#### THE SOUTH BOSTON IRON COMPANY v. THE UNITED STATES.

No. 12323

February 19, 1883.

By letters between the claimant corporation and the Secretary of the Navy, separately signed, the former offered to bnild such new boilers “as may be required” for certain naval vessels, and to receive some old material in part payment, and the latter accepted the offer with a slight modification, to which there was no reply from the claimant.

Nine days after the acceptance a new Secretary, who had just been appointed, discontinued the order, and no work was done under it, and none was requested of the claimant.

The claimant sues for damages for non-performance on the part of the defendants.

*166Held :

I.Negotiations, correspondence, proposals, and acceptances, although, conducted in writing, but signed only in part by one party and in part by the other, are not sufficient compliance with Rev. Stat., 5 3744, to constitute a valid contract by the Secretaries of War, Navy, and Interior, which requires such contract to be “reduced to writing and signed by the contracting parties with their names at the end thereof.”

II.Until new boilers should be required by the Secretary of the Navy, such a contract, if valid, would not go into operation.

III.Whether an agreement to take part payment in old materials, contrary to the provisions of Rev. Stat., $ 3618, would vitiate an otherwise valid contract, *quero.*

The following are the facts found by the court:

I. The-claimant was a corporation existing under the laws of the State of Massachusetts prior to and on the 3d of March, 1870, and has continued to exist and still exists as such corporation.

II. The following correspondence and orders 'appear among the records of the Navy Department:

■ BOSTON, *March 5th,*1877.

Wm. H. Shock,

*Chief of Bureau of Steam-Engineering,*

*Navy Department, Washington:*

Sir: Having learned that new boilers are required for the U. S. steamers Narragansett and Tuscarora, now at Mare Island navy-yard, California, I submit the following proposition for the consideration > f the Bureau of St. Engineering, viz: I will build such new boilers as may be required for the above-named ships, completo in all respects, from drawings and specifications furnished by the Bureau, the material *to*be of the very best quality, and the workmanship to be first class in all respects. The boilers to be finished complete, ready for use, excepting erection on board the vessels, or in sections convenient for shipment, as the Bureau may determine. The price of the same to be,-if erected complete, ready for use, thirty and seven-eighths (30$) cents per pound. If in sections, thirty and three-quarter (30f) cents per pound. In either case to be delivered alongside of ship at New York or Boston, as may be determined by the Bureau. I agree to receive in part payment such old material as may be at the disposal of the Department at the highest market prices. *

I will also build one small boiler, complete in all respects, ready for use, for the tug-boat Snowdrop, now at Norfolk, from designs and specifications furnished by the Bureau, and deliver at navy-yard, Norfolk; material and workmanship to be of the best quality; price to be thirty and seven-eighths (30J) cents per pound.

Very respectfully, your ob’d’t serv’t,

William P. Hunt, *President South Boston Iron Co,*

*167[Endorsement.]

BUREAU of Steam-Engineering,

*Navy Department, March 7,*1877. Received at the Navy Department, March 7, 1877.

Accepted, hy verbal directions of the Secretary of the Navy, in obedience to his order of this date.

W. H. Shock,

*Chf. of Bu. Stm. Eng.*

Navy Department,

Bureau oe Steam-EnGineering,

*Washington, March 7th,*1877.

Sir: By direction of the Hon. Secretary of the Navy,•your pfter of the 5th inst. for boilers for the Narragansett and Tuscarora is accepted, upon the terms and conditions named in said letter, the same to be delivered alongside vessel in New York Harbor for shipment to Mare Island navy-yard. Also your offer for boilers for the tug Snowdrop, to be delivered in the Norfolk navy-yard.

The specifications and drawings will be furnished as soon as prepared.

Respectfully,

Wm. H. Shock,

*Chief of Bureau.*

Hunt, Wm. P.,

*President South Boston Iron Co., Boston, Mass.*

Boston, *March*3, 1877.

