BALDWIN’S CASE.
John T. Baldwin v. The United States.
On the Proofs.
The chief quartermaster of a military department enters into a contract with the claimant for the sale and delivery of oats at Fori Sill. The contract provides that the receiving officer there shall have power to supply any deficiency hy purchase, subject to the approval of-the department commander. During the period the contract has to run the quartermaster at Fort Sill purchases: oats of another party, and hy order of the officer commanding the fori charges the claimant with the difference in price. When the claimant’s agent presents his vouchers for payment, the quartermaster deducts the difference from the amount due the claimant,whose agent receipts in full for the balance received.
I.Where a contract provides that the receiving officer may charge the contractor with loss resulting from neglect to deliver at the prescribed time, subject, however, to the approval of the commander of the department, the contractor is entitled to the discretion of those officers, and is not hound hy an order of the commander of tho post where delivery is to he made.
II.A military officer in obeying the order of his superior assumes no responsibility and does not adopt it as his own. He is merely the instrument hy which the power above him is executed.
III. A payment of part of a liqnidai¡ed and ascertained debt in accordance with the terms of a contract and after its maturity is no satisfaction in law of the whole indebtedness, and a receipt in full given upon such part payment is nudum pactum.
IV. To make the receipt of a part of a debt a discharge of the whole, there must he a new consideration or a voluntary compromise of a disputable and disputed demand, hy which each party yields something, or an accord and satisfaction hy which a new contract is substituted, or a submission to arbitration. All decisions upholding part payment as a discharge turn upon one or the other of these apparent exceptions.
V.If a payment is simply that of part of a debt when the whole is due, so-that the yielding is all on one side, a receipt in fall for the whole is nudum pactum.
VI.The eases relating to payment of a part for the whole sot forth and examined.
*298
The Reporters' statement of the case:
The contract between the parties on which the suit was brought contained the following provisions:
First. That the said John T. Baldwin shall furnish the Quartermaster’s Department IT. S. Army, at the military post of Fort Sill, Indian Territory, with seven hundred and fifty-six thousand, six hundred and forty-five pounds (756,645 pounds) of good merchantable oats, more or less, as may be required, to weigh 32 pounds to the bushel, during the fiscal year ending June 30,1875, subject to a rigid inspection.
Second. That the said John T. Baldwin shall deliver the said oats in good new burlap sacks between the first day of July, 1874, and the thirtieth day of June, 1875, at such times and in such quantities as the receiving officer may require for the wants of the post during the fiscal year ending June 30, 1875; (provided, that when the oats herein stipulated to be delivered is deficient in quantity or quality, the receiving officer shall have power to supply the deficiency by purchase, and have the contractor charged with the difference in the cost to the government, subject to the approval of the department commander.)
Third. That the said John T. Baldwin shall receive for each and every bushel of oats so delivered the sum of ninety three cents ($0.93) per bushel, in United States currency, payment to be made monthly when the department is in funds; and that at any time when one thousand bushels of oats have been delivered, inspected and received, a voucher may be given and payment made for five hundred bushels of the same, and thereafter for such amount as may be delivered until final delivery, when the five hundred bushels retained shall be paid for on final settlement.
Fourth. That if any objection shall be made to the said oáts, a board of three United States officers shall be convened to decide whether the said oats is receivable according to the conditions of this agreement; the decision of the same to be final when approved by the department commander.
The following are the facts of this case as found by the court:
I. The claimant entered into a written contract with the United States, duly approved, as therein required, by the defendant’s officers, a copy of which is set forth in the amended petition.
*299II. The receiving officer was Capt. A. G. Robinson; the commander of the post was Lieut. Col. J. .W. Davidson; and the department commander was General Augur at the time the contract was made, and subsequently was General Ord.
