#### J. M. DOUGHERTY, FOR THE USE OF J. W. L. SLAVENS, v. THE UNITED STATES.

No. 12837

April 30, 1883.

The claimant contracted in writing with, the Commissioner of Indian Affairs to deliver a quantity of heef at $1.64 per hundred pounds.

Subsequently an exigency required a further supply, and a agent, by authority from the Commissioner of Indian Affairs, contracted orally therefor with the claimant at $3 a hundred pounds. Claimant delivered the beef, and the Commissioner of Indian Affairs approved his bill at that rate.

The Secretary of the Interior paid the bill in part, but, refusing to pay the balance, transmitted the case to this court under Rev. Stat., *§*1063.

The court finds as a fact that the amount charged was a fair and reasonable price.

Defendants contend that the appropriation for such supplies had been covered by other contracts, and that this contract was therefore void as in excess of appropriations, by Rev. Stat., §§ 3679,3732.

Held :

I.Where one contract on its face assumes to provide for *all the work*authorized by an appropriation, the contractor is bound to know the amount of the appropriation, and cannot recover bejwnd it.

II.Persons contracting with the Government for *partial service,*under general appropriations, are not bound to know the condition of the appropriation or the contract books of the Department.

III.The statute provision (Rev. Stat., 5 3744) requiring contracts to be in writing, signed, &c., does not prevent the recovery for supplies actually delivered aud used by the Government without such contract.

IY. An attempted assignment which the parties do not set up or claim under cannot, after full performance, be set up by the government to prevent a recovery for the service performed. Rev. Stat., § 3737, do not apply to such a case.

This case was transmitted to the court by the following order of the Secretary of the Interior:

Department op the Interior,

*Washington, January*28, 1882.

The Hon. Chief Justice and Judges op the

Court'op Claims op the United States:

I have the honor to transmit herewith, for trial and adjudication by your honorable court, the claim of J. M. Dougherty, with the vouchers, documents, proofs, and papers pertaining thereto, in accordance with the provisions of section 1063 of the Revised Statutes, the same being of the class and amount described in said section.

Yery respectfully,

S. J. Kirkwood, *Secretary.*

*497claimant filed his petition, setting forth his claim as required by the rules.

The following are the facts found by the court:

I. The claimant contracted with the Indian Department as follows, July 11,1874: ' ■

Articles of agreement made and entered into tliis eleventh day of July, A. D. 1874, l>y Eclw. P. Smith, Co'mm’r Ind. Affairs, for and in behalf of the United States, of the first part, and J. M. Dougherty, of Kansas City, Missouri, of the second part, witnesseth :

That the said party of the second part, for himself, his heirs, executors, and administrators, hereby covenants and agrees with the said party of the first part to furnish and deliver at the places herein designated, to such agent or agents of the United States as may be appointed to receive it, beef-cattle on the hoof, in the quantities and at the prices herein stated:

The party of the first part, no wever, reserves the right to require a greater or less quantity, not exceeding twenty-five per cent, in either case, than that specified in said schedule, at the price or prices therein stated, of which increase or decrease in the quantity required a reasonable notice shall he given to the party of the second part.

The party of the second part agrees to keep theheef-eattlein the vicinity of the places of delivery, to he delivered when required, and should he fail to collect cattle at such points fast enough, or should he fail to deliver them as required, the party of the first part shall have the right to purchase or cause to be purchased beef-cattle, as he may elect, at the expense of the party of the second part.

agreed between the parties hereto that if any of the cattle offered for acceptance shall fail to conform to the requirements of this contract; the same shall be rejected by the agent to whom the same.is offered, who shall have authority to require orthe said party of the second part the delivery, within five days afier such rejection, of proper cattle in the placo of those rejected; and in case the said party of the second part shall fail to deliver cattle of the kind required within the said period of five clays, then the said party of the first part shall have the right to purchase, or cause to be purchased, in open market, or otherwise, such cattle as may be required to supply the deficiency. And it is agreed and nncler-•stood by the party of the second part that J. M. Dougherty as principal *498and.-as sureties shall "be held accountable, under the bond which may he given for the faithful performance of this contract, for any excess in the cost of the cattle so purchased over and above what the saino articles would have cost at the price or prices designated in said schedule.

