#### McILWRAITH, McEACHARN & COMPANY (PROPRIETARY, LIMITED) v. THE UNITED STATES.

[No. 26194.

Decided May 1, 1911.]

*On the Proofs.*

The chief commissary in Manila enters into a written contract with the claimants in Australia for the purchase of vegetables: for the Army with the stipulation that all vegetables in good condition upon arrival at Manila should be regarded as, *378delivered. A vessel arrives witli vegetables when the Commissary Department happens to be well supplied. For some reason not disclosed the vegetables are not paid for. They in consequence of being held until wanted are largely spoiled.

I. Where a bid was made upon the express condition that all vegetables which arrived at Manila in good condition should be regarded as a delivery to the Commissary Department and the bid was embodied in the contract, a cargo of vegetables arriving in good condition at Manila must be regarded as having been then accepted by the defendants, and whatever loss followed must be borne by them.

II. The fact that the Commissary Department did not, at the time of arrival, need the vegetables for the use of the Army, and could not immediately dispose of them, did not throw any obligation on the contractor or compel him to exercise his option of disposing of them.

*The Reporters’*statement of the case :

The following are the facts of the case as found by the court:

I. On the 1st day of May, 1898, after the Battle of Manila Bay, the United States sent a large number of troops to the Philippine Islands. On the 8th day of July, 1898, Lieut. Col. D. L. Brainard, chief commissary of the United States Army in said islands, reported to Commissary General of Subsistence Eagan that there was no possibility at that time of supplying the command or any part of it with articles of the ration from the Philippine Islands, and that the neutrality laws would prevent supplies, except such as might be brought in surreptitiously; that Admiral Dewey had allowed the troops, now in said islands, to receive fresh meat from his supply ship every other day, and that if this arrangement continued it would enable the troops to have fresh meat for 30 days from the 28th day of July, 1898. He urged upon the department the necessity of making arrangements at once for dispatching a vessel to this (Manila Bay) harbor with supplies of fresh beef and vegetables, and stated that while the Spanish forces controlled Manila nothing could be obtained in said islands in the way of food supplies. He expressed the opinion that in the hot and moist climate of Manila fresh vegetables introduced from other sources *379would prove a costly experiment, as 50 per cent of the potatoes and onions purchased at Bombay had spoiled.

On the 1st day of August, 1898, Chief Commissary Brain-ard cabled the Commissary General from Manila, “ No foods obtainable here now.”

II. On the 9th day of August, 1898, Com. Gen. Eagan sent the following cablegram to John C. Bray, consul general of the United States at Melbourne, Australia:

“At what price can, you obtain steamship cargo refrigerated beef and vegetables delivered without delay at Manila, contractor being responsible for condition of beef and vegetables up to moment of daily delivery to troops? How much per day will be charged for detention vessel, as each will have to remain until cargo is consumed? ”

On the 12th day of August, 1898, the Commissary General sent the following cablegram to Bray:

“Anxious to hear from you by to-morrow noon, Washington time, about cargo beef and vegetables for Manila.”

III. Upon receipt of the above cablegram Bray made-inquiries of persons interested in shipping at Melbourne and Sydney, Australia, for quotations for a ship with a cargo of meat and vegetables. He told the shipping companies that the cargo was urgently needed by the United States to supply its army; that the contractor would be responsible for its condition until delivered to the commanding officer, who would make daily demands for what quantities he needed, and that the contractor would only be paid for what the commanding officer received. All the persons with whom he consulted, except the claimant, quoted prices which he considered too high and terms which required payment in cash and the acceptance of the goods when loaded. Sir Malcolm McEacharn, the managing director of Mcllwraith, McEacharn & Company, at his request on the 12th of August, 1898, gave him a verbal quotation for the proposed cargo.

In this quotation the meats averaged about 11 cents per pound American money; potatoes, 15 pounds English money; and onions, 16 pounds English money, per ton. He did not inform Sir Malcolm of the contents of or show him the cablegram of August 9, 1898 (set out in finding 2 hereof), and August 14, 1898 (set out in finding 5 hereof).

