
    PARISH’S CASE.
    Joseph W. Parish et al. v. The United States.
    
      On the Proofs.
    
    Iiil8G3 the acting medical purveyor of the Army contráete with the claimants for “ the whole amount of ice required, to he consumed ” in the hospitals at various points on the Mississippi, $-c., “ during the remainder of the year,” the Government to pay for “every ton of ice delivered and accepted” by the medical'officer in charge of each hospital. The Assistant Surgeon-General, being chief medical officer of the hospitals in the district where the ice is to be delivered, directs the contractor in writing to distribute theice at various places ■ to the amount of 30,000 tons, and states that 20,000 tons “ should he furnished without delay.” The contractor thereupon procures a large quantity. The Surgeon-General before delivery suspends the order. Ten thousand tons of ice so procured is never accepted, and proves a loss to the contractor.
    
    Where a contract made in 1863 by the acting medical purveyor of the Army in Washington hound the contractor to deliver “ the tuhole amount of ice required to be consumed” at designated places, the Assistant Surgeon-General in command of the hospitals at those places as chief medical officer had no authority to fix the quantity in advance.
    
      The Reporters' statement of the case:
    The terms of the contract are quoted in the opinion of the court. The following are the facts as found by the conrt:
    I. On the 22d day of January, 1863, at Washington, D. C., Henry Johnson, medical storekeeper United States Army, representing the Surgeon-General’s Department, issued the following advertisement:
    “ Proposals for ice.
    
    “Medical Pukveyok’s Oeeice,
    “ Washington, I). O., January 22, 1863.
    “ Sealed proposals will be received at this office until Monday, the 23d day of February, 1863, at 12 o’clock m., for furnishing the Medical and Hospital Department until the 1st day of January, 1864, with a supply of pure ice, to be delivered at the following places, to wit: Hilton Head, S. C.; New Berne, N. 0.; Fortress Monroe, Va.; Pensacola, Fla.; Nashville, Tenn.; New Orleans, La.; Saint Louis, Mo.; Cairo, III.; Washington, D. C.; Memphis, Tenn.
    “As the quantity required at the respective posts is not precisely known, bidders will state the quantity of ice they can furnish; where it is gathered; price per ton of two thousand pounds, and within what period they can furnish the amount of their bids, although it is advisable that bidders should propose to furnish the whole amount required at any one of the places proposed to be supplied.
    “Bidders will state what facilities they possess, if any, for storing the ice at the posts they propose to supply.
    “The ice must be of the best quality, subject to the inspection and approval of the officer in charge of the post where it is delivered.
    “The full name and post-office address of the bidder must appear in the proposal.
    “íf a bid is made in the name of the firm, the names of all the parties must appear, or the bid will be considered ás the individual proposal of the party signing it.
    “ Proposals from disloyal parties will not be considered, and an oath of allegiance to the United States Government must accompany each proposition.
    “Proposals must be addressed to £ Henry Johnson, M. S. II., U. S. A., and Acting Medical Purveyor, Washington, D. C.,’ and should be plainly marked £ Proposals for ice.?
    “ The ability of the bidder to fill the contract, should it be awarded him, must be guaranteed by two resp&nsible persons, whose signatures are to be appended to the guarantee, and said guarantee must accompany the bid.
    “The responsibility of the guarantors must be shown by the official certificate of the clerk of the nearest district court or of the United States district attorney.
    “Bidders must be present in person when the bids are opened, or their proposals will not be considered.
    “Bonds in the sum of five thousand dollars, signed by the contractor and both of his guarantors, will be required of the successful bidder upon signing the contract.”
    
