1. In the Court of Claims, the government is liable for refusing
to receive and pay for what it has agreed to purchase.
2. When an individual who has been absolved from such a contract
by the refusal of the proper officer to receive the articles when
tendered afterwards consents to deliver them under a threat of the
officer that he will withhold money justly due to the plaintiff, he
can only recover the contract price, whatever may have been the
current market value of the articles.
3. The government is not liable on an implied assumpsit for the
torts of its officer committed while in its service and apparently
for its benefit.
4. To admit such liability, would involve the government in all
its operations, in embarrassments, losses, and difficulties,
subversive of the public interest.
5. When the injury to individuals in such cases merits redress
by the government, the remedy is with Congress. The statute does
not confer jurisdiction on the Court of Claims.
Gibbons entered into a contract with the United States for the
delivery of two hundred thousand bushels of oats within thirty days
from the date of the contract.
He delivered a portion of the oats, and was ready and offered to
deliver the residue within the thirty days, but was prevented by
the officers of the United States from so doing; they would not
receive it, because they had not convenient storehouses for it.
Page 75 U. S. 270
Subsequently to this refusal, the quartermaster having charge of
the contract on the part of the United States sent an "orderly" to
Gibbons, requesting his immediate presence with the messenger at
the quartermaster's office. This was understood by Gibbons to be an
arrest. About the same time, notice was given to him that he must
deliver the residue of the oats specified in the contract under
penalty of a purchase in open market, the difference of cost to be
charged to him. The quartermaster at this time held a large sum of
money in his hands, the price of grain before that time delivered.
Gibbons remonstrated, contending that the contract was at an end.
Influenced, however, by the above-mentioned assumption of power and
by the threats used, or by some reason, he did deliver the quantity
of oats sufficient to make in all the amount specified in the
contract.
By this time oats had advanced in price, and the price which
Gibbons was compelled to pay in the market to get them exceeded the
amount paid to him by the government, as he alleged, 8 3/4 and 12
cents per bushel.
Gibbons was compelled to pay $333 demurrage on certain vessels
which were laden with a portion of the oats, and which were
detained by the government officers in receiving the cargoes.
On final settlement with the quartermaster, he was charged for
8,000 bushels of oats purchased by the quartermaster in open market
after the expiration of the contract at an advanced cost of 12
cents per bushel. This money was detained from him.
On this case, the Court of Claims -- upon the petition of
Gibbons setting forth a claim for the difference, 8 3/4 and 12
cents per bushel, in the price of oats, delivered after the
expiration of his contract, for demurrage, "for damages sustained
by failure of the government to receive oats under contract at the
time of delivery, $400," and for the money detained, but not
alleging anything about duress -- thus announced its conclusions in
law:
"The obligation on the part of the government under the contract
to receive the oats when they were offered, was as
Page 75 U. S. 271
strong as the obligation to deliver. The plaintiff was not bound
under a continuing obligation, and as he had made a reasonable
offer, which was improperly refused, that put an end to the
contract, and he was released from his obligation by the conduct of
the government. The officers who threatened him had no authority to
compel him to deliver the oaths, and the threats used were
superserviceable and improper. If he was so unwise as to submit to
the unauthorized menaces of the quartermaster, he must take the
consequences. Hence, he cannot recover the difference in price
between that named in the contract, and that ruling in market after
its expiration."
"Nor can the government withhold from the sum justly due to the
plaintiff, any difference which was paid for oats purchased after
the expiration of the contract exceeding the price fixed by
it."
"Therefore the plaintiff should recover the sum withheld at the
time of settlement; also the demurrage."
Judgment being entered accordingly, Gibbons, claimant in the
case, appealed to this Court.
Page 75 U. S. 272
MR. JUSTICE MILLER delivered the opinion of the Court.
The facts found by the Court of Claims show that under the
original contract between the plaintiff and the United States, the
plaintiff had delivered part of 200,000 bushels of oats which he
had agreed to deliver and had tendered the remainder, and that the
quartermaster to whom they were properly tendered had refused to
receive them. If the plaintiff suffered any loss by that refusal,
he is entitled to recover for it in this action. But the only items
of his account which
Page 75 U. S. 273
refer to this part of the transaction were allowed to him by the
court, except the claim of $400 damages for failure to accept the
oats, and there is no evidence that he lost anything by this
refusal. On the contrary, it appears that oats had risen in the
market above the contract price, so that the presumption is that he
was benefited instead of injured by the refusal of the officer to
accept the oats when offered.
But after all this had passed and the time for delivering the
oats had expired, the quartermaster in charge of the matter
demanded of the plaintiff that he should still furnish the quantity
of oats necessary, with what had been received, to complete the
200,000 bushels at the price stipulated in the original agreement.