Sir : Having learned that new boilers are required for the iron-clad monitor Dictator, I submit the following proposition for the consideration of the Bureau of Steam-Engineering, viz: I will build such new boilers as may be required for the above-named vessel complete in all respects from drawings and specifications furnished by the Bureau. The materials to be of the very best quality and the workmanship to be first class in all respects, the boiler to-be furnished complete, ready for use and erection on board the vessel. The price of the same to be thirty and seven-eighths (30J) cents per pound, to be delivered alongside ship at New York.

Yery respectfully, your obedient servant,

Wm. P. Hunt, , *President South Boston Iron Company.*

Wm. H. Shock,

*Chief of Bureau of Engineering,*

*Navy Department, Washington.*

Received at the Navy Department, March 8, 1877.

*168[1st endorsement.]

Bureau will accept.

[2d endorsement.]

G. M. R., *SecH’y.*

Navy Department, Bureau op. Steam-Engineering,

*March*10, 1877.

Accepted by direction of the Hon. Secretary of the Navy, in obedience to his order of this date.

W. H. Shock,

*Chief of Bureau.*

Navy Department,

Bureau op Steam-Engineering,

*Washington, March 10th,*1877.

Sir: By direction of the Hon. Secretary of the-Navy, your offer of the 3rd inst. for boilers for the TJ. S. iron-clad Dictator is accepted, upon the terms named in said letter, the same to he delivered alongside ship or navy-yard wharf (as may be required) in New York.

The specifications and drawings will be furnished as soon as possible. Respectfully,

. Wm. H. Shock,

*Chief of Bureau.*

Wm. P. Hunt,

*Boston, Mass.*

III. March 13,1877, Hon. B.. W. Thompson became Secretary of the Navy, and thereupon sent to the claimant the following notice:

■ Navy Department,

*Washington, March*16, 1877.

Gentlemen: You are hereby notified to discontinue all work by you contrated for with this Department or any Bureau thereof since March 1, 1877, and until shall be otherwise directed by the Secretary of the Navy: Respectfully, yours,

South Boston Iron Co.,

*South Boston, Mass.*

R. W. Thompson, *Secretary of the Navy.*

Before March 1, 1877, all appropriations for the repair of vessels for the current fiscal year had been largely overdrawn.

IV. Neither on the 7th nor the 10th March, nor by the 16th March, 1877, had any drawings or specifications been prepared for boilers for the Narragansett and Tuscarora, the tug Snowdrop, nor the Dictator. In November, 1877, drawings were pre*169pared for the boilers of the Snowdrop, and in 1878 they were constructed by the United States at an expense of $12,960.99.

Subsequent to the inception of this suit drawings were prepared for boilers of the Tusearora, and construction was commenced by the United States. The Dictator and Narragansett were not in commission in March, 1877, nor have they been so since, nor does it appear that any drawings or specifications have yet been prepared for their boilers.

The Tusearora was not in commission at any time during the year 1877.

Y. Between the 10th and 16th of March, 1877, claimant ordered the material for the construction of the boilers, but the nature of the order, to whom given, and what liability was thereby created does not appear. Nor does it appear that any material on the order was delivered or tendered, nor that any payment or claim for damages has been made or demanded.

Since March 10, 1867, claimants have been willing to build the boilers, as proposed in finding II, but the defedants have not furnished drawings and specifications, nor ordered the work to proceed. But if the specifications and drawings had been furnished, claimant could not have commenced work earlier than the end of June, 1877.

From November, 1877, to the commencement of this suit the boiler shops of the claimant were practically idle. During this time boilers were generally built with very little profit. Claimant had some offers of work from private parties, which were declined.

YI. The estimated weights of the boilers, as entered upon the books of the Navy Department, were respectively as follows : For the Tusearora, 239,000 pounds; for the Narragansett, 220,000 pounds; for the Snowdrop, 40,000 pounds; for the Dictator, 564,874 pounds.

