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of the grazing, the whole cost being $3,475; and that on the 24th of April, 1852, twenty-four days after he was notified by Major Ogden that he could have no transportation under his contract, he paid Keller & Russell $500 for cancelling his agreement.
From the depositions of Nathan H. McKenney, Allen Clymer, and Aaron Oxley, believed to be credible witnesses, it appears that Clymer had a train of 30 wagons with every necessary, complete and in readiness, in time for the transportation to Paso del Norte in 1852, according to his contract. That the animals used the preceding year and brought back had been wintered at his expense, and that McKenney
, an experienced and competent wagon-master, had been in his continuous employ from the spring of 1851, at $80 per month, with the express understanding with Clymer that he was to conduct a train for him in 1852. That the large ox-wagons necessary for transportation to such remote and distant points are unsuited to ordinary business;
that in May, 1852, cattle had greatly declined in value, and that, in their opinion, by the refusal to furnish freight, Clymer was greatly injured, and sustained great damage on account of the complete breaking up of his train, the disbanding of his teamsters, and loss of profits. All the witnesses were in the employ of Clymer, in the business of freighting, and speak from personal knowledge. McKenney declares that the trip in 1851 yielded Clymer, in his opinion, a profit of 50 per cent., and that a similar one in 1852 would have been equally, if not more profitable. In his deposition of April, 1853, he makes a calculation of what, in his opinion, would have been the profits of the trip of 1852, which he sets down at over $14,000, in which opinion he is confirmed by the deposition of Oxley.
In my opinion nothing can be clearer than that Clymer was greatly damaged, and a heavy loser from not having been furnished with freight to Paso del Norte in 1852, which the whole history of this transaction shows he had every right, both legal and equitable, to expect; in the loss of the expense of wintering from 300 to 400 head of cattle in the winter of 1851-'2; in the hire of his wagon-master, teamsters, &c., all of whom he had to compromise with, disband, and discharge—of $500 in the purchase of wagons and oxen from Keller & Russell, and upon the sale of his wagons, cattle, and outfit, for it does not appear that he was subsequently employed as a freighter in the service of the United States, or of private individuals. These losses were actual, and must have been ruinous to any but heavy capitalists. The damages he may have sustained on account of profits are only inferential, depending upon circumstances, wholly without and beyond the control of the claimant or his agents.
The profits may have been as much or more than are estimated in the deposition of McKenny and Oxley ; but in a service without the limits of law or civilization, and beset on all hands with formidable dangers, from the elements of nature and hostile and marauding savages, the trip may have proved equally or more disastrous in every respect than the violation of the contract with Colonel Swords. The anticipated profits, therefore, from their uncertainty, should, in my opinion, but incidently enter into the consideration of the damages sustained by Clymer, from the violation of his contract. It is true the weight
of evidence is in his favor, from the success of the preceding year, and the fact that the year 1852 was equally good for freighting; but, for the reason above mentioned, it is by no means conclusive.
What were the obligations of the government under the contract, and its liability in case of failure, to the contractor for indemnity?
It is a settled principle that written contracts must be construed upon their face, and that parties having reduced the terms of their contract to writing, must abide by them, unless it can be conclusively. shown that by fraud or mistake the written agreement does not correctly embody the terms of the contract. The report of the Quartermaster General shows that as early as October, 1850, he was advised by the Commissary General that transportation would be required during the years 1851 and 1852, for 934 tons of army stores, from St. Louis to various posts in New Mexico and on the Rio Grande, including those of Paso del Norte, Doña Ana, and Taos; that in December, 1850, Colonel Swords, the quartermaster at St. Louis, was furnished with the requisition of the Commissary General, and directed to make contracts for two years for half the quantities mentioned therein. From this proceeded the advertisement of Colonel Swords, for half the quantities as directed by the Quartermaster General, as the minimum to be transported, with the distinct notice that every contractor should be prepared to carry larger quantities, of which due notice should be given. This “due notice,' embodied in the contract, seems to me to have reference entirely to the “larger quantities,”, above and beyond the minimum which had already been fixed and determined by the terms of the advertisement, upon which it is impossible to deny that the contract was founded, as all the material parts of the former, except the specific quantities, are incorporated in the contract, particularly in the fifth article, where the language of each is nearly identical. Colonel Swords’ letter to Clymer, of the 15th of January, enclosing a copy of the advertisement before its publication, and his letter of the 15th of February, accepting Clymer's bids, shows that the contract was to be made in accordance with the terms of the advertisement.
I cannot separate them, and must conclude that the omission to inBert in the contract the specified minimum quantities, and the provision for larger, was a mistake, not to be taken advantage of by the United States to the prejudice of the contractors. I am, therefore, of opinion that Clymer, having complied with all the stipulations entered into on his part, the government was bound to furnish the minimum quantities for transportation mentioned in the advertisement, and larger, upon due notice of the amount to be transported, and the time when the trains must be in readiness to start; and having failed to do so, is liable to the claimant for whatever damage he may have sustained in consequence.