III. Tbe claimant commenced the delivery of oats under said contract on or about August 19,1874, and continued making deliveries until after January, 1875. The defendants made no payments for oats delivered until February 22,1875, and by reason thereof the claimant became so exhausted in his pecuniary-means that he was unable to make further deliveries as fast as required by the receiving officer, and he gave notice that it would be impossible for him to continue unless the government made some provisions for payment.
IY. On the 7th of January, 1875,.the defendants made a contract with one Morris, of which the following, with the order of the post commander attached, is a copy:
“Office of Assistant-'Q. M., U. S. Army.
“Fort.Sill, I. T., Jan. 7, 1875.
“ I promise and agree with Jonathan Morris, on % of the Quartermaster’s Department at Fort Sill, I. T., that there will be received from him two thousand bushels of oats, if delivered at this place at the rate of 400 bu. per week, and as much more as he may be able, and that he will be paid, therefore, at the rate of one & -i/0- dollars per bushel therefor when the department is in funds for payment for regular supplies, provided the said oats is of a good and standard quality and is. accepted by the receiving officer of the post; and provided further, that the said Jonathan Morris delivers an additional quanity of oats, should he be required to do so, at such times as may be specified and designated by the post qr. mr., not to exceed six thousand bushels, to be paid for at the same time.
. “A. G. Robinson,
“ Capt. & A. Q. M., U. S. A.,
“ByD. B. Wilson,
“ 1 Lt. 25th Inf., in charge of Office.”
“ This agreement, made by my direction, is ordered and approved owing to failure of contractor to supply grain, and its absolute necessity for public animals pertaining to this post. The post quartermaster will receive the grain and charge the difference in price to the oats contractor.
••“J. W. Davidson,
“ Lt. Col. 10th Gao., Com’g Post.”
Under this contract said Morris delivered, between January 13 and February 12, 1875, 192,000 pounds of oats, at a cost to *300the defendants of $1,020 more than, the price fixed by the claimant’s contract.
Y. The claimant has been paid in full for all the oats delivered by him between August 19 and September 30,1874, and after December 31, 1874.
Between October 2 and December 31, 1874, he delivered 196,985 pounds, the contract price of wliich was $5,724.87. From this sum the defendants’ officers deducted the difference in cost of the oats delivered by said Morris, mentioned in the next preceding finding, $1,020, and paid the balance only to the claimant’s attorney, who gave a receipt, which is attached to the voucher given by the assistant quartermaster, of which the following are copies:
u The United States to John T. Baldwin, Dr.
Place and. date of purchase. Dollars. Ots.
Fort Sill, I. T., Oct. 2d to Dec. 31, 1874.
For the delivery of one hundred and ninety-six thousand nine hundred and eighty-five (196,985) pounds of oats, being six thousand one hundred and fifty-five and ff bushels, at ninety-three (93) cents per bu. purchased on contract with John T. Baldwin for oats, dated San Antonio, Tex., July 16,1874. 5, 724 87
See correlative voucher of Jonathan Morris for 6,000 bu. oats, with order of com’dg officer attached, accounting for charge against contractor on % of his failures to deliver as contracted and called for. 1,020 00
Forty-seven hundred and four and dolls.'. $4,704 87
“I certify that the above account is correct and just, and that the articles have been accounted for on my property return for the quarter ending on the 31st of December, 1874.
“A. G-. BobiNson,
“Cajpt. & Ass’t Quartermaster, U. S. A.”
uReceived at Denison, Texas, the 6th of March, 1875, of Capt. E. J. Strang, assistant quartermaster, U. S. Army, the sum of forty-seven hundred four (4,704) dollars and eighty-seven (87) cents, in full of the above account.
“ Jno. T. Baldwin,
“Per W. C. GraiiaM.”
*301The attorney aforesaid acted under a special power of attorney, of which the following is a copy:
Special power.
