
    William S. Shrewsbury v. The United States.
    
      On the Proofs.
    
    
      The Quartermaster Department contracts with the claimant for the transportation of all military stores for which the Quartermaster Department may require transpiortation on the route between Fort Leavenworth and Fort Union. The commissary at Fort Leavemoorth having tojend 18,000 bushels of corn to Fort Union, instead of buying it at Fort Leavenworth and turning it over to the Quartermaster Department for transportation in the usual way, buys it deliverable by the vendor at Fort Union. The vendor not having the corn then at Fort Leavemoorth, borrows it of the quartermaster there, and transports it to Fort Union. The claimant insists that the transaction zvas a cover to defraud him of the transportation, and that he is entitled to recover his profits.
    
    The Commissary Department is, hy law, separate and distinct from the Quartermaster Department, charged with distinct duties and responsibilities, and nowise under its control. Therefore, a commissary at one post may contract for corn deliverable at another, notwithstanding that the Quartermaster Department is charged with the duty of army transportation, and has contracted for all that it may require. And the Gov-eminent is not liable for breach. of its transportation contract, notwithstanding that the corn actually transported was borrowed of the Quartermaster Department by the party who sold it to the commissary.
    
      Mr. G. IP. Peclc for the claimant:
    This is a claim for unliquidated damages arising out of the violation of a contract by defendants, and it has not been presented for settlement in any Department.
    The contract was entered into between claimant and defendants on March 27, 1865, and will be found in the record of tbe case.
    Article eleven, a particular provision of the contract, violated by the defendants, reads as follows :
    “'That the said William S. Shrewsbury shall transport all the military stores and supplies for which the Quartermaster’s Department may require transportation by contract, by the route specified by this agreement, during the year 1865; provided the weight of such military stores and supplies shall not exceed in the aggregate 15,000,000 pounds; yet nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service whenever it may be deemed advisable to do so.”
    It belongs to the Quartermaster’s Department to provide all transportation for military supplies.
    The words “ for which the Quartermaster’s Department may require transportation by contract,” in the foregoing article of the contract, mean all transportation by contract of military stores or supplies, with the proviso named.
    Under his contract the claimant transported all the supplies offered and turned over to him for transportation, and the same in the aggregate amounted to 14,202,811 pounds.
    Transportation of a million pounds of other military supplies was required by defendants, and was sought by claimant, and refused by defendants, and secured in’the following manner: General Carleton, commanding in New Mexico, made requisition on the officer of the Subsistence Department at Saint Louis, for 2,000,000 pounds of subsistence supplies, he being unable to obtain the same in New Mexico. Thereupon the officer of the Subsistence Department at Saint Louis, under authority of the Secretary of War, ordered Colonel M. É. Morgan, Commissary of Subsistence, in September, 1865, to send the same from Fort Leavenworth to Fort Union.
    One million pounds of these supplies were turned over to and transported by the claimant from Fort Leavenworth to Fort Union.
    Transportation of the other million pounds of these supplies from Fort Leavenworth to Fort Union was effected by the military authorities at Fort Leavenworth in the following manner: A contract was privately made by Colonel M. R.. Morgan with Fuller & Tiernan at Fort Leavenworth, whereby it was agreed to pay Fuller & Tiernan $8.54 per bushel (at Fort Leavenworth) for 18,000 bushels of corn deliverable at Fort Union.
    (This corn was the subsistence supplies referred to and required in New Mexico by General Carleton to feed Indian prisoners of war.)
    Of the $8.54 agreed to be paid for the corn, $1.25 per bushel was intended to cover its value at Fort Leavenworth and $7.29' per bushel was intended to cover the cost of its transportation from Fort Leavenworth to Fort Union.
    Thereupon Captain Flanagan, assistant quartermaster at Fort Leavenworth, acting in conjunction with Colonel M. R. 'Morgan, turned over to Fuller & Tiernan, for transportation thence to Fort Union under their contract, 10,000 bushels of defendants’ corn; the remainder was purchased at Fort Leavenworth and vicinity for military use and account, and the whole transported for military use and account, under their contract, and delivered at Fort Union, excepting a small portion taken by the Goverment while en route.
    
