United States v. Swift Co Swift Co v. United States, s. 288

• Decision Date: 01 March 1926
• Docket Number: Nos. 288,289,s. 288
• Parties: UNITED STATES v. SWIFT & CO. SWIFT & CO. v. UNITED STATES
• Court: U.S. Supreme Court

270 U.S. 124

46 S.Ct. 308

70 L.Ed. 497

UNITED STATES

v SWIFT & CO.

SWIFT & CO.

v. UNITED STATES.

Nos. 288, 289.

Submitted Nov. 24, 1925.

Decided March 1, 1926.

Messrs. W. D. Mitchell, Sol. Gen., of Washington, D. C., William J. Donovan, Asst. Atty. Gen., Abram F. Myers, of Washington, D. C., and Rush H. Williamson, of New York City, for the United States.

[Argument of Counsel from page 125 intentionally omitted] Messrs. G. Carroll Todd, of Washington, D. C., and Albert H. Veeder, Henry Veeder, R. C. McManus, Connor B. Shaw, and P. L. Holden, all of Chicago, Ill., for Swift & Co.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a suit to recover damages for the loss caused to Swift & Co. by the refusal of the United States to accept a quantity of finished and unfinished army bacon ordered by competent authority for delivery in March, 1919. They only ground for not accepting it was that the need had been removed by the unexpected rapidity of demobilization. The claim was first presented to the War Department under the Act of March 2, 1919, 40 Stat. 1272, known as the Dent Act (Comp. St. Ann. Supp. 1919, §§ 3115 14/15 a-3115 14/15 e). It was denied by the Board of Contract Adjustment of the War Department, on the ground that the agreement under which the bacon was produced was not concluded until after November, 1918; the Dent Act applying only to agreements entered into prior to that date. The Secretary of War affirmed this decision. The petition in the Court of Claims alleged that the liability of the government was lawfully established by a written contract properly signed and executed, binding the United States.

The Court of Claims found that the contract was entered into in due and regular form, and could be enforced under the general jurisdiction of the Court of Claims, and that, even if there were defects in the contract, as the contract had been fully performed in accord with the terms of the contract as subsequently modified by the parties, the alleged defects were immaterial. It accordingly gave judgment for $1,077,386.30, being the difference between the contract price for the bacon ready for delivery in accordance with the contract and the proceeds of its sale. In addition to this amount, Swift & Co. sought damages in the amount of $212,216.69 for more than 1,000,000 pounds of salted bellies, which had been cured, but had not been smoked and made into bacon, and which were on hand at the time the contract was canceled. A large part of these were sold in France at a very large reduction. The Court of Claims held that, by attempting to sell this material abroad, Swift & Co. had taken a speculative course, and could not hold the government for the difference between the contract price and the proceeds of sale. Swift & Co. filed a cross-appeal on this issue, and that is before us.

The government in the Court of Claims set up a counterclaim against Swift & Co. for $1,571,882, made up of alleged improper and illegal charges presented by the plaintiff to the defendant on account of army bacon delivered from September, 1918, to February, 1919, which were paid by the government by mistake to Swift & Co. in the settlement of bills and accounts so presented. The Court of Claims found that it was not shown to the satisfaction of the court that any improper or illegal charges had been made or paid by mistake, or that any misrepresentation or concealment was practiced by Swift & Co., to the detriment of the government in the settlement. The government appealed from this rejection of the counterclaim, but does not press its appeal.

The correspondence upon which Swift & Co. asserts the existence of a valid contract in writing before the parties is contained in the sixteenth finding of the Court of Claims:

'XVI.

'On November 9, 1918, a conference was held on the call of Gen. Kniskern at which he and Maj. Skiles, for the government, were present and representatives of the seven large packers, including Swift & Co., for the purpose of providing allotments of bacon and other meat products for the months of January, February, and March, 1919. The quantity of bacon asked for for the three months stated was 60,000,000 pounds, 30,000,000 pounds each of serials 8 and 10.

'On November 12, 1918, Swift & Co. sent to the general depot of the Quartermaster Corps at Chicago the following communication:

"Swift & Company, Union Stock Yards,

"Chicago, November 12, 1918.