      II. The claimant, Joseph W. Parish, using the firm-name of J. W. Parish & Co., made proposals, as invited by said advertisement, to supply ice at Memphis, Nashville, Saint Louis, and Cairo; and the contract set out in the petition was entered into by said Parish, in the said firm-name; but neither at the time of making said proposals, nor at the time of the signing of said contract, nor at any time after either of those events, was there any partnership between the said Parish and the said William L. Huse; nor did the said Huse at any time before or after either of said events authorize the said Parish to use his name jointly with the name of said Parish, or otherwise, in connection with said proposals or said contract; nor did the said Huse have any knowledge of his name having been so used by said Parish until after the said contract was signed; and when, after the said contract was signed, the said Parish informed said Huse that he had so used said Huse’s name, the said Huse refused to engage with said Parish in said contract, and in fact never has had any interest, or taken any part, thereiu; but the said Huse did not notify any officer of the Government that his name had been so used without his authority, because he did not consider himself bound thereby, and therefore did not think it necessary to give such notice.
    III. E. C. Wood was assistant surgeon-general, acting in that official capacity at Saint Louis before and after the 25th day of March, 1863.
    Henry Johnson, on the 5th of March, 1863, was medical storekeeper U. S. A., and, at the time stated, on duty as acting medical purveyor at Washington, D. C.
    Joseph B. Brown was, on the 25th day of March, 1863, and during the months of April and May, 1863, a surgeon United States Army, with the rank of major, and on duty in the office of the assistant surgeon-general United States Army at Saint Louis, Mo.
    IY. The following instructions were given by the Surgeon-General of the United States to said Assistant Surgeon-General E. 0. Wood i
    “ Surg-eon-General’s Oeeice,
    
      '•‘■July 28,1862.
    “Sir : In compliance with orders from the War Department, assigning you to duty in Saint Louis, you are relieved from further duty in this office.
    “ Surgeon J. B. Brown and Assistant Surgeon B. E. Fryer have been ordered to report to you for duty in your office, or such other service as you may see fit to assign them to.
    “Medical Inspectors Cuyler, Keeney, Lyman, and Allen have also been ordered to report to you in Saint Louis. These officers you will assign to special districts, and require them to visit, as far as possible, each hospital or camp within their limits at least once in each month.
    “The boundaries of the districts, and the location of each medical inspector, are left to your judgment. I desire, however, that you will station Medical Inspector Keeney at Chicago, and assign to him, as his district, the Northwestern and such of the Western States as in your opinion may be proper.
    “ In addition, the vessels engaged in the transportation of the sick and wounded should be special subjects of inspection.
    “The reports of the medical inspectors under your orders must be made in duplicate, one for your office and one for the office of the Medical Inspector-General, in this city. These latter will be addressed to that officer, under cover to the Surgeon-General.
    “ Unless absolutely necessary, it is not desirable to increase the number of general hospitals, especially at this season of the year, in extreme northern localities.
    “ The President is desirous that the sick should be cared for, as far as possible, within the limits of the commands to which they belong.
    “Authority is given you to make contracts with private physicians in such number as you may deem necessary.
    “After your examination and approval of the applicants, one copy of the contract must be forwarded to this office for approval. Unless in cases of absolute necessity, you will not permit this power to be exercised by any other medical officer under your command.
    “Contracts made by others must be approved by you before they will be approved in this office.
    “ You are also authorized to give permission to medical officers to employ civilians as nurses, according to the form of contract now in use. These nurses will receive $20.50 per month pay, and $3 per month for commutation of clothing, and one ration each.
    “ They will be required to uniform themselves, in accordance with the provisions of Circular No. 4.
    
      “You are authorized to approve requisitions of medical purveyors on the purchasing-purveyors, a duplicate of the requisition being sent to this office in order that it may be furnished by a purveyor, to be designated by the Surgeon-General. In case of necessity, you may yourself order the immediate purchase of such medicines and other supplies as may be required, informing me as soon as possible of your action.
    “ It is expected that you will make as frequent visits as the duties of your office will permit to the various general hospitals and camps within the limits of your jurisdiction.
    “Of course, it is impossible for me, even if it were desirable, to ask your attention to subjects which of course will, in the ordinary routine of business, come under your notice.
    “ Your large experience and devotion to the Army and. the corps are ample guarantees that the important duty assigned to you will be faithfully and efficiently performed.
    “The States of Indiana, Illinois, Kentucky, Tennessee, Missouri, Kansas, Iowa, Wisconsin, Minnesota, and Michigan, with such parts of Alabama, Mississippi, and Arkansas as are occupied by the troops lately under Major-General Halleck’s immediate command, are those over which your jurisdiction will extend.
    “ Yery respectfully, your obedient servant,
    (Signed) “W. A. HAMMOND,
    
      "Surgeon-General United States Army.”
    
