| Ct. Cl. | Dec 15, 1871
Lead Opinion
delivered the opinion of the court:
This is an action upon an army transportation contract, and the damages are laid at $60,864.21.
The contract was for the transportation of army supplies upon the western plains, and the court must look to the object of the contract and the circumstances amid which it was made, to construe it aright and ascertain the true intent of the parties.
The first article of the contract provides that the claimant u shall receive at any ti7nev ufrom April to September,” 1865, “ all
The contract, therefore, was not an agreement for the transportation of 10,000,000 pounds or less of military stores; but was an agreement for the transportation of “ all the military stores and supplies for which the Quartermaster’s Department may require transportation” “ during the year 1865,” with a condition in favor of the claimant that he should not be required to carry less than 100,000 pounds, nor more than 10,000,000 pounds in the aggregate, and with a like condition in favor of the defendants that they should not be bound to furnish him, of the stores they might need to transport, more than 10,000,000 pounds, nor any that they might prefer to convey by their own means of transportation.
Under this contract, it was the right of the parties to waive respectively the conditions inserted for their protection. If, for example, the freight tendered to the claimant was but 50,000 pounds, and he carried it, the carriage would be a service under the contract, subjecting him to all of its restrictions and responsibilities. Conversely, if the freight tendered and conveyed exceeded 10,000,000 pounds, the defendants were bound by all the other terms of their agreement. Whether the service rendered was for less than the minimum or more than the maximum, it was still service rendered under the contract, so long as it related to u military stores and supplies for which the Quartermaster’s Department may require transportation ” u during the year 1865.”
So far it is apparent that the contract imposed no obligation upon the defendants to furnish any specific amountof freight, but only that for which the Quartermaster Department might re
But there is another provision in the contract. The fourth article provides that, uin order that” the claimant “ shall be in readiness to meet the demands and requirements made upon him for transportation under this agreement, due notice shall be given him or his agent of the quantity and. hind of stores to be transported at any one time, at what points the stores will be ready for delivery to him, and the place of their destination and the contract then proceeds with great particularity and care to designate the length of the notices that shall be given for different quantities of freight to be carried. It is, therefore, further apparent that, without this notice, the claimant was not bound to take any step toward the fulfilling of his contract; while the giving of the notice threw upon him the obligation of being in readiness to transport the specified freight, provided, of course, that it came within the limitations of the contract. Undoubtedly the defendants could not give this notice wantonly and be clear of all the consequences. Undoubtedly their giving the notice threw upon them some reciprocal responsibility. Was that responsibility an obligation to furnish the freight notified of, irrespective of the requirements of the Quartermaster Department; or to respond in damages for such needless loss as they may have cast upon the claimant ? In other words, it is a simple question as to what should be the measure of damages.
The law contemplates, in cases of contracts broken, two elements of damage: first, “ losses sustained;” and, second, “ gains jmevented.” Griffin v. Colvin, (16 N. Y. R., p. 494.) In this case it is manifest that there have been losses sustained. It is not so clear that there have been gains prevented.
If the parties had contracted for a specific amount, the profits on that amount would have been the inducement to the claimant, and the parties would be deemed to have contemplated
The claimant was notified, pursuant to the terms of the contract, to transport certain specified quantities of freight between certain specified points. In one instance the quartermaster alluded by letter to the fact that 10,000,000 pounds of freight had already been transported, and requested the claimant to notify him uifhe was prepared to transport this additional freight.” In reply, the claimant notified the quartermaster of his willingness. In the other instances, no special correspondence passed between the parties, but the notices were ordinary requisitions, made under the contract. In all instances, the claimant made all needful preparations, and held himself in readiness to perform. A part of the freight for each route was delivered, and a part withheld. In fact, the necessity for sending the freight suddenly ceased, and the transportation thereof would have been needless and improper. Ought we to hold that, as between the contracting parties, the defendants were still bound to send it, and that, “ in contemplation of the parties when they made the contract ,” which is the test the law imposes, there have been gains prevented, when no freight was in fact transported, and none required?
It has been termed a “ cardinal principle ” that “ the plaintiff must shoio himself to have sustained damage, or, in other words, that actual compensation will only he given for actual loss.” (Sedgwick, Mea. Dam., p. 223.) Here the claimant has sustained damage, and for that he should be compensated; but he should not recover an actual compensation for profits under the contract unless, within the contemplation of the contract, there was an actual loss of profits.
The rule which I think should govern the case may be thus stated: Where the defendants have violated their contract through its entire scope, so that the contractor has been deprived of profits which he might have made within the contemplation of the parties when they made the contract, there he should recover his gains prevented as well as losses sustained. But where the defendants’ breach relates to a minor matter in the contract, and has merely thrown upon the contractor need
The evidence in this case shows clearly enough that the defendants’ officers gave notices under the contract, at various times, for the transportatiou of specified quantities of freight to four designated points, and that of the freight whereof the claimant was thus notified there was withheld—
Pounds.
From Leavenworth to Fort Kearny. 591,308
From Leavenworth to Laramie. 043, 725
From Leavenworth to Denver. 168,296
From Leavenworth to Salt Lake... 286, 765
It also appears that the claimant prepared and was ready to transport' this freight, and that, from being required to prepare to perform, he has suffered actual damage. But the case has been tried upon the theory that the profits which might have been made, had the freight been furnished, constitute the true measure of damages, and therefore the actual losses sustained have not been shown.
The case will be remanded to the trial docket, with leave to the parties to furnish evidence upon that specific point, viz, the amount of losses actually sustained by the claimant, in accordance with the principle indicated by this opinion. Should,' however, the claimant prefer to stand upon, the theory upon which the case ivas tried, and elect, within thirty days, to carry it to the Supreme Court in its present form, the order now to be entered will be vacated, and the findings of the court will be filed and judgment entered dismissing the petition.
The order of the court is that the case be remanded to the trial docket, to remain there without further notice- by the parties, and with leave to either party to take testimony and furnish evidence as to the amount of the claimant’s actual damages caused by the defendants, in accordance with the opinion of the court.
Dissenting Opinion
dissenting:
These transportation contracts of the Government are important from the amounts they involve, and they are likely to be, as they have been, of frequent occurrence. And as the Government fixes their terms and provides their own measure
It is true that in these cases the amount of transportation the Government may actually need cannot be determined beforehand, nor when the contract is entered into; and, therefore, the contracts always provide that the amount of transportation required shall be left to be determined by the Government when its needs shall arise and be known to it; and to this end the contracts provide that notice shall be given by the United States to the contractor of the specific amounts, places, and times for which transportation will be required ; and by such notice the contractor becomes absolutely bound to transport the amount specified ,• and the contract is then for him a contract for a specific amount; and on the principle of mutuality of contracts I think it should be so for the Government, and that it cannot be made specific for the contractor and not for the Government. If the contractor has thus the liability of a specific contract, he is entitled to the profits of it by the rule that governs between individuals, and for the same reason that parties do not undertake specific contracts for the mere cost of executing them.
I think the petitioner is entitled to the profits he would have made if the amount of freight specified by notice to him had been furnished, and that is here merely a matter of arithmetic from data furnished.