#### THOMAS C. POWER v. THE UNITED STATES.

No. 12921

March 19, 1883.

The claimant made a written contract with the Commissioner of Indian. Affairs, signed as required by law, to receive and transport all such, goods and supplies of the Department as should be offered or turned over to him for transportation by the. Commissioner, during the fiscal year ending June 30, 1878. It was made subject to approval by the Commissioner, the Board of Indian Commissioners, and the See>-retarv of the Interior.

In accordance with previous notice from the Commissioner to do so, the-claimant appeared at the place designated, prepared to transport 66,000 pounds'of .supplies. Only 11,235 pounds were delivered to him, and he was refused any more.

He presented his account for the transportation of the whole 66,000. It. was allowed only for the quantity actually transported, but the Commissioner expressed the opinion that the contractor was in equity entitled to some allowance by way of damage or demurrage, and in this, opinion the Secretary of the Interior concurred.

After the work was done, and not before, the contract was approved by the officer whose approval was required thereby, and it does not appear when the contract was filed in the Interior Department.

The claimant sues for the profits which he would have made had the whole-66,000 pounds of supplies been delivered to him, and the court finds, the amount thereof.

Held :

I.The officers of the Executive Departments have no authority to settle- and pay claims for unliquidated damages. They can only pass upon accounts which can be adjusted and liquidated by an arithmetical calculation. The reason why it is so stated and authorities given.

II.There is no statute requiring an Indian transportation supply contract, to be approved by the Board or the Secretary. If such approval be required by regulation or otherwise, it will relate back, whenever-given. to the date of the contract.

III. Where a contract is made in writing and signed by the parties with their names at the end thereof, as required by Rev. Stat., 5 3744, it is not necessary for the contractor claiming thereunder to show that it has been filed in the returns office in the Interior Department by the officer signing the same.

IV. Section 2107 of the Revised Statutes, which forbids the payment of" more than 50 per cent, of the amount due for transportation of Indian supplies until, the accounts, &c., have been submitted to the-Board of Indian Commissioners, does not apply tó a claim for damages, which that Board has no jurisdiction to settle.

V.Where under a contract to transport supplies, the contractor is notified that a given quantity will be furnished to him at a stated time- and place, and he puts himself in readiness to transport the same and; incurs all the necessary expenses therefor, he is entitled to damages iff a less quantity only is supplied. The rule of damages stated.

*264This is an action for damages for non-performance in full by the defendants’ officer of a contract alleged to have been made with the Commissioner of Indian'Affairs.

All the facts are set out in full in the following findings by the court, and are succinctly stated in the opinion thereon.

. I. The Commissioner of Indian Affairs, on the respective dates thereof, addressed the following communications to the claimant: •

Department of the Interior,

Office oe Indian Affairs,

*Washington, October*26, 1877.

T. C. Power,

Care Samuel Shethar, 548 *Broadway, New York:*

Your proposal to furnish, dried, buffalo meat at Port Berthold, delivered at nine cents per pound, is accepted for sixteen thousand pounds; also your proposal to deliver double X Montana flour for six dollars per sack of ninety-eight pounds is accepted for twenty-four thousand pounds.

By law we cannot contract for more than two thousand dollars for transportation without advertising for proposals; therefore we will ask you to deliver only sixty-six thousand pounds of merchandise now at Port Peck. Do not remove any of the flour or corn to Fort Belknap.

E. A. Hayt, *Commissioner.*

Thos. C. Power,

548 *Broadway, New York:*

Department op the Interior,

Oppioe op Indian Affairs,

*Washington, October*26,. 1877.

Sir: I enclose herewith for yon to execute and return to this office, at the earliest date practicable, a contract, with bond, for transporting 66,000 pounds, more or less, of Indian goods and supplies from New Fort Peck Agency, near Poplar River, to Port Belknap, Montana.

There must be affixed to each of the signatures to these instruments, in order to meet the requirements of law (section 6, IT. S. Revised Statutes), an impression or seal of some adhesive substance.

The number of pounds embodied in the contract has been reduced from 100,000, the quantity originally contemplated to be inserted, to 66,000, for the reason that the' law will "not admit of an expenditure of this character that exceeds $2,000.00.

