In an action against the sureties on a contractor's bond to the
United States to recover damages suffered by reason of the
nonfulfillment of the contract, the burden of proof is on the
United States to show a demand upon the contractor for performance
and his failure and refusal to perform, and a statement of such
nonperformance, demand, failure and refusal, made by an officer of
the government in the line of his official duty in reporting them
to his official superior, is not legal evidence of any of those
At law, on a contract. Judgment for defendants. Plaintiffs sued
out this writ of error. The case is stated in the opinion.
Page 129 U. S. 382
MR. JUSTICE LAMAR delivered the opinion of the Court.
On the 17th of November, 1883, the plaintiffs in error brought
suit in the Circuit Court of the United States for the Western
District of Texas against the defendants in error, Dennis Corwin
and John Cardwell, as sureties in two bonds, one in the penal sum
of $3,000, and the other, $2,150, given by one Edwin P. Phillips to
secure the faithful performance of two contracts, dated May 20,
1881, between Phillips and these plaintiffs. Phillips, being
without the jurisdiction of that court, was not sued. By one of
these contracts, Phillips agreed to furnish to the Quartermaster's
Department, United States Army at the military station of San
Antonio, Texas, "such quantity as may be required, not exceeding in
all 1,000,000 pounds, of good merchantable oats" at a stipulated
"the said oats to be furnished and delivered as may be required
for the wants of the said station, between the 1st day of July,
1881, and the 13th day of July, 1882, in such quantities and at
such times as the receiving officer may require,"
and by the second contract he agreed to furnish to the same
authorities at the same place such quantity as may be required, not
exceeding in all 1,000,000 pounds, of good merchantable corn at a
stipulated price, between July 1, 1881, and June 30, 1882, upon
like terms, as to quantity and time of delivery, as in the case of
the oats. The petition, after setting out the material parts of
both of these contracts and also of the bonds, alleged that
Phillips "wholly failed, refused, and neglected to carry out anyone
or all of his stipulations in said agreements," that, as a result
of such failure on his part, the plaintiffs were compelled to, and
did, go into the open market and purchase large amounts of both
kinds of grain at a much higher price than was stipulated in said
contracts, and that plaintiffs were thus subjected to a loss of
$11,564.55, for which sum, or so much thereof as
Page 129 U. S. 383
did not exceed the amounts named as penalties in the bonds,
together with interest and costs, etc., they prayed judgment.
Each of the defendants below demurred to the petition, and at
the same time traversed its allegations.
August 24, 1884, a formal stipulation was filed waiving a jury
and submitting all matters of law and fact to the court. On the
following day, an amendment to the petition was filed alleging that
on the 8th day of July, 1881, demand was made on Phillips, under
the contract, for the delivery of 150,000 pounds of corn and a like
quantity of oats. Issue being joined, the United States introduced
their evidence, which was wholly documentary and consisted of
transcripts of various original papers deposited in the Treasury
Department, and which it was claimed was relevant to the case. The
defendants in error offered no evidence at all. On the 3d of
September, 1885, the court overruled the demurrers to the petition,
and upon consideration of the case upon its merits rendered
judgment in favor of the defendants in error upon the ground that,
under the contracts sued on, a demand upon Phillips for their
performance was a condition precedent to the right of action on the
bonds, and that there had been no legal evidence submitted showing
that any demand ever had been made. From this judgment the United
States sued out the writ of error which brings the case here.
The burden of proof was upon the United States to show that a
demand had been made upon Phillips for the performance of each of
his said agreements and to show his failure and refusal to so
perform them. The evidence submitted by the United States to
establish this demand and refusal consisted of several letters of
different dates written by the quartermaster in charge of the depot
at San Antonio to the chief quartermaster of the Department of
Texas for authority to purchase certain stated amounts of oats in
open market, because (as was alleged therein) Phillips had failed
to make deliveries under his contract, all of which letters were
referred by the last-named officer to the adjutant general with a
recommendation that such authority be granted. The adjutant general
approved these requests, and
Page 129 U. S. 384
the purchases were accordingly made. These letters were
substantially alike, differing only as to dates and amounts of oats
desired, one of which, including endorsements, is as follows.