*380Consul General Bray took time to consider the above proposition, and on August 12, 1898, saw Sir Malcolm again and asked him to reduce the quotation., if possible. Sir Malcolm explained to him that the risk attending the delivery was too great to admit of reduction; that the climate at Manila was uncertain and changeable; and that the intense heat and heavy rains of the Tropics would subject the vegetables to rapid deterioration and decay if delivery was not taken promptly. He stated that unless the company was relieved of the risk of decay and deterioration of the vegetables it could not reduce the price.

Finally, Sir Malcolm proposed that if the United States would regard all vegetables which arrived at Manila in good condition as at its risk after arrival, and would pay for the same accordingly, he would reduce the price of meat to 8 cents per pound for hind quarters and 7-| cents per pound for fore quarters.

The consul general made a calculation and saw that the saving to the Government on this basis would be nearly $50,000, even if all the vegetables perished, and as this offer was the most favorable to the Government, he decided to forward it and asked Sir Malcolm to put it in writing.

IY. The next day, August 13, 1898, Mcllwraith, Mc-Eacharn & Company submitted to Consul General Bray the following offer:

“ The CoNSul General of the United States,

“ *Melbourne.*

*“*Sir : Having reference to your inquiry, we are prepared to deliver at the port of Manila up to 2,500 tons of beef and vegetables in accordance with the size of the steamer which we may secure, loading to commence as soon as possible after we have intimation from you that our offer is accepted at the following prices:

“ Hind quarters of beef, 8 cents per lb.

“ Fore quarters of beef, 7-|- cents per lb.

“ Potatoes, £15 per ton of 2,240 lbs.

*“*Onions, £16 per ton of 2,240 lbs.

“ £80 per day for steamer as store ship.

“ It must be clearly understood, however, that we shall be in no way responsible for the delivery of the cargo to the troops, the offer being for delivery at steamer’s side. We undertake to keep in good condition the beef up to the date *381of daily delivery of same ex-steamer as may be required by the commanding officer, but all vegetables which may arrive in good condition at the port of Manila shall be regarded as a delivery in the terms of our offer. Should the Government not be prepared to take delivery of the vegetables immediately on the steamer’s arrival, we to have the option of selling them to best advantage on our own account, if, in the opinion of our representatives, any fear exist of the vegetables deteriorating, the Government to have no claim upon us in consequence of our doing so, nor for nondelivery.

“ Payment to be made for the meat and vegetables on delivery of daily quantities, in sterling in Melbourne, any exchange thereon to be added and paid by you.

“ The commanding officer of the United States Army, or one of his representatives in Manila, to be the only one to whom we shall be responsible to look for orders as to daily quantity of meat and vegetables which he requires delivered or in regard to the quality of such meat and vegetables in terms of this offer.

“ The charge for the detention of the steamer, viz, £80 per day, to commence from and including the day of arrival of the steamer which we may send up, and to be paid daily thereafter until the steamer finally leaves Manila.

“ Immediately we know that our offer is accepted, no effort shall be spared on our part to provide the steamer with the necessary beef, vegetables, etc., and to secure her arrival at Manila with promptness and dispatch, and under ordinary circumstances we anticipate that she will arrive there about 30 days after the date of her commencing to load.

“ We have the honor to be, sir,

“ Your obedient servants,

“McIlwraith, McEacharN *&*CompaNy

“ (Proprietary Ltd.) .

“ M. McEacharN, Director.”

On August 14, the next day, the claimant received the following reply to the above offer:

“Your favor of the 13th instant at hand and contents noted. I have cabled my Government, and if acceptable your stipulations will be considered part of the contract.

“ Yery respectfully,

“ JohN P. Bray.”

. On August 15 Mr. Bray called upon Sir Malcolm, managing director for the claimant, told him that his offer, set out above, had been accepted, and urged him to expedite the necessary contract.

*382Consul General Bray did not, as he informed the company, notify the United States of this offer as above set out, as he considered that time was of the utmost importance, and as he considered that there was danger under the circumstances of complications arising through discussion by cable; that the company’s offer was so advantageous to the Government and the condition of the troops at Manila and the urgency of the situation warranted him in accepting-the offer, assuming the United States would approve his action when the circumstances were known.