Very respectfully,

E. A. Hatt, *Commissioner.*

II. The contract referred to in the said letter dated October 26,1877, set out in finding I, was signed by the claimant about the time of its receipt by him, and by the Commissioner of Indian Affairs about the same time. The following extracts con*265tain the portions thereof which are material to the issues involved in this suit:

This agreement, made and entered into this 25th day of October, eighteen hundred and s'eveuty-seven, by and between E. A. Hayt, Commissioner of Indian Affairs, and his successors in office, for and on behalf of the United States, of the first part, and Thomas C. Power, No 548 Broadway, New York, ■of the'second part, for himself, his heirs, executors, administrators, and assigns, witnesseth:

That the said parties have covenanted and agreed, and by these presents ■do covenant and agree, to and with each other, as follows, viz:

Article I. That the said party of the second part shall receive, during the fiscal year ending June 30, 1878, all-such goods and supplies of the Indian Department as may be offered or turned over to him for transportation by the party of the first part or his agents, and shall transport the same with dispatch, agreeably to the instructions of the'said party of the first part, or his agents, and the stipulations of this contract, and shall deliver them in like good order and condition to the officers or agents'of the Indian Department designated to receive them, at the several points named and for the rates given in the tabular statement hereto annexed, which tabular statement is hereby made part hereof. 15 * * ‘

Article IX. That payment shall be made'for all transportation performed under this contract upon presentation to the'Offlce of Indian Affairs of the bills of lading, named in Article II of this agreement, properly receipted in •duplicate, and at the rates specified in the tabular statement hereto annexed, which rates for the entire routes from the places named at the head of said tabular statement to those on the side thereof are expressed, in cents per one hundred pounds, by the figures placed at-the intersections of the respective columns.

*«*#**#

Article XIV. That this agreement is made subject to the approval of the Commissioner of Indian Affairs, the Board of Indian Commissioners, and the Secretary of the Interior.

In witness whereof, the undersigned have hereunto subscribed their names and affixed their seals the day and year first above written.

E. A. Hayt, [seal.]

*Commissioner of Indian Affairs for and on behalf of the United States.*

Thomas C. Power, [seal.]

*Tabular statement referred to in Articles I and IX of the foregoing agreement, and made a part thereof.*

From New Fort Peck Agency, near Poplar River, Montana—

To Fort Belknap, M. T., at $3.00 per 100 pounds for 66,000 pounds more or less.

III. The following approvals of said contract by the Commissioner of Indian Affairs, the Board of Indian Commissioners, and the Secretary of the Interior, respectively, were made at the time of their respective dates.

*266Department op the Interior,

Approved:

Office of Indian Affairs, *Washington, Feb’y 16th,*1878.

E. A. Hayt, . Commissioner. *

Board of Indian Commissioners,

Washington, *Feb.*18,1878.

The within contract is approved.

Wm. Sticeney,

B. Rush Roberts,

*Ex.*Com,

Department of the Interior,

*Washington, March*11, 1878.

The action of the executive committee is hereby sustained.

C. Schurz,

*Secretary.*

IY. The following telegram was sent by the Acting Commissioner of Indian Affairs to.the Indian Agent at Fort Peck at the time of its date:

Department of the Interior,

Office of Indian Affairs,

*Washington, October*27, 1877.

Agent Bird,

*Fort Fecit, Fort Buford, Dakota :*

Deliver to T. C. Power, for transportation to Port Belknap, thirteen thousand five hundred pounds bacon, four thousand fifty pounds beans, five thousand four hundred coffee, ten thousand eight hundred sugar, six thousand seven hundred fifty me, six hundred seventy-five tobacco, six hundred seventy-five soda, thirteen hundred fifty soap, and twenty-two thousand eight hundred flour; total weight to aggregate sixty-six thousand pounds.

C. W. Holcomb,

*Acting Commissioner.*

Y. On the 20th of January, 1878, the claimant, by his agent,, addressed the following letter to the Indian agent at Fort-Peck:

Poplar River, *January*20, 1878.

Maj. Wm. Bird, *XI. S. Indian Agent:*

Dear Sir : I beg leave to inform you that I have this day arrived, in accordance with contract of T. C. Power with U. S. Commissioner of Indian Affairs, to transport sixty-six thousand pounds Indian annuities from Poplar River and Wolf Point to Pt. Belknap.

