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2d Session. ]
FEBRUARY 23, 1855.
Mr. FAULKNER, from the Committee on Military Affairs, made the
The Committee on Military Affairs, to whom was referred the memorial
of Joseph Clymer, praying indemnity for damages incurred by him, owing to the violation by the agents of the government of a contract made with him by the government, for the transportation of army supplies to various military posts, in the Territory of New Mexico, have, according to order, had the same under consideration, and submit, as a part of this their report, the views of the Third Auditor of the Treasury, and the Second Comptroller thereof, upon the claim, together with a joint resolution authorizing the accounting officers of the treasury to settle the claim upon the principles of equity and
justice. Report of the Third Auditor of the Treasury upon the claim of Joseph
Clymer, of Missouri, for damages sustained by him in consequence of the non-fulfilment by the officers of the United States Quartermaster's department of a contract entered into with Lieutenant Colonel Thomas Swords, quartermaster United States army, on the 18th April, 1851, for the transportation of certain military stores and supplies, the property of the government, from Fort Leavenworth, Missouri, to Fernando de Taos and Doña Ana, New Mexico, and to El Paso, Texas, during the years 1851 and 1852, transmitted, with a report, proofs and arguments of counsel, for the action of the accounting officers of the Quartermaster General.
It appears that on the 1st of February, 1851, there was published in a newspaper, called the “Occidental Messenger," at Independence, Missouri, an advertisement, dated January 7, 1851, at St. Louis, in the same State, signed “Thomas Swords, Lieutenant Colonel and Quartermaster United States Army,” stating that sealed proposals would be received at the office there, until the 15th of February next, for the transportation of army supplies to the various military posts therein mentioned, anually, for two years, commencing on the 1st of May, 1851.
Among them were, to Fernando de Taos, New Mexico, 30 tons; to Doña Ana, New Mexico, 30 tons; and to El Paso del Norte, New Mexco, 170 tons; in all 460,000 pounds, estimating the ton at 2,000 pounds. In each case the contractor was to bind himself to receive, at Fort Leavenworth, Missouri, at any time during the months of May, June, and July, in each year, such government property as might there be delivered to him or his agents, suitably packed and prepared for transportation, to be by him delivered, in like good order and condition, at the place or places agreed on. Bidders were given distinctly to understand that the above quantities were to be the minimum ; and that contractors were to be prepared to carry larger quantities, of which due notice would be given.
Bids were to state the price per 100 pounds, and were to be accompanied by the guarantee of responsible persons as to the good faith and ability of the bidders.
There were other conditions set forth in the advertisement, intended for the protection of the public interests, and to prevent collusions and combinations among the bidders, which I do not think necessary to report.
On the 15th of January, 1851, in advance of the publication of the advertisement, Colonel Swords addressed a letter to the claimant, enclosing him a copy of it, and solicited from him an offer on the conditions required.
On the 15th of February, 1851, the day for opening and determining upon the bids, the claimant was advised, by letter from Colonel Swords, that his bid for transportation to Fernando de Taos at $8 83 per 100 pounds, and to Paso del Norte at $12 84 per 100 pounds, was the lowest received, and that he, therefore, was entitled to the contract for those two points.
Colonel Swords further advised him, that as the post had been removed from Taos to the Rayodo, on the Canadian river, this side the mountains, and easily accessible by wagons from Bent's fort, he should expect the freight to be delivered there at a reduced rate on the bid for Taos, and earnestly requested his early attention to the subject.
On the 18th of April, 1851, Mr. Clymer entered into a contract with Colonel Swords, if not exactly in accordance with, yet most unquestionably in consequence of, the preceding advertisement and letters of the latter, in which are the following stipulations :
Mr. Clymer agreed:
1st. To receive at Fort Leavenworth, between the 1st of May and 31st of July, in the years 1851 and 1852, such property of the United States as might be delivered to him in good order by the agent of the Quartermaster's department at that post, and transport them with all despatch, and deliver them in like good order and condition to the quartermaster at Paso del Norte, Texas, and Doña Ana and Don Fernando de Taos, New Mexico, according to the instructions he might receive at Fort Leavenworth, at the time of the delivery to him of the stores for transportation.
