#### THOMAS M. BLAKE v. THE UNITED STATES.1,2

[No. 235-A.

Decided January 2, 1923.]

*On the Proofs.*

*Contract; estimated quantity; quantity accepted.*— Where plaintiff enters into a contract witii tlie United States to furnish, to the Panama Canal an estimated quantity of forage, with a stipulation that the Government may order all or any part thereof, and the Government orders a part of such estimated quantity and accepts and pays for the same, it is under no obligation to accept and pay for any greater quantity.

*59*The Reporter’s*statement of the case:

*Mr. Jennings O. Wise*for the plaintiff. *Mimn, Anderson At Munn*were on the briefs.

*Mr. M. L.*Blaine, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff is a resident of the city of New York, in the State of New York, and has for some years been engaged in the occupation of hay and grain merchant in said city .and State.

II. Under date of June 25, Í920, the general purchasing officer of the Panama Canal issued a circular invitation for bids for furnishing the Panama Canal with hay and oats, and the plaintiff having submitted a bid in response to said invitation, which was duly accepted, a contract was entered into under date of August 27,1920, by and between plaintiff .and the United States, the latter acting through the said general purchasing officer, for the furnishing and delivery free alongside steamer New York City, N. Y., of hay and oats in accordance with the terms thereof. Copies of said circular invitation and contract are annexed to plaintiff’s petition as Exhibits A and B, respectively, and are by reference made a part of these findings of fact.

III. All oats and hay ordered and required by the Panama Canal were delivered by the plaintiff and paid for by the defendant.

IY. The defendant ordered and paid for and the plaintiff delivered under the said contract 700,000 pounds of oats during the life of the said contract.

*V.*The plaintiff prior to June 30, 1921, demanded of the defendant that it accept and pay for the quantities of hay and oats specified in Article I of the said contract, and the defendant refused to accept and pay for more than 700,000 pounds of oats.

YI. The market price on June 30, 1921, of clover hay, as specified in Article I of the said contract, was $1.11 per 100 pounds.

*60VII. The market price on June 80, 1921, of alfalfa hay,, as specified in Article I of the said conrtact, was $1.43 per 100 pounds.

VIII. The market price on June 30, 1921, of oats in burlap sacks, as specified in Article I of the said contract, was-$1.54¿ per 100 pounds.

IX. The Panama Canal did not purchase from any other-source during the year ending June 30, 1921, hay and oats, as specified in Article I of the said contract.

X. The Panama Canal did not require for its use during-the year ending June 30, 1921, more hay and oats than that which it ordered, accepted, and paid for.

The actual consumption and needs of the Panama Canal with respect to forage were less during the year ending June-30, 1921, than during the preceding year by reason of the-replacement to a great extent of animal transportation by motor transportation, and it was not foreseen that such decreases would be as large as was actually the case.

XI. It does not appear from the evidence that plaintiff' expended any sum of money in preparing to fulfill the contract, except such sum as was expended in the purchase of the-700,000 pounds of oats which were ordered and accepted and paid for by the Panama Canal; nor does it appear from the-evidence what it would have cost plaintiff to have furnished and delivered the hay and oats that were not ordered if the-same had been ordered by the Panama Canal.

1

 Appealed.

2

 Appeal dismissed Jan. 28, 1924.

MEMORANDUM:

BY THE COURT.

The defendant did not agree to order and pay for any definite quantity of hay or oats, and the bids made and contract executed contemplated that such quantities as were-ordered would be furnished by the plaintiff. The defendant paid for all that it ordered. See *Brawley case,*96 U. S. 168; *Smoot case,*237 U. S. 38, 42 ; 48 C. Cls. 427; *Bulkley case,*19 Wall. 37; *Nelson Co. case,*56 C. Cls. 448.

The petition is dismissed.