I am, sir, yours respectfully,

Thomas Todd,

*Ag’t T. C. Power.*

*267VI. On tbe 21st day of January, 1878, tbe said agent of tbe claimant arrived at Fort Peck Agency with tbe necessary carts and wagons to transport 66,000 pounds of freight from that agency to Fort Belknap.

VII. On tbe said 21st day of January, 1878, tbe said Indian agent at Fort Peck delivered to tbe claimant’s said agent 11,235 pounds of bacon to be transported to Fort Belknap under said contract, and declined to give any other matter for such transportation, and addressed tbe following letter to tbe claimant:.

Port Peck Indian Agency,

*Poplar .River, M. X., Jan’y*21, 1878.

Messrs. T. C. Powee & Co.,

*Port ReVmap, M. X.:*

Gentlemen : In reply to your note of January 20, inst., asking for men-chandise for transportation to Port Belknap, under contract with the Commissioner of Indian Affairs, I have to say I have delivered to Mr. Thomas-Todd, your agent, eleven thousand two hundred and thirty-five pounds (11,235) of bacon, and do not deliver the flour named in the order of the Commissioner for the reason -that the Commissioner states specially not to-transport any flour or corn from this agency; and for the'other articles-named in the order of the Commissioner, I cannot deliver them to you for transportation for the reason that I do not have them in my possession at the agency at this date.

I am, very respectfully, your obedient servant,

W. Bird,

- *U. S. Indian Ag’l.*

On tbe same 21st day of January, tbe said Indian agent addressed tbe following letter to tbe Commissioner of Indian Aflairs:

Port Peck Indian Agency,

Poplar River, M. T.,

*January*21st, 1878.

Comm’r or Indian Affairs,

Washington, *D. C.:*

Sir : I have the honor to report that I have this day delivered to T. C„ Power, in accordance with your telegraphic order of Oct. 27, 1877, eleven thousand two hundred and thirty-five pounds of bacon. I would have-delivered to Messrs. Powers the twenty-two thousand pounds of flour called for in your order to me, hut that he had an order from the Hon. Com’rliot to take from the agency any flour or corn. In regard to the other articles called for for transportation — tobacco, coffee, soda — our supply is entirely exhausted; of sugar, beans, and soap so small a quantity is now left on hand I believe it best under the circumstances not to send any. Rice,, we received none last summer at all. In this connection permit me to say *268.that with all the supplies sent to this agency there is not enough to furnish -.regular rations to the Indians now holding ration tickets and those temporarily absent among the buffalo — sugar, at most four weeks; beans, six •weeks; flour, eleven weeks; bacon, eight weeks, leaving the time from the first of April until further supplies are received unprovided for. We have • our supply of beef cattle and some pemmican, which places us in a condi.tion to feel the loss of the bacon less than anything else.

I am, very respectfully, your obedient servant,

W. Bird,

*U. S. Indian Agent.*

YIII. The claimant transported the said 11,235 pounds of bacon to Fort Belknap. He claimed payment for the transportation of the whole 66,000 pounds, but was paid at the contract price only for transporting 11,235 pounds, as shown by '.the following voucher:

*U. S. MU of lading.*

Poplar River, *January*21, 1878.

Received from W. Bird, U. S. Indian agent at Poplar River, M. T., the •following articles and packages of Indian goods and supplies, as specified below, in apparent good order and condition, to be forwarded to Ft. Belk-nap, M. T., by T. C. Power, contractor for transporting Indian supplies, -&c., and there to be delivered in like good order and condition unto agent, for which I have signed bills of lading in duplicate; freight to be paid by the proper officer of the United States at the rate of contract, and to the order of-, on the presentation and surrender of both these bills of lading properly receipted by the party receiving the said supplies.

T. C. Power, *Contractor.*

By Tom Todd, *Agent.*

Marks. No. of packages. Contents and numbers on packages. Bacon (not sacked, and dirty) . Weight. its. 11, 235

(Across the face:) Original.

Fort Belknap, M. T., *February*4, 1878.

Received from T. C. Power the Indian supplies, &c., specified above, in good order and condition, weighing eleven thousand two hundred and •thirty-five (11,235) pounds, and for which I here sign duplicate bills of .lading.

Constant Williams,

*Capí., 7th Inf’t’y.*

*269*The United States to Thomas C. Tower, Dr.*

1878.

