#### COBB, BLASDELL & COMPANY v. THE UNITED STATES.

No. 5984

May 14, 1883.

December 1, 1864, the Army stores at Johnsonville, Term., collected, for a contemplated movement forward, were burned by the enemy. General Thomas thereupon orally informed the chief quartermaster that there was an emergency requiring an immediate supply of forage. At a conference of quartermasters at Louisville it was decided that the main dependence for meeting the emergency should be on Cincinnati. Contracts were then made there, which were sustained in *Cobb, Christy Co.’s Case*(7 C. Cls. R., 470), and contracts were made at Louisville which were sustained in O. P. *Cobb’s Case*(9 C. Cls. R., 291).

*515January 2, 1865, the chief quartermaster telegraphed the quartermaster at Saint Louis that the rivers were falling, directed them to purchase forage without regard to expense, and asked how much could be forwarded within the next ten days. The quartermasters at Saint Louis convened the julncipal contract'ors, among whom were the claimants, and on the 5th January contracted with them severally for the delivery within twenty days of what oats they respectively then had, amounting to 489,000 bushels, at 98.2 cents per bushel. The quantity the claimants so agreed to deliver was 100,000 bushels.

The claimants on the same day, pursuant to advertisement made December 29, 1864, further contracted in writing, in the manner required by statute, to deliver 200,000 bushels oats at the same price. The quartermaster- then orally agreed with the contractors present, severally, to continue to take oats from .them at the same rate till notice given. The claimants understood this to mean to take all they should purchase before notice; the quartermaster understood it to mean to take all they should deliver before notice.

The claimants purchased a large quantity of oats after that time, and at the time of the receipt of the notice had a large amount on hand, which the defendants would not receive and which was subsequently sold. Among the oats sold was a considerable quantity of rejected or damaged oats.

The claimants offer as proof of the amount realized at the sales the average of the sales of good and of damaged oats'; also a table showing the general sales of good oats in- open market at New Orleans dirring the period, from which an average is found in this finding.

Held:

I.A commanding officer, under the *Act of July*4, 1864, ch. 253, 5 4 (13 Stat. L., 396), could order a quartermaster to procure supplies in an emergency in the most expeditious manner and without advertise ment only by written order. A vendor contracting with the Government in an alleged emergency was bound to inquire and know whether such written order had been made. *Thompson et al.’s Case*(9 C. Cls. B., 187) overruled on this point. The present case did not arise under the provisions of the last clause of Bev. Stat., § 3709.

II.The *Act of June*2, 1862 (12 Stat L., 411; Bev. Stat., § 3744), requiring all contracts made by the War, Navy, and Interior Departments to be in writing and signed by the parties'at the end, applies to contracts made in an emergency without advertisement. *Cobb, Christy*9’- *Co.’s Case*(7 C. Cls. B., 470) overruled on this point.

III.There is grave doubt whether an emergency created on the 1st December, 1864, lasted till the 5th January, 1865. O. *P. Cobb’s Case*(9 C. Cls. B., 291) questioned on this point.

IY. No contemporaneous memorandum having been made of the language used in the oral contract, the court cannot determine from the loose recollections of witnesses what the exact language of the contract was; and as the parties understood it differently, the minds of the parties never met on a part of the alleged contract essential to the claimants’ case.

*516T. The *Act of July*4, 1804, § 4 (13 Stat. L., 396), conferred on a quartermaster authority to contract only respecting the same subjects of contract which the general 'statutes relating to advertisement and bid authorized.

YI. A quartermaster has no authority to contract for indefinite and unlimited quantities of articles which the contractors may buy in the future for an indefinite period, and to bind the Government to take such purchases without reference to its own wants. A purchasing-agent of the Government cannot clothe a contractor with a roving-commission and agree to take off his hands all he can buy.

VII. Whether the claimants’ losses on the sale of their oats can be proven by proof of the average sales of good and rejected oats, or by proof of the average of all sales in the New Orleans market during the period, *quccro.*

VIII. This court does not exclude answers in response to leading questions as rigidly as courts of common law withhold such evidence from a jury. It prefers to determine what weight shall be given to such evidence, when it can do so without injustice.

The followiug are the facts found by tlie court:

I. In November, 1864, there was a general concentration of troops at Nashville, Tenn., under the command of General Thomas, and this army was increased from day to day by forces collected for a forward movement against the armies of the enemy under command of General Hood, wlio had been, on the 15th and 16th days of December, 1864, defeated near Nashville; and a special command, consisting of about 30,000 cavalry, under General Wilson, was making preparations to descend upon the Southern States. The public animals, requiring forage, connected with these forces numbered about 100,000.

II. About the 1st of December, 1864, large quantities of forage which had been collected at Johnsonville for the use of the Army were destroyed by fire, and the Government warehouses and stores at Cairo had become nearly empty, and the Army in great need of forage; the means and channels of transportation were, at that season of the year, embarrassed and interrupted, and many of the contractors had failed, by reason of the neglect of the United States to furnish funds, to supply the expected quantities of forage at various points.

III. In consequence of this state of things General Thomas convened one or more staff meetings, for consultation “with reference to the general welfare and business in detail of the Army,” and, “ after consultation with his quartermasters as to *517what was best to be done,” gave verbal orders whose “general terms were an urgent demand on the part of General Thomas upon these officers to hurry up the supply of forage, that the supply was limited, and there was a pressing necessity for the forage.” Except these verbal directions in consultation with the staff officers, it does not appear that General Thomas decided that there existed at that time an emergency requiring the immediate procurement of supplies for the necessary movements and operations of the Army.