The claimant immediately prepared a contract substantially similar to one hereinafter set forth in Finding Y, with the exception that paragraph 6 thereof and the copies of the cablegrams therein referred to were not made a part of it. This contract was sent to Mr. Bray, who redrafted it and returned it in person to the claimant on the 16th day of August, 1898, in the form in which it appears in the following finding:

Y. “ This contract entered into by and between Mcll-wraith, McEacharn & Company (Proprietary, Limited), merchants and shipowners, and John P. Bray, of Melbourne, Australia, consul general for the United States of America.

“ First. Mcllwraith, McEacharn & Company (Proprietary, Limited) agrees to dispatch a steamer fully equipped with refrigerating appliances and convey 1,500 tons frozen meat, or so much thereof as can be safely carried, and 750 tons potatoes and onions, or as much thereof as the capacity of said steamer will permit, in proportion two-thirds of potatoes and one-third onions to> be delivered at the port of Manila to the commanding officer of the United States Army in the Philippine Islands in such manner as he may direct, said produce to be delivered at the earliest possible date.

“ Secondly. The meat and produce shipped under this agreement will be of prime quality and is subject to inspection and approval by the commissary of supplies or the authorized agent of the United States of America at Manila.

“ Third. The price to be paid on delivery at Manila as per the following schedule:

“ Hind quarters of beef, 8 cents per lb.

“ Fore quarters, 7-J cents per lb.

“ Potatoes, £15 per ton of 2,240 lbs.

“ Onion, £16 per ton of 2,240 lbs.

*383*“*Fourth. The commanding officer of the United States Army at Manila to have the right to hire the steamer after arrival at Manila as a store ship at the rate of eighty pounds sterling per day.

“ Fifth. Payment for such produce and for such services to be made on delivery of the cargo daily by vouchers drawn on the Treasury of the United States of America at New York or Washington, plus exchange payable in Melbourne, Australia.

*“*Sixth. Meats and vegetables to be delivered in accordance with copies of cablegrams from the Commissary General at Washington, D. C., which are attached hereto and made a part of this contract.

“ Seventh. The ship to be provided by the commanding officer aforesaid with a safe berth on arrival at Manila, free of dues, and to be afforded while in Manila the protection of American authorities.

*“*Eighth. The act of God, perils of sea, fire, barratry of the master and crew, enemies, pirates, arrests, and restraints of princes, rulers, and people, collisions, stranding, and other accidents of navigation excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners.

“ Ninth. The ship not answerable for losses by explosion, bursting of boilers, breakage of shafts, or any latent defects in the machinery or hull not resulting from want of due diligence by the owners of the ship or any of them or by the ship’s husband or manager.

“ Tenth. The steamer has liberty to call at any ports in any order, to sail without pilots, and to tow and assist vessels in distress, and to deviate for the purpose of saving life or property.

“ Dated at Melbourne, Australia, this sixteenth day of August, 1898.

“ The common seal of McIlwraith, McEacharn & Company (Proprietary, Limited) was hereunto affixed by order of the directors in the presence of M. D. McEacharn, director; D. Hunter, director; John P. Bray (seal).

“ Signed, sealed, and delivered by the said John P. Bray, in the presence of W. L. Edmanson, Block Arcade, Melbourne.”

The Commissary General was advised of the above offer by cable on the same day, and in response thereto by cable he informed Mr. Bray that he would answer definitely by the evening of August 14. He also informed Mr. Bray that the *384beef should, be first-class carcasses, weighing about 600 pounds, and that Melbourne beef was not so good as other Australian beef; to which Mr. Bray, on the same day, cabled that the meats would be purchased in New South Wales and Queensland, and that both meat and vegetables would be of the best quality. In response to the latter cablegram the Commissary General cabled as follows:

“August 14, 1898.

