robt. Daeeagh.”
    This was returned to him with the following indorsement:
    “ Oeeice A. A. Q. M.,
    “ Fort Wingate, Ifeio Mexico, September 8th, 1892.
    
    “ Respectfully returned to Mr. Robert Darragh with the information that in accordance with telegraphic instructions from the chief quartermaster of the Department of Arizona, dated August 6 last, no more work can be done on the new road between the railroad station and this post after completion of the grading and bridge building.
    “ A copy of the telegram herein referred to was furnished you August 7th last.
    “ Guy Cableton,
    “ Lieut, and Q. M. 2d Cavalry, A. A. Q. ilf.”
    Thereupon the work was stopped, and the defendants refused tó permit the claimant to proceed with the rock work, to wit, the macadam. The claimant had on hand a sufficient supply of laborers and other facilities to prosecute and finish said work.
    
      VIII. On J uly 16,1892, said Major Lee wrote and forwarded to the Quartern) aster-Gen eral a letter referring to said agreement and recommending the approval of same. On August 2, 1892, the Quartermaster-General made on said letter an in-dorsement in the words and figures following, and on that day said letter with said indorsement was forwarded to said Major Lee:
    “ War Department,
    £t Quartermaster-General’s Oeeice,
    “ Washington, August 2,1892.
    
    
      “ Bespectfully returned to chief quartermaster, department of Arizona, Los Angeles, California (through department headquarters).
    
      “ The Quartermaster-General declines to approve any contract that does not include the whole work for the money authorized.
    “ R. N. Batchelder,
    “ Quartermaster- General U. 18. ArnvyP
    
    On August 6 Major Lee, having received said information of the Quartermaster-General’s disapproval of said agreement, sent a telegram as set forth in finding v.
    IX. The profit on the rock work if claimant had been permitted to perform it to the extent of $6,225 would have been the sum of $1,895. The work performed by the claimant amounted to the sum of $3,725. He was paid by defendants the sum of $3,775.
    
      Mr. James H. Hayden for the claimant:
    Under the circumstances the delay was inexcusable and constituted laches, on the part of the United States, which deprived it of its right of election, and hence the United States and the claimant, alike, were bound to fulfill the contract. (.Kingsley v. Wallis, 14 Me., 57). See Groclcer & Go. v. Franldin Mfg. Go., 3 Sumner (O. 0. U. S.), 530; Pratt v. Fislce & Poring, 17 Gal., 380 (1861), Baldwin, J., p. 384; Fitzpatrielc v. Wood-ruff, 96 N. Y. Reports, 561, Miller, J., p. 565; Hanly v. Wotter - son, 19 S. E., 536 (West Virginia); Parsons on Contracts (Vol. II, *535); Dent v. Long, 90 Ala., 172.
    The United States could not exact part performance of the contract, by the claimant, and rescind the contract as to the residue of the work. The claimant’s bid covered the whole work — grading, the construction of bridges and culverts, and the procuring and placing of macadam. The bid was accepted as an. entirety. The contract provided for the performance of the whole work.
    The Government never attempted to rescind the whole contract. The first notice of anything of the kind came to the claimant, six weeks after the contract was signed, in the form of a telegram.
    After the grading was done and the United States had all it wanted, it assumed -to step in and pay for the work done at the contract rates, and to rescind the contract as to the concreting. This was not lawful. 21 Amer. and Eng. Enc. of Law, p. 91 — “ Upon the same principle that requires a restoration, in statu quo, by the party seeking to rescind, is based the rule that the recision must be entire, or not at all. For example, upon the discovery of sufficient ground for avoidance, a person will not be allowed to avoid the contract as to those parts which would work him an injury, and affirm it as to those which would be profitable to him.” See also Semple v. The Cleveland and Pittsburg B. Co., 172 Pa., 369.
    By his performance of the contract, so far as he was permitted by the Government, his several protests, and his tender, of full performance, the claimant saved all his rights under the contract. (Figh v. TI. S., 8 C. 01s. R., 319; Cape Ann Granite Co. v. U. S., 20 O. Cls. R., 1.)
    As damages for the Government’s breach of the contract the claimant is entitled to recover: (1) the amount of loss that he actually sustained, and (2) the profit that he would have made upon the full performance of the contract. (U. S. v. Speed, 8 Wall., 77 (1869); see also Figh v. U. 8., 8 0. 01s. R., 319; Shelseyv. U. 8., 23 0. 01s. R., 61 (1888); see also Boettin-ger, Administrator, v. U. 8., 26 0. 01s. R., 391; U. 8. v. Behan, 110 U. S. R., 338.)
    Jfr. F. W. Collins (with whom was Mr. Assistant Attorney-General Pratt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimant’s action is based upon an alleged contract, bearing date the 29th of June, 1892, executed on behalf of the defendants by Major Lee, of the Quartermaster’s Department, and claimant, in relation to building a road from Wingate Station to Fort Wingate, N. Mex., a distance of about 3jJ- miles. The contract was subject to the approval of the Quartermaster-General.