IV. At that time Brig. Gen. Robert Allen was chief quartermaster of the department, reporting to Washington; Col. William W. McKim was quartermaster at the depot at Cincinnati, also reporting to Washington; Col. William Myers was chief quartermaster of the Department of Missouri, reporting to General Allen'; and Capt. William Currie, assistant quartermaster of volunteers, was stationed at Saint Louis, under General Myers, but with orders to report by letter to General Allen.

V. In consequence of these orders of General Thomas, Colonel McKim, about the middle of December, 1864, went to Louisville and consulted with General Allen. It was then decided that every possible means must be put in requisition to meet the emergency and that the main dependence was in the Cincinnati depot. After this decision, and somewhere about the 23d December, 1864, Colonel McKim made the verbal contract with Cobb, Christie & Company for the immediate delivery of 600,000 bushels of corn and oats, which was the subject of controversy in their case reported in the seventh volume of the Court of Claims Reports, from pages 470 to 480.

VI. After these contracts had been made at Cincinnati, General Allen, on the 2d January, 1865, sent the following telegram to Colonel Myers at Saint Louis:

JANUARY *2,*1865.

Louisville, *Jcm’y 2.*

To Colonel Myers :

Heavy shipments of grain to Cairo for Nashville. The Cumberland is falling fast. The price must not he an excuse; dispatch is everything. How much can I count your sending in the next ten days to Cairo from all quarters?

Rob’t Allen, *B. G.*

VII. By direction of Colonel Myers, Captain Currie called together in his office.at Saint Louis the various contractors who *518liad theretofore been in the habit of supplying that department with forage, among whom were the claimants. A memorandum was made of the amount of oats and corn then in the hands of the respective parties, and each party for him or themselves agreed with said Currie to deliver the amount then held by him or them at a price which was fixed for the oats at 98.2 cents per bushel. The following is a copy of that memorandum. The 100,000 bushels of oats therein standing opposite the names of the claimants were delivered and paid for at the contract price.

St. Louis, Mo., *Jan.*5, 1865.

We, the undersigned, agree to deliver at Cairo, Illinois, or St. Louis, Mo., the amount of hay, oats, or corn set opposite our respective names, within, twenty days from this date, subject to the conditions specified in advertisement of Capt. Wm. Currie, A. Q* M., for hay, oats, and com, bearing date St. Louis, Mo., Dec. 29, J64, provided the contracts are awarded.

We also certify on honor that we have already purchased the amount specified.

VIII. Colonel Myers informed Captain Currie that tbe facilities at that season of the year were very much curtailed by the closing of the upper rivers aud a reduced amount of supplies; and, in consequence of what they both supposed were the necessities of the case, Currie, by instruction of Colonel Myers, at the same conference made a further verbal contract with the claimants, and the other parties present at the conference respectively and severally, for all the grain they could deliver during the emergency. It does not appear that any coutemporaueous memorandum of the terms of this agreement was made; nor does it appear to the satisfaction of the court what those terms *519were; and it appears that the several parties who were present at the conference and entered into the identical several agreement are not agreed as to its terms.

John B. Vail, who was present and took part in the conference, and who agreed to deliver and did deliver hay under the several identical agreement referred to in this finding, had also a written contract for the delivery of hay, and understood the verbal contract to be that he should deliver any additional quantity of hay not included in the written contract and receive the price mentioned in the written agreement, and should continue to deliver until he should receive notice that the defendants did not wish any more.

A. 3L Northrup, who was also present at said conference and agreed to deliver the 75,000 bushels of oats opposite his name on the memorandum, understood that the contractors were to go ahead, and the Government would take all they could buy, but he did not understand that Captain Currie told them so; and he did not furnish any oats under the contract, not even the 75,000 bushels referred to in the memorandum.

Currie understood the agreement to be that he would on behalf of the defendants receive the hay and grain from the various contractors at the depot at Cairo, Ill., in indefinite amounts and until notice to stop delivereries should be given, and at the rate of 98.2 cents per bushel for all the oats so delivered, and that the contractors were to supply all they could during the emergency, but that they were not obliged to furnish all the Government might require unless they were able to do it, and the Government was not obliged to take mope than it required: and that the contract was that contractors were to deliver immediately — that is, as fast as it could be delivered — a certain amount of forage and as much more as possible until the emergency had passed, and that the amount which the Government was bound to receive was limited by its necessities.

The proceedings which the claimants took subsequent to January 5,1865, is the only evidence of their understanding of this contract.

IX. On the same day, to wit, on'the 5th January, 1864, the said Currie, pursuant to advertisements dated December 29, 1864, and to proposals and bid made thereunder, made another contract with the claimants, which was in writing, and pro-*520Tided for tbe delivery at Cairo by them of 200,000 bushels of oats at the same price, to wit, 98.2 cents per bushel, the deliveries to commence immediately, and to continue at the rate of 50,000 bushels per week.

