
    SMOOT’S CASE. Samuel S. Smoot v. The United States.
    
      On the Proofs.
    
    
      The ease arises on two contracts, similar to those in Wormer’s Case, (iC. Cls. B., p. 258J and the identical order of the Chief of the Cavalry Bureau. But the claimant does not go to fit. Louis, where one contract is to he performed, nor tender, nor own horses there, nor apply to the chief of the bureau, for permission to perform, according to the terms of the contract. At St. Louis the order is, in fact, suspended in favor of another contractor having a similar contract. The claimant does proceed to Chicago, where his second contract is to he performed, and is ready and willing to perform, hut does not apply to the chief of the bureau to suspendhis order, as Wormer did. LLe is, however, informed by a committee of horse dealers that the chief Of the bureau refuses to suspend the order in any case. At Chicago no horses are, in fact, accepted, except under the inspection required by the order.
    
    I. The willingness to perform, which tlie law exacts of a contractor, must he founded on acts and efforts, and is something more than the mere wish or anticipation of the mind. Where a contractor conjectures that the Quartermaster’s Department will not accept his horses at St. Louis according to the terms of the contract because similar contracts are renounced at other points, and he neither tenders his horses nor requests a suspension of an order issued by tbe Chief of the Cavalry Bureau, which in effect prevents the performance of his contract, he cannot maintain an action for the breach.
    II. Where an order issued by the Chief of the Cavalry Bureau in effect prevents the performance of a prior contract, and the contractor proceeds to the place of performance, and is ready and willing to perform, but' never mates tender of the horses, nor applies directly to the chief of the bureau to suspend the order, he may still recover for the breach of the contract, provided it appears that the order was rigidly enforced at that place, that no horses were accepted by quartermasters in pursuance of similar prior contracts, and that the chief of the bureau notified a committee of horse dealers that he would not suspend the order in any case, which decision was communicated by the committee to the claimant.
    
      Mr. James Hughes & Mr. O. F. Peelc for tbe claimant:
    This is an action brought to recover damages for a breach of two contracts for the sale of horses to the United States. The contracts are in writing-, both dated February 5,1864. The first one is for the delivery of 2,500 horses at St. Louis on or before the 16th of March, 1864. The material provisions, so far as this controversy is concerned, are as follows:
    “ Fourth. It is agreed that the horses, upon being delivered, shall be examined and inspected without unnecessary delay, by a person or persons appointed by the United States, and after such inspector shall have certified that they are in all respects as contracted for, and fully equal to the specifications aforesaid, they shall be received and become the property of the United States; and all such horses as may be condemned and rejected by said inspectors shall be removed from the government stables within one day after the contractor shall have been notified of said rejection.
    The second contract is for the delivery of 2,000 horses at Chicago, Illinois, within'fifty days, and contains the same stipulations, excepting that the average price was to be $124 75.
    Soon after the contracts were signed, the Chief of the Cavalry Bureau issued an order, bearing date February 5, 1864, providing for a new method of inspection. The material parts of this order which enter into the controversy are as follows:
    “The senior inspector will cause the horses furnished under each contract to be placed in the inspection yard at least twenty-four hours before inspecting them; at which time he will require every person except his assistants to leave the yard, and permit no other person to enter it, or handle the horses, until the inspection and branding is completed.
    “ 2. The inspection will be conducted with the view of obtaining sound and serviceable horses, and in such a way as to make it to the advantage of the contractor to identify his interest with those of the government. Therefore, all horses presented that are manifestly an attempt at fraud on the government, because of incurable disease or any purposely concealed defect whatever, shall be branded on the left shoulder with the letter E.
    
      “3. Horses that are rejected for being under age, in poor condition, or temporarily injured by transportation or otherwise, shall be lightly branded on the front part of the forehoof, near the coronet, with the letter E, not to exceed in length three-fourths of an inch. Should any horse thus marked become fit for service before the expiration of one month, he may be again presented for inspection, provided the contractor, before presenting him, shall notify the inspector or inspectors of the fact. Inspectors will be particularly careful in making these re-inspections, and any horse once rejected, that is presented without the required warning, shall be considered as an attempt at fraud upon the government, and be treated as prescribed in paragraph 2.
    