    Y. On the 25th day of March, 1863, Joseph B. Brown, by instruction of Assistant Surgeon-General Wood, issued the following order:
    “Assistant Surgeon-General’s Oepioe,
    
      “Saint Louis, Missouri, March 25,1863.
    “ Messrs. J. W. Parish & Go.:
    “Gentlebien: I am instructed by the assistant surgeon-general to direct that the ice which you have agreed, to deliver at the points designated in your contract shall he distributed in the following quantities, viz:
    “At St. Louis. 5,000 tons,
    “At Cairo. 5,000 tons,
    “At Memphis... 10,000 tons,
    “At Nashville.. 10, 000 tons,
    
      making the total of 30,000 which you have contracted to deliver. The ice to be delivered at Nashville and Memphis is for use of the sick of the armies in the field, and should be furnished without delay.
    “ Very respectfully, your ob’t servant,
    “ By order of the assistant surgeon-general:
    (Sig.) “JOSEPH'S. BROWN,
    
      "Surgeon United, States Army.'”
    
    A copy of this order being received at the Surgeon General's Office, the following telegram and letter were sent to Assistant Surgeon-General Wood:
    
      “ Surgeon-General’s Oepice,
    
      “March 31, 1863.
    “ Parish and Go. have not contracted for 30,000 ions of ice. Suspend the order you gave him.
    (Sig.) “ W. A. HAMMOND,
    
      “Surgeon-General.
    
    
      “ Col. R. O. Wood,
    
      Asst. Surgeon-General U. S. Army, St. Louis.”
    
    
      “ Surgeon-General’s Oeeioe,
    
      “Washington, D. O., March 31, 1863. Sir : Tour communication of the 25th instant to J. W. Parish & Go. in regard to the quantities of ice to be delivered at the different points for which they contract, forwarded • to this office for the information of the Surgeon-General, has been received.
    “ I am instructed to inform you that the contract with Parish & Co. was made for such quantities as might he needed ; and that the ice should be ordered from them, from time to time, to different points, in lots of a few hundred tons, as needed.
    “ Very respectfully, your obedient servant,
    “O. H. ALDEN,
    
      “Assistant Surgeon U. S. A.
    
    
      “ Col. R. C. Wood,
    
      “Assistant Surgeon-General, St. Louis, Mo.”
    
    In this connection the following telegram was sent, but not addressed to the claimant at his residence or place of business:
    
      “Assistant Surgeon-General’s Oeeice,
    
      “St. Louis, Missouri, March 31,1863.
    “ To J. W. Parish & Co.,
    (Oare O. H. Wicker & Co.,)
    Chicago, III.:
    
    
      “ I am instructed by tbe Surgeon-General to suspend the order I have given you till further instructions are given from him.
    (Sig.) “R. C. WOOD,
    
      “■Asst. Surgeon-General.”
    
