Peck v. United States 14 Ct. Cl. 84

Campbell K. Peck v. The United States.

On the Proofs.

A written contract made in Saint Paul, Minn., Undo the claimant to furnish to the Quartermaster Department, near the mouth of Tongue lliver, Montana, 800 tons of hag. At the time, it is understood by the parties that the hay will be cut on government lands, and it is known to them that the only grass available is on the Dig Meadows of the Yellowstone. About the same time, an assistant quartermaster on the Yellowstone, under authority previously given by the quartermaster in Saint Paul, contracts with third persons to cut hay there. These persons take possession of all its available grass and exelude the claimant. Se is thereby prevented from performing, and the Quartermaster Department buys and transports hay to the post and charges *85 the claimant with the excess of cost. Parol evidence to establish the foregoing facts aliunde the contract is offered by the claimant. The contract also binds the clamant to deliver 6,000 cords of “good soft wood,” to be cut on a certain reservation. The defendants’ officers require him to deliver a proportion of dry wood. He objects at the time and seeks increased compensation. The officers also compel him to cut outside of the prescribed territory. He does so without objection. The assistant quartermaster also seeks to hire a hay-press of the claimant. He refuses to hire, but offers to sell it. The chief quartermaster refuses authority to purchase, but the assistant quartermaster, without notice to the claimant, lakes and nses the press in goveniment service. The claimant seeks to recover its value, as for property taken for public use.

I. Parol evidence is admissible to show the facts and circumstances amid whicha written contract was made; and, construing a contract in the light of such facts and circumstances, a court may draw the conclusion that where the contractor was bound to furnish hay at a certain remote irost, it was in fact understood and intended that he should cut the hay on a certain tract of government land in the neighborhood where alone it was possible to cut grass suitable for fulfilling the contract.

II. Where the officers of the government prevent a contractor from performing, by letting the grass which it was intended he should cut to third persons, he cannot be held liable for failure to perforin, though the officers were justified by the necessity of the case in dealing with two contractors.

III.Where a contract was to supply 6,000 cords of “good soft wood” for the use of a new military post, it is reasonable to suppose that dry wood for the first winter was intended, if procurable.

IY. Where a contractor voluntarily kept his teams idle, awaiting the return of the commanding' officer of a post which he had agreed to supply with wood, in the expectation that the officer would give a more favorable construction to the contract than his subordinates were doing, he cannot recover.

Y. Where a contractor was authorized by his contract to cut wood within a certain military reservation, but the officers at the iiost compelled him to go farther and he did so without objection and! was paid for the wood so cut, he cannot recover for the additional expense he may have been put to.

YI. Where the owner of a hay-press offered to sell it to a quartermaster but refused to hire it, and the officer subsequently put the machine to use in the Government’s service, it must be considered as property taken for public use, and the owner may recover its reasonable value, and cannot be required to take back the machine and accept compensation for its use.

*86 The Reporters’ statement of tlie case:

Tbe following are tbe facts as found by tbe court:

I. Whenever a month is named in these findings, tbe year 1876 is intended unless otherwise specially stated.

Fort Buford is situated in latitude 48° north, on tbe north bank of tbe Missouri, nearly opposite tbe mouth of tbe Yellowstone, in tbe center of a reservation of 30 miles square, and in tbe ordinary route from Tongue River cantonment to tbe east.

Bismarck, tbe nearest settlement, is situated on tbe Missouri, where tbe Northern Pacific Railroad crosses that river, about 226 miles below Fort Buford by land and about 380 miles bj the river.

Tongue River joins tbe Yellowstone on its southern bank, 172 miles above tbe junction at Fort Buford. Tbe nearest settlement to Tongue River junction is Bozeman, in Montana, 300 or 400 miles distant. With tbe exception of tbe miners in tbe Black Hills, tbe section of country between Bozeman and Bismarck was in 1876 occupied only by tbe military and by bands of hostile Indians.

Powder River enters tbe Yellowstone on its southern bank, about 40 miles below tbe Tongue River junction. About 60 miles below Powder River junction is Glendive, on tbe north side of tbe Yellowstone. From Fort Buford to Glendive tbe distance is 70 miles.

In tbe autumn of 1876 tbe Missouri was navigable between Bismarck and Buford. In tbe Yellowstone there are rapids known as Wolf’s Rapids, 5 miles below Powder River junction, and other rapids known as Buffalo Rapids, between Powder River junction and Tongue River junction. In ordinary years tbe Yellowstone is navigable as far as Tongue River between May and August, and is relied upon to supply tbe posts on that river. Tbe year 1876 was a year of unusual rains, and boats in that year went above Tongue River junction; but tbe river was not navigable above Powder River after September 1, nor above Glendive after September 20. After September 25 no boat could get to Glendive. From that time throughout the year freight was sent up tbe Yellowstone from Fort Buford by wagon transportation.

