Loring, J.,
delivered the opinion of tie court:
By the contract made between Captain Mackenzie, on the part of the United States, and the petitioners, on February 1, 1862, at Cumberland, the petitioners were to supply Lander’s division, then at Camp Kelly, near Cumberland, and any other troops that might be attached thereto, “ with fresh beef, in quarters, in such quantities as might from time to time be required, not oftener than five times a week, for 6J cents per pound.”
And Battelle and Evans were to accompany the expedition then contemplated with one hundred head of beef-cattle, more or less, as might be required, and with ox-teams, wagons, horses, •&c.j and if any beef-cattle were lost by the way, notwithstanding due care and diligence on the part of Battelle and Evans, the United States were to pay such portion of the loss as might be agreed upon. And 1 cent per pound additional to the 6-]-cents specified was to be allowed for the difficulties of the forward movement while those difficulties continued.
The contract thus related to “ Zander’s division and such troops as might he attached thereto,” and though this did not specify the number of men, it indicated generally the body of troops of a division commander, for the supply of which the contractors were to make their preparations.
The contract referred to a contemplated movement of the forces it specified, without indicating what that movement was to be. It was undoubtedly known to the contracting parties at the time, and is shown by the subsequent movements. When Lander’s division first moved does not precisely appear, but the [302]*302bistory of tbe war in Virginia shows he had moved southerly down the valley from Cumberland to Moorfield, and captured that place, before the 11th of February, 1802.
Subsequently General Lander, on account of ill-health, resigned his command, and was succeeded in it by General Shields, and under him the division formed a part of the Fifth Army Corps, under General Banks, on the eastern side of the mountain, and on the 22d of March it fought and won the battle of Winchester, having been left there by General Banks, who, with the rest of his command, had marched southerly to Sfcras-burgh and Harrisonburgh. ■ On the 15th of May General Shields’s division was detached from the corps of General Banks and ordered to join the forces of General McDowell at Fred-ericksburgh, on the Iiappahannock Biver, and marched from the valley of the Shenandoah easterly for that purpose.
About May 1,1862, Captain Mackenzie, who had made the contract of February 1,1862, with the petitioners for Lander’s division, was ordered from Cumberland to Petersburgh, on the western side of the mountains in the valley of Virginia, and there formed a commissary’s depot, and on the 5th of May General Frémont, who had been appointed to the command of the mountain department, marched from New Creek southerly, to the relief of the positions of the Union forces threatened by General “ Stonewall” Jackson, and reached Pittsburgh about the-7th of May, and there he ordered Captain Mackenzie to procure beef-cattle to accompany the march of the army as stated, and under these orders eight hundred head of cattle were ordered of the petitioners on the 8th of May. General Frémont continued his march southerly, toward Franklin, where General Schenck was stationed. At this time General Milroy, commanding at McDowell, was attacked there by General “ Stonewall” Jackson, and driven back on General Schenck; there a stand was made, and General Frémont coming up with his army, the enemy withdrew, and General Frémont, with the forces now under his command, made his headquarters at Franklin, where he remained ten days.
The object of General “Stonewall” Jackson in attacking General Milroy was to prevent his junction with General Banks on the easterly side of the mountains at Harrisonburgh, and this, being effected by the defeat of General Milroy, General “ Stonewall” Jackson rapidly crossed the mountains and fell on Gen[303]*303eral Banks, and on the 24th and 25th of May drove him through Strasburgh, northerly, and through Winchester and Martins-burg’h to the Potomac and over it, General Banks crossing the river on the 20th of May.
On the 23d May General Frémont was ordered to march from Franklin to General Banks’s aid, and on the 25th of May he started with all the forces under his command. The roads to Petersburgh and Moorheld were broken up by wagon-trains and heavy and rough, and at Hunting Bulge he turned and crossed the mountains, and, by a forced and difficult march in bad and rainy weather, in eight days from the time he started he reached the division of the roads leading to Winchester and Strasburgh. In the mean time General Shields, on his march to Frederieksburgh, had learned the defeat of General Banks, and retraced his steps back to Front Boyal to aid General Banks and cut off General “ Stonewall” Jackson’s retreat. For the same purpose General Sigel marched with his division from Harper’s Ferry westerly toward Winchester, which his advance, under General Cooper, reached May 25. But between all these forces, marching from the east and west, General Stonewall Jackson passed safely with his army and retreated, southerly, through Winchester and Strasburgh. After this General Banks with his command returned from the Potomac, and his forces being combined with those of General Shields’s and General Sigel’s and General Frémont’s, pursued General Stonewall Jackson, and he, to stop their pursuit, turned and fought them at Gross Keys, June 8. After this check the Union Army fell back to Mount Jackson and rested there.