The party of the first part agrees to pay or cause to be paid to the said party of the second part, his heirs, executors, or administrators, for all the cattle received under this contract, at the rate or price designated in the above schedule, payment to be made on presentation at the Office of Indian Affairs of proper receipts of the respective agents, after the same shall have been properly approved.

It is agreed, however, that, before the United States shall be bound by this contract, a bond in the sum of forty (40) thousand dollars shall bo executed by the said party of the second part, with two or more good and sufficient sureties, said bond to be conditioned for the faithful performance of this contract in all its particulars by the said party of the second part.

It is hereby expressly understood that no member of Congress shall be admitted to any share or part of this contract, or any benefit to arise therefrom, which provision is hereby inserted in compliance with the third section of an act concerning public contracts, approved the 21st of April, 1808; and it is further understood that the provisions contained in the first section of said act are hereby made a part and parcel of this agreement.

In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.

Edward P. Smith, [d. s.]

*Commissioner of Xncl. Affairs.*

J. M. Dougherty, [l. s.]

An increase of 25 per cent, was ordered on this contract, making in all 6,125,000 pounds to be delivered thereunder.

Claimant bad delivered only 5,932,669 pounds on said contract up to March 4, 1875, the time oí the alleged contract of purchase of beef claimed in the petition, leaving still undelivered 192,331 pounds, the delivery of which had been called for by the Department on the 7th January, 1875.

II. After the contract for the delivery of beef for the Indian service at the Cheyenne and Arapahoe, Kiowa, and Comanche and Wichita agencies, in the Indian Territory, for the fiscal year ending June 30,1875, had been so filled or called for, thenecessity for additional supplies was urgent and imperative, and on the 16th of March, 1875, the Commissioner of Indian Affairs telegraphed authority to the proper officer to purchase a sufficient number of beef-cattle to last till the 1st of April following.

III. Before these instructions were received by the agents, in order to continue the issue of rations and prevent actual suffering among the Indians, said agents found it necessary to *499make temporary arrangements to meet the emergency of the-case.

To meet this exigency the claimant, J. M. Dougherty, offered to furnish beef-cattle from his herd at three dollars per one hundred pounds gross, and the agent, considering this proposal reasonable under the circumstances, accepted it, and under said proposal thus accepted 1,164,645 pounds of beef were delivered and expended by such agents in the subsistence of Indians.

This transaction was approved by Enoch Hoag, superintendent, and by the Commissioner of Indian Affairs.

was not writing and signed by the parties at the end thereof, but verbal, and without advertisement for proposals.

The claimant demanded payment for the beef delivered under the said verbal contract; the Indian Commissioners allowed him for the same at the rafes named in the contract of July 11,1874, and their action was approved by the Secretary of the Interior, and he was paid at those rates the sum of $19,100.18.

The claimant demanded a further payment under the terms of his verbal contract. On the 28th May, 1875, the account was caused by the Commissioner of Indian Affairs to be stated for the amount of $34,936.35, at three cents per pound for the 1,164,645 pounds, less $19,100.18, the amount previously paid, leaving a balance due of $15,839.17, and as thus stated the Commissioner transmitted the same with recommendation for approval to the Board of Indian Commissioners, on the 28th May, 1875.

YII. Of the sum stated for payment by the Commissioner of Indian Affairs in the last finding, to wit, $15,839.17, the sum of $8,734.84 was not paid, and this last-mentioned sum was recommended for payment March 21, 1881, by the Acting Commissioner of Indian Affairs, to the Secretary of the Interior.

YIII. This sum was not paid, and the Secretary of the Interior, on the 28th January, 1881, transmitted the claim therefor, with the vouchers, documents, proofs, and papers pertaining thereto, in accordance with the provisions of section 1063 of the Ttevised Statutes, to this court for adjudication.

