Mr. Chief Justice WAITE delivered the opinion of the court.
The facts found below present the following case:
In October, 1864, the chief commissary of subsistence for the military department of New Mexico advertised that he would receive proposals at his office in Santa Fe, until January 2, 1865, for the delivery of 1,000,000 pounds of corn at Ft. Sumner in three installments, to wit, 500,000 pounds not later than May 31st, 250,000 pounds not later than June 30th, and 250,000 pounds not later than July 15th. Dold, the appellant, then being at Las Vegas, N. W., was the successful bidder. He was notified January 15th, and, on the 30th, C. W. Kitchen wrote the commissary from Las Vegas as follows: 'My corn train is now close at hand. Would you have the kindness, if convenient, to authorize the A. C. S. at [154 U.S. 645, 646] Fort Sumner to receive corn on Andres Dold's contract? I will have about 85,000 pounds, I think, which I will get an order from Mr. Dold to turn in on his contract.' On the 5th February the commissary replied that he could not give an order to Dold to deliver, or to the acting commissary to receive, until the contracts were signed and approved by the general, commanding. On the same day the commissary forwarded the contract from his office to the commanding general for approval. On the next day, the 6th, he wrote Kitchen, who was one of the sureties for Dold on the contract, as follows:
After this, February 18th, Kitchen delivered to the officers of the commissary department at Ft. Sumner 28,747 pounds, and, February 24th, 34, 580 pounds, for which the chief commissary forwarded to the commanding general, March 24th, accounts or vouchers in the name of Dold, for his approval. In a communication accompanying the accounts, he wrote as follows:
The commanding general, however, disapproved the vouchers, and directed that the delivery be not accepted under the contract. The corn was actually used in the public service, and in March reported by the commissary who made the purchase to the commissary general of subsistence of the army, as purchased from Dold at the lowest market rates, not paid for, but certified accounts given. The price stated in the report was that fixed by Dold's contract.
No deliveries were made by Dold until July 16th, when he delivered 407,561 pounds. On the 22d July, the commanding general from his headquarters at Santa Fe, through the chief commissary at the same post, communicated to Kitchen the fact that he withheld his approval of the accounts for his deliveries, and at the [154 U.S. 645, 647] same time proposed to pay him for the corn at the price it could have been purchased for at the time of delivery in the open market. On the 23d a voucher for this corn was made out, in the name of Kitchen, 'as purchased in open market, by order of the department commander,' at 16.37 cents per pound, and Kitchen was paid at that rate, he receipting therefor 'as in full of the above account.' On the same day, Dold addressed a letter to the chief commissary, in which he said he had just received information that the Kitchen delivery would not be accepted on his contract, and concluding as follows:
On the 29th July, this request was acceded to, and the time extended to November 15th.
On the 25th and 31st July, deliveries were made by Dold sufficient to complete the first installment under the contract; the second installment was filled between July 31st and August 28th; and, between August 21st and December 30th, 240,545 pounds were turned in on account of the third installment. There was no further delivery, and, for such as were made, Dold was paid in full according to the contract.
When Kitchen was paid upon the vouchers in his favor, July 23d, it was understood that an appeal might be made to the war department for the difference between the amount paid and the contract price. An appeal to that effect was prosecuted April 8, 1866, but without success.
This suit was commenced February 16, 1871, to recover such difference; and, judgment having been rendered in favor of the United States, Dold appealed.
A bare statement of the case seems to us sufficient to show that the judgment below was right. It is not pretended that Dold owned the corn delivered by Kitchen, or that he has been in any manner injured by the refusal of the commanding general to receive it under the contract. If this were a suit against him to recover damages for not delivering, and he were defending because of the tender by Kitchen, the question would be whether that was such an offer to perform on his part as would excuse him from liability for a failure to deliver to that extent.
But, instead of being such a suit, it is one to recover for a deliv- [154 U.S. 645, 648] ery actually made under the contract. To this the government answers:
It seems to us this answer is conclusive. We need not consider any question arising upon the exclusion of Kitchen as a witness, which the appellant has attempted to put into the record; for, had his testimony all been admitted, the result must have been the same. Dold did not stand on his rights under the tender of Kitchen's delivery and refuse to yield to the decisions made against him, but went on and fulfilled his contract in accordance with the claim of the government as to his obligation, and now, apparently for Kitchen's benefit alone, seeks to compel the government to pay for Kitchen's corn at the contract price, instead of the market rates.
Harvey Spalding, for appellant.
The Attorney General and the Solicitor General, for the United States.