II. In tbe year 1876 a state of war existed throughout that region. The massacre of General Ouster’s troops took place *87about 125 miles from Tongue Eiver post. After that fight, Sit- ting Bull crossed the Yellowstone with part of his force at the mouth of Powder Eiver and the rest crossed at or near Glen-dive.

General Sheridan thereupon ordered the establishment of a cantonment to accommodate a regiment of cavalry and a force of infantry at or near Tongue Eiver, and directed supplies for the winter to be taken there. A post was also established the same summer at Glendive. General Card was at that time chief quartermaster of the department, with headquarters at Saint Paul, in Minnesota.

The Yellowstone Talley had been the usual winter home of the Sioux Indians; but its occupation by United States troops prevented them from wintering there in 1876-77. They had no winter home that season, and kept constantly moving about. Ordinary supply-trains going from Buford to Tongue Eiver without an escort were exposed to great danger, although parties did come through without molestation.

In August of that year Colonel Forsyth, of General Sheridan’s staff, reported that no hay could be procured on the Yellowstone except near the mouth. On the “Big Meadows,” on Fort Buford Eeservation, about 12 miles from the fort, there was grass growing suitable for making about 1,000 tons of hay. This was the tract referred to by Colonel Forsyth.

On the 9th of August General Card telegraphed to the quartermaster at Fort Buford, “Have hay cut for Tongue Eiver. Will want large quantity. How much can you secure? Will send baling-press. How much can commissary get in addition to his contract?”

General Card invited several contractors, among whom was the claimant, to make proposals for supplying hay and wood at Tongue-Eiver cantonment. The claimant, who was then a resident of Keokuk, Iowa, made proposals for that purpose, which were accepted by telegraph on the 22d August.

On the same 22d August the regimental quartermaster at Fort Buford wrote to General Card that he could procure about 200 tons of hay for Tongue Eiver; and on the 24th August he telegraphed him to send two baling-machines and rope enough to bale 400 tons of haj-.

On the same 24th August General Card wrote from Saint Paul to the assistant quartermaster at Fort Buford, through *88General Hazen, tbe commanding officer at that post, that he had made a contract for hay with the claimant, and that it would not be necessary to provide hay for Tongue River at Buford, and that, consequently, lie' would not sent up a hay-press.

III. On the 26th or 27th of August the claimant, who had proceeded from Bismarck to Saint Paul for the purpose, had an interview with General Card, at which the contract for supplying hay and wood at Tongue River cantonment, dated August 17, 1876, was executed and interchanged inform, as set forth in the claimant’s petition.

At the same interview, General Card was informed that the claimant would at once send men and machines to Big Meadows to cut the hay known to be there, and would at once send oh, to be forwarded by boat from Bismarck, hay-presses, tools, materials, and supplies. General Card replied that it was late in the season, and he hoped no time would be lost. The claimant answered that he had two boats of his own and should procure others if necessary. The general offered to do all he could to assist the claimant, and also to direct the quartermasters at Fort Buford and Tongue River to aid him in filling the contract in every way they could consistently with their duty. The claimant said that he had no personal knowledge of the condition of the Yellowstone; but, from reports made by officers of the Army, he judged it to be as navigable as the Upper Missouri; in which case he would have plenty of time to-transport the hay by steamer. The only doubt was about Wolf’s Rapids, and he should provide a boat above the rapids and a boat below, and transfer the hay at that point. General Card at that time supposed that the claimant would be able to ascend the Yellowstone as far as Glendive, but he made no reply to the claimant’s said statement about steam navigation, and did not agree that the claimant should be able to transport the hay bj

At the time when the said contract was entered into, the cost of cutting and curing and bailing hay on the said Big Meadows, and of delivering it at points on the river where steamboats could load, was $27 per ton of 2,000 pounds, rope and baling-machine being furnished by the United States; .and the cost of transporting hay from Fort Buford to Tongue River cantonment *89by steamer, when tbe Yellowstone was navigable, was $30 per like ton.

IY. Tbe claimant immediately made preparations to perform bis said contract. On tbe 29tb August be sent forward from Bismarck to Fort Buford by land teams loaded witb supplies, machines, scythes, bay forks, rakes, two mowing-machines, and all other tools necessary for cutting bay, together witb foremen and gangs of men, who were instructed to go at once to tbe Big Meadows and commence cutting ha3. A beater press and a steam bay-press were also forwarded, witb tbe necessary wire for baling bay.

On tbe 29th August, General Hazen, under the said telegrapMc instruction of tbe 9tb August, contracted witb Leighton & Jordan to deliver 1,000 tons of bay, more or less, at points on tbe Yellowstone and Missouri Rivers not to exceed 30 miles from Fort Buford, said bay to be placed at points on said rivers where steamboats could load, properly stacked, for $19.50 per ton of 2,000 pounds, or to deliver said bay baled for $27 per ton.