"War Department, General Depot of the Quartermaster Corps, 1819 West 39th Street, Chicago, Illinois. Gentlemen: (Attention Maj. Skiles). Referring meeting in your office Saturday November 9th, please be advised we offer for delivery during January, February, and March, 1919:

                          17,500,000 lbs. serial 10 bacon and
                           4,000,000 lbs. serial 8 bacon
                          ---------- 
                          21,500,000 lbs
                 
                      "We offer for delivery each month as shown under
                 
                                       Serial #10        Serial #8
                 
                     January........... 6,000,000        1,400,000
                     February.......... 5,500,000        1,200,000
                     March............. 6,000,000        1,400,000
                                       -----------       ----------
                      Total........... 17,500,000        4,000,000
                 

"You will note we are offering a larger proportion of serial #10 than of serial #8 bacon. This because we have gone to great expense in equipping canning rooms at Chicago, Kansas City, and Boston, on the understanding that you very much preferred serial #10 bacon to serial #8. The amount serial 10 given above is the minimum amount required to enable us to operate our canning rooms at fair capacity. If necessary, we are willing to have our offers serial 8 bacon increased and serial 10 decreased proportionately to the extent you find necessary bearing in mind that we will appreciate as liberal a proportion of serial #10 bacon as possible.

"Will you kindly advise if we shall figure to put down above amounts for delivery as shown. After receipt of such advice we will furnish you with statement of amounts we will put in cure at each plant.

"Yours respectfully,

"Swift & Company,

"Per GES, Jr.

"Prov. Dept. JH-JL.

"United States Food Administration License No. G-09753.'

'On November 26, 1918, the following communication was sent to the Chicago office of the Food Administration for the attention of Maj. Roy:

"(War Department, Office of the Quartermaster General, Packing House Products Branch, Subsistence Division, 1819 West 39th Street, Chicago, Ill.)

"Subsistence.

"431 P & S-PC.

"November 26, 1918.

"From: Officer in Charge, Packing House Products Branch, Subsistence Division, Office Director of Purchase and Storage.

"To: United States Food Administration 757 Conway Bldg., Chicago, Ill.

Attention Major E. L. Roy.

"Subject: Allotments-Bacon and canned meats.

"1. In connection with the requirements of this office-canned meats and bacon-for the months of January, February, and March, 1919, you are requested, please, to make allotments to the various packers of the items in the quantities and for delivery as is indicated below:

"Swift & Company, serial 10 bacon, January, 6,000,000 1bs.

"Swift & Company, serial 10 bacon, February, 5,500,000 1bs.

"Swift & Company, serial 10 bacon, March, 6,000,000 1bs.

"(There follows names of 17 other packers followed by stated amounts of different products for each of the three months.)

"2. It is requested that packers be informed at the earliest practical date allotments made to them, in order (sic) that they can make necessary arrangements for the procurement of tins, boxes, and other equipment, as well as to know the quantities of green product it will be necessary for them to put in cure during December to apply on later deliveries.

"3. Please send copy of the official allotments to this office for our records.

"By authority of the Director of Purchase and Storage: A. D. Kniskern,

"Brigadier General, Q. M. Corps, in Charge,

"By O. W. Menge,

"2d Lieut., Q. M. Corps.

"OWM:JDW.'

'On December 3, 1918, the Food Administration, by Maj. Roy, with the approval of the chief of the Meat Division, whose assistant he was, issued the following:

"Dec. 3.

"D. C. P. #8. 2187.

"From: U. S. Food Administration, Meat Division, Swift & Company.

"To: U. S. Yards, Chicago, Ill.

"Subject:

"1. On requisition of the Packing House Products Branch, Subsistence Division, Office of Quartermaster General, 1819 W. 39th Street, Chicago, Ill., you have been allotted for delivery during the month of—

                     Product.             Quantity.            Price.
                 
                     January, 1919,    bacon serial #10;     6,000,000 lbs.  To be
                     February, 1919,   bacon serial #10;     5,500,000 lbs.  determined
                     March, 1919,      bacon serial #10;     6,000,000 lbs.  later
                 
                

"2. The above to be in accordance with Q. M. C. Form 120 and amendments thereto.

"3. For any further information regarding this allotment apply to the Packing House Products Branch, Subsistence Division, Office of the Quartermaster General, 1819 W. 39th St., Chicago, Ill.

"United States Food Administration,

"Meat Division,

"By E. L. Roy.'

'Major E. L. Roy, Quartermaster Corps, National Army, then a captain, was by orders of the Chief of Staff, dated July 22, 1918, directed to proceed to Chicago and report to the depot quartermaster for assignment to temporary duty with the Food Administration. He became assistant to the chief of the Meat Division of the Food Administration in charge of the Chicago office of that division, and remained with the Food Administration in that capacity until his resignation on December 10, 1918, following his discharge from the Army.

'Two copies of this notice were sent to Swift & Co., on one of which was stamped the words 'Accepted,' followed by this instruction: 'To be signed and returned to Meat Division, 11 W. Washington St., Chicago.'

'Swift & Co. indicated its acceptance by writing below the word 'Accepted' the following: 'Swift & Co.,...