X. Before the said conference the claimants had been in the habit of making large contracts with the defendants for the delivery of oats, grain, and forage, and they had at that time outstanding contracts therefor. Under these contracts they delivered to the deféndants after the 1st October, 1864, and before the 5th day of January, 1865, the following amounts of oats:

October 5. (Bushels). 32,191Jf

“ 18. . “ .;. 52,522“

“ 25. “ ..■. 3,309-q-

“ 28. “ .i. 40,663

“ 31. “ . 19,303“

Nov. 17. “ .. 26,979^

“ 17. “ . 11,112

“ 23. “ .33,0762a

“ 30. “ . 12,463aa

“ “ “ . 22,399-S-

Dec. 15. “ . 36,117

“ “ “ .' 26,685“

“ 21. *“*. 14,001

“ 28. “ . 31,6 *51-11*

“ 31. “ .'. *17,177-'L-*

*“*31. “ . 49,2242-4

434,681£8-

XI. In order to fulfill their contracts the claimants were in the habit of purchasing from farmers, dealers, and others in the country. Oats could not then be found at any one depot, but had to be gathered in small quantities by agents sent out through Iowa, Illinois, and Indiana. In the months of October, November, and December, 1864, and in January, February, and March, 1865, they purchased, at various points in the State of Illinois, 970,000 bushels of pats, of which one-twentieth or five per cent, proved to be oats of the quality called rejected oats. Of this 970,000 bushels, 863,704 bushels were purchased by one Blihu Fallís as agent for the claimants; and of the quantity- thus purchased by the said Fa-llis, the following *521amounts were purchased prior to the said conference, and prior to the said verbal contract:

1864, Oct. 25. Name unknown,.,... 10,307

“ Oct. 6. J. C. Langclén. 600

*“*Oct. Spofford Bro. 1,306aa

“ ' . “ .. 8,225“

“ *“*Name unknown.,. 12,260iA

*“ “*John Fyom..... 5,260“

“ Nov. Name unknown...;. 6,392-2-

“ Dec. “ •' “ 10,43o2-1

“ “ “ “ .. 2,249

“ “ “ “ . 3,449-7-

“ Oct. 25. G. B. Hamittin. 5,000

“ “ “ “ “ - “ .. 5,000

“ “ “ “ “ “ .;. 5,000

“ “ “ “ “ “ .,_. 20,000

“ “ “ " .1.,. 14,553“

“ “ “ “ *“ ‘i*. 1 691“

“ Nov. N. C. Ryder. 10,000

“ “ “ “ “ . 10,000

“ “ “ “ . 3,430

ÍÍ *cc u u a*32XQ

“ Nov. R. Van Pelt.1 1,662“

.'.. 594i&

. 4,313“

.-. 5,625“

. 1,057“

.'. 533s £

.:. 2,911-2-

January, 1865.- Several purchases were made in this month, without recording the day of the purchase. The whole purchases in the month were 131,333 bushels. Averaging the purchases for the first five days *of*January at this rate, it is found' that there were purchased up to and including that day. 21,180

173,068JÍ

XII. The claimants delivered to the defendants after the 5th of January, 1865, the following quantities of oats on contracts which had been entered into before that date:

January 16. Bushels. 25,743-La

“ 17. “ 26,317-2-

“ 24. “ •. 13,112-4-

“ 25. “ 17,478“

“ 31. “ 27,591-*-

February 8. ‘‘ .;. 14,974-*-

*522February 9. Bushels 9,442“

“ 13. “ 50,578“

“ 20. 17,683“

*“*24. “ 19,602-5-

March 17. “ 15,6991A

238,223H

And the following quantities of oats under the contracts made by them January 5, 1865:

January 12 10,336-“

“ 13 43,709“

“ 23 43,7322-1

Feb’y 28. 5, 693-1-

20, 000

March 13 18,750

19,324“

12,384“

“ 24. 15,797

« *u*20,000

*u a*20,000

*a it*8,500

April 13. 21,922la

21,922“

May 15. 9,777ia

*u a*23.279-“

*a u*_ 23.279-1-

_ June 30. 1,456-1-

339,863§£

XIII. On the 1st day of April, 1865, General Allen issued an order forbidding the reception of any more oats after April 10,1865. This order was communicated to. the claimants by the following letter:

Office of Assistant Quartermaster,

*Louisville, April*1,1865.

Gents : I am ordered by General Robert Allen, Oh. Q. M., to receive no grain from any person having either proposals or orders for the delivery of oats or corn after the 10th instant, and I hereby notify you that I will not receive another pound of grain from you after that date.

Very respectfully, your obedient servant,

D. O. De Wolf,

*Cpt. ‡ A. Q. M.*

Messrs. Cobb, Blaisdell & Co., Cairo, III.

XIY. Notwithstanding the letter set forth in finding XIII, the defendants received from the claimants a large amount of *523oats after April 10, I860, as shown by finding XII. Of the purchases set forth in finding XI, the defendants did not take from the claimants 170,344^- bushels, as appears by the following statement:

Whole amount of oats purchased (bushels;. 970,000

Deduct damaged oats 5 per ct. 48,500

*“*amt. of purchases before Jau’y 5, 1865. 173,068^

*“*sales to defendants after Jan’y 5, 1865, under old contracts_... 238,223—

“ sales to defendants after that date, under new contracts..i. 339,863^

799,655Jf

170,344*

XY. The oats which the defendants did not receive, including the rejected and damaged oats, were sent to Memphis and New Orleans, and sold in open market. No account of sales is rendered. If it is competent to prove the price by the average of all sales of the claimants’ said oats, including the rejected oats, it was 37 cents per bushel. If it is competent to prove it by the average of all' sales in- the New Orleans market from April 1 to July 31, 1865, both inclusive, then it was 76 cents a bushel.

