A contract entered into between A. and the Quartermaster's
Department of the Army for the delivery of a number of cords of
wood at a post on a military reservation, stipulated that no
traders, suttlers, contractors, civilians, or others should be
allowed to cut timber about said post, until all required by the
United States for certain purposes was secured. The contractor cut
a part of the wood on the reservation, when he was directed by the
post commander to cut outside the reservation, which he did. Having
performed his contract, he was paid in full for all the wood
delivered thereunder.
Held that the contract prohibited
him from cutting wood within the reservation, and that he cannot
recover damages for any expense he incurred by reason of being
compelled to cut and haul, from a point outside the reservation,
the wood necessary to complete his contract.
This suit was brought by Charles Francis, for the use of Nathan
Myrick, to recover damages on account of extra expenses incurred in
the performance of a contract entered into, May 8, 1869, between
Francis and the chief quartermaster of the Military Department of
Dakota, for the delivery by the former, on or before Jan. 15, 1870,
of a number of cords of wood at certain military posts -- among
others, at Fort Ransom, Dakota Territory, one thousand cords. The
contract
"stipulated and agreed that no traders, suttlers, contractors,
civilians, or others should be allowed to cut timber about the post
of Fort Ransom, D.T., until all required by the United States, for
certain purposes herein specified, should have been secured."
This stipulation was inserted pursuant to General Order No. 18,
which is as follows:
"HEADQUARTERS DEPARTMENT OF DAKOTA"
"SAINT PAUL, MINN., May 12, 1868"
"Post commanders in this department will assume control of all
timber, wood, hay, and grazing upon the public lands adjacent to
their respective posts, which are required for the public use
thereat. Notice of the reservation of the timber, wood, &c.,
thus made will be thoroughly circulated in the manner best
calculated to inform all who are or may become interested, in order
to avoid all disputes of rights which might arise through
ignorance."
"On all such reservations suttlers, traders, and civilians
generally
Page 96 U. S. 355
will not be allowed to cut timber, wood, nor hay, nor be allowed
to graze animals, until the wants of the garrison are supplied for
the year."
"By command of Brevet Major-General Terry."
"O. D. GREENE"
"
Assistant-Adjutant-General"
The Court of Claims found that the post of Fort Ransom was
situated on the public domain, surrounded by the public lands of
the United States, and had, by an order from the headquarters of
the Department of Dakota, dated May 18, 1869, which was approved by
the Secretary of War and by the President Jan. 11, 1870, been
declared a military reservation by that name, with the following
boundaries:
"The initial point is eight miles due south of the southwest
angle of the fort; thence due east five miles; thence due north ten
miles; thence due west ten miles; thence due south ten miles;
thence due east five miles to the initial point."
That prior to June 1, 1869, but near that time, the claimant
commenced cutting wood on said reservation, at a point about a mile
and a half from the fort, and had cut about forty cords, when he
was ordered by the post commander to desist, and remove beyond the
lines of the reservation. He then removed to a point within them,
about four miles from the fort, and there cut three hundred and ten
cords, when the post commander ordered him to stop cutting at that
place, move off the reservation, and not to cut any wood within the
lines thereof, but to cut wherever he pleased outside of them. The
contractor then and there claimed the right, under his contract, to
cut on the reservation, which claim the post commander refused to
recognize. Thereupon he cut the remaining six hundred and fifty
cords required to be furnished by him at a point about seven miles
from the fort, and from half a mile to a mile beyond the lines of
the reservation.
That in September, 1869, the claimant commenced hauling to the
fort the wood which he had cut on the reservation at a point four
miles from the fort, when the post commander stopped the work, and
would not permit him to haul the wood, because it had been cut
within the lines of the reservation in disobedience of positive
orders.
Page 96 U. S. 356
The claimant appealed to General Hancock, who overruled the post
commander, decided that the contractor had a right to cut wood on
the reservation, and to haul what had been so cut. By reason of the
order of the post commander, nine teams of the claimant remained
idle thirteen days, to his expense of $468; but it does not appear
that he might not have employed them during that time in hauling
the wood cut off the reservation, which he was not prohibited from
moving.
That there was sufficient wood on the reservation for the known
wants of the post, and the claimant could have obtained, either at
or near the place where he cut the first forty cords, or at the
place where he cut the three hundred and ten cords, the whole
quantity required by the contract, had he not been interfered with
by the orders of the post commander.
That by reason of said orders, and by being compelled thereby to
cut the remaining quantity of wood at greater distances from the
fort, he was subjected to an additional expense of $2,132, in
hauling the same to the place of delivery.
That it does not appear how much more expense, if any, the
claimant was subjected to by reason of cutting the six hundred and
fifty cords outside of the reservation, over and above what he
would have incurred had he been permitted to cut them within it, at
the place where he cut the three hundred and ten cords, and from
which he was ordered away by the post commander.
That the claimant has been paid for one thousand and three cords
of wood, delivered under the contract, the money therefor having
been paid at different times, and a receipt therefor given in full
for the quantity delivered.
On the foregoing facts, the court concluded as a matter of law
that the claimant was not entitled to recover, and it dismissed his
petition. He thereupon appealed to this Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Post commanders in the military department where the present
controversy arose were ordered to assume control of all timber,
wood, hay, and grazing upon the public lands adjacent
Page 96 U. S. 357
to their respective posts to the extent that the same were there
required for the public use.
Supplies for the post were usually obtained by contract, and it
appears that a contract was made between the petitioner and the
quartermaster of the department by which the former agreed to
deliver and pile in the wood yard of the post one thousand cords,
more or less, of good, sound, merchantable oakwood to be delivered
at the times specified, subject to such inspection as the
quartermaster should deem necessary. Superadded to that is also the
stipulation that no trader, suttler, contractor, or civilian will
be allowed to cut timber about the post, and it appears that the
post referred to is situated on the public domain, and that it was
surrounded by the public lands.