      * * # # # #
    “ 5. When horses are doubtful, before branding they may be kept three or four days, under guard, at the expense of the contractor, be again rigidly examined, and then finally disposed of in accordance with the foregoing rules. No mares will be accepted.
    *###*#
    
      “ 10. Horses will be fed at the expense of the contractors till they have been branded and accepted.”
    Notwithstanding this order, and, in fact, before he had any knowledge of it, the claimant made every effort to procure the horses and comply with the stipulations on his part to be performed •, but finding he was unable to buy horses subject to inspection, and that it was utterly impracticable to purchase them outright and present them as his own property for inspection without incurring certain ruin, he attempted to procure a modification of the order ; in this he was unsuccessful, although it was finally revoked.
    We admit the right of the defendant to provide for an inspection; the contract is explicit upon that point, and it is not necessary for us to contend that the United States could not, after the contract had been signed, change the manner of inspection.
    The material questions are, What is the meaning of the terms “ examined and inspected,” as used in these contracts, and what are the limitations upon the right of one of the parties to provide the method of examination and inspection1?
    Undoubtedly the parties intended by an -inspection, such a physical examination as was reasonably necessary to enable the purchaser to determine whether the horses came within the requirements of the contract, so far as that matter could be determined by an inspection of the animal.
    The terms of the contract plainly import that the expense of this proceeding is to be borne by the G-overnment.
    The limitations upon the right to prescribe the manner of this inspection must be— ■
    1st. That a physical examination of the animal is intended, and not a taking of him on trial.
    2d. The obligation of the contractor is complete when he delivers a suitable horse, and if he is approved and accepted, the acceptance must relate back to the time of delivery.
    3d. No charge can be made to the contractor for the expense or trouble attending the examination of his horses, unless by the terms of the contract he has agreed to pay such charges.
    4th. The examination should be so conducted as not to expose the property to any increased hazard unless such additional hazard is at the risk of the party who conducts the inspection.
    5th. The sole object of the inspection being to determine whether the article offered conforms to the standard fixed by the contract, that question is the only one which the inspector is authorized to pass upon, and his action must be confined to an acceptance or a rejection of the article.
    There is no rule of law or reason which could authorize an inspector to destroy or injure property, not in the course of inspection, but after it was over, as a punishment to the contractor.
    If these principles are correct — and we submit that they will commend themselves to the sense of justice of every man who will fairly consider them — we proceed to apply them to the facts proved in this case.
    
      The government had no right to take our horses on trial for from one to four days. If it had such right as an incident to the inspection, it had no right to require us to pay for the expense of this proceeding, especially as to those horses which should be received.
    The government had no right to expose our horses to the risk of injury and disease by withdrawing them from the care of the owner for three or four days, because this was in no respect necessary to a proper inspection.
    And, lastly, the order to brand those horses not accepted was requiring an act entirely outside of and beyond all matter of inspection.
    
      The Assistant Attorney General for the defendants.
   Nott, J.',

delivered the opinion of the court:

This is an action brought to recover damages for the breach, of two contracts entered into by the defendants: the one for the purchase of 2,500 cavalry horses at St. Louis ; the other for the purchase of 2,000 cavalry horses at Chicago. The aggregate damages are laid at $67,500.

The case grows out of contracts similar to those (and out of the identical order of the Chief of the Cavalry Bureau) which received a judicial construction from this court in Wormer's Case, (4 C. Cls. R., p. 258.)

