
    LENDER’S CASE. William H. Lender v. The United States.
    
      On the Proofs.
    
    
      The defendants rest their defence entirely on a return from the War Department, which consists of letters from the agents of an assistant quartermaster, and from an ex-assistant quartermaster having no official connection with the business. The letters are also subsequent to the transactions to which they relate, are written since the controversy began, and are controversial in substance and tone. But they are admitted without objection being made by the-claimant. The case is not argued at bar, but submitted on the briefs of counsel.
    
    I. Letters written to an assistant quartermaster by his employés, and letters written by a quartermaster after he has loft the service, have not the characteristics of official reports and are not competent evidence.
    II. Where a case is submitted on printed arguments, and the evidence for the defendants, though wholly incompetent, is not objected to by the claimant, the case will be remanded to the docket, with leave to the defendants to take further testimony.
    
      Mr. Enoch Totten for the claimant:
    This cause arises on contract. The plaintiff hired his vessel to the defendants, at the rate of two hundred and twenty-five dollars per m inth. The defendants agreed to keep her in repair .and return ber in as good condition as sbe was in when so employed. Tbe vessel was injured while in tbe service of tbe defendants. Tbe defendants pretended to repair ber, but did it only in part, and tbe materials used were bad, and tbe character of tbe workmanship was indifferent. They then returned ber to tbe plaintiff, but when so returned sbe was unseawortby.
    Defendants paid only a small part of tbe sum due on tbe ■contract of hire, and refused to pay anything, on account of their failure to repair and put tbe vessel in good condition.
    This action is brought to recover tbe contract price of hire, and for tbe necessary repairs to put tbe vessel in proper condition. , .
    This was a charter-party, by which defendants employed tbe plaintiff’s vessel, at a stipulated sum per month. A charter-party need not necessarily be in writing. 1 Parsons on Maritime Law, 229 ; {Taggará v. Loving, 16 Mass., 335.) And the employment need not be for a specified time; it maybe .like a tenancy at will. Cutler v. Windsor, (6 Pick, 335.)
    Tbe vessel was to be run at tbe risk and expense of tbe defendants, and sbe was to be kept in repair, and returned in as good condition as when received. A tenant who covenants to keep up tbe repairs and surrender tbe premises in as good condition as when be received them, is bound even to rebuild if tbe buildings are destroyed by fire. Pym v. Blaclcburn, (3 Yesey, 3S;) Beach v. Crain, (2 Com., 855) Luosmore v. Robson, (1B. &. A., 585;) fiheiffelin v. Carpenter, (15 Wend., 409.)
    If be neglect or refuse to repair or rebuild be is liable, and tbe measure of damages is tbe sum required to put tbe. premises in tbe condition in which they should have been returned. Purly v. Watts, (7 M. & W. 601.)
    Tbe defendants lost or removed tbe furniture, apparel, instruments of navigation, &c., and did not replace them; and returned tbe vessel in bad condition otherwise, and totally unseawortby, and have refused to pay either for repairs or tbe contract price for ber use. The defendants are bound by tbe terms of tbe contract. A charter-party is construed according to tbe rules which govern other contracts, (1 Parsons on Maritime Law, 267; Airey v. Merrill, 2 Curtis 8,) as are all special contracts for the hiring of things. Story on Bail, § 426 a, and § 418 a.
    
    
      
      Mr. A. Johnston (with whom was the Assistant Attorney General) for the defendants:
    It is claimed that Captain J. E. Scott, A. Q. M., made a verbal contract for the hire of the “ Amelia,” a little sloop or yacht of about five or six tons burden, at $225 per month. The contract is said to have been made on the 24th of June, 1865, by order of General Steele, commanding United States forces on the Bio Grande. The object for which she was to be used was to run from Brazos de Santiago to Point Isabel, a distance of about four miles, and across water as smooth as the Potomac at Washington. It is said the vessel remained in the service from June 24, 1865, to May 31, 1867; that the Government was to' keep the vessel in repair, and deliver her to claimant in as good condition as when she was received; that the Government failed to pay for the service of the vessel, and delivered her to claimant in such bad condition that it was necessary to expend $2,000 for repairs.
    The case is very cloudy; but it would seem that in September,, about the 12th, the vessel was damaged while crossing the bar at Brazos. It does not appear why she was crossing the bar. On the duty for which she was employed she had no business, nearer than Brazos, which is about a mile distant.
    Except from the testimony of the claimant’s brother, there is-no intimation that-the “Amelia” was in the service a day after the accident on the bar.
    The testimony of this witness is not very clear, but it was evidently intended to benefit the claimant. He swears to the terms and details of the contract much more minutely than, does Captain Scott; also to the details of the accident and the subsequent damage to the vessel; and yet all these things occurred in June and September, 1865, and this witness was not at the Brazos till October of that year. The court cannot regard his testimony as to what occurred at Brazos when he was in New York, except as a circumstance going to show that he is not a reliable witness in this case.
    As to the term of service of the Amelia, (beyond September, I860,) the testimony of this witness is all that is offered. He says “the United States took possession of the vessel under the agreement, on the 21th of June, 1865, and returned her on the 31st of May, 1867.”
    