XYI. There was no market for the oats at Cairo, and no market price there for the same, in 1865. It does not appear that the claimants did not úse proper care and judgment in sending them to Memphis and New Orleans for sale.

XYII. So far as there was an emergency at the time of the making of the verbal contracts on the 5th January, 1865, it expired on or before the 10th April, 1865; and the notice given to the claimants on the 1st April, 1865, as shown in finding XIII, was a reasonable notice to enable them to ship forage to Cairo from any point where they are shown to have been engaged in making purchases.

XYI1I. It does not appear that the claimants made any claim under the said verbal contracts prior to the presentation of the following claim in January, 1869:

*524*The United States to Coil), Blasdell cf Co., Dr.*

To 970,000 bushels of oats ® $1.05. |1,018,500

Cjr.

By 616,000 bushels of oats ® $1.05, r’c’d and p’d for by ' U. S’... $646,800

*“*proceeds of sale of 354,000 bus. *not*accepted by the U. S. @ 37 cents per bushel. $130,980

--:- $777,780

Balance due. $240, 720

CAIRO, Ill’s, *January 8th,*1869.

To the Quartermaster-General, U. S.:

Messrs. Cobb, Blasdell & Co. pray the payment of the above balance.

They represent that they had the 354,000 bushels on hand when notified that the Government did not want any more oats, and offered to deliver them, but the quartermaster at Cairo refused to take them. They then sold and disposed of them to the highest bidder in good faith, and the above is the result. The quartermasters at Cairo and Saint Louis were willing to take the oats, but their superior officers would not permit.

Cobb, Blasdell & Co.

*Mr. T. D. Lincoln*and *Mr. Enoch Totten*for tbe. claimants:

1. This court will take judicial notice of the general condition of the country and markets, and that in a great emergency, requiring large quantities of grain, it could only be obtained by the sending out agents among the producers scattered over the country, to purchase here and there, as it. could be found, prepared for shipment, and got forward by river and rail, and that this would take very considerable time.

The court will also take judicial notice that the amount of grain that the»armies might require, the extent of the emergency, and when it ceased, could only be known to the military authorities; and, under the agreement, the claimants were authorized to' purchase and hold grain until officially notified that the emergency had ended, as they were to furnish all they could during the emergency ; and that from that time on they would have a reasonable time for delivery. *(Brown*v. *Piper,*91 U. S. Ei., 42; *Moaré*v. Silverloclc, 12 Ad. & EL, 633; *Need-ham*v. Washburn, 7 Off. Graz., 657; *The M. & H. G. Go.*v. *Upton,*6 Off Gaz., 843.)

*5252. The emergency in this case was of the most pressing character, and continued for three months, from, say, the middle of December, 1864, to the middle of March, 1865, and was understood to require a very large amount of grain.

3. It was not until alter the 1st of April that the officers of the United States who had charge of this matter gave any notice that the emergency had passed or that the claimants should stop buying grain, and then the notice was that none would be received after the 10th of April. This notice was dated at Louisville and could not have been received at Cairo before the 3d, and by the claimants’ agents in Indiana and Illinois before the 5th. This- would leave but five to seven days for delivery, and was insufficient.

4. Up to the time of receiving such notice, the parties had a right to suppose that the United States needed the grain, and the claimants, in all fairness, should have had a reasonable time thereafter to deliver the grain purchased to supply the emergency. This the officers connected with the supplying of grain recognized, and the time allowed, under the circumstances, was not reasonable. It was too short, considering the condition of the Illinois Central Railroad, of which the Government had taken military possession.

5. Cobb, Blasdell & Company had purchased and had ready for delivery 970,000 bushels of oats. The United States had received of these 616,000 bushels, leaving of the oats thus purchased for the purpose 354,000 bushels on hand Oats in that year were generally good; and but few were rejected; of those of the claimants not more than 5 per cent, were rejected.

6. Allowing 5 per cent, for rejected-oats, this would be 17,700, which, deducted from 354,000 bushels, would leave 336,300 bushels which were free from objection.

7. It was not necessary that the oats should all be at Cairo, or that they should be tendered. It was enough if the claimants were ready, able, and willing to furnish them within a reasonable time after such notice. *(Oort et ais.*v. *The A., N., &c., Railway Go.,*6 B. L. E., 235,237; *Masterton*v. *Brooklyn,*7 Hill, 75; *Wormer*v. *United. States,*4 O. Cls. R., 268; *Apiernan*v. *Fisher,*44 Md. Rep., 553.)

8. There was no market price for the oats purchased, and they could only be sold at Memphis or- New Orleans, to which places they were sent for a market. The claimants were to use *526reasonable diligence and judgment and do the best they could under the circumstances with the oats. *(Crooks*v. *Moore,*1 Sand. Sup. Ct. B., 303; *Sands*v. *Taylor,*5 Johns. B., 406; *Patten*v. *Le Boy,*30 N. Y. B., 556, 558.)

9. As these oats were thrown back upon the hands of Cobb, Blasdell & Co. at a time and place where there was no market for them, and no fair market price, the claimants were only bound to find the best market for them they could. *(Hughes*v. *United States,*4 C. Cls. B., 74; *Pickering*v. *Par dwell,*21 Wis., 564, 565; *Patten*v. *LeBoy,*30 N. Y. B., 558; *Sands*v. *Taylor,*5 Johns., 405; *Crooks*v. *Moore,*1 Sand. Sup. Ot. B., 303.)