IX. The said contract so made on or about March 4, 1875, *500for tbe purchase of the beef claimed in the petition claim thereunder was assigned to .T. W. L. Slavens.

X. On the 23d day of March, 1875, said J. W. L. contracted with the Indian Department as follows:

Articles of agreement, made and entered into tliis twenty-third day of March, A. D. eighteen hundred and seventy-five, by Edward P. Smith, Commissioner of Indian Affairs, for and in behalf *of*the United States, of *tlie first part, and J. W. L. Slavens, of Kansas City, Missouri, of the second part, witnesseth:

That the said party of and administrators, hereby covenants and agrees with the said party of the first part to furnish and deliver at the places herein designated, to such agent ox agents of the United States as may be appointed to receive it, beof cattle on the hoof in the quantities and at the prices herein stated:

The party of the first part, however, reserves the right to require a greater or less quantity, not exceeding twenty-five per cent, in either ease, than that specified in said schedule, at the prices therein named, of which increase or decrease in the quantity required a reasonable notice shall be given to the party of the second part.

The party of the second part agrees to keep the of the places of delivery, to be delivered when required, and should ho fail to collect cattle at such points fast enough, or should he fail to deliver them as required, the party of the first part shall have the right to purchase or cause to be purchased beef-cattle as he may elect, at the expense of the party of the second part.

It is also further agreed between the parties any cattle offered tor acceptance shall fail to conform to the requirements of this contract the same shall be rejected by the agent to whom the same is offered, who shall have authority to require of the said party of the second part the delivery, within five days after such rejection, of proper cattle in the place of those rejected, and in ease the said party of the second part shall fail to deliver cattle of the kind required within the said period of five days, then the said party of the first part shall have the right to purchase, or cause to be purchased, in open market or otherwise, such cattle as may he required to supply the deficiency.

And it is agreed and understood by the party L. Slavens, as principal, and J. M. Dougherty and L. C. Slavens, as sureties, shall be held accountable under the bond which may be given for the faith*501ful performance of this contract for any excess in the cost of the cattle so purchased over and above what the same would have cost at the prices desiguated in said schedule. ' .

The party of the first part agrees to pay or cause to he paid to the party of the second part, his heirs, executors, or administrators, for all the cattle received under this contract at the rate or'prices designated in the above schedule; payment to be made on presentation, at the office of Indian Affairs, of proper receipts of the respective agents, after the same shall have been properly approved.

It is agreed, however, that before the United States shall be bound by this contract, a bond, in the sum of twenty-five thousand dollars, shall be executed by the said party of the second part with two or more good and sufficient sureties; said bond to be conditioned for the faithful performance of this contract in all its particulars by’the said party of the second part.

It is hereby expressly understood that no member of Congress shall be admitted to any share or part of this contract or any benefit to arise therefrom, which provision is hereby inserted in compliance with the third section of an act concerning public contracts, approved the 21st of April, 1808; and it is further understood that the provisions contained in the first section of the said act are hereby made a part and parcel of this agreement.

In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written.

Edw’d P. Smith, [seal.]

*Commissioner of Ini. Aff’rs.*

J. W. L.’SlaveNS. [seal.]

XI.- Three cents per pound gross for beef in the Indian Territory in the months of February and. March, 1875, the time this beef was furnished, was a fain and reasonable price.

*Mr. Savvey Scalding*for the claimant:

To meet a public exigency requiring the issue of rations to prevent actual suffering among Indians, United States Indian Agents J. M. Haworth and Johp D. Miles, for the Kiowa and Comanche and Cheyenne and Arapahoe agencies, Indian Territory, with the approval of Superintendent Enoch Hoag and E. P. Smith, Commissioner of Indian Affairs, purchased in open market of J. M. Dougherty, in February and March, 1875, 1,164,645 pounds gross beef-eattle, at three cents per pound, amounting to $34,939.35.

Upon this account two sums, viz., $19,100.18 and $7,104.33, aggregating $26,204.51, have been paid, leaving unpaid of the purchase money $8,734.84.

