NORCROSS, District Judge.
From a judgment for defendant in an action for damages for breach of contract brought under section 24 of the Judicial Code (28 USCA § 41), plaintiffs appeal.
Plaintiffs’ petition sets out three canses of action. The first alleges the making of a contract of date May 16, 1922, for the sale of 5,436 net tons of various classes of iron and steel at $14.55 per ton, and 1,240 gross tons of cast iron scrap at $10.75 per ton, to be delivered free at ship’s tackle, Balboa, Canal Bone; that defendant failed and refused to deliver 217 net tons of said iron and steel, to plaintiffs’ damage in the sum of $6,053.19. The second alleges payment to defendant by plaintiffs of the agreed price for 5,219 tons of iron and steel, and 1,240 gross tons of cast scrap iron, and that there was a shortage .in delivery of 200% tons of iron and steel, and 96,115 pounds of east scrap iron, to plaintiffs’ damage in the sum [839]*839of $3,429.45. The third cause of action is for an alleged shortage in delivery under a similar contract of date July 27, 1922, occasioning an overpayment of $906.11. Plaintiffs waive the sum of $388.76, and pray for judgment for $9,999, together with interest and costs.
Defendant by its answer admits the contract sued upon, but alleges in effect that it was made in pursuance of a circular letter, referred to therein, calling for bids for the material offered for sale by the Panama Canal, and that such letter was a part of the contract; that all material was delivered within the terms of the contract, and that no material was paid for which was not delivered.
The court found: “That under date of May 16, 1922, the Panama Canal entered into a contract with plaintiffs, whereby the plaintiffs agreed to purchase and the Panama Canal agreed to sell 5,219.76 net tons of surplus iron and steel at $14.55 per ton, and 1,240.55 tons of scrap iron at $10.75 per ton. That the said Panama Canal complied with the terms of the agreement. That plaintiffs performed the terms, conditions, and provisions of said contract on their part to be performed except,” etc. (the exception being in minor matters not material to the question here involved) . “That the allegations of paragraphs II, III, IY, Y, and YI of defendant’s answer are true, except that in paragraph IV the amount * * * should read ‘217 net tons.’ ” That the material allegations of the complaint, except in respect to the making of the contracts, “are untrue.”
The material portions of the contract read:
“This agreement, made this 16th day of May, 1922, by and between the United States of America, acting by R. K. Morris, Chief Quartermaster, under the authority of the Governor of the Panama Canal, hereinafter referred to as the Panama Canal, and the Rosenberg Iron & Metal Company, of San Francisco, Cal., hereinafter referred to as the contractor, a successful bidder under circular letter of the Panama Canal inviting proposals for the purchase of iron and steel, dated February 23,1922, and under an award approved by the Secretary of War under date of May 8,1922, witnesseth:
“Art. 1. The contractor hereby agrees to purchase, accept delivery of, f. a. s. Balboa, Canal Zone, make payment for, and remove as hereinafter provided, material in character, quantity, and price as follows:
“5,436 net tons (approximately) of various classes of iron and steel, as set forth in attached list, per net ton, $14.55. Total, $79,-093.80.
“1,240 gross tons (approximately) of east iron scrap, classification No. 9, per gross ton, $10.75, Total, $13,300.00.
“It is understood and agreed that the weights shown above are approximate and that payment will be made for actual weights delivered, the selling weight to be determined by the Panama Canal’s official scales. * * *
Art. 2. The Panama Canal will deliver the material to the contractor f. a. s. vessel at Balboa, Canal Zone. * * *
“Art. 3. The contractor shall, prior to commencing the loading of such material on board a vessel at Balboa, Canal Zone, designate some suitable person as his representative on the Isthmus of Panama, within the Canal Zone, to whom the necessary orders in connection with the contract may be given. The person so designated shall be authorized to act for the contractor in carrying out such orders and in all other matters affecting the prosecution of the work of .removing said material from the Isthmus. Should any dispute arise between the representative of the contractor designated as above and the local representative of the Panama Canal designated to act for it in connection with the removal of the material covered by this contract or as to whether any material ¿aimed by the contractor is included in this contract or as to the manner of removing or as to compliance with any orders issued to govern the prosecution of the work, all questions involved in such dispute shall be referred to the Governor of the Panama Canal or his authorized representative for decision and such decision when given in writing shall be final and conclusive upon the parties hereto.