10. There was no market tor any large quantities of oats at Cairo, and they must, therefore, have been sent elsewhere. And Memphis and New Orleans were the usual and proper places to send them to for sale.

11. The amount of the evidence required of a party in any given case will depend upon what might be expected of him under the circumstances and upon the consideration that the opposite party might easily disprove the facts of which there is evidence, if not true, as attempted to be proven. *(Wallace*v. *Harris,*32 Mich., 394; *Blateh*v. *Archer,*Cowp., 65.)

*Mr. John 8. Blair*(with whom was *Mr. Thomas Simons,*the Assistant Attorney-General) for the defendants:

1. It is alleged by claimants that between October, 1864, and May, 1865, they bought 970,000 bushels of oats, 616,000 bushels of which were received and paid for by the defendants, and that the remaining 354,000 they sold at a great loss. > The evidence shows that during the period named we received and paid for $1,008,168 bushels, and the only oats left on their hands was some 350,000 bushels destroyed at Dubuque and other places by reason of the inability or refusal of the Illinois Central Bail-road Company to receive and transport. *(Cobb, Blasdell & Co.*v. *Illinois Central B. B. Co.,*38 Iowa, 601; *Illinois Central B. B. Co.*v. *United States, IQ*O. Cls. B., 312.)

Claimants, by an adroitly-framed leading question, have obtained Currie’s assent to the proposition that claimants’ purchases were to continue until claimants should be notified that the emergency had passed.

The question was objected to at the time; we now insist upon *527tbe objection and ask tbe court to strike tbe answer from tbe record. It would be difficult to find a more flagrant violation of tbe rule of evidence prohibiting leading questions.

Moreover, tbe idea embodied in that part of tbe question nowhere finds expression from tbe mouth of Colonel Currie, and it is inconsistent with every statement of tbe witness in which be was permitted, in bis own language, to narrate what occurred between him and claimants.

2. Did Captain Currie, under section 4 of tbe *Act of July*4, 1864 (13 Stat. L., 396), have authority to make claimants bis purchasing agents, and to bold tbe United States responsible for purchases made by claimants, up to tbe notification that the emergency, bad passed?

Whatever may have been tbe order of tbe commanding officer to Captain Carrie, tbe latter’s power in tbe premises could not be extended beyond tbe statute, and we may assume, for tbe purpose of tbe argument, that Captain Currie was ordered “ to procure such supplies during tbe continuance of such emergency, but no longer, in tbe most expeditious manner, and without advertisement.”

Under some circumstances 'the contract as alleged by claimants might be more expeditious than tbe contract for which we contend. Dealers might be more prompt and more energetic if assured that after tbe emergency bad passed tbe United States would continue to receive supplies for which they bad made subcontracts, but tbe power of the officer to receive terminates with tbe emergency.

3. To procure “supplies” in that statute means to get, to acquire, to obtain, to collect, -to receive tbe supplies themselves, not to secure a chose-in action for supplies which might be enforced in a court. And as Captain Currie’s authority to receive supplies without advertisement had its birth, so it had its death, with the emergency.,

4. The words “ but no longer,” coming immediately after “continuance of such emergency,” are analogous to an exception in an enacting clause, and prevail over any repugnancy which tbe succeeding words may create.

*528OPINION.

Davis, J.,

delivered the opinion of the court:

This is an action to recover damages for breach of an alleged agreement by the defendants to purchase oats of the claimants. The measure of damages sought to be obtained is the difference between the alleged actual sale of the quantity said to have been refused by the defendants, and the contract price, which the petition charges to have been $216,628.

The contract is- alleged' as a verbal contract, made in an emergency, declared such by General Thomas, and the alleged object of the contract was the supply of General Thomas’s army with forage. This emergency and some contracts said to have been made under it were before this court in the cases of *Cobb, Christy & Co.*(7 C. Cls. R., 470); *John A. Thompson et al.*(9 C. Cls. R., 187); *O. P. Cobb*(9 C. Cls. R., 291); and *The Illinois Central Railroad Company*(16 C. Cls. R., 312).

The first question raised at the trial was one which the court had to settle before it could make its findings of fact. The claimants.called as their witness Oapt. William Ourrie, the quartermaster with whom the contract is alleged to have been made, and asked him the following question:

> Interrogatory 3. Please state whether yon had a verbal agreement with claimants in January, 1865, to purchase at various places in Illinois, and ship to Cairo, Illinois, an indefinite number of bushels of oats for the use of the Army of the United States, to meet the emergency you have spoken of, said purchases and shipments to continue until claimants were notified that the emergency had passed; and also, the price; and also, whether claimants entered upon the performance of that agreement, and how far they did perform it; how many bushels of oats they actually delivered and were paid for, and ho *w*many wore purchased within the time of the continuance of the emergency by them, anel offered .to be delivered, but declined by the Government officers.

