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(249 U. S. 331)

rior on February 28, 1907. On September 5,

LANE, Secretary of Interior, v. DARLING- 1913, the Secretary vacated the Sickler sur

vey and ordered the reestablishment of the Perrin line. The present bill to restrain the carrying out of this order was dismissed on motion by the Supreme Court of the District of Columbia but the decree was reversed and an injunction ordered by the Court of Appeals.

[1] The bill, of course, is not a bill against the United States brought on the ground that it is claiming land *belonging to the plaintiffs. The bill does not seek to try the title. It is brought on the ground that the power of the Secretary is exhausted, and it may be doubted whether that is a matter with which the plaintiffs have anything to do. But however that may be, the whole proceeding on behalf of the United States is simply an effort to fix the boundaries of its own land. It is recognized, it was recognized when the Perrin survey was set aside, that the United States has no authority to change the

Appeal from the Court of Appeals of the Hancock line; but it has a right for its own District of Columbia.

Bill for injunction by Joseph J. Darlington and others against Franklin K. Lane, Secretary of the Interior. Decree dismissing the bill was reversed, and injunction ordered by the Court of Appeals (46 App. D. C. 465), and defendant appeals. Reversed, with direc

tions.

purposes to try to find out where that line runs and the fact that its conclusions may differ from that of the owners of the Hancock grant does not diminish that right. So long as the United States has not conveyed its land it is entitled to survey and resurvey what it owns and to establish and reestablish boundaries, as well one boundary as another, the only limit being that what it thus

*Mr. Assistant Attorney General Kearful, does for its own information cannot affect for appellant.

the rights of owners on the other side of the Mr. Francis W. Clements, of Washington, line already existing in theory of law. If, as D. C., for appellees.

the result of the survey adopted, the United States should give patents for land thought

Mr. Justice HOLMES delivered the opinion by the plaintiffs to belong to them, "the of the Court.

This is a bill in equity brought by the appellees to restrain the Secretary of the Interior from carrying out a resurvey of a part of the boundary of a Mexican grant. The plaintiffs hold the legal title to the grant and the adjoining land belongs to the United States. The boundary was surveyed by one Hancock and on June 22, 1872, the grant was patented. A bill to set aside the patent was dismissed in United States v. Hancock, 133 U. S. 193, 10 Sup. Ct. 264, 33 L. Ed. 601 (1890). Doubts having arisen as to where a portion of the Hancock line on the northern boundary ran, the Land Department employed one Perrin to make a resurvey. It found and reestablished the original monuments except between Hancock's stations 20 and 25, and attempted to fix the line between these also. In 1901 the resurvey was approved by the Commissioner of the General Land Office, but in 1902 on an appeal, the Secretary of the Interior reversed the approval and ordered a new survey of the line between stations 20 and 25. This was made by one Sickler and was approved by the Secretary of the Inte

courts can then in the appropriate proceeding determine who has the better title or right. To interfere now, is to take from the officers of the Land Department the functions which the law confides to them and exercise them by the court." Litchfield v. Register and Receiver, 9 Wall. 575, 578 (19 L. Ed. 681); Minnesota v. Lane, 247 U. S. 243, 250, 38 Sup. Ct. 508, 62 L. Ed. 1098.

[2] We know of no warrant for the notion that the power is exhausted by a single exercise of it. Repeated retracement of lines, although, of course, exceptions, are well known, we believe, to the Land Department, as, with the limitation that we have expressed, there is no reason why they should not be. The case is different when the act of the Secretary is directed to a third person, as for instance, the approval of a map of the location of a railroad over public lands, where the approval operates as a *grant. Noble v. Union River Logging R. R. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123. See New Orleans v. Paine, 147 U. S. 261, 267, 13 Sup. Ct. 303, 37 L. Ed. 162. But this retracing of the Hancock line is not directed to the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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term.

Appeal from the Court of Claims.

