White v. States
38 App. D.C. 131
D.C. Cir.
1912
Check Treatment
Mr. Justice Robb

delivered the opinion of the Court:

In Brawley v. United States, 96 U. S. 168, 24 L. ed. 622, bids were invited by the government to furnish “880 cords of wood or more,” at Fort Pembina, Dakota Territory. The bids were opened April 15, 1871, and on May 6, following, the contract was awarded to Brawley. It was not executed, however, until June 14th of the same year. The contract called for 880 cords, “more or less, as shall be determined to be necessary by the post commander, for the regular supply, in accordance with army regulations of the troops and employees of the garrison of said post, for the fiscal year ending July 1, 1871, and ending June 30, 1872.” About the 18th of June, 1871, the post commander at Fort Pembina first learned of the contract, and informed Brawley that only 40 cords of wood would *136be required, and forbade tbe hauling of any more. Written notice to this effect was given on July 1st. Relying upon tbe award of tbe contract to him, and expecting that tbe quantity named in tbe accepted proposal would be wanted, Brawley, before tbe contract bad been signed, cut tbe 880 cords of wood and hauled part of it to tbe Fort by permission, and with tbe understanding that be assumed all risk regarding its acceptance. After tbe receipt of said notice, be hauled tbe remaining wood to a point near tbe Fort. Forty cords only were received by tbe post commander, and tbe suit involved tbe balance. Tbe court denied recovery, saying: “Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by tbe vendor in a certain establishment, or that may be shipped by bis agent or correspondent in certain vessels, and tbe quantity is named with tbe qualification of ‘about,’ or ‘more or less,’ or words of like import, tbe contract applies to the specific lot; and tbe naming of tbe quantity is not regarded as in tbe nature of a warranty, but only as an estimate of tbe probable amount, in reference to which good faith is all that is required of tbe party making it.” Tbe court further said that where the engagement is to furnish goods of a certain quality or character to a certain amount, and no independent circumstances are mentioned, tbe quantity is material'and controlling. In such a case tbe qualifying words “about,” or “more or less,” and tbe like, are used only for tbe purpose of guarding against accidental variations. If, however, “tbe qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extended significancy, then tbe contract is to be governed by such added stipulations or conditions. As, if it be agreed to furnish so many bushels of wheat, more or less, according to what tbe party receiving it shall require for tbe use of bis mill, then tbe contract is not governed by tbe quantity named, nor by that quantity with slight and unimportant variations, but by what tbe receiving party shall require for tbe use of bis mill; and tbe variation from tbe quantity named will depend upon bis *137discretion and requirements, so long as lie acts in good faitb.” The court found that the contract then under consideration was not for the delivery of any particular quantity; that the quantity designated was to be regarded merely as an estimate of what the officer making the contract supposed might be required, the substantial engagement being “to furnish what should be determined to be necessary by the post commander for the regular supply for the year, in accordance with army regulations.” The contract, the court said, merged all previous negotiations, and if it did not express the true agreement of the parties, Brawley should not have signed it. What he did, therefore, before the contract was signed, was at his own risk and could not be considered.

Applying the rule announced in the Brawley Case to the one under consideration, we think it is very clear, as was said by the learned trial Justice, that “the expression ‘approximately 2,000’ must be regarded as simply an estimate, and not as limiting or modifying in anywise the agreement of the defendant ‘to furnish all new ties necessary to replace those unfit for further service.’” There is no suggestion of bad faith on the part of the officers of the government, and we are therefore remitted to the language employed in the specifications and contract. The defendant was required to reconstruct the roadbed and relay the tracks between the points named. He was to replace with new ties all those unfit for further service. These, as was said in the Brawley case, are the determinative words, and constitute the substantial engagement. The approximate the tentative estimate given represents the tentative judgement of the officers then representing the government. To guard against any possible misunderstanding, the contractor was required specifically to agree to replace with new ties those found by the officer overseeing the work to be unfit for further service; that is to say, as the old ties were entirely uncovered, it would be easier to determine their condition, and the determination then made was to govern. Had 500 ties only been necessary, nothing could have been deducted from the amount called for by the contract, for the reason that this item of the contract called for no more new *138ties than were necessary to replace those unfit for further service. The obligations of the parties being reciprocal, we think it is quite apparent that the contractor could not have fulfilled his part of the contract by furnishing less ties than were necessary to replace those unfit for further service.

But it is insisted that the officer of the government was made the interpreter of the true intent and meaning of the specifications, and that his decision in the premises is binding upon the parties. . The view we take of the case renders it unnecessary to determine whether an officer of the government may be given authority, in such a contract as is here before us, to determine the law of that contract. In our view, this was not attempted. He was merely to determine questions of fact, and not of law. The provisions of the specifications to which we have referred all indicate this. Paragraph 3, upon which the defendant particularly relies, requires the contractor to furnish all materials, labor, etc., necessary to complete the work, according to the true intent and meaning of the drawings and specifications. It then provides that the officer in charge shall be the interpreter of such intent and meaning, that is to say, he shall determine what shall be necessary “to complete the workWhen, therefore, he determined the number of ties unfit for further service and that must be replaced with new to complete the work, he exhausted his authority, and the additional amount paid for the ties here involved was paid under a mistake of law. These ties did not constitute extra work within the meaning of paragraph 20 of the specifications, but, as previously pointed out, were clearly required to be furnished under paragraph 30 thereof.

It is unnecessary to determine what would have been the result had an additional contract been entered into for the furnishing of these 158 ties, since the averments in the plea are not sufficiently explicit to raise the question. In one place, as we have seen, it is averred that the officer in charge paid the defendant for these ties, the amount paid “being the price agreed upon in a supplemental contract at the price of $1.10 each tie.” This is a mere conclusion of the pleader, and amounts to nothing more than an allegation that the officer in charge entered into *139some sort of supplemental contract. This he was without authority to do. It is later averred in the plea that this additional amount was paid by the officer in charge “upon the written authority of the Sereetary of War.” Here, again, there is no averment that a supplemental contract had been entered into by one authorized to act for the government, but rather that the Secretary of War, adopting the mistake of law theretofore made by tho officer in charge, authorized the payment. It is enough to say that there is no more efficacy in a payment under a mistake of the Secretary, than in a payment under a mistake of the officer in charge. The defendant should have pleaded what was actually done, and not mere conclusions.

It is new well settled that money paid out by an officer of the government under a mistake of law may be recovered by appropriate action. McElrath v. United States, 102 U. S. 426, 26 L. ed. 189; United States v. Gillmore, 189 Fed. 761.

The judgment of tho trial court was correct and is therefore affirmed. Affirmed.