United States ex rel Parish v. Macveagh

This is a writ of error directed to review the judgment of the court of appeals of the District of Columbia, affirming a judgment of the supreme court, dismissing a petition for mandamus to require Leslie M. Shaw, then Secretary of the Treasury, to issue a draft in favor of the petitioner, plaintiff in error here, for the sum of $181,358.95, in payment of a claim referred to him by an act of Congress approved February 17, 1903. [32 Stat. at L. 1612, chap. 559.] Shaw, pending the appeal, resigned, and Cortelyou, his successor in office, was made a party in his stead, and subsequently, Franklin MacVeagh becoming Secretary, he was substituted for Cortelyou. We shall call plaintiff in error relator and defendant in error respondent, they having occupied that relation in the trial court.

J. W. Parish, of whose estate relator is executrix, entered into a contract with the United States, as J. W. Parish & Company, to deliver, for the use of the United States medical department at Memphis, St. Louis, and Cairo, the whole amount of ice required to be consumed during the remainder of the year 1863. The quality of the ice was to be 'A No. 1,' and the contract stated the prices to be paid at the designated points respectively. On March 25, 1863, Joseph B. Brown, by instruction of the Assistant Surgeon General, issued an order directing Parish to deliver the ice as follows: St. Louis, 5,000 tons, Cairo, 5,000 tons, Memphis, 10,000 tons, and Nashville 10,000 tons, 'Making a total,' the order recited, 'of 30,000 tons which you have contracted to deliver. The ice to be delivered at Nashville and Memphis is for the use of the sick of the armies in the field, and should be furnished without delay.' Parish immediately proceeded to execute the order, and was performing it when, on the 31st of March, 1863, he received a letter from the Assistant Surgeon General, under the instructions of the Surgeon General, suspending the order of March 25th until instructions should be received from the Surgeon General. At the date of this letter 12,768 tons of ice had been delivered and paid for at the contract price. The order of suspension was never recalled. Under the authority of an act of Congress approved May 31, 1872 [17 Stat. at L. 195, chap. 245], Parish brought suit against the United States to enforce his demand under the contract. The court of claims dismissed the suit. 12 Ct. Cl. 609. This court reversed the judgment and remanded the case, with directions to ascertain the damages sustained by Parish. 100 U.S. 500, 25 L. ed. 763. The court of claims rendered judgment for the claimant for the sum of $10,444.91. 16 Ct. Cl. 642. Parish then petitioned Congress to satisfy as much of his claim as had not been satisfied by the court of claims. Responding to a reference by a committee of the House of Representatives, the War Department, through the Surgeon General, reported that the whole of the undelivered ice, through the order of suspension, amounted to 17,232 tons, and the same had been lost by the contractor. The report also stated that, under the evidence before the court of claims, and additional evidence before the Department, Parish was entitled to be reimbursed, in addition to the judgment of the court of claims, in the sum of $58,341.85, for the loss he had sustained because of the nondelivery of the 17,232 tons. After this report, on February 20, 1886, Congress passed an act directing payment of said sum of $58,341.85 to Parish, in addition to said sum of $10,444.91, being the balance of money laid out and expended by him in the purchase of 17,232 tons of ice for the use and at the request of the government of the United States, which were not afterwards called for, but were wholly lost to the said Parish. 24 Stat. at L. 653, chap. 11. Parish again applied to Congress for relief, and, on February 17, 1903, the act in controversy was passed. It will be given in the opinion.

Messrs. Holmes Conrad and Leigh Robinson for plaintiff in error

[Argument of Counsel from pages 127-128 intentionally omitted]

Assistant Attorney General Russell for defendant in error.

[Argument of Counsel from pages 128-130 intentionally omitted]

Mr. Justice McKenna delivered the opinion of the court: