Shrewsbury v. United States

APPEAL from the Court of Claims; the case as found by that court being thus:

On the 27th of March, 1865, one Shrewsbury entered, at Fort Leavenworth, Kansas, into a contract with Colonel Potter, a quartermaster of the army there, by which it was agreed that he, Shrewsbury, should 'receive' at any time from May to September, 1865, from the officers of the quartermaster's department, at Forts Leavenworth and Riley, and town of Kansas, all such military stores and supplies, as might 'be turned over to him for transportation by the officer or agent of the quartermaster's department at any or all of the above-named places, and transport the same' to the officer of the quartermaster's department on duty at Fort Union, in the Territory of New Mexico, or any other depot that may be designated in that Territory.

In a subsequent article of the contract, Shrewsbury contracted to 'transport all the military stores and supplies for which the quartermaster's department may require transportation by contract, during the year 1865, provided that the weight of such military stores and supplies should not exceed in the aggregate 15,000,000 pounds.' The article contained a clause thus:

'Nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service, whenever it may be deemed advisable to do so.'

Under this agreement stores were furnished to Shrewsbury by the quartermaster's department to the amount of 14,200,000 pounds, for the transportation of which he was paid. He was prepared with the means of transportation, and ready to transport the remainder of the 15,000,000 pounds, which, under the contract, he was bound to carry; but it was not furnished to him for transportation.

On the 29th of September, 1865, Colonel Morgan, commissary of subsistence at Fort Leavenworth, entered into a contract with Fuller & Tiernan to deliver 'to the officer of the subsistence department' at this same Fort Union, 18,000 bushels (or about 1,000,000 pounds), of shelled corn, on or before the 20th of December, 1865, the same to be 'of the best quality, well sacked in new gunny-sacks, securely sewed with linen twine; free from dirt, cobs, or other foreign matter, and to be either yellow or white, but not mixed in the sacks.' The contract proceeded:

'The parties of the second part agree that said corn shall be subject to the inspection, acceptance, or rejection of the officer receiving the same, and that if default shall be made by the said parties of the second part, or either of them, in the time of delivery, or any of the terms of this contract, the party of the first part, or any person acting for him on behalf of the United States, shall have power to purchase the corn in open market, and the said parties of the second part, and their sureties, shall be charged with the difference between the cost thereof and the price hereinafter stipulated to be paid to the said parties of the second part.

'For and in consideration of the faithful performance of the stipulations of this contract the said party of the first part agrees to pay, or cause to be paid, to the parties of the second part, at the office of the commissary of subsistence at Fort Leavenworth, Kansas, the sum of $8.54 for each and every bushel of corn delivered and accepted in accordance with the terms thereof, payment to be made on vouchers issued and certified by the officer receiving said corn.'

This contract was entered into by Morgan with Fuller & Tiernan, in pursuance of an order received by the former from the commissary of subsistence at St. Louis, Missouri, requiring Morgan to send corn to New Mexico to the amount of about 1,000,000 pounds. It being too late in the season for Morgan to advertise for proposals for the corn, and to purchase it under advertisement in time to send it out by the government freighter, and, having an offer from Fuller & Tiernan, who were then furnishing corn to the quartermaster's department at Fort Leavenworth, to deliver the corn required for the subsistence department at Fort Union, he entered into the said contract with them. This corn was to be sent to the said fort, not for the army, but to feed Mexicans or Indians. Morgan urging Fuller & Tiernan to send the corn off, they borrowed from the quartermaster of Fort Leavenworth some corn which they were delivering to him; the said quartermaster lending it to Fuller & Tiernan, to accommodate the subsistence department, and to enable Fuller & Tiernan to begin on their contract sooner than they could do if they had to wait to get the corn from St. Louis.

The quantity of corn so lent by the quartermaster's department to Fuller & Tiernan was about one-half of the million pounds which they contracted to deliver at Fort Union; and the amount lent to them was afterwards returned by them, in kind, to the quartermaster's department at Fort Leavenworth. Fuller & Tiernan delivered at Fort Union 858,000 pounds of corn, all of which was received by the government on their contract. About 120,000 pounds of the corn they shipped for Fort Union was stopped and taken by the government at Fort Dodge.

Shrewsbury insisting that the making of this contract by an officer of the United States, in September, 1865, and its performance, constituted a breach of his contract made with Colonel Potter in March of the same year, filed a petition in the court below, claiming as damages the profit on the transportation of about 800,000 pounds of corn, which, he insisted, should have been furnished for transportation on his contract, instead of being purchased and delivered under the contract with Fuller & Tiernan.

The Court of Claims held adversely to the petitioner and dismissed his claim. He now appealed to this court.

Mr. Durant, for the appellant, contended that Shrewsbury, by his contract, had an exclusive right to carry whatever corn, up to 15,000,000 pounds, the military department of the government sent from Fort Leavenworth to Fort Union; and that in making the new contract, by which the right to deliver the same article at Fort Union was conceded to Fuller & Tiernan (he, Shrewsbury, not having yet carried the 15,000,000 pounds, nor so exhausted his right), the government had violated its contract with him; that the arrangement with these parties just named was but a device to evade the performance of their contract with him.

The learned counsel argued further, that any loan of supplies owned by the government to a private contractor, was a matter against public policy and illegal; and that the fact of such a loan in this case was a further proof of the truth of the position already taken, that the contract with Fuller & Tiernan was but a scheme to avoid the performance of the contract made with Shrewsbury.

Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice HUNT delivered the opinion of the court.