“Art. 4. The contract price of the material covered by this contract shall be paid * * * before the material is delivered to the vessel. In making final settlement only the actual weight of material delivered will be paid for at the unit prices specified herein. The title to the material will not pass to the contractor until it is fully paid for.”
The circular letter of the Panama Canal, of date February 23, 1922, inviting bids for material covered by the contract, has attached thereto certain general conditions advising bidders that the material had been declared “surplus.” Paragraph 5 of these conditions provides:
“The weights shown in the above items are approximate, and payment shall be made [840]*840for actual weights delivered, the selling weight of the material to be determined on the Panama Canal’s official scales at the Isthmus. All bids submitted will be subject to prior sale of part of all the material bid upon, and to reduction in quantities of any items if unforeseen changes in situation make such action advisable; however, it is believed such action would be necessary in very few cases, if any.”
The question presented upon plaintiffs’ first cause of action is whether the goyemment could, after the execution of the contract, subtract 217 net tons of iron and steel embraced within the quantity specified in the contract. It will be noted that the contract calls for “5,436 net tons (approximately),” while the court found that plaintiffs agreed to purchase and the Panama Canal agreed to sell 5,219.76 net tons.” It is therefore clear that this finding is based on the construction of the contract, that, regardless of the tonnage expressed therein, it covered only such amount of that class of material which was not in fact “surplus," and that the circular letter inviting bids for the material covered by the contract, and advising bidders that the material, which had been purchased for canal operation and maintenance, had been declared “surplus,” was in effect part of the contract.
We think the court below did not err in its construction, and in making the finding in question.
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NORCROSS, District Judge.
From a judgment for defendant in an action for damages for breach of contract brought under section 24 of the Judicial Code (28 USCA § 41), plaintiffs appeal.
Plaintiffs’ petition sets out three canses of action. The first alleges the making of a contract of date May 16, 1922, for the sale of 5,436 net tons of various classes of iron and steel at $14.55 per ton, and 1,240 gross tons of cast iron scrap at $10.75 per ton, to be delivered free at ship’s tackle, Balboa, Canal Bone; that defendant failed and refused to deliver 217 net tons of said iron and steel, to plaintiffs’ damage in the sum of $6,053.19. The second alleges payment to defendant by plaintiffs of the agreed price for 5,219 tons of iron and steel, and 1,240 gross tons of cast scrap iron, and that there was a shortage .in delivery of 200% tons of iron and steel, and 96,115 pounds of east scrap iron, to plaintiffs’ damage in the sum [839]*839of $3,429.45. The third cause of action is for an alleged shortage in delivery under a similar contract of date July 27, 1922, occasioning an overpayment of $906.11. Plaintiffs waive the sum of $388.76, and pray for judgment for $9,999, together with interest and costs.
Defendant by its answer admits the contract sued upon, but alleges in effect that it was made in pursuance of a circular letter, referred to therein, calling for bids for the material offered for sale by the Panama Canal, and that such letter was a part of the contract; that all material was delivered within the terms of the contract, and that no material was paid for which was not delivered.
The court found: “That under date of May 16, 1922, the Panama Canal entered into a contract with plaintiffs, whereby the plaintiffs agreed to purchase and the Panama Canal agreed to sell 5,219.76 net tons of surplus iron and steel at $14.55 per ton, and 1,240.55 tons of scrap iron at $10.75 per ton. That the said Panama Canal complied with the terms of the agreement. That plaintiffs performed the terms, conditions, and provisions of said contract on their part to be performed except,” etc. (the exception being in minor matters not material to the question here involved) . “That the allegations of paragraphs II, III, IY, Y, and YI of defendant’s answer are true, except that in paragraph IV the amount * * * should read ‘217 net tons.’ ” That the material allegations of the complaint, except in respect to the making of the contracts, “are untrue.”