•General Hazen first learned of said contract witb tbe claimant on tbe 1th September; be immediately notified Leighton & Jordan of tbe fact, and told them that they could go on cutting tbe grass at their own risk, and furnished them witb a guard consisting of a corporal and ten men to protect them while doing it. Before tbe arrival of tbe claimant’s agent at Fort Buford be informed General Card that in bis opinion tbe claimant could not comply witb bis contract, and'advised that tbe cutting should be continued under Leighton & Jordan.

.The claimant’s agent arrived at Fort Buford on tbe Ctb September, and proceeded tbe same day by steamer to Big Meadows. He found Leighton & Jordan’s force cutting tbe bay there; they bad run tbe machine round most or all tbe grass fit for bay, and bad then made from 200'to 250 tons of baj^. They were actively'at work and continued so until about tbe middle of October, and cut and cured in all nearly 800 tons.

General Hazen informed tbe claimant’s agent that Leighton & Jordan were cutting tbe grass under bis authority, in order to execute a contract for supplying Tongue' River witb bay which General Card bad directed him to make. Tbe agent replied that tbe claimant held a contract from General Card for furnishing hay to that cantonment, which bad been taken *90with, the understanding that they could either get hay on the Yellowstone near the post or cut it below on some point and ship it on boats, and that he' expected to cut it from the Big Meadows, where was the only hay known to him from which the contract could be filled. General Hazen did not acquaint the claimant with the instructions which he had given to Leigh-ton & Jordan and the recommendations which he had made to General Card on learning of the claimant’s contract.

A portion of the claimant’s train from Bismarck arrived at Fort Buford on the night of the Cth September. On the 7th September the claimant’s agent told General Hazen that he was about to send that train up the Yellowstone, and that he wished it to make a thorough examination of all the country between Fort Buford and Tongue Biver, and. to cut whatever hay could bo found $ but that the country was full of hostile Indians, and the men were unarmed and would not go without an escort; and he asked General Hazen to furnish an escort for the train. The general refused the escort, and said that he thought the claimant’s contract could not be fulfilled. The agent then asked for arms for the men. General Hazen gave them ten guns. The agent immediately ferried the teams, men, and tools across the river, and on the afternoon of the 7th the train proceeded up the Yellowstone. At Glendive the claimant’s agent demanded an escort of the commandant at that post. The commandant refused the request, but offered permission to accompany the Government train to Tongue Biver, which would leave in about twelve days. The agent pushed on without escort, and arrived at Tongue Biver on the 23d September.

The agent made great efforts to find grass fit for hay. He searched throughout the valley of the Yellowstone and through the Tongue Biver country for 30 or 40 miles without finding any. While at Tongue Biver cantonment he asked the commandant for an escort to go with his men into the country round that post to find hay. The commandant refused to furnish it. The agent then returned to Fort Buford and informed General Hazen of the result, and said that he could proceed no further in executing the contract without a military escort.

On the 12th October General Hazen informed the assistant adjutant-general at Saint Paul, by letter, that the claimant’s agent had returned with all his haying implements and of the demand for a military escort, and further said that he was *91satisfied that tbe claimant did not intend to do anything with the hay.

Y. The claimant delivered no portion of the hay under his said contract. On or about the 21st October, General Card sent orders to General Hazen to supply the deficiency and to transport it by wagons, and to keep an account of the expense and report the same to department headquarters. This order was received by General Hazen on the 9th November.

A portion of the deficiency was purchased at Tongue River cantonment at the contract price. Eleven tons were also purchased at the same place at the rate of $50 per ton. The rest of the deficiency was made up from the said hay cut and baled at Big Meadows by Leighton & Jordan, and amounted to 301,311 pounds delivered at Tongue River cantonment, costing at Big Meadows $27 per ton of 2,000 pounds.

The 301,311 pounds of hay so delivered at Tongue River were transported thither by directions of General Hazen. As soon as he received General Card’s order of the 21st October, he set about constructing racks for the transportation wagons’ at his post belonging to the Government and he also endeavored to hire private transportation. The hay was carried in several trains, the first of which left about the 17th November and the last about the 20th December, ^he trains were mixed trains, each consisting of from 40 to 60 wagons and transporting other Government supplies as well as hay. About two-thirds of the hay was transported in hired wagons and about one-third in Government wagons. The hired wagons were two horse or mule wagons, each capable of carrying 2,400 pounds of hay. The Government wagons were six-mule wagons, each capable of carrying from 4,500 to 6,000 pounds. '

It does not appear that an accurate account was kept of the time actually occupied in the transportation of the hay. The hay-wagons were mixed in the trains with wagons containing other supplies. All the wagons were billed at Fort Buford for Glendive only. At Glendive they were detained for making up new trains with Government supplies for Tongue River, and were forwarded thither from Glendive under direction of the assistant quartermaster at the latter post. The round trip with a hay-train from Fort Buford to Tongue River cantonment and back might reasonably have been made in twenty days at any *92time between, the 17th November, 1876, and the middle of January, 1877.