The amount of damages which Mr. Clymer is entitled to receive at the hands of the government is quite another and more difficult ques
As before remarked, it is next to impossible to ascertain, with any degree of accuracy, what would have been the probable profits which he would have made on the transportation of the stores, had
they been furnished him. Indeed, considering the many casualties to which a service of that kind was exposed, instead of making profit he might have lost money. But, in that case, the government itself would not have been, as in the present case it clearly is, the cause of the loss. The present damage is the result of its own act. The probable profit, therefore, would not seem to be a proper rule to apply in the present case. Neither would the contract price of the freight to be transported seem to be a fair rule ; for in that case the contractor would receive far more than the actual damage he has sustained. The true measure of damage, taking an equitable view of the case, would seem to be the amount of loss, whatever it may be, which Mr. Clymer may have actually sustained in making the necessary preparations to carry out the contract, previous and up to the time at which he was notified by Major Ogden that the government would not have any stores to be transported. This might consist of the cost of wintering 300 head of cattle, the hire of his teamsters, &c., for the wagons, together with the depreciation in the value of wagons, &c. In short, for all such losses as he has actually sustained, he should be indemnified. In cases of this kind the government should not, by the failure to carry out its contract with an individual, take advantage of its position and refuse all indemnity; neither should the contractor expect to make a speculation off the government. Because the government imposes a penalty on a contractor for failure on his part, and this penalty forms a part of the contract, it does not follow that the government is liable to a similar penalty for failure on its part, unless it is so specified in the contract.
It is not, however, necessary for the purposes of this report to make any extended remarks as to the amount of damage which it is believed Mr. Clymer has sustained; if it were, further evidence would be required, in order to form a correct estimate, upon the principle I have suggested, of the extent of indemnity, as the only evidence in the papers filed relates to what would probably have been the profit Mr. Clymer would have realized, because, although I am of the opinion Mr. Clymer has been damaged, and is entitled to indemnity, I am also of opinion that he cannot, under existing laws, realize that indemnity through the accounting officers of the treasury, but must find relief in an act of Congress.
In this opinion I am so fully borne out by your decision of the 13th December, 1854, in the case of Benjamin Holladay, that I shall conclude this report by quoting so much of it as is applicable to the present case, and the authorities it refers to:
“But even if the claimant had proved by indubitable evidence that he had been damaged, it has long been held that it is not in the power of the Executive branch of the government to liquidate and pay damages which a contractor may have sustained by reason of a violation of contract on the part of the United States. In this case the claim is not for a debt due, but for unliquidated damages for an breach of contract.
“Chief Justice Taney, when Attorney General, held that in such cases the executive officers have not jurisdiction, and said that if the contractor ‘had been damnified by the officers of the government,
Congress alone can redress the injury.' (Opinions of Attorneys General, ed. 1841. p. 882.)
"Attorney Ĝeneral Nelson also gave an opinion on the subject on the 29th May, 1844, (Opinions Attorneys General, ed. 1847, p. 1687,) in which he said that the accounting officers of the treasury have no authority to adjust the claims of contractors for damages without the special authority of an act of Congress.'
"Attorney General Cushing takes the same ground in his opinion of June 7, 1854, in the case of Strader & Johnson, contractors, and says: "These conclusions are confirmed by the tenor of many acts of Congress, giving special authority for the allowance of damages on contracts varied, or not performed by the United States;' and he cites Hand and another, act of May 1, 1838, (6 Stat., 716;) Voorhees, resolution March 3, 1843, (8 Stat., 90;) Shaw and another, resolution June 26, 1848, (9 Stat., 747.)
“It is alleged that the decision of the Secretary of War of March 23, 1852, overruling the Second Comptroller, (who had rejected, on the 4th of February, 1852, a small claim for damages under a similar contract,) is in opposition to the rule prohibiting executive officers from allowing damages. I do not think that the precedent, under the circumstances existing when the decision was made, is entitled to be quoted as authority; nor are the two cases entirely analogous, as Holladay performed some service in 1851. An opinion had been given by the Attorney General on the 13th November, 1852, asserting the jurisdiction of the heads of departments in matters of accounts and claims, with power to overrule the decisions of the accounting officers, which opinion was adopted by the Cabinet, and communicated by the President to the Second Comptroller. An allowance of the claim was therefore made in conformity with the decision of the Secretary, but the present claim shows the wisdom of the rule which has so long prevailed, and the impropriety of a departure from it. The reason of the rule is obvious, and to disregard it hazardous ; for if executive officers can liquidate and pay damages at their discretion, the public treasure is placed at their disposal for objects not contemplated by Congress, not estimated for, and not within the intent of any appropriation.'
All of which, with the accompanying papers, is herewith transmitted to the Second Comptroller of the Treasury for his decision thereon.
ROBT. J. ATKINSON, Auditor. TREASURY DEPARTMENT,
Third Auditor's Office, December 27, 1854. J. M. BRODHEAD, Esq.,
Second Comptroller of the Treasury. I concur with the Third Auditor in the opinion that the claimant, Mr. Clymer, sustained damage and injury by the non-fulfilment of contract on the part of the government, and that in such a case Congress alone can afford redress
M. BRODHEAD, Comptroller. SECOND COMPTROLLER'S OFFIC lecember 29, 1854.