#### SMOOT & SPICER'S CASES. Samuel S. Smoot, appellee, *v.*The United States, appellants; John Spicer, appellee, *v.*The Same.

(5 Court of Claims R., p. 490; Id., p. 34; 15 Wallace R., p. 36; Id., p. 51.)

*On the defendants’ Appeal.*

*A parly agrees to deliver*1,000 *cavalry horses within forty days at the Government stables in Chicago ; to be inspected without unnecessary delay ; those rejected ■to be removed within one day after the contractor he notified. Subsequently, but before the time specified for performance expires, the Quartermaster Department orders a new system of inspection, which provides that the horses shall be detained*“at least,twenty-l'our hours before inspecting them,” “at the expense of contractors.” *Those which the inspectors regardas “*an attempt at fraud on the Government,” *to be “*branded on the left shoulder with the letter R.” *At the time of 'making the contract the custom is for contractors to furnish horses through sub-contraetors, who retain possession and control of their horses till acceptance or rejection by the inspectors. As'the new system subjects the horses to indefinite detention, the danger of contracting contagious diseases, and of being permanently defaced at the discretion of Governmenthorse-inspectors, and throws the cost of keeping upon the owner, all sub-contraetors refuse to deliver subject to it. The Chief of the Cavalry Bureau is requested to suspend the order and allow inspection according to the custom prevailing when the contract ivas made. The Chief refuses to suspend, and the contractor refuses to deliver under the new system, for which he is arrested and imprisoned by the military authorities. He brings his action for abreachofthe contract. The Court of Claims decides that so long as the ■ Chief refused to suspend the order, the assistant quartermasters had no right to accept horses otherwise than upon the terms of the new inspection; that the contractor then had no right to increase the damages by buying and tendering horses; and that the order of inspection, coupled with the Chiefs refusal to suspend it, constituted a renunciation of the contract, for which the contractor should recover. Judgment for the claimants. The defendants appeal.*

I. In a contract for the future delivery of personal chattels, delivery being a *97condition-precedent to payment, a new system, of inspection adopted by the Government, which directly prevents the contractor from filling the contract through sub-contractors according to the custom prevailing when, the contract was made, is merely an inconvenience which will not relieve him from performing, nor he held such a breach on the part of the Government as will entitle him to recover damages.

II. A rule of Government inspection, adopted subsequent to a contract for the purchase of cavalry horses, which requires that the horses shall remain “ *at least twenty-four hours”*in the inspection-yards *“ at the expense of the contractor,”*and that horses which are regarded by the inspectors as *“an attempt at fraudon the Government”*shall be *“branded on the shoulder with the letter JR,”*does not amount to a renunciation of the contract which will relieve the contractor from making a formal tender, although he attends at the place and within the time specified for delivery, ready and willing to perform, and the new order is then and there in force, he also applying to the proper officers to suspend it and allow him to deliver under the old rules of inspection, and they refusing. To maintain an action for the defendant’s breach in not allowing the contractor to perform according to the tenor of the contract, he should have made a formal tender.

III. The declarations of the Chief of the Cavalry Bureau, (a bureau established by the War Department, having charge of the purchase of horses,) that he will not suspend certain new rules for inspection, but will require his assistant quartermasters to apply them to a party seeking to deliver under an antecedent contract, bind nobody. The contractor should tender the horses and test the action which the officers of the Government will take.

IV.The principles which must govern the liability of the Government in an action against it for breach of contract are the same as if the contract were between individuals.

*The Reporters’*statement of the case:

The material part of the contract which was the foundation of the action; of the new order of inspection, which constituted the breach, and of the facts found by the court below in relation to the course pursued by the parties, are given below.

The contract provided:

First. That the said Samuel S. Smoot shall have delivered at the Government stables, in Saint Louis, Missouri, by or before the 16th day of March next, the following-named cavalry horses, to wit, &e., &c.

Fourth. It is agreed that the *horses■,*upon being delivered, shall be examined and inspected without unnecessary delay, by a p'erson or persons appointed by the United States, and after such inspectors shall have certified that they are in all respects as contracted for, and fully equal to the specifications aforesaid, *98they shall be received and become the property of the United States; and all such horses as may be condemned and rejected by said inspectors shall be removed from the Government stables within one (1) day after the contractor shall have been notified of said rejection.

The order of inspection provided:

Hereafter inspectors of horses, acting under instructions from this bureau, will be governed by the following regulations:

1. The senior inspector will cause the horses furnished under each contract to be placed in the inspection-yard at least twenty-four hours before inspecting them.

