When a contractor, upon demand of the government, delivers under
protest goods in an amount exceeding that which his contract call
for at the time, and, the protest being ignored, thereafter accepts
without protest the contract price, there is no ground for implying
a contract upon the government's part to pay the market price,
though higher. P.
271 U. S. 142.
59 Ct.Cls. 932 affirmed.
Appeal from a judgment of the Court of Claims rejecting a claim
for the difference between the contract and market prices of hay
delivered to the government.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a suit against the United States for $22,000, balance
due for hay delivered. Appellant made a contract with the
government the 31st of July, 1917, by which it agreed to furnish,
during the period beginning August 1, 1917, and ending September
30, 1917, such hay as might be required by the government during
July and the first half of August of 1917, not to exceed 6,000,000
pounds at 97 1/2 cents per 100 pounds, and such hay as might be
required during the last half of August and all of September, 1917,
not exceeding 6,000,000 pounds at 95 cents per 100 pounds, to be
delivered f.o.b. cars at Newport News, Virginia, subject to call of
the government in lots not to exceed 1,000,000 pounds per lot.
The
Page 271 U. S. 141
government made calls which the plaintiff filled as follows:
Call No. 1, 500,000 pounds, August 15, 1917.
Call No. 2, 1,050,000 pounds, August 20, 1917.
Call No. 3, 2,000,000 pounds, September 5, 1917.
Call No. 4, 4,450,000 pounds, September 12, 1917.
These calls were all filled without protest, though the later
calls were for amounts greater than 1,000,000 pounds. When the
final and fifth call was made for 4,000,000 pounds, the appellant
objected that the call was for more pounds of hay than the contract
allowed for any one call. That objection was not made until it was
too late for the defendant to amend the call. The appellant's
vice-president then wrote to the government officer in charge that
the fifth call was not deemed by the plaintiff to be in accord with
the contract, and that the plaintiff did not intend to fill it.
Under the terms of the contract, appellant had until November 15th,
being three months from the date of the first call, to complete its
deliveries. On November 19th, the camp quartermaster wired to the
appellant,
"Amount hay on hand will supply needs to December 4th. Require
prompt delivery 4,000,000 pounds. Advise at once your action,
otherwise must buy in open market."
After further exchange of telegrams, plaintiff sent the
following telegram to the camp quartermaster under date of November
21, 1917:
"We will start shipping hay immediately, and in case you need
any before arrival, will arrange to have Hiden loan us a supply.
Want it distinctly understood that we are doing this under protest,
and are going to put the matter up to proper authorities in
Washington, and if they rule in our favor, want settlement at fair
market price for amount we overfill. Will you wire C. S. Ruttle,
General Agent, D.BC. & W. Railway, to furnish equipment
immediately as we request for hay to ship to you? Answer. "
Page 271 U. S. 142
The plaintiff delivered under protest the remaining 4,000,000
pounds of hay. Thereafter the plaintiff accepted without protest
the sum of $38,000 which was all that was due under the contract.
The plaintiff then filed this claim for $22,000 with the Acting
Quartermaster General of the United States Army, with the Auditor
for the War Department, with the Secretary of War, with the
Comptroller of the Treasury, and with the Board of Contract
Adjustment, all of whom, in turn, decided that the claim could not
be paid.
The appellant had the option of delivering the remainder of the
hay under the terms of the contract, or of not delivering it at
all, if the contract had been broken. It chose to deliver. It made
a protest, but that was ignored by the officers of the government,
and when the government tendered the contract price, it was
accepted by the appellant, and without protest. Under such
circumstances, there is no ground for implying a contract to pay
more than the contract price.
New York, New Haven & H. R.
Co. v. United States, 251 U. S. 123,
251 U. S. 127;
Nelson Co. v. United States, 261 U. S.
17,
261 U. S. 23;
Willard Sutherland & Co. v. United States,
262 U. S. 489,
262 U. S. 494;
Atwater & Co. v. United States, 262 U.
S. 495,
262 U. S.
498.
The judgment of the Court of Claims is
Affirmed.