(46 S. Ct.) that he determine which lands were swampy [ and which were not swampy. The act said nothing about the evidence on which his determination should be based or the mode of obtaining the evidence. In taking up the administration of the grant, the Secretary accorded to each state a choice between two propositions: First, whether she would abide by the showing in the government surveyor's field notes; and, second, if the first proposition was not accepted, whether she would through her own agents make an examination in the field and present claims for the lands believed to be swampy accompanied by proof of their character. Some of the states elected to abide by the surveyor's field notes and others elected to take the other course. In the administration of the grant these elections were respected and given effect, save as there were some merely temporary departures. Where the election was to abide by the field notes that, without more, was regarded a continuing selection by the state of all lands thus shown to be swampy. Where the election was to take the other course the presentation of claims with sup *212 porting proofs was *regarded as a selection by the state. This was the settled practice when the act of 1860 was passed; and the provision in its second section requiring that selection be made within a designated period is to be construed in the light of that practice. Neither that act nor the one of 1850 contained any other provision which reasonably could be said to require a selection by the state. Possibly the provision in the second section of the act of 1850 requiring the Secretary to make out and transmit to each state accurate lists of the lands falling within the grant might be said to lay on him a duty to make selections. But, if this was the selection meant by the second section of the act of 1860, the states could not be charged with any dereliction or neglect by reason of his delay. But we think it meant a selection by the state as that term was understood in the administrative practice. There had been objectionable delay prior to the act of 1860 on the part of some of the states in carrying out their election to make examinations in the field and present claims with supporting proof, and the second section of that act shows that it was specially directed against unnecessary delay in making that kind of selections. It evidently was intended to accord to those states reasonable opportunity for making necessary appropriations and to require that they then proceed diligently with the examinations in the field and the presentation of their claims and proofs. "By the adoption of the first proposition the state will receive all the lands to which she is justly entitled, as the field notes of the survey are very full in characterizing or giving descriptions to the soil; and an important reason for *213 doing so is *that she will incur no expense in selecting or designating the lands." By an act of her Legislature, passed in 1862 (Laws 1862, c. 62), Minnesota elected to abide by the surveyors' field notes, and her Governor promptly notified the Commissioner and the Secretary of that election. It has been respected and given effect, with one temporary interruption, and has been treated as a continuing selection by the state of all lands shown by the surveyor's field notes to be swampy. 2 Copp's P. L. L. 1034; 32 L. D. 65, 533-535. In 1877 Secretary Schurz, in overruling a contention like that we now are considering, held that the action of the state Legislature in 1862, was an effective selection. 2 Copp's P. L. L. 1081. Similar contentions were pronounced untenable by the Attorney General in 1906 (25 Op. Attys. Gen. 626), and by the Secretary of the Interior in 1909 (37 L. D. 397). On principle, as also out of due regard for the administrative practice, we think the election by the state Legislature, approved by the Governor as it was, was a timely and continuing compliance with the requirement in the second section of the act of 1860. What would have been the effect of a failure to comply with that requirement we need not consider here. [12] The further contention is made that the state before the issue of the patents forfeited her right to receive them by disabling herself, through an amendment to her Constitution, from complying with the provision in the act of 1850 directing that the lands passing to the state under the grant, or the proceeds of their sale, "be applied, exclusively, as far as necessary," in effecting their reclamation by means of needed levees and ditches. The state did declare in an amendment to her Constitution, adopted in 1881, that the lands should be sold and the proceeds inviolably devoted to the support and maintenance of public schools and educational institutions; but it does not follow that she disabled herself from reclaiming the lands or formed or declared a purpose not *214 to re*claim them. On the contrary, her statutes enacted since the amendment and the published reports of her officers show that she adopted and proceeded to carry out extensive reclamation plans applicable to all swamp lands within her limits, that she and her municipal subdivisions expended many millions of dollars in this work, and that Shortly after the act of 1860 the proposi- they are still proceeding with it. But, apart tions theretofore submitted to other states from this, the contention must fail. It rests were submitted to Minnesota by the Secre- on an erroneous conception of the effect and tary's direction in a letter from the Commis-operation of the provision relied on, as is sioner of the General Land Office. After stat- shown in repeated decisions of this court. ing the propositions the Commissioner said: We think it enough to refer to United States v. Louisiana, 8 S. Ct. 1047, 127 U. S. 182, 32 L. Ed. 66, for the controversy there was between the United States, the grantor, and one of the states to which the grant was made. The court cited and reviewed the (270 U. S. 124) UNITED STATES v. SWIFT & CO. earlier cases and then said (page 191 [8 S. (Submitted Nov. 24, 1925. Ct. 1052]): "Under the act of 1850, the swamp lands are