“ Beat, *American Consul*General,

“ Melbourne, *Australia:*

“ In accordance with propositions and statements in your cable thirteenth and fourteenth please purchase cargo with quickest possible dispatch of frozen beef, potatoes, and onions, the proportion, potatoes to be two-thirds and onions one-third. Payment will be made in Manila as often as desired on the delivery and acceptance of stores each day. Wire me if there is anything necessary, to be done beyond these cables to make a complete formal contract. If necessary, can you not do it for the War Department? It must be understood that payment is to be made only for articles in good condition at time of each daily delivery. Eighty pounds per day will be paid for each and every day the vessel is detained at Manila. The deliveries at Manila to be made daily, as required by the general commanding there. Cable me immediately if this is acceptable and if I can depend upon the cargo starting and when it will probably reach Manila, that I may advise Manila about it.

“ EagaN,

“ *Commissary*General, *United States Army.”*

*“*MblboukNe, *August 15,1898.*

'“ Eagan, *Commissary*Generad,

*“'Washington:*

“Load immediately. Weather favorable; reach Manila thirty days from date. Contracts signed to-morrow. Will you accept surplus coal ?

“ Brat.”

“August 15, 1898.

“ Brat, *American Consul*General,

“ Melbourne, *Australia:*

“ Cable received. Perfectly satisfactory. No coals required. Please expedite shipment and arrival at Manila all possible.

“ Eagan, *Commissary*General.”

*385Mr Bray requested the claimant, through its managing director, to execute the above draft of contract, and when the claimant, through its managing director, stated to him that it did not agree with the terms of his offer of August 13, 1898 (set out in Finding IV), and that he could not sign the same unless his letter containing said offer and Mr. Bray’s replies thereto of August 14 and 15, 1898 (set out in Finding IV), accepting the offer were regarded as the contract itself, Mr. Bray urged that the contract be signed at once, so that he might cable that the contract had been signed, and that he would write the claimant a letter acknowledging that its above offer, dated August 13, 1898, and his above acceptance (set out in Finding IV) were a part of the contract. With this understanding the contract was signed by the claimant and by John P. Bray, consul general, on behalf of the United States.

In compliance with this agreement the said John P. Bray wrote the following letter to the claimant on August 18, 1898:

“ Dear Sirs : Beplying to yours of the 16th instant the conditions and stipulations contained in your letter of the 13th instant are hereby made a part of the contract executed and dated August 16,1898.”

VI. Upon receipt of the above letter the claimant immediately loaded the steamship *The Dulce of Sutherland*with a cargo of meat, potatoes, and onions for shipment to Manila.

On the 15th day of August, 1898, Com. Gen. Eagan cabled Commissary Brainard, at Manila, as follows:

“ Have contracted for steamship cargo beef and vegetables to be delivered to you at Manila within 30 days. Hope Navy can help you meantime and we can help them.”

On August 21, 1898, Consul General Bray sent the following cablegram to Gen. Merritt at Manila :

*“Dulce of Sutherland*leaves Brisbane to-day with meat and vegetables contracted for by War Department. Ought to arrive 14th.”

An official copy of this cablegram was furnished the chief commissary at Manila on the same date.

*386On August 26, 1898, Com. Gen. Eagan cabled Commissary Brainard, at Manila, as follows:

“ Have you received my cables ? Cargo of frozen beef and vegetables purchased in Australia for your command. Due there about 20 days. Do not purchase more than may be necessary until arrival of cargo. Notify Cloman. Acknowledge receipt.”

The cablegram was received and the copy furnished Maj. Cloman on the same date.

VII. *The Duke of Sutherland*arrived at Manila on the 16th of September, 1898, and Chief Commissary Brainard cabled the Commissary General that the beef and vegetables were both in good condition.

• VIII. Four days prior to the arrival of *The Dulce of Sutherland*at Manila, on September 12, 1898, Chief Com.missary Brainard issued an order directing the purchase from the steamship *Urmston Orange*of such quantities of potatoes and onions ias would suffice for the use of the troops for 10 days.