    Of the 560,000 pounds of defendants’ corn which was transported under this contract, 240,000 pounds were turned over for transportation at defendants’ warehouse, after it had been hauled by defendants’ teams from the river landing: the remainder was turned over for transportation at the river landing within the Government reservation before it had been placed in any warehouse.
    Defendants’ agents undertook to defeat the claimant’s rights by securing the transportation of these supplies on military account and for military use as private ¡property.
    
    As to that portion of these supplies included within the 800,000 pounds, to the transportation of which claimant was entitled, which was the property of defendants when it was turned over for transportation, there can be no question. It was a palpable violation of article 11 of claimant’s contract with defendants.
    And we maintain that that portion wbicb was actually purchased by Fuller & Tiernan, and within the 800,000 pounds referred to, having been purchased for military use, and transported from Fort Leavenworth to Fort Union in fulfillment of a requisition made on the proper officer at Fort Leavenworth to send the same out to Fort Union, was equally in violation of article 11.
    The object of the foregoing transaction was to secure the transportation at a less price than the claimant was entitled to, and to help Fuller.
    Of the profits to which claimant was entitled in the transportation of 800,000 pounds of this corn, there went into the hands of defendants through this transaction $22,283.60, the transportation having been secured at so much less cost than claimant was entitled to receive; and $24,000 dollars of said profits went into the hands of Fuller & Tiernan and their associates, they having received 13 cents per jtound for transporting it, while they hired the service performed at 10 cents per pound.
    To hold that the defendants had a right to procure transportation of supplies under the contract of Colonel Morgan with Fuller & Tiernan, is to render article 11 wholly nugatory, for in that ease it was competent for defendant, whenever transportation could be secured at a less price than was agreed to be paid claimant, to enter into like contracts at Fort Leavenworth for all the supplies needed at all the posts and places on the claimant’s route, and thus deprive claimant of transportation of all the supplies required.
    We therefore insist that the claimant had aright to the transportation of 800,000 pounds of the supplies which were transported under the Fuller & Tiernan contract.
    
      Mr. Assistant Attorney-General McMichael for the defendants:
    The contract named was one made at Fort Leavenworth, Kansas, with Colonel J. A. Potter, quartermaster United States Army, relating to the transportation of all such military stores and supplies as might be turned over to him (Shrewsbury) by the officer or agent of the Quartermaster’s Department, at any or all of certain points before named, (of which Fort Leavenworth, was one,) to Fort Union, in the Territory of New Mexico, and to certain other points not now material.
    The breach alleged is most fully set forth in the brief of the counsel for the claimants, where it appears to have been a contract made by Colonel M. E. Morgan, of the Subsistence Department, at Saint Louis, with Fuller & Tiernan, for the purchase of 18,000 bushels of corn, to be delivered at Fort Union, and there to be paid for at the rate of $8.54 per bushel.
    .It is seen at once that this piece of transportation is not within the scope of the eleventh article of the contract. It was not transportation required by the Quartermaster’s Department. In this instance, the Subsistence Department attempted to supply corn to Fort Union, without’ calling upon the Quartermaster’s Department.for transportation.
    The latter Department did not agree that the Subsistence Department should not furnish subsistence to Fort Union, except through the transportation by the Quartermaster’s Department. It could not be good ground of recovery to these claimants, that the latter Department ought to have required'certain transportation which it did not require, for no agreement whatever was made that the Quartermaster’s Department should require any amount of transportation whatever.
    Nor would such a contract have been binding upon the defendants if made by that Bureau$ for no authority of law is conferred thereon to make a contract to that effect. The Subsistence Department is not subordinate to the Quartermaster’s Department, but is independent thereof. (Act of April 14, 1818, §§ 6, 7, 3 Stat. L., 426, B, 67.)
    That any portion of the corn which was by Fuller & Tier-nan sold to the Subsistence Department, at Fort Union, actually came from the quartermaster at Fort Leavenworth, is not material in this case, in any view. Certainly not, when it is shown to have been merely loaned for a brief time, and afterward returned, as appears in the evidence introduced by the claimant.
   Drake, Ch. J.,

delivered the opinion of the court:

