Brawley v. United States

APPEAL from the Court of Claims.

This is a petition by Brawley to recover the amount of eight hundred and forty cords of wood, at $3.99 per cord, which the claimant alleges that he was prepared and ready to furnish, under a contract entered into by the claimant with Lieutenant-Colonel Holabird, Deputy Quartermaster-General United States Army, in May, 1871. The principal article, and that on which the present controversy arises, was in the following words:

'I. That the said Daniel F. Brawley, his heirs, assignees, administrators, and executors, shall sell, furnish, and deliver, cut and split in lengths of four (4) feet, duly piled or corded under the direction and supervision of the post-quartermaster, within the enclosure of the post of Fort Pembina, Dakota Territory, eight hundred and eighty (880) cords of sound, of first quality, of merchantable oak wood, more or less, as shall be determined to be necessary, by the post-commander, for the regular supply, in accordance with army regulations, of the troops and employees of the garrison of said post, for the fiscal year beginning July 1, 1871, and ending June 30, 1872. The delivery of eight hundred and eighty (880) cords to be completed on or before Jan. 1, 1872; but any additional number of cords of wood that may be required over and above that amount may be delivered from time to time, regulated by the proper military authorities, based upon the actual necessities of the troops for the period above mentioned; provided, that if the wood be less than four (4) feet in length, due allowance shall be made for such shortage by an increased quantity, the cubical contents of the wood being measured in all cases. Delivery on this contract to begin on or before July 15, 1871, unless the time be extended by the commanding officer of the post.'

It appears by the findings of the Court of Claims that said contract was entered into in pursuance of an estimate made by the proper officer of the quartermaster's department, and after an advertisement for proposals, upon which the claimant made a bid which was accepted,-the quantity named being eight hundred and eighty cords of wood or more. The bids were opened April 15, 1871. The contract was awarded to the claimant May 6, 1871, but, although dated on that day, it was not executed until about the 14th of June. About the 18th of the latter month, the post-commander of Fort Pembina first learned of it, and informed the claimant that but forty cords of wood would be required thereon, and forbade his hauling any more to the government yard. On the 1st of July, written notice was given to him to the same effect.

But 'before the contract was signed, the claimant had cut the eight hundred and eighty cords of wood, had taken ten oxteams, with teamsters, wood-haulers, and supplies from Saint Cloud and Sauk Centre, Minnesota, a distance of three hundred and sixty miles, to Pembina, for the purpose of hauling the wood; and fifty-five cords thereof had been hauled to the fort by permission, and with the understanding that the claimant assumed all risk regarding the acceptance of the same. And twenty cords more were hauled there by him, upon the same understanding, before he received any notice that only forty cords would be received on the contract. Subsequently he hauled eight hundred cords to within about twenty-five rods of the fort, and left the same on the land of Mr. Myrick, because the wood, if left in the forest where it was cut, was in danger of being destroyed by the fires which annually run through that region.

'Forty cords of wood only were received and accepted by the post-commander, and for that the claimant has been paid according to the contract.

'The balance of the wood cut and hauled by the claimant remained where it was deposited by him until the autumn of 1873, when it was sold by said Myrick to one Stiles, a government contractor, for $3.62 1/2 a cord.

'The post of Fort Pembina did not in fact need for the fiscal year commencing July 1, 1871, more than the forty cords of wood which were accepted by the defendant.'

The Court of Claims dismissed the petition, and the claimant appealed.

Mr. John B. Sandborn for the appellant.

The negotiations between the parties preceding the execution of the contract should be considered in connection with it, in order to ascertain their precise intention at the time of making it. 1 Greenl. Evid., p. 128, sect. 8; id., pp. 129, 130, and authorities cited; Robinson v. Fiske, 25 Me. 401; Higgins v. Wasgalt, 34 id. 305; Metcalf v. Taylor, 36 id. 28; Wilson v. Troup, 2 Cow. (N. Y.) 196.

In a contract of this character, a specific quantity, if not designed to be furnished, should not be mentioned. Fair dealing prohibits it; and the United States, above all others, should deal openly and fairly.

Where the words 'more or less' are used in an executory contract in connection with a definite quantity, the law gives them only such force as may be necessary to relieve the par ties from the precise quantity. A fixed quantity, with these words added in such a contract, can in no case have the force of the words, 'so much as may be required.' Benj. Sales, 569-571, and authorities cited.

All contracts for supplies for the army are required by law to be made on estimates, and hence for specific quantities.

The Solicitor-General, contra, cited Grant v. United States, 7 Wall. 331; Gwillim v. Daniell, 2 Cromp., M. & R. 61; Hayward v. Scougall, 3 Camp. 58; Pembroke Iron Co. v. Parsons, 5 Gray (Mass.), 589; Robinson v. Noble's Adm'rs, 8 Pet. 181; Lobenstein v. United States, 91 U.S. 324.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.