Morrison Waite

“ Dold did not stand on his rights under the tender of Kitchen's delivery and refuse to yield to the decisions made against him, but went on and fulfilled his contract in accordance with the claim of the government as to his obligation, and now, apparently for Kitchen's benefit alone, seeks to compel the government to pay for Kitchen's corn at the contract price, instead of the market rates. ”

“ He was notified January 15th, and, on the 30th, C. W. Kitchen wrote the commissary from Las Vegas as follows: 'My corn train is now close at hand. Would you have the kindness, if convenient, to authorize the A. C. S. at Fort Sumner to receive corn on Andres Dold's contract? I will have about 85,000 pounds, I think, which I will get an order from Mr. Dold to turn in on his contract.' On the 5th February the commissary replied that he could not give an order to Dold to deliver, or to the acting commissary to receive, until the contracts were signed and approved by the general, commanding. ”

“ If this were a suit against him to recover damages for not delivering, and he were defending because of the tender by Kitchen, the question would be whether that was such an offer to perform on his part as would excuse him from liability for a failure to deliver to that extent. ”