Action by the Purcell Envelope Company against the United States. Judgment for plaintiff (51 Ct. Cl. 211), and the United States appeals. Affirmed.

plaintiffs, but, as we have said, is an inves- | plaintiff would have received from a sale of 15 tigation by the United States on its own ac- days' stationery supply to the department, but count. The plaintiffs gained no rights by the include the estimated profits for the 4-year approval of the Sickler line; they lose none by the substitution of the Perrin line. These acts were neither adjudications nor agree ments. The plaintiffs' rights were fixed before. Even after land had been sold with reference to a survey and plat that had been approved, this Court refused to restrain the Secretary from making a new survey in Kirwan v.. Murphy, 189 U. S. 35, 23 Sup. Ct. 599, 47 L. Ed. 698. See Lane v. United States ex rel. Mickadiet, 241 U. S. 201, 208, 36 Sup. Ct. 599, 60 L. Ed. 956; Northern Pacific Ry. Co. v. United States, 227 U. S. 355, 33 Sup. Ct. 368, 57 L. Ed. 544.

We are of opinion that the decision of the Court of Appeals was wrong.

Decree of the Court of Appeals reversed, with directions to affirm the Decree of the Supreme Court dismissing the bill.

(249 U. B. 813)

UNITED STATES v. PURCELL ENVELOPE CO. (Argued March 10, 1919. 1919.) No. 168.

1. UNITED STATES COMPLETE.

Mr. Assistant Attorney General Frierson, for the United States.

Mr. Arthur Black, of Boston, Mass., for appellee.

*Mr. Justice MCKENNA delivered the opinion of the Court.

Action brought by appellee, the Purcell Envelope Company, which we shall designate as the Envelope Company, against the United States for damages for breach of an express contract. The Court of Claims rendered judgment for the Envelope Company for the sum of $185,331.76. The United States appeals.

The findings of the court are quite voluminous, but it is only necessary to quote from them to the following effect: The Post OfDecided March 31, fice Department, through the Postmaster General, James A. Gary, invited by advertisement bids "for furnishing stamped envelopes and newspaper wrappers in such quantities 65-CONTRACTS-WHEN as may be called for by the department during a period of four years, beginning on the first day of October, 1898." In pursuance of the invitation the Envelope Company submitted a bid in the manner and time specified in the advertisements of the department.

Where the Postmaster General accepted the lowest bid for furnishing stationery by a formal order, and the bidder signed a formal contract, with a surety whose responsibility was not questioned, the contract was complete, although the formal contract was not signed by the Postmaster General.

The bid of the Envelope Company was accepted, and the following order entered:

(2) That the contract for furnishing the envelopes called for by the advertisement and specifications referred to be awarded to the Purcell Envelope Co., of Holyoke, Mass., as the lowest bidder for the government standard of paper, at the following prices a thousand, name

Where the Postmaster General repudiated before performance his contract to buy stationery, the measure of damages is the difference between the contract price and cost of perform-ly:

ance.

"

The department, before issuing the order, investigated the financial responsibility of the Envelope Company and considered it satisfactory.

Upon appeal from the Court of Claims, which had twice tried a breach of contract case against the Post Office Department, it will be April 21, 1898, the department sent to the assumed that the court, in fixing damages, gave Envelope Company a "contract in quadrupliproper consideration to elements affecting the cate," to be executed "at once" and returncost of performance and to the fact that plain-ed to the department. It was promptly retiff did not actually manufacture the goods covered by the contract.

4. DAMAGES 124(3)-CONTRACTS.

turned as requested, signed by the president of the Envelope Company, with the Fidelity & Deposit Company of Maryland as surety in the sum of $200,000.

Under plaintiff's contract to furnish "in quantities as ordered" certain stationery "that it may be called upon by the Post Office De partment to furnish during the four years," the damages for a breach by the Post Office Department are not restricted to the expense of preparing to perform the contract and the profits For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*April 27, 1898, the department, by the Third Assistant Postmaster General, wrote to the Envelope Company as follows:

"Your telegram of to-day is before me. As the Postmaster General has not yet signed the

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[1] For an affirmative answer to the first.

contract awarded by the Department to your company for furnishing stamped envelopes dur-proposition the Envelope Company relies on ing the coming four years, but is holding the matter in abeyance, I have to request that you suspend all action under my letter of the 21st instant until further orders."

