#### WILLIAM J. COCKE v. THE UNITED STATES

[No. C-354.

Decided April 19, 1926]

*On the Proofs*

*Contract; removal of garbage.*— Where the plaintiff agreed to remove from designated Army camps the garbage accumulated therein from day to day, and completed the required removals, he is not entitled to damages for failure of the defendant to deliver all of the garbage so accumulated, the quantity of the deficit not being ascertainable.

*109
      *The Reporter's*statement of the case:

*Mr. Philip E. Barnard*for the plaintiff. *Mr. Marion Butler*was on the brief.

*Mr. Percy M.*Oox, with whom was *Mr. Assistant Attorney General Herman J.*Gallow'ay, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, William J. Cocke, is a citizen of the United States, residing in the city of Asheville, State of North Carolina, and was at the times hereinafter stated engaged in business as a stock raiser.

II. During the war with Germany there were established by the War Department certain concentration camps, among which were Camp Greene, situate at or near Charlotte, N. C., and Camp Wadsworth, situate at or near Spartanburg, S. C. These camps received recruits daily, and the soldiers, when they had received sufficient military training, were dispatched overseas in increasing numbers up to the date of the signing of the armistice. After the armistice the troops at said camps were discharged as rapidly as possible, so that by the time these camps were abandoned by the department, early in the year 1919, only a few men were retained there to care for the Government property remaining on the camp grounds.

III. On July 1,1918, plaintiff entered into a contract with the United States, acting through Maj. A. B. Kaempfor, Quartermaster Corps, U. S. Army, by which plaintiff agreed to purchase certain garbage from Camp Greene, N. C., and the required bond of $11,000 was given by plaintiff on the 16th day of July, 1918, for the faithful performance of the contract.

A copy of said contract is annexed to plaintiff’s petition as Exhibit A, and is made a part hereof by reference.

Under the terms of this contract plaintiff agreed to purchase and dispose of four classes of garbage, as follows:

*(a)*Bread;

(5) Cooked meats, raw fats and meats, grease;

*(o)*Bones;

*(d)*Other garbage.

*110Said contract also contained the following provision:

“ 4-a. It is hereby expressly stipulated and agreed that the Government may retain for its own use, at its option, the raw fats and meats, cooked meats, cooked grease, and bones. Otherwise the items *(c)*and *(d)*above specified will go to the purchaser at the price stipulated.”

This contract was to terminate on June 30, 1919.

IY. The garbage under this contract was collected and delivered at a transfer point outside the camp limits. The purchaser agreed, under paragraph 7 of the contract, to provide and keep in working order a plant and equipment of sufficient capacity and with a sufficient number of employees to receive and dispose of the maximum daily quantity of garbage delivered, “ whether the garbage is used for hog feed or reduction.”

The plaintiff built hogpens of sufficient dimensions to hold the number of hogs to consume the daily quantity of garbage, and supplied the equipment to receive the same at the transfer point. The number of hogs kept by plaintiff varied from time to time as they were bought and sold.

V. Under date of September 24, 1918, Capt. D. B. Darnell, conservation and reclamation officer, Camp Greene, reported to the War Department as follows:

“ During the month of July there were comparatively few troops in this camp, and what organizations there were, were in areas which were inaccessible to the garbage platform, and, on account of lack of transportation, were unable to deliver all of their garbage to the contractor. The undelivered garbage was incinerated in many cases. Also the garbage was hauled away by civilians, who came into camp early in the morning and late in the evening. This was easily accomplished by them on account of this camp being situated on two main roads leading out of Charlotte, N. C., which can not be closed to the public.”

Under date of November 25, 1918, the assistant salvage officer at Camp Greene reported to the zone supply officer at Atlanta, Ga., that there had been considerable trouble experienced by reason of certain unauthorized persons stealing garbage and bribing the mess sergeants to secure the same.

*111It does not appear by satisfactory evidence- what amount of garbage, or the value of the same, which was secured from Camp Greene by persons other than the plaintiff herein.

VI. The number of men stationed at Camp Greene fluctuated from day to day, week to week, and month to month. Units were sent overseas, men were discharged, and recruits were received there daily. The maximum capacity of the camp was not reached during the period of this contract, and on or about January 27, 1919, said camp was finally closed and the site abandoned. The average number of men at this camp from July 1, 1918, to January 27, 1919. when the camp was abandoned, was 11,000.

VII. On September 28, 1918, plaintiff entered into a contract with the United States, acting through Lieut. Denver N. Davison, Quartermaster Corps, U. S. Army, by which the plaintiff agreed to purchase certain garbage from Camp Wadsworth, S. C., contract to take effect October 1, 1918. Plaintiff was required to furnish a bond in the sum of $11,000, but failed to forward the same to the War Department until February 15, 1919.

A copy of said contract is annexed to plaintiff’s petition as Exhibit B, and is made a part hereof by reference.

Under the terms of this contract plaintiff agreed to purchase and dispose of the following classes of garbage:

*{a)*Bread.

*(d)*Other garbage.

Said contract was to terminate on June 30, 1919.

VIII. Under date of January 30, 1919, plaintiff wrote the Quartermaster General as follows:

“As far as practical results are concerned, from my point of view the camp might as well be abandoned as to remain in its present status. My bid at Camp Wadsworth was, of course, predicated upon receiving daily a sufficient amount of garbage to feed such a number of hogs as would justify the necessary overhead charges, which are practically the same whether 300 or 3,000 are kept on hand. I am frank to say that the garbage deliveries for the past few weeks have not justified paying for its removal from the platform, platform man and other charges incidental to the handling of the garbage, and I am writing to ask if under the circum*112stances, with the camp practically abandoned, the Government expects the bid price to be paid for the garbage.”

Under date of February S, 1919, the director of purchase and storage, War Department, replied to the above letter and stated that said office “ is not in a position to consider any reduction in the price paid by you for garbage, and is of the opinion that there is nothing unfair or unjust about the present price you are paying, inasmuch as you only pay for what you get.”

IX. The location of the transfer platform to which the garbage was to be delivered by the Government was not decided upon until November 23, 1918.

Plaintiff built hogpens of sufficient dimensions to hold the number of hogs to consume the daily quantity of garbage, and supplied the equipment to receive the same at the transfer point. The number of hogs kept by plaintiff varied from time to time as they were bought and sold.

Camp Wadsworth was formally closed on March 25, 1919.

X. Section 15 of the contract for each camp provided as follows:

“ Nothing herein contained shall be deemed to impose any obligation on the part of the United States to guarantee the delivery of any specific quantity of garbage.”

XI. The claim herein was presented to the Board of Contract Adjustment of the War Department, and relief was denied in a written decision dated November 5, 1920, on the ground that the same was not within the purview of the act of March 2, 1919, the contracts in question having been executed in compliance with section 3744, Revised Statutes, and further that there had been no breach of either contract by the United States. No appeal was taken from said decision to the Secretary of War.

The court decided that plaintiff was not entitled to recover.

Booth, *Judge,*

delivered the opinion of the court:

The plaintiff relies for a judgment in this case upon a breach of contract by the Government. The facts, plain and indisputable, disclose a situation where the plaintiff, *113though badly treated, is obviously without recourse under the law.

The plaintiff purchased under two contracts certain garbage from Camp Greene, N. C., and Camp Wadsworth, S. C. The Camp Greene contract extended from July 1, 1918, to June 30, 1919, and the other from January 30, 1919, to March 25, 1919. The terms of both contracts were substantially alike, and each provided for cancellation. The garbage which the plaintiff was to receive was classified according to contents; and that which the plaintiff was to have, as well as what the Government had an option to retain, was specified. The complaint of the plaintiff centers exclusively around the fact that under the contracts he was to receive *all*the garbage of the specified classifications, to be delivered to him by the Government at certain transfer points fixed by the commanding officer of the camp, and this is precisely what the contract provided. In so far as a nonobservance of this covenant is involved the case is free from difficulty. It was not carried out. Large quantities of gar--bage which the plaintiff should have had were diverted, some of it stolen, and much of it sold to other parties. The plaintiff had established at approved points outside the camps extensive pigsties, purchased a number of hogs, and was fully equipped to fatten the same upon the garbage he expected to receive. As a result of his inability to get the full quantity of garbage from the camp the undertaking proved financially disastrous. Repeated complaints were made to the responsible officials, but all to no avail. Among other impediments which in a case of this nature the plaintiff can not remove, two stand out conspicuously. First, by section 15 of the contract the Government absolved itself from any liability under a guaranty as to the quantity of garbage the plaintiff might obtain, and secondly, the case is such that no accurate basis of loss is ascertainable. The plaintiff prefers an insistence which we are unable to follow. It involves conjecture and manifold uncertainties and is far too hypothetical to justify its adoption as a basis for a money judgment. When the contract is considered in the *114light of the circumstances and situation existing at the time of its execution it clearly imports a shifting condition of affairs. Men in large numbers were being trained for the war; no definite number would be in camp continuously, and hence the Government was careful not to guarantee a definite quantity of garbage. The plaintiff was aware of this situation and accepted the hazard. Again, the plaintiff continued to accept and pay for such quantities of garbage as were delivered to him. True, he complained, but throughout the contract he transported it away from the camps and fed it to his swine. Manifestly the Government was not interested in the method chosen by the plaintiff to dispose of the garbage so long as the method adopted was sanitary and not injurious to the public health. The plaintiff was under no obligations to continue the performance of his contracts and thus prolong and increase his loss. The Government sold and the plaintiff purchased the garbage. The plaintiff did not receive all the garbage he should have received. The quantity of the deficit is ascertainable only on a hypothetical basis; i. e., as to each soldier quartered in the camps so much garbage would ensue.

The proof adduced to sustain the theory is far too uncertain, too remote, depends upon the deductions of inferences conjectural in their nature and incapable of reduction to the degree of certainty required in order to award damages, the direct and proximate results of the injury complained of. So it is with relation to the other aspect of the case. We can not indulge a speculation as to what might have happened if the contract had been observed in all its provisions. The process of fattening hogs affords no safe criterion in this respect. The absence of any reliable basis upon which to predicate a judgment forces us to dismiss the petition. It is so ordered.

Ghaham, *Judge;*Hat, *Judge;*DowNev, *Judge;*and Campbell, *Ohief Justice,*concur.