2. All horses presented that are manifestly an attempt at fraud on the Government, because of incurable diseases or any purposely concealed defect whatever, shall be branded on the left shoulder with the letter E.

3. Horses that are rejected for being under age, in poor condition, or temporarily injured by transportation or otherwise, shall be lightly branded on the front part of the forehoof, near the coronet, with the letter E, not to exceed in length three-fourths of an inch. Should any horse thus marked become fit for service before the expiration of one month, he may be again presented for inspection,-provided the contractor, before presenting him, shall notify the inspector or inspectors of the fact. Inspectors will be particularly careful in making these re-inspections, and any horse once rejected, that is presented without the required warning, shall be considered as an attempt at fraud upon the Government and be treated as prescribed in paragraph 2.

5. When horses are doubtful, before branding, they may be kept three or four days, under guard, at the expense of the contractor, be again rigidly examined, and then finally disposed of in accordance with the foregoing rules. No mares will be accepted.

10. Horses will be fed at the expense of the contractors till they have been.branded and accepted.

The Court of Claims made the fellowing findings of fact:

L The claimant, on the 5th February, 1864, at the city of Washington, entered into an agreement with Captain James A. Ekin, chief quartermaster of the Cavalry Bureau, a bureau of the War Department, for the sale of 2,500 cavalry horses af . Saint Louis, Missouri, being the contract set forth and declared *99upon in the petition. The defendants, by their officer, the Chief of the Cavalry Bureau, shortly afterward issued the order dated February 5,1864, annexed to and forming part of the. petition. The order was promulgated at Saint Louis on pr before the 1st March, 1864, but the inspection of cavalry horses, which itrequired, was not enforced at SaintLouis as against contractors holding prior contracts. The claimant had knowledge of the order, and was thereby led to believe that the defendants’ quartermasters, at Saint Louis, would require and exact the inspection of horses which it enjoined and prescribed, but the claimant did not attempt to perform under his contract at Saint Louis, nor tender the horses for inspection, nor apply to the defendants’ officers to suspend the operation of the order at Saint Louis in order that he might perform, nor did he own or transport any horses to Saint Louis, nor was he ready to perform at that point. '

II. The claimant also entered into the second contract with defendants’ quartermaster, set forth and declared upon in the petition for the sale of 2,000 cavalry horses, at Chicago, Illinois, dated the 5th February, 1864. The order requiring a new inspection of horses, issued by the chief of the Cavalry Bureau, was promulgated and enforced at Chicago on or about the 1st March following, and the defendants’ quartermasters at that point were forbidden to receive or accept horses on all contracts unless subjected to the inspection which the order prescribed. And the chief of the Cavalry’Bureau, then being in Chicago, was applied to by various contractors to waive or suspend the new inspection required in favor of prior _ contractors, all of which applications he refused. The claimant proceeded to Chicago, by his agents, and was able and willing to perform by delivering the horses within the time prescribed by the contract, subject to the inspection by the contract prescribed, but was unwilling to deliver any horses subject to the inspection required by the order. The claimant did not possess any horses in Chicago, nor tender any to the defendants’ quartermasters at that place, nor apply to the chief of the Cavalry Bureau to waive the inspection ordered; but the claimant possessed ample time and means for procuring horses and fulfilling the contract, and he regarded the order as a renunciation by the defendants of their agreement, and he had knowledge of the refusals of the chief of the Cavalry Bureau to waive the inspection or suspend the operation of the order against prior contractors.

*100III. The fair profits which the claimant would have made on the 2,000 horses to be delivered at Chicago, if he had been allowed to perform according to the terms of his contract, would have been the sum of $10 a horse.

IY. At the time these contracts were entered into, and long prior thereto, the mode of inspection for horses purchased by the Government had been for the horses to be presented and immediately examined in the presence of the o.wner, and if satisfactory they were accepted, and if unsatisfactory they were immediately returned to the contractor without delay, expense, or blemish.