“State oe Iowa,
County of Pottawattamie:
“Whereas, on the 10th day of July, 1874, Lieut. Colonel S. B. Holabird, deputy quartermaster-general, U. S. Army, entered into agreement with John T. Baldwin, of Council Bluffs, Iowa, for furnishing 756,645 nounds of oats at the military post of Fore Sill, I. T.:
“ Therefore, know all men by these presents, that I, John T. Baldwin, of Council Bluffs, Iowa, one of the parties'to the above-mentioned agreement, do hereby constitute and appoint W. C. Graham, of Denison, Texas, my true and lawful attorney, for me and in my name, place, and stead, to act and to do all things necessary and required, to well and truly observe, perform, ful-' fill, accomplish, and keep, all and singular the covenants, conditions, and agreements whatsoever which on my part are or ought to be observed, performed, fulfilled, accomplished, and kept,‘comprised or mentioned in said articles of agreement, and I hereby ratify and confirm all that may larvfully be done by virtue hereof.
“ Witness my hand this 16th day of July, 1874.
“J. T. Baldwin.”
YÍ. In charging the claimant with the difference in the cost of the oats purchased of said Morris, and in making said deduction, the receiving officer acted upon the order of the post commander, attached to his approval of the contract with Morris, as set forth in the fourth finding. Said charge did not receive the approval of either General Augur or General Ord, the several department commanders. The deduction was made against the objection of the claimant, and he never gave his assent thereto, unless the receipt by his attorney mentioned in the fifth finding was such assent binding on him.
Mr. J. D. McPherson and Mr. JE. B. Tyler for the claimant.
Mr. Joseph K. McGammon (with whom was the Assistant Attorney-General) for the defendants.
BichaedsoN, J.,
delivered the opinion of the court:
On the 16th of July, 1874, the claimant entered into a contract with the defendants, through the chief quartermaster of the Military Department of Texas, at San Antonio, to furnish *302tbe military post of Fort Sill, Indian Territory, witli 756,045 pounds of good merchantable oats, more or less, as might be required, during the fiscal year ending June 30,1875. The oats were to weigh 32 pounds to the bushel, and were to be delivered at such times and in such quantities as the receiving officer might require for the wants of the post during the year: Provided, That when the oats should be deficient in quantity or quality, the receiving officer should have power to supply the deficiency by purchase, and have the contractor charged with the difference in the cost to the government, subject to the approval of the department commander. The defendants, on their part, agreed that the contractor should receive for each and every bushel of oats so delivered the sum of 93 cents per bushel, in United States currency, payment to be made monthly when the department is in funds, and that at any time when 1,000 bushels were delivered, inspected, and received, a voucher should be given and payment made for 500 bushels of the same, and thereafter for such amount as might be delivered until final delivery, when the 500 bushels retained should be paid for on final settlement.
The claimant began to deliver the oats required about August 19, 1874, and continued to make deliveries until after January, 1875.
Between October 2 and December 31, 1874, he delivered 196,985 pounds, the contract price of which amounted to $5,724.87. This amount was admitted to be correct and no controversy arose as to its having been earned by the claimant. But when the account was rendered the assistant quartermaster deducted from it the sum of $1,020, and paid the balance only to the claimant’s attorney, who, on the 6th of March, 1875, gave a receipt in full of the account. The deduction was made under the following circumstances:
Early in January, the defendants having made no monthly payments for the oats already delivered, as provided by the contract, the claimant became so exhausted in his pecuniary means that he was unable to furnish the oats as fast as required, and he notified the officers that it would be impossible for him to continue unless the government made some provision for payment. 'None was made, and he received no money from the defendants until the 22d of February. On the 7th of January, the assistant quartermaster contracted with one Morris for th e *303delivery of not exceeding 6,000 bushels of oats, and under that contract 192,000 pounds were delivered, at a cost to the defendants of $1,020 more than the contract price in the claimant’s contract.
In approving the Morris contract, the post commander ordered the receiving officer to charge the difference in cost to the former contractor, the present claimant. This the receiving officer did without the approval of the department commander.
