1. The War Department, by its proper officers, may make a valid
contract for the slaughtering, curing, and packing of pork, when
that is the most expedient mode of securing army supplies of that
kind.
2. Such a contract, when for a definite amount of such work, is
valid, though it contains no provision for its termination by the
Commissary General at his option.
3. The Act of March 2, 1861, requiring such contracts to be
advertised, authorizes the officer in charge of the matter to
dispense with advertising when the exigencies of the service
require it, and it is settled that the validity of a contract under
such circumstances does not depend on the degree of skill or wisdom
with which the discretion thus conferred is exercised.
4. Where the obligation of one party to a contract requires of
him the expenditure of a large sum in preparation to perform and a
continuous readiness to perform, the law implies a corresponding
obligation on the other party to do what is necessary to enable the
first to comply with his agreement,
5. Where the plaintiff agreed to pack a definite number of hogs
for defendant and made all his preparations to do so, and was ready
to do so, but the defendant refused to furnish the hogs to be
packed, the measure of damages is the difference between the cost
of doing the work and the price agreed to be paid for it, making
reasonable deductions for the less time engaged and for release
from the care, trouble, risk, and responsibility attending its full
execution.
By an act of 14 April, 1818, [
Footnote 1] "the Commissary General and his assistants
shall perform such duties in purchasing and issuing of rations as
the President shall direct," "supplies for the army (unless in
particular and urgent cases the Secretary of War should otherwise
direct) shall be
purchased by contract, on public notice,"
&c., "which contract shall be made under such
regulations as the Secretary of War may direct." One of
the
regulations prescribed by the Secretary of War, and
which made Rule No. 1179 in the Army Regulations of 1863, is
thus:
"Contracts for
subsistence stores shall be made after
due
public
Page 75 U. S. 78
notice, and on the lowest proposals received from a
responsible person who produces the required article.
These
agreements shall expressly provide for their termination at such
time as the Commissary General may direct."
By an Act of March 2, 1861, [
Footnote 2] it is provided, that
"All purchases and contracts for supplies or services in any of
the departments of the government, except for personal services,
when the public exigencies do not require the immediate
delivery of the article or articles, or performance of the
service, shall be made by advertising a sufficient time
previously for proposals respecting the same. When immediate
delivery or performance is required by the public exigency, the
articles or service may be procured by open purchase or contract at
the places, and in the manner in which such articles are usually
bought and sold, or such services engaged between individuals."
These statutes and regulations being in force, the Secretary of
War, through the Commissary General, authorized Major Simonds, at
Louisville, in October, 1864, and during the late rebellion, to buy
hogs and enter into contracts for slaughtering and packing them to
furnish pork for the army.
On the 27th of October, Simonds, for the United States, and
Speed made a contract by which the live hogs, the cooperage, salt,
and other necessary materials were to be delivered to Speed by the
United States, and he was to do the work of slaughtering and
packing. The contract was agreed to be subject to the approval of
the Commissary General of Subsistence.
No advertisements for bids or proposals was put out before
making the contract, nor did the contract contain a provision that
it should terminate at such times as the Commissary General should
direct.
After the contract was made, Simonds wrote -- as the facts were
found under the rules, by the Court of Claims, to be -- to the
Commissary General informing him substantially of its terms, but no
copy of it nor the contract itself was presented
Page 75 U. S. 79
to the Commissary General for formal approval. The Commissary
General thereupon wrote to Simonds expressing his satisfaction at
the progress made and adding: "The whole subject of pork packing at
Louisville is placed subject to your direction under the advice of
Colonel Kilburn."
The claimant incurred large expenditures in the preparation for
fulfilling his contract. He also kept, during the whole season, the
full complement of hands necessary to have slaughtered the whole
50,000 hogs within the customary season. During the season there
were furnished to the claimant 16,107 hogs, but owing to the high
price of hogs, Simonds, with the approval of the Commissary
General, gave up the enterprise and refused to furnish the
remainder of the 50,000 hogs.
Upon these facts, the Court of Claims held,
1st. That the Secretary of War, through the Commissary General,
might authorize such a contract to be made without a resort to the
advertisement and bids proposed.
2d. That the letter of the Commissary General was a virtual
approval of the contract.
3d. That the contract was an engagement on the part of the
United States to furnish 50,000 hogs to the claimant to slaughter
and pack at the stipulated price, and that their failure in part to
perform the same entitled the plaintiff to recover damages.
4th. That the true measure of damages was the difference between
the cost of doing the work and what the claimant was to receive for
it, making reasonable deductions for the less time engaged and for
release from the care, trouble, risk, and responsibility attending
a full execution of the contract.
The court awarded damages accordingly to the claimant, and the
United States appealed.
Page 75 U. S. 82
MR. JUSTICE MILLER delivered the opinion of the Court.
The counsel for the appellant urges eight separate objections to
this judgment, which we must notice in the order they are
presented.
1. Pork packing and curing bacon is not a business within the
scope of the powers of the Secretary of War, or his
subordinates.
