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UNITED STATES V. MCKEE, 97 U. S. 233 (1877)

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United States v. McKee, 97 U.S. 233 (1877)

United States v. McKee

97 U.S. 233


In 1864, A. entered into two contracts with the United States to deliver a specified number of tons "of timothy or prairie hay" at Fort Gibson, and other points within the Indian Territory, which was then the theater of hostilities. Each contract contained this clause:

"It is expressly understood by the contracting parties hereto that sufficient guards and escorts shall be furnished by the government to protect the contractor while engaged in the fulfillment of this contract."

He cut hay within that territory, and payments were made to him for that which he delivered and for that which, with other personal property, had been destroyed by the enemy. Having been prevented by the enemy from there cutting all the hay necessary to fulfill his contract, he sued to recover an amount equal to the profits he would have made had the contract been fully performed, and he alleged that the United States did not "furnish sufficient guards and escorts for his protection in the cutting and delivery of said hay." The United States set up as a counterclaim the amount paid him for the lose of the hay and his other personal property. The Court of Claims gave judgment for the claimant, allowing in part the counterclaim. Both parties appealed here.


1. That the contract was for the sale and delivery of hay, and not for cutting and hauling grass.

2. That the obligation of the United States to A. was not that of an insurer against any loss he might sustain from hostile forces, but to protect his person and property while engaged in the effort to perform his contract.

3. That A. was entitled to the full value of the property actually lost by him, and having been paid therefor, his petition and the counterclaim should be dismissed.

The facts are stated in the opinion of the Court.

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