Before the work was commenced, the contractor executed a power
of attorney to the person for whose use the suit is brought, and it
appears that the attorney did all the work under the contract as
agent for and in the name of the contractor.
Pursuant to the contract, due deliveries were made by the
attorney to the amount of one thousand and three cords of wood, for
which he was paid at different times, he receipting for the same as
attorney in fact of the contractor, in full for the quantity
delivered. Payment in full for all that was delivered is
established by the findings, but the petitioner insists that the
United States broke the contract by not allowing the attorney to
cut the wood within the defined limits of the post, that he was
refused that privilege, and that he was compelled to cut it at a
greater distance from the place of delivery, at an expense of
$2,132 beyond what it would have cost if he had been allowed to cut
it within the military reservation, as he had a right to do under
the contract, for which he claims compensation, and he also alleges
that the United States obstructed the delivery of the wood, so as
to cause him an additional expense of $468, which he also claims to
recover.
Hearing was had, and the Court of Claims dismissed the petition,
and the claimant appealed to this Court.
Throughout, the attorney or agent of the contractor claimed the
right to cut the wood within the military reservation, evidence of
which is seen in the fact that he commenced cutting
Page 96 U. S. 358
about a mile and a half from the fort, where he cut forty cords
before he was ordered by the post commander to desist, and to
remove beyond the lines of the reservation. Whatever he may have
claimed, he obeyed the order, and removed to another point, four
miles from the fort, though still within the reservation, and there
he cut three hundred and ten cords of the wood, when the commander
of the post ordered him to stop cutting at that place, and to move
outside of the reservation. Responsive to that order, he set up the
claim that he had a right under the contract to cut the wood within
the reservation, but the post commander refused to recognize any
such right and denied the claim.
Opposite views were evidently maintained by the parties, but the
claimant yielded and cut the balance of the wood required, to-wit,
six hundred and fifty cords, at a point half a mile or a mile
beyond the limits of the reservation and about seven miles from the
fort.
Neither party attempted to rescind the contract; nor did the
agent of the contractor cease to act under it, as he completed the
cutting of the wood, and subsequently delivered it at the place
designated in the contract, and collected the amount due to him at
the contract price. Quantity, price, and place of delivery are all
fixed in the contract, but nothing is said about the place where
the wood is to be cut except what may be properly inferred from the
provision that no traders, suttlers, contractors, civilians, or
others shall be allowed to cut timber about the post until all
required by the party of the second part, to-wit, the United
States, for the purposes herein specified, shall have been secured,
and that it shall be the duty of the post commander to enforce the
stipulation as made and provided.
Beyond all question, the post commander denied the right of the
attorney under the contract to cut the wood within the lines
designating the military reservation, and it is equally clear that
the agent of the claimant finally acquiesced in the views of the
post commander so far as respects the cutting of the wood.
Damages are claimed by the petitioner because he was not allowed
to cut the wood within the military reservation, but it is clear
that the claim cannot be supported for several reasons,
Page 96 U. S. 359
either of which is sufficient to show that the judgment of the
court below is correct:
1. Because the terms of the contract do not give the contractor
the right which he claims.
2. Because the contract, when properly construed, prohibits the
contractor from cutting wood within the reservation.
3. Because the contractor having acquiesced in the order of the
post commander, and cut the wood outside of the reservation, and
having since hauled and delivered the wood, and received his pay in
full for the same under the contract, it is too late to prefer such
a claim against the United States.
Controversy respecting the cutting of the wood ceased when the
cutting was completed, but when the claimant commenced hauling the
wood cut within the reservation, four miles from the fort, the post
commander stopped the work and would not permit him to haul the
wood, because it had been cut within those lines in violation of
positive orders. To that decision the claimant objected, and
appealed to the commanding general, who overruled the order of the
post commander and decided that the contractor had a right to cut
wood within the reservation and to haul that which had been so cut.
What the contractor then wanted was not the privilege of cutting
wood within the reservation, but the right to haul that which he
had previously cut within those lines in violation of the post
commander's orders, and, his appeal having been sustained, he was
allowed to haul the wood as he claimed the right to do. Having
previously cut the wood, he wanted to haul it to the place of
delivery, and he was permitted to do what he desired.
Suppose the decision of that high officer is correct, which is
not admitted, it is clear that it cannot benefit the claimant so
far as respects the cutting of the wood, as it was all cut before
the appeal to that officer was taken, and there is no pretense that
the claimant ever afterwards attempted to cut any wood within the
lines of the reservation or that any request of his for such
permission was ever after that refused.
Viewed in the light of these suggestions, it is clear that the
petitioner is not entitled to recover anything for the alleged
extra expense of hauling the wood to the place of delivery in
consequence of the refusal of the post commander to allow him to
cut it within the lines of the military reservation.
Page 96 U. S. 360
Even suppose that it is so, still it is insisted by the
petitioner that inasmuch as the order of the post commander
stopping the work of hauling the wood cut within the reservation
was overruled by the commanding general, he, the appellant, is
entitled to recover for the damage which he suffered by his teams'
remaining idle for thirteen days; but the Court is not able to
sustain that proposition, as it appears that he delivered the wood
under the contract, collected and received the contract price for
the same, and gave receipts in full for the same as a transaction
completed in pursuance of the written contract set forth in the
petition. Competent evidence of such acts is sufficient to prove an
accord and satisfaction, and they show that there is no error in
the record.
Judgment affirmed.