    It does not appear that this dispatch ever reached the claimants, or either of them. The claimant Parish did have knowledge of this notice by oral information from the assistant surgeon-general at Saint Louis, on the 2d day of April, following.
    YI. Prior to the delivery to the said Parish of Joseph B. Brown’s letter of March 25, 1863, set forth in finding Y, the said Parish had purchased for delivery under the contract sued on 8,100 tons of ice; and, after delivery of said letter to him, he set about purchasing ice for delivery in pursuance of said letter; and thereafter, and before he was, on the 2d day of April, 1863, apprised of the aforesaid order óf Surgeon-General Hammond of March 31, he had purchased, or contracted for the purchase of, 23,000 tons of ice.
    YII. The whole amount of ice which was received by the officers of the Government under said contract, omitting fractions, was as follows:
    Tons.
    At Saint Louis. 4,174
    At Cairo. 1,388
    At Memphis.-. 6,456
    At Nashville. 750
    Total. 12,768
    For this quantity the said Parish has been paid the contract prices.
    YIII. Of the 23,000 tons of ice purchased by said Parish between the 25th of March and the 2d of April, 1863, the quantity of 10,000 tons was purchased at Lake Pepin, in Minnesota; and in the month of April the stage of water in the Mississippi River was such that, with .a sufficiency of steamboats and barges present there in the early part of that month, that quantity might have been transported southward to Saint Louis and the other places at which the said Parish was required by said contract to furnish said ice ; but the said Parish did not have steamboats and barges at said lake, in that month, to transport the ice which he had purchased there ; and. after that month the water in said river became and continued so low that the said ice could not be so transported southward, and the same melted and was lost to the said Parish.
    IX. The said Parish was prepared and willing to deliver'th said 30,000 tons of ice in conformity with the conditions and obligations of his said contract and the terms of said letter of March 25, 1863, of which the defendants had notice, but they would not nor did receive more than the 12,768 tons aforesaid.
    X. The following letters were written and sent from the assistant surgeon-general’s office at Saint Louis :
    “Ass’t Surgeon-General’s Oeeice,
    “ St. Louis, Mo., April 3rd, 1863.
    “ GentleMen : I am instructed by the ass’t surgeon-general to forward to you the enclosed copy of a letter from the Surgeon-General for your information.
    “ The ass’t surgeon-general advises that you establish depots of ice, which should be kept at all times amply supplied to fill all necessary requisitions that may be from time to time made upon them, at the following points: St. Louis, Oairo, Memphis, Nashville.
    “ You will notify Med. Director G. Perm, U. S. A., Dep’t Cumberland, Nashville; Med. Director M. Mills, Dep’t of the Tenn., headquarters Gen’l Grant; Med. Director L. H. Holden,U. S. A., Dep’t of the Ohio, Cincinnati; Med. Director D. L. Magru-der, U. S. A., Dep’t of the Missouri, St. Louis, when your depots are ready to issue the ice required, and the name of your agent in charge of the depot, who will also be instructed by you to issue in conformity with the requisitions made from time to time upon them.
    . “ Yery respectfully, your obedient servant,
    “ By order of the ass’t surgeon-general,
    (Signed) “ JOSEPH B. BROWN,
    
      Surgeon U. S. A.
    
    “Messrs. J. W. Parish <& Co.,
    “ 8‡. Louis, Mo.”
    
    
      “Ass’t Surgeon-General’s Oeeioe,
    “ St. Louis, Mo., April 8th, 1863.
    “ Sir : I have the honor to acknowledge the receipt of your letter of the 4th inst., enclosing reply of Surgeon Mills, medical director Dep’t of the Tenn., in reference to the supply of ice.
    “Enclosed at the instructions given on the 3rd inst. to Messrs. Parish and Oo., and to the medical directers of the department indicated.
    “ I will endeavor to arrange the details for the delivery from time to time, as required, in such a manner as will best ensure a regular and liberal supply to those needing it.
    “ Very respectfully, your obedient servant,
    (Signed) “R. 0. WOOD,
    “ Ass’t Surgeon-General.
    
    “ Brig. Gen. W. A. Hammond, U. S. A.,
    “ Surgeon- General, Washington, I). OP
    
    XI. The notice of 25th March, 1863, to the claimants, from the assistant surgeon-general’s office at Saint Louis, set out in finding V, aud which was suspended by order of the Surgeon-General, remained so suspended until the expiration of the time named in it for the duration of the contract of the 5th of March, 1863.
    XII. The profits which the claimant would have made upon 30,000 tons of ice, less 12,768 tons, to wit, 17,232 tons, if the same had been accepted by the defendants’ officers in the manner prescribed by the order of 25th March, 3863, were $-per ton, amounting to $-. The loss sustained by the claimant upon the 10,000 tons of ice purchased and lost at Lake Pepin was $-per ton.
    