It is not shown that the defendants were put to any cost for the Government wagons employed in transporting said hay which they would not have been put to had the wagons rested at Fort Buford. The defendants contend that they are entitled to compensation for the maintenance and support en route each day of each Government sis-mule team employed in such transportation at double the rate allowed to a private two horse or mule team for a day’s service in the same. If the defendants are entitled to any compensation for such maintenance and sup-, port, they are entitled to it at the rate so contended for.

Two hundred thousand eight hundred and ninety-four pounds of said hay was delivered at Tongue Biver by hired teams. Each hired team cost the defendants $4.87¿ per day and rations and forage. Each such team required en route forage to the amount of 560 pounds of hay and 400' pounds of oats and 22 rations. The hay so consumed cost the defendants at Fort Buford $7.56; the oats, $9.37; and the rations, $4.62.

It is not proved that the hay, oats, and rations so consumed en route were transported in private wagons. Had they been so transported, the cost of the transportation of the amount of each kind necessary for each private team would have been, of the hay, $28.84; of the oats, $20.60; of the rations, $16.48.

VI. Thesaidbeaterpressandthesaid steam hay-press, shipped as aforesaid by the claimant from Bismarck to Fort Buford, arrived at the latter place in good condition before the middle of September. Each was the property of the claimant. The claimant’s agent, on their arrival, asked the regimental quartermaster at Fort Buford for permission to land them and to have them protected. The quartermaster assented to the landing and offered to protect them, and proposed to buy them for the purpose of using them in baling hay, if he could get authority to do so. He also proposed to hire them in case he could not get such authority. The claimant’s agent accepted the proposition to buy them and refused the proposition to let them for hire, and left the machines in charge of the quartermaster in order that he might apply for authority to buy them. The quartermaster used the machines, under the defendant’s con*93tract with Leighton. & Jordan, in baling' the hay cut under that contract, and left them exposed to the weather on the east bant of the Missouri, where they became dilapidated. The claimant demanded pay for the value of said machines; but the defendants refused to pay for more than the hire of the same. It does not appear that said machines have ever been returned to the claimant.

VII. There was no military reservation at Tongue Biver cantonment when the said contract was signed, but 600 men were stationed there. On the 11th September an order was issued for the reservation of an area of land 20 miles square, determined by a line drawn 10 miles north and south of the meridian, through a point at the mouth of Tongue Biver, and 10 miles east and west of said meridian. The cutting of timber on the reservation was prohibited by said order.

The cantonment at Tongue Biver was situated about one-fourth of a mile south of the junction. All the wood within it, whether growing or dry, was cottonwood. On the Tongue Biver, near its mouth and below the junction on the Yellowstone, within the reservation, there was a large body of growing cottonwood. With this exception there was very little green wood on Tongue Biver within the cantonment. It was necessary to go five or six miles from the post to find much green wood on its banks.

There were also about 1,500 cords of dry cottonwood on the reservation. Some of this was timber that had been felled by Indians for the purpose of feeding their horses on the bark of the small limbs. These trees were scattered all through the other timber. A part of it was in one patch of about 25 acres that had been deadened by ñre. The rest consisted of dry standing trees or of drift-wood.

At that time 6,000 cords of green cottonwood might have been cut within a space of from half a mile to a mile and a quarter from the adjutant’s quarters at said cantonment, and within from three quarters of a mile to a mile from the quarters first established by the claimant, to be hereafter more particularly noticed.

Had the claimant been allowed to cut green soft wood in such space, he could have entirely fulfilled his agreement touching wood in said contract before January 10, 1877, and the necessary expense which he would have incurred at Tongue Biver in *94cutting and delivering tbe wood according to bis contract would bave been at tbe rate of $3.08^ per cord.

An agent of tbe claimant arrived at Tongue River witb 9 teams and 32 men on tbe 19tb September. He reported to tbe commandant, wbo directed biin to cut some dry wood, and referred bim to tbe quartermaster for tbe amount. Tbe quartermaster said they would want 1,500 cords of dry wood. Tbe agent replied that it would cost more per cord to furnish dry wood than green, and that, as be expected a person soon witb more authority than himself, be would not take tbe responsibility of furnishing dry wood.

On tbe 23d September tbe foreman wbo was to superintend tbe cutting, and wbo was tbe person so referred to as having more authority, arrived witb 3 more teams and 8 more men. He said that it would be a great deal more expensive to furnish dry wood than green, and be objected to doing it. Tbe quartermaster insisted, however, that be should furnish 1,500 cords of dry wood.

Tbe claimant’s agent thereuioon did furnish, as a part of tbe said 6,000 cords, 1,500 cords of dry wood between tbe 25th September and tbe 25th October. Tbe necessary expense which be incurred at Tongue River in cutting and delivering at tbe cantonment the said 1,500 cords of dry wood was $5,540.