Feb’y 4. For transportation of Indian supplies from Poplar River to Fort Belknap Agency, Montana, as per contract dated Oct. 25th, 1877, 66,000 lbs., at $3.00 per 100 lbs.. $1,998 00> Claims 3288 & 4626.

Account stated in Indian Office.

J. A. Beckwith,

*Examiner.*

Board ok Indian Commissioners,

*Washington, M’ek*1, 1879.

Examined and approved for $337.05 for transportation of 11,235 lbs., at $S per 100 lbs.

Wm. Stickney,

E. M. Kingsley,

*Ex. Com..*

Department or the Interior, *Mar.*6, 1878.. The action of the executive committee is hereby sustained. '

A. Bell,

*Acting Secretary..*

IX. The following letter relating to the claim for compensation for the remainder was written by the Board of Indian Commissioners to the Secretary of the Interior, at the time of its date:

Board oe Indian Commissioners,

*Washington, D. C., March*25, 1879.

Sir : I have the honor to acknowledge receipt of letter from the Commissioner of Indian Affairs, bearing date the 11th inst., accompanying the-account of Thomas C. Power for transporting Indian supplies, under contract dated October 25,1877, from Fort Peck Agency to Fort Belknap, Montana, referred by the Interior Department to this Board “for consideration and appropriate action.”

The account is for transporting 66,000 lbs. of supplies, at $3.00 per 100' lbs., $1.998.

The reasons given and for which the contractor does not appear to be-responsible, the amount actually transported was but 11,235 lbs., which at the contract price would be $337.05, the amount allowed by the Board and subsequently sustained by the Interior Department.

The executive committee have re-examined the claim and are of the opinion that they cannot j ustly approve the payment for transporting good». *270which, in fact, were not transported at all, while they are of the opinion that the contractor is entitled in equity to some allowance by way of dam•age or demurrage.

The papers are herewith returned, with the suggestion that the contractor be requested to submit his claim for damages, with proper evidence to substantiate the. same, which will receive careful attention of this Board with a View of an equitable adjustment.

Y ery respectfully,

Wm. Stickney,

*Seo’y and Chairman of Ex. Com.*E. M. Kingsley.

The Hon. Secretary or the Interior.

X. The following letter from the Seeretary of the Interior to the Commissioner of Indian Affairs was written on the 2d of •June, 1879:

Department oe the Interior,

*Washington, June 2d,*1879.

The Commissioner of Indian Affairs:

Sir: I return account No. 567, of Thomas C. Power, for transportation, stated by you February 28, 1879. under contract of October 25, 1877, for ■$1,998.00, allowed by the Board of Indian Commissioners on the 1st of March for |337.05; which action of the Board was sustained by the Department •on the 6th of March last.

Your report of the 11th March was duly referred to the Board; and I now transmit their reply of 25th March, to the effect that the claim can ■only be allowed in its present form for the amount actually transported, but that if a duly substantiated account for damages be submitted it will receive careful consideration with a view to an equitable adjustment.

I approve the suggestion, with this modification, to wit: That in ease Mr. Power shall submit a statement of his expenses, fully proven, showing what portion of the same was incurred over and above what would have been necessary to transport the amount of goods actually received by him, ■such statement may be made the basis for your favorable report of the •case for the consideration of Congress, when supplemented by your official verification of the order under which the service was undertaken, for the full amount of 66,000 pounds, claimed to have been promised him when getting ready his teams for such service.

Yery respectfully,

C. Schurz,

*Secretary.*

*271XI. An original paper is on file in the Department of the Interior, of which the following is a copy:

Fort Belknap, M. T., *April 9th,*’78.

*T.*C. *Power in account with half-breeds for freighting from Poplar*Cr.

Name.

No. carts.

Amount.

* Services and. board as supercargo.

'Territory of Montana,

*County of Chotean, ss:*

Thomas O’Hanlon, being duly sworn, says that at the time mentioned in the foregoing statement he was, and now is, the agent of T. C. Power & Bro., at Fort Belknap, M. T., and that the foregoing is a true, full, and correct statement of the amounts paid to the persons (half-breeds) named by T. G. Power & Bro.; and that said payments were made by or through him as the agent of T. C. Power & Bro., as aforesaid, for going after Indian ■sustinence supplies to the New Fort Peck Agency at Poplar Creek, M. T., pursuant to an agreement between T. C. Power and the Commissioner of Indian Affairs.