YII. It had not been determined in March, 1877, that the boilers mentioned in finding II should correspond to others previously furnished by claimant for the Hartford, Shenandoah, Triana, and Wachusett. The boilers required for the tug and monitor would have been cylindrical, while those furnished had been quadrangular. It is not shown that at the time of the acceptance of the offers of the claimant there was any verbal understanding as to the design, plan, or weight of the boilers in *170question, or that anything was said by either party to render definite or more certain the offers'and their acceptance.

The offers of claimant for construction of the boilers for the Triana, Wachusett, Shenandoah, and Hartford were based upon drawings and specifications previously furnished by the Bureau.

VIII. The following correspondence was had prior to the commencement of this suit:

Riggs House,

*Washington, D. C., March 24th,*1880.

Hon. R. W. Thompson,

*Secretary of the Navy:*

Sik: Yon are hereby notified that the South Boston Iron Company claims damages, interest, and expenses of the United States, in the sum of two hundred thousand ($800,000) dollars, by reason of the suspension by you of a certain contract made by your immediate predecessor in office (Mr. Hobeson), on or about the 7th of Ma¡rch, 1877, which contract was for boilers ho be furnished by said company to the Navy Department of said United States, as specified in said contract; and that a suit for the recovery of the same will be commenced immediately.

Very respectfully,

Timothy Davis,

*Agent and Attorney in fact for the South Boston Iron Company.*

Riggs House,

*Washington, D. C¡, March 30th,*1880.

Hon. Secretary op the Navy:

Sir : I had the honor, on the 24th inst., to communicate to you the claim and intentions of the South Boston Iron Company, under the contracts made by your predecessor with said company for boilers on or about the 7th and 10th of March, 1877.

I have received no acknowledgment of the receipt of said communication by you, and I have now respectfully to inquire if said communication reached you, and if you have any views to express as to said company’s claim for damages, before the commencement of a suit, as indicated in my said letter of the 24th instant.

Very respectfully, your ob’t servant,

Timothy Davis,

*Agent South Boston Iron Company.*

Navy Department, *Washington, March 30th,*1880.

Sir: Your letter of the 24th inst. and your letter of this date have been received.

Very respectfully, •

R. W.. Thompson, *Secretary of the Navy.*

Timothy Davis, Esq.,

*Agt. South Boston Iron Co., Washington.*

*171
      *Mr. Samuel Shellabarger*for claimants:

1. Advertisement for proposals was unnecessary, because the words “supplies and services” in Revised Statutes, § 3709, do not include boilers. The words are used in the general sense as given by Webster of “ food and the like which meetthe daily necessities of an army.” The different sections that are in juxtaposition and relate to the same subject, to wit, Revised Statutes, §§ 3715,3716,3718,3719,3720,3721,3722,3723, 3721, 3725, 3726, 3727, 3731, convey the same idea.

2. The uniform construction of these words by the Navy Department is in accord with this view and should be accepted as the rule of construction in this court. *(Hahn*v. *United States,*

14 O. Cls. R., 305; *United States*v. *Pugh,*99 U. S. R., 265; *Fdwards’s Lessee*v. *Darby,*12 Wheat., 210; *United States*v. *Alexander,*12 Wall., 179.)

3. The requirement of this statute is directory, not mandatory, and since the Secretary of the Navy has contracted without advertising, it is a legal presumption not open to judicial inquiry that immediate delivery was required by the public exigency. *(People*v. *Allen,*6 Wen., 487; *Marehant*v. *Lang-worthy,*6 Hill., 646; *Adams*v. *United States,*1 C. Cls. R., 192; *McKee*v. *United States,*12 Ibid., 526; *Mowry*v. *United States,*2-Ibid., 68; *Fremont*v. *United States,*2 Ibid., 461; *Stevens*v. *United States,*2 Ibid.,95; *Orowell, idem,*501; *Fowler,A*Ibid.,43; *Childs, Pratt & Fox,*4 Ibid., 176; *Cobb,*7 Ibid., 470.)

4. As the proposals in this case are signed by the plaintiff, and the acceptance by or under the direction of the Secretary of the Navy, and both are on file in the Navy Department, all the ends and purposes of Revised Statutes, § 3744, are answered. *(Adams*v. *United States,*1 C. Cls. R., 192; *Tayloe*v. *Insurance Co.,*9 How., 390.)