On September 24, 1898, the agent for the claimant wrote Chief Commissary Brainard advising him that although one week had expired since the arrival of *The Dulce of Sutherland*at Manila that less than 2 tons of potatoes and onions had been taken from the cargo, and protested against such a rate of discharge of perishables; that delivery should be taken at such a rate as reasonably would absorb the whole shipment before the depreciation and decay natural in that climate would render the vegetables valueless.

Two days thereafter, on the 26th of September, 1898, Chief Commissary Brainard wrote said agent that prior to his arrival he was informed by the agent of the *Urmston Grange*that *The Dulce of Sutherland*had been detained at Melbourne and would not arrive until about October 1; that acting upon this information he purchased vegetables for 10 days for the troops, and that as these vegetables would not be exhausted until the 30th of September, no supplies could be taken before that time.

*387IX. On September 21, 1898, Consul General Bray cabled Com. Gen. Eagan as follows:

“ Was necessary to promise that vegetables would be accepted on arrival, notwithstanding terms of contract. Direct authorities at Manila to accept in accordance with my representations. Answer.

On September 27, 1898, Com. Gen. Eagan cabled Chief. Commissary Brainard at Manila as follows:

“Australian beef-vegetable contract received. Improperly agrees to accept vegetables on arrival. We must abide by it. Will the vegetables keep on shipboard or ashore ? If necessary will contract for further supply as soon as possible. Answer.”

On September 28,1898, Chief Commissary Brainard cabled the Commissary General from Manila as follows:

“ Deck vegetables ashore; remainder retained on vessel. Keep better. Will cable time contract for more.”

On September 27, 1898, Com. Gen. Eagan cabled Bray, consul general at Melbourne, as follows:

“ Contracts received. Have wired Manila to accept vegetables.”

On the 13th day of August, 1898, the United States had a large body of troops in the Philippine Islands, and food was scarce in those islands.

X. The agent of the claimant, on September' 29, 1898, again protested to the proper officers against the trifling quantities of vegetables which were being taken from the ship.

On the 5th day of October, 1898, upon command of. Maj. Gen. Otis, a board of survey was appointed to meet that day at the subsistence sales depot, Binondo, to examine into, report upon, fix responsibility for, determine the amount, and recommend the disposition of a lot of vegetables brought to Manila from Australia by the steamship *Duke of Sutherland*and reported unfit for issue. The board met pursuant to the above order and reported on the same day that they had examined into the condition of a lot of vegetables, potatoes and onions, brought to Manila from Australia by the steamship *Duke of*Sutherland, and that they find that both the-

*388potatoes and onions are in a putrid and rapidly decomposing condition, both in the commissary storehouse at Binondo and on board the said steamship; that the best of the potatoes and onions, which were stored on top of the heaps, have commenced to decay; and that the board believes them wholly unfit for issue or consumption.

That from the certificates of Maj. S. A. Cloman, C. S., United States Volunteers, and of Mr. George Coltar, master of the steamship *Duke of*Sutherland, it appears that the vegetables were in good condition when shipped at Brisbane, and apparently so on their arrival here (Manila).

That said vegetables could not have been removed from the ship immediately after its arrival for want of storage room on shore.

That the board is of the opinion that the decay is due to the unfavorable climatic conditions here (Manila), and that the decomposition would have occurred in , a like duration of time however and wherever the vegetables might have been stored.

That the steamship *Duke of Sutherland*arrived at Manila August 16, 1898; that since October 1, 1898, the decomposition had been very rapid, necessitating the jettisoning of 946 bags of potatoes and 10 boxes of onions.

The board found that 4,695 bags of potatoes and 175 bags and 124 boxes of onions were shipped at Brisbane and arrived at Manila; that the bags of potatoes would average about 11-iS: to the ton; that of the vegetables, 151 bags of potatoes and 23 bags and 16 boxes of onions were discharged at Cavite, P. I., for the use of the Army and Navy; that the remainder of the vegetables have been jettisoned or, are still aboard the steamship *Duke of Sutherland*or in lighters or in the commissary storehouse at Binondo.