2d. To transport said stores so delivered in good strong wagons, covered with two new substantial duck covers, no wagon to be loaded with more than 5,000 pounds, in addition to the provisions of the teamsters, each wagon to be drawn by six yoke of good strong workcattle, or five pairs of good strong mules.
3d. All means of transportation, under said contract, to be submit
ted to the quartermaster at Fort Leavenworth, for his inspection, and such only to be used as he might accept as fit for the trip.
4th. To employ at least one man in addition to the teamsters for every five wagons of each train; each man so employed to be well armed and provided with ammunition.
5th. To have a train in readiness to receive freight, and to start from Fort Leavenworth at any time between the 1st of May and 31st of July, in the years 1851 and 1852, due notice having been previously given to him, by the quartermaster, of the amount of stores to be transported, and the time when the train must be in readiness to start.
6th. To pay at the rate of first cost, with fifty per cent, in addition for any damage or deficiency, at the point of destination, in the property delivered to him for transportation, unless it shall be satisfactorily shown by the report of a board of officers, which the quartermaster shall call, that the damage or deficiency was unavoidable.
And Colonel Swords agreed:
7th. That said Clymer should be paid, at Fort Leavenworth, at the following rates: $12 84 per 100 pounds, for all freight delivered by him at Paso del Norte, Texas, $12 50 per 100 pounds for all delivered by him at Doña Ana, New Mexico, and $8 83 per 100 pounds for all delivered at Fernando de Taos, New Mexico, on his producing the receipt of the quartermaster of the post at which the stores were delivered, for the quantities delivered in good order ; or if damaged, that the damage was reported on by a board, as provided for in the 6th article of the contract.
It further appears that, on the 24th of April, 1851, Mr. Clymer entered into an agreement with David Waldo, Jabez Smith, and William McCoy, whereby, in consideration that the last named parties had become his sureties in a bond under a penalty of $50,000 (now on file in the Second Comptroller's office,) for the faithful performance of his contract with Colonel Swords, before recited, of the 18th of April, 1851, said Clymer transferred and set over to them all the benefit accruing from said contract, and all advantages and privileges appertaining, except to the amount of transportation of 150,000 pounds, or 75 tons, to the post of Paso del Norte, which amount was to be transported alone by said Clymer, and to be for his own particular use and benefit, and under his entire control. It was also understood that each of the parties to said agreement were to enjoy the privileges and benefits therein set forth, during the continuance of the contract with Colonel Swords, to wit: for two years from the 1st of May, 1851.
It was further agreed that said Clymer was to receive and transport the stores intended for the post of Taos, leaving the said Waldo, Smith & McCoy to transport only all the stores to Paso del Norte and Doña Ana, except the 150,000 pounds retained to be transported to Paso del Norte by said Clymer. By this agreement said David Waldo & Co. were to have transported to Paso del Norte stores to the amount of 95 tons, or 190,000 pounds, and to Doña Ana 30 tons, or 60,000 pounds.
By the contract and sub-contract, therefore, made under the inducements before mentioned, Clymer and his associates evidently had
a right to expect, and no doubt did expect to have the following amounts of freight for each of the years 1851 and 1852, to wit: To Paso del Norte, Clymer, 150,000 pounds, at $12 84 per 100 pounds.......
$19, 260 00 To Paso del Norte, Waldo & Co., 190,000 pounds, at $12 84 per 100 pounds ....
24,396 00 To Taos, Clymer, 60,000 pounds, at $8 80 per 100 pounds .....
5,298 00 To Doña Ana, Waldo & Co., 60,000 pounds, at $12 50 per 100 pounds.....
Total per annum.
Total for the two years 1851 and 1852.............
It should have been before stated that Doña Ana was included in Clymer's contract in consequence of the express invitation to that effect of Major E. A. Ogden, assistant quartermaster at Fort Leavenworth, as appears from a letter from that officer addressed to him at Westport, Missouri, and now in his possession, dated February 26, 1851.