.5. Failure to furnish the specifications and drawings does not avoid the completeness of the contract, but is a violation of it.

6. As was said in *Figh’s Case*(8 C. Cls. R., 324), “ they were obliged to hold themselves and all hands in readiness to resume work whenever called upon by the Government,”

7. The rule of damages has been well settled. *(Smoot’s Case,*15 Wall., 47; *United States*v. *Speed,*8 Wall., 85; *Masterton*v. *Broolclyn,*7 Hill 62; *Philadelphia, Wilmington and Baltimore*
      *172
      *JR. JR,. Go.*v. *Howar'd,*13 How., 307; *United States v. Smith,*94 IT. S. It., 214 ; *Kellogg Bridge Co.,*15 C. Cls. R., 216.) The case is clearly distinguishable from *BuUdey’s Case*(19 Wall., 37) and *Parish*(100 IT. 8. R., 500).

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendants:

1. All provisions, clothing, hemp, and other materials of every name and nature for the use of the Navy are required by Re-' vised Statutes, § 3718, to be furnished by contract by the lowest bidder. That this includes material on which labor has been or is to be expended is manifest from section 3720. ,

Many reasons might be urged why boilers should not be submitted to competition, but they do not as yet seem to have influenced Congress, although in sections 3721, 3726, 3727, and 3729 are found numerous exceptions to section 3720.

2. Revised Statutes, § 3744, is mandatory up to the point where the contract passes from the observation and control of the party who enters into it. *(Ciarle*v. *United States,*95 IT. S. R., 539.) This is an advance upon the decision of the Court of Claims (1 C. Cls. R., 192) in the *Adams Case,*where the signature of the parties at the end of the contract was relegated to the directory portion of the statute. The case of *Garjielde*(93 IT. S. R., 242) has no application, for that contract was with the Post-Office Department.

No exception appears in this section in favor of contracts for immediate delivery, as in section 3709; and if the nature of the supply or service requires a contract instead of a purchase, the contract we contend must conform to section 3744.

The plans and specifications were not in existence, and it does not appear that there was any written evidence of what the Department would demand. In an action, therefore, by either party, evidence to eke out the contract must of necessity be parol. Every evil mentioned by the Chief Justice in *Hender-sons Case*(4 O. Cls. R., 82) as consequent upon parol contracts would be likely to result from leaving one portion to “ rest in the frail memory of a few officers or parties to the contract.” To adopt his language: “If one [portion of an] executory contract need not be in writing, all may be verbal or informal.”

The rule as laid down by Yan Ness, J., in *Abeel*v. *Badeliff*
      *173(13 Johnson’s Rep., 296), is well established: “ Every agreement which is required to be in writing by the statute of frauds must be certain in itself, or capable of being made so, by a reference to something else, whereby the terms can be ascertained with reasonable precision, or it cannot be carried into effect.”

There the uncertainty was as to the term of a lease. In *Jackson*v. *Titus*(2 Johnson, 430), a lease was offered in evidence, on which was indorsed an assignment, but it was proved that when the signature and seal of the assignor was placed thereon no assignment had been written. Kent, Ch. J., in his opinion, says: “The assignment was, in our opinion, a nullity. The affixing of the hand and seal to a piece of blank paper never can be considered an assignment by deed or note in writing within the requisition of the statute of frauds.” In *(Minan*v, *Ooolce*(1 Schoale *&*Le Froye, 22, Lord Redesdale) it was held that if an agreement referred to another written instrument, parol evidence might be admitted to show what was the thing referred *to;*but where there is no such reference another paper cannot be introduced by parol. This was a case of uncertainty in the term of a lease.

In *Brodie*v. *St. Paul*(1 Yes., Jun., 326) Mr. Justice Buller says : “ If the agreement is certain, and explained in writing signed by the parties that binds them; if not, and evidence is necessary to prove what the terms were, to admit it would effectually break in upon the statute and introduce all the mischief, inconvenience, and uncertainty the statute was designed to prevent.”

