United States v. Speed

CourtUnited States Supreme Court
Writing for the CourtMILLER
Citation75 U.S. 77,7 Ct. Cl. 93,19 L.Ed. 449,8 Wall. 77
Decision Date01 December 1868
PartiesUNITED STATES v. SPEED

75 U.S. 77
19 L.Ed. 449
8 Wall. 77
UNITED STATES
v.
SPEED.
December Term, 1868

APPEAL from the Court of Claims. The case was thus:

By an act of 14th April, 1818,1 'the Commissary-General and his assistants shall perform such duties in purchasing and issuing of rations as the President shall direct;' 'supplies for the army (unless in particular and urgent cases the Secretary of War should otherwise direct) shall be purchased by contract, on public notice,' &c., 'which contract shall be made under such regulations as the Secretary of War may direct.' One of the regulations prescribed by the Secretary of War, and which made Rule No. 1179 in the Army Regulations of 1863, is thus:

'Contracts for subsistence stores shall be made after due public

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notice, and on the lowest proposals received from a responsible person who produces the required article. These agreements shall expressly provide for their termination at such time as the Commissary-General may direct.'

By an act of March 2, 1861,2 it is provided, that

'All purchases and contracts for supplies or services in any of the departments of the government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles, or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or service may be procured by open purchase or contract at the places, and in the manner in which such articles are usually bought and sold, or such services engaged between individuals.'

These statutes and regulations being in force, the Secretary of War, through the Commissary-General, authorized Major Simonds, at Louisville, in October, 1864, and during the late rebellion, to buy hogs and enter into contracts for slaughtering and packing them, to furnish pork for the army.

On the 27th of October, Simonds, for the United States, and Speed, made a contract, by which the live hogs, the cooperage, salt, and other necessary materials, were to be delivered to Speed by the United States, and he was to do the work of slaughtering and packing. The contract was agreed to be subject to the approval of the Commissary-General of Subsistence.

No advertisements for bids or proposals was put out before making the contract, nor did the contract contain a provision that it should terminate at such times as the Commissary-General should direct.

After the contract was made, Simonds wrote—as the facts were found under the rules, by the Court of Claims, to be—to the Commissary-General, informing him substantially of its terms; but no copy of it, nor the contract itself, was presented

Page 79

to the Commissary-General for formal approval. The Commissary-General thereupon wrote to Simonds, expressing his satisfaction at the progress made, and adding: 'The whole subject of pork-packing at Louisville is placed subject to your direction under the advice of Colonel Kilburn.'

The claimant incurred large expenditures in the preparation for fulfilling his contract. He also kept, during the whole season, the full complement of hands necessary to have slaughtered the whole 50,000 hogs within the customary season. During the season, there were furnished to the claimant 16,107 hogs; but owing to the high price of hogs, Simonds, with the approval of the Commissary-General, gave up the enterprise, and refused to furnish the remainder of the 50,000 hogs.

Upon these facts the Court of Claims held,

1st. That the Secretary of War, through the Commissary-General, might authorize such a contract to be made without a resort to the advertisement and bids proposed.

2d. That the letter of the Commissary-General was a virtual approval of the contract.

3d. That the contract was an engagement on the part of the United States to furnish 50,000 hogs to the claimant, to slaughter and pack at the stipulated price, and that their failure in part to perform the same entitled the plaintiff to recover damages.

4th. That the true measure of damages was the difference between the cost of doing the work and what the claimant was to receive for it, making reasonable deductions for the less time engaged, and for release from the care, trouble, risk, and responsibility attending a full execution of the contract.

The court awarded damages accordingly to the claimant, and the United States appealed.

Mr. Dickey, Assistant Attorney-General, for the appellant:

1. Where Congress has intended that the government shall embark in the business of manufacturing any of the materiel of war, it has made special provision by law for its doing so.

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It has established armories and navy-yards, and provided for the making of arms and the building of vessels; but no-where can be found any enactment authorizing any officer or class of officers to embark the government in the business of curing pork or bacon, or in the business of raising corn, or hogs, or cattle, or horses, or mules, or asses for the army.

2. The contract is not binding upon the United States, because it contains no provision 'for the termination' of the contract 'at such times as the Commissary-General may direct.'