Thos. O’Haneon.

Subscribed and sworn to before me this 12th day of April, A. D. 1878.

[seal.] Jno. J. Donnelly,

*County Cleric.*

'Territory of Montana,

*County of Choteau3 ss:*

Tom Todd, being duly sworn, says that at the time mentioned in the foregoing statement he was the agent of T. C. Power & *Bro.;*that he was in charge of the train and went with the half-breeds to New Fort Peck Agency, .and returned with them to Fort Belknap, when they were paid off by Mr. ’Thomas O’Hanlon, the agent of T. C. Power■& Bro., at Ffc. Belknap; that he *272assisted Mr. O’Hanlon to make said payments; and that the foregoing statement is true and correct of his own knowledge.

Tom Todd.

Subscribed and sworn to before me this 12th day of April, A. D. 1878. [seal.] - Jno. Donnelly,

*County Clerk.*

Terbitory ob -Montana,

*County of Chotean, ss:*

Henry P. Brooks, being duly sworn, says that at the time mentioned in> the foregoing statement he was residing in the half-breed camp, on Milk Itiver, in obedience to an order of the commanding officer of Fort Benton p that he knows of his own knowledge that Mr. O’Hanlon made arrangements-with the half-breeds to transport Indian supplies from Wolf Point to Fort Belknap; that he was present at Fort Belknap when Mr. O’Hanlon paid the half-breeds, and they seemed to be satisfied.

H. P. Brooks.

Subscribed and sworn to before me this 12th day of April, A. Í). 1878:

[seal. ] Jno. J. Donnelly.

*County Clerk.*

XII. It does not appear that the claimant was put to any extra expense or suffered any actual loss (except the loss of profits referred to in finding XIII) by reason of the failure of the defendants to furnish the remainder of the 66,000 pounds-of transportation.

XIII. The reasonable profit which the claimant might have gained on the transportation which the defendants failed to furnish was twenty-five per cent, on the contract price;. and it does-not appear that the defendants are entitled to any deduction therefrom by reason of the claimant’s release from care, trouble,, risk, responsibility, or otherwise. '

*Mr. Harvey Spalding*for the claimant:

The claimant contracted with E. A. Hayt, Commissioner of Indian Affairs, acting for and on behalf of the United States,, in October, 1877, to transport from Fort Peck Agency to Fort Belknap, Mont., 66,000 pounds of goods and supplies at the-price' of $3 per 100 pounds.

He sent his teams to.Fort Peck sufficient to carry the whole-amount, and only 11,235 pounds freight was delivered to him j, so he had to return without the freight he contracted to carry..

*273Having fully performed this contract on his part, he is entitled be paid in full the compensation agreed upon, to wit: .For transporting 66,000 pounds freight from Fort Peck to Fort

Belkmap, at 3 cents per pound.$1,998 00

'He lias received..■. 337 05

Balance due. 1,660 95

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

1. The contract herein went into force March 11,1878, when it was approved by the Board of Indian Commissioners and the Secretary of the Interior. This approval ratified nothing that had been done previous to said date. The approval by the Board for $337.05 of the claim for transportation was a disapproval of all else done.

2. Claimant can only recover for actual expenses incurred by him (if any) over and above what would have been necessary to transport the quantity of beef actually furnished to him for carriage. *(Buolcley’s Case,*7 C. Cls. E., 543, and 9 O. Cls. R., 81.)

3. Revised Statutes, § 2107, is a bar to claimant’s recovery here.

4. The court will not give claimant money he did not earn where there is a good and valid reason to the contrary.

5. The saving in care, trouble, and expense to claimant should be deducted in any event. *(Neal*v. *Murphy,*14 C. Cls. R, 280.)

OPINION.

Davis, J.,

delivered the opinion of the court:

The court has had great difficulty in reaching the facts in this small record; and had it not been that the Board of Indian Commissioners and the Secretary of the Interior, who were in a position to have knowledge of the transactions out of which the claim grew, were of opinion that there were equities in it, we should have felt disposed to dismiss the petition for want of proof of the claim.

In the latter part of October, 1877, the claimant and the Commissioner of Indian Affairs signed a contract in the usual form for the transportation of all such goods and supplies of ¡the Indian Department as might be offered or turned over to *274tbe claimant for transportation at the several points namecS: and for the rates given in a tabular statement which was made-part of the contract, and was in the following language:

> From Fort Peck New Agency, near Poplar River, Montana, to Fort Belk-nap, M. T., at $3.00 per 100 pounds for 66,000 pounds, more or less.