Y. At the time the contracts were entered into, and for a long time prior thereto, the usual course of business in filing contracts of this kind had been for the contractor to buy his horses, subject to the Government inspection. One effect of • the order for a new mode of inspection was to create a change in this course of business, and thereafter no horses could be purchased by contractors subject to this new inspection. Another effect of this order was to impose upon the contractor considerable risk while the horses were in the custody of the inspector, being injured by kicks and bruises, and incurring contagious diseases, and the identity of the animals being lost by being mingled with other lots, so that in the event of rejection the same animals could not be returned; besides the expense of keeping the animals, and the injury which might occur from the rejecting brand. The effect of branding a rejected horse, as prescribed in the new order of inspection, would be to greatly lessen his market value.,,

YI. The claimant, during the existence of the contracts, was possessed of sufficient means and credit to comply with the stipulations on his part, and, by his agents, proceeded to Chicago and other parts of the western country to make the necessary arrangements for that purpose, and did make all , necessary arrangements, excepting the actual procuring of the horses.

YÍÍ. Upon ascertaining the effect produced by the new order of inspection, the claimant caused application to be made at the office of the Bureau of Cavalry, in Washington, for a modification of this order, and repeatedly offered to go on and fill the contracts if the objectionable features of this order *101should be removed. The chief of the Bureau was then absent; the next officer in rank referred the matter to the chief, who was expected to be in Chicago soon to decide the matter there. General Wilson, the chief of the cavalry, did soon after arrive in Chicago, and the matter was presented to him by several other contractors who were in the same position as claimant, and General Wilson decided not to revoke or modify the order. The claimant, or his agent, did not see General Wilson in Chicago, but his decision was communicated to the claimant.

*The Attorney General*(with whom was *Mr. Assistant Attorney-General MeMiehael)*relied upon the decision of the Supreme Court in *Wormer’s Case,*(7 C. Ols. B., p. 257.)

*Mr. B. F. Butler*for the claimants, appellees:

Smoot made a contract with the United States to deliver horses to be inspected under his personal supervision at once, which he was obliged to take away within one day, according to a well-known practice, custom, and order of inspection used by the Government for a long period, in reference to which the contract was made. This inspection enabled him to buy horses of their owners subject to inspection ; he was able, willing, and desirous of fulfilling that contract so made, and made his arrangements and incurred expenses for that purpose, and he has always remained so — willing and desirous of fulfilling the contract. After he entered into the contract, the Government issued an order of inspection, which imposed upon him new and onerous conditions, and made changes in his contract, which are found in fact to have prevented his fulfilling the contract, and, indeed, it was *impossible for Mm to fulfill the con-traet under them.*They imposed on him the necessity and expense of subsisting the horses four days; to leave them in the Government corral, mixed with other horses for that time, exposed to disease, exposed to injury by kicks and otherwise in a ' drove with thousands of other horses; to the liability of not being able to receive back the same animals in case of rejection. When received back, to have every one, that, from any accident occurring in transportation, or. not in the view of the inspector coming up to certain conditions, branded on the forefoot' with an “B.” In case a horse was found incurably diseased, or, in the judgment of the inspector, there was any purposely con*102cealed defect, then the horse was to be branded on the shoulder with an “B,” with a hot iron, thereby rendered sore and lame, so that the contractor could not return him in the same condition in which he took him from the person of whom he purchased. Thus, at the will or caprice of an inspector, the animal was to be branded as a fraud, and the contractor of the animal condemned *ex parte*as a defrauder of the Government. If, from any cause, being out of condition, or from accident in transportation, the horse was not at first accepted, and the brand on the foot was not observed by the inspector, although the horse might afterward be brought to a perfect condition, every other inspector in the United States was to brand that horse when presented again, even if the foot-brancl was unknown to the contractor,- as a fraud, and the contractor as a defrauder.

The case finds that Smoot applied to the War Department for a modification of this order, promulgated after his contract was executed, and not brought to his'knowledge until twenty-three days out of the forty in which he was to deliver his horses had elapsed, during which time he was collecting them.

The new order of inspection rejected *mares,*although the contract made no such exception, calling for horses only.

Smoot applied to the War Department to modify the order, and was referred to the chief of the Cavalry Bureau, at Chicago, and there was met with the information that the chief of the Cavalry Bureau, in case of other contractors, had refused to modify that order.