to be conveyed to the state as an absolute gift, with a direction that their proceeds shall be applied exclusively, as far as necessary, to the purpose of reclaiming the lands. The judgment of the state as to the necessity is paramount, and any application of the proceeds by the state to any other object is to be taken as the declaration of its judgment that the application of the proceeds to the reclamation of the lands is not necessary." And also (page 192 [8 S. Ct. 1052]): "If the power exists anywhere to enforce any provisions attached to the grant, it resides in Congress, and not in the court." The same principles have been applied in later and related cases. Stearns v. Minnesota, 21 S. Ct. 73, 179 U. S. 223, 231, 45 L. Ed. 162; Alabama v. Schmidt, 34 S. Ct. 301, 232 U. S. 168, 58 L. Ed. 555; King County v. Seattle School District, 44 S. Ct. 127, 263 U. S. 361, 364, 68 L. Ed. 339. [13] Finally much stress is laid on the provisions of the act of 1889, the cession under it, and resulting rights of the Indians and obligations of the United States. But it suffices here to say that the act of 1889 was without application to lands in which the Indians had no interest, that the cession under it was only of lands in which they had *215 *an interest, and that the resulting rights of the Indians and obligations of the United States were limited accordingly. [14] Our conclusion on the whole case is that the bill must be dismissed on the merits as to all the lands, excepting the 706 acres described as within the Leech Lake, Winnibigoshish, and Cass Lake Reservations as defined and existing in 1860, and that as to them the United States is entitled to a decree canceling the patents for such as have not been sold by the state and charging her with the value of such as she has sold. By reason of the relation in which the United States is suing, the value should be determined on the basis of the prices which would have been controlling had the particular lands been dealt with, as they should have been, under the act of 1889. United States v. Mille Lac Band of Chippewas, supra, 510 (33 L. Ed. 811). The parties will be accorded 20 days within which to suggest a form of decree giving effect to our conclusions and to present an agreed calculation of the value of so much of the 706 acres as has been sold. Decided March 1, 1926.) 1. Courts 389-Finding of Court of Claims that officer making contracts for bacon was representative of Quartermaster's Department is conclusive. Where, in organization of army agencies needed to furnish supplies of food, there were apparent conflicts of jurisdiction, and orders issued from different departments were before the Court of Claims for consideration, a finding that the officer making contracts for bacon was a representative of the Quartermaster's Department is of either a question of fact, or of a mixed question of law and fact, and is conclusive. 2. United States 65- Accepted orders, signed by officers representing Quartermaster's Department and Food Administration, held authorized in writing on behalf of the government. Accepted orders for bacon for army consumption, signed both by an officer representing Quartermaster's Department and by an officer representing the Food Administration, held to have been authorized in writing on behalf of the government. 3. United States 60-Depot quartermaster, whose authority to execute contract for packing house products had been recognized and exercised, held not deprived of authority, even though appointment of officer as purchasing officer carried authority to sign contract. sign contracts for packing house products had been recognized and exercised in purchase of many millions of pounds of bacon for the government, was not deprived of authority to sign contract for delivery of bacon, even though officer of Quartermaster Corps, appointed as purchasing and contracting officer for packing house products, was vested with authority to sign such contract. Depot quartermaster, whose authority to 4. United States 66-Contract to deliver No. 10 bacon, as ordered by Food Administration and accepted by packing house company, held complete in its terms, though offer originally included No. 8 bacon. Contract for delivery of army bacon held complete in its terms, though offer of packing company included two kinds of bacon, while order was for only one, where order was accepted in writing by packing company. 5. United States 70(1)-Question of where allotments for bacon were to be put up helu not a term of contract for delivery of bacon for army use. In contract by packing company for sale of bacon for army consumption, according to allotments as made by Food Administration, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S. Ct.) question of where the allotments were to be put up was not a term of the contract, being left to discretion of packing company, to distribute as convenient. 6. Sales 1(3). Ordinarily, valid sale agreement can be made without fixing specific price, reasonable price being presumed to have been intended. 7. United States 66-Army contract for bacon held complete without fixing price, where regulations for subsequent determination had been adopted. Contract for sale of bacon by packing company for army consumption, entered into three months in advance, held complete, notwithstanding the price was not fixed, where it was impossible to determine price so far in advance, and regulations as to profit of seller had been adopted. 8. United States 70(1)-Writings as evidence of army contract for bacon for succeeding three months held a single contract, and not merely preliminary memoranda, although separate contracts were later made, after determination of price. Where, at a conference called by quartermaster, needs of army as to bacon were discussed for succeeding three months, and proposal and allotment to packing company covered the three months, writings constituting alleged contract were a single contract, and not merely preliminary memoranda, notwithstanding there were separate formal contracts for two months after determination of price from actual cost. 9. United States 66-Offer of packing company, together with allotment of Food Administration, accepted by packing company, held to constitute a binding contract on the government (War Appropriation Act March 4, 1915, I [Comp. St. § 6853b]; Rev. St. § 3744 [Comp. St. § 6895]). ment for same article, held to show due diligence in disposal at best prices possible. 