The fourteenth article of the contract provided—

> That this agreement is made subject to the approval of the Commissioner of Indian Affairs, the Board of Indian Commissioners, and the Secretary of the Interior.

These several approvals were given as follows: By the Commissioner (being the same who signed the contract) on the 16th February, 1878; by the Board of Indian Commissioners on the 18th of the same February; and by the Secretary of the Interior-on the 11th of the following March. In each case the approval was given subsequent to the events upon which this action is-based.

On the 21st of January, 1878, the claimant’s agent appeared, at the Fort Peck Agency with the carts and wagons necessary to transport 66,000 pounds of freight from that agency to Fort. Belknap, and notified the Indian agent at that place of his readiness to perform the contract.

The Indian agent delivered to the claimant’s -agent 11,235-pounds of bacon for such transportation, and declined to give any more. The claimant transported the 11,235 pounds, and rendered an account for the transportation of the whole 66,000-pounds named in the contract.

The Board of Indian Commissioners allowed the claim to the-extent of the price of the transportation of 11,235 pounds, and rejected it for the remainder.

In reporting their action to the Secretary, the Commissioners-expressed the “ opinion that the contractor is entitled in equity to some allowance by way of damage or demurrage,” and suggested that he “be requested to submit his' claim for damages-with proper evidence to substantiate the same, which [they continued] will receive careful attention of this Board with a. ■ view of'an equitable adjustment.”

The Secretary of the Interior concurred in the opinion that the claimant was equitably entitled to damages, and that he should be invited to furnish proof of the extent of his injury^, but did not agree that the damages could be adjusted in the- ' Department. He proposed to submit the case- to Congress.

*275In this conclusion that the Department had no authority to settle such a claim the Secretary was right. The laws regulating the payment of money from the Treasury, in the current business of the Government, are reviewed at length by our brother Richardson in his opinion in *McKee’s Case*(12 C. Cls. R., 555). He shows clearly that the laws provide only for the settlement and payment of accounts. An account is something which may be adjusted and liquidated by an arithmetical com'pution. One set of Treasury officers examine and audit the accounts. Another set is intrusted with the power of reviewing that examination, and with the further power of determining whether the laws authorize the payment of the account when liquidated. But no law authorizes Treasury officials to allow and pass in accounts a number not the result of arithmetical computation upon a subject within the operation of the mutual part of a contract.

Claims for unliquidated damages require for their settlement the application of the qualities of judgment and discretion. They are frequently, perhaps generally, sustained by extraneous proof, having no relation to the subjects of the contract, which are common to both parties; as, for instance, proof concerning the number of horses and the number of wagons and the length of time that would have been required in performing a given amount of transportation. The results to be reached in such cases can in no just sense be called an account, and are not committed by law to the control and decision of Treasury accounting officers.

As is well said by Judge Richardson, in the opinion álready referred to (12 C. Cls. R., 556), this construction—

> would exclude claims for unliquidated'damages, founded on neglect or breach of obligations or otherwise, and so, by the well defined and accepted meaning of the word “account” and the sense in which the same and the words “accounting” and “accounting officers” appear to be- used in the numerous sections of the numerous acts of Congress wherein they occur, it would seem that the accounting officers have no jurisdiction of such claims except in special and exceptional cases, in which it has been expressly conferred upon them by special or private acts. And such has been the opinion of five Attorneys-General — all who have officially advised the executive officers-on the subject: Attorney-General Taney in 1832, whose opinion is referred to by Ms successors in office; Attorney-General Nelson in 1844 (4 Opins., 327); Attorney-General Clifford in 1847 (4 Opins., 627); Attorney-General Cushing in 1854 (6 Opins., 524); and Attorney-General Williams in 1872 (14 Opins., 24). And the same views were expressed by this court in 1866 *(Carmack et al.*v. *The United States,*2 C. Cls. R., 126, 140).

*276The claimant apparently made some effort to comply with, tbe suggestion that he should furnish the Department with proof of his loss. A paper is transmitted here from the Department, set forth in finding XI, which we can explain only by -■assuming that it was lodged there as the desired proof. The -counsel for the Government moves to strike it from the record. We think it may remain in the record as proof of what the •claimant did in response to the suggestions of the Board of Indian Commissioners; but it cannot be received as proof of any fact stated in the paper, or appearing upon it. With this •explanation, the motion is overruled.