The contract provided that the receiving officer, who might be supposed to understand all the circumstances better than the post commander, should have the power to charge the contractor for supplies to make up deficiencies, subject to the approval of thé highest officer in command — the department commander. It contemplated the independent judgment of each of those officers. When the receiving officer acted upon the order of the post commander, he surrrendered his own judgment and carried out the will of another, in whom the contract had vested no discretion or power in the matter.
A military officer, in obeying the order of a superior, assumes no responsibility for its correctness, and does not adopt it as his own, but becomes merely the instrument by which the power above him is executed.
The receiving officer, therefore, did not of his own judgment make this charge against the claimant, and, moreover, the department commander never gave his approval to what was done. It is therefore clear that the claimant was not chargeable with the difference in cost of the oats delivered by Morris.
The claimant is therefore entitled to judgment for the unpaid balance of his account and voucher, unless his right is -barred by the receipt in full, signed in his name by his duly-authorized attorney.
There is no principle of the common law better established and more generally recognized than that a payment, which is only in accordance with the terms of the contract and after its maturity, of part of a liquidated and ascertained debt is no satisfaction in law of the whole indebtedness, and that a receipt in full given upon such part payment is nudum pactum as to the unpaid balance, and not binding upon the maker. (Chittey’s Con., Perkins’ ed., 821, title Payment; 2 Parson’s Con., 4th ed., 129; Bostwick v. The United States, 94 U. S., 53, and 12 C. Cls. R., 67.)
*304There are some apparent, though not real, exceptions. To make the receipt of part a discharge of the whole, there must be a new consideration, or a voluntary and well-understood compromise of a disputable and disputed claim, by which each party yields something for the concessions of the other; or an accord and satisfaction, by which a new contract is substituted, or a submission to arbitration; in each of which cases a consideration is expressed or implied. All the decisions upholding part payment as a discharge of the whole debt have turned upon one or the other of these apparent exceptions. The consideration may be slight, but it must be found to exist; as the payment of a note before its maturity, or by the promise of another party, or in chattels not required by the contract, or in any other manner differing from the original agreement, which may seem to be more beneficial to the payee. (Child et al. v. United States, 12 Wall., 232, and 7 C. Cls. R., 209; Mann v. United States, 17 Wall., 67, and 8 C. Cls. R., 125; Comstock's Case, 9 C. Cls. R., 141.)
In the present case there was no new consideration for the discharge of the whole of the claimant’s demand, no voluntary compromise, and no accord and satisfaction, from which a consideration can be implied. The defendants’ officers, having the power, arbitrarily reduced the liquidated debt duo the claimant, by deducting from it a sum in set-off, which we have shown was not a legal and valid claim. At that time the money paid to the claimant had been long overdue, and the defendants did nothing more than to satisfy, to that extent, their long-matured obligations. It was a simple payment of part when the whole was duo and ought to have been paid; nothing more. The yielding was all on one .side, which renders the receipt nudum pactum as to the unpaid portion of the claim.
In Bostwick's Case (92 U. S., 53, and 12 C. Cls. R., 67) the claimant had leased to the defendants certain real estate for one year at the rent of $500 a month. Before the expiration of the year the defendants notified the owner that they should reduce the rent to $250 a month. Thereafter rent was paid at the reduced rate, and receipts were given by the lessor in full payment. The court held that as to the rent for the one year specified in the lease the receipts were nudum pactum, and the claimant recovered the agreed price for the unexpired part of the term; but as to the rent for the occupation after the expira*305tion of tbe lease, tbe notice, acceptance, and receipts constituted a new contract. (Field’s Case, 13 C. Cls. R., 41.)
Tbe present case cannot be distinguished in .principle from that of Bostwick.
Tbe judgment of tbe court is that tbe claimant recover the sum of 61,020, and it will be so entered in bis favor.
HUNT, J., was not present when this case was argued, and took no part in the decision.