The question, therefore, submitted to the court is, whether this order of the Government, thus onerous, impracticable of execution, as shown by the facts, and found as a fact to render the performance of the contract impossible by Smoot, is, in law, a breach of the contract on the part of the Government, so as to render the United States liable for such damages as may be proved to be sustained by the contractor, which the court have found to be $20,000 — a small amount upon a contract which calls for an expenditure of $247,500, *nearly a quarter of a million dollars*— 8 per cent, only of that amount. There needs neither citation of authorities nor argument to prove that if one party to a contract, by his own act, interposes and enforces onerous conditions upon the manner of the performance of a contract not contemplated by the other party *103thereto at its inception, and refuses to permit its performance unless those conditions are complied with, that a breach of the contract is thus made by the party so refusing, and he is liable to the party capable and willing to perform on his part, not only for all that he has lost in attempting to perform, but for all the fair profits he would have made in its performance. Neither the Government nor an individual can be permitted to alter any essential element of a contract after it has been entered into *a fortiori,*when, as it is found as in the case at bar, the conditions so imposed render the performance of the contract impossible. ‘‘And thereafter no horses could be purchased by the contractors subject to this new inspection.”

These findings of fact as to the onerous nature of the imposed conditions, which are wholly overlooked by the Attorney-General in his brief, entirely distinguish this case from *Wor-mer’s Case*cited by him. In that case but two facts were found bearing on this point: First, the contract $ second, the order of inspection. It did not appear that, by the new order, there had been any substantial change from the former custom and practice of the Government in the inspection of horses, or that the changes, if any had been made, bore onerously on the contractors. It will be found that the War Department , decided the contract to be an unreasonable one in fact. (See opinion of Judge Advocate General Holt.)

“ The receipt of horses, under the new regulations, at the depot in Chicago fell off from an average of thirty-two hundred horses a month to twenty-two only in the month of February,” *i. e.,*after the order was promulgated. * ***# * “ The accused was prevented from the performance of his contract, in great part at least, by the action of Government officials, which they were mistaken in supposing was warranted by law.” * * * # “ The inspector who had ventured to brand as directed, or the superior who so ordered, would have been liable tb an action at common law if it were without the consent of the owner; and the Government cannot force a contractor to deliver his property up to be subjected to a wrong. The circular not only introduced new conditions into the agreement, but unlawful conditions.”

Mr. Justice Miller

delivered the opinion of the court:

These are cross appeals from the judgment of the Court of Claims.

*104Mr. Smoot claims of the United States a large sum of money for the profits which he might have made out of two contracts with Quartermaster Eakin, for delivering cavalry horses for the use of the army — two thousand five hundred at Saint Louis and two thousand at Chicago. It is neither alleged nor proved that he ever tendered a horse at either place, or attempted otherwise to perform his contract, or that he was ready to do so, or that he owned any horses, or had expended a dollar in preparing to fulfill his contract. The proposition on which claimant; rests his right to these speculative profits is not on account of anything he had done, or offered to do toward performance, or any actual loss suffered, but that after the contract was made, the Cavalry Bureau of the War Department adopted and published rules governing the inspection of horses purchased for that service, differing from those in use at the time the contraet was made. It is not asserted that these rules required a higher or more difficult standard of quality iit the horses, but that the mode in which that standard was to be ascertained was so changed as to impose a greater hardship, or burden, upon the contractor. Nor is it claimed that these new regulations were adopted with special reference to their application to Smoot’s contracts. They were a new regulation of the business of inspection of a general character. The contracts sued on, which are identical, except in the number of horses and the place of delivery, provided for an inspection j but it is argued that the new regulations were not only a departure from those in use when the contracts were made, and imposed an additional burden on the contractor, but that, conceding the right of the Bureau to make *proper*and reasonable regulations for inspection, these were unreasonable and improper. The two points of difference in the new and the old mode of inspection most earnestly pressed in the argument are:

1. That by the new regulations the horses offered must remain at the expense of the contractor twenty-four hours in the inspection-yard, into which no other person than the inspector and his assistants shall be permitted to enter until the inspection is completed.

2. That all horses presented for inspection that are manifestly an attempt at fraud on the Government, because of in*105curable disease, or any purposely concealed defect whatever, shall be branded on the left shoulder with the letter E.

The argument founded on these rules is presented under two propositions: .

1. That the adoption of them by the Cavalry Bureau rendered it impossible for the contractor to perform his contract, because no owner of horses would sell to him subject to have them branded as a fraud by inspectors of whom he knew nothing, and who might be incompetent or oppressive.

2. That the application of these rules to horses tendered under claimant’s contract abs 'lved him from the obligation of performance, or tender, or offer to perform, and left him at full liberty to sue for the profits which he had done nothing to earn beyond making the contract.

