and the correspondence between the chief quartermaster and Drachman relating thereto. The court held, following the case of United States v. Ellis, 2 Ariz. 253, 14 Pac. 300, that the transcript, being an account of the war department, came within the provisions of said section 886, and should have been admitted as evidence. United States v. Drachman, 4 Ariz. 297, 43 Pac. 222. Upon the retrial of the case this transcript was admitted in evidence, over objection, and this ruling is made the basis for one of the appellant's assignments of

error.

We have carefully read the statute in the light of United States v. Ellis and United States v. Drachman, and see no good reason why these well-considered cases should not be followed. In holding, however, that this transcript was properly admitted in evidence, we do not wish to be considered as deciding that it made a prima facie case in favor of the government. The statute reads as follows: "Sec. 886. When suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the treasury department, certified by the register and authenticated under the seal of the department, or when the suit involves the accounts of the war or navy departments, certified by the auditors respectively charged with the examination of those accounts, and authenticated under the seal of the treasury department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the register, or such auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the department, may be annexed to such transcript, and shall have an equal validity and be entitled to the same degree of credit which would be due to the original papers, if produced and authenticated in court." We construe the clause, "and the court trying the cause shall be authorized to grant judgment and award execution accordingly," to mean that in a case of this kind, whenever the treasury transcript shows upon its face a breach of a bond given to secure the faithful performance of a contract for delivery of supplies

to the war department, and further shows a loss to the government resulting therefrom, such a case is made out as will authorize judgment for such loss, if the prima facie case thus made be not overcome by competent evidence. But should the transcript fail to show a breach of the bond, or fail to show damages which are the proximate and direct result from said breach, under the terms of the bond, the government, in order to make out a case, must supplement the evidence presented by the transcript by such competent evidence as will entitle the government to a recovery under the well-settled rules of law governing actions of this kind. The transcript in this case shows the following facts: In April, 1885, A. J. McGonigle, chief quartermaster of the department of Arizona, advertised for sealed proposals for furnishing and delivering certain military supplies during the fiscal year ending June 30, 1886, at certain military posts of the United States, among which was Fort Huachuca, in this territory. In accordance with said advertisement, Phillip Drachman, on April 25, 1885, sent to said quartermaster a written proposal to furnish to the government, at Fort Huachuca, 1,800,000 pounds of grama hay at ninety-three cents per one hundred pounds. Accompanying said proposal was a bond executed by said Drachman as principal and said Goldberg and said Dennis as sureties, the condition of which said bond was that "In case said bidder shall fail to enter into contract within ten days with the proper officer of the United States, and furnish good and sufficient bond for the faithful performance of the same, according to the terms of said bid and advertisement, we and each of us hereby stipulate and guaranty and bind ourselves and each of us, our and each of our heirs, executors, and administrators, to pay to the United States the difference in money between the amount of the bid of the said bidder and the amount for which the proper officer of the United States may contract with another party to furnish said supplies, if the latter amount be in excess of the former for the whole period covered by the proposal." This bond. was required of bidders under the regulations of the department and under the terms of the advertisement. On May 29, 1885, the said quartermaster notified in writing said Drachman of the acceptance of his proposal. On June 26, 1885, Drachman, by letter, notified the chief quartermaster that he

was unable to comply with his proposal, for the reason that he could not give the requisite bond. The transcript further shows that, after the failure of said Drachman to carry out his contract, the government, during the fiscal year ending June 30, 1886, purchased, under contract, for use at Fort Huachuca, 840,000 pounds of baled barley hay, 300,000 pounds of loose alfalfa hay, 60,000 pounds of wheat straw, and 400,000 pounds of baled barley straw, at the total cost to the government of $20,868.16. It will be seen that Drachman's contract was to furnish 1,800,000 pounds of grama hay, and the contract of his sureties, as contained in the bond, was, that in case of Drachman's failure to enter into contract within ten days with the proper officer of the United States, and to furnish good and sufficient bond for the faithful performance of the same according to the terms of said bid and advertisement, they would pay to the United States the difference in money between the amount of the bid of said bidder and the amount for which the proper officer of the United States may contract with another party to furnish said supplies, if the latter be in excess of the former, for the whole period covered by the proposal. The proposal was to furnish grama hay. The term "said supplies," as found in the bond, had reference, therefore, necessarily, to the particular kind of hay named in Drachman's bid,—namely, grama hay. The transcript does not show that the contracts for the hay and straw subsequently purchased by the government for use at Fort Huachuca were let upon advertisement, nor does it show that merchantable grama hay was not obtainable by the government, or that any effort was made by the government to obtain grama hay for use at Fort Huachuca. In addition to the treasury transcript, the only evidence introduced by the government was the testimony of Major McGonigle, the chief quartermaster of the department of Arizona at the time when these transactions occurred. The witness was not able to say with certainty whether the subsequent purchases of hay were made upon advertisement and bids. He was not able to say whether grama hay of suitable quality, and in the quantity desired, was available for use at Fort Huachuca, or whether any efforts were made to procure the same, or whether any offers were made to furnish grama hay by other parties. The defendant offered to prove by