      Mr. John B. Sanborn and Mr. B. P. Lowe for the claimants:
    The contract and order designating the amount required under it were made by competent authority, and legal and binding in all respects. (12 Stat. L., 379, § 2.)
    The senior or ranking medical officer of the department or army was the proper officer to determine the amount required under the contract. (Army Regulations, edition of 1861, 281, par. 1231; ed. of 1863, 309.)
    The purchase of the ice and large expenditure for transportation was tbe legitimate consequence of the defendants’ order and acts, and now they are estopped to disavow them to the prejudice of the claimants, and to deny that the damages sustained by the claimants are the result thereof. Claimants changed their condition, relying upon the order. (Swain v. Seamens, 9 Wallace, 273, 274.)
    This contract required a large expenditure in preparation and immediate performance of a large portion of what was to be done under it by claimants, viz, the delivery of thirty thousand tons of ice. In such a case the Government is bound to receive all it had contracted to receive, and do whatever was necessary on its part to enable the contractors to perform all they had covenanted arid undertaken to perform on their part. (Speed’s Case, 2 C. 01s. R., 429; 8 Wallace S. 0. R., 77.)
    The rule of damages, when the Government has violated its contract, as in this case, is the difference between what the contractors would have received under the contract if it had been fully executed according to its terms, and the amounts saved to them by the release from the care, trouble, risk, responsibility, and expense attending the full execution of the contract. (Speed’s Case, cited above; Wilder’s Case, 5 C. 01s. R., 469; Philadelphia, Wilmington, and Baltimore Railroad Company v. Hayward, 13 How. S. 0. R., 344; Masterson v. The Mayor, die., of Broolclyn, 7 Hill, 61, and cases there cited.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    Striking from the act of Congress as surplusage, because untrue, (see State v. Orange, 3 Yroom, 49; Shrewsbury v. Bolslon, 1 Pick., 105; Sedgwick on Statutes, 354,) the final words “named' in said contract,” and giving to it the strict construction required by private acts, (Roberts v. The United States, 6 0. 01s. R., 84; JDe Groot v. The United States, 5-Wall., 432; Seales v. Pieicering, 4 Bingham, 453,) the only question referred to the court is, whether the contract has been violated. The contract itself is similar in its terms to the one considered in Grant v. The United States, 1 0. 01s. R., 61; 7 0. 01s. R., 53; 7 Wallace, 331; also Bullcley v. The United States, 7 0. 01s. R., 543; 9 0. 01s. R., 81; also Ciarle v. The Mayor of Neio York, 4 Comstock, 338. To recover for a breach of the contract, he must show that more supplies were needed, and that he was ready to furnish them.
    To recover damages for the revocation of the order, it is incumbent upon plaintiffs to show that they notified the defendants that tbe ice called for in the order was ready for delivery, and that a tender was made. In Bulhley's Case, (9 C. Cls. B., 81,) the plaintiff' notified defendant of his readiness. Here the plaintiffs not only failed to put the defendants on their guard, but in one or two instances failed to furnish ice as required. The rule as to waiver of tender, which holds in case of contracts for specific amounts, does not apply to revocation or suspension of orders. In the former case, as a plaintiff’s rights depend only on the language of the contract, a notice not to deliver is made with a full knowledge of these rights, and of course is a waiver of tender; but where these rights depend upon acts of plaintiff which are unknown to defendants, they should have an opportunity by notice of the acts, or of the rights claimed therefrom, and an actual or constructive tender, to correct the mischief as far as possible before being fixed for damages. But plaintiffs were unable not only to make such tender, but also to deliver the Lake Pepin ice, had they been called upon.
   Drake, Oh. J.,

delivered the opinion of the court:

The claimants do not contend that the contract of March 5, 1863, set forth ia the petition, was a contract for the delivery of thirty thousand tons, or any other specific quantity, of ice ; but that the letter of Assistant Surgeon-General Wood had, in law, the effect of fixing that as the quantity to be delivered at the places therein designated; in other words, that that letter became a part of the contract, and bound the Government to receive that quantity of ice, just as if its terms had been inserted in the written agreement. We do not assent to this proposition.