The material portions of the contract read:
“This agreement, made this 16th day of May, 1922, by and between the United States of America, acting by R. K. Morris, Chief Quartermaster, under the authority of the Governor of the Panama Canal, hereinafter referred to as the Panama Canal, and the Rosenberg Iron & Metal Company, of San Francisco, Cal., hereinafter referred to as the contractor, a successful bidder under circular letter of the Panama Canal inviting proposals for the purchase of iron and steel, dated February 23,1922, and under an award approved by the Secretary of War under date of May 8,1922, witnesseth:
“Art. 1. The contractor hereby agrees to purchase, accept delivery of, f. a. s. Balboa, Canal Zone, make payment for, and remove as hereinafter provided, material in character, quantity, and price as follows:
“5,436 net tons (approximately) of various classes of iron and steel, as set forth in attached list, per net ton, $14.55. Total, $79,-093.80.
“1,240 gross tons (approximately) of east iron scrap, classification No. 9, per gross ton, $10.75, Total, $13,300.00.
“It is understood and agreed that the weights shown above are approximate and that payment will be made for actual weights delivered, the selling weight to be determined by the Panama Canal’s official scales. * * *
Art. 2. The Panama Canal will deliver the material to the contractor f. a. s. vessel at Balboa, Canal Zone. * * *
“Art. 3. The contractor shall, prior to commencing the loading of such material on board a vessel at Balboa, Canal Zone, designate some suitable person as his representative on the Isthmus of Panama, within the Canal Zone, to whom the necessary orders in connection with the contract may be given. The person so designated shall be authorized to act for the contractor in carrying out such orders and in all other matters affecting the prosecution of the work of .removing said material from the Isthmus. Should any dispute arise between the representative of the contractor designated as above and the local representative of the Panama Canal designated to act for it in connection with the removal of the material covered by this contract or as to whether any material ¿aimed by the contractor is included in this contract or as to the manner of removing or as to compliance with any orders issued to govern the prosecution of the work, all questions involved in such dispute shall be referred to the Governor of the Panama Canal or his authorized representative for decision and such decision when given in writing shall be final and conclusive upon the parties hereto.
“Art. 4. The contract price of the material covered by this contract shall be paid * * * before the material is delivered to the vessel. In making final settlement only the actual weight of material delivered will be paid for at the unit prices specified herein. The title to the material will not pass to the contractor until it is fully paid for.”
The circular letter of the Panama Canal, of date February 23, 1922, inviting bids for material covered by the contract, has attached thereto certain general conditions advising bidders that the material had been declared “surplus.” Paragraph 5 of these conditions provides:
“The weights shown in the above items are approximate, and payment shall be made [840]*840for actual weights delivered, the selling weight of the material to be determined on the Panama Canal’s official scales at the Isthmus. All bids submitted will be subject to prior sale of part of all the material bid upon, and to reduction in quantities of any items if unforeseen changes in situation make such action advisable; however, it is believed such action would be necessary in very few cases, if any.”
The question presented upon plaintiffs’ first cause of action is whether the goyemment could, after the execution of the contract, subtract 217 net tons of iron and steel embraced within the quantity specified in the contract. It will be noted that the contract calls for “5,436 net tons (approximately),” while the court found that plaintiffs agreed to purchase and the Panama Canal agreed to sell 5,219.76 net tons.” It is therefore clear that this finding is based on the construction of the contract, that, regardless of the tonnage expressed therein, it covered only such amount of that class of material which was not in fact “surplus," and that the circular letter inviting bids for the material covered by the contract, and advising bidders that the material, which had been purchased for canal operation and maintenance, had been declared “surplus,” was in effect part of the contract.