The Envelope Company had, however, already made arrangements and contracts for the supplying to it of the necessary materials to fulfill the terms of the contract and was ready and willing at all times to fully perform it according to its terms. But neither the Postmaster General, nor any department or officer of the government made any call or request upon the Envelope Company to furnish or deliver the envelopes or wrappers which were the subject-matter of the contract and the company's plant was kept intact ready for the performance of the contract, remaining idle.

July 22, 1898, the department, through Postmaster General Smith, the immediate successor of Postmaster General Gary, the latter having gone out of office, revoked and canceled the contract and declared it to be null and void. Prior to doing so the Postmaster General instituted an investigation through one of his proper officers into the business and financial standing of the Envelope Company and the report thereunder was unfavorable to the company.

Garfielde v. United States, 93 U. S. 242, 23 L. Ed. 779, and on that case the Court of Claims rested its decision and considered that the case was supported by other cases which were cited.

The case may be considered as the anticipation of this-its prototype. It passed upon a transaction of the Post Office Department and decided that a proposal in accordance with an advertisement by that department and the acceptance by it of the proposal "created a contract of the same force and effect as if a formal contract had been written out and signed by the parties." And for this, it was said, many authorities were cited but it was considered so sound as to make unnecessary review of or comment upon them.

In resistance to the case as conclusive the government urges the qualification that "the court did not say, or assume to say, that the acceptance of the proposal in all [italics counsel's] cases constituted a contract, but held that it did in the present [that] case," and that "there was reason for the conclusion which does not obtain in the case at bar." We cannot agree, and in answer to the first qualification it is only necessary to say that the court expressed a principle, not, of On or about July 22, 1898, the Envelope course, applicable to all cases, but applicable Company, having received information that to like cases; and the present is a like case, the Postinaster General designed readvertis-identical in all that makes the principle aping for proposals, sought by a bill filed in plicable. And in so determining we answer the Supreme Court of the District of Co- the other objection of the government that lumbia to enjoin his action. The bill was there were features in the law in the Gardismissed August 15, 1898. The court, how- fielde Case which do not obtain in the pendever, was of opinion that a contract had been ing case, which constituted, if we understand executed but that the Envelope Company had counsel, the determination of the law against an efficient remedy at law. the act of the Postmaster General, his duty being merely ministerial. In the present case it is insisted his action is not so subordinate, that he has discretion, and when exercised it is paramount, his action being "quasi judicial," the contract not having been consummated, and that, therefore, it was within his power to review and set aside the decision of his predecessor. We are unable to concede the fact or the power asserted to be dependent upon it. There must be a point of time at which discretion is exhausted. The procedure for the advertising for bids for supplies or services to the government would else be a mockery—a procedure, we may say, that is not permissive but required (section 3709, R. S.). By it the government is given the benefit of the competition of the market and each bidder is given the chance for a bargain. It is a provision, therefore, in the interest of both government and bidder, necessarily giving rights to both and placing obligations on both. And it is not out of place to say that the government should be animated by a justice as anxious to consider the rights of the bidder as to insist upon its own. *And,

* An offer was subsequently made by two other companies to supply the Post Office Department, upon an emergency contract, stamped envelopes and wrappers of the kinds and qualities the government should need. The department declared that an emergency existed under section 3709, R. S. (Comp. St. § 6832), accepted the offer and entered into a contract in accordance therewith.

The total cost to the Envelope Company for materials and the manufacture and delivery of the envelopes and wrappers in accordance with the terms of its contract would have been $2,275,224.46. Deducting that sum from the contract price leaves a difference of $185,331.76, which represents the profit the company would have made if it had been allowed to perform its contract. For that sum judgment was entered.

