American Sales Corporation v. United States
| Decision Date | 19 April 1929 |
| Docket Number | No. 5498.,5498. |
| Citation | 32 F.2d 141 |
| Parties | AMERICAN SALES CORPORATION v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
T. W. Gregory, of Houston, Tex., and Jas. W. Wayman, of Galveston, Tex., for appellant.
H. M. Holden, U. S. Atty., and Howell Ward, Asst. U. S. Atty., both of Houston, Tex.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is an appeal from a judgment disposing of two cases which were tried together, a jury being waived. One of the cases was an action by the appellee, the United States, to recover amounts alleged to be due under five contracts between appellee and appellant, for the sale by the former to the latter of described wagons. The claim asserted in that suit was resisted on the ground that the original contracts sued on, which fixed the price of the wagons at $55.25 each, were changed, after the terms thereof had been partially complied with and when there had been no breach of the contracts, by reducing the price of the undelivered wagons to $30.25 each, and otherwise altering provisions of the contracts, and that appellant complied with the contracts as so changed. The other suit was an action by the appellant against the appellee to recover an amount paid by appellant for wagons contracted for, but which were not delivered. For a further statement of the nature of the cases and of the facts disclosed by the evidence, reference is made to the opinion rendered by the District Judge. United States v. American Sales Corporation (D. C.) 27 F.(2d) 389. Appellant complains of the action of the court in deciding that the rights and obligations of the parties were governed by the original contracts sued on, because the official who acted for the government in making those contracts and also in signing the instruments purporting to evidence changes of provisions thereof was without power or authority to bind the government by consenting to those changes.
The Act of July 11, 1919 (41 Stat. 104, 105 5 USCA § 211), provides that the Secretary of War "is hereby, authorized to sell any surplus supplies * * * now owned by and in the possession of the Government for the use of the War Department to * * * any corporation or individual upon such terms as may be deemed best." It was the power so conferred which was undertaken to be exercised in the making of the original contracts. We think the power conferred includes the power to find a purchaser or one willing to buy supplies referred to, to agree on the price to be paid, to accept part of that price, and to obligate the government, by a contract or agreement binding on...
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