On the 27th of March, 1865, a contract in writing was entered into between the claimant and Colonel J. A. Potter, quartermaster United States Army, on the authority and by direction of the Secretary of War, whereby the claimant agreed to transport all tbe military stores and supplies for which, the Quartermaster’s Department might require-transportation, by contract, on the route designated in said contract, during the year 1865, at specified rates, provided the weight of such military stores and supplies should not exceed in the aggregate 15,000,000 pounds.

The points at which, by said contract, the claimant was bound to receive such stores and supplies for transportation, were Forts Leavenworth and Riley, in the State of Kansas, and the town of Kansas, in the State of Missouri; and among the points of delivery named in the contract was Fort Union, in the Territory of New Mexico.

Under the said contract the total amount of stores and supplies furnished to the claimant by the Quartermaster’s Department for transportation within the year 1865 was 14,202,811 pounds, leaving 797,189 pounds of the 15,000,000 not furnished by that Department to the claimant for transportation.

The claimant sues for damages sustained by him by reason of the failure of the Quartermaster’s Department to furnish Mm the 797,189 pounds for transportation, and he bases Ms right of action on the following facts:

The commissary department at Fort Leavenworth, being ordered, in September, 1865, to supply 18,000 bushels of corn at Fort Union, New Mexico, contracted with A. N. Fuller and John Tiernan for the delivery of the corn there, and the obligations of those parties in the premises were expressed in the contract in the following terms :

“The parties of the second part agree to deliver, at Fort Union, in the Territory of New Mexico, 18,000 bushels of shelled corn of the best quality, well sacked in new gunny-sacks, securely sewed with linen twine. Said corn must be free from dirt, cobs, or other foreign matter, and must be either yellow or white, but not mixed in the sacks, to be delivered to the officer of the Subsistence Department at Fort Union, New Mexico, on or before the 20th day of December, 1865. The said parties of the second part agree that the said corn shall be subject to the inspection, acceptance, or rejection of the officer receiving same, and that, if default shall be made by the said parties of the second part, or either of them, in the time of delivery, or any of the terms of this contract, the party of the first part, or any person acting for him on behalf of the United States, shall have power to purchase the com in open market; and the said parties of the second part and their sureties shall be charged with, the difference between the cost thereof and the price hereinafter stipulated to be paid to the said parties of the second part. The parties of the second part further agree that, if default shall be made by them in any of the terms of this contract, that any sum or sums of money due or to become due them by the United States of America shall be held and applied to satisfy any damage that may accrue to the United States by reason of such default.”

On the part of the United States, it was agreed to pay Fuller & Tiermau u $8.54 for each and every bushel of corn delivered and accepted in accordance with the terms of said contract, payment to be made on vouchers issued and certified by the officer receiving said corn.”

At the time this contract was entered into between the Commissary Department and Fuller & Tiernan, the latter were engaged in supplying corn to the Quartermaster’s Department, at Fort Leavenworth, and as, owing to the lateness of the season, it was important to Fuller & Tiernan to be able to proceed immediately with the execution of their contract, they borrowed from the Quartermaster’s Department a quantity of corn, about one-half of the whole quantity they were to deliver at Fort Union, which they afterward returned in kind to that Department; the other half they made up otherwise. They fulfilled their contract and received their pay thereunder.

It is cqntended by the claimant that he was entitled to the transportation of this corn to the extent of 797,189 pounds, and that the contract with Fuller & Tiernan was only an invasion of his contract,’ which deprived him of the profits of the transportation of that quantity of stores and supplies.