It will be observed from the recitation of the above facts that the case presents the propositions: First, was there a completed contract between the Envelope Company and the United States through its Postmaster General; and, second, if there was such contract, what is the measure of damages?

we repeat, there must be some point at which discretion ceases and obligation takes its place. That point is defined in the Garfielde Case, and that the definition is applicable to the case at bar is illustrated by the findings of the Court of Claims. Upon the invitation, in accordance with law, of Postmaster General Gary, the Envelope Company and 11 others submitted bids. The Envelope Company was the lowest bidder and after the company had been found upon investigation to be financially responsible its bid was accepted by entry of a formal order. The company was then directed by the department to execute the necessary contract in quadruplicate, which it did, and returned the contract to the department with a surety whose responsibility was not questioned at any time nor was other security demanded, as it might have been. Postmaster General Gary went out of office, and his successor, either by inducement or upon his own resolution, revoked the contract and entered into a contract with other companies.

The record furnishes no justification of such action. There is no charge of default against the Envelope Company, no charge of inability to perform its contract, except in a particular which we shall hereafter mention. There is, it is true, a finding that Postmaster General Smith caused an investigation to be made of the financial standing of the Envelope Company and that the report thereunder was unfavorable to it. This is made a great deal of, and the fact that the contract was not signed nor the bond of the Envelope Company approved.

tween the cost to the Envelope Company of materials and the manufacture and delivery of the envelopes and wrappers in accordance with the terms of its contract and what it would have made if it had been allowed to perform the contract. For this the court cited and relied upon Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. It is there decided that the positive refusal to perform a contract is a breach of it, though the time for performance has not arrived, and that liability for the breach at once occurs. And it is further decided that the measure of damages is the difference between the contract price and the cost of performance. The case was replete in its review of prior cases. We may refer, however, to United States v. Speed, 8 Wall. 77, 85, 19 L. Ed. 449; United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Hinckley v. Pittsburgh Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967.

The government does not attack the ruling, but contends that it was not properly applied by the Court of Claims. The contention is rested on the following finding:

"Claimant, contemplating making the envelopes under its said contract on the Wickham envelope machines, entered into negotiations with Horace J. Wickham whereby he prom*ised to furnish claimant with a sufficient number of said machines on which to perform said (envelope) contract, and to have some of them ready before the beginning of the contract term, October 1, 1898."

The government says of the Wickham machine that it made the envelope in one operation and that there is nothing to show that the Court of Claims, "as an incident to the cost of performance of the contract, considered the cost of the Wickham machine to appellee although evidence of the same was submitted to it." And further, "if the court did find this item and did consider it in arriving at the judgment, appellant is entitled to know this." Again, the government contends that "so far as the findings are concerned it does not appear that the court allowed a reasonable deduction from the amount of the judgment by reason of appellee's release from care, trouble, risk and responsibility attending the performance of the contract."

It makes no difference that the contract was not formally signed or the bond formally approved, as counsel for the government contends they should have been, both by the terms of the contract and by a statute of the United States. Act Aug. 13, 1894, c. 282, 28 Stat. 279 (Comp. St. §§ 3293-3300). Their formal execution, as we have seen, was not essential to the consummation of the contract. That was accomplished, as was decided in the *Garfielde Case, by the acceptance of the bid of the Envelope Company and the entry of the order awarding the contract to it. Therefore, we do not follow with minute attention the argument of the government in asserting the power of Postmaster General Smith to review and annul his predecessor's decision and that directed against the financial standing of the Envelope Company or the deception the government asserts was practiced on Postmaster General Gary, which are made the subject of a request for findings. We may assume that the Court of Claims considered such charges and all other elements before con cluding that the Envelope Company was entitled to recover. And we pass to the ques-ed them relevant or as having any probative tion of damages.

[2] The Court of Claims decided that the measure of damages was the difference be

[3] To the contentions there may be off set the decision of the Court of Claims. The court in its opinion expressly declares that the findings showed that the Envelope Company had fulfilled all the requirements of the Postmaster General and was ready and willing to furnish the envelopes and wrappers and recognized, we may assume, as grounds to be considered the elements the government urges, so far as the court deem

strength, and its appreciation of them was obtained after protracted litigation involving two complete trials. We are not, therefore,

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disposed, on assertions so elusive or disput- [ submitted should be considered on the merable of estimation as those of the govern- its. Again considering the motion and the ment, to reverse or modify the judgment.

case as it has been developed by argument of counsel, we think the motion should not be granted. The judgment of the Court of Claims is

Affirmed.