Embraced in tbe contract are four classifications of work, to wit: Grading, bridges, culverts, and stonework, to wit, macadam. Tbe work, by tbe terms of tbe agreement, was to be commenced on tbe 29tb day of June and finished by tbe 1st day of November, A, D. 1893. Tbe claimant was to receive tbe sum of $2,700 for tbe grading, $700 for tbe bridges, $25 for each culvert, a certain price per lineal yard for the macadam, depending upon tbe depth, indicated at tbe different stations, as shown in a schedule of prices set forth in tbe agreement. Tbe contract price of tbe grading, bridges, and culverts is definitely fixed by'tbe terms of tbe agreement, except as to tbe aggregate amount of tbe compensation for culverts — the number not being specifically determined. Tbe number of culverts built was 13, which, at $25 per culvert (tbe contract -price), amounts to tbe sum of $325, which, being added to tbe compensation provided for tbe grading and bridges, amounts to tbe sum of $3,725.

Tbe work of grading, bridges, and culverts was finished by tbe claimant on the Gth day of September, 1892, to tbe satisfaction of tbe officer in charge, and the claimant has been paid in full for such labor.

But it is alleged that tbe contract was disapproved by tbe Quartermaster-General, and order was given by him that no work should be done on said road beyond tbe grading, bridges, and culverts, and in consequence of such order claimant was not permitted to complete tbe remainder of tbe work, to wit, the stonework, and as a result of such disapproval of tbe Quartermaster-General and refusal of tbe defendants to permit him to perform tbe labor as to the stonework, be has been damaged, because of being unable to utilize tbe labor of men employed by him and to use tools and material prepared for tbe execution of said work, to tbe extent of $2,500.

It is also alleged that if be bad been permitted to perform tbe contract as to tbe stonework to tbe extent of $6,225 for tbe prices specified in tbe agreement, be would have realized a profit of $3,700.

Tbe contract, by tbe understanding of tbe parties, limited tbe amount to be expended in tbe work to tbe sum of $10,000, and one of tbe terms of tbe agreement provided “for placing stonework per lineal yard as may be directed by tbe officer in immediate charge of tbe work,” thereby limiting tbe macadam to a sum which, being added to the cost of tbe other part of the work, would bring the whole expenditure within the limit of the appropriation.

It is upon that theory that the claimant alleges his cause of action to the profits on $6,225, and damages incident to that amount of work.

By the eighth article of the agreement it is provided, “This agreement shall be subject to the approval of the Quartermaster-General of the United States Army.” The Quartermaster-General refused to approve the agreement, and because of such refusal the controversy has arisen.

At the special instance of Major Lee it was provided that the contract work should be commenced on the 29th of June, 1892, in order to prevent the lapse of an appropriation for the fiscal year ending June 30,1892. The practical work was not commenced until the 12th of July, but was diligently prosecuted until September 7, when the work for which claimant has been paid was finished.

