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and tendered the coal to the United States in fulfillment of the contract to deliver 5,000 tons. The United States refused to receive it, and appellant sold it in the open market for $3.064 per ton less than $9, the contract price. This was the best price which could be obtained, and the loss to appellant was $1,120.87. The Court of Claims held that the appellant was not entitled to recover. We think this was error. The obligations of parties were reciprocal; one to deliver, the other to receive, about 5,000 tons of coal, and equally reciprocal is the liability for non-performance of the obligations. The only question can be, is 366 tons less than 5,000 tons, “about 5,000 tons"? We think not. The difference is too great. We said in Brawley v. United States; 96 U. S. 168, 172, that in engagements to furnish goods to a certain amount, the quantity specified is material and governs the contract. “The addition of the qualifying words 'about,''more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight." See also Cabot v. Winsor, 1. Allen, 546, 550; Salmon v. Boykin, 66 Maryland, 541; Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462; Cross v. Eglin, 2 Barn. & Adol. 106; Morris v. Levison, 1 C. P. D. 155, 158; Bourne v. Seymour, 16 C. B. 337, 353; Simpson v. N. Y., N. H. & H. R. R. Co., 38 N. Y. Supp. 341, 342.

The record does not inform us why the United States refused the tender, and we must assume that it had no other justification than its supposed right under the contract. Judgment reversed and cause remanded with directions to enter

judgment for appellant (claimant) in the sum of $1,120.87.

MR. JUSTICE HOLMES concurs in the result.

196 U.S.

Statement of the Case.

HARTIGAN v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 72. Submitted December 6, 1904.-Docided January 3, 1906.

A cadet at the West Point Military Academy is not an officer of the United

States Army within the meaning of 88 1229, 1342, Rev. Stat., and, if delinquent, may be dismissed by the President without trial and conviction by court-martial.

APPELLANT filed a petition in the Court of Claims to have declared void his dismissal from the United States Military Academy at West Point, and for judgment for his pay as a cadet from July 27, 1883, to July 1, 1889, amounting to $3,417.

The appellant was duly appointed a cadet in the Military Academy on the first day of July, 1880, and served as such until the twenty-seventh of July, 1883, when he was summarily dismissed, by order of the President, upon charges of maltreating a new cadet upon guard, as well as other improper conduct. After the dismissal of appellant another cadet was appointed to succeed him, was duly graduated from the Academy, and appointed and commissioned a second lieutenant in the Army, and subsequently a captain of the Twenty-fifth Regiment of Infantry.

The appellant, subsequently to his dismissal, presented petitions respectively to the Adjutant General of the Army and to the Secretary of War, in which he asserted his innocence of the charges made against him, and prayed for reinstatement or trial by court-martial. He also presented a petition April 21, 1888, to the President, asking for a revocation of the prder of dismissal, a trial by court-martial, and for an order assigning and appointing him to the Army as of the date of the assignment of the last graduate of his class. The petitions were all denied.

The Court of Claims held that he was not entitled to recover, and dismissed his petition. 38 C. CI. 346.

Argument for the United States.

196 U.S.

Mr. L. T. Michener and Mr. W. W. Dudley for appellant:

Appellant was an officer in the sense of $ 2, Art. 2, of the Constitution. He was appointed pursuant to § 1315, Rev. Stat., and took the oath presented by $ 1320. Cadets are subject to perform duty, $ 1323, to courts-martial, $ 1326, and receive a salary, 1339. Their service is actual service in the Army. United States v. Morton, 112 U. S. 1; their status that of officers, United States v. Hartwell, 6 Wall. 385, 393. Similar rules apply to cadets at the Naval Academy, Rev. Stat. 88 1511, 1528; United States v. Baker, 125 U. S. 646; Fitzpatrick v. United States, 37 C. Cl. 332; Perkins v. United States, 20 C. CI. 438; S. C., 116 U. S. 483; Jasper's Case, 38 C. CI. 202; United States v. Hartwell, 95 U. S. 760; United States v. Cook, 128 U. S. 254.

