Smoot Case
| Decision Date | 01 December 1872 |
| Citation | 8 Ct.Cl. 96,82 U.S. 36,15 Wall. 36,21 L.Ed. 107 |
| Parties | SMOOT'S CASE |
| Court | U.S. Supreme Court |
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APPEAL and cross-appeal from the Court of Claims; the case being thus:
On the 5th of February, 1864, Smoot entered into two contracts with the War Department through Eakin, quartermaster; one to deliver within forty days 2500 cavalry horses at St. Louis, and the other to deliver within fifty days 2000 like horses at Chicago, at the government stables in each place; of certain qualifications set forth in the contracts, and subject to the inspection provided for in one article of the contract, which was as follows:-
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'It is agreed that the horses, upon being delivered, shall be examined and inspected without unnecessary delay, by a person or persons appointed by the United States, and after such inspector shall have certified that they are in all respects as contracted for, and fully equal to the specifications aforesaid, they shall be received and become the property of the United States; and all such horses as may be condemned and rejected by said inspectors, shall be removed from the government stables within one day after the contractor shall have been notified of said rejection.'
Payment for the horses was to be made on completion of the contract, should Congress have made an appropriation for that purpose; otherwise as soon thereafter as funds might be appropriated.
During the existence of the contracts Smoot was possessed of means and credit to comply with the stipulations on his part, and he and his agents went to Chicago and other parts of the West to make, and did make, all necessary arrangements to carry them out, except the actual procuring of the horses.
At the time the contracts were entered into, and long prior thereto, the mode of inspection of horses purchased by the government had been for horses to be presented and immediately examined in the presence of the owner, and if satisfactory, they were accepted, and if unsatisfactory, they were rejected and returned to the owner without delay, expense, or blemish.
By an order, however, dated on the same day as these contracts, but not promulgated in Chicago or St. Louis until the 1st of March, or known to the defendant till then, the government ordered another and different mode of inspection from what had been the practice and custom of the government theretofore. This new order ran thus:
'Each horse shall be placed in the inspection yard twenty-four hours before inspection, after which time, every person, except the inspector and his assistants, are to leave the yard, not to re-enter it or handle the horses until the inspection and branding has been completed.
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'All horses presented that are manifestly an attempt at fraud on the government because of any incurable disease or any distemper whatever, shall be branded on the left shoulder with the letter R.
'Horses that are rejected for being under age, in poor condition, or temporarily injured by transportation or otherwise, shall be lightly branded on the front hoof, near the coronet, with the letter R, not to exceed three-quarters of an inch.
'Any horse once rejected, that is presented to the government without notice of that fact, shall be considered and deemed fraud upon the government, and branded on the left shoulder as fraud.
'When horses are doubtful before branding, they may be kept three or four days under guard, at the expense of the contractor, and then disposed of by branding or otherwise, as the inspector may determine.
'No mares will be accepted.'
At the time the contracts were entered into, and for a long time prior thereto, the usual course of business in filling contracts of this kind, had been for the contractor to buy his horses subject to government inspection, and one effect of the order of the new rules of inspection was to create a change in this course of business, and, therefore, no horses could be purchased by contracts subject to the new inspection.
Another effect was to impose upon the contractors considerable risk, in consequence of the horses being injured by kicks and bruises; by contagious diseases; by loss of identity, in putting the animals with other parcels of horses, so that in the event of rejection the same animals could not be returned; by the expense of keeping the animals during the four days; by injury which might occur to them from being branded by hot iron; the branding of a rejected horse in the manner prescribed by the new order greatly lessening his market value.
Upon ascertaining the effect produced by the new order of inspection, Smoot caused application to be made at the office of the bureau of cavalry, in Washington, for a modification
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of it, and repeatedly offered to go on and fill and contracts if the objectionable features of the order should be removed. The chief of the bureau was then absent. The next officer in rank referred the matter to the chief, who was expected to be in Chicago soon to decide the matter there. The chief of the cavalry did soon after arrive in Chicago, and the matter was presented to him by several other contractors who were in the same position as Smoot, but the chief decided not to revoke or modify the order. Neither Smoot nor his agent saw the chief of the cavalry in Chicago, but his decision was communicated to Smoot.
Smoot was able and willing to perform his contract by delivering the horses within the time prescribed by it, subject to the inspection prescribed by the contract, but was unwilling to deliver any horses subject to the inspection required by the new order. He did not possess any horses in Chicago, nor tender any to the government at that place, nor apply there to the chief of the cavalry bureau to waive the inspection ordered; but he possessed ample time and means for procuring horses, and he regarded the order as a renunciation by the government of its agreement.
So far in regard to the horses deliverable at Chicago.
The same facts existed as to the contract for St. Louis as to the contract for Chicago, except that the new order...
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CHAPTER 9
...ago, “is the halls of Congress, for that branch of the government has limited the jurisdiction of the Court of Claims.”15 In re Smoot, 82 U.S. 36, 15 Wall. 36, 45, 21 L. Ed. 107 (1873). We enjoy no “liberty to add an exception . . . to remove apparent hardship,” Corona Coal, 263 U.S., at 54......