The plaintiff objected to this at first, but finally yielded and
delivered the remainder of the oats.
Not content, however, with the price fixed by the contract, he
how claims that oats had advanced in the market, and were worth, at
the time of this latter delivery, 8 3/4 and 12 cents per bushel
more than that price, and for the amount of this difference, with
some other matters, he asks judgment.
It is very clear that but one contract was ever made in this
case, and that the plaintiff was absolved from this by the refusal
of the quartermaster to receive the oats when tendered. But, from
whatever motive he may afterwards have consented to renew that
agreement and proceed to its fulfillment, its terms were the same.
If such pressure was brought to bear on him as would make the
renewal of the contract void as being obtained by duress, then
there was no contract, and the proceeding was a tort for which the
officer may have been personally liable. If the plaintiff's consent
was voluntary, then the contract to which he assented was binding,
and must control the case. The quartermaster treated the contract
as still in force, and his demand on the plaintiff was made under
that idea. In this he was wrong. But the plaintiff had his option
to concur in this view and deliver the balance of the oats or to
refuse to deliver any more.
Page 75 U. S. 274
Though the Court of Claims finds that the plaintiff, when he
consented to deliver, had gone to that officer's quarters in
company with an orderly, which he considered as an arrest, the
court does not find an arrest, nor the use of any force against his
person. Nor does the petition of the plaintiff say anything about
an arrest, or force, or duress. That he feared the officer might
buy the oats in the market and hold back the difference in price
from the money due for oats already delivered does not invalidate
the contract which he consented to fulfill to avoid that result. He
could still have refused, and the government would have paid him
what it owed him.
The supposition that the government will not pay its debts or
will not do justice is not to be indulged. Still less can it be
made the foundation for a claim of indemnity against loss incurred
by an individual by acting on such a suggestion.
But it is not to be disguised that this case is an attempt,
under the assumption of an implied contract, to make the government
responsible for the unauthorized acts of its officer, those acts
being in themselves torts. No government has ever held itself
liable to individuals for the misfeasance, laches, or unauthorized
exercise of power by its officers and agents.
In the language of Judge Story, [
Footnote 1]
"it does not undertake to guarantee to any person the fidelity
of any of the officers or agents whom it employs, since that would
involve it in all its operations in endless embarrassments and
difficulties and losses, which would be subversive of the public
interests. [
Footnote 2]"
The creation by act of Congress of a court in which the United
States may be sued presents a novel feature in our jurisprudence,
though the act limits such suits to claims founded on contracts,
express or implied, with certain unimportant exceptions. But in the
exercise of this unaccustomed
Page 75 U. S. 275
jurisdiction, the courts are embarrassed by the necessary
absence of precedent and settled principles by which the liability
of the government may be determined. In a few adjudged cases where
the United States was plaintiff, the defendants have been permitted
to assert demands of various kinds by way of setoff, and these
cases may afford useful guidance where they are in point. The cases
of
United States v. Kirpatrick [
Footnote 3] and
Dox v. Postmaster General
[
Footnote 4] are of this class,
and establish the principle that even in regard to matters
connected with the cause of action relied on by the United States,
the government is not responsible for the laches, however gross, of
its officers. [
Footnote 5]
The language of the statutes which confer jurisdiction upon the
Court of Claims excludes by the strongest implication demands
against the government founded on torts. The general principle
which we have already stated as applicable to all governments
forbids on a policy imposed by necessity that they should hold
themselves liable for unauthorized wrongs inflicted by their
officers on the citizen, though occurring while engaged in the
discharge of official duties.
In the absence of adjudged cases determining how far the
government may be responsible on an implied assumpsit for acts
which, though unauthorized, may have been done in its interest and
of which it may have received the benefit, the apparent hardships
of many such cases present strong appeals to the courts to
indemnify the suffering individual at the expense of the United
States.
These reflections admonish us to be cautious that we do not
permit the decisions of this Court to become authority for the
righting, in the Court of Claims, of all wrongs done to individuals
by the officers of the general government, though they may have
been committed while serving that government and in the belief that
it was for its interest. In such cases, where it is proper for the
nation to furnish a
Page 75 U. S. 276
remedy, Congress has wisely reserved the matter for its own
determination. It certainly has not conferred it on the Court of
Claims.
Judgment affirmed.
[
Footnote 1]
Story on Agencies ยง 319.
[
Footnote 2]
United States v.
Kirpatrick, 9 Wheat. 720;
Dox v.
Postmaster General, 1 Pet. 318;
Conwell v.
Voorhees, 13 Ohio 523.
[
Footnote 3]
22 U. S. 9 Wheat.
720.
[
Footnote 4]
26 U. S. 1 Pet.
318.
[
Footnote 5]
Nichols v. United
States, 7 Wall. 122.