Kent says, in *Bailey*v. *Ogdens*(3 Johnson, 398, 419): “The form of the memorandum cannot be material, but it must state the contract with reasonable certainty, so that the substance of it can be made to appear and be understood from the writing itself, without having recourse to parol proof.”

In *Bragden*v. *Bradbear*(12 Yesey, 471), the price was omitted, and the plaintiff in the bill offered admissions of the defendant as to the price, but these were refused.

In *Boydell'v. Drummond*(11 East., 142), Lord Ellenborough would not admit parol evidence to connect the subscription of defendant to Boydell’s Shakepeare with certain prospectuses that had been issued to plaintiff.

*174See, also, *Whelan*v. *Sullivan*(102 Mass., 204); *Harwell*v. *Mattur*(10 Allen, 324).

3. In point of’ fact, the Snowdrop, as constructed, cost $12,960.99; at the estimated weight of 40,000 pounds, claimant would have received but $12,360 as the contract price.

There is absolutely no evidence, parol or otherwise, of what the plans and specifications would have been. .The u gains prevented” depend very largely upon the relative amount of iron (worth 2-f to 5§ cents a pound) and brass (worth 23 cents to 25 cents). An estimate of the weight of the boilers seems to have been made by the Government officers for the purpose of ascertaining the liability of the Government under the contract, but as we have none of the details of the estimate, it affords no assistance in determining what would have been the profit to the company.

Under the letters constituting the whole agreement in this case the United. States had a right to demand boilers more expensive even than the agreed price *{Harvey y. The United States,*8 O. Cls. B., 501), and claimant’s contract has, therefore, no appreciable value.

4. The agreement between the parties seems to have been rather an agreement to contract; the breach assigned is the refusal of the United States to furnish the drawings and specifications. The affair was inchoate and incomplete, and for the court to say what would have been the profit to claimant would be for the court to make the contract. If the case were between individuals, claimant’s only remedy would be a bill to compel defendant to furnish drawings, but no court of equity would compel defendant to make certain and definite the matters which in this contract are uncertain and undefined. (See *McKibben*v. *Brown,*i McCarter, 16, and cases there cited; *Goldhurst*v. *Briehenden,*Oro. Jac., 250; *Taylor*v. *Partington,*7 De G. Mac. *&*G., 328; *Cooper*v. *Hood,*26 Bean, 293.)

OPINION.

Scofield, J.,

delivered the opinion of the court:

March 8,1877, the claimant filed in the Navy Department a letter, dated Boston, Marches. 1877, proposing to build “such *175new boilers as may be required” for tbe iron-clad monitor Dictator from drawings and specifications furnished by the Bureau, at prices stated. March 10, 1877, claimant was notified by letter that the proposal was accepted, with a slight change as to the place of delivery.

March 7, 1877, claimant filed in the Department a second letter, dated Boston, March 5,1877, proposing to build'“such new boilers as may be required” for the steamers Narragansett and Tuscarora, from drawings and specifications furnished by the Bureau, at prices stated therein. .Also a small boiler for the tug-boat Snowdrop, from designs and specifications furnished by the Bureau. He offers to receive in part payment old material at the highest market price. March 7, 1877, claimant was notified by letter that this proposal was accepted.

March 13, 1877, Hon. B. W. Thompson became Secretary of the Navy, and March 16, 1877, gave notice to the claimant to discontinue all work contracted for since March 1, 1877.

No notice was at any time given that boilers were' required for any of these vessels, nor were drawings and specifications ever furnished.

In 1878 boilers were built in the defendants’ navy-yard, at Norfolk, Ya., for the tug-boat Snowdrop. For the Dictator, Narragansett, and Tuscarora, prior to the bringing of this suit, no drawings and specifications were made. From March 1, 1877, to May 1,1880, they were not in commission, and did not require new boilers.