The counsel for the United States objected to this question at the examination as *“*leading and suggesting its own answer,” and renewed the objection at the trial, coupled with a motion to strike out the interrogatory and answer. *

The objection is sound under the rules for the examination of witnesses in common-law trials, and would doubtless be sustained in a purely common-law court. If the answer to this question were the only evidence touching the contract; or if *529the defendants had no opportunity of cross-examination ; or if the cross-examination had revealed the witness to be what is called a willing witness for the claimants, we might have felt it our duty as a common-law court to grant the motion. On the other hand, reasons which forbid a court to submit evidence thus obtained to a jury have less weight here. Being reluctant to shut up any avenue to truth, and being satisfied that from the cross-examination of Currie and from other evidence taken in connection with the answer to the objected interrogatory we have the substantial truth as to these transactions, in the wide discretion reposed in this court we overrule the motion.

On the findings as settled by this and the other evidence, there are several objections to the claimants’ right of recovery.

1. The alleged excuse for the substitution of a verbal contract in the place of a written contract in the form then and still required by law (12 Stat. L., 411,- B. S., § 3744) is the declaration of the commanding officer of the existence of an emergency. Waiving for the present the question whether the contract in suit was made in that emergency, we will .consider the factá as to the alleged emergency. •

Two acts regulating purchases without advertisements were in force when this contract was made.

1st. The provision in section 10 of chapter 84 of the Acts of the second session of the Thirty-sixth Congress, approved March 2,1861, before the outbreak of the war (12 Stat. L., 220; It. S., § 3709), that—

> When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract at the places and in the manner in -which such articles are usually bought and sold, or such services engaged between individuals.

This was the statute under which the contract in *Speed’s Case*was made (2 C. Cls. R., 429; 8 Wall., 77; 7 C. Cls. R., 93). It is not claimed that the claimants’ contract was made under that authority.

2d. The other provision is found in the fourth section of the *Act of July*4, 1864, ch. 253 (13 Stat. L., 396). It was a temporary power, which ceased with the rebellion, and is not codified. The provision was—

> That when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army or detachment, and when such supplies cannot be procured from any established depot of the Quartermaster’s Department or from the head of the *530division charged with the duty of furnishing such supplies within the required time, then it shall be lawful for the commanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, hut no longer, in the most expeditious manner and without advertisement ; and it shall he the duty of such quartermaster to obey such order; and his accounts for the disbursements of moneys for such supplies shall be accompanied by the order of the commanding officer as aforesaid, or a certified copy of the same, and also by a statement of the particular facts and circumstances, with their dates, constituting such emergency.

This is the act on'which the claimants rest their case. There is no question that it proposes to set aside the stringent provisions respecting advertisements and competition for contracts only ón a written order by the commanding general who is formally to assume this responsibility. The effect of the verbal order of General Thomas was before this court in *Thompson's dase*(9 O. Cls. B., 187), and was disposed of by the court as stated in the syllabus in the report by Judge Nott, who spoke for the court both in the opinion and as official reporter. The syllabus says:

> It is not free from doubt but that under the *Act of July*4, 1864 (13 Stat. L., $ 4, 394), a vendor dealing with a quartermaster is bound to ascertain that the commanding general has exercised the discretion vested in him by the statute relating to procuring supplies in a military emergency, and has signified it by a proper order; but the majority of the court hold that this obligation is not imposed upon the contractor, and that he may rely upon the presumption that the officer with whom he deals is authorized to • make the purchase.

The court as now constituted has carefully considered this ruling, and are unanimously of opinion that it must be reversed in part. It is entirely free from doubt'that the commanding general had no authority to declare an emergency except in writing, and that the declaration by General Thomas being verbal there was ho lawfully-declared emergency in this case. We are of opinion that contractors were equally bound to know this provision of law and this state of facts; and on the authority of *Clark's Case*(95 U. S. R., 539) we hold that while, in the absence of fraud, they could recover on a *quantum meruit*the contract price on the executed part of their contract, they cannot make a contract entered into in violation of law the foundation for a recovery of■ damages for the unexecuted part of it.

2. Thus far we have assumed that the claimants’ alleged contract was made under the verbal declaration of emergency *531leave this fact in grave doubt. They show that in November, 1864, a general concentration of troops under General Thomas began at Nash-' ville, with a view to offensive operations; that about the 1st December large stores of grain which had been collected for the use of this army were burned by the enemy; that General Thomas convened several meetings of his-staff officers, in the course of which, “after consultation with his quartermasters as to what was best to be done,” he gave verbal orders whose “general terms were an urgent demand on the part of General Thomas upon the officers to hurry up the supply of forage; that the supply was limited and there was a pressing necessity for the forage; that about the middle of December, Colonel McKim, the quartermaster at Cincinnati, went to Louisville and consulted with General Allen, the department quartermaster-general; that it was then decided that every possible means must be put in requisition to meet the emergency, and the main dependence was in the Cincinnati depot; that somewhere about the 23d December, 1864, extensive verbal contracts were made by the Cincinnati quartermaster for meeting the emergency; and that on the 2d January, 1865,'ten days later, General Allen telegraphed to Colonel Myers, the quartermaster at Saint Louis: ■

> Cumberland is falling fast. The price must not he an excuse; dispatch is everything. How-much can I count your sending in,the next ten days to Cairo from all quarters t

necessary a judgment for the claimants on this state of facts, we should hesitate before doing it. Before this telegram was sent to Colonel Myers a month had elapsed after the cause of the emergency had taken plane and ceased; ftomtwo to three weeks after the emergency .had been declared by the commanding general had elapsed; a like time after it had been decided to make the main dependence upon the Cincinnati depot; and ten days after contracts had been made Cincinnati for meeting the emergency. It appears by the findings that purchases were going on at Saint Louis in the month of December in the usual way. The claimants themselves made a written contract on the same 5th January for delivery of 200,000 bushels oats, pursuant to an-advertisement dated December 29. This shows that prior to the meet*532ing on the 5th. January the alleged emergency to the Saint Louis purchases. When we reflect that these acts of the parties reveal a contract made on a previous advertisement of seven days, we find some difficulty in extending an emergency created on the 1st December so as to cover contracts made on and after the 5th January, notwithstanding authority of *Cobb’s Case*(9 C. Cls. R., 291) to the contrary.

