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"Serial No. 10 bacon was prepared according | branch of the subsistence division of the Quarto army specification, which was packed in termaster General's Office, to be located in the cans, the cans being then packed in boxes. Serial No. 8 differed, in that it was packed in boxes but not canned."

Upon receiving these orders, Swift & Co. directed its buyers to buy hogs. From that time on purchases were conducted daily so

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that suitable bellies were prepared for January and February deliveries, and on January 13, 1919, the first bellies were put in cure for March, 1919, delivery.

The objections by the government to the documents submitted on behalf of Swift & Co. as written evidence of a contract are, first, that government officers conducting the correspondence had no authority to make it; second, that the documents do not contain the necessary terms to constitute a contract, in that they do not show the place for the performance of the contract, and do not fix the price of the bacon to be delivered; third, they do not show a real agreement between the parties, but were merely preliminary negotiations and were never merged in a written contract; and, fourth, that they do not comply with Revised Statutes, § 3744 (Comp. St. § 6895) in the form of contract required in such cases.

First. The officers whose names are attached to the papers on behalf of the government are Brig. Gen. A. D. Kniskern, Brigadier General Quartermaster Corps, and Maj. E. L. Roy, Quartermaster Corps, assigned to temporary duty with the Food Administration.

The finding of the Court of Claims in respect to Gen. Kniskern's authority is as fol

lows:

"The furnishing of adequate meat supplies for the army was within the authority and duty of the Acting Quartermaster General and afterwards within his authority and duty as Director of Purchase and Storage. Gen. Kniskern, as depot quartermaster at Chicago, was the authorized representative of the Acting Quartermaster General in the purchase of meat supplies, and, while subject to any specific instructions which the Acting Quartermaster General might see fit to give him, his duty was to supply the needs, and specific authority as to each purchase was not required. There was in the office of the Quartermaster General a subsistence division, but the chief duty it exercised in the matter of the purchase of meats was to supply Gen. Kniskern with such information as might be available as to future needs, leaving it to him to supply them. The authority of Gen. Kniskern in connection with the establishing in Chicago of a packing house products branch of the subsistence division of the Quartermaster General's Office and in connection with his later appointment as zone supply officer appears in findings V and VI.

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"V.

"On July 3, 1918, by Office Order No. 419, Quartermaster General's Office, there was established in Chicago a packing house products

general supply depot of the Quartermaster Corps at Chicago, to be under the immediate direction and control of the depot quartermaster, and to be responsible for all matters pertaining to the procurement, production, and inspection of packing house products, subject to the control of the Quartermaster General. "The interpretation of this order by the then Acting Quartermaster General was 'that whereas the purchasing of supplies was concentrated in Washington, that Chicago being the food market, we delegated to Gen. Kniskern the purchase of meat products and articles of that "VI.

kind.'

"On October 28, 1918, by Purchase and StorWood, as Director of Purchase and Storage, age Notice No. 21, issued by Brig. Gen. R. E. supply zones were created and by said order the Director of Purchase and Storage appointed 'as his representative in each general procurement zone the present depot quartermaster to act and be known as the zone supply officer,' who was charged with authority over and responsibility for supply activities within the zone under his jurisdiction."

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*This form of organization in effect transferred the field organization of the Quartermaster Corps to the office of the Director of Purchase and Storage. The procurement divisions which had theretofore existed in the Quartermaster Corps were transferred to the supply zones created in the purchase and storage organization, these zones being practically the same as those formerly existing in the Quartermaster Corps, over each of which the proper depot quartermaster exercised jurisdiction, and the depot quartermasters of the Quartermaster Corps became zone supply officers and representatives, as such, of the Director of Purchase and Storage.

"Existing orders and regulations of the several supply corps with respect to supply activities transferred to the Director of Purchase and Storage were continued in effect. 'providing that the zone supply officers constituted by the notice shall have final authority in their respective zones over all matters referred to in existing orders and regulations.'"

The Food Administration under the Presi

dent early in 1918 found that the demand for food commodities was greater than their supply, and it was necessary to suspend the law of supply and demand in respect to their prices, and that large purchases of certain commodities should be made by allocations at fair prices. A Food Purchase Board was formally organized by the President, which, on July 16, 1918, required that canned meats and bacon should be placed on an allotment basis. Gen. Kniskern, as depot quartermaster at Chicago, was notified by the Quartermaster General that thereafter tin bacon and Administration, and he was requested to cansmoked bacon would be allocated by the Food cel orders which had been placed with the packers, and ask allotments of the same from the Food Administration. He accordingly in August 1918 canceled the orders for the next four months, but wrote the Food Administra

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(46 S. Ct.)

tion, requesting' that they *confirm the allotments made in accordance with his orders. Thereupon Maj. Roy of the Quartermaster's Department, in the name of the Food Administration, made the allotments. This arrangement continued until the Food Administration gave up its activities, after the Armistice.