The first question presented for consideration in this case is ■whether the correspondence as-set out in finding II makes a contract binding upon the Government under the provisions of the *Act of June*2, 1862. (12 Stat. L., 416); now Bevised Statutes, § § 3744, 3745, 3746, and 3747. The first part of section 3744 provides that—

> It shall he the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made hy them, severally, on hehalf of the Government, or hy their officers under them appointed, to mate such contracts, *to he reduced to tvritvng and signed hy the contracting parties with their names at the end thereof.*

The remainder of this section makes it the duty of the contracting officer to file in the returns office of the Interior Department a copy of the contract, together with all “ bK)s, offers, and proposals.” •'

*176Section 3745 provides that the contracting officer shall make oath that the paper filed is a true copy of the contract; that it has been honestly made, and that the accompanying papers include all that relate to it. ■

By section 3746 the failure to file copies is made a crime.

Section 3747 makes it the duty of the Secretaries to furnish contracting officers with a printed letter of instructions, and with forms printed in blank, so that “all the instruments may be as nearly uniform as possible.”

This is one of several acts which evince the intention of Congress to place the contracting officers of the Government under the restraints of law. To avoid disputes with contractors, the contracts are to be put in writing. To avoid ambiguities, mistakes, and omissions of detail, and statutory requirements, they are to be drawn up after carefully prepared legal forms, to be furnished by the Secretaries, and when so drawn up to be signed by the contracting parties with their names at the end thereof. That it may be readily known in what liabilities the numerous contracting' officers are involving the Government, sworn copies are to be forthwith filed in one common office.

The English statute, of fraud provides that one class of contracts shall be “put in writing and signed by the parties,” and for another class it provides that “ the agreement of some memorandum or note thereof shall be in writing and signed by the party to be charged therewith.” The language of these statutes has been generally, followed in legislation of this country. To determine what kind or form of writing and signing came within the requirements of this phraseology has been the object of the great number of judicial decisions, some of which have been cited here.

But in the law under consideration, the words “some memorandum or note thereof” are omitted, and the words “with their names at the end thereof ” added. Immediately preceding these added words the statute had already provided all that the English statutes required, to wit, that “ the contract should be in writing and signed by the contracting parties.”

It is plain that some additional requirement is involved in the words “with their names at the end thereof.” They are not repugnant to any other part of the act. They cannot be meaningless. The same idea has been discussed in legislative bodies, and one State at least has required certain contracts “to *177be signed at the foot.” Congress inserted these words for a purpose, and courts must give them effect. We cannot shave off the language of an act of Congress to bring its meaning within less restricted language, common in statutes of fraud. These additional words cannot mean less than that the contract • shall be so full and complete before signing that it can be signed in whole by both parties. It excludes the idea that oue party may sign one part of the contract and the other party another and leave the courts to arrange a contract by collecting and joining the pieces. That can be done, as has been often held, under the English statute, but not under ours, unless we entirely erase the words “with their names at the end thereof.”

This construction is strengthened by the other provisions of the act before noted, especially by those which require the Secretaries to furnish blank forms in order “that all the instruments may be as nearly uniform as possible,” and the contracting officers to file with the copy of the contracts copies of all “bids, offers, and proposals.”

It is doubtless true that the contractor is not bound to see that the officer obeys all these directions, but he is bound to know that they are in the law and that it does not become him to aid a reckless officer to evade them.

If this is the proper construction of the statute, negotiations, correspondence, proposals, and acceptances, although conducted in writing, but signed only in part by one party and in part by the other, do not constitute the required complete contract signed in whole by both parties. At most they are only preliminary memoranda to be used in drawing a contract so complete that it can be “ signed by the contracting parties with their names at the end thereof.”

In opposition to this construction of the statute the *Case of Adams*(1 C. Cls. B., 192) and the case of *Garfielde*v. *United States*(93 U. S. R., 242) are cited. But these cases were not necessarily ruled by the Act of June 2, 18G2. The accepted proposals, having been made in answer to advertisements soliciting bids, were controlled in the one case by sections 3718 and 3719-of the Bevised Statutes, and in the other by Act of June 8, 1872, ch. 335, §§ 243-248 (17 Stat. L., 313, now Bev. Stat., §§ 3941-3946).