This contract, containing no such provision, is a contract made in violation of the statute of 1818, and is not binding upon the...

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51 practice notes
  • T.H. Flood & Co. v. Bates, 2983.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1922
    ...338, 4 Sup.Ct. 81, 28 L.Ed. 168; United States v. Purcell Envelope Co., 249 U.S. 313, 39 Sup.Ct. 300, 63 L.Ed. 620; United States v. Speed, 8 Wall. 77, 19 L.Ed. 449; Ware Bros. Co. v. Cortland Cab Co., 192 N.Y. 439, 85 N.E. 666, 22 L.R.A. (N.S.) 272, 127 Am.St.Rep. 914. Bates cited: Boardma......
  • Morgan v. Young, No. 4386.
    • United States
    • Court of Appeals of Texas
    • July 21, 1947
    ...Waco Tap R. Co. v. Shirley, 45 Tex. 355, page 375; Porter & McMillan v. Burkett, 65 Tex. 383, page 385, citing United States v. Speed, 8 Wall. 77, 19 L.Ed. 449; Long v. McCauley, Tex. Sup., 3 S.W. 689, page 692 ("Appellee's loss was the contract price, less the cost to him of carrying it ou......
  • United States v. Penn Foundry Mfg Co 8212 10, 1949, No. 253
    • United States
    • United States Supreme Court
    • May 31, 1949
    ...Steel Co., 121 U.S. 264, 276, 7 S.Ct. 875, 880, 30 L.Ed. 967; Smoot's Case, 15 Wall. 36, 44, 21 L.Ed. 107; United States v. Speed, 8 Wall. 77, 84, 19 L.Ed. 449. In its petition for a writ of certiorari in the instant case, the United States specified that the Court of Claims erred in failin......
  • LINAN-FAYE CONST. v. Housing Authority, Civ. A. No. 90-4651 (JEI).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 1994
    ...and the amount of recovery to which the terminated contractor was entitled. See, e.g., United States v. Speed, 75 U.S. (8 Wall.) 77, 19 L.Ed. 449 (1868) (discussing Rule 1179 of Army Regulations of 1863, a prototype for the modern termination for convenience doctrine); United States v. Corl......
  • Request a trial to view additional results
51 cases
  • T.H. Flood & Co. v. Bates, 2983.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1922
    ...338, 4 Sup.Ct. 81, 28 L.Ed. 168; United States v. Purcell Envelope Co., 249 U.S. 313, 39 Sup.Ct. 300, 63 L.Ed. 620; United States v. Speed, 8 Wall. 77, 19 L.Ed. 449; Ware Bros. Co. v. Cortland Cab Co., 192 N.Y. 439, 85 N.E. 666, 22 L.R.A. (N.S.) 272, 127 Am.St.Rep. 914. Bates cited: Boardma......
  • Morgan v. Young, No. 4386.
    • United States
    • Court of Appeals of Texas
    • July 21, 1947
    ...Waco Tap R. Co. v. Shirley, 45 Tex. 355, page 375; Porter & McMillan v. Burkett, 65 Tex. 383, page 385, citing United States v. Speed, 8 Wall. 77, 19 L.Ed. 449; Long v. McCauley, Tex. Sup., 3 S.W. 689, page 692 ("Appellee's loss was the contract price, less the cost to him of carrying it ou......
  • United States v. Penn Foundry Mfg Co 8212 10, 1949, No. 253
    • United States
    • United States Supreme Court
    • May 31, 1949
    ...Steel Co., 121 U.S. 264, 276, 7 S.Ct. 875, 880, 30 L.Ed. 967; Smoot's Case, 15 Wall. 36, 44, 21 L.Ed. 107; United States v. Speed, 8 Wall. 77, 84, 19 L.Ed. 449. In its petition for a writ of certiorari in the instant case, the United States specified that the Court of Claims erred in failin......
  • LINAN-FAYE CONST. v. Housing Authority, Civ. A. No. 90-4651 (JEI).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 1994
    ...and the amount of recovery to which the terminated contractor was entitled. See, e.g., United States v. Speed, 75 U.S. (8 Wall.) 77, 19 L.Ed. 449 (1868) (discussing Rule 1179 of Army Regulations of 1863, a prototype for the modern termination for convenience doctrine); United States v. Corl......
  • Request a trial to view additional results

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