On December 16, 1918, Gen. Kniskern was instructed by telegraph as follows:

"December 16. 1918. "Effective with January requirements, the Army will purchase packing-house products independently of Food Administration.

"This office is notifying Food Administration accordingly. You are authorized to proceed on this basis. Please wire acknowledg

ment.

Wood, Subsistence, Baker."

Thereafter prices for January and February deliveries were determined as they had been during the early months of 1918, before that function came to be exercised by the Food Administration. The course of procedure with reference to giving the orders for bacon and the fixing of the price therefor is shown in the following finding:

"IX.

notified each as to the quantities it would be expected to furnish during each month of the period involved."

[1, 2] It is quite evident from the findings that in the organization and reorganization of the many agencies needed to furnish the supplies of food in Chicago, there were apparent conflicts of jurisdiction and there were orders issued having on their face general application which in fact by the course of business were limited, and all these orders from the War Department and from the Quartermaster's Department were before the Court of Claims for its consideration.

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In

such a situation the finding of the *Court of Claims that Gen. Kniskern was the representative of the Quartermaster's Department in making these contracts for bacon is either a question of fact or a mixed question of law and fact, and is conclusive on this court. United States v. Omaha Tribe of Indians, 40 S. Ct. 522, 253 U. S. 275, 281, 64 L. Ed. 901; Ross v. Day, 34 S. Ct. 233, 232 U. S. 110, 116, 117, 58 L. Ed. 528, and cases cited. There is nothing whatever in the other findings which is inconsistent with this. At the time this order was given and accepted by Swift & Co. in November, 1918, the Food Adminis

"In supplying the needs of the army for ba-tration, by direction of the President, had con and other packing house products during the early stages of the war, the regular method of advertising for and receiving bids and letting contracts to lowest bidders, if otherwise satisfactory, was adhered to, but later on, in 1917 and during 1918, the needs had so grown and were so rapidly approaching the capacity of the packing plants that this method became impracticable, and the necessity for a constant and ever-increasing flow of supplies of this character made necessary the resort to other purchase and procurement methods.

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the authority and duty to act upon the needs of the Quartermaster General's Department for bacon and other food supplies and to approve those orders and allot them to the packing companies who were to deliver the supplies. When, therefore, the accepted orders had been signed both by Gen. Kniskern and by Maj. Roy for the Food Administration, they were certainly authorized in writing on behalf of the government.

[3] Gen. Kniskern's authority to act in these purchases is questioned on the ground "The office of the depot quartermaster, after- that a Capt. Shugert was the only officer auward the zone supply officer, at Chicago was thorized to make such contracts. The objecinformed from time to time by the proper aution cannot be sustained. On September 17, thorities at Washington as to the number of men which would be in the service within stated 1918, Capt. Jay C. Shugert, Quartermaster times, and the duty devolved on the depot quar-Corps, was, by authority of the Acting Quartermaster of procuring supplies of the kind in termaster General, designated as purchasing question sufficient for the indicated number of and contracting officer for the packing house men without the issuance of specific authoriza-products and produce division of the office of tion to him in each instance to purchase or specific instructions as to quantities to be purchased. And because of the time required to cure, smoke and can army bacon, it was necessary to anticipate needs therefor.

Be

the depot quartermaster at Chicago. This order to Shugert did not vest him with any authority to make contracts for the packing products branch of the subsistence division of the Quartermaster General's office. "The plan was adopted by the depot quartermaster at Chicago of calling into conference fore this latter branch was established there with him or his authorized assistant, from time was a packing house products and produce to time, representatives of this plaintiff and the division of the depot quartermaster's office. six other large packing houses, at which con- at Chicago to which Shugert was attached. ferences the packers' representatives were in- There two offices were distinct. The former formed as to the needs of the government for was a unit of the Quartermaster General's a stated period, usually three months, sufficient-office located at Chicago under the immediate ly in the future to give time for manufacture, and asked to indicate what portion of the direction and control of the depot quarterstated needs each would furnish. Upon receipt master, with general authority to purchase of the statements from the packers as to what

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quantities they would furnish, which were sub-packing house products for the whole army mitted in writing and usually within a few of the United States wherever situated, as days after the conference, the depot quarter- shown by the findings. The latter was a unit master made an allotment to each packer and in the depot quartermaster's office at Chicago,

and by an order of January 9, 1919, its functions were transferred to a newly organized office of Director of Purchase and Storage, and Capt. Shugert was transferred with it and thereafter signed the so-called formal contracts of January and February. More than this, even if Capt. Shugert had been a purchasing and contracting officer with authority to sign this main contract of November, 1918, it would not have deprived Gen. Kniskern of such power when his authority had been recognized and exercised in the purchase of many millions of pounds of bacon for the government for many months.