Mr. Justice McREYNOLDS took no part in the consideration and decision of this case.

(249 U. S. 361)

WISE. UNITED STATES.

1919.) No. 214.

1. DAMAGES 77-LIQUIDATED-CONSTRUCTION OF PROVISION.

Relative to whether a provision of a contract is for liquidated damages or penalty, intention will be sought by construction precisely as in other respects.

2. DAMAGES

85-LIQUIDATED-ENFORCE

MENT OF PROVISION.

There are other contentions of the govern ment which we may pass without comment except one which it submits upon a supplemental brief. It is addressed to the rule of damages adopted by the Court of Claims and urges that it was erroneous, based on the theory, as it is asserted, that the Envelope Company "had a contract which entitled it to furnish all the stamped envelopes and wrappers of the sizes mentioned in the specification, which the Post Office Department should need [italics counsel's] during the four years contract." This is denied, and it is said, quoting the contract, that the En- (Argued March 11, 1919. Decided March 31, velope Company was only to "furnish and deliver promptly and in quantities as ordered," the envelopes and wrappers "that it may be called upon by the Post Office Department to furnish during the four years." It is difficult to treat the contention seriously. There is something surprising in the declaration that a contract to supply a great department of the government with envelopes and newspaper wrappers which it might need for a period of four years at a cost of nearly two and one-half million dollars bore but Intention to provide for liquidated damages scant obligation upon the part of the gov-appearing from writing, effect will be given the ernment, or, to be precise and in the lan- provision as freely as to any other, where damguage of counsel, that the Envelope Com- ages are uncertain in nature or amount, or are pany "could not have forced the giving of difficult of ascertainment, or the amount stipuorders [by the government] in excess of fif-lated is not so disproportionate as to show that teen days' supply," and that this was the compensation was not the object, or to imply extent of the government's obligation. And fraud, mistake, circumvention, or oppression. the further contention is, that the obligation being thus limited the damages the Envelope Company was entitled to were, at most, “the expenses, incurred in getting ready to perform the contract, and the profits it would have derived from the manufacture and sale" of such fifteen days' supply-that all else was expectation and cannot be capitalized by the Envelope Company and made the basis of profits and the responsibility of the government. If the contention be more than dialectical we may express wonder that it was not given prominence in the Court of Claims and that in this court it was reserved for the afterthought of a supplemental brief. The further answer may be made that the contract of the Envelope Company was not so dependent as urged, and that its expectation was substantial is evidenced by the haste of the department, after the revocation of the contract *with the company, to declare an emergency in its need and enter into a contract with other companies.

3. DAMAGES 78(4) LIQUIDATED - PROVISION OF BUILDING CONTRACT.

Provision of contract for erecting for $1,200,000 two laboratory buildings for Department of Agriculture, that if buildings are not completed in 30 months government shall be entitled to $200 as liquidated damages, "computed, estimated, and agreed on" for each day's delay, is not to be considered as one for penalty, because making no distinction whether de lay be in completion of one or both buildings.

Appeal from the Court of Claims.

Suit by Henry A. Wise, trustee in bankruptcy of Ambrose B. Stannard, against the United States. Petition dismissed (52 Ct. Cl. 400), and claimant appeals. Affirmed.

Messrs. Wm. B. King and George A. King, both of Washington, D. C., for appellant. Mr. Assistant Attorney General Brown, for the United States.

*Mr. Justice CLARKE delivered the opinion of the Court.

On January 13th the government made a motion to remand the case to the Court of In December, 1904, Stannard, represented Claims for additional findings. It was de- in this case by his trustee in bankruptcy, connied, but the right reserved to make such tracted with the United States to erect two order if we should be so advised. Our at- laboratory buildings for the Department of tention is directed to the motion, which it is | Agriculture, in the city of Washington, D. C., For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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