#### AUGUST C. BRANT v. THE UNITED STATES.

[No. 28299.

Decided May 29, 1911.]

*On the Proofs.*

The claimant has two contracts for the delivery of brush on the bank: of the Mississippi, one in Wisconsin and one in Minnesota* He fully performs under the Wisconsin contract, but is interrupted by serious illness from delivering the full amount required by the Minnesota contract. Through a mistake of engineer officer in charge he is allowed to deliver some brush below Lake Pepin, while the contract requires the delivery to be above the lake. For this he is paid in full. He is then called upon to deliver the brush required above the *410lake; lie fails to do so. The brusli required is then purchased by the engineer and the additional cost is deducted from the money- due the contractor upon the Wisconsin contract. • 1

1.Where an officer in immediate charge misconstrued the instructions of his superior, and contrary to the express terms of the contract notified the contractor to deliver brush below Lake Pepin instead of above as the contract required, his error did not relieve the contractor from the obligations of the contract; and the responsible officer had the right to declare the contract forfeited for nonperformance and pay the contractor for the brush delivered below' the lake without reference to the contract.

II.Where the contractor knew that the engineer in immediate charge was not carrying out the instructions of his superior, and where the officers in charge did nothing to mislead the contractor as to his obligations under the contract, the equity of the case does not rest with him and the principle of estoppel can not be applied to it.

III.Where the Revised Statutes (§ 3744) require a contract to be in writing, and where the contract itself requires that any change or modification must be with the approval of the Secretary of War, the officers charged with its execution can not vary its terms and conditions, and the contractor can not thereby be relieved from his obligations thereunder.

*The Reporters'*statement of the case:

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

I. The claimant, August C. Brant, under date of April 29, 1899, entered into two contracts with the United States, both of which are set forth in and made a part of the petition. The contract in suit obligated the claimant to furnish 15,000 cubic yards of brush and deliver the same between St. Paul, Minn., and the head of Lake Pepin within 90 days after notice so to do by the United States Engineer officer in charge. The other contract called for the delivery of 28,000 cubic yards of brush upon similar work being done in Wisconsin. The claimant executed the Wisconsin contract according to its terms. He failed to perform the Minnesota contract, and the damages accruing to the United States by such failure were deducted by the United States from the consideration due under the Wisconsin contract, the amount being $863.13.

*411II. On May 27, 1899, the claimant notified Capt. C. McD. Townsend, of the Engineer Corps of the Army, that he had been taken suddenly ill with inflammatory rheumatism and that he would be unable to perform his contract to furnish brush between St. Paul and head of Lake Pepin and asked that some other arrangements be made for its execution. On the same date he notified Capt. J. D. Du Shane, the officer in charge of the work, to the same effect. On May 29, 1899, Capt. C. McD. Townsend notified Capt. Du Shane of the claimant’s failure to perform the contract and authorized him to purchase 15,000 cubic yards of brush in open market to supply the deficiency. On the same date he notified the claimant that because of his inability to perform the contract he would have to purchase the brush in the open market and refer the matter of his failure to the Department of Justice at Washington for such action as they might think proper against claimant’s bondsmen.

III. On June 3, 1899, claimant appealed to Capt. Townsend, asking that inasmuch as his failure to execute the Minnesota contract was due to illness that he might be allowed to make some arrangements to furnish brush later on or to furnish it to Capt. W. A. Thompson, in charge of the Wisconsin work, and thus avoid the forfeiture of his bond and his pasting as a failing contractor. On June 16, 1899, Capt. Townsend, in response to claimant’s letter of June 3, 1899, notified claimant that he must decline to' make any arrangements for accepting brush other than the contract provided ■or at any other place than therein specified, and that as the matter then stood he would be compelled to post the claimant as a failing contractor and authorize proceedings agaiust his bondsmen. On June 26, 1899, claimant asked Capt. Townsend for permission to pay the amount of damages occasioned by his failure to execute the Minnesota contract and not inform his bondsmen of the matter. On June 29, 1899, Capt Townsend notified the claimant that in compliance with his request he would deduct the extra cost of such brush as was to have been delivered on the Minnesota work from the amount due claimant under the Wisconsin contract.

IY. On July 10, 1899, the claimant had a personal interview with Capt. Townsend at Bock Island, Ill., in which the *412captain said lie would allow the claimant to make an effort to furnish the brush under the Minnesota contract, 'and if he could not furnish all of this brush he would recommend that no penalty should be enforced against him and that he should be retained on the list of contractors, but claimant was notified and fully understood that he was to- make an effort to fully execute the Minnesota contract according- to its terms and was not to be relieved therefrom in any particular, and on July 11, 1899, Capt. Townsend notified Capt. Du Shane, who was in charge of the Minnesota work, of his interview with claimant in Bock Island, Ill., and directed him to receive any brush he might deliver under said contract notwithstanding they had made prior proposals with other people. On July 11, 1899, the claimant notified Capt. Du Shane that Capt. Townsend would write him in reference to the Minnesota contract, and at that .time asked Capt. Du Shane if he could not purchase 800' or 1,000 yards of brush from outside parties and charge the same to him at 20 cents per cubic yard, which was 6 cents more than the contract price. On July 12, 1899, Capt. Du Shane notified the claimant that he could not comply with his request, but said to him that he had been instructed by Capt. Townsend to receive any brush which claimant might deliver, which he understood to mean at any time within the limits of his contract of extension thereof, and further said to him that he would be prepared to receive brush under said contract either above Lake Pepin now or below Lake Pepin when they got to work down that way. Capt. Du Shane misconstrued the instructions delivered to him by Capt. Townsend, and the claimant, because of his personal ■ interview with Capt. Townsend, knew this fact.