The advertisement inviting proposalsfor furnishing ice issued from the medical purveyor’s office in Washington, and whatever contract should be entered into would be, and in fact was, not with Assistant Surgeon-General Wood, at Saint Louis, but with Henry Johnson, medical storekeeper and acting medical purveyor, at Washington, representing the Medical and Hospital Department of the Army. That advertisement*notifted bidders that the quantity of ice required at the respective posts was not precisely known, and the contract with the claimants called for no named quantity at any one of the posts which they were to supply, but bound them to deliver the “whole amount of ice required to be consumed at each respective point and vicinity during’ the remainder of the year 1803.”

Upon whose requirement was the ice to be delivered? Clearly upon that of the officer who made the contract, or some other officer authorized by the head of the Medical and Hospital Department of the Army to act in the premises. No subordinate had any right to interpret the contract aud decide that it called'for 30,000 tons, and direct how it should be distributed. This was what Assistant Surgeon-General Wood undertook to do. That he had no authority from the Department in Washington for his action is manifest from the terms of the instructions under which he was performing duty at Saint Louis, and which are set forth above; but more especially from the instant disapproval of hisaction by the Surgeon-General at Washington, as soon as it became known to him. The fact is, Wood attempted to do what he had not the least authority to do; that is, to make definite and fixed what his superior officers had purposely left indefinite, because, in the nature of the case, they could not fix it; and to interpret, by his judgment, what was, by the terms of the contract, clearly intended to be interpreted by the judgment of his superiors, based on the accruing demands of the service. Beyond question this was making a change in the terms of the contract, and was wholly nugatory; and the claimants were bound to know that he had authority to make such change before they attempted to act in pursuance of it.

In our judgment, the letter of Assistant Surgeon-General Wood was no part of the contract, and imposed no liability on the Government; and, as the claimants’ case rests upon that, their petition must be dismissed.

Boeing-, J., though not present when this opinion was delivered, concurred therein, although he did not agree in the facts found, being of the'opinion that the claimant was not entitled to recover on the evidence.

Nott, J.,

dissenting:

The facts upon which this case turns are, first, that the contract here was made by the Surgeon-General, (for the medical purveyor who signed it was merely one of the Surgeon-General’s staff in Washington;) and, second, that the Assistant Surgeon-General’s order to furnish ice said to the contractor, “The ice to be delivered at Nashville and Memphis -[20,000 tons] is for the use of the sick of the armies in the field, and should be furnished without delay.”

The supplies for the Army are and always have been purchased, so far as practicable, by the Quartermaster-General, the Oommissary-General, and the Surgeon-General. Having thus beeu obtained by the head of the military bureau at the seat of Government, they are then taken in charge and distributed by the chief quartermaster, commissary, or surgeon in the military department or district for which they have been provided; and he represents, and to all intents and purposes is, the Quartermaster-General, Oommissary-General, or Surgeon-General in that department or district. To avoid the risk and inconvenience of actual storehouses or depots of supplies, the contract system has been resorted to, by which contractors furnish as called, upon the supplies of a department or district. These contracts are, in effect, handed over to the chief quartermaster, commissary, or surgeon, and he issues requisitions and takes charge of their performance precisely as though he had made them himself, or as though they were a depot of supplies committed to his official care.

That the Assistant Surgeon-General of the Army in 1863, while in charge, as chief medical officer, of an immense military district, embracing about half the theater of actual warfare, had not the same authority which has been exercised in every branch of the Army in like cases time out of mind; that he had not power to call upon the contractors for his department to furnish the supplies provided for it; that he was the one exception to the universal rule of Army administration; or that it was necessary for the Surgeon-General himself to go down to the department and distribute the supplies which he had provided by contract for it, are propositions which will be regarded by every person conversant with Army matters as purely theoretical or speculative, framed in entire disregard of long-established and well-settled official rules and administrative usages.

