Kihlberg v. United States

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation24 L.Ed. 1106,97 U.S. 398
PartiesKIHLBERG v. UNITED STATES
Decision Date01 October 1878

97 U.S. 398
24 L.Ed. 1106
KIHLBERG
v.
UNITED STATES.
October Term, 1878

APPEAL from the Court of Claims.

This is an appeal by Kihlberg from the judgment of the Court of Claims, in a suit upon a contract made Jan. 31, 1870, between the United States and him, for his transportation of military, Indian, and government stores and supplies from points on the Kansas Pacific Railway to posts, depots, and stations in portions of Kansas, Colorado, Texas, Indian Territory, and New Mexico, and to such other depots as might thereafter be designated within the States and Territories named.

The following are portions of the contract the construction of which is involved in this suit:——

'ART. 2. That the said Kihlberg agrees and binds himself . . . to transport, under this agreement, from and to the posts, depots, or stations named in art. 1, or from and to any other posts, depots, or stations that may be established within the district described in said article, any number of pounds of military, Indian, and government stores and supplies, from and between one hundred thousand pounds and ten millions of pounds in the aggregate.

* * * * *

'ART. 5. The military, Indian, and government stores and supplies which shall be transported under this agreement shall be consigned to their respective destinations, and receipts on bills of lading shall be given by the officer of the quartermaster's department serving at the place of consignment, for the full quantity of stores that shall

Page 399

be delivered, and upon such receipts payments shall be made to the said Kihlberg, as hereinafter provided.

* * * * *

'ART. 7. . . . Upon the arrival of the train at the place of destination or delivery, the officer of the quartermaster's department at the point of delivery shall indorse the bill of lading in accordance with the finding of a board of survey, as hereinafter provided, stating the quality and condition of the stores delivered, upon which indorsement payment shall be made as per contract, deducting the amount of any payment or payments previously made, and also for any articles missing, lost, destroyed, or damaged, and which the board of survey may find to be properly chargeable to the contractor, at the rate specified in art. 8 of this agreement.

'ART. 8. In all cases when stores have been transported by the said Kihlberg under this agreement, a board of survey, to be applied for in writing by the contractor or his agent (one member of which board shall be, if practicable, an officer on duty in the subsistence department), shall be called without delay, on their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and in cases of loss, deficiency, or damage, to investigate the facts and report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractor or to causes beyond his control, and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall govern the payments to be made on it.

'For loss of weight, due to shrinkage, and for leakage of vinegar, molasses, or other liquids, the contractor shall not be held liable if the packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or his agent. For loss, deficiency, or damage, attributable to the contractor, he shall pay double the cost at the point where he receives the articles, which cost shall be determined by taking the cost price at place of purchase and adding thereto the cost of transportation to the point where the stores were turned over to the contractor; and no freight whatever shall be paid on stores deficient. In case of damage, freight shall be deducted in proportion to the quantity damaged. Should no board of survey be called when requested by the...

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157 practice notes
  • Tobin Quarries v. Central Nebraska Public P. & I. Dist., Civil Action No. 57.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • January 8, 1946
    ...final upon matters of detail that in the contract were explicitly committed to his exclusive determination. In Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106, the particular element of distance in the carriage of materials was expressly entrusted to the determination of the district ......
  • McCullough v. Clinch-Mitchell Const. Co., No. 9810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 22, 1934
    ...have given its assent to any contract which did not confer upon one of its officers the authority in question" (Kihlberg v. United States, 97 U. S. 398, 401, 24 L. Ed. 1106). The same conception has been expressed by this court in a similar situation: "The courts cannot, without making a ne......
  • Seaboard Lumber Co. v. U.S., No. 88-1486
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • May 17, 1990
    ...or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment...." Kihlberg v. United States, 97 U.S. 398, 402 [24 L.Ed. 1106 (1878) ]; Sweeney v. United States, 109 U.S. 618, 620 [3 S.Ct. 344, 344, 27 L.Ed. 1053 (1883) ]; Martinsburg & P.R. Co. v. ......
  • 31 658 Contractors, Inc v. United States 8212 88, No. 70
    • United States
    • U.S. Supreme Court
    • October 21, 1971
    ...remedy and to avoid 'vexatious and expensive and, to the contractor oftentimes, ruinous litigation.' Kihlberg v. United States, 97 U.S. 398, 401, 24 L.Ed. 1106 (1878). The contractor has ceded his right to seek immediate judicial redress for his grievances and has contractually bound himsel......
  • Request a trial to view additional results
156 cases
  • Tobin Quarries v. Central Nebraska Public P. & I. Dist., Civil Action No. 57.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • January 8, 1946
    ...final upon matters of detail that in the contract were explicitly committed to his exclusive determination. In Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106, the particular element of distance in the carriage of materials was expressly entrusted to the determination of the district ......
  • McCullough v. Clinch-Mitchell Const. Co., No. 9810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 22, 1934
    ...have given its assent to any contract which did not confer upon one of its officers the authority in question" (Kihlberg v. United States, 97 U. S. 398, 401, 24 L. Ed. 1106). The same conception has been expressed by this court in a similar situation: "The courts cannot, without making a ne......
  • Seaboard Lumber Co. v. U.S., No. 88-1486
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • May 17, 1990
    ...or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment...." Kihlberg v. United States, 97 U.S. 398, 402 [24 L.Ed. 1106 (1878) ]; Sweeney v. United States, 109 U.S. 618, 620 [3 S.Ct. 344, 344, 27 L.Ed. 1053 (1883) ]; Martinsburg & P.R. Co. v. ......
  • 31 658 Contractors, Inc v. United States 8212 88, No. 70
    • United States
    • U.S. Supreme Court
    • October 21, 1971
    ...remedy and to avoid 'vexatious and expensive and, to the contractor oftentimes, ruinous litigation.' Kihlberg v. United States, 97 U.S. 398, 401, 24 L.Ed. 1106 (1878). The contractor has ceded his right to seek immediate judicial redress for his grievances and has contractually bound himsel......
  • Request a trial to view additional results

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