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[6, 7] It was evidently impossible to make a contract fixing the price of the bacon in advance of the partial performance of it, and ́ the price was therefore left to subsequent adjustment. The Food Administration, by its regulations had already determined that the profit of the seller should not exceed 9 per cent. of the investment, or 22 per cent. *of the gross sales. Under ordinary conditions, a valid agreement can be made for purchase and sale without the fixing of a specific price. In such a case a reasonable price is presumed to have been intended. In the case of United States v. Wilkins, 6 Wheat. 135, 5 L. Ed. 225, it was held under a proviso of the

[4] Second. The next objection is that the alleged contract is not complete in its terms, first in that the offers made by Swift & Co. included No. 8 bacon, while the order of the Food Administration and of Gen. Kniskern included nothing but No. 10 bacon. We find no weight in this suggestion. The offer was made by Swift & Co., and it was only accept-contract, which left the price to be adjusted ed by the allotment of the Food Administration to the extent of No. 10 bacon and that allotment was accepted in writing by Swift & Co., which, of course, eliminated bacon No.

8 from the contract.

[5] Then it is said that in the letter of December 10th an inquiry was made by Gen. Kniskern for information as to where the allotments were to be put up. This was not a term of the contract. It was evidently left to the discretion of Swift & Co. to distribute the allotments as might be convenient to it, and the inquiry was only for information as to the various plants of Swift & Co. at which inspections and deliveries were to be made.

Then it is said that there was no complete contract because the price was not fixed. Upon this point finding *No. 10 of the Court of Claims is important. It is as follows:

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by the government and the contractor, that
it was to be the joint act of both parties and
not the exclusive act of either, that if they
could not agree, then a reasonable compensa-

tion was to be allowed, that that reasonable
compensation was to be proved by competent
evidence and settled by a jury and that the
contractor at such a trial was at liberty to
show that the sum allowed him by the Secre-
tary of War was not a reasonable compensa-
tion. In United States v. Berdan Fire Arms
Co., 15 S. Ct. 420, 156 U. S. 552, 569, 39 L.
Ed. 530, a suit in the Court of Claims, it was
objected that there was no price agreed upon
and that the officers of the government were
not authorized to agree upon a price. It was
held that this was not material.
tion was whether there was a contract for
the use of the patent in that case, and not
whether all the conditions of the use were

The ques

provided for in such contract, that this was
the ordinary rule in respect to the purchase
of property or labor. 1 Williston, Contracts,
§ 41. We find, therefore, that by the writ-
ings and documents, all the necessary details
making a valid contract were set forth in
writing.

"Since there were many elements entering
into cost of production as to which there were
frequent fluctuations, it was not practicable to
undertake to determine prices so far in ad-
vance, and accordingly, instead of fixing prices
at the time the proposals were submitted, or
notices of allotments issued, it was agreed that
prices would be determined at or near the first
of each month for the product to be furnished [8] Third. Were they more than mere pre-
during that month. This was at a time when liminary data upon which a subsequent for-
of necessity the preparation of the product, in mal contract was to be framed and signed?
this instance bacon, was well under way, ap-
proaching completion as to a large part there- Taking the writings, together, it is quite evi-
of and when the cost of the green bellies, the dent that as between individuals such writ-
basic element of final cost, and other fluctuat-ings would constitute a single contract for
ing elements of cost were ascertainable.

"At about this time the usual form of circular proposals were sent to the packers, not for use in submitting bids as under the peacetime competitive system, but as a convenient method for formal submission by the packers of their proposals as to price for the product which they had theretofore been directed to furnish during the month in question and which already, by direction of the depot quartermaster, was in process of preparation.

the delivery of 17,000,000 pounds of No. 10
bacon in monthly installments. As the Court
of Claims points out:

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"From the inception of the contract here involved bacon for January, February, and March deliveries was the matter to which the parties addressed themselves. At the conference of November 9, *the total needs for the three months were made known. The plaintiff's pro"Upon submission of these proposals as to posal, the Food Administration's allotment, in price, if the same were satisfactory to the de- so far as that is material, and Gen. Kniskern's pot quartermaster or, otherwise, upon adjust-award all covered the three months. Any sepament to a satisfactory basis, purchase orders ration of the month of March and its treatment

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(46 S. Ct.)

as a matter of independent negotiation is there-, nothing more than preliminary memoranda fore unauthorized." made by the parties for use in preparing a by law, which was never done. It was said contract for execution in the form required that the whole matter was abandoned by the department after the memoranda had been made and that the Iron Company had never performed any of the work which was referred to and had never been called upon to do so.