The President has not the legal authority to dismiss a cadet in the Military Academy in time of peace except upon and in pursuance of the sentence of a court-martial. $ 1229 Rev. Stat.; $5, Act of July 13, 1866, 14 Stat. 92; Blake v. United States, 103 U. S. 227; Gratiot's Case, 1 C. CI. 258; 2 Story Const. $ 1537; McBlair's Case, 19 C. Cl. 528, 541; Sunderland Stat. Con. $ 203.

The law provided a military tribunal by which appellant could have been tried. Rev. Stat. 88 1229, 1326; Arts. of War, $8 71-114; 17 Stat. 604.

Cadets are not merely candidates. This action for pay will lie as brought. United States v. Perkins, 116 U. S. 483.

Mr. Assistant Attorney General Pradt and Mr. Assistant Attorney George M. Anderson for the United States:

Claimant was not an officer within •the intent of § 1229 Rev. Stat. For the various acts establishing the position of cadet, see 1 Stat. 366; Act of July 16, 1798; Act of March 16, 1802, 2 Stat. 132, 137; Act of April 29, 1812, 2 Stat. 720; $ 3, Act of June 18, 1878. A West Point cadet is an enlisted man. As to what is enlistment, see Erichson v. Beach, 40 Connecticut, 283; In re Grimley, 137 U. S. 147; $8 1315-1323

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Rev. Stat.; Babbitt v. United States, 16 C. Cl. 204; S.C., affirmed 104 U. S. 767; 1 Op. Atty. Genl's, 276, 290; compare provisions in Rev. Stat. 88 1116–1119 for enlistment of private soldiers; Uniteå States v. Watson, 130 U. S. 82. The claimant by his contract with the Government bound himself to obey the Articles of War, which were enacted under $ 1342 Rev. Stat. Under Arts. of War, 4 and 99, officer means commissioned officer.

The status of naval cadets differs from that of military cadets.

Whatever claimant's status, he is not protected under $ 1229 Rev. Stat. Blake v. United States, 103 U. S. 227, 236; Mullan v. United States, 140 U. S. 240; Parsons v. United States, 167 U. S. 334; Shurtleff v. United States, 189 U. S. 314.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

The contention of appellant is that, as a cadet, he was an officer in the Army, within the meaning of section 1229 of the Revised Statutes of the United States, and could only have been dismissed from the Academy upon trial and conviction by court-martial, as provided in that section.

That section provides as follows: "The President is authorized to drop from the rolls of the Army for desertion any officer who is absent from duty three months without leave; and no officer so dropped shall be eligible for reappointment. And no officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof."

In the Articles of War, enacted by section 1342 of the Revised Statutes, the word “commutation” is changed to "mitigation.” Art. 99.

The first impression of claimant's contention is that it ignores obvious distinctions, and makes a state of preparation for a position the same as the position itself, and claims its

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sanction for one who is not bearing its responsibilities or capable of discharging its duties. And an examination of the Revised Statutes relating to the organization of the Army confirms the impression.

Manifestly, it is impossible to reproduce all the sections of the Revised Statutes applicable to the military establishment, and we will only observe that they distinguish between the Army proper and the Military Academy, and make a distinction between an officer and a cadet. A few citations only are necessary

Title XIV of the Revised Statutes of the United States provides for the organization of the Army of the United States. The name, rank and function of each officer is provided for, and section 1213 explicitly states when a cadet shall become an officer. That section enacts that when a cadet shall have regularly graduated from the Academy he'shall be considered a candidate for a commission in any corps for whose duties he may be deemed competent." He then becomes a commissioned officer. Prior to that time he is denominated a cadet, appointed as a cadet, and provision made for him under that name and state. He becomes an officer when he ceases to be a cadet; that is, when he has finished his pupilage; or, as section 1213 expresses it, when “he has gone through all his classes and received a regular degree from the academic staff” and commissioned. And his government while a cadet is provided for in chapter 5 of title XIV.

A cadet may be in the Army (section 1094), may be an officer in a certain sense as distinguished from an enlisted man, as it is contended by counsel for the Government he is, but nevertheless section 1229 does not apply to him. That section is one of a number of provisions for the organization and government of the Army, distinct from and having no relation whatever to the provisions for the government of the Military Academy and the cadets. Section 1229 is made part of, and the word “officer” given exact definition by section 1342, which provides as follows:

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