Opinion of the court.

clusive privilege of supplying the public lamps in the streets of the city with gas for twenty years, at one-half the price which is charged to private persons. This is the essence of the contract. There are other details to enable the company to fulfil its portion of the stipulations, such as the privilege of laying down their pipes in the streets, and of exercising all the rights under the charter within the limits of the city, without any other tax or charge than upon the estimated value of their house and lot, and one hundred dollars per annum. The city agrees to take fifty public lamps to begin with, to be extended thereafter according to the public wants. All the obligations, whatever they may be, to be found in the contract on the part of the city are binding upon it, and if broken, the courts will afford the proper remedy. The establishment of another company therein will not change its nature or obligation, much less abrogate it. To this extent the city is bound, but no further. There is neither an express or implied obligation not to take stock in any other company.

The idea that the subscription to the stock of the new company would aid or encourage its establishment in the city, and hence would operate as a violation of the contract, finds no support in that instrument.

The result of our opinion is, that the only question that it was competent for the complainant, as a stockholder of the Memphis Gaslight Company, to compel the directors to present to a court of justice, was that involving its exclusive right, under the charter, to furnish the city of Memphis with gas; and as that had been presented to a court of competent jurisdiction, in a suit then pending, he is disabled, according to the settled rule on this subject, from instituting a suit in his own name in another court.

DECREE BELOW REVERSED, remitted to the court below, with directions to dismiss the bill.

Statement of the case.

UNITED STATES v. SPEED.

1. The War Department, by its proper officers, may make a valid contract for the slaughtering, curing, and packing of pork, when that is the most expedient mode of securing army supplies of that kind.

2. Such a contract, when for a definite amount of such work, is valid, though it contains no provision for its termination by the Commissary-General at his option.

3. The act of March 2d, 1861, requiring such contracts to be advertised, authorizes the officer in charge of the matter to dispense with advertising, when the exigencies of the service require it; and it is settled, that the validity of a contract, under such circumstances, does not depend on the degree of skill or wisdom with which the discretion thus conferred is exercised.

4. Where the obligation of one party to a contract requires of him the expenditure of a large sum in preparation to perform, and a continuous readiness to perform, the law implies a corresponding obligation on the other party to do what is necessary to enable the first to comply with his agreement.

5. Where the plaintiff agreed to pack a definite number of hogs for defendant, and made all his preparations to do so, and was ready to do so, but the defendant refused to furnish the hogs to be packed, the measure of damages is the difference between the cost of doing the work and the price agreed to be paid for it, making reasonable deductions for the less time engaged, and for release from the care, trouble, risk, and responsibility attending its full execution.

APPEAL from the Court of Claims. The case was thus:

By an act of 14th April, 1818,* "the Commissary-General and his assistants shall perform such duties in purchasing and issuing of rations as the President shall direct;" "supplies for the army (unless in particular and urgent cases the Secretary of War should otherwise direct) shall be purchased by contract, on public notice," &c., "which contract shall be made under such regulations as the Secretary of War may direct." One of the regulations prescribed by the Secretary of War, and which made Rule No. 1179 in the Army Regulations of 1863, is thus:

"Contracts for subsistence stores shall be made after due public * 3 Stat. at Large, 426, 88 6, 7.

Statement of the case.

notice, and on the lowest proposals received from a responsible person who produces the required article. These agreements shall expressly provide for their termination at such time as the CommissaryGeneral may direct."

By an act of March 2, 1861,* it is provided, that

"All purchases and contracts for supplies or services in any of the departments of the government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles, or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or service may be procured by open purchase or contract at the places, and in the manner in which such articles are usually bought and sold, or such services engaged between individuals."

These statutes and regulations being in force, the Secretary of War, through the Commissary-General, authorized Major Simonds, at Louisville, in October, 1864, and during the late rebellion, to buy hogs and enter into contracts for slaughtering and packing them, to furnish pork for the army.

On the 27th of October, Simonds, for the United States, and Speed, made a contract, by which the live hogs, the cooperage, salt, and other necessary materials, were to be delivered to Speed by the United States, and he was to do the work of slaughtering and packing. The contract was agreed to be subject to the approval of the Commissary-General of Subsistence.

No advertisements for bids or proposals was put out before making the contract, nor did the contract contain a provision that it should terminate at such times as the CommissaryGeneral should direct.

After the contract was made, Simonds wrote as the facts were found under the rules, by the Court of Claims, to beto the Commissar,-General, informing him substantially of its terms; but no copy of it, nor the contract itseif, was pre

Argument for the United States.

sented to the Commissary-General for formal approval. The Commissary-General thereupon wrote to Simonds, expressing his satisfaction at the progress made, and adding: "The whole subject of pork-packing at Louisville is placed subject to your direction under the advice of Colonel Kilburn."

The claimant incurred large expenditures in the preparation for fulfilling his contract. He also kept, during the whole season, the full complement of hands necessary to have slaughtered the whole 50,000 hogs within the customary season. During the season, there were furnished to the claimant 16,107 hogs; but owing to the high price of hogs, Simonds, with the approval of the Commissary-General, gave up the enterprise, and refused to furnish the remainder of the 50,000 hogs.

Upon these facts the Court of Claims held,

1st. That the Secretary of War, through the CommissaryGeneral, might authorize such a contract to be made without a resort to the advertisement and bids proposed.

2d. That the letter of the Commissary-General was a virtual approval of the contract.

3d. That the contract was an engagement on the part of the United States to furnish 50,000 hogs to the claimant, to slaughter and pack at the stipulated price, and that their failure in part to perform the same entitled the plaintiff to recover damages.

4th. That the true measure of damages was the difference between the cost of doing the work and what the claimant was to receive for it, making reasonable deductions for the less time engaged, and for release from the care, trouble risk, and responsibility attending a full execution of the con

tract.

The court awarded damages accordingly to the claimant, and the United States appealed.

Mr. Dickey, Assistant Attorney-General, for the appellant: 1. Where Congress has intended that the government shall embark in the business of manufacturing any of the materiel of war, it has made special provision by law for its doing so.

Argument for the United States.

It has established armories and navy-yards, and provided for the making of arms and the building of vessels; but nowhere can be found any enactment authorizing any officer or class of officers to embark the government in the business of curing pork or bacon, or in the business of raising corn, or hogs, or cattle, or horses, or mules, or asses for the army.

2. The contract is not binding upon the United States, because it contains no provision "for the termination" of the contract "at such times as the Commissary-General may

direct."

This contract, containing no such provision, is a contract made in violation of the statute of 1818, and is not binding upon the United States.

3. If the want in this contract of the provision for its termination at such time as the Commissary-General shall direct, does not vitiate the contract, it must be held that the contract will be treated as containing the clause, inasmuch as the law requires that it should contain the clause. Porkpacking and curing bacon is not within the scope of the powers of the Secretary of War and of his-subordinates, and if the contract is regarded as containing this provision, then there is an end of this case, for in that case it was no violation of the contract for Simonds, with the approbation of the Commissary-General, to terminate the contract at any time.

4. This contract is not binding upon the United States, because there was no advertisement for proposals before the contract was made, as required by the act of March 2, 1861. The Court of Claims do not find that any public exigency required "the immediate delivery of the article, or performance of the service;" on the contrary, the very nature of the contract shows that immediate delivery or immediate performance was not contemplated.

5. Where a contract is made subject to the approval of the Commissary-General, it is not binding on the United States until it is so approved, after the commissary has fuil knowledge of all the provisions and defects of the contract. It is not sufficient that he be informed "substantially