It is more probable that General Allen, gency, intended to impress upon his subordinates at Saint Louis the importance of preventing another by hurrying- forward supplies to Cairo and from thence to Nashville before the close of transportation, and within ten days; and it is not open to dispute that he required a statement of the amount that was to be forwarded under these orders within the next ten days, and did not contemplate leaving anything indefinite on that head.

As it is not necessary to rest a judgment for the on this point, we content ourselves with pointing out the difficulties which they present to the claimant.

3. Assuming that we are wrong there was an emergency existing at the time when the claimants’ contract was made, and that the claimants were *not*bound to inquire whether that emergency had been declared in the manner provided by the statute, there still remains the question whether it exempted the parties from the operation of the acts requiring contracts to be in writing.

On the 2d June, 1862, Congress a ject is expressed in its title: “An act to prevent and punish fraud on the part of officers intrusted with the 'making of contracts for the Government.” The first provision in this statute was:

> That it shall be the duty of the Secretary of War, of the Secretary of the Navy,* and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them, severally, on behalf of the Government, or by their officers under them, appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof. (T2 Stat. L., 4X1; E. S., § 3744.)

In *Cobb, Christy & Company’s Case*(7 C. Cls. R., 470) it was contended that this statute was mandatory and took effect upon contracts made under a declared emergency. The court did not question that the statute is mandatory in ordinary *533cases, but held that it did not 'apply to contracts made in an emergency and sustained a verbal contract in every respect like the one now in suit.

Since that time *Clark's Case*(95 U. S. R., 539) has been decided by the Supreme Court. In its opinion that court says:

> The Court of Claims lias heretofore held, this act to be mandatory, and as requiring all contracts with the Departments named to be in conformity with it. The arguments by which this view has been enforced by that court are of great weight, and, in our judgment, conclusive. The facility with which the Government may be pillaged by the presentment of claims of the most extraordinary character, if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the Government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the Government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. And we think that the statute in question was intended to operate as such. It makes it unlawful for( contracting officers to make contracts in any other way than by writing, signed by the parties. This is equivalent to prohibiting any other mode of making contracts. ^Every man is supposed to know the law. A party who makes a contract with an officer without having it reduced to writing is knowingly accessory to a violation of duty on his part. Such a party aids in a violation of the law. We are of opinion, therefore, that the contract itself is affected, and must conform to the requirements of the statute until it passes from the observation and control of the party who enters into it. * * * We do not mean to say that where a parol contract has been wholly or partially executed and performed on one side the party performing will not be entitled to recover the fair value of his property or services. On the contrary, we think that he will be entitled to recover such value as upon an implied contract for a *quantum, meruit.*

This course of reasoning is even more applicable to a contract made in an emergency, without the usual safeguards and supervision, than to a contract made in the ordinary course of the business of a Department; and as the Supreme Court except nothing from the operation of the act, but expressly says that its language is equivalent to preventing any other mode of making contracts, we feel ourselves constrained to reverse the former ruling of this court, and hold that a contract like that now set up is invalid as a bisis for the recovery of damages for a breach of performance on the part of the United States.

4. Thus far we have treated the case as if the contract proved *534and set forth in the findings was the contract set forth in the claimants’ petition. The disputed contracts are recited in findings YII and VIII, in the following language:

> By direction of Colonel Myers, Captain Currie called together in liis office at Saint Louis tlie various contractors wlio had theretofore been in the habit of supplying* that department with forage, among whom were the claimants. A memorandum was made of the amount of oats and corn then in the hands of the respective parties, and each party for him or themselves agreed with said Currie to deliver the amount then held by him or them at a price which was fixed for the oats at 98.2 cents per bushel. The following is a copy of that memorandum. The 100,000 bushels of oats therein standing opposite the names of the claimants was delivered and paid for at the contract price.

> St. Louis, Mo., *Jan.*5, 1865.

> We, the undersigned, agree to deliver at Cairo, Illinois, or St. Louis, Mo., the amount of hay, oats, or corn set opposite our respective names, within twenty days from this date, subject to the conditions specified in advertisement of Capt. Wm. Currie, A. Q. M., for hay, oats, and corn, bearing date St. Louis, Mo., Dec. 29, ?64, provided the contracts are awarded.

> We also certify on honor that we have already purchased the amount specified.

> Signatures. Hay, tons. Bushels, Bushels, corn. Place of delivery.

> A. K. Horfclirup. 75, 000

> W. T. Scliew &Co.... 122,000 50, 000

> Judd & Co. 200 15, 000 Corn, Cairo; hay, St. Louis.

> Cobb, Blaisdal & Co... 100,0.00 50, 000

> E. O. Stanard & Co... 35, 000 Cairo and St. Louis.

> Fowler & "Wicker. 25, 000 Cairo.

