Messrs. John S. Wise, Jr., and Walter John King, both of New York City, for appellant. [266 U.S. 518, 519] The Attorney General, for the United States.
Mr. Justice BUTLER delivered the opinion of the Court.
The judgment appealed from sustained demurrer to plaintiff's petition and dismissed the case.
An act of Congress, approved July 11, 1919 (41 Stat. 105 [Comp. St. Ann. Supp. 1923, 6941c]) authorized the Secretary of War to sell any surplus supplies then owned by and in the possession of the government for the use of the War Department 'upon such terms as may be deemed best.' The petition alleged the following facts: The Secretary of War advertised approximately 40,000 tons of nitrate of sodium for sale at public auction at Washington, April 30, 1922. The advertisement stated that bidders would be required to make deposit of 10 per cent. of the price of the nitrate purchased; that acceptance of any bid would not be final until the execution of a contract and bond and upon the failure by purchaser within 10 days after notice of the acceptance of his bid to execute a contract, the United States might withdraw such acceptance, make other disposition of the nitrate, and retain the deposit as liquidated damages; and that the purchaser would be required, upon acceptance of his bid and before delivery of any nitrate, to enter into a written contract, providing that the government 'at its election may rescind said sale at any time before August 1, 1922, in which event the purchaser shall immediately ... deliver to the government ... sodium nitrate in equal quantity with that theretofore delivered by the government to purchaser ... and the government shall return to purchaser all money theretofore received in payment for such nitrates, and relieve him from any obligation for further payments. ...' The auction was held, and plaintiff was the highest bidder on three lots, amounting in all of 29,520 [266 U.S. 518, 520] tons. The total of its bids was $711,500.1 It deposited more than 10 per cent. of that amount. The three lots were by the auctioneer knocked down and sold to plaintiff for the amount of its bids and upon the terms and conditions of the advertisement. Plaintiff was ready to perform on its part, and demanded that the Secretary execute a contract of sale in accordance with the terms set forth in the advertisement. But the Secretary refused on the ground that the prices offered were inadequate. Plaintiff's deposits were returned to it without prejudice to any of its claims against the United States. The market value of the nitrate was $1, 919.870. And, by the petition, judgment was demanded for $1,208,370, the excess of market price ove total of plaintiff's bids.
The terms and conditions of the sale as set forth in the advertisement were binding alike upon the United States and the bidders. If, after the receipt of plaintiff's bids, the contemplated contract had been executed, the United States thereby would have been authorized immediately to rescind the sale and bring the matter to an end by return of the deposit. But the Secretary, unwilling to accept the bids, refused to execute a contract and returned plaintiff's deposit. The right under the proposed contract to rescind was the equivalent of a reservation, in the published terms and conditions of the auction sale, of the right of vendor to reject any and all bids. Exercise of the option to terminate the contract of sale would have had the same effect and accomplish the same result as the rejection of the bids. The Secretary was not bound uselessly to execute the contract and then to rescind the sale in order to give effect to his decision not to let plaintiff [266 U.S. 518, 521] have the nitrates at the prices offered. It follows that the refusal of the Secretary to make the contract of sale gave rise to no cause of action in favor of the plaintiff.
Moreover, section 3744, Revised Statutes (Comp. St. 6895), required the Secretary of War to cause every contract made by him, or by officers under him appointed to make contracts, 'to be reduced to writing and signed by the contracting parties with their names at the end thereof.' The Act of July 11, 1919, authorizing the Secretary to sell surplus war supplies, is not inconsistent with that section and does not repeal or modify it. There is no reason why it should not apply to contracts made in pursuance of the later act. It must be held that, because of the failure to make and sign a written contract as required by section 3744, the United States was not bound. Clark v. United States, 95 U.S. 539 , 541; South Boston Iron Co. v. United States, 118 U.S. 37, 42 , 6 S. Ct. 728; St. Louis Hay & Grain Co. v. United States, 191 U.S. 159, 163 , 24 S. Ct. 47. And see Monroe v. United States, 184 U.S. 524, 527 , 22 S. Ct. 444; United States v. New York & Porto Rico Steamship Co., 239 U.S. 88, 92 , 36 S. Ct. 41; Ackerlind v. United States, 240 U.S. 531, 534 , 36 S. Ct. 438.
[ Footnote 1 ] Lot 1. 13,920 tons @ $25.00 a ton $348,000 Lot 2. 5,000 tons @ 25.00 a ton 125,000 Lot 3. 10,600 tons @ 22.50 a ton 238,500 ___ $711,500 total bids