CHOLLAR'S CASE. Justus Chollar v. The United States.
On the Proofs.
A contract for the sale of horses pi'ovides that they may he delivered at Washington instead of Per-ryville, the defendants to pay the “ additional cost” of delivery. The contract is assigned to and filled by third parties nine days before the actofV7thJidy, 1862. — *(12 Stat, L.,p. 596.)
I. An agreement that the defendants shall pay the “ additional cost” of delivering horses in Washington instead of at Perryville entitles the claimant to recover only the t( actual outlay”
*320of expense. See Wormer’s case, 1 C. Cls. H., p. 212, where the point is first determined on a contract identical in terms.
XI. The act of 17th July, 1862, <12 Stat. L., p. 596,) which declares that no contract shall he transferred, and that ‘‘ any such transfer shall cause the annulment of the contract,” does not apply to a case where the transfer was made nine days before the approval of the act.
Messrs. Carlisle and McPherson for the claimant:
This is a claim arising under an express contract, in writing, by which the United States, having contracted with the claimant for 300 horses to he delivered at Perryville, Maryland, agreed to pay the additional cost of delivery if the claimant would deliver them at Washington instead of Perryville — which he did. This claim is for that additional cost.
Harsh testifies that the actual cost to the contractor, including all contingencies, was from $3 74 to $7 per head. Moore, who received and paid the expenses, testifies that the actual outlay in money was #2 per head.
The Assistant Solicitor for the defendants:
That provision of the contract under which it is sought to maintain this suit is as follows :
“ It is hereby expressly agreed and stipulated, that if the United States shall elect to have the whole or any part of these horses delivered at Washington, District of Columbia, or at Annapolis, Maryland, instead of Perryville, it shall have the right so to direct, and the contracting parties shall so deliver them; the United States agreeing to pay the additional cost of delivery arising from such change.”
The claimant, after said contract had been awarded to him, transferred the same to D. P. Moore, who furnished all the horses required by claimant’s contract, and received from the government the stipulated price therefor, except the “ additional cost consequent upon the change in the place of delivery.”
' The claimant cannot recover at all. He has ceased to have any interest in the subject-matter of this contract. The testimony of the witness Moore on this question is as follows :
“ 1st cross-int. Did you not succeed to the interests of Mr. Chollar in the contract which he made with the government ?
“ Answer. I did j I suppose so; I filled the contract and drew the money upon his vouchers.”
The transfer of this contract by the claimant terminated this con*321tract, so far as the United States were concerned. This transfer was prohibited by the act of Congress approved July 17, 1862, which provides as follows, viz:
“No contract or order, or any interest therein, shall be transferred,, by the party or parties to whom such contract or order may be given, to any other party or parties, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned.” — (12 Stat. at L., p. 596, sec. 14.)
Peck, J.,
delivered the opinion of the court:
On the eleventh day of June, A. D. 1862, Justus'Chollar contracted with Captain E. C. Wilson, of the quartermaster’s department, to deliver three hundred horses to the United States at Perryville, Maryland, on or before the eighth day of July then next. It .was agreed by the contract that the United States might direct that the horses should be delivered at Washington, instead of Perryville, on paying the additional cost of delivery arising from such change.
The horses were delivered at Washington, by direction of the agent of the government, instead of at Perryville; and this suit is brought to recover the difference in the cost of transportation between the two places, which it is alleged the government refuses to pay.
This difference of cost of transportation the claimant avers is two thousand and five hundred dollars.
The proof in the case, by the claimant’s witness, is that “ the additional cost arising from the changing of the place of delivery was two dollars per head, actual outlay.” The actual outlay is all the contract will authorize us to allow for the service, and for that sum, being six hundred dollars, he should recover judgment.
It was contended by the solicitor for the government that the claimant had no right to recover upon the contract, because, as the solicitor insisted, he had assigned it. In support of this position we were referred to the 14th section of chapter 200 of volume 12, page 596, Stats. L. This act was approved July 17, 1862, nine days after the date when the contract, by it^ terms, was to have been executed, and there is nothing to show that it was not promptly filled. The discussion upon the act of Congress forbidding transfers of contracts, and its effect upon the case presented, was a waste of research and learning.
A judgment will be entered in favor of claimant for six hundred dollars.