We think the court below did not err in its construction, and in making the finding in question. While it is true, as contended by counsel for defendant, contracts with the government are to be construed in the same manner as contracts between private individuals, nevertheless this does not militate against the rule, applicable to public contracts generally, that those who deal with the agents of the public must at their peril inquire into their power to bind their principal. Donnelly on Public Contract, § 11.
In this case certain “surplus” and “scrap” material was authorized to be sold. The fact that through inadvertence or error there was included in the contract certain material which was not “surplus,” but which was in fact required for use in the operation of the canal, did not affect the fact that it was material not within the power of the agents to sell. Nor do we think the fact that it did not become apparent- until after the contract was executed that the material withdrawn for canal use might be so required at all changes the legal situation. The faet is it was not “surplus” material, was not otherwise sold, but Used for the purpose for which it was originally purchased by the government.
The court did not err in construing the contract in connection with the circular letter calling for bids. 41 USCA §§ 16,17; Clark v. United States, 95 U. S. 539, 24 L. Ed. 518.
The questions presented in counts 2 and 3 of the plaintiffs’ petition relate to alleged shortage in delivery of material purchased and paid for. It was stipulated: “That in the event that the court decides, in view of the terms of the agreement of May, 1922, as set forth in the second cause of action, plaintiff is not precluded under terms of the agreement by the weights of the Panama scales from proving weights on other scales, plaintiffs’ witnesses will testify that the record of the certified public weighmaster for weights made at San Francisco will show that there was a shortage of 200% tons, the contract price on which is $2,912.91.” It was “further stipulated that the theoretical weights given in the Pocket Companion of the Carnegie Steel Company for weights of iron and steel, whieh has not actually been weighed, corresponds to the actual scale weight.”
We think the court below did not err in holding the plaintiffs bound by the weights of the Panama scales. While it may be conceded that plaintiffs should not be required to pay for material which they did not receive, and even assuming that the weight of the material upon arrival at the port of San Francisco is correctly shown by the record of the certified public weighmaster, it does not follow that such record of weight governs in the premises. The contract provides “the selling weight to be determined by the Panama Canal’s official scales.”
Doubtless for the purpose of avoiding controversies such as presented upon this count, and also for a means of their determination, should they arise, it was provided in the contract that “the contractor shall, prior to commencing the loading * * * designate some suitable person as his repre sentative on the Isthmus of Panama within the Canal Zone, to whom the necessary orders in connection with the contract may be given. The person so designated shall be authorized to act for the contractor * * * in all other matters affecting the prosecution of the work of removing said material from the Isthmus. Should any dispute arise, * * * all questions involved in such dispute shall be referred to the Governor of the Panama Canal * * * for decision, and such decision when giving in writing shall be final and conclusive upon the parties hereto.” The contractor, appellants herein, did not provide such a representative, but left [841]*841the matter of weighing and delivery to vessels to the officials of the Panama Canal.
It is suggested that a loss might have occurred subsequent to weighing, and prior to delivery aboard vessel, but there is no evidence that such a thing occurred. It is also urged that in the case of some 30 carloads of material the weight was not taken upon the Panama scales at all, and only theoretical book weights taken therefor. This was occasioned by the fact that some of the iron was of such lengths that two ears had to be used together, while the scales could only weigh one ear at a time. It is, however, stipulated that such theoretical weight “corresponds to the actual scale weight.”
With respect to the third count of the petition, it was stipulated: “That there was a shortage of 17.21 tons of material called for in the terms of the contract of July, 1922, which, according to the contract price, amounted to the sum of $118.68.” It is contended by counsel for appellants that judgment should have been entered in their favor for at least this amount by reason of this stipulation. It appears, however, from the evidence and findings, that this particular shortage was accounted for and correctly adjusted in the final settlement on that contract.
Judgment affirmed.