It may be considered settled that so much of section 3744 as, provides that contracts shall be “reduced to writing and signed *178by the contracting parties with their names at the end thereof” is mandatory, and contracts which do not comply with its requirements are void. *(Henderson's Case,*4 C. Cls. R., 75; *Clark*v. *United States,*95 U. S. R., 539.)

In this case a whole and complete contract was not signed by either party. The claimant signed the proposals and the defendants the acceptances. Neither party retained possession of all the original parts. The defendants retained possession of the original proposals and the claimant of the original acceptances. The drawings and specifications which were to become a very important part of the contract were not in writing at the time nor even considered and determined upon.

The retiring Secretary, in the hurry of departure, gave verbal orders that the proposals should be accepted, and left it for his successor, if he saw fit, to draw contracts from these mem-oranda, in conformity to law.

As the appropriation for the current fiscal year was already largely overdrawn, it would be a reflection upon his honesty to suppose that, in violation of Eevised Statutes, section 3679, he intended, by such immature contracts, to further involve the Bureau in debt, or that, by contracts premature as well as immature, he intended to control the discretion of his successor in the expenditure of an appropriation limited to the necessities of the next fiscal year.

It may be here observed, as illustrative of the wisdom of Congress in endeavoring to provide' against involving the Government in large liabilities, through unfinished and uncertain contracts, that these papers contemplated payment in old material in violation of the Eevised Statutes, § 3618, and omitted the provision relative to members of Congress, contained in section 3741. For the same purpose the attention of the court is directed to a small variance between the proposal and the-acceptance relative to boilers for the Dictator. The claimant proposed to deliver the boilers “ alongside ship,” in New York, and the acceptance demanded that they should be delivered “alongside ship or the navy-yard wharf, as may be required.” This seems to to be only a slight modification, but the Department considered it of sufficient importance to make it a condition in the notice of acceptance. To this modification the claimant made no reply. In a suit against the claimant for nonperformance, could he not set up as a defense this unaccepted modification?

*179As tbe requirements of tbe statute were not complied with, we bold that there was no contract upon wbicb to base a claim for damages, and, as no work was done and no property delivered, there can be no recovery on a *quantum meruit.*

But if it should be held that these papers constitute valid contracts against the Government, it is not at all clear that they have been broken by the defendants. The claimant’s proposals state that he has “learned that new boilers are required for” certain ships, and then say, “ I will build such new boilers *as may be required*for the above-named ships,” &c. This language implies conditions as to the requirements of the service, apparently to be settled in the future. *(Fenlon’s Case,*17 C. Cls. R., 138.) Whenever the Secretary shall determine (so this language imports) that new boilers are required, claimant will build them on the terms stated. Upon these conditions the proposals appear to have been accepted. In thus accepting, the Secretary passes no present judgment upon the requirements of the Navy. All is prospective. No time is fixed or proposed. The Secretary informs the claimant that his terms are satisfactory and that whenever the Government requires the boilers to be built outside of its own shops, drawings and specifications willbe made and orders given to him. The three ships were not in commission, and for them the Secretary concluded that new boilers were not required. About a year afterward the Secretary decided that the tug-boat Snowdrop required a new boiler and that it was advisable to build it at the Government navy-yard.

This comment upon the language of the proposals is made, not for the purpose of present construction, but by its ambiguity further to illustrate the propriety of the law which refuses to recognize as valid contracts crude and incomplete memo-randa.

It was contended by defendants that so long as plans and specifications had not been selected, consideration of gains prevented was out of the question, for the reason that the discretion reposed in defendants to prescribe plans extended at the least to the selection of a design as expensive to. the contractor as the contract price.

The alleged contract is further objected to because it is said that it is in violation of Revised Statutes, § 3718, which provides *180“ that all materials of every name and nature for the use of the Navy shall be furnished by contract by the lowest bidder.”

But, having decided the case upon the provisions of section 3744, it is unnecessary to consider other objections.

The decision of the court is that the claimant’s petition be dismissed.