Parish v. United States

• Decision Date: 01 October 1879
• Citation: 100 U.S. 500,25 L.Ed. 763
• Parties: PARISH v. UNITED STATES
• Court: U.S. Supreme Court

100 U.S. 500

100 U.S. 500

25 L.Ed. 763

PARISH v. UNITED STATES.

October Term, 1879

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. John B. Sanborn and Mr. Ralph P. Lowe for the appellant.

The Solicitor-General, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

This action was commenced in the Court of Claims, under an act of Congress specially authorizing it, approved May 31, 1872.

There is nothing in the act which furnishes any rule for its decision, though some of its provisions are emphasized in the argument of counsel. The action was brought on the following contract:——

'Article of agreement made this fifth day of March, 1863, between Henry Johnson, medical store-keeper, United States army, and acting medical purveyor, Washington, D. C., on the one part, and Joseph W. Parish and William L. Huse, comprising the firm of Joseph W. Parish & Co., of the city of St. Louis, State of Missouri, of the other part, witnesseth:——

'That the said Henry Johnson, medical store-keeper United States army, for and on behalf of the United States of America, and the said Joseph W. Parish and William L. Huse, comprising the firm of J. W. Parish & Co., for themselves, their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, in the manner following, viz.:——

'First, That said J. W. Parish & Co. shall deliver at Memphis, Tennessee; Nashville, Tennessee; St. Louis, Missouri; and Cario, Illinois, the whole amount of ice required to be consumed at each respective point and vicinity during the remainder of the year 1863. Ice to be in quality A No. 1, and delivered at two thousand (2,000) pounds to the ton.

'Second, That for each and every ton of ice delivered at Nashville, Tennessee, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty-five dollars ($25).

'Third, That for each and every ton of ice delivered at St. Louis, Missouri, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of sixteen dollars ($16).

'Fourth, That for each and every ton of ice delivered at Cario, Illinois, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty dollars ($20).

'Fifth, That for each and every ton of ice delivered at Memphis, Tennessee, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty dollars ($20).

'Sixth, All the ice delivered under this contract to be subjected to the inspection and approval of the medical officer in charge of the post where it is delivered, and such as does not conform to the specifications set forth in this contract shall be rejected.

'Seventh, That payments shall be made from time to time on receipted bills of lading and duplicate accounts certified to by the medical officer in charge of the post where it is delivered.

'Eighth, No member of Congress shall be admitted to any share herein or any benefit to arise therefrom.

'Ninth, It is further agreed that the said J. W. Parish & Co. will allow three (3) working days for discharging each cargo at either one of the points before mentioned; after that time demurrage to be allowed by the said Henry Johnson, medical store-keeper, United States army, as per charter-party or bill of lading of the vessel.

'In witness whereof, the undersigned have hereunto placed their hands and seals the day and date above written.

[SEAL.] 'HENRY JOHNSON,

'Med. Store-keeper U. S. A. Acting Med. Purveyor.

'J. W. PARISH & CO.'

Under this contract, there was delivered and paid for by the government, at the stipulated prices, 12,768 tons of ice, about which there is no dispute.

The controversy grows out of the following correspondence and the acts of parties under it:——

'ASSISTANT SURGEON-GENERAL'S OFFICE,

'ST. LOUIS, MISSOURI, March 25, 1863.

'Messrs. J. W. PARISH & CO.:

'GENTLEMEN,—I am instructed by the Assistant Surgeon-General to direct that the ice which you have agreed to deliver at the points designated in your contract shall be distributed in the following quantities, viz.:——

'At St. Louis 5,000 tons,

'At Cario 5,000 tons,

'At Memphis 10,000 tons,

'At Nashville 10,000 tons,

making the total of 30,000 which you have contracted to deliver. The ice to be delivered at Nashville and Memphis is for the use of the sick of the armies in the field, and should be furnished without delay.

'Very respectfully, your ob't servant,

'By order of the Assistant Surgeon-General:

(Sig.) 'JOSEPH B. BROWN,

'Surgeon United States Army.'

A copy of this order being received at the Surgeon-General's office, the following telegram and letter were sent to Assistant Surgeon-General Wood:——

'SURGEON-GENERAL'S OFFICE,

'March 31, 1863.

'Parish & Co. have not contracted for 30,000 tons of ice. Suspend the order you gave him.

(Sig.) 'W. A. HAMMOND, Surgeon-General

'Col. R. C. WOOD, Asst. Surgeon-General U. S. Army, St. Louis.'

'SURGEON-GENERAL'S OFFICE,

'WASHINGTON, D. C., March 31, 1863.

'SIR,—Your communication of the 25th instant to J. W. Parish & Co., in regard to the quantities of ice to be delivered at the different points for which they contract, forwarded to this office for the information of the Surgeon-General, has been received.

'I am instructed to inform you that the contract with Parish &amp Co. was made for such quantities as might be needed; and that the ice should be ordered from them, from time to time, to different points, in lots of a few hundred tons, as needed.

'Very respectfully, your obedient servant,

'C. H. ALDEN, Assistant Surgeon, U. S. A.

'Col. R. C. WOOD, Assistant Surgeon-General, St. Louis, Mo.'

'ASSISTANT SURGEON-GENERAL'S OFFICE,

'ST. LOUIS, MISSOURI, March 31, 1863.

'TO J. W. PARISH & CO. (Care C. H. WICKER & CO.),

'Chicago, Ill.:

'I am instructed by the Surgeon-General to suspend the order I have given you till further instructions are given from him.

(Sig.) 'R. C. WOOD, Asst. Surgeon-General.'

In the finding of facts by the Court of Claims, it is said that it does not appear that this last despatch was received by the claimants, though they had knowledge of the notice by oral information from the Assistant Surgeon-General at St. Louis, on the second day of April.

The sixth finding of fact by the Court of Claims, which is also important, is thus stated:——

'Prior to the delivery to the said Parish of Joseph B. Brown's letter of March 25, 1863, set forth in finding V, the said Parish had purchased for delivery under the contract sued on 8,100 tons of ice; and after the delivery of said letter to him, he set about purchasing ice for delivery in pursuance of said letter; and thereafter, and before he was, on the second day of April, 1863, apprised of the aforesaid order of Surgeon-General Hammond, of March 31, he had purchased or contracted for the purchase of 23,000 tons of ice.'

If we add to this that 10,000 tons of this latter purchase was made at Lake Pipin, on the upper Mississippi River, which was stored there at the time and which became a total loss, and that the order of the Surgeon-General suspending the order of the Assistant Surgeon-General remained in that condition and has never been revoked or modified, we have the main elements on which the case was decided in the court below by dismissing the claimants' petition.

The petitioners claim to recover the contract price of the entire 30,000 tons, after deducting what they have been paid and the reasonable cost of delivering the ice not received by the government.

The opinion of the Court of Claims found in the record bases the dismissal of the petition on the ground that the Assistant Surgeon-General, in making the order on claimants for the 30,000...