. In order to provide against tbe inclemency of tbe season, tbe claimant’s agent erected permanent quarters for bis force about 800 yards from tbe post and in sight of it across Tongue River. The post was on tbe south side of that river, and tbe quarters were erected on the north side of it in tbe large body of growing cottonwood already referred to. There was a cook-house, a building for tbe men, a store-room and office, and about 10 small cabins. All were built of logs, chinked and daubed, witb dirt roofs. Tbe cost of these improvements was $840.

' On or about the 30th September tbe claimant’s agent was informed by Colonel Whistler, temporary commandant at tbe post in tbe absence of General Miles, that be would not be allowed to cut green timber within a space of 10 miles from tbe adjutant’s office in tbe cantonment. He replied that tbe contract permitted the wood to be cut within a circle half a mile distant from tbe adjutant’s office. Tbe temporary commandant answered that tbe ten-mile order bad been made by General Miles, and that be would not interfere witb it.

*95On tbe 2d October tbe agent left Tongue River in order to see General Miles, wbo was then at Glendive. At tbe time of bis leaving, tbe bouses in tbe quarters were all built, roofed, and chinked, but were not wholly completed.

On or about tbe 20tk October tbe foreman in charge of tbe claimant’s work applied to tbe quartermaster to know where tbe wood was to be cut, and where be was to establish bis winter quarters for cutting it. Tbe quartermaster replied that be would not be permitted to cut down green timber within ten miles of tbe reservation.

General Miles returned to tbe post on or about the 4th November. On tbe day after bis return be showed tbe claimant’s foreman where be would be permitted to cut tbe balance of tbe wood necessary to fill tbe contract. It was from two and one-half to five miles distant from tbe post, and not in tbe direction of tbe said quarters.

Without fault on the part of tbe claimant or bis agents, 17 teams in tbe claimant’s employ were idle and unemployed for ten days between tbe time when they finished cutting and hauling tbe dry wood and tbe commencement of cutting green wood under said last-named direction of General Miles. Tbe necessary expíense to tbe claimant of said teams was $8 each per day for tbe ten days.

In consequence of tbe said direction by General Miles respecting tbe places from whence tbe wood should be cut, tbe claimant was obliged to abandon tbe said quarters, and to construct new quarters about three miles distant from jfcbem. Tbe old quarters, when abandoned, bad no market value, and were valueless to tbe claimant.' Tbe new quarters were necessary. Being farther removed from tbe station, they were constructed so as to afford protection against Indians. They were finished in November, and cost $1,300.

On tbe 19th December, General Miles, in writing, prohibited tbe claimant from cutting green timber within three miles from tbe mouth of Tongue River. •

By reason of tbe delays to which be was subjected and of tbe action of tbe defendants’ agents in preventing him from cutting green soft wood on said reservation outside of a circle of one-half a. mile from tbe adjutant’s office of tbe said post, tbe claimant was, without fault on bis own part, prevented, from performing bis said contract, as be otherwise would, before tbe *9610th January, 1877. Inclement weather and deep snow came on long before he could complete it. No work could be doue after the 15th January, 1877, until spring. The claimant could not graze his stock nor obtain forage or hay for it there, and was obliged to discharge 12 teams and 25'men that had been brought there at great expense and to send them back to Bismarck. At the time when work was stopped in the winter 5,000 cords of wood had been cut, of which 2,750 had been delivered and 2,250 had been accepted.

In the spring following, other teams were hired to complete the contract. The last delivery was made on the 28th June, 1877.

In consequence of said orders the claimant was obliged to haul 3,300 cords of green wood a greater distance than he would have been obliged to haul the same had he been allowed to cut it outside of a circle of one-half mile from said adjutant’s post. The additional cost of such extra haul incurred at and near Tongue Biver Station was at the rate of $1.67|- per cord.

VIII. The defendants denied that they were bound to pay the claimant for any part of the 6,000 cords of wood so furnished more than the contract price of $8.65 per cord, amounting, in the aggregate, to $51,900. They claimed the right to apply towards the payment of said aggregate the sum of $10,980.63, which they said was the difference in cost between the contract price of said hay purchased to supply the deficiencies at Tongue Biver and the actual cost of the same. The Secretary of War ordered that the claimant should be paid the sum of $10,919.37 as the balance found due him by the quartermaster, but, in order that he might bring suit for the recovery of an alleged balance, that he should not be required to execute a receipt in full of all demands under the contract. Thereupon the claimant was paid the said sum of $10,919.37, and gave receipt therefor in the form prescribed by the Secretary.

IX. If the defendants were not authorized to deduct from the contract price of the wood some part of the cost of the deficiency in the hay, there is still due and unpaid to the claimant on the contract for supplying the wood $10,9S0.63.