The board found that responsibility could not be attached to anyone and recommended that, owing to the menace to the health of the crew and the danger of disease from the stench in the vicinity of the commissary warehouse at Binondo, said vegetables be submitted immediately to the inspector for his action.

XI. On October 8, 1898, Maj. S. A. Cloman, commissary of supplies, United States Army, Philippine Islands, made an “ inventory and inspection report of subsistence stores, *389for which. Major S. A. Cloman, C. S., U. S. Vols., Depot C. S., is accountable and which have been inspected and reported on by Major J. S. Mallory, Inspector General, U. S. V.,” as follows:

“ That 804,389 lbs. of potatoes were received on the *Dulce of*Sutherland, valued per invoice at $26,213.51; that 16,719 lbs. onions, valued at $581.16, were received by the same vessel, and recommended that 794,089 pounds potatoes be destroyed and 10,000 lbs. be sold, and that 16,719, lbs. of onions be destroyed.”

The following certificate was annexed to the report:

*“*I certify that this is a correct inventory in every particular of public property for which I am responsible, each and every article of which I have personally examined and Believe requires the action of an inspector and has never been previously condemned and is now unsuitable for service here.

“ S. A. ClomaN,

“ *Major, G. S., U. S. Vols., Depot O. S.”*

“StatioN, Manila, P. I., *October 8,1898.*

“ I certify that I have this 5th and 6th days of October, 1898, carefully examined each and every article enumerated in the accompanying inventory; that their condition is as above stated, that the articles recommended to be destroyed have no money value at or near the post, and that the disposition recommended is, in my judgment, the best for the public interest. I also certify that the articles found to be utterly worthless have, as far as practicable, been destroyed in my presence.

“ John S. Malloey,

“ *Major and Inspector General, U. S. V.”*

On the back of the inventory and report is the following indorsement:

“ Inventory and inspection report of subsistence stores for which Major S. A. Cloman, C. S., U. S. Vols., is accountable. Inspected at Manila, P. I., on the 5th and 6th days of October, 1898. Headquarters Department of the Pacific and 8th Army Corps, P. I., October 14th, 1898. The within-named articles will be disposed of as recommended by inspector.

“ By command of Major General Otis:

“ Thomas H. BaeRy,

*“Assistant Adjutant*General.”

*390On October 6, 1898, Commissary of Subsistence Cloman wrote to the agent of the claimant as follows:

“Sirs: I have the honor to inform you that Major J. S. Mallory, inspector general, special inspector of the vegetables aboard the S. S. *Duke of*Sutherland, has ordered.

“(1) That all vegetables between decks on said ship be jettisoned; also onions on deck.

“(2) That all vegetables now on the cascos near warehouse and all in the warehouse, with the exception of the sweet potatoes, be destroyed.

“(3) That all potatoes on deck and also the sweet potatoes in warehouse be held until further orders.

“ Please take the necessary steps to carry out the order without delay.”

XII. Of the cargo of potatoes and onions purchased by and-delivered at Manila to the United States Government for the use of the Army, under the contract hereinbefore set forth, the United States, through its proper officers, failed to pay the claimant for—

*£*• P*

354 t. 12 c. 2 q. 9 lbs. potatoes, at £15. 5,319 00 CO

7 “ 9 11 0 “ 5 “ onions, at £16. 119 ^ CD

£5,438 13 5

Or $26,431.92.

*Mr. Charles W. Clagett*for the claimant. *Mr. Henry P. Blair*was on the brief.

*Mr. W. F. Norris*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendant.

Peelle, Ch. J.,

delivered the opinion of the court:

The claimant herein seeks recovery for certain vegetables of a perishable character shipped from Australia to Manila for the use of the Army pursuant to a contract entered into between it and the United States through John C. Bray, consul general at Melbourne, Australia, August 16, 1898, which contract, as subsequently modified, was ratified by the Commissary General, United States Army, as set forth in Finding IX. The negotiations for the purchase of the supplies began August 9, 1898, by the Commissary General in*391quiring of Mr. Bray at what prices he could obtain steamship cargo of refrigerated beef and vegetables delivered without delay at Manila, the contractors to be responsible for the condition of the same up to the moment of daily delivery to the troops. Three days later he requested Mr. Bray by cablegram to advise the department by noon the next day about said cargo. Immediately upon receipt of the latter cablegram Mr. Bray made diligent inquiry of persons interested to ascertain the prices of such cargo. The prices given were upon the basis that the contractor should be responsible for the condition of the supplies until the *“*moment of daily delivery to troops.” Mr. Bray regarded the prices as too high and requested the claimant to reduce the same, which it refused to do, but informed him that if the Government would regard all *vegetables*arriving at Manila in good condition, as at the risk of the Government, it would reduce the prices, as set forth in the findings, which amounted in the aggregate to a difference in the price of meat of about $50,000, or a sum about equal to the total cost of the vegetables purchased. Thereupon the consul general asked the claimant to put its proposition in writing, which it did on August 13, 1898, as set forth in Finding IY, by the terms of which the vegetables arriving in good condition were to be accepted by the Government upon arrival, the meat to be at the risk of the claimant until daily issued to the troops, to which the consul general, on the same day, advised the claimant that he liad cabled his Government, and if its proposition was accepted the stipulation would be considered a part of the contract. August 15, 1898, the claimant was informed by the consul general that its offer was accepted, and urged it to expedite the necessary contract, which it did, and submitted the draft thereof, *without*paragraph 6 and the cablegram therein referred to,, to the consul general, who, after *inserting*paragraph 6, signed the same August 16, 1898, as did the claimant in the form set forth in Finding Y, but upon condition that its proposition of August 13, 1898, and his reply thereto of August 14 and 15, 1898, as set forth in Finding IY, were made a part of the contract, to which the consul general acceded, and on August 18, 1898, he addressed the claimant a letter in which he stated that “ The conditions and *392stipulations contained in your letter of the- 13th instant are hereby made a part of the contract executed and dated August 16, 1898.”

The matter of making the purchase was intrusted by the Commissary General to Mr. Bray, stating the conditions upon which he was to act, of which the claimant was advised, but it in effect declined to contract upon the conditions stated, by giving prices which Mr. Bray regarded too high; and thereupon the claimant, at his request, made bids upon the condition that all vegetables in good condition should upon arrival at Manila be regarded as a delivery to the United States, to which the consul general acceded, and the contracts as finally modified embodied the offer of the claimant and Mr. Bray’s acceptance, which, being subsequently ratified by the' Commissary General, became the contract between the parties.

If we are correct in this, then it follows that the vegetables being in good condition when they arrived at Manila must be regarded as having been accepted by the United States, and whatever loss followed must be borne by the United States and not by the claimant.

The vegetables arrived at Manila in good condition (Finding VII) September 16,1898, but the Government delayed in receiving them on the ground that, notwithstanding the prior purchase of said vegetables and within 4 days of the arrival of the vessel therewith, the chief commissary caused to be purchased from another vessel a supply of like vegetables sufficient for 10 days or more. Mr. Bray, being appealed to therefor, cabled the Commissary General, September 21,1898, that in order to secure the vegetables it was necessary to promise their acceptance upon arrival at Manila. September 27, 1898, the Commissary General, though he regarded the contract agreeing to accept the vegetables upon arrival as improper, nevertheless cabled the chief commissary at Manila “We must abide by it,” and on the same day he cabled Consul General Bray that the contract had been received and that he had “ wired Manila to accept vegetables ” which was done, as shown by cablegram set forth in Finding IX, by the chief commissary to the Commissary General the next day. This the Commissary General had authority to *393do in view of the emergency existing at the time for supplies. Therefore the vegetables upon arrival at Manila in good condition must be regarded as accepted by the Government, thereby excusing the claimant from the exercise of its option of otherwise disposing of them.

As to the price of the vegetables there is no controversy, as that was fixed in the contract; nor is there any controversy as to the quantity of vegetables so received in good condition for which the Government refused to pay. Therefore without further discussion of the case the court concludes that the claimant is entitled to recover the amount set forth in Finding XII, $26,431.92.