1. An "inspection" at the place of shipping instead of at the
place of delivery, by the officers of the United States, of
supplies which a contractor has agreed to deliver at a distant
point does not pass the property to the United States so as to
relieve the contractor from his obligation to deliver at such
distant point.
2. Where a contract with the government to furnish to it
supplies does not stipulate for an inspection at a place earlier
than the place of delivery, it is optional with the contractor
whether he will have the goods inspected at such earlier place.
3. Where a delay by the government in making an inspection of
supplies, agreed to be made at the place of shipping instead of at
the place of delivery, is not the proximate cause of a loss of the
supplies afterwards suffered, the loss must be borne by the party
in whom the title to the supplies is vested, and if still in the
contractor, by him.
4. This rule applies even where supplies have been seized by the
public enemy without any default of the owner.
5. Where the government makes a contract with an individual that
he shall furnish all supplies needed at a certain post, and
afterwards rescinds the contract, the individual cannot recover
from the government for a breach of the contract unless he prove
that supplies were needed at the post designated.
6. The Court of Claims was not instituted to try cases of mere
nominal damages.
Appeal from the Court of Claims, in which court Grant, for
himself, and as assignee of one Taliafero, a former partnor, had
filed a petition claiming reimbursement and damages from the United
States. The case was this:
On the 9th of March, 1860, the Secretary of War, at that time
Mr. Floyd, addressed an order to the Quartermaster General and
Commissary General of Subsistence, granting to the said Taliafero
and Grant the privilege of furnishing
Page 74 U. S. 332
and delivering, at certain posts in Arizona, for a period of two
years,
all the supplies that might be needed there for the
use of the service, at certain stipulated rates. There was nothing
in this order making an inspection necessary elsewhere than at the
place of delivery.
On the 29th of July, 1860, the proper officer in Arizona served
a requisition on Grant for commissary articles, and the War
Department approved the order on the 22d day of September
following, with notice that the articles to be purchased would be
inspected at Boston or New York.
Some delays took place in regard to the inspection; for the
appointment of a proper person to make which, the shipping agents
of Grant had made a request on the 20th September, 1862. Major
Eaton finally inspected the last of the supplies, certifying that
they were contained in strong, sound, full-hooped barrels and well
secured tierces, properly marked with the names of the places to
which they were destined, and were of the kind and quality usually
provided by the subsistence department. This inspection did not
take place until the 3d, 4th, 5th of December, 1860. The Court of
Claims found, however, as facts, that the only delay attributable
to the United States was a delay in appointing an inspector from
the 22d September to the 21st November, 1860; that such delay did
not preclude Grant's agents from purchasing the supplies required,
and having them ready for inspection; that the supplies inspected
by Major Eaton were sold to Grant on the 20th of November, 1860;
that the United States were ready to inspect supplies on the 21st
of November, 1860, and thereafter, and on that date so notified to
Grant's agents; that the inspection was not made at that time, but
was postponed at the request of the said agents from the difficulty
they had found in procuring a part of the supplies; that these were
not then ready for shipment and inspection; that there was no
evidence of any notice to the United States to make inspection
other than one contained in a letter of the agents to Major Eaton,
dated November 22, 1860.
The supplies thus inspected were immediately afterwards
Page 74 U. S. 333
shipped to Lavacca, and arrived there about the 10th January,
1861. They were here laden on wagons, forty-one wagons in all, but
after proceeding a short distance, the train was obliged, owing to
want of pasturage at that season of the year, to stop and go into
camp and await the growth of grass. A delay was thus incurred of
about two months and ten days, when the train again proceeded, and
arrived at Rio Honde, where it was captured on the 20th April by
the troops of Texas, then in a state of rebellion against the
United States.
For the goods, wagons, and teams thus lost, the petitioners
claimed reimbursement.
The petition also set forth great loss to the petitioner, asking
damages for it, from the fact that while, as alleged, he was in the
due execution of his contracts, and actually engaged in the
transportation of supplies from Lavacca to Arizona, the United
States, of its own wrong, and without any fault or negligence on
his part, and without notice to him, and without his agreement or
consent, had set aside and rescinded the said contracts. On this
part of the case it appeared that in April, 1861, the Assistant
Commissary General had recommended to Mr. Cameron, by this time
Secretary of War, that the contracts "be rescinded," and that, from
a sense of insecurity, certain of the articles should be forwarded
from St. Louis, and that others might be procured in Arizona or
Sonora, of those persons who would furnish them at the cheapest
rates. The secretary approving the order, the contract was no
longer regarded by the United States as valid.
The Court of Claims dismissed the petition, and the claimant
appealed.
Page 74 U. S. 335
MR. JUSTICE DAVIS delivered the opinion of the Court.
