#### DEWEY BROTHERS COMPANY v. THE UNITED STATES

[No. B-47.

Decided May 24, 1926]

*On the Proofs*

*Contract; acceptance of one article for another.*— Wliere a contract calls for the delivery of timothy hay and delivery is made of Johnson grass, which is accepted under the contract, the contractor can recover for the grass so delivered by it the contract price of the hay.

*The Reporter's*statement of the case:

*Mr. Benton S. Oppenheimer*for the plaintiff. *Mr. Ewing H. Scott*was on the briefs.

*302
      *Mr. Ralph G.*Williamson, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a corporation duly organized under the laws of the State of Ohio, with its principal place of business at Blanchester, in said State, and during the year 1917 was engaged in the business of buying, selling, and shipping hay, grain, and feed.

II. On the 22d day of August, 1917, plaintiff entered into a contract in writing with the defendant to furnish and deliver at Camp Wheeler, Macon, Ga., 8,000,000 pounds of hay, at $1.22 per hundredweight; 1,600,000 pounds of straw, at *79y2*cents per hundredweight; and 1,200,000 pounds of bran, at $2.31 per hundredweight — all as per specifications, deliveries to be made as requested during September, October, and November, 1917, f. O. b. cars, Camp Wheeler, Macon, Ga.

A copy of the contract is attached to the petition and is made a part of this finding by reference. The contracting officer, acting for and representing the Government in the negotiation and execution of the contract was H. J. Gallaher, lieutenant colonel, Quartermaster Corps, United States Army.

III. The specifications for the hay which were to be furnished and delivered under the contract provided: *“*No. 1 timothy of best quality obtainable, free from weeds, sticks, dust, and other foreign matter; delivery to be made in bales or loose, as may be required.” This specification accompanied the contract when it was delivered to the plaintiff and was made a part of the contract.

IY. On October 10, 1917, the contracting officer notified the plaintiff in writing that the quantities of the various commodities to be furnished under the contract were increased as follows:

“ Hay from 8,000,000 pounds to 9,600,000 pounds; straw from 1,600,000 pounds to 1,920,000 pounds; bran from 1,200,000 to 1,440,000 pounds.”

Y. In accordance with the provisions of the contract the camp quartermaster issued calls for shipment of supplies as f ollows:

*303On August 22,1917, first call, for 1,000,000 pounds of hay, 200,000 pounds of bran, 600,000 pounds of straw, to be delivered during September, 1917.

On September 24, 1917, second call, for 1,000,000 pounds of hay, 100,000 pounds of bran, 600,000 pounds of straw, to be delivered during October, 1917.

On October 20, 1917, third call, for 3,000,000 pounds of hay, 450,000 pounds of bran, 50,000 pounds of straw; shipments to start at once and continue over 30-day period. To be shipped to quartermaster, auxiliary remount depot, Mogul, Ga., and billed to camp quartermaster, Camp Wheeler, Ga.

On October 27, 1917, fourth call, for 450,000 pounds of bran; shipments to start latter part of November and continue over 30-day period. To be shipped to quartermaster, auxiliary remount depot, Mogul, Ga., and billed to camp quartermaster, Camp Wheeler, Ga.

On October 27,1917, fifth call, for 240,000 pounds of bran; shipments to start at once and continue over 30-day period. To be shipped to camp quartermaster, Camp' Wheeler, Macon, Ga., billed to camp quartermaster, Camp Wheeler, Ga.

On November 10, 1917, sixth call, for 3,000,000 pounds of hay, 200,000 pounds of bran, for immediate shipment. To be shipped to quartermaster auxiliary remount depot at Mogul, Ga., direct, and bills of lading and invoices to be sent to Camp Wheeler, Ga., in the regular manner. State on each invoice that shipment was made to auxiliary remount depot.

On November 10, 1917, seventh call, for 200,000 pounds straw for immediate shipment to camp quartermaster, Camp Wheeler, Ga., bills of lading and invoices to be sent to him.

On November 10, 1917, eighth call, for 1,600,000 pounds of hay for immediate delivery. This call contained the following notation:

“ To be shipped to camp quartermaster, Camp Wheeler, Ga., and billed him. This is for 20% of contract for hay •and final shipment will complete contract. Total calls on •contract for 9,600,000 pounds hay.”

The auxiliary remount depot at Mogul, Ga., was situated nbout 3 miles from Camp Wheeler proper and was a part *304thereof and under the jurisdiction and authority of the camp quartermaster at Camp Wheeler.

The aggregate amount of supplies covered by the eight calls issued therefor was 9,600,000 pounds of hay, 1,450,000 pounds of straw, and 1,640,000 pounds of bran.

VI. On December 5,1917, the camp quartermaster sent the following telegram to plaintiff:

“ There is in the yards at this camp thirty cars of Johnson grass shipped here by you. All of which have been rejected under the contract as the specifications call for timothy hay. Wire immediately the price at which you will sell me all the Johnson grass which we may desire to accept.”

On December 6, 1917, plaintiff, in wire to the camp quartermaster relative to other matters, referred to the Johnson grass which had been rejected, as follows:

“Will take twenty-six-for Johnson grass refused. Wire answer.”

On same date plaintiff wired the camp quartermaster as follows:

“Please answer immediately regarding Johnson grass. We are ordering it reconsigned. If you want it, please notify railroad people.”

On same date camp quartermaster wired plaintiff as follows:

“Will not accept Johnson grass at your price, twenty-six dollars, but will take all that is passed by our inspector and Atlanta Depot will adjust price with you. Will notify you by telegram to-morrow, Dec. seventh, cars accepted.”

On December 7, 1917, camp quartermaster wired plaintiff as follows:

“In accordance with night letter December sixth accept twenty-four cars Johnson grass, price to be adjusted by Atlanta Depot.”

No agreement was ever arrived at between the plaintiff and the camp quartermaster or other officer or representative of the Government as to the price per ton for the 24 cars of Johnson grass which were taken and used by the Government.

*305VII. There was a shortage or scarcity of hay at Camp Wheeler in the fore part of December, 1917, due to the failure of plaintiff to supply shipments of that commodity in accordance with the calls made therefor in September, October, and November, 1917, and on account of such shortage and for the purpose of obtaining feed for the animals at the camp the camp quartermaster took possession of and used the 24 cars of Johnson grass referred to in paragraph 13, and also purchased other and more hay in the open market for such purpose.

VIII. The value of No. 1 Johnson grass delivered at Camp Wheeler December 5, 1917, was from $24 to $26 per ton. It is not satisfactorily shown what grade the 24 cars of Johnson grass were which were first rejected and, about December 6, 1917, accepted. About the time the contract was entered into No. 1 Johnson grass was worth $13 per ton at Macon, Ga. The price of hay in that vicinity advanced during the months of October, November, and December, 1917.

IX. Timothy hay is produced mostly in the Northern States, and but little, if any, timothy is grown in the State of Georgia, and none in the vicinity of Macon. Johnson grass is produced in parts of Mississippi, Alabama, and a small amount in Georgia; the greater part being produced in Mississippi and Alabama, the greater part, if not all, involved herein having been received from Alabama.

X. Some congestion existed at Camp Wheeler on October 8 and 9, 1917, and the camp quartermaster requested plaintiff to hold up shipments of hay for a few days. The congestion was temporary, continued for a few days only, was soon relieved and shipments resumed, and on October 20, 1917, call was issued by the camp quartermaster for the shipment of 3,000,000 pounds of hay, shipments to start at once and continue over 30-day period.

XI. The Government received under the contract 4,171,494 pounds of hay, and paid for the same in full at the contract price.

XII. On July 5, 1918, the camp quartermaster made a statement of final settlement to be made with the plaintiff, which was forwarded to plaintiff and was as follows:

*306Office Camp Quartermaster,

*Gamp*"Wheeler, *Ga.*

Cost of 996,381 pounds of hay in open market against Dewey Bros, contract_$17,436.67

Cost of 996,381 pounds of hay if same had been delivered by Dewey Bros_ 12,155.85

Loss to Government_$5,280.82

Cost of 443.75 tons Johnson grass paid for at timothy price of $1.22 per hundred_ 10,827. 50

Cost of 443.75 tons Johnson grass at Johnson-grass price of $13 per ton_ 5,768. 75

Loss to *Government_•-*5,058. 75

Total_ 10,339. 57

Amount of vouchers held up covering shipments of hay, bran, and straw properly delivered _ 27, 831. 72

Less loss to Government_ 10,339. 57

Amount of final voucher_ 17, 492.15

On July 8, 1918, voucher for $11,813.44 was issued to plaintiff, and on October 2,1918, a final voucher for $5,678.71 was issued to plaintiff, these two amounts being equal to $17,492.15, the amount found to be due plaintiff by the camp quartermaster. These vouchers were accepted by the plaintiff with the understanding that such acceptance was not to deprive the plaintiff of its right to take such steps as it might be advised were necessary for the purpose of establishing its full claim against the Government, and the Quartermaster General of the Army indorsed upon the papers as follows:

“3. Acceptance of these payments will not deprive the Dewey Brothers of the right to take any further action they may deem expedient.

“ By order of the Acting Quartermaster General.”

If the plaintiff is credited by the contract price for 443.75 tons of Johnson grass it would be the amount of $10,827.50 less $13 per ton paid by the Government, leaving $5,058.75 due the plaintiff.

The court decided that plaintiff was entitled to recover.

Hat, Judge,

delivered the opinion of the court:

The plaintiff had a contract with the United States to deliver at Camp Wheeler certain amounts of hay, straw, and bran.

*307The plaintiff delivered 443.75 tons of Johnson grass which it claimed was such hay as was specified in the contract. This the defendant denied and refused to accept the same, but afterwards accepted the Johnson grass, but paid the plaintiff only $13 per ton therefor. This hay was delivered under the terms of the contract, and was at first rejected as not meeting specification requirements, but ;afterwards was accepted., It could only be accepted under the terms of the contract, and if so accepted the defendant must pay the contract price. We are therefore of opinion that the plaintiff is entitled to recover the contract price for the 443.75 tons of Johnson grass delivered by it under the contract and accepted by the United States. Judgment will be entered for the plaintiff in the sum of $5,058.75.

It is so ordered.

Graham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.