"Office Depot Quartermaster, U.S. Army"
"San Antonio, Texas, Aug. 2d, 1881"
"Chief Quartermaster, Department of Texas, San Antonio"
"Sir: I respectfully request authority to purchase 40,000 lbs.
of oats, in open market, the contractor, Mr. E. P. Phillips, having
failed to make deliveries under his contract."
"Very respectfully, your obedient servant,"
"L. E. CAMPBELL"
"Capt. & A. Q. M., U.S.A. Depot Q'r M'r"
"H'dq'rs, Dep't of Texas"
"Office of Chief Quartermaster"
"San Antonio, Texas, Aug. 2d 1881"
"Respectfully referred to the Adj't General, Department of
Texas, recommending approval of this request in accordance with
article 1 of the contract. Mr. Phillips, after having had due
notice by requisition from the depot quartermaster to furnish
certain quantities of grain, has so far failed to make any
delivery, and the amount of grain for which authority is here
requested to purchase in open market is absolutely needed for issue
to the public and private animals pertaining to this station, and
the San Antonio depot, and will last about ten days."
"[S'g'd] WM. B. HUGHES"
"Major & Chief Q'rmaster"
"Headquarters Department of Texas"
"Aug. 3, 1881"
"Respectfully referred by the Commanding General to the Chief
Quartermaster of the department, approved."
"[S'g'd] THOMAS M. VINCENT"
Page 129 U. S. 385
"Headq'rs, Dep't of Texas"
"Office of Chief Quartermaster"
"San Antonio, Texas, August 3, '81"
"Respectfully referred to the Depot Quartermaster, San Antonio,
inviting attention to preceding endorsement."
"[S'g'd] W. B. HUGHES"
"Major & Chief Quartermaster"
We agree with the circuit court that the transcript does not
present any legal evidence of a demand upon the contractor, nor of
any such default on his part as to give the United States a cause
of action against him and his sureties. The order of the receiving
officer at San Antonio requiring the contractor to deliver the oats
in the quantity stated and at the time specified should have been
produced or its nonproduction accounted for. The letters of the
acting quartermaster, Capt. Campbell, applying for authority to
purchase oats, and the recommendation by Maj. Hughes that the
application be granted only prove the necessity and object for such
purchase. The assertion by Maj. Hughes that the contractor, though
duly notified by requisition, had failed to comply with his
contract is unsustained by any evidence of any kind. No such
requisition can be found among the papers, nor is any reason given
for its nonproduction. Neither is it shown, except by the bare
assertion referred to, that the requisition ever reached the
It is contended by the counsel for the government that this
assertion, being in the official communication of the Chief
Quartermaster of the Department of Texas, is itself sufficient and
competent evidence of the fact. We do not think that the
authorities cited support the proposition. They present
applications in various instances of the well established rule that
official reports and certificates made contemporaneously with the
facts stated, and in the regular course of official duty, by an
officer having personal knowledge of them are admissible for the
purpose of proving such facts. Manifestly the
Page 129 U. S. 386
design and meaning of this rule is not to convert incompetent
and irrelevant evidence into competent and relevant evidence simply
because it is contained in an official communication. Had the
officer been testifying under oath, such an assertion would have
been excluded as inadmissible upon the ground that the statement
itself implied the existence of primary and more original and
explicit sources of information. Clifton v.
4 How. 242, 45 U. S. 247
Taylor Ev. §§ 391, 394; 1 Greenl. Ev. §§ 82, 84. The courts hold
this rule which has been invoked to be limited to only such
statements in official documents as the officers are bound to make
in the regular course of official duty. The statement of extraneous
or independent circumstances, however naturally they may be deemed
to have a place in the narrative, is no proof of such
circumstances, and is therefore rejected. 1 Taylor Ev. § 705;
United States v.
3 Pet. 12.
It results from what we have said that there was no evidence
submitted showing a demand by the United States under the first
contract and a failure and refusal by Phillips to perform it. As to
the contract for supplying corn, it is admitted by the United
States that their evidence in support of their claim is not so
strong as in the case of the contract for supplying oats. The only
evidence touching the contract to supply corn was certain vouchers
for corn purchased outside the contract, all dated in the latter
part of the year 1881 and the early part of 1882. In the language
of the counsel for plaintiffs in error,
"we find no correspondence, nor any other form of documentary
evidence, tending to show that the demand for performance required
by the contract to supply corn had been made by the
The judgment of the circuit court is