On July 16, 1892, Major Lee wrote to the Quartermaster-General, referring to the agreement and recommending the approval of the same, to which the Quartermaster-General replied as follows :

“War Department,
“ Quartermaster-General’s Oepice,
Washington, August 2,1892.
“Respectfully returned to the chief quartermaster, Department of Arizona, Los Angeles, Oal. (through department headquarters).
“The Quartermaster-General declines to approve any contract that does not include the whole work for the money authorized.
“R. N. Batchelder,
Quartermaster-General, United States ArmyP

On August 6 Major Lee, having received said information of the disapproval of the agreement, sent the telegram set forth in Finding Y.

On the 7th of August, 1892, the postmaster at Fort Wingate gave the claimant the dispatch dated at Los Angeles, Oal., signed, “ J. G. 0. Lee, Chief Quartermaster,” in substance as follows: “Notify Mr. Darragh that when grading and bridge building are completed no further work will be done.” The claimant protested against the curtailment of the contract work on the 7th of August, 1892, and claimed the right to com-píete the same in accordance to the terms of the agreement, to which Major Lee replied as follows:

■ “Headquarters Department of Arizona,
“Office of the Chief Quartermaster,
“Los Angeles, Gal., A%igust 16,1892. “Robert Darrag-h, Esq.,
“(Through Post Quartermaster),
“ Fort Wingate, LT. Mex.
“Sir: Your letter of 7th instant has been received and will be forwarded as you request.
“The justice of your claim seems manifest, and I have recommended that it be admitted.
“But your contract having been disapproved by the Quartermaster-General, I am powerless in the matter, save to recommend reconsideration, which I have done, presenting the justice of your claim to the best of my ability.
“ Yery respectfully,
“J. G. 0. Lee,
“Major and Quartermaster, U.S.A., Ohief Quartermaster.”

The findings show that in preparing for the performance of the work stated in the agreement the claimant made an expenditure in buying tools and appliances, which were left on hand on the 6th of September, 1892, and which he was compelled to sell at a rate reduced from the original cost, but it does not appear how much the reduction was between the original cost and the price at which he sold. In the prosecution of the work of grading the claimant, in anticipation of the performance of the work to the extent of $10,000, prepared material which he could have used in the stonework had he been permitted to perform such work, and the cost or expense of such material is the sum of $50. The findings show that the profit of the claimant on the rockwork would have been $1,895, and of that he has been deprived by the failure and refusal of the defendants to permit him to perform the work to the extent of $10,000.

If the agreement made between the claimant and the agent of the defendants on the 28th of June (notwithstanding the refusal of the Quartermaster-General to approve it) is obligatory on the United States, the claimant is entitled to recover his profits as shown by the findings. The findings show that it would have cost the claimant the sum of $4,330 to have performed the work, for which he would have received tbe sum of $6,225, leaving a difference of profit to him of $1,895.

Tbe theory upon which the claimant seeks to recover is that as to all the items of the contract there was incumbent on the United States the obligation to permit the'claimant to finish the work, and having’ refused the claimant such right, he is entitled to recover whatever damages he has suffered and whatever profits he could have made.

It is insisted that by the terms of the contract the claimant was bound to commence work at once; bound to complete the whole of it within a time limited; that time Was the essence of the contract; hence the defendants were bound to use all reasonable dispatch in the exercise of the right to approve or reject the contract, and having failed to exercise that right within a reasonable time, became bound to perform the agreement. The theory of law upon which this contention is based is that by the inaction of the Quartermaster-General to disapprove the contract the claimant was invested with the right as against the action of the Quartermaster-General to insist upon performing’ the agreement to the extent of the appropriation.

The contract by its terms does not definitely determine the extent of the rockworlc. It is provided, “ For placing stonework per lineal yard as may be directed by the officer in immediate charge of the work;” but, conceding that the legal effect of the agreement is to provide for sufficient rockwork, which being added to the cost of other parts amounts to a sum equal to the sum of the appropriation, what are the legal rights of the parties in this proceeding?

Aside from the small amount of rock kept by the claimant to be used in the macadam, the findings do not show that the claimant made any preparation for the whole work that he would not have made for the part which he performed.

Although the parties were very desirous that the work should be commenced in theory, in order to save the appropriation, the diligence seems to have stopped at that point, as it is shown that the work was not in fact commenced until the 12th of July.