witnesses that an abundance of grama hay was obtainable for use by the government during the time covered by Drachman's proposal. But this offer of proof was denied by the trial court upon objection, and the case went to the jury practically upon the facts as shown by the treasury transcript. Upon the case thus made out the court instructed the jury that "The fact, if it be a fact, that the plaintiff, through its proper officers, purchased alfalfa and barley hay to fill the amount required by the said quartermaster upon the default of the defendants, if you find they did so default, is no defense to this action. That, as a matter of law, under the provisions of the contract or guaranty sued upon, plaintiff could contract for and purchase any kind of hay which would meet the requirements of the said quartermaster and the United States army." The bond in this case primarily fixes the measure of damages for a breach of the contract in the difference in price which the government might pay for the purchase of the supplies proposed by Drachman in his bid, which, as we have seen, was grama hay, and the price named by him in his bid. The instruction of the court ignores this stipulation of the bond, and without qualification the law is stated to be, that the sureties upon the bond are liable for the difference between the price of grama hay as named by Drachman in his bid and the price of any kind of hay which the government might see fit to purchase.

The ordinary measure of damage for the breach of a contract to furnish a particular article is the difference between the contract price and the market value of the same article at the time and place of delivery. This rule is subject to the qualification that when it appears that the particular article contracted for cannot be had, but the buyer is compelled to purchase another article to take the place of the one contracted for, then the measure of damage will be the difference of the contract price of the article agreed to be delivered and the market value of the substituted article. The buyer, however, must show, in order to recover the difference in price between the article contracted for and the substituted article, that the former was not available, and the substitution was therefore made necessary. If, therefore, in this case, it had been shown that grama hay of sufficient quantity and of merchantable quality was available for use at Fort Hua

chuca, and could have been obtained by the proper officer after the breach of Drachman's contract, and during the time covered by his proposal, then the measure of damage would not be the difference between the price of grama hay as named by Drachman in his bid and the price for other kinds of hay which may have been purchased by the government, but the difference between the price as contracted for and the market value of grama hay during the time covered by the proposal. The question, therefore, as to whether grama hay of suitable quality and sufficient quantity could have been procured to take the place of that contracted for by Drachman, was a question which should have been submitted to the jury; and the ruling of the court in refusing the offer of proof on the part of the defendant and in giving the instruction above set forth was erroneous; and for these reasons the cause will be reversed and a new trial granted.

Davis, J., and Doan, J., concur.

[Civil No. 581. Filed February 23, 1898.]

[52 Pac. 366.]

SIXTO MOLINO, Defendant and Appellant, v. JOHN BLAKE, Plaintiff and Appellee.

1. PLEADING-OPEN ACCOUNT-VERIFIED UNDER REV. STATS. ARIZ. 1887, PAR. 1880-ANSWER-SUFFICIENCY-JUDGMENT ON PLEADINGS.-In an action for balance of an unpaid account, defendant answered with a general denial, and set up a counterclaim alleging mutual accounts and a balance due him. To the counterclaim, and made a part thereof, was attached a verified account showing various items of indebtedness constituting the same. To this counterclaim plaintiff filed a verified reply, admitting that there were such mutual accounts, but alleging that the same had been settled, and that a balance thereon was found due plaintiff, which was agreed to by defendant, and that thereafter defendant had made payments on such balance, reducing it to the amount claimed by plaintiff in his complaint, which was still due and unpaid. Under the pleadings, defendant's motion for judgment on the pleading, on the ground that there was no sufficient denial under oath, as required by paragraph 1880, supra, of the verified account pleaded in said counterclaim, was properly denied.