Haldane v. United States

• Decision Date: 26 August 1895
• Docket Number: 608.
• Citation: 69 F. 819
• Parties: HALDANE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

69 F. 819

HALDANE et al. v. UNITED STATES.

No. 608.

United States Court of Appeals, Eighth Circuit.

August 26, 1895

J. R McClure, for plaintiffs in error.

W. C Perry, U.S. Atty., filed brief for the United States.

This case arose out of the following circumstances: On April 30 1890, the United States, through Major C. W. Foster, chief quartermaster for the department of Missouri, advertised for proposals to furnish hay and straw for certain military posts; among others, for Ft. Riley, Kan. The advertisement notified bidders that proposals for the delivery of 4,000,000 pounds of hay and 1,000,000 pounds of straw at Ft. Riley, Kan., would be received at the office of the chief quartermaster at St. Louis, Mo., and at the office of the post quartermaster at Ft. Riley, 'until 12 o'clock noon, central standard time, May 31st, 1890, and then opened. ' A circular issued in connection with the advertisement contained, among other thinks, the following notice, addressed to bidders: 'Deliveries to commence July 1, 1890, if required; be continued at such times and in such quantities as may be required; and be completed if required, by October 15, 1890; otherwise, to be completed by June 30, 1891. * * * The proposals must be made in triplicate, * * * and will not be entertained unless accompanied by a guaranty having justification in amount of not less than 10 per centum of the total consideration of the proposal, executed strictly in accordance with instructions printed upon the back of the form, that the bidder will not withdraw his proposal within sixty days succeeding the 31st day of May, 1890, and that, if the proposal be accepted in whole or in part, he will enter into a contract and bond agreeably to the terms of his proposal within ten days after the day on which he is notified of such acceptance and award, and that, in case of his failure to enter into such contract and give bond within said time, he will pay to the United States the difference in money between the amount of his bid and the amount for which the proper officer of the United States may contract with another party to furnish said supplies. * * * ' The plaintiffs in error Peter Haldane and W. D. Moore filed a proposal on May 30, 1890, to furnish and stack at Ft. Riley 5,000,000 pounds of hay, at 15 49/100 cents per hundredweight. The other plaintiffs in error, George A. Taylor and L. R. White, signed the proposal as guarantors. Other proposals to furnish hay at Ft. Riley were made by Thomas Dixon, C. J. Cook, and C. M. Dysche, respectively. All of the proposals so made were duly opened on May 31, 1890. Subsequently, on June 10, 1890, C. M. Dysche was duly notified that his bid to furnish and deliver 5,000,000 pounds of hay at Ft. Riley had been accepted, and that a contract and bond would be forwarded to him for execution as soon as possible. Dysche, it seems, on July 21, 1890, finally refused to enter into a contract with the government to furnish hay at Ft. Riley in accordance with his proposal; whereupon the chief quartermaster, as it is claimed, duly notified Peter Haldane and W. D. Moore that their proposal of May 30th to deliver 5,000,000 pounds of hay at Ft. Riley was accepted by the government. On or about July 22, 1890, the chief quartermaster also transmitted to them, by mail, a contract, to be by them executed in accordance with their proposal. The contract so tendered contained, among other things, the following clause: 'Deliveries on this contract, if required, shall commence on the first day of

August, 1890; provided that the agreement is approved by the quartermaster general, U.S. army; otherwise, not until such approval is obtained. ' Haldane and Moore claimed that they received no notice, personal or otherwise, of the acceptance by the government of their proposal until July 31, 1890, more than 60 days subsequent to May 31, 1890, and for that reason, and other reasons as well, they declined to sign the contract or deliver the hay. For their refusal to execute said contract, and to deliver the hay according to their proposal of May 30, 1890, the United States brought an action against them in the district court of the United States for the district of Kansas, and recovered a judgment against them and their guarantors in the sum of $3,572.28. To reverse that judgment, the defendants below sued out the present writ of error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

It is contended in behalf of the government that the errors complained of in the brief of counsel for the plaintiffs in error, and on the oral argument of the case, have not been properly assigned in accordance with our rules; and this point is undoubtedly well taken so far as the assignments relate to the admission and exclusion of evidence. We have invariably held that we would not consider alleged errors in the admission and exclusion of evidence unless the testimony that is claimed to have been erroneously admitted or excluded is set out substantially in the assignment of errors and in the brief, as required by rules 11 and 24 of this court (11 C.C.A. cii., lxxxviii.). ^[1] National...