13 Ct. Cl. 531 | SCOTUS | 1878
delivered the opinion of the court:
McKee had two separate written contracts with the quartermaster’s department for the delivery of hay during the summer of 1864. The delivery in the one contract to be at Fort Clibson and within seven miles of that fort, and the other at Cabin Creek and Hudson’s Crossing of the Neosho Elver. The locality Avas the Indian country, south of Kansas and west of Arkansas, which was the theater of hostilities. Each contract contained the. following provision, Avliich is the foundation of plaintiff’s claim against the United States uoav under consideration:
“ It is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the Government to protect the contractor Avlxilc engaged in the fulfillment of this contract.”
A large part of the contract was fulfilled by delivery of the hay, and for that McKee was paid. A considerable amount of hay cut and not delivered was destroyed by the enemy, and tor that he was paid. He lost in Avagons, horses, and other personal property, by the attacks of the enemy, over $15,000, and for that he aauis paid.
The United States made in the court below a claim of set-off for $34,713 wrongfully paid to McKee for his hay destroyed and abandoned before delivery and for his property lost and destroyed while used in the operation of making and delivering-the hay. Of this the Court of Claims allowed the sum of $12,600 j and from this part of the judgment McKee appeals.
The opinion of the majority of the Court of Claims, which wre find in the record, goes upon the ground that the soil upon which the hay was to be cut wras the property of the United States, and that the contract was in legal effect, on the part of McKee, to do for a specified compensation the work which was necessary to convert the grass of the United States into hay and for its delivery as required. That this compensation was not for the purchase of the hay from McKee, but for his labor and services expended on the property of the United States. The deduction is made from this proposition that inasmuch as he was ready and willing at all proper times to render these services and perform the labor, and wras prevented by the failure of the United States to give him the necessary protection, he is entitled to recover all that he would have made out of the contract if he had fully performed it.
We do not see on what foundation it is held that the grass was the property of the United States. The court expressly find that the whole transaction was in the Indian Territory, south of Kansas and west of Arkansas. We know' that this is country set apart for the use of the Cherokee, Olioctawq Chickasaw, and other Indian tribes by treaties, those tribes having been removed there from other localities. We suppose that the possession and usufruct of this land is in the Indians. But if this were otherwise, and it was surveyed and unsold public land, there is nothing in the contract to show that any importance was attached to this fact.
The contract was for the delivery of so many tons of hay. It wras expressly provided that it might be timothy hay or prairie hay. I-Iad the United States any timothy meadows in which these men were to make hay? If they could have bought the hay from another party and delivered it, would they not have
What, then, was the obligation assumed by the Government in agreeing to furnish sufficient guards and escorts to protect the contractor while engaged in the fulfillment of the contract?
The literal terms of the agreement would be satisfied by such a guard as would secure his personal safety, and if such a construction had been insisted on by the Government from the beginning, it would not be void of force.
The construction which the Government has put upon it, namely, that it is an obligation to protect his person and property while engaged in the effort to perform the contract, and that the failure to afford such protection renders the United States responsible for the value of the property actually lost for want of it, and which would include, perhaps, personal injuries, if any had been sustained, seems to us to be the true one. It was all the contractor could reasonably ask. It is doubtful whether the contracting officer had authority to promise so much. But to this extent the accounting officers of the Government and the Quartermaster-General have ratified and confirmed it.
But we can see nothing in the provision itself, nor in the other parts of tlie agreement, nor in the nature of the circumstances under which it was made, to justify the conclusion that the Government was bound as an insurer against all loss from hostile forces, not only arising from destruction of property, but from loss of speculative profits on grass that was never cut and hay that was never made or delivered or owned by the contractor, and for work that was never done.
Let us suppose that such had been the prevailing force of the enemy that the soldiers could only hold the fort and do no more, and such the danger outside that the contractor did not dare to cut a ton of hay, could he, by demanding an additional regiment to protect him and saying I am ready to make the hay if you will keep off the enemy, make a speculative calculation of the profits he would have made if his demand had been complied with, and recover that sum, though he had never done anything more?
If the United States was bound by the contract to furnish full protection, and if the measure of damages was these profits, the question must be answered in the affirmative.