There is in a large class of cases coming before us from the Court of Claims a constant and ever-recurring attempt to apply to contracts made by the Government, and to give to its action under such contracts, a construction and an effect quite different from those which courts of justice are accustomed to apply,to contracts between individuals. There arises in the mind of parties and counsel interested for the individual against the United States a sense of the power and resources of this great Government, prompting appeals to its magnanimity and generosity, to abstract ideas of equity, coloring even the closest legal argument. These are addressed in vain to this court. Their proper theater is the halls of Congress, for that branch of the Government has limited the jurisdiction of the Court of Claims to cases arising out of contracts expressed or implied— contracts to which the United States is a party in the same sense in which an individual might be, and to which the ordinary principles of contracts must and should apply.

It would be very dangerous, indeed, to the best interests of the Government — it would probably lead to the speedy abolition of the Court of Claims itself — if, adopting the views so eloquently urged by counsel, that court, or this, should depart from the plain rule laid down above, and render decrees on the crude notions of the judges of what is or would be morally right between the Government and the individual.

In illustration of this course of observation the proposition that the regulation concerning branding the horses fraudulently *106presented for inspection made it impossible for the contractor to perform bis contract, may be well cited.

As between individuals, the impossibility which releases a man from the obligation to perform his contract must be a real impossibility, and not a mere inconvenience. And while such an impossibility may release the party from liability to suit for non-performance, it does not stand for performance so as to enable the party to sue and recover as if he had performed.

The argument on this branch of the subject in the case before us loses sight of these principles.

There was no impossibility. It is a mere inconvenience. If the contractor has the money and purchases his horses before he offers them for inspection, there is presented no obstruction whatever, by the rules of inspection, in obtaining tbe required number of horses. It is only because he desires to transfer the risk and loss of rejection from himself to the parties of whom he purchases, that he has difficulty. The Government made no agreement with him to protect him in this way. His ability to buy horses that would pass inspection was a part of the responsibility that he assumed, and which it was by no means impossible to perform, if he had the money and was ready to pay when he bought the horses of their original owners. Certainly no such circumstance as this would be set up for a moment in an ordinary suit between individuals as an impossibility, which released the party from his contract.

But suppose the contract had been between private parties, and an epidemic had prostrated every horse in the country with disease for the forty days allowed to buy and deliver sound horses by this contract, will any one assert that this would authorize the contractor to sue for the profits he could have made if no epidemic had occurred, though he neither then or afterward bought, or delivered, or tendered a horse 1 While such a public misfortune might possibly (we do not say it would)' have been a defense to a suit against him for nonperformance, it could be the foundation of no claim on his part to recover as if he had performed.

Perhaps no class of contracts has been more frequently the subject of judicial consideration than those for the future delivery of personal chattels. Such a contract is this. A contract in which the delivery is a condition-precedent to. payment; for the provision is that the delivery is to be at Chicago and *107Saint Louis, and the payment made afterward at Washington; and the time of payment is expressly made dependent upon appropriations made or to be made by Congress.

In approaching the inquiry into the effect which the action of the Bureau of Cavalry, in adopting these new rules for inspection had upon the rights of the parties to this contract, let us endeavor to free .ourselves from the consideration that the Government was one party to the contract, and that it was for a large number of horses; for we hold it to be clear that the principles which must govern the inquiry are the same as if the contract were between individuals, and the number of horses one or a dozen instead of four thousand. The increased diidculty arising from the number to be delivered in a given time was voluntarily assumed by the contractor, and he had the right, during the forty or fifty days allowed him, to deliver any number, smaller or greater, at one time.

We are also to remember that the question to be considered is not whether the action of the Cavalry Bureau would have been a defense if the claimant had been sued for a failure to perform his part of the contract, but whether it was sufficient to authorize him to abandon the contract himself, and as a plaintiff recover against the other party the profits which he would have, made if it had been fully performed.

With these views before us the regulations adopted can only have the effect claimed upon one or two grounds, namely, as a notification by the Government that it refused to receive the horses according to the t,erms of the contract, by which refusal the other party was released from his obligation to tender; or, that the Government had disabled itself from- complying, and therefore the other party was not bound to tender. The most recent wort, and a very able one, on “ Tlie law of sales of personal property,” lays down the rule on this subject as follows: *11A*mere assertion that the party will be unable or will refuse to perform his contract is not sufficient, it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterward continue to urge or demand a compliance with the contract, it is plain that he does not understand it to be at an end.” (Benjamin on Sales, 424.) The English cases cited abundantly sustain the proposition. *Avery*v. *Bowdin,*in the Exchequer Court, (5 Ellis & Blackburn, *108714,) affirmed iu the Exchequer Chamber, (6 Ellis & Blackburn, 593,) is very much in point. It was an action arising out of a charter-party, one of the covenants in which was that the vessel-should be at Odessa, and lay there forty running days, within which time the shipper was to furnish her cargo, unless war should be sooner declared between Russia and Great Britain. The vessel came to Odessa on the 11th' March, and sailed away in ballast on the 17th April. It was proved that at four different times during this period the officers of the ship applied to the agent of the charterer for cargo, who said, “We have none for you,” and at last said, “ I have no cargo for you; you had-better go away.”

