#### Henry D. McKinney *v.*The United States.

*On the Proofs.*

*Claimant contracts with am assistant quartermaster, on the 21th day of December, 186Í, without previous advertisement, to deliver before the 1st day of May,*1865, *at a point on the banlcs of the Cumberland, Diver within twenty five miles of Nashville, Tennessee, ten thousand cords of xoood. The contract is approved by the chief quartermaster of the department. A portion of the %vood is delivered and paid for, when, on account of the overflow of the river, i,tis dangerous to pile wood on its banlcs, and he is ordered to deliver no more. The claimant is ready to deliver the balance of the wood in fulfilment of the contract upon the*lsi *of May,*1865. *When the waters of the river subside he is ordered to resume the delivery of the wood, but before completing his contract he is ordered to deliver no more, as the necessity for the same has ceased. Claimant is paid for th e ivood delivered before the overflowing of the river, which payment he receives under protest, and claims in this suit damages for theviolation of his contract.*

I. A contract made without advertisement for a future supply of wood for the use of the army is within the prohibition of the *Act March 2,*1861, (12 Stat. L., p. 220, § 10,) and is therefore void.

II. A contract made by an assistant quartermaster to meet an exigency is void, unless ordered by the commanding general, as provided by the *Act June*2,1862, (12 Stat. L., p. 411.)

*Messrs. Bartley & Stanton*for claimant:

This claim is founded on a written contract entered into by the claimant and George B. Hibbard, captain and assistant quartermaster, on the part of the United States, on the 24th day of December, 1864, for the breach of which the claimant has brought his suit in this court by original petition.

By the terms of this contract, which is set out in the petition, and properly certified, the claimant engaged to deliver at a point on the bank of the Cumberland Biver, within twenty-five miles of Nashville, Tennessee, on or before the 1st day of May, 1865, ten thousand cords of good, merchantable hard wood, subject, &e., for which he was to receive the price of six dollars for each and every cord delivered.

Prior to March 1, 1865, the claimant had delivered three thousand seven hundred cords of wood, and was fully paid for the same in pursuance of the contract.

*538The claimant had also cut the remaining six thousand three hundred cords of wood and was ready to deliver the same in strict conformity with the terms of the contract 5 but, on account of a great freshet in the Cumberland River, which had swept away many thousand cords of wood belonging to the government, it was deemed prudent to instruct the claimant to delay the delivery of the wood on the river bank until the waters should subside.

Subsequently, about the 20th of May, 1865, claimant and other contractors were notified to proceed aud complete the delivery of wood under their contracts. Under this order the claimant did proceed, and on or before the 8th day of June, 1865, had delivered about five thousand cords on the river bank. After the delivery of this quantity, the officers in charge refused to receive it or any further supplies under the contract, and notified all parties to this effect.

These facts are not disputed.

About one year after the delivery of the five thousand cords above mentioned it was measured by two government employés, under orders of the quartermaster’s department, at Nashville, Tennessee, and found to contain four thousand eight hundred and forty-four and eleven-sixteenths cords of wood. The discrepancy may be accounted for by the shrinkage, settling, and frequent calls of passing steamboats.

Under these circumstances the claimant demanded payment according to the terms of his contract for four thousand eight hundred and forty-four and eleven sixteenths cords of wood at six dollars per cord, amounting $29,068 12, and also for the rest of the wood, one thousand four hundred and fifty-five and five-sixteenths cords, less the cost of hauling, ranking, &c. He shows that it would have cost him about one dollar and forty cents per cord to deliver the wood, which would leave four dollars and sixty cents per cord as the amount to which he is entitled under his contract. One thousand four hundred and fifty-five and five-sixteenths cords at this price will make the sum of $6,694 44, which, added to the contract value of the wood delivered, amounts to $35,762 56. This was the amount claimed.

But the Second Comptroller and Third Auditor of the Treasury refused to settle the claim on this basis; on the contrary, they repudiated the contract as the rule of compensation, and *539insisted tbat tliey had no jurisdiction, except to allow the actual expenses of the contractor in delivering that part of the wood which was placed on the bank of the river, refusing altogether to make any allowance for that part Of the wood which was ready but not actually delivered.

Whatever may be thought of the position thus taken by the accounting officers of the Treasury as to their oto power and jurisdiction in the premises, it is certain that the rule adopted is not in accordance with the general principles of law, nor with the decisions of this court in similar cases. See *Moore and Boiee’s*Gase, 1 0. Cls. It., p. 90; *McKee’s Gase, id.,*p. 336; *W. D. Mann’s Gase,*3 *id.,*p. 404.

It is not believed to be necessary to make any argument or to quote any authorities in support of this position.

*The Assistant Attorney General*for the defendants:

On the 24th of December, 1864, Captain George B. Hibbard, assistant quartermaster, entered into a written contract with the claimant for ten thousand cords of wood, at six dollars per cord, the delivery (on the bank of the Cumberland Biver within twenty-ñve miles of Nashville, Tennessee) to commence on or before the 1st of March, 1865, and all to be delivered before the 1st of May, 1865 ; ñve thousand cords were delivered and paid for before April 15,1865. The delivery of the residue was suspended, by reason of high water, until after the 1st of May; but afterwards, and about the 20th May, the claimant was permitted to go on and complete the delivery. He did place the wood on the river bank, but it was not received.