On the theory that the order of the Secretary of War of March 9,
1860, granting to Taliafero and Grant the privilege of furnishing
and delivering, at certain posts in Arizona, for two years, all the
supplies that might be needed there for the service, at certain
stipulated rates, was a contract, mutually binding on the
government and the claimant, the obligations imposed on the parties
to it are clearly defined.
It was the duty of the claimant, as well as his exclusive
privilege, to furnish all the supplies which were needed for
Page 74 U. S. 336
the use of the service in Arizona, and on the receipt of the
goods there, the government was bound to pay him for them the
prices which were fixed in the order. It is too plain for
controversy, that the property did not vest in the United States
until it was delivered. To escape the force of this rule at law, it
is insisted, as the goods were inspected in New York and pronounced
to be of the proper kind and quality, that the title then passed to
the United States, and that they only remained in possession of the
claimant for transportation, and as he was prevented from
delivering them by the public enemy, the loss must be borne by the
United States. This position cannot be sustained, for the
inspection at New York, on which it is based, did not work a change
of title in the property, nor was it in the contemplation of the
parties that it should. It did not affect the contract at all. The
goods, by a well known usage of the War Department, had to be
inspected somewhere, and as the contract contained nothing on the
subject, it was for the advantage of the contractor that they
should be inspected before shipment, rather than at the point of
delivery. The War Department took upon itself no additional
responsibility by inspecting them in New York, instead of Arizona,
and this inspection in no wise relieved the claimant from any
obligation which he had assumed. He had agreed to deliver the goods
in Arizona, and until he did this there was no contract on the part
of the government, either express or implied, to pay him for them.
All that the certificate of Major Eaton, the inspecting officer,
proves, is that the goods, when presented to him for inspection,
were contained in strong, sound, full-hooped barrels and well
secured tierces, properly marked with the names of the places to
which they were destined, and were of the kind and quality usually
provided by the subsistence department.
But it is said the capture of the property is chargeable to the
delay of the War Department in making the inspection, and in
consequence of this, that the government is not only bound to pay
for the supplies which were taken possession of by the enemy, but
also to reimburse the claimant for the
Page 74 U. S. 337
loss of his wagons and teams. The answer to this is, that the
order of the 9th of March, 1860, did not require inspection at
Boston or New York, and if the Secretary of War chose to change the
order afterwards, by directing that the goods should be inspected
at those places, it was optional with the claimant whether or not
he would submit to such direction.
But, conceding that the Secretary of War had the right to direct
where the goods should be inspected, still he was not required to
inspect, until the goods were substantially ready for inspection,
and he was notified of the fact; and it is plain, by the finding of
the court below, that after such notice and actual readiness, he
did not culpably delay the inspection. The evidence shows very
clearly that the difficulty which the agents of the claimant
experienced in filling the requisition, was the cause of the delay
in inspecting and shipping the goods. If, however, it be admitted
that the government was in default in not inspecting sooner, that
default had no connection with the subsequent injury suffered by
the claimant, and was not the proximate cause of it. In such a case
the rule of law applies, that where property is destroyed by
accident, the party in whom the title is vested must bear the loss.
*
It is insisted that this rule does not apply where private
property is seized by the public enemy without any default of the
owner, and that in such a case the government is bound to indemnify
the sufferers. But the principles of public law do not sanction
such a doctrine, and Vattel (page 403) says no action lies against
the state for misfortunes of this nature. "They are accidents
caused by inevitable necessity, and must be borne by those on whom
they happen to fall."
Whether there are equities in this particular case, and if so,
whether they require that the claimant should be reimbursed, in
whole or in part, for the capture of his property, under the
circumstances, are questions that must be addressed
Page 74 U. S. 338
to Congress, for it is not the province of the judicial
department of the government to determine them.
The only remaining point in the case, relates to the rescission
by Secretary Cameron of the order of the 9th of March. This
proceeding was undoubtedly taken because the supplies needed in
Arizona could be either purchased there at cheaper rates, or
forwarded more securely from St. Louis. Whether the conduct of the
Secretary of War was or was not justifiable, is not a question to
be considered in deciding this suit, for the claimant has not shown
a state of case on which he could recover if the rescinding order
had never been made. The contract entitled him to furnish, at
certain prices, all the supplies that might be needed in Arizona
until the 20th of March, 1862. To enable him to recover, for a
breach of this contract, he should have proved that supplies were
needed at the posts in Arizona after the rescinding order was made,
and the pecuniary loss he sustained in not being allowed to furnish
them. This he has wholly failed to do.
We cannot see that this is a case for even nominal damages; but
if it is, the Court of Claims was not instituted to try such a
case.
Judgment affirmed.
*
McConihe v. New York and Erie Railroad Company, 20
N.Y. 496.