The payment of the whole of this purchase money has been twice recommended by the Commissioner and Acting Commis*502sioner of Indian Affairs, but the Board of Indian Commissioners having objected, the money has not yet been paid.

There can be no valid defense made to the payment of this account, and judgment for the amount claimed, to wit, $8,734.84, is confidently asked of this court,

*Mr. A. J). Robinson*(with whom was *Mr. Thomas*Simons, Assistant Attorney-General) for the defendants:

1. The Indian agents had no authority at the time of their contract or purchase to make the same.

2. The contract and purchase were void, there being no appropriation adequate to its fulfillment. (Rev. Stat., § 3732.)

3. The contract and purchase were void because not in writing and signed by the parties at the end thereof.

4. The claimant cannot recover, because the contract and claim were assigned.

5. The evidence shows clearly that claimant Dougherty had failed to deliver 192,332 pounds under his contract of July 11, 1874, and therefore, as clearly, that amount of beef, at $1.64 per 300 pounds (the contract price), must be deducted from any recovery.

6. The only view in which claimant can possibly recover, if at all, is under a *quantum meruit*for the beef actually delivered, and there is nothing to show value but the contracts made.

OPINION.

Davis, J.,

delivered the opinion of the court:

The claimants contracted, in July, 1874, in writing, with the Commissioner of Indian Affairs for the delivery of a large quantity of beef at $1.64 per 100 pounds.

In the following March, after the greater part of the beef required by said contract had been delivered, and the portiou then undelivered had been called for, an urgent exigency arose for a further supply. By authority, given by telegraph, from the Commissioner of Indian Affairs, the local agent contracted verbally with the claimant for the delivery of an additional amount of 1,164,645 pounds at $3 per hundred pounds.

The claimant complied with this new contract. This bill was first made out and allowed by the Indian Commissioners *503at tlie rate named in tlie contract'of July, and the claimant was paid $19,100.18.

He then made a demand for the sum still remaining due under the verbal contract. Th,e Indian Commissioners allowed him this sum in full, viz, $15,839.17, and the court finds as a fact that the amount charged was a fair and reasonable price at that time.

The Secretary of the Interior, however, only allowed a portion of the sum so allowed by the Commissioners, and transmitted the claim for the remainder, amounting to $8,734.84, to this court for judicial examination.

On these facts we should have no doubt of the claimant’s right to recover but for the elaborate defense interposed by the Government.

It is first contended that the Indian agent had no authority to make the purchase. This is met by finding II, that the authority was derived from the Commissioner of Indian Affairs by telegraph.

Next it is said that the contract was void because the annual appropriation had, at the time of the purchase, been covered by other contracts. We held in Shipman’s Case, this term *(ante,*138), that when one' contract on its face assumes tob provide for the execution of all the work authorized by an ap-/ propriatiou, the contractor is bound to know the amount of\ the appropriation, and cannot recover’beyond it; but we have) never held that persons contracting with the Government fori partial service under general appropriations are bound to know/; the condition of the appropriation account at the Treasury or i on the contract book of the Department. To do so might block the wheels of the Government. The statutory restraints in this respect apply to the official, but they do not affect the rights in this court of the citizen honestly contracting with the Government. (Bev. Stat., §§ 3679, 3732.)

Next it is said that the contract is void, because not in writing and signed by the parties at the .end thereof. (Bev. Stat., § 3744.) This objection does not apply when the contract has \ been executed, and the contractor sues for the value of the *\*goods furnished. *(Clark’s Case,*95 U. S. R., 539.)

Next it is said that the contract is void because it was assigned to one Slavens. (Bev. Stat., § 3737.) This might be a good defense if Slavens were suing; but the court is uot will*504ing to hold that a contract is so vitiated by an attempted assignment that the parties cannot revoke the assignment and recover in the name of the contractor on the original contract after full performance. That would be stretching the provisions of the statute far beyond anything that the Supreme Court Court has yet shown a willingness to sanction.

These and the other objections made by the Government are overruled, and the judgment of the court is that claimant recover of the defendants the sum of $8,734.84.