The fact that in January and February there were separate formal contracts of purmonths signed by Capt. Shugert and Swift & Co. does not change our view that the original contract was made in November for the

chase of the bacon deliveries for those

three months. These latter contracts were not made until much of the bacon had been delivered and the remainder was nearly ready for delivery and after the price could be determined from the actual cost of purchase of the hogs and the preparation of the

bacon. The real function of these so-called

The section has been under consideration before this court also in Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; St. Louis

Hay & Grain Co. v. United States, 24 S. Ct. 47. 191 U. S. 159, 48 L. Ed. 130; United States v. Andrews & Co., 28 S. Ct. 100, 207 U.

formal contracts was to fix the price for the monthly settlements which had been post-York & Porto Rico Steamship Co., 36 S. Ct. S. 229, 52 L. Ed. 185; United States v. New poned in accordance with the provision of the original contract until it could be fairly determined from the actual cost.

Fourth. We reach the question whether the contract was evidenced in writing as required by the statutes of the United States? Rev. Stat. § 3744 (Comp. St. § 6895) provides

that:

"It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof."

This has been qualified by a provision of a War Appropriation Act of March 4, 1915, 38 Stat. 1062, 1078, c. 143 (Comp. St. § 6853b), reading as follows:

"That hereafter whenever contracts which are not to be performed within sixty days are made on behalf of the government by the Quartermaster General, or by officers of the

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Quartermaster Corps authorized to make them, and are in excess of $500 in amount, such contracts shall be reduced to writing and signed by the contracting parties. In all other cases contracts shall be entered into under such regulations as may be prescribed by the Quartermaster General."

[9] It is first contended on behalf of the government that under section 3744, Revised Statutes, the contract must be in one instrument and signed by both parties at the end thereof that that is the effect of the words "to be signed at the end thereof." This section has been before this court a number of times, and it has never been clearly declared by this court to require the contract to be reduced to one instrument. In the case of South Boston Iron Co. v. United States, 6 S. Ct. 7, 118 U. S. 37, 30 L. Ed. 69, the Court of Claims had held that the words "with their names at the end thereof" required that the signatures should be appended to one instrument, but it was not necessary to the decision of the case. On review in this court, however, the papers relied on were held to be

41, 239 U. S. 88, 92, 60 L. Ed. 161; Erie Coal & Coke Corporation v. United States, 45 S. Ct. of these has it been expressly decided that 181, 266 U. S. 518, 69 L. Ed: 417. In no one the requirements of section 3744 may not be met by an exchange of correspondence properly signed. But whether the contention by

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the government be true or not *as to section 3744, the change in the Appropriation Act of 1915, in which the words "signed by the parties at the end thereof" are omitted, clearly make unnecessary the evidencing of such contracts with the Quartermaster's Department by reduction to writing and signatures in one instrument. This was a contract made by the Quartermaster's Department and comes exactly within the amendment of 1915, and we see no reason why it does not constitute a binding contract upon the government under the general jurisdiction of the Court of Claims.

Some suggestion is made that the signature of Gen. Kniskern to the letter of December 10 was by another. The signature was:

"By authority of the Director of Purchase and Storage, A. D. Kniskern, Brigadier General, Q. M. Corps, Officer in Charge, by O. W. Menge, 2d Lieut., Q. M. Corps."

[10] It is evident from subsequent correspondence that Gen. Kniskern recognized this as his signature and as a binding contract. There seems no doubt about the authority of Lieut. Menge to attach his signature or that it was the regular practice in the office. In a similar case the Court of Claims (Union Twist Drill Co. v. United States, 59 Ct. Cl. 909), held that the affixing of the signature of a contracting officer by another duly authorized created no infirmity in the execution of the contract. A similar conclusion was reached by Attorney General Gregory, 31 A. G. 349, and by Attorney General Wirt, 1 A.. G. 670. The conclusion we have come to in respect to the regularity and legality of the contract under the act of 1915 makes it unnecessary for us to consider the other ground upon which the Court of Claims sustained this recovery, to wit, full performance.

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*This brings us to the question of damages. The government contends that the Court of Claims did not adopt the proper rule in respect to damages. By the letter of January 24, General Kniskern, Zone Supply Officer, notified Swift & Co. that the only bacon the government would take during the month of March, 1919, would be such bacon as was then in process of cure over and above the quantity necessary to take care of the February awards and which had been passed by the inspectors. Swift & Co. received this on January 27th, and at once stopped the putting of bacon in cure, but proceeded with the curing, smoking and canning of bacon already in cure. March 5, 1919, Gen. Kniskern notified Swift & Co. that it would be necessary to discontinue production on all commodities which were not intended to apply against the February contract. Should Swift & Co. have any issue bacon which was now in smoke and which was in excess of the amount required, for the February delivery, it would be accepted. Swift & Co. received this notice on March 6th, and completed the smoking and canning of bacon which was already in smoke. When the notice of March 5th was received by Swift & Co., it had already in smoke for March delivery, 4,197,672 pounds. This bacon was put up under government inspection. When the order was received, there also remained in process of cure, not needed for February deliveries, and intended for March delivery, 1,068,538 pounds of bellies. These had been prepared under government inspection. On March 22, Swift & Co. notified Gen. Kniskern that at that time it had the bacon practically all packed and ready for delivery. It said,

"We are very short of storage room at each of these plants and will appreciate your giving us purchase order and shipping instructions in the very near future."

April 24, Gen. Kniskern wrote Swift & Co.

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that his office was tak*ing preliminary steps toward an adjustment for materials on hand to be applied against the March deliveries, which had been canceled, and requested that a representative of Swift & Co. should be present at a conference to be held at his office on April 29, 1919, “in order that you may be fully informed as to what methods should be followed by your firm in submitting your claim." On April 29, he wrote to Swift & Co., inclosing papers "necessary to prepare in order to file a claim for any amount you may consider due from the various packing house commodities allotted you for delivery during March, 1919, and on which you will suffer a loss by reason of cancellation of those orders." And in a note of August 29, 1919, Gen. Kniskern, Zone Supply Officer, wrote as follows to Swift & Co.:

"1. Regarding your claim for the value of bacon prepared by you under allotment given by this office of November 9, 1918, and in view of the

fact that this claim is still awaiting action of the Board of Contracts Adjustments in Washington, I desire to state the following:

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** * It will be impossible for this office to give you positive and definite instructions as to the disposal of any of this product which may at this time be in your possession. It is, however, realized by this office that the product in question is of a perishable nature. Further, it is an important food product. In view of these two facts, it is believed that these products should be disposed of at the earliest possible moment. It will not be possible for the government to dispose of them until the negotiations are completed and the actual ownership determined by the government, taking them at the agreed price or turning them over to you on a basis similar to the salvage basis of unfinished material.

"3. In the judgment of this office, if you are able to dispose of this product by a sale within the limits of the United States, it would be a *147 perfectly proper procedure, *bearing in mind, of course, that having made such sale it will be necessary for you, when the later negotiations are in progress, to be able to convince a negotiating officer that the price you may have received for such part of this product as has been sold was justified by the conditions.

"4. In order that you may have some basis on which to proceed, in case you decide to attempt a sale of these products, you are inWashington, is now selling, through the parformed that this office, under authority from cel post and to individuals, bacon, serial 10, at $4.15 per can, or about 34 7/12 cents per pound.

"5. Any sales that you may make at the price which is now being charged through the parcels post and to individuals would, in the judgment of this office, be entirely in the interests of the

government."

Thereupon Swift & Co. began selling the number 10 bacon it had prepared for March deliveries. It directed its branch houses and agents to sell this at $4.02 a can at wholesale, a price designed to permit the retailer to sell at the government's price and realize a profit for the handling of approximately one cent per pound. It sent out instructions to its representatives that the government was selling at $4.15 a can and added that it was desirable, therefore, that no dealer should sell for less than that. Subsequently, and from time to time, the government reduced its price on army bacon, and the plaintiff followed the government's price in its sales except that in a few localities it was able to procure a better price by reason of its ability to make prompt delivery, which the government could not do. The lowest price realized was $2.65 per can, or 2212 cents per pound, which was at or near the end of the period covered by these sales. The sale of the bulk of this product, approximately 981⁄2 per cent. thereof, was completed in January, 1920, although there were sales of about 700 cases in

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February and a few small *sales thereafter. until October, 1920, during which month the last was sold. For this bacon sold at vary

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