The distinctive feature of that case was, that while the claimant never owned nor tendered any horses within the time prescribed by his contract, yet that he duly applied to the Chief of the Cavalry Bureau for leave to furnish the horses according to the true intent and meaning of the agreement, which permission the chief refused. Upon these facts, we thought that the contractor should not be required to buy and tender horses; and, indeed, that h'e had no right to make needless damages by buying and tendering them, when the defendants had notified him that they would not accept. While there are some points of similarity, there are also some points of difference between that case and this, which will be considered with regard to each of the claimant’s contracts.

I. As to the St. Louis contract, the claimant never went to St. Louis, nor tendered nor owned horses there, nor made any effort or preparation toward filling his contract at that point; nor did he apply to the Chief of the Cavalry Bureau to suspend his order, or to make an exception in favor of his, the claimant’s, preexisting contract. It appears also that the order which constituted an impediment to the performance of the contract was not, in all cases, enforced at St. Louis ; and that, in at least one case, permission was given to the contractor to proceed according to the terms of his agreement, without exacting the inspection which the order required. The claimant was able, and, as profits would accrue, doubtless willing, to perform; but the willingness which the law exacts is one founded on acts and efforts, and not the mere wish or1 anticipation of the mind. The law requires of the contractor all that he can reasonably do, amid the circumstances, toward fulfilling his contract. This contractor did not do all that he could, but, on the contrary, contented himself with a conjecture that as the government’s agents had erred at one place, they would continue to err at all others. The defendants are now called upon to respond for the errors of their agents, and they, the defendants, being innocent, those errors cannot be established by conjecture. The claimant, indeed, applied to Colonel Ekin, of the Quartermaster Department at Washington; but Colonel Ekin properly referred him to his superior, the Chief of the Cavalry Bureau. To that officer h'e should have gone. This branch of the case must be adjudged in favor of the defendants.

II. As to the Chicago contract, the facts differ in two particulars from Wormerh Case. Wormer’s contract was not to be performed at Chicago, but he went to that place while the Chief of the Cavalry Bureau was there, and made his demand upon him then. Chicago was the point where this claimant’s contract was to be performed, and he went there at the proper time, but failed to see the Chief of the Cavalry Bureau. It however appears that the order was publicly promulgated, and rigidly enforced at Chicago; that no quartermaster was permitted to, or did in fact, accept horses, except under the inspection it enjoined; that the claimant saw a number of horse contractors who had applied to the chief, and was informed fully of the fact that that officer positively refused, and repeatedly avowed that he would allow no horses to be received under any contract. Some of these dealers went, moreover, on behalf of all the others then in Chicago; and, although no formal demand was made on the chief in the name of the claimant, they were to all intents and purposes, bis messengers and agents for that purpose. If tbe defendants bad shown that any exception to tbe rule of tbe order was made at Chicago, tbe presumption might be different,* as it is, we think that the claimant’s proceeding to Chicago, taken with tbe other circumstances of tbe ease, evidence tbe fact that be was willing to perform, and was prevented by tbe defendants’ renunciation of their agreement.

Tbe judgment of tbe court is that tbe claimant recover of tbe defendants, on tbe second cause of action in tbe petition alleged, tbe sum of $20,000; and as to tbe first cause of action, that tbe petition be dismissed.

Casey, Ch. J.,

dissenting:

The record shows that tbe claimant knew of tbe existence of these orders of inspection, to which be now objects, about tbe time of tbe signing of tbe contract; and it does not appear that be made any objections then to these rules. Instead of that be went off to New York, and did not himself go either to Chicago or St. Louis, with a view of performing his contract.

Tbe evidence clearly shows that tbe claimant did not intend to fill, but to sell tbe contract, and have others to fill it, which tbe law expressly forbade. Besides, I do not think these rules of inspection relieved tbe claimant from tbe fulfilment of bis contract. Tbe United States bad a right to protect themselves against tbe fraud of contractors and tbe collusion of inspectors, and these rules, in my opinion, did nothing more. And, in my opinion, this case is without any shadow of equity, and should be dismissed.

Peck, J., did not sit in this case and took no part in tbe decision.  