This sketch of the movement of the different forces shows that during the time of General Frémont’s march from New Greek to near McDowell and thence back to Franklin, from the 5th to the 25th May, and on his forced march from Franklin across the mountains to near Strasburgh, General Lander’s division, to which the written contract referred, formed no part of General Fremont’s army, and that all the time these different forces were on different sides of the mountains.. And it shows also that the movement referred to in the contract of February 1 was not the forced march of General Frémont to aid General Banks in his retreat of 24th and 25th May. And, therefore, it shows that the supplies for which this suit is brought were furnished to troops and in localities, quantities, [304]*304and circumstances to which, the written contract of February 1 did not relate, and under another and distinct contract made at a different time and place, and for a different purpose, and in a different manner, and under a different authority; for it was made under the orders of General Frémont, and by the telegrams above shown, and with'no other reference to the written contract than an express agreement for a different price, and in an emergency which the written contract did not contemplate and could not meet. That contract specified the number of cattle to accompany the march of Lander’s division, then contemplated at one hundred head, “ more or less. This by legal construction could not be extended beyond one hundred and some part of another hundred, while eight hundred head of cattle were ordered for the army of General Frémont in one day, and on his forced march from Franklin the order was for two hundred head every day till further ordered.
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Loring, J.,
delivered the opinion of tie court:
By the contract made between Captain Mackenzie, on the part of the United States, and the petitioners, on February 1, 1862, at Cumberland, the petitioners were to supply Lander’s division, then at Camp Kelly, near Cumberland, and any other troops that might be attached thereto, “ with fresh beef, in quarters, in such quantities as might from time to time be required, not oftener than five times a week, for 6J cents per pound.”
And Battelle and Evans were to accompany the expedition then contemplated with one hundred head of beef-cattle, more or less, as might be required, and with ox-teams, wagons, horses, •&c.j and if any beef-cattle were lost by the way, notwithstanding due care and diligence on the part of Battelle and Evans, the United States were to pay such portion of the loss as might be agreed upon. And 1 cent per pound additional to the 6-]-cents specified was to be allowed for the difficulties of the forward movement while those difficulties continued.
The contract thus related to “ Zander’s division and such troops as might he attached thereto,” and though this did not specify the number of men, it indicated generally the body of troops of a division commander, for the supply of which the contractors were to make their preparations.
The contract referred to a contemplated movement of the forces it specified, without indicating what that movement was to be. It was undoubtedly known to the contracting parties at the time, and is shown by the subsequent movements. When Lander’s division first moved does not precisely appear, but the [302]*302bistory of tbe war in Virginia shows he had moved southerly down the valley from Cumberland to Moorfield, and captured that place, before the 11th of February, 1802.
Subsequently General Lander, on account of ill-health, resigned his command, and was succeeded in it by General Shields, and under him the division formed a part of the Fifth Army Corps, under General Banks, on the eastern side of the mountain, and on the 22d of March it fought and won the battle of Winchester, having been left there by General Banks, who, with the rest of his command, had marched southerly to Sfcras-burgh and Harrisonburgh. ■ On the 15th of May General Shields’s division was detached from the corps of General Banks and ordered to join the forces of General McDowell at Fred-ericksburgh, on the Iiappahannock Biver, and marched from the valley of the Shenandoah easterly for that purpose.
About May 1,1862, Captain Mackenzie, who had made the contract of February 1,1862, with the petitioners for Lander’s division, was ordered from Cumberland to Petersburgh, on the western side of the mountains in the valley of Virginia, and there formed a commissary’s depot, and on the 5th of May General Frémont, who had been appointed to the command of the mountain department, marched from New Creek southerly, to the relief of the positions of the Union forces threatened by General “ Stonewall” Jackson, and reached Pittsburgh about the-7th of May, and there he ordered Captain Mackenzie to procure beef-cattle to accompany the march of the army as stated, and under these orders eight hundred head of cattle were ordered of the petitioners on the 8th of May. General Frémont continued his march southerly, toward Franklin, where General Schenck was stationed. At this time General Milroy, commanding at McDowell, was attacked there by General “ Stonewall” Jackson, and driven back on General Schenck; there a stand was made, and General Frémont coming up with his army, the enemy withdrew, and General Frémont, with the forces now under his command, made his headquarters at Franklin, where he remained ten days.
The object of General “Stonewall” Jackson in attacking General Milroy was to prevent his junction with General Banks on the easterly side of the mountains at Harrisonburgh, and this, being effected by the defeat of General Milroy, General “ Stonewall” Jackson rapidly crossed the mountains and fell on Gen[303]*303eral Banks, and on the 24th and 25th of May drove him through Strasburgh, northerly, and through Winchester and Martins-burg’h to the Potomac and over it, General Banks crossing the river on the 20th of May.
On the 23d May General Frémont was ordered to march from Franklin to General Banks’s aid, and on the 25th of May he started with all the forces under his command. The roads to Petersburgh and Moorheld were broken up by wagon-trains and heavy and rough, and at Hunting Bulge he turned and crossed the mountains, and, by a forced and difficult march in bad and rainy weather, in eight days from the time he started he reached the division of the roads leading to Winchester and Strasburgh. In the mean time General Shields, on his march to Frederieksburgh, had learned the defeat of General Banks, and retraced his steps back to Front Boyal to aid General Banks and cut off General “ Stonewall” Jackson’s retreat. For the same purpose General Sigel marched with his division from Harper’s Ferry westerly toward Winchester, which his advance, under General Cooper, reached May 25. But between all these forces, marching from the east and west, General Stonewall Jackson passed safely with his army and retreated, southerly, through Winchester and Strasburgh. After this General Banks with his command returned from the Potomac, and his forces being combined with those of General Shields’s and General Sigel’s and General Frémont’s, pursued General Stonewall Jackson, and he, to stop their pursuit, turned and fought them at Gross Keys, June 8. After this check the Union Army fell back to Mount Jackson and rested there.