The claimant presented his claim for the full price of the wood to the Quartermaster Department, which was not allowed; but he was allowed and paid the actual expenses incurred in cutting and delivering the wood, viz., $24,221, or four dollars eighty-five and one-half cents per cord, less one dollar per cord for the wood not delivered. The claimant then sold the five thousand cords left on his hands at public auction at twenty-two cents per cord; and he now sues for the difference between the contract price of the wood and the amount received, less the sum realized by the sale of the wood.

I. The contract was unauthorized and therefore invalid. *Act of March*2,1861,12 Stat. L., p. 220, § 10; *Act of July*4,1864, 13 Stat. L., p. 395, § 2.

*540Tbe public exigency which, under the act of March 2, 1861, will authorize an open purchase without inviting competition by advertising must be a present and not a prospective state of things.

II. The contract being unauthorized and illegal, the claimant’s case stands exactly as though it had never had any existence, and the government cannot be held responsible for wood it never received or used. The payment for such wood, or for expenses incurred in getting it out, by the department was without warrant, of law.

The claimant has no legal claim against the government; and, as he has been reimbursed his expenses, he can have no claim in equity. . •

Loring, J.,

delivered the opinion of the court:

The petitioner claims damages for the breach of a contract, and the court find the facts to be — -

That on the 24th day of December, 1864, a contract was made between G-. 13. Hibbard, assistant quartermaster, in behalf of the United States, of the first part, and the claimant, of the second part, as follows:

> “First. That the said H. D. McKinney shall deliver at a point on the bant of the Cumberland Kiver, within twenty-five miles of Nashville, Tennessee, on or before the first day of May, 1865, ten thousand cords of good merchantable hard wood, (10,000,) said wood tobe subject to inspection by a United States government inspector, to be inspected and received by the government whenever five hundred cords shall be delivered as above stated, or as soon thereafter as possible. The delivery to commence on or before the first day of March, 1865, and at least -to be delivered before the-day of-, 1865, and *all*before the first day of May, 1865.”

Under this contract the claimant cut and delivered and was paid for 3,700 cords of wood, and in March and April, 1865, the overflow of the waters of the Cumberland Kiver making it dangerous to jále wood on its banks, he was ordered by the Quartermaster Department to deliver no more wood on the contract till the waters had subsided. The petitioner proceeded in preparing for the fulfilment of his contract, and was ready to deliver the balance of the wood before the first of May, 1865.

*541That on or about tbe 20tb of May, 1865, tbe waters of tbe river baying subsided, be was ordered by tbe Quartermaster Department to resume tbe deliveries of tbe wood under tbe contract, and in obedience thereto be delivered 4,844iA cords on tbe banks of tbe river.

On or about tbe 20tb of June, 1865, tbe claimant was directed by General Donaldson, Chief Quartermaster of tbe Department of tbe Cumberland, to deliver no more wood, because the operations of tbe government there and its need for woodkad ceased, and tbe 4,844ii cords of wood delivered on tbebanks of tbe river, and tbe balance of tbe wood for tbe fulfilment of tbe contract then cut, was not used or paid for by tbe government, but was left on tbe bands of tbe claimant.

The.claimant afterward presented bis claim to tbe Quartermaster General, who allowed him thereupon, as tbe estimated amount of tbe expenses incurred, tbe sum of $23,964 47, less tbe supposed value of tbe 4,844}1 cords of wood delivered as aforesaid, amounting, at one dollar per cord, to $4,844 69, and tbe balance of $19,119 78 was paid by tbe United States to tbe . claimant and received by him under protest against its inadequacy and injustice.

Tbe claimant then sold tbe 4,844ii cords of wood above mentioned for tbe sum of $1,211, which was at tbe market price at that time of wood so placed, and that obtained on sales made by tbe government on advertisement. Tbe withdrawal of tbe army from that vicinity, and large quantities of wood thrown upon tbe market by tbe government, bad reduced tbe price of wood on tbe banks of tbe river to tbe cost of getting it to market.

Tbe balance of tbe wood required for tbe fulfilment of the contract, viz: 1,485^, was cut, but not hauled to tbe river bank, and tbe expenses of hauling, ranking, &c., of tbe same would have been $1 90.

At tbe time tbe contract was made, General Thomas’ army was in and around Nashville. Tbe need of wood was great and tbe supply small, and to relieve tbe suffering that existed they were obliged to use fencing and cut down fruit and ornamental trees for fuel. There were also several thousand patients in tbe military hospitals, and wood sold in tbe Nashville market to citizens at from fifteen to twenty dollars per cord, and tbe average monthly issue in tbe winter months, from tbe quarter*542master’s issue, was about twenty-five thousand cords*, the evidence showed that wood was procured on other contracts than that of the .claimant, and at the same price.

The contract was made under the authority of General Donaldson, Chief Quartermaster of the Department of the Cumberland, and was recognized and approved by him.

The petitioner claims damages for the breach of a contract, and it was objected by the Attorney General that the contract was invalid because it was made without advertisement for proposals. The evidence shows that an exigency for wood existed when the contract was made, but, as contended for the defendants, the contract shows that it was not made to meet that exigency, for it was made on the first of December, 1864, for the delivery of wood from the first of March to the first of May, 1865. It was made for a future supply and on the authority of the chief quartermaster of General Thomas’ army, and is thus within the prohibition of the act of March 2,1861, and if an exigency for the wood had been shown the case would have been within the act of June 2,1862, by which, in case of an exigency, that is to be found, and. the purchase ordered by the commanding general.