On July 16, four days after the practical commencement of the work, Major Lee forwarded to the Quartermaster-General a letter referring to the agreement and recommending an approval of the contract. On August 2,1862, the Quartermaster-General, by indorsement on Major Lee’s letter, refused to approve the agreement and forwarded such refusal, and the fact of such disapproval was communicated to tbe claimant on the 7th of August, as shown in finding yn.

It does not appear that the claimant made any effort to have the matter of the approval or disapproval of the agreement by the Quartermaster-G-eneral disposed of, or that it became material to ascertain that fact, but proceeded in the performance of the work so far as it related to the grading and bridge work j that work was practically definite in the amount, but the quantity of the roekwork is indefinite, depending upon the action of the engineer.

The conduct of all the parties to the transaction indicates that no great celerity of movement in point of time was expected. The claimant did not practically commence the work until twelve days after the agreement was made; Major Lee did not write to the Quartermaster-General until the 16th of July, and the Quartermaster-General did not indorse on the letter of Major Lee his disapproval of the agreement until the 2d of August; and on the 7th of August the claimant received notice that beyond the grading and bridging no work would be allowed under the contract.

The contract does not require the approval of the Quartermaster-General in writing, but does require his approval in some shape. This court has held: “But in any case, if the approval is not required to be in writing, it may be shown substantially, and the fact that a commanding officer knew of a contract being awarded to a party and then approved vouchers issued under and referring to it is sufficient evidence of such approval.” (Tenney's Case, 10 0. Cls. Ik, 269.)

The contract was to become operative as such upon the approval of the Quartermaster-General. It is not a condition of defeasance, but a condition precedent to the legal effect of the agreement. The Quartermaster-General not having done any act in confirmation of the agreement, the question presented is this: Did his nonaction, from the time he must have received the letter of Major Lee of the 16th of July until the 2d of August, operate inlaw as an approval so as to give vitality to the agreement as a binding obligation on the defendants'?

The alleged agreement had no vitality as a contract until approved by the Quartermaster-General; and, as is said in effect in the Filor Case, so far as the legal liability of the Government is concerned, it was a nullity. In this case, by express provision of the agreement, it was only tentative and not final.

A letter mailed at Los Angeles, Cal., would reach Washington in about five days, so that the letter must have been delivered at the Department about the 21st of July, and was indorsed as indicated on the 2d of August, 1892. Even though the failure of the Quartermaster-General to act within a reasonable time would have the legal effect to validate the contract against the United States, we are not prepared to say that there was unreasonable delay in the act of the Quartermaster-General in disapproving the contract on the 2d of August; the condition of business in his office, the inquiry, and the investigation necessary to be made in order to determine his action in the premises may have justified the delay. A public officer is presumed, in the absence of proof, to have discharged his duty, and no want of diligence can be attributed to the Quartermaster-General in this proceeding founded on the facts as they appear in the findings. It was the duty of the Qua.rter-master-General to determine the question as to whether the agreement was in the interest of the United States, and if so to approve it, and if not, to do as he has done, and the failure upon his part to act can not have the legal effect to confer upon the claimant the right to enforce the contract against the defendants by the recovery of damages for the nonfulfillment.

In making the agreement Major Lee exercised a power subordinate to the Quartermaster-General, and in exercise of that power he did not assume to have the right to make an agreement absolutely binding on the defendants; his action was only preliminary to the exercise of power inherent in his superior'to approve or disapprove his action.

It is contended by claimant that the United States could not exact performance of the contract by the claimant as to part and rescind the contract as to the residue of the work.

There was no rescission of a contract in this transaction. A conditional contract was made which was not fully consummated, and before the final refusal of consummation occurred one of the parties proceeded in the execution of the contract and for such execution has been fully compensated, and no claim is now made except for profits and damages on the unexecuted portion. The claimant has been paid in full for all the work he did, and no quantum meruit is relied upon; but an enforcement of the contract by the recovery of damages, because of the alleged failure on the part of the United States to perform the agreement to the full extent of the alleged con- ' tract. The claimant was paid the sum of $3,775, which was an excess beyond the contract value of the work of $50, and therefore no claim for a quantum meruit can arise.

The judgment of the court is that the petition be dismissed.  