Y. Subsequent to the receipt of Du Shane’s letter of July 12, 1899, claimant did deliver below Lake Pepin 800 cubic yards of brush, which was received by Capt. Du Shane and for which claimant was paid. On August 7, 1899, Capt. Townsend notified the claimant in writing that inasmuch as he had failed to furnish any brush above Lake Pepin on Ms Minnesota contract, and as his action had been contrary to his promises to him in their personal interview at Bock *413Island, Ill., that he would have to refer the matter of his failure to the Chief of Engineers, United States Army, and that he would, however, give the claimant an opportunity to explain his actions. On August 18, 1899, the claimant, in answer to the letter of August 7, 1899, notified Capt. Townr send that he was ready to furnish brush to Capt. Du Shane below Lake Pepin (which was contrary to the terms of his contract) at 14 cents per cubic yard, saying that he had furnished some brush in this way and it had been accepted by Capt, Du Shane before the expiration of his contract. Upon the receipt of this letter Capt. Townsend notified the claimant that the brush furnished Capt. Du Shane below Lake Pepin was contrary to the terms of his contract and that he would recommend to the Chief of Engineers that he be declared a failing contractor. On September 1, 1899, claimant wrote Capt. Townsend that he had delivered the brush below Lake Pepin according to the permission granted in the letter of Capt. Du Shane of July 12, 1899, which he regarded as-reliable authority, and asked that no deduction be made from the sums due him.

YI. Claimant offered to furnish brush below Lake Pepin, which Capt. Du Shane, acting under orders from Capt. Townsend, refused to receive, and subsequently purchased 15,000 cubic yards of brush in the open market, paying 20 cents a cubic yard therefor except 805.5 cubic yards previously furnished by the claimant, and deducted the difference of 6 cents a cubic yard from the amount due claimant under his Wisconsin contract. Claimant did not offer to deliver any brush under his contract above Lake Pepin subsequent to August 7, 1899.

*Mr. George A. King*for the claimant. *King & King*were on the brief.

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

Booth, J.,

delivered the opinion of the court:

This is a motion for a new trial. The claimant entered into two written agreements with Capt. C. McD. Townsend of the Engineer Corps of the Army to furnish certain quan*414tities of brush. The agreements were both dated April 29, 1899, and called for the delivery of brush in Wisconsin and Minnesota. The Wisconsin agreement was fully executed. The Minnesota agreement called for the delivery of brush between St. Paul, Minn., and head of Lake Pepin. Subsequent to the execution of the Minnesota agreement claimant became ill and unable to perform the same; he notified Capt. Townsend to this effect, and, as the findings show, deplored the situation but accepted the results. On July 10, 1899, claimant having recovered his health, and realizing the consequence incident to the forfeiture of his contract, personally appealed to Capt. Townsend to be relieved as far as possible from a situation due in no part to willful neglect or other circumstances over which he had control. Capt. Townsend acceded in part to claimant’s wishes, and, desiring to extend all the relief possible in the premises, notified the officer in charge of the work in the Minnesota district to receive such brush as he might deliver under his contract. Capt. Du Shane, the officer in charge of the Minnesota work, misconstrued the instructions of his superior, Capt. Townsend, and, contrary to the express terms of claimant’s contract, notified claimant to deliver brush, which would be received either above Lake Pepin now or below Lake Pepin when the work progressed that far. Claimant delivered some brush below Lake Pepin, which was received and paid for; but did not deliver or offer to deliver any above Lake Pepin, as his contract provided, until after notice of its forfeiture. The claimant was not in ignorance of the meaning of his contract nor deceived by the delivery and acceptance of brush below Lake Pepin. In his interview with Capt. Townsend (as he testifies and as the findings show) he was generously allowed to proceed with the execution of his Minnesota contract, notwithstanding prior proposal for brush to supply the amount he had contracted to deliver. Twelve days after the notice of his failure to keep his promises of July 10, 1899, he contented himself with a notice of willingness to proceed with the delivery of brush below Lake Pepin at a price 6 cents less than it had been possible for the Government to secure its delivery above Lake Pepin as his contract provided, and it was not until September 1,1899, that he complained of being *415misled by Capt-. Du Shane’s misconstruction of Capt. Townsend’s instructions.

The equity of the case does not rest with the claimant; he was in no Avise misled or mistreated. The case of *Jones*v. *United States*(96 U. S., 24) is somewhat similar to the present controversy. In that case the court said: “ Viewed in that light, it is clear that the United States did not do anything to warrant the contractor in changing his position, and, if not, then it is settled law that the principle of estoppel does not apply.” In the Jones case, as in this, the contractor was overcome by accidents over which he had no control — - in the Jones case by fire destroying the mills engaged in the manufacture of the cloth he contracted to deliver, and in this case by illness. The officers in charge of the work under both contracts evinced a most commendable disposition to grant indulgences to the very limit of their authority under the contract, but they could not and did not go further. The findings show that Capt. Townsend was willing to accept brush under the Minnesota contract as long as it was possible to do so, and then assured the contractor that he would make favorable *recommendations*in his behalf. The engineer officer recognized the limits of his authority under the law and did not exceed them.

The contract in this case is governed by section 3144,. Revised Statutes, which expressly requires written ágree-ments. The contract also required a written agreement and the approval of the Secretary of War to any change or modification of the same which would involve a departure from the “ specifications as to character and quantity, whether of labor or material, as would either increase or diminish the cost of the work.”

In *Monroe*v. *United States*(184 U. S., 524) the approval of a superior officer to a contract was held to be a condition precedent to its validity. In this case to depart from legal precedent would be equivalent to holding that an officer in, charge of Government work under a written contract as prescribed by statute might change and vary its terms and, conditions at his pleasure.

The motion for a new trial is overruled.