Post commanders in the military department where the present controversy arose were ordered to assume control of all timber, wood, hay, and grazing upon the public lands adjacent to their respective posts, to the extent that the same were there required for the public use.
Supplies for the post were usually obtained by contract; and it appears that a contract was made between the petitioner and the quartermaster of the department, by which the former agreed to deliver and pile, in the wood-yard of the post, one thousand cords, more or less, of good, sound, merchantable oakwood, to be delivered at the times specified, subject to such inspection as the quartermaster should deem necessary. Superadded to that is also the stipulation that no trader, sutler, contractor, or civilian will be allowed to cut timber about the post; and it appears that the post referred to is situated on the public domain, and that it was surrounded by the public lands.
Before the work was commenced, the contractor executed a power of attorney to the person for whose use the suit is brought; and it appears that the attorney did all the work under the contract as agent for and in the name of the contractor.
Pursuant to the contract, due deliveries were made by the attorney, to the amount of one thousand and three cords of wood; for which he was paid at different times, he receipting for the same, as attorney-in-fact of the contractor, in full for the quantity delivered. Payment in full for all that was delivered is established by the findings; but the petitioner insists that the United States broke the contract, by not allowing the attorney to cut the wood within the defined limits of the post; that he was refused that privilege; and that he was compelled to cut it at a greater distance from the place of delivery, at an expense of $2,132 beyond what it would have cost if he had been allowed to cut it within the military reservation, as he had a right to do under the contract, for which he claims compensation: and he also alleges that the United States obstructed the delivery of the wood, so as to cause him an additional expense of $468, which he also claims to recover.
Hearing was had; and the Court of Claims dismissed the petition, and the claimant appealed to this court.
Throughout, the attorney or agent of the contractor claimed the right to cut the wood within the military reservation, evidence of which is seen in the fact that he commenced cutting about a mile and a half from the fort, where he cut forty cords before he was ordered by the post commander to desist, and to remove beyond the lines of the reservation. Whatever he may have claimed, he obeyed the order, and removed to another point, four miles from the fort, though still within the reservation; and there he cut three hundred and ten cords of the wood, when the commander of the post ordered him to stop cutting at that place, and to move outside of the reservation. Responsive to that order, he set up the claim that he had a right, under the contract, to cut the wood within the reservation; but the post commander refused to recognize any such right, and denied the claim.
Opposite views were evidently maintained by the parties; but the claimant yielded, and cut the balance of the wood required, to wit, six hundred and fifty cords, at a point half a mile or a mile beyond the limits of the reservation, and about seven miles from the fort.
Neither party attempted to rescind the contract; nor did the agent of the contractor cease to act under it, as he completed the cutting of the wood, and subsequently delivered it at the place designated in the contract, and collected the amount due to him at the contract price. Quantity, price, and place of delivery are all fixed in the contract; but nothing is said about the place where the wood is to be cut, except what may be properly inferred from the provision that no traders, sutlers, contractors, civilians, or others shall be allowed to cut timber about the post until all required by the party of the second part, to wit, the United States, for the purposes herein specified, shall have been secured; and that it shall be the duty of the post commander to enforce the stipulation as made and provided.
Beyond all question, the post commander denied the right of the attorney, under the contract, to cut the wood within the lines designating the military reservation; and it is equally clear that the agent of the claimant finally acquiesced in the views of the post commander, so far as respects the cutting of the wood.