There is nothing on .this paper to show when it was lodged in the Interior Department. It is dated April 9, 1878, and verified in Montana, on the 12th day of the same month. The letter of the Board is dated the 25th of March, and that of the ^Secretary the 2d June. It would appear, therefore, that the paper was submitted in response to the suggestions of the Board, and was not accepted by the Secretary as satisfactory.

The rejected portion of the claim not having been allowed by the Secretary, nor by Congress, is now in suit in this court. 'The claimant contends that having placed himself in a position to carry the 66,000 pounds named in his contract, he is entitled •to be paid as if he had transported them.

Before proceeding to consider this claim, we will dispose of ■■•some preliminary questions raised by the defense.

In the first place it is contended that there is no contract on which to rest a claim for damages, because the approval required by Section XIV was not given till after the breach had -taken place.

No statute requires an Indian transportation supply contract -■to be approved either by the Board or the Secretary. If there vis a regulation requiring such approval, it has not been brought ' to our notice. So far as appears, the necessity of approval ■rests on the provisions of Section XIV. Under the authority of *Parish’s Case*(8 Wall., 490), we must hold that until the ; approval of the Board and the Secretary the action of the Com- ; missioner was merely initiatory to a contract. But we are also >of opinion that thatapproval when given related back to the date •of the contract, and validated all intervening lawful transactions done under it. To hold otherwise might convert a clause .inserted for the protection of the Government into an instru*277ment of oppression to tbe citizen. A comparison of dates also» shows that the approval was probably given in order to protect' the claimant in his just rights. The approvals of the Board'; and of the Secretary were given after the claimant had demanded payment for the transportation of the whole contract-amount, and after his claim ha,d been allowed in part and disallowed in jjart. Those officers must therefore have known all the facts when they acted.

It is next contended that the provisions of section 3744 of the Bevised Statutes have not been complied with, and that therefore there.was no valid contract. This section requires-contracts with the Interior Department to be reduced to writing; and signed by the contracting parties at the end thereof, and copies thereof, together with all bids, offers, and proposals, to-be filed in the Department of the Interior.

In the recent case of the South Boston Iron Company *{anter*165} we had occasion to consider the force and effect of this-section. Beferring to that-case, it is sufficient to say that the-claimant’s contract complied with all the provisions of the section which are mandatory, and that we are not called upon to-inquire whether it was or was not filed in the Department of the-Interior.

And lastly, the Government objects to a recovery on the ground that section 2107 of the Bevised Statutes forbids the payment of more than 50 per cent, of an amount due for transportation of Indian supplies until the accounts and vouchers shall have been submitted to the executive committee of the Board of Indian Commissioners.

Whether this statute trenches upon the jurisdiction of this court it is not necessary for us now to determine. So far as the present claim can be regarded as a claim for transportation, it has been before the Board and been rejected. So far as it . is a claim for damages for not furnishing.transportation, it does not come within the scope of this section of the Bevised Statutes.

' Overruling these general objections to the claimant’s right of recovery, we now come to the merits of the claim.

The rights acquired under a contract like the present have-been the subject of judicial determination in many cases both in this court and in the Supreme Court, of which it is sufficient to cite *Brawley’s Case*(11 C. Cls. R., 522; 96 U. S. R., 168).

*278Adapting the language of the Supreme Court in that ease to the facts in this, we say that—

> The quantity designated, 6fi,000 pounds, is to be regarded merely as an estimate of what the officer making the contract at the time supposed might he required. The substantial engagement was to transport what should be determined to be necessary by the officials of the Indian Bureau.

When that determination should be communicated to the contractor, his rights and duties would become fixed.

The only direct evidence of such determination and communication after the execution of the contract is contained in the Indian agent’s letter of January 21, 1878, to the claimant, in which he says:

> In reply to your note of January 20, inst., asking for merchandise for transportation to Fort Belknap, under contract with the Commissioner of Indian Affairs, I have to say I have delivered to Mr. Thomas Todd, your agent, eleven thousand two hundred and thirty-five pounds (11,235) of bacon, and do not deliver the flour named in the order of the Commissioner for the reason that the Commissioner states specially not to transport any flour or corn from this agency;. and for thev other articles named in the order of the Commissioner, I cannot deliver them to yon for transportation for the reason that I do nob have them in my possession at-the agency at this date. (Finding YII.)