If by this is meant that the War Department has no authority to
enter into the business of converting hogs into pork, lard, and
bacon, for purposes of profit or sale as individuals do, the
proposition may be conceded. But if it is intended to deny to the
department this mode of procuring supplies when it may be the only
sufficient source of supply for the army, the proposition is not
sound. The Commissary Department is in the habit, and always has
been, of buying beef cattle and having them slaughtered and
delivered to the forces. Is there no power to pay the butchers who
kill for their services? That is just what the claimants contracted
to do with the hogs which the government had purchased of other
parties, and it is for this butchering and curing the meat that the
government agreed to pay. The proposition places a construction
altogether too narrow on the powers confided to the War Department
in procuring subsistence, which in time of war, as this was, must
lead to great embarrassment in the movement and support of troops
in the field.
2. The contract is not binding, because it contains no provision
for terminating it at the discretion of the Commissary General.
This objection is based on Rule 1179 of the Army Regulations of
1863. But that has reference to contracts for the regular and
continuous supply of subsistence stores, and
Page 75 U. S. 83
not to contracts for services or labor, and it is required
because the post or force to be supplied may be suddenly removed or
greatly diminished. It has no application to a contract for a
certain amount of supplies, neither more nor less, or to do a
specific job of work requiring skilled labor. While the commissary
might have insisted on a provision in this contract that he should
only be required to pay for packing as many hogs as he chose to
furnish, for which he might in that event have been charged a
higher price, he did not do so and cannot have the benefit of it as
though he had.
3. This answers also the third point, namely that the agreement
is to be treated as though that provision were in it.
4. That it is not binding on the United States because there was
no advertisement for proposals to contract.
This objection is founded on the act of March 2, 1861. [
Footnote 3]
But that statute, while requiring such advertisement as the
general rule, invests the officer charged with the duty of
procuring supplies or services with a discretion to dispense with
advertising if the exigencies of the public service require
immediate delivery or performance.
It is too well settled to admit of dispute at this day that
where there is a discretion of this kind conferred on an officer,
or board of officers, and a contract is made in which they have
exercised that discretion, the validity of the contract cannot be
made to depend on the degree of wisdom or skill which may have
accompanied its exercise. [
Footnote
4]
5. The contract was not approved by the Commissary General.
The agreement contains a provision that it is subject to the
approval of that officer. The Court of Claims finds that while no
copy of the agreement was presented to the Commissary General
Page 75 U. S. 84
for formal approval, Major Simonds wrote him a letter informing
him substantially of its terms, to which he replied expressing his
satisfaction at the progress made, and the court further finds as a
conclusion of law that the letter of the Commissary General was a
virtual approval of the contract. We are of opinion that, taking
all this together, it is a finding by the court as a question of
fact that the contract was approved by that officer, and inasmuch
as neither the instrument itself nor any rule of law prescribes the
mode in which this approval shall be evidenced, that a jury would
have been justified in finding as the court did.
6. That by the terms of the contract, the United States were not
bound to furnish any given number of hogs.
Without entering into a discussion of the general doctrine of
the implication of mutual covenants, we deem it sufficient to say
that where, as in this case, the obligation of plaintiffs requires
an expenditure of a large sum in preparation to enable them to
perform it, and a continuous readiness to perform, the law implies
a duty in the other party to do whatever is necessary for him to do
to enable plaintiffs to comply with their promise or covenant. But
the last article of the agreement seems to be an express promise to
furnish all the hogs mentioned in the contract.
7. That plaintiffs have not proved that they were ready and
willing to perform.
But the Court of Claims find this readiness, for they say
that
"claimants incurred large expenditures in preparation for
fulfilling their contract, and during the whole season kept the
full complement of hands necessary to have slaughtered the whole
50,000 within the customary season."
8. The rule for the measure of damages is not the correct rule
as applied to the facts.
What would be the true rule is not pointed out. And we do not
believe that any safer rule, or one nearer to that supported by the
general current of authorities, can be found than that adopted by
the court, to-wit, the difference between the cost of doing the
work and what claimants were
Page 75 U. S. 85
to receive for it, making reasonable deduction for the less time
engaged and for release from the care, trouble, risk, and
responsibility attending a full execution of the contract.
The leading case on this subject in this country is
Masterton v. Brooklyn, [
Footnote 5] and that fully supports the proposition of the
Court of Claims.
[
Footnote 1]
3 Stat. at Large 426, ยงยง 6, 7.
[
Footnote 2]
12 Stat. at Large 220.
[
Footnote 3]
12 Stat. at Large 220.
[
Footnote 4]
Philadelphia & Trenton
Railroad Co. v. Stimpson, 14 Pet. 448;
Martin v. Mott,
12 Wheat. 19;
Royal British Bank v. Turquand, 6 Ellis
& Blackburn 327;
Maclae v Sutherland, 25 English Law
and Equity 114;
Ross v. Reed,
1 Wheat. 482.
[
Footnote 5]
7 Hill 62.
