NATIONAL FOREST MANUAL LAWS. 61 



Tariff act of June 29, 1909, free list, paragraph 652 (36 Stat., 11, on p. 78). 



652. Plants, trees, shrubs, roots, seed cane, and seeds imported by Plants, trees, 

 the Department of Agriculture or the United States Botanic Garden. f,JJ; ' 1 



Agricultural appropriation act of August 10, 1912. 37 Stat., 269 (Nebraska National 



Forest.) 



Provided, That from the nurseries on said forest the Secretary of .Nebraska Na- 

 Agriculture, under such rules and regulations as he may prescribe, may 

 furnish young trees free, so far as they may be spared, to residents of 

 the territory covered by "An Act increasing the area of homesteads in 

 a portion of Nebraska," approved April twenty-eighth, nineteen hun- 

 dred and four. 



DECISIONS APPLICABLE TO TIMBER SALE CONTRACTS. 



The general rule is that when one enters into a contract with the 

 Government, his obligation thereunder becomes fixed beyond the 

 power of any Government official to modify its terms so as to relieve 

 him of any of the burdens imposed upon him. (2 Sol. Op., 744, and 

 cases there cited.) 



It seems, however, that the proper Government officials may, by 

 acquiescence, waive the time limit in a contract by allowing the con- 

 tractor to continue the work. In such cases all the other requirements 

 of the contract govern the relations of the parties. (Same.) 



It seems also that the head of a department can waive penalties or 

 forfeitures provided for in a contract in case of nonperformance within 

 the time limit, when the Government suffers no damage by the delay; 

 or if it suffers some damage less than the amount of the penalty or 

 forfeiture, he may remit all above the actual damage which the Gov- 

 ernment has suffered. (Same.) 



It seems further that in cases where the interests of the Government 

 clearly so require, the head of a department may modify or abrogate a 

 contract, with or without the consent of the contractor. " If done with- 

 out the consent of the contractor and he suffers damage or loss thereby, 

 he probably has a claim against the United States for the amount 

 thereof. The officer modifying or abrogating a contract may or may 

 not have power to settle the claim, depending upon the circumstances 

 and the terms of the statute under which he is acting. (Same.) 



The Comptroller of the Treasury applies the foregoing general rules 

 to timber sale contracts in the same manner and to the same extent as 

 to other contracts with the Government. (See Comptroller's decision 

 of Dec. 27, 1911, unpublished.) 



Where a railroad right of way stipulation provides for payment for 

 "merchantable" timber cut from the right of way, and expressly 

 declares that "All timber down to the diameter of 4 inches shall be 

 considered merchantable," the Secretary of Agriculture has no 

 authority to modify the contract so as to require payment only for 

 timber down to 6 inches in diameter. (2 Sol. Op., 744.) 



Where, before expiration of a timber sale contract, the purchasers 

 notify the forestry officials that they have sold their saw mill and 

 equipment, because the contract is unprofitable, and it appears that 

 they have done no work under it for several months, the Government 

 may treat the contract as abandoned, and sell the remaining timber 

 to other parties; but there is no authority to cancel the old contract so 

 as to relieve the purchasers thereunder from liability for damages 

 thereunder in case any shall have been found to have been sustained 

 by the United States. If, in such case, the Government sells the re- 

 maining timber to others and receives from them the full price fixed in 

 the original contract, then it could not collect such price from the orig- 

 inal contractors. (2 Sol. Op., 758.) 



Upon certificate of the proper forest officer that no damage has been 

 sustained by the Government through the abandonment of a timber 

 sale contract, a refund may be made to the purchaser of any amounts 

 paid by him and remaining in the hands of the Government, over and 

 above what is due for timber actually taken and for such expenses as 

 the Government may have incurred (Solicitor to his Assistant at 

 Albuquerque, Oct. 3/1912.) 