On this testimony a verdict was taken for the plaintiff, the ship-owner, subject to the judgment of the court on the law of the case. The judges, both in the Exchequer Court and in the Exchequer Chamber, were unanimous in the opinion that this .conduct of the agent did not relieve the plaintiff from the obligation to remain the forty days, and that on that count he could not recover.

In the case of *Philpotts*v. *Evans,*(5 Meeson & Welsby, 475,) the defendant, who had agreed to • receive and pay for wheat, notified the plaintiff, before the time of delivery, that he would not receive it. The plaintiff tendered the wheat at the proper time, and the only question raised was, whether the measure of damages should be governed by the price of wheat at the time of the notice or at the time of the tender. Baron Parke said: “ I think no action would have lain for the breach of the contract at the time of the notice, but that plaintiff was bound to wait until the time of delivery to see whether the defendant would then receive it. The defendant might have chosen to take it, and would ha've been guilty of no breach of contract. His contract was not broken by his previous declaration that he would not accept.”

And though some of the judges in the subsequent case of *Hochsteter*v. *Latour*disapprove very properly of the extreme ground taken by Baron Parke, they all agree that the refusal to accept, on the part of defendant in such case, must be absolute and unequivocal, and must have been- acted on by the plaintiff.'

In the case before us there was no such refusal. The officers of the Government required of the plaintiff at all times the delivery of the horses of the kind and quality which he had agreed *109to deliver. And so far from refusing to accept, or intending to release plaintiff from bis obligation to deliver, it is found as a fact in the case that he was arrested and imprisoned by the military authorities for refusing to deliver the horses.

Nor can it be maintained that those regulations disabled the Government from performing its contract. They were just as ready to accept and as able to pay for the horses, notwithstanding the regulation. It may be said that the regulation tied the hands of the Government officers so that they could only accept horses inspected under it, and that to such inspection plaintiff was not bound to submit. But to this proposition the remark of Baron Parke is peculiarly applicable. The Government was not bound to apply to horses furnished under a previous contract these subsequent regulations. They were general in their terms, and were not adopted with a special view to these contracts. And the declarations of certain officers, that they would be governed by them, bound nobody, The correctness of this view is strikingly illustrated in this case, for the Court of Claims finds that the officers receiving cavalry horses at Saint Louis did receive horses on all contracts made previous to the adoption of the new regulations under the old mode of inspection, and did not apply to them the objectionable rules, and for that reason they reject Smoot’s claim as to the contract to deliver at Saint Louis.

We think it was equally his duty to have tendered horses at Chicago, and if the new regulations would have relieved him at all from that duty it would have been after he had made a tender, and objected to the application of the new rule of inspection, and the proper officer had refused to receive the horses without subjecting them to those rules. Until then, he could not justly claim that the Government had violated its contract.

In Mr. Smoot’s case, he never had any declaration made to him or his agent, from any one in charge of the execution of those contracts on the part of the Government, that the rule would be applied to him or his contract. He accepted and acted upon declarations made to other parties and not to himself.

We do not, however, believe that this would have varied the matter. It would have been no great hardship for him to have so far attempted compliance with his contract as to have tendered 20 or 50 horses under it, and tested the action *110which the Government officers would take when he was thus attempting to fulfill his contract and objecting to the application' of the new rule. Then the officers of the Government would have been legally called on to determine whether they would apply them or not. Until that time they were under no obligation, and had no right to commit themselves or others irrevocably on that subject.

On these grounds we think that claimant had no right to recover on either of the contracts sued on. It follows that the judgment of the Court of Claims in favor of Smoot on the Chicago contract is reversed, and the case remanded for judgment in favor of the United States; and the judgment of that Court on the Saint Louis contract, the subject of the appeal by Smoot, is affirmed.

The principles here announced must govern the case of the *United States*against *Spicer,*and require its reversal, and it is accordingly reversed, with directions to the Court of Claims to render judgment in favor of the United States.