A. contracted with the government to transport a large quantity
of army supplies, the government agreeing that in order that he
should be in readiness to meet its demands for transportation, due
notice should be given to him of the quantity to be transported at
any one time. The government gave him notice that transportation
would be required at a time named for a certain large amount of
supplies specified, and inquired if he would get ready. He replied
affirmatively, and did get ready. The government at the time named
furnished a small part of the supplies of which they had given
notice to the contractor, but not needing transportation for the
much larger residue did not furnish that. On suit by the contractor
against the government for profits which he would have made had the
supplies been furnished as he received notice that they would be,
held, that the notice did not amount to an agreement to
furnish the amount of supplies specified, and therefore that the
contractor could not recover the profits which he would have made
had the freights withheld been furnished to him.
Held further that, the government having thrown upon
him needless expense by requiring him to make ready for the
transportation of freights under the contract, which they did not
in the end require to be transported, he was entitled to recover
for the expense to which he was thus subjected.
Appeal from the Court of Claims, in which court H. S. Bulkley
filed a petition against the United States to recover damages on a
contract for the transportation of army supplies in the West, by
which, as he alleged, the government, after having given him notice
that it would furnish to him certain supplies for transportation,
and not having furnished
Page 86 U. S. 38
them (he having made his preparations to transport them), became
bound to pay to him the profits which he would have made had the
supplies been so furnished and transported.
The Court of Claims decreed against the claim, and he took this
appeal.
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
the Court.
The result of the case here depends upon the construction to be
given to the fourth article of the contract between the
parties.
Bulkley agreed to transport any quantity of such supplies --
between 100,000 and 10,000,000 pounds -- that might be turned over
to him for that purpose, from April to September, 1865. The fourth
article provided:
"That in order that the said H. S. Bulkley shall be in readiness
to meet the demands that shall be made upon him for transportation
under this contract and agreement, due notice shall be given him or
his agent of the quantity and kind of stores to be transported at
any one time, at what points the stores will be ready for delivery
to him, and the place of their destination, subject to such changes
as shall be decided upon while
in transitu, as herein
provided for, that is to say,"
&c.
The period of the notice before the time of performance in each
case was then prescribed, being twentyfive days for 300,000 pounds,
and increasing according to the increased quantity of the stores
specified. On the 4th of June, 1865, an officer of the government
advised Bulkley that transportation from Fort Leavenworth to the
extent of 1,700,000 pounds was needed, and inquired whether, as he
had been notified already to the extent of his contract, he was
prepared to transport that additional quantity of freight. He
assented. This enlarged so far the maximum quantity covered by the
contract.
Page 86 U. S. 39
The Court of Claims found that of the freights notified under
the fourth article, the United States did not need transportation
for 1,690,074 pounds, and to that extent, therefore, did not offer
any to him. It was further found that Bulkley, on his part, was
prepared and ready to transport all such freights, and so notified
the proper officers of the United States. The court held as a
conclusion of law that he could not recover the profits he would
have made had the freights withheld been furnished to him, but that
the United States having thrown upon him needless expense by
requiring him to make ready for the transportation of freights
which they did not in the end require to be transported, he was
entitled to recover for the expense to which he was thus subjected.
Bulkley, insisting upon profits as the measure of his damages,
declined to furnish proof of the expense incurred. The Court of
Claims thereupon dismissed his petition, and he has removed the
case to this court for review. Here the claim for profits, as the
rule of compensation, is renewed.
It is insisted that every notice was a specific agreement within
the original contract on the part of the government that the
freights specified should be furnished, and that the United States
are liable accordingly.
We think this theory cannot be maintained, and that the Court of
Claims came to the right conclusion.
Outside of the fourth article there is nothing in the contract
which gives the slightest support to the claim. The other
stipulations are that Bulkley should transport in the manner
provided, and within the times mentioned, all the freights between
the
maximum and
minimum quantities specified that
should be offered to him. If none had been offered he would
certainly have had no claim upon the government for anything. The
fourth article provides that in order that he might be in readiness
to meet the demands of the government, due notice should be given
him of the time, place, quantity, and kind of stores to be
transported and their place of destination. There is still no
agreement to furnish such
Page 86 U. S. 40
freights, or any freights. The effect of the notice was to
signify a purpose on the part of the government, and that purpose
was liable to be changed at any time before it was executed.
Indeed, it is expressly stipulated that it might be altered while
the stores were
in transitu, and there is no limit
prescribed as to the extent or character of the changes that might
be made. If, the day after the transportation commenced, the wagons
had been ordered back to their place of departure, unloaded, and
the transportation abandoned, there would have been no breach of
the contract. The change would have been within its letter and
meaning.
A multo fortiori might such a change be made and
carried out before the transportation began. If it were intended
that after the notices were given the government should be bound as
claimed, that intent should have been expressed in the contract. It
is neither expressed nor implied. It was doubtless known to the
officer who entered into the contract on behalf of the United
States, that in the exigencies of the public service, more or less
transportation, or none, might be required at any given time or
place contrary to what had been anticipated and intended down to
the last moment. Hence, while it was stipulated that actual
transportation should be paid for at the rates specified, an
unfettered discretion was reserved to the government as to
everything beyond that point. It is to be presumed that with this
view the contract was framed as we find it. It commits the
government to nothing but to pay for service rendered. It is partly
printed and partly written, and is according to the formula used by
the government in all such cases. In making ready to meet the
requirements of the notices, Bulkley was subjected to the loss of
time, to trouble, and expense. He is entitled to be paid
accordingly. Such is the implication of the contract, and what is
implied in a contract, deed, will, or statute is as effectual as
what is expressed.
* Human affairs are
largely conducted upon the principle of implications.
Page 86 U. S. 41
In relation to the large amount of stores transported there is
no complaint. It is to be presumed that everything in relation to
them has been satisfactorily adjusted. This claim is confined to
stores not transported.
Although we concur entirely with the Court of Claims in their
view of the case, yet as the appellant acted in that court upon a
mistaken notion of his rights, the judgment will be reversed and
the cause remanded that he may have another opportunity to produce
the proof which he before declined to give. If he shall again
refuse, the petition must be finally dismissed.
Cause remanded.
*
United States v.
Babbit, 1 Black 61.