From the report of the Quartermaster General, and the accounts of Major E. À. Ogden, on file in this office, it appears that there were delivered the claimant for transportation under the contract, to Pas del Norte, in 1851, 150,141 pounds of freight, with which he left Fort Leavenworth on the 16th day of May, and delivered his charge in good order and condition at Paso del Norte on the 26th of August following, for which he was paid by Messrs. Ogden, at Fort Leavenworth, on the 15th of November, thus showing that it took six months to perform the journey back and forth. In the same year there were also delivered to Mr. Clymer 61,135 pounds of stores for transportation to Doña Ana, which by a subsequent agreement he delivered in good order at Fort Fillmore, fifteen miles south of Doña Ana, on the 25th of October, having left Fort Leavenworth on the 30th of July, and for which he was paid at the latter place, on the 24th of January, 1852, nearly six months having been occupied in performing the journey.
It does not appear that the government officers offered Clymer and his associates any more freight during the year 1851, so that there was a deficiency in the minimums stated in the advertisement of Colonel Swords, to wit:
To Paso del Norte, (Waldo & Co.,)189,859 pounds, or nearly 95 tons. To Taos, (Clymer, 60,000 pounds, or nearly 30 tons.
It does not appear that the above deficiency was ever offered for transportation to Clymer, or that he was unable to have transported it had it been so offered, according to his contract; the value of which, according to the rates agreed on, would have been: To Paso del Norte.....
$24,379 89 To Taos......
The papers do not show, however, that the contractor was dissatisfied with the amount of freight offered in 1851, or made any complaint on account of the deficiency.
On the 22d of March, 1852, Major Ogden, assistant quartermaster at Fort Leavenworth, addressed a letter to Mr. Clymer, which is herewith, stating that he had just received a telegraphic despatch from the Quartermaster General, directing him to inform him (Clymer) that he would not be required during the then coming season to transport any stores under his contract of the 18th of April, 1851. Upon the receipt of this notice of the abandonment of the contract on the part of the government officers, Mr. Clymer appears immediately to have addressed the letter herewith, dated April 1, 1852, to the Quartermaster General, in which he states that he had prepared to send out to Paso del Norte a train of thirty wagons, to transport one hundred and fifty thousand pounds, and that by the fifth article of his contract he was fully authorized to make the outfit, which he had done in good faith to the government. That if he was not permitted to use the outfit that year, as the contract contemplated he should do, he would lose much, and be put to great stress and heavy sacrifice on the property. That he expected to be governed by the meaning of his contract of the 18th of April, 1851, unless the Quartermaster General might think proper to arrange in some way to save him from heavy loss.
It thus appears that in none of the stipulations of the contract was there a failure on the part of Mr. Clymer. He faithfully transported all the freight that was offered him in the year 1851, and for some small amount of stores lost on the journey he paid the first cost, with fifty per cent. added, as he had agreed upon; and he gave a bond with security in a heavy amount, to secure the government for any damage it might sustain arising out of the transaction.
The question, then, is, what damage has he sustained in consequence of the alleged failure on the part of the government, through its officers, to perform its obligations under the contract? What those obligations were, and the extent of its liability to Clymer for indemnity?
It has already been shown that Clymer transported 150,000 pounds of stores to Paso del Norte in 1851 ; that by the contract the train must have consisted of at least 30 wagons, 180 yoke or 360 oxen, or 300 mules, and 36 armed teamsters ; that he left in May, and did not return until November; and there is little doubt that of the wagons and animals which escaped the casualties of such a journey, and were brought back by him, the former had to be repaired, and the latter wintered for the service he had every reason to expect in the spring of 1852.
A paper herewith, numbered 5, shows that to supply deficiencies in his means of transportation, occasioned, it is fairly inferred, from casualties in the preceding year, on the 24th of March, 1852, Clymer agreed to purchase of Keller & Russell ten wagons at $150 each, to be delivered by the 4th of April then next, and 45 yoke or 90 cattle, at $55 per yoke, with good walnut yoke, with ring-staple with each yoke, and 40 half-inch ox-chains, to be belivered at the commencement