This was subsequent to the claimant’s proffer of readiness to-perform. If it stood alone, it would be fatal to the claimant’s case. But it is inconsistent with the views which the Board of Commissioners and the Secretary of the Interior had upon the claimant’s equities to suppose that this was the first and only notice which he had. There are other facts in the case which, taken- together, warrant the inference that he had an earlier notice to the effect that he would be required to carry the 66,000 pounds.

In the first place, on the 26th October, simultaneously with the transmission to him of the written, contract for signature; the Indian Commissioner writes to him, “We will ask you to deliver only sixty-six thousand pounds of merchandise now at Fort Peck.” (Finding I.)

In the next place, on the 27th October the Commissioner telegraphed to the Indian agent at Fort Peck to deliver to the claimant for transportation to Fort Belknap a “total weight to aggregate 66,000 pounds.” (Finding Y.)

And, in the last place, the said Indian agent, in his letter to *279the claimant, of January 21, above cited, refers to tbis telegraphic “order of the Commissioner” as a thing apparently ■then already known to the claimant.

From all which, taken in connection with the action of the Board of Commissioners and the Secretary, we have no doubt “that both the Commissioner for Indian Affairs and the claimant understood the Commissioner’s letter of October 26, although written prior to the execution of the formal contract on the printed blanks, as a direction of the quantity of transportation that would be required under the contract. We also think that the order of the next day to the Indian agent must have been orally or otherwise'communicated to the claimant, and we regard the claimant’s rights and duties as fixed by all these "facts.

It will be observed that the .letter of October 26 speaks of ■66,000 pounds then at Fort Peck; that the telegram of the next ■day enumerates a variety of merchandise supposed to be there as the subject of the transportation contract; and that when ■the claimant comes with his- teams, three months later, the •agent informs him that he cannot deliver about 30,000 pounds ■of these articles, “for the reason that he does not have them fin his possession at the agency.”

But no conclusions adverse to the claimant are to be drawn ¡from the delay in calling.

Neither the Indian agent, nor the Indian Commissioner, nor the Secretary of the Interior, nor the counsel for the Government, nor any person on behalf of the Government cognizant of the facts has alleged that the delay made any change in the ability of the Indian agent to furnish the transportation. On the other hand, it appears by the agent’s letter of the same ■date to the Commissioner of Indian Affairs, that he actually ¡had on hand many of the goods at the time, but was unwilling to part with them, as they would be needed at the Fort Peck Agency; and that of rice, which constituted 6,750 pounds of the proposed 66,000 pounds, he had had none during the whole .■summer. (Finding TIL)

The claimant having been notified in October that he would be required to transport the 66,000 pounds, and having, in accordance with the notification, presented himself in January at Fort Peck with a sufficient force to do that transportation, *280acquired the right to receive it; and the defendants having-failed to furnish it, the claimant is entitled to recover such damage as he has proved. The rule of damages in such cases has-been often defined by this court. See *Cohen’s Case*(15 C. Cls. R., 253); *Field’s Case*(16 C. Cls. R., 434); *Moore & Krone’s Case*(17 C. Cls. R., 17, and case's cited).

He is entitled in the first place to have his actual losses made-good; that is, to recover the cost which he has been put to in preparing to execute the unexecuted part of his contract above-what he would have been put to had he made preparations-only to execute the part of the contract which he did perform» He has afforded no proof upon this point, although his attention was called to it, and the proof was within his exclusive-control. We h’ave, therefore, found that it does not appear that he was put to any extra expense or suffered any actual loss from that cause. (See Finding XII.)

He is entitled in the next place to recover the profits which he might have gained on the unexecuted part of his contract». On this point the proof, though not as full as might have been desirable, was nevertheless sufficient to enable us to find them-to be twenty-five per cent, on the contract price.

The Government would be entitled to have this reduced by reasonable deductions in consequence of the claimant’s release from care, trouble, risk, and responsibility, were any cause for-it proved. There was no proof on this point, and from the peculiar circumstances of this case we apprehend that there could, be none.

The judgment of the court is that the claimant have and recover of the defendants the sum of $415.24.