This sketch of the movement of the different forces shows that during the time of General Frémont’s march from New Greek to near McDowell and thence back to Franklin, from the 5th to the 25th May, and on his forced march from Franklin across the mountains to near Strasburgh, General Lander’s division, to which the written contract referred, formed no part of General Fremont’s army, and that all the time these different forces were on different sides of the mountains.. And it shows also that the movement referred to in the contract of February 1 was not the forced march of General Frémont to aid General Banks in his retreat of 24th and 25th May. And, therefore, it shows that the supplies for which this suit is brought were furnished to troops and in localities, quantities, [304]*304and circumstances to which, the written contract of February 1 did not relate, and under another and distinct contract made at a different time and place, and for a different purpose, and in a different manner, and under a different authority; for it was made under the orders of General Frémont, and by the telegrams above shown, and with'no other reference to the written contract than an express agreement for a different price, and in an emergency which the written contract did not contemplate and could not meet. That contract specified the number of cattle to accompany the march of Lander’s division, then contemplated at one hundred head, “ more or less. This by legal construction could not be extended beyond one hundred and some part of another hundred, while eight hundred head of cattle were ordered for the army of General Frémont in one day, and on his forced march from Franklin the order was for two hundred head every day till further ordered.
The orders of General Frémont were for beef-cattle to accompany his army on its march, and when the cattle were driven to the army and accompanied its march the order was obeyed and the contract was executed; the cattle then passed into the control and possession of the army, and the delivery was complete. The cattle used, and for which vouchers were issued, were partly paid for as hereafter stated. But for those that were lost or captured no vouchers were issued, and they were not paid for at all, and, therefore, their whole price is recoverable here.
As to the cattle captured and abandoned by the rebels near Winchester, and of which General Cooper’s forces took possession, they were the property of the petitioners that came to the use of the army. And they were sent by the petitioners from New Creek, for the use of the army, under the written contract of February 1, and are thus within the scope and operation of that contract.
And the evidence showed that the cattle had to be driven on foot from New Creek; that the roads were bad, and great difficulties were encountered, especially in the mountains, where it was difficult to keep the cattle up with the army in its rapid and hurried movements, or to obtain food for them, or protect them from the guerrillas, who infested the march and made it perilous. And in such circumstances the cattle lost weight, and many were lost altogether. These dangers were not, so [305]*305far as the evidence showed, encountered in supplying the cattle on the eastern side of the mountains under the written contract of February 1. And, therefore, we allowed 3 cents per pound additional to the contract price for the cattle supplied to General Frémont’s army, and the contract price of V¿ cents for those shown to have been delivered on the eastern side of the mountains at Martinsburgh and Winchester.
The evidence showed that the contract made by the orders of General Frémont was made in an emergency which precluded advertising, and which, in his deposition, he thus describes: “ The troops were entirely without provisions, so much so in the camp at Franklin, that there was an attempt at mutiny in some regiments for want of provisions, and under these circumstances supplies were furnished for my command wherever they could be procured, and in the most expeditious way.”
And, moreover, his army was in the field, moving rapidly from point to point, and a contract with cattle-dealers whose resources could supply the pressing necessities of his army then and there, and made in such manner as would meet the emergency, was the absolute requirement of the circumstances, and, therefore, the usual mode of purchasing and the only mode practicable in such circumstances.
The facts are found that it was agreed between the contracting parties that the contractors should receive an extra compensation beyond that stated in the written contract of Feb* ruary 1, for their extra trouble, expense, and risks in supplying cattle to General Frémont’s army on its marches, and that under this agreement the supplies were furnished. And it is also found that in the settlement made with Captain Mackenzie it was arranged between the parties that the price specified in the written contract should be paid to the petitioners then, and the extra allowance to be made left to the board of unsettled accounts. Afterward the United States refused to pay more than they had paid, and this gave the right of action here.
The different estimates of the weight of the cattle delivered were 600, 700, and 800 pounds; and we have taken 700 pounds as their average weight.
Nothing is allowed for the hides and tallow; the evidence indicated that these were to belong to the petitioners, and that they lost most of them, because they had no means of transporting them to a market or place of safety. But no provision [306]*306was made as to them or as to their transportation in the written contract, or afterward, between the parties. As the property of the petitioners they would be at their risk. And we think the fact that on one occasion General. Frémont, on the application of the petitioners, gave an order for the transportation of some hides and tallow from Franklin to New Creek, is not sufficient evidence of a promise on the part of the United States to transport or pay for the hides and tallow of the cattle slaughtered. It was shown in evidence that on one occasion General Frémont ordered some hides and tallow to be burned, but it was not shown how many or why.