12. United States 74-Damages for refusal to receive bacon ordered for army use and especially prepared therefor is difference between contract price and amount actually realized, there being no market value. Where bacon prepared for army use was of special nature, having no market price, the usual rule that damages for breach of contract is difference between contract and market price would not apply, and only standard could be the difference between contract price and amount realized at actual sale by diligent effort. 13. Sales384(1)—Damages for breach of contract, where merchandise is of peculiar character, must be determined by some other criterion than difference between agreed price and general market value. Where there is no general market, or merchandise is of peculiar character and not staple, damages for breach of contract must be determined by some other criterion than the difference between the agreed price and general market value. 14. United States 74-On revocation of contract for bacon, government is liable for difference between contract price and sale price received abroad in good faith attempt, there being no market value. Where packing company, on revocation of army contract for bacon, in good faith attempted a sale abroad, there being no general market value, held, that government was liable for the difference between the contract price and the actual sale price. Appeal from the Court of Claims. Suit by Swift & Co. against the United States, wherein the United States filed a counterclaim. From a judgment for plaintiff, and dismissing the counterclaim (59 Ct. Cl. Under War Appropriation Act March 4, 364), the United States appeals, and plaintiff 1915, § 1 (Comp. St. § 6853b), qualifying pro-cross-appeals, because of insufficient relief. visions of Rev. St. § 3744 (Comp. St. § 6895), writings consisting of offer of packing company and allotment from Food Administration, accepted by packing company, held to constitute a binding contract on the government, under the general jurisdiction of the Court of Claims. 10. United States 65-Signing quartermaster's name to contract by authorized officer creates no infirmity in execution of contract. That letter authorizing purchase of supplies was signed, not by quartermaster, but by duly authorized officer in his name, evidenced no infirmity in execution of contract. 11. Courts 468-Finding of Court of Claims that packing company, on revocation of contract for army bacon, had disposed of it at prices equal to that received by government, held to show due diligence. Judgment affirmed, with directions to allow additional amount awarded on cross-appeal. *125 *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. #126 *Messrs. G. Carroll Todd, of Washington, D. C., and Albert H. Veeder, Henry Veeder, R. C. McManus, Connor B. Shaw, and P. L. Hol-. den, 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 Finding of Court of Claims that packing the United States to accept a quantity of company, on revocation of contract for army finished and unfinished army bacon ordered bacon by government, had placed bacon on mar- by competent authority for delivery in March, ket at prices equal to price received by govern- i 1919. The only ground for not accepting it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Judexes "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 proproducts for the months of January, February, and March, 1919. The quantity of bacon asked was that the need had been removed by the in writing before the parties is contained in unexpected rapidity of demobilization. The the sixteenth finding of the Court of Claims: claim was first presented to the War Depart"XVI. ment under the Act of March 2, 1919, 40 Stat. 1272, known as the Dent Act (Comp. St. Ann. Supp. 1919, §§ 311515a-311515e). 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 Novem-viding allotments of bacon and other meat ber, 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 prop erly 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 *127 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 can celed. 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 *128 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, 66 "Chicago, November 12, 1918. "War Department, General Depot of the Quartermaster Corps, 1819 West 39th Street, Gentlemen: (Attention Maj. Chicago, Illinois. 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. "'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. *129 (46 S. Ct.) Branch, Subsistence Division, 1819 West 39th of the Quartermaster General, 1819 W. 39th Street, Chicago, Ill.) St., Chicago, Ill. "Subsistence. ""United States Food Administration, [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. "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 DiviIsion 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., by G. E. S., Jr., 12/11/18,' and returned this copy to the Food Administration. The price was left for later determination because of the possible fluctuation in the basic price, that is the price of hogs. "A copy of this notice was sent to the packing house products branch of the subsistence division, office of Director of Purchase and Storage, at Chicago, and on December 10, 1918, the following communication was sent to Swift & Co.: "(War Department, Office of the Quartermaster General, Packing House Products Branch, Subsistence Division, 1819 West 39th "3. Please send copy of the official allot- Street, Chicago, Ill.) ments to this office for our records. 132 *December 10, 1918. "'Address reply to Depot Quartermaster. Marked for attention Div. 1-1-b, and refer to File No. 431.5 P & S-PC. ""From: Officer in Charge Packing House Products Br., Subsistence Div., Office Director of Purchase and Storage. ""To: Swift & Co., Union Stockyards, Chicago, Ill. |