> C. C. Thompson. 20, 000 10, 000 Oats for St. Louis j corn do. orCairo.

> Holán & Caffrey. 5, 000 10, 000 St. Louis.

> Sells & Co. 10, 000 10, 000 St. Louis.

> H. A. Homeyer & Co . 7,000 35, 000 St. Louis.

> Fenby & Co. 50, 000 25, 000 Bo., or Cairo.

> Alex. Kelsey — -. , 20, 000 Cairo.

> J. Bindley. 300 St. Louis.

> John B. Valle & Co ‘... 50, 000 Cairo.

> -JohnM. Mahan.. 10,000 St. Louis.

> Harmon & Winston... 25,000 Cairo & St. Louis.

> J. M. Eichards. 15, 000 Cairo.

> Colonel Myers informed Captain Currie that the facilities at that season of the year were very much, curtailed by the closing of the upper risers and a reduced amount of supplies, and, in consequence of what they both supposed were the necessities of the case, Currie, liy instruction of Colonel Myers, at the same conference made a further verbal contract with the claimants, and the other parties present at the conference, respectively and severally, for all the grain they could deliver during the emergency. It does not appear that any contemporaneous memorandum of the terms of this agreement was made; nor does it appear to the satisfaction of the court what those terms were; and it appears that the several parties who were *535present at the conference and entered into the identical several agreements are not agreed as to its terms.

> John B. Vail, who was present and took part in the conference, and who agreed to deliver and did deliver hay under the several identical agreements referred to in this finding, had also a written contract for the delivery of hay, and understood the verbal contract to he that he should deliver any additional quantity of hay not included iu the written contract, and receive the price mentioned' in the written agreement, and should continue to deliver until he should receive notice that the defendants did not wish any more.

> A. K. Northrup, who was also, present at said conference and agreed to deliver the 75,000 bushels of oats opposite his name on the memorandum, understood that the contractors were to go ahead and the Government would take all they could buy,4but he did not understand that Captain Currie told them so; and he did not furnish any oats under the contract, not even the 75,000 bushels referred to iu the memorandum.

> Currie understood the agreement to be that he would on behalf of the defendants receive the hay and grain from the various contractors at the depot at Cairo, Ill., in indefinite amounts and until notice to stop delivering should he given, and' at the rate of 98.2 cents per bushel for all the oats so delivered, and that the contractors were to supply all they could during the emergency, but that they were not obliged to furnish all the ■Government might require unless they were able to do it, and the Government was not obliged to take more than it required, and that the contract was .that contractors were to deliver immediately, that is, as fast as it could be delivered, a certain amount of forage and as much more as possible until the emergency had passed, and that the amount which the Government was bound to receive was limited by its necessities.

> The proceedings which the claimants took subsequent to January 5, 1865, is the only evidence of their -understanding of this contract.

Now, it is to be observed in the first place that here are two independent transactions: 1st. The agreement on the part of the claimants to deliver 100,000 bushels, and of other parties to deliver 389,000 bushels of oats within twenty days. This agreement was made in response to General Allen’s telegram to make heavy shipments to Cairo, and asking how much could be sent within the next ten days. 2d. An agreement made not by the direction of General Allen, but by direction of Colonel Myers, in consequence of the supposed necessities of the case, with the claimants and others touching an amount not fixed.

That the second agreement was understood differently by the parties is found as a fact; and the fact is a fresh proof of the wisdom of Congress in forbidding the making of verbal contracts. The fact has also this further significrnce in law— that no contracts, even if permitted by law, could have been made between the two parties, except so far as their minds *536met together. It is reasonably clear from the findings that the minds of the parties never met upon the part of the alleged contract, which is absolutely essential to the claimants’ case, viz, that Currie gave the claimants a roving commission to purchase grain, agreeing to take oft their hands everything they could buy, whether delivered before the expiration of the emergency or not. There are circumstances in the findings which tend to show that the claimants so understood the agreement. There is no doubt that Currie and some of the other parties who entered into a like contract at the same time did not so understand it, and as Currie’s mind and the claimants’ mind never met on this point, there was in law no such contract.

5. Admitting, however, the contract to have been what the claimants contend it was, there was no law authorizing it.

- The Act of July 4, 1864, reorganized the Quartermaster’s Department, and created within it a fifth division, which was to- “ have charge of the purchase, procurement, issue, and disposition of forage and straw for the Army.” Bach word is carefully chosen. “Purchase” covers the contracting; “procuring,” the obtaining and taking into possession; “ issue,” the giving out for use; and “ disposition,’’.the care and custody. Each is a personal trust imposed by statute upon a military officer, and not to be delegated to civilians.

In the general statues regulating contracts there is no indication of a willingness to sanction contracts like that now set up.

The universal practice of the Departments equally fails to furnish precedents for it. Contracts with the Government ifiva-riably specify time and place of delivery, and furnish some measure for the amount to be delivered. We know of no law or no custom which ever authorized a purchasing agent of the Government to clothe a contractor with a roving commission and to agree to take off his hands all he can buy.

6. The claimants’ demand is for their losses on the sales of the grain thrown upon their hands. The evidence of the actual sales is an essential part of the proof of those losses. Such evidence is not furnished. Their case is open to so many objections before reaching this question that we do not think it necessary to consider whether we should be justified in giving judgment against the defendants on the general facts as to average prices set forth in the findings.

The judgment of the court is that the claimants’ petition be dismissed.