Lobenstein v. United States

Drake, Oh. J.,

delivered the opinion of the court:

In the view we take of this case it is not necessary to discuss the question whether General Morgan was authorized to make, on behalf of the United States, the contracts sued on.

The claimant’s case assumes that, under the contracts, he was entitled to all the hides taken from the cattle issued to Indians at Fort Sill and Camp Supply. This does not appear to us to be the meaning of the contracts. The words are, “ That *141said party of tbe second part shall nave all the bides of beef-cattle slaughtered for Indians at Fort Sill, Indian Territory, up to and including June 30, 1870, which the superintendent of Indian affairs at that place shall decide are not required for the comfort of the Indians, the nnmber of the hides to be about four thousand, more or less.” The same words, in substance, are in the contract relative to the cattle to be slaughtered at Camp Supply.

These words did not entitle the claimant to all the hides, but only such as the superintendent of Indian affairs at either place should decide were not required for the comfort of the Indians. The decision of that officer to that effect was, therefore, the very foundation of the claimant’s right to any hides at all; and yet it does not appear that any such decision was made; but, on the contrary, we are authorized to infer that if. that officer made any decision on the subject, it was that all the hides were required for the comfort of the Indians; for all the cattle, were turned over to them on foot, to do with as they pleased.

The claimant has, therefore, failed to show the very fact that was indispensable to establish his right to any hides; failing in which, there is no ground for alleging a breach of the contracts.

His petition must, therefore, be dismissed.

Loring-, J., did not sit at the hearing of this case, and took no part in the decision.