If the defendants are entitled to apply to the payment of the wood any part of the cost of supplying the deficiency in the hay, they are entitled to apply thereto $4,088.10, the cost of 301,341 pounds of hay at $27 per ton; and $167.75, the differ*97ence between tbe cost of 11 tons at $50 per ton and tbe same amount at $34.75 per ton; and $8,190, tbe cost of tbe bire of tbe private teams wbicb transported tbe bay from Fort Buford to Tongue Biver; in all, $12,425.85.

If tbe defendants are entitled to apply to tbe payment of tbe wood tbe cost at Fort Buford of tbe forage and rations used and consumed by tbe said private teams while transporting tbe bay, tbe amount of tbe same was $1,810.20.

If tbe defendants are entitled to apply to tbe payment of tbe wood tbe cost at Fort Buford of tbe forage and rations used and consumed by tbe Government teams while transporting tbe bay, tbe amoiint of tbe same was $905.10.

If tbe defendants are entitled to ápply to tbe payment of tbe wood tbe cost of tbe transportation of tbe forage and rations so used and consumed while transporting tbe bay, tbe cost of tbe transportation of tbe amount used and consumed by tbe private teams was $5,547.28, and of tbe amount used and consumed by tbe Government teams was $2,773.64.

Tbe claimant, by reason of tbe said suspension of tbe work in October and November, was obliged to keep bis teams idle at an expense to him of $1,360.

Tbe value of tbe said Beater press was $387, and tbe value of tbe said bay-press was $1,746.

If the claimant is entitled to recover by reason of tbe delivery of dry wood in tbe place of green wood, tbe excess -of tbe cost of tbe 1,500 cords of dry wood so delivered was $915.

. If tbe claimant is entitled to recover damages for tbe breach of tbe defendant in refusing permission to cut wood within one-half mile of tbe adjutant’s post, tbe amount of such damage was $6,833.

Tbe court, having considered tbe requests for findings of facts made by the claimant and by tbe defendants, respectively, finds tbe following facts upon tbe evidence, in addition to those already found in this case:

Allowed at tbe request of tbe claimant:

XI There was no market-rate of transportation from Fort Buford to Tongue Biver cantonment during tbe autumn and winter of lS76-’77, except so far as tbe following facts tend to establish one: In September, 1876, tbe defendants, on their own invitation, received proposals from contractors for such transportation, *98of which the following is an abstract. The firm of Durfee & Peck, named in the abstract, is a copartnership firm, of which the claimant is one of the members:

Abstract of proposals received by Major B. C. Card, quartermaster, U. 8. A chief quartermaster Department of Dakota, under the advertisement from office chief quartermaster Department of Dakota, dated September 11th, 1876, inviting proposals for furnishing transportation by teams for military supplies, etc., between Fort Buford, D. T., and cantonment Tongue Mver, M. T.

Abstract of proposals received by Major Benj. C. Card, quartermaster, U. S. A., chief quartermaster Department of Dakota, under the advertisement from office chief quartermaster Department of Dakota, dated September 11th, 1876, inviting proposals for furnishing iñ'ansportation by wagon for military supplies, fyc., between Fort Buford, D. T., and cantonment Tongue River, M. T.

*99(Tbe following additional finding was made partly on tbe request of tbe claimant, partly on tbe request of tbe defendants, and partly on tbe suggestion of tbe court:)'

NI. At tbe time of tbe signing of tbe said contract between General Card, chief quartermaster of tbe Department of Dakota, and tbe claimant, there’ was no grass in tbe valley of tbe Yellowstone suitable for making bay except on tbe said tract at Big Meadows and on some smaller tracts, wbicb were subsequently cut for delivery at Tongue Diver and charged against tbe claimant by tbe Quartermaster-General. All tbe rest bad been destroyed by tbe Indians. These facts bad been reported to General Card officially, and were known by him when be made tbe said contract with tbe claimant. There was some upland prairie on tbe Misssouri, above tbe mouth of tbe Yellowstone, but this was thinner than tbe meadow grass, and was, in fact, taken possession of and cut by Leighton & Jordan in October.

At tbe time when tbe said contract was signed, both tbe claimant and General Card supposed that there was no grass on tbe Yellowstone except that at Big Meadows, and it was then intended by both that tbe said contract should be executed by cutting tbe grass on tbe Big Meadows wbicb was afterward cut by Leighton & Jordan under authority derived from General Card. This was tbe only grass on or near tbe Yellowstone from wbicb, after tbe arrival of tbe claimant’s teams at Fort Buford, it was practicable to make bay, and tbe only grass in that section from wbicb it was practicable to make it in time to have tbe deliveries commence at Tongue Biver on tbe 1st day of October, tbe day named in tbe contract for tbe commencement of tbe deliveries.

(And tbe following findings were allowed at tbe defendants’ request:)

XII. Tbe communication referred to in tbe last paragraph of Finding I was not received at Fort Buford until September 4. It took ordinarily from a week to two weeks for a communication from Saint Paul to reach Buford, as tbe mail left Bismarck but once a week, and it took six days to get to Buford from that point. There was a telegraph from Saint Paul to Bismarck only.