But whether the Assistant Surgeon-General had or had not authority to order the ice-contractor for his department to furnish the ice required for his hospitals need not be discussed in this case, inasmuch as the order which forms the basis of the suit, and the cause of the claimants’ damage, was that of the Surgeon-General himself. In the Army, when a superior officer amends, modifies, or changes the order of his inferior, it immediately becomes his order. If the Assistant Surgeon-General had no authority to order the claimant to deliver this icé “ without delay,” as he did, the Surgeon-General, if he did anything, should have revoked the order an^l notified the contractor. He could not adopt it so far as to keep it in suspense, and at the same time declare that it never had vitality. To suspend it was to give it vitality if it had none, and to that extent to ratify it. The same principle prevails in the common law, for there is no such thing as ratifying and not ratifying; as adopting and not adopting; as keeping the act of an agent in existence, and declaring that it never had existence. Somebody had power under this contract to order this contractor to furnish this ice and to designate the places where it was to be delivered; and when the Surgeon-General interfered with the action of the local administrative officer in charge, he was bound to do one thing or the other — to revoke the order for want of authority, or to modify it and assume the consequences.

The question, therefore, is whether this order has caused damage to the claimants, and the nature and the extent thereof.

The terms of the contract were that the claifuant should deliver at designated places “the whole amount of iee required to he consumed at each respective point and vicinity during the remainder of the year 1863,” and that the defendants should pay a designated price “for each and every ton of ice delivered, and accepted by the medical officer in charge.” Upon these obligations the claimant contends that the order to deliver 30,000 tons of ice bound the defendants to accept that quantity as effectually as if it had been written in the contract. It is also insisted that the perishable nature of the commodity, and the fact that the order to deliver was not revoked, but kept in suspense, are distinctions which take the case out of the rule laid down by this court in Bulkley’s Case, (7 C. Cls. R., 543,) which was affirmed by the Supreme Court, (9 id., 81.)

That rule is, that, where parties contract for such unknown amount.as the uncertainty of military affairs may require during a designated period, the contractor thereby agrees to share in that uncertainty, and cannot recover profits unless his services or his merchandise were actually required; but where the defendants throw upon the contractor needless expense by notifying him to perform and then revoking the order, he should recover the damage which he has actually suffered. The fact that this contractor’s commodity was of the most perishable nature was a fact known to him when he agreed to deliver the amount of ice “ required to be consumedand the fact that the order for 30,000 tons was suspended and not revoked goes only to the extent of the loss, and not to the nature of the breach. There is no distinction that I can perceive between the nature of the damage in this and in the former case.

The question then arises, to what extent should the claimant recover? He should not recover the profits which he might have made on the 17,232 tons of ice ordered, but not accepted, because it was not “ required to be consumed.” He should not recover his actual losses upon any ice purchased before the defendants’ order for 30,000 tons was given, for such purchases were made upon his own responsibility and at bis own risk. He should not recover for any ice purchased upon the faith of the order and subsequently delivered to the defendants, for as to such this order caused him no damage. Applying these restrictions to the facts of the case will reduce his recovery to the losses which he.actually suffered on the 10,000 tons of ice purchased at Lake Pepin. That this ice proved a total loss to the contractor, and that he did not involve himself in additional loss by trying to move it after the order was suspended, I deem immaterial. A large quantity of ice is not a commodity that can be handled and thrown upon the market in warm weather, nor sent forward and stored to await a demand. If the order to deliver 20,000 tons at Memj)his and Nashville without delay” had not been suspended on the 2d April, the claimant could have thus disposed of this parcel at Lake Pepin. The order to deliver caused him to purchase it j the suspension of the order occasioned its loss; and for his actual damages thus suffered the defendants are liable.

Peck, J., was not present when the decision was announced, but took part in the consideration of the case and agreed in the opinion read by Nott, J.  