      This, too, is the only witness to prove tlie item of $2,000 for' repairs. He says it cost “ about $1,500 to do this,” and that-' the vessel was then worth $500 less than when employed by the United States. Testimony on this subject is unworthy of comment.
    Under the act of July 4, 1864, (13 Stat. L., p. 394,) the contract was illegal; there was no emergency, such as is contemplated by the fourth section of that act; and had there been, there is no order from General Steele proven.
    II. The claimant does not show how long his vessel was in the service, nor the amount expended for repairs.
    III. The loyalty of the claimant is not proven.
    The court will observe that the claim presented here differs very much from that presented to the War Department; there the claim was for services from December 31, 1865, while here it is from June 24,1865; there the claim was lor furnishing the vessel, while here it is for repairs.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $5,825 for the use of the sloop Amelia, at Brazos, in the State of Texas, during the year 1866, and until the 31st of May, 1867, for injuries done to the sloop, and for the loss of a portion of her tackle and furniture.

The case has received more .consideration and attention than its importance might seem to demand, by reason of the peculiar character of the evidence on which it was submitted, without argument other than the briefs of the counsel.

The claimant proves, to a certain extent, his case. The defendants rest their defence entirely on a return from the War Department, which consists, 1st, of a letter from Acting Quartermaster General Bucker, at Washington, dated April 10,1867, to Assistant Quartermaster Howell, at Brownsville, inclosing the claim up to December 31,1866, and requesting an explanation ; 2d, of the reply of Assistant Quartermaster Howell, inclosing a communication from his “agent” at Brazos, appended to which is a certificate of its truthfulness by the “ harbormaster” at Brazos, and upon it an indorsement by one William Kelly, “late lieutenant and acting assistant quartermaster.” Neither the Acting Quartermaster General nor Assistant Quartermaster Howell know or x>rofess to know any fact in the case; and tbe facts of the defence rest wholly upon the communications of the agent, the harbor-master, and the former assistant quartermaster. These communications, moreover, are written after the controversy has begun, and relate chiefly to the official acts of another quartermaster, Captain Amee. They assert that “ Captain Amee discharged the vessel and gave a voucher of indebtedness” to the claimant; and they also remind Assistant Quartermaster Howell of an agreement he made with the claimant to put the vessel in repair, and to pay the voucher of Captain Amee, and that he had done so. They also allege that “ the vessel was put in better order than she ever was in before.” The voucher said to have been paid is not produced, nor is any asserted fact proved in any other way.

It is impossible for us to conceive of any legal rulé or principle by which the controversial letter of an employó of an assistant quartermaster, having no official connection with the business, can be considered competent evidence. And as to the certificate or letter of the ex-quartermaster, we held, in Branddeis Crawford’s Case, (3 C. Cls. R., p. 99,) that even when the communication of an assistant quartermaster purported to be an official report, and related to matters which had been within the personal and official knowledge of the officer, it was not competent evidence if “dated after the writer had left the military service.”

If this evidence of the defendants, bearing none of the characteristics of official reports, had been objected to, the court would have stricken it out and rendered judgment for the claimant. Bat the claimant’s counsel has interposed no objection whatever, and this failure-to object has raised a doubt whether it may not have been intended that the letters and certificates should be considered as testimony taken by commission. We therefore return the case to the docket in order that the parties may reduce aiiy such agreement to the form of a stipulation. If none such exists, the failure of the claimant to object at the proper time will entitle the defendants to take testimony.  