*100XIII. When, the contract was made, General Card had never been in the Yellowstone region. Although he did not know personally how much grass there was standing on the Big Meadows, he supposed there was a large quantity. In the communication of August 24, mentioned in the second finding, General Card gave directions that contractors should be supported in every just and needful way.

XIY. Although the formal agreement in writing was made with Leighton & Jordan on the 29th of August, the season was so far advanced and the emergency so great, that the contractors had been previously told to begin and hurry on the work, and had been prosecuting it vigorously for six or seven days before the written agreement was made.

XV. The onlj notice which General Hazen is shown to have received from General Card of the contract with the claimant is as follows:

On the 24th of August, in the letter of that date already referred to, General Card wrote: “ I have made a contract with Durfee & Peck for hay and wood at Tongue River, so that it will not be necessary to provide at Buford any hay for that point, and I will not, therefore, send up a hay-press.”

This letter was received on the 4th of September, several days after Leighton & Jordan liad commenced cutting the grass on the Big Meadows. The guard mentioned in the third paragraph of Finding IV was stipulated for by the contractors in their proposal of August 29, to prevent the hay from being destroyed, and was on the ground when the claimant’s agent arrived at the Big Meadows on the 7th September. The following is a copy of that portion of General Hazen’s letter of the 4th of September, by which he informed General Card that the claimant, in his opinion, would be unable to furnish the haj’ contracted for:

“ Two out of the last three contracts made for hay bj the quartermaster’s department at this post have failed, from the fact that the great difficulties of getting hay in this country were not understood by the contracting parties.

“The arrangement with Mr. Jordan, representing Mr. A. 0. Leighton — the only one of the three referred to who fulfilled his contract — to cut hay here, was made upon *101the authority of the chief quartermaster, and he is now, after considerable expense, well engaged and progressing in the work.

“The lateness of the season, frost having already appeared, the mistake in expecting that the Yellowstone will much longer afford any reliable means of transportation, the report of all parties that no hay can be cut in the vicinity of Tongue Eiver, lead me to believe that to stop Mr. Jordan’s work now is to interrupt the only judicious means of getting hay at all at the new post.

“ I would recommend that hay-presses still be sent.”

NYI. The claimant’s agent-first arrived at Big Meadows on the morning of the 7th of September. He saw Leighton, one of the firm of Leighton & Jordan, and asked him on whose authority and for whatplace he was cutting the hay. Leighton replied that it was on the authority of General Hazen, and for the cantonment at Tongue Eiver. The agent then returned to Fort Buford aud saw General Hazen, and asked him on whose authority Leighton & Jordan were cutting the hay on the Big Meadows. General Hazen answered that, by a letter from General Card, he was authorized to let the hay in open market; and he had let it for the cantonment at Tongue Eiver. The agent told General Hazen that he was the agent of the claimant, who held from General Card the contract to furnish the hay for that cantonment, and that he fullj' expected to cut the hay ou that meadow, and that that was the only hay that he knew with which to fill the contract. It does not appear that General Hazen made any repty to this statement of the agent, or that the agent in any other way asserted a right to the grass on said meadows on behalf of his principal as against Leighton & Jordan, or requested to be put into possession thereof, or intimated that he then desired or expected to cut hay in that vicinity. He did state his intention of sending his haying force to Tongue Eiver to try to fill the contract there.

The contract with Leighton & Jordan, referred to in paragraph 2 of Finding IY, authorized them to cut 1,000 tons of hay on points within 30 miles of Fort Buford, and without cutting on the Big Meadows they could not have executed it.

NYU. It was not customary for the commandant at Buford to furnish an escort farther than Glendive, the next post. There *102were but from thirty to fifty men at the post, and General Hazen did not deem it necessary to furnish protection to the claimant’s party from his post farther than to supply them with arms. General Hazen was of opinion that the claimant could not get the quantity of hay contracted for in the vicinity of Tongue Biver post. The claimant sent men and teams to Tongue Biver at three different times, as they arrived Born Bismarck at Fort Buford. The application for an escort at Glendive was by the second party, or train, consisting of three teams and eight men. Glendive was a small post for the protection of Government freight landed there, because it could not be carried farther on the river, and it does not appear that there was sufficient force there to furnish an escort for the detached parties of the claimant ; but the commandant did on the occasion referred to send a squad of from five to seven men with the claimant’s party as far as Custer Greek, half-way to Tongue Biver. The commandant at Tongue Biver refused to furnish the escort referred to in the seventh paragraph of the fourth finding, because he had no animals, and his command was so small for the work he had to do that he could not furnish an escort or animals, General Miles being at that time in the field. This request was made about the 2d October. It was about the 12th October that the interview with General Hazen referred to.in the seventh paragraph of Finding IV took place. The claimant’s agent informed General Hazen in that interview that he had searched the entire Tongue Biver country over, and that it was impossible to get hay there,* and that it would be impossible to fill the terms of the contract unless they could buy hay or use the hay that. Leighton & Jordan had cut. General Hazen thereupon wrote the following letter to the Assistant Adjutant-General :

“Headquarters, F’t Bueord, D. T.,

“October 12th, 1876.