We do not concede the correctness of this view of the case, for the following reasons:

1. The Commissary Department of the Army is, by law, separate and distinct from the Quartermaster’s Department, charged with separate and distinct duties and responsibilities, and nowise under the control or authority of the latter. (3 Stat. L., 426, §§ 6, 7.) It may be, in some circumstances, dependent on the Quartermaster’s Department for transportation of commissary stores, but this does not require it to abstain from making contracts for the furnishing of such stores at a given point, because to furnish them, there might require the contractor to transport them, over a route upon which the Quartermaster's Department had an existing contract for transportation, under which such stores might be transported. To charge a principal, having two different agents in two different departments of the principal’s business, with damages for a violation by one agent of a contract made by the other, it must be shown that the contract alleged to have been violated was in such sense binding on the agent charged with its violation as that he was bound to abstain from the act upon which the violation rests. In this case no such obligation upon the Commissary Department was created by the claimant’s contract with the Quartermaster’s Department.

2. The claimant contracted for nothing more than the transportation of “ military stores and supplies for which the Quartermaster’s Department might require transportation by contract.” That Department might or might not be called upon by the Commissary Department to transport commissary stores. If the latter had had the 18,000 bushels of corn at Fort Leavenworth, it would doubtless have made requisition upon the Quartermaster’s Department for its transportation to Fort Union, and then the claimant’s right to carry it under his contract, to the extent of 797,189 pounds, would have accrued; but it did not, in fact, have it, and it did not make such requisition; and, therefore, the transportation of it was not a matter which the Quartermaster’s Department required; and, not being so, it was not covered by the claimant’s contract.

3. The contract with Fuller & Tiernan was not for transportation as such; it provided no pay for transportation; it called for the delivery of corn at Fort Union, which doubtless involved its transportation thither from some point or points, and the cost of its transportation was doubtless an element in the price agreed to be paid for it when delivered there; but there was no contract for its transportation; and the fact that its transportation actually wns over the route covered by the claimant’s contract was not a violation of that contract.

■1. The claimant’s contract was for the transportation of military stores and supplies — a mere bailment; while that with Fuller & Tiernan was a contract of purchase, which did not require them to transport the corn over the claimant’s route, but merely to furnish the article at a designated point, for a designated price, leaving them to get it there by any route they might see fit to take. If, as we have seen it was, this was such a contract as the Commissary Department had authority to make, the fact that its execution caused the transportation of the corn over the claimant’s route is no breach of his contract with the Quartermaster’s Department.

5. The legal authority of the Quartermaster’s Department to contract for transportation extended only to military stores and supplies which were the property of the United States ; but the corn which Fuller & Tiernan agreed to deliver, at Fort Union was not the property of the United States while in transitu, and was nob to become so until delivered to, andinspected and accepted by, the proper officer there. Up to that time it was their own private property, and wholly at their own risk, for the transportation of which the Quartermaster’s Department had no legal authority to contract. No breach of the claimant’s contract could, therefore, spring from the contract with Fuller & Tiernan.

6. The fact that Fuller & Tiernan borrowed part of the 18,000 bushels of corn from the Quartermaster’s Department at Fort Leavenworth does not, in our opinion, establish the evasive and tricky character of the contract with them which has been attributed to it. The corn was lent, as appears by the evidence, merely to accommodate the Commissary Department, by helping it to execute a sudden and unexpected order for supplying corn at Fort Union, which there was very short time to execute before winter would set in. The act of one officer, in thus seeking to aid another in an exigency, is not to be construed, except upon clear proof, into a tricky and fraudulent attempt to injure a third party, whom the officer doing the act could hare no assignable motive for injuring. Such an inference cannot be drawn from the mere act, much less can it be when, bn the one hand, there is an entire absence of proof of fraudulent or improper motive, and, on the other, there is evidence of a fit and proper motive to subserve the interests of their common principal.

Upon these grounds we hold that the claimant’s contract was not violated by the action of the Commissary Department, or by the fact that Fuller & Tiernan transported their coni over the route covered by that contract; and the petition is therefore dismissed.

Milligan, J., dissented.  