“Sir: Mr. McLean, of the Tongue Biver wood and hay contract, called to see me to-day. He has brought all their haying implements out of that country, and has put all their force to cutting wood. Their talk about buying hay cut here, on the telegraphic authority of General Card, I now believe to be moonshine, in order to gain time and deliver the wood, and then go to the courts for relief.

“ I think the people up there are compelled to take wood for *103actual use. They talk about buying 300 tons to bale and haul by wagons.

“ The hay here, baled, would cost them at least $25.00 per ton. $7, 500 00

“ It will take 20 days to make the trip, and, with a ton each to a 2-horse team © $5.00 per day, will cost. 30, 000 00

-$37,500 00

“For which they will receive, say. '10,000 00

“Leaving a loss of. 27,500 00

“Which is much more than the wood contract is worth, as it costs double what they calculate to cut it. Besides, Mr. McLean is not authorized to speak for his partners, and proposes to go below to see them before he begins to do anything. This will consume so much time, and the whole arrangement carrying a large loss to the contractors were it completed in the most favorable manner, and his statement that he could do nothing even in the manner proposed without having military escorts, leaves me fully impressed that nothing will be done, or is intended to be done, with the hay, but that that they do expect to put in the wood, with the full benefits accruing from that portion of the contract.

“ I am, very respectfully, your obedient servant,

(Signed) “TV. B. HAZEN,

“ Colonel Qth Infantry,

“Bvt. Major-General, TI. S. A., Commanding.

“ The ASSISTANT Adjutant-G-enekal,

“Department of Dakota, St. Paul, Minn.”

XVIII. The quartermaster applied to General Card for authority to buy the machines referred to in Finding VI, but it was not granted.

XIX. In consequence of the peculiar circumstances under which the transportation of the said 301,324 pounds of hay delivered at Tongue River was effected, it was necessary to transport from Fort Buford and the Big Meadows with each train all the forage and rations required for the sustenance of all the men and teams engaged in that service, including as well those employed in transporting the hay delivered, and their supplies for the return trip as well as that to Tongue River were necessarily carried with each train all the way until needed for use. The hired teams were hired for the round trip.

Mr. John B. Sanborn for the claimant.'

The party to a special contract who without excuse commits *104a breach of any of its provisions is thereby made liable in damages to the other to the extent of the injury resulting to him. from such breach.

In case of breach of contract through fraud or negligence, the measure of damages is the whole loss sustained by the injured party in consequence of the breach. (Kaiser v. New Orleans, 17 La. Ann., 178; Cunningham v.Dorsey, 6Cal., 19; Bradley v. Denton, 3 Wis., 557; Shannon v. Comstock, 21 Wend., 457; Griffin v. Colver 16 N. Y., 489; Le Peinten v. S. E. By. Co. Q. L. T., N. S., 170; Great Western B. Co. wBedmayne, 1 L. B., O. P., 329 ; Hamilton v. McPherson, 28 N. Y., 72; Shepard v. Milwaukee Gas Bight Co., 15 Wis., 318; Hinckley v. Beckwith, 13 Wis., 31; Abbott v. Gatch., 13 Md., 314; Copper Co. v. Copper Mining Co., 33 Yt., 92 ; Ashe v. De Bossett, 5 Jones, N. 0., 299; Mead v. Butledge, 11 Tex., 44; Baldw-bn v. Bennett, 4 Oal., 392; Page v. Ford, 12 Ind., 40; Fessler v. Love, 43 Penn. St., 313; Adcums Exp. Co. v. Egbert, 36 Penn. St., 360; Sedgwick on Dam., 75.)

If one party to a special contract so modify and change the 'same as to require of the other the performance of a great amount of additional work and labor and the expenditure of large sums of money in addition to the amount required to perform the contract according to its literal terms, the party performing such additional labor and expending such additional sums of money may recover the A’alue thereof upon a quantum meruit, in addition to the amount he is entitled to according to the .terms of the special contract. (Grands Case, 5 C. Cls. B., 72; Curtis’ Case, 2 C. Cls. B., 144; Kingsbury’s Case, 1 C. Cls. B.,13.)

When one party receives the goods and property of another, the law implies a promise, on the part of the party who receives to the party whose goods and property has been taken, to pay to him the value thereof on demand; and the claimant is entitled to a compensation for his steam hay-press, beater-press and wire. (Grant’s Case, 1, C. Cls. B., 41; Fremont’s Contract Cases, 2 C. Cls. B., 1; Burchiel’s Case, 4 O. Cls. B., 549.)

Mr. Assistant-Attorney General Simons for the defendants.