
    John A. McLean v. The United States.
    
      On the Proofs.
    
    
      The claimant agrees to furnish “ transportation, for .military supplies accompanying the Yellowstone Expedition, en route from Port Lincoln, for fifty days or more.” So terminus of the route or limit’in time was given. The claimant owns one team in the expedition and hires the others. At the head of navigation on the Yelloiostone, where a military post exists, the drivers of the hired teams insist that the expedition is ended and the post is the terminus. They refuse to work longer for the claimant. The quartermaster then hires them at an advanced rate. Se likewise hires the claimant’s own team, and the claimant accepts payment for that team at the advanced rate.
    
    I. Where a contractor undertakes “to furnish teams, drivers, and wagons, complete and in every respect fit for the service,” lie is as muck "bound to furnish drivers who will drive as to furnish teams that can he driven.
    II. Where a contractor’s subcontractors refuse to irroceed, and the defendants subsequently contract with them for the same service which the contractor is leaving unperformed, the breach is by him and not by the defendants.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. That on or about the 6th day of May, A. D. 1876, the claimant was notified by telegram from Maj. B. O. Card, assistant quartermaster, United States Army, and chief quartermaster Department of Dakota, to “see Lieutenant Nowland about teams.” “He is authorized to hire”; and thereupon on the’7th day of May, 1876, the claimant made the following proposition to said Nowland, who was then lieutenant and acting assistant quartermaster, United States Army, and post quartermaster at Fort Abraham Lincoln, viz:
    “I hereby agree to furnish the United States, for the transportation of military supplies accompanying- the Yellowstone expedition en route from Fort Abraham Lincoln, D. T., for fifty (50) days or more, twenty-six (26) two-horse or mule teams, drivers, and wagons, complete and in every respect fit for service required of them in hauling supplies to the said expedition; the teams to be subject to inspection of the proper United States officers before being received; and this for a compensation of ($4.95) four dollars and ninety-five cents per diem for eacli two horse or mule team so received, the government furnishing such forage for the animals and subsistence for the men as-the exigencies of the service will admit while so employed.
    “I further agree to assume all risk of damage of loss of said teams, except the damage or loss that may occur from hostile Indians.
    “John A. McLean.”
    This proposition was accepted, and the twenty-six teams were soon after furnished; four of them belonged to claimant, the other twenty-two to the drivers, and were hired by the claimant at $4 per day. Before the train started it was agreed by Lieutenant Nowland and the claimant that the contract should include the time necessarily spent'in making the return trip.
    II. The train left Fort Lincoln about the middle of May, 1876. Three of claimant’s teams gave out on the way and were sent back. Ilis other team and the twenty-two teams hired by him continued with the expedition until it arrived at the mouth of Glendive Creek, on the Yellowstone Biver, about September 1, 1876. This creek was at that time the head of steamboat navigation and a military camp was there established. Lieut. Col. E. S. Otis was in command, with Lieut. W. J. Campbell as quartermaster. September 5,1876, Lieutenant Nowland who had accompanied the expedition in charge of the trains and public property, turned them over to Lieutenant Campbell. 'Whereupon the owners of the twenty-two teams, taking the position that their contract with the claimant had expired, refused to serve under it any longer. They offered, however, each one for himself, to haul- supplies to Tongue Biver at $5 per day. Steamboats were unloading supplies at the time, and it was important that they should be sent forward to the cantonment at Tongue Biver. If claimant’s contract had expired he would still be entitled to the profit on the return trip, which would take about ten days. Instead of returning, the teamsters, it was suggested, might employ their time as they saw fit. Under these circumstances Lieutenant-Colonel Otis urged them to make one trip to Tongue Biver at the old rate; thus giving the claimant his profit on the number of days that would be consumed in returning to Fort Lincoln. He promised to secure, if possible, during their absence, the acceptanee of tbeir offer. Thereupon they loaded up and started for Tongue River.
    III. During the absence of the teamsters the following order was issued:
    “Headquaetees Battalion 22d Ineantey, “Camp neae moittji oe Glendive Ceeek, M. T.,
    “ September 10i7t, 1876.
    *******
    7. The citizen owners of teams now here in government employ, having refused to serve longer, because of expiration of contract, 1st Lieut. W. J. Campbell, A. A. Q. M. at this station, will employ thirty (two-mule) teams, fully fitted out for the transportation of freight, for the purpose of transporting the necessary government- supplies from this point to the Tongue River post, at a rate of compensation not to exceed five dollars ($5.00) per day for each team so employed, with rations for inen and forage for stock .included, length of service to continue forty days, and an additional twenty days, if, in the opinion of the officers of the government, the same becomes necessary, and loss through raids of hostile Indians to be made good by the government.
    “8. 1st Lieutenant W. J. Campbell, 22nd Infantry, A. A. Q. M., will employ such number of citizen teamsters for the government trains now engaged between this point and Tongue River, M. T., in the transportation of government freight, as are actually necessary for the movement of the train, a,t a rate of compensation to each teamster so employed not to exceed thirty-five dollars per month, and one ration daily; services of men to continue' sixty days, unless they can be dispensed with sooner by use of enlisted men.
    *******
    “By order of Lieut. Col. E. S. Otis.
    “O. M. Smith,
    “1 st Lieut. ‘¿2nd Infantry, Battalion Adjutant.
    
    “Official.
    “O. M. Smith,
    “ 1st Lieut. 22nd Infantry, Battalion Adjutant.
    
    “Headq’es Dep’t oe Dakota,
    
      "St. Paul, Minn., Nov. 20th, 1876.
    “ Approved.
    “ By command of Brig. Geni. Terry.
    “Ed. W. Smith,
    “ Captain 18th Inf’y, A. A. A. G.”
    
    Pursuant to this order Lieutenant Campbell contracted with t the owners of the twenty-two teams and also with the driver of claimant’s team to haul supplies at $5 per day. They began work September 26, 1876, and were discharged November 13, 1876. Going from Glendive to Fort Buford they again entered the service under General Hazen'. In this service they continued until January 24, 1877, when, being finally discharged, they returned to Fort Lincoln.
    For all services rendered subsequent to September 25,1876, they were paid by the government at the rate of $5 per day.
    1Y. September 22, 1876, claimant arrived at Glen dive. Colonel Otis informed him that the owners of the twenty-two teams had refused to serve longer under his contract, and that in order to secure their services he would be obliged, upon their return, to make separate contracts with them. Claimant did not at that time suggest any way whereby the trouble might be avoided. He did not propose to try to arrange with these team owners nor promise to furnish other teams, nor did he claim that his contract was still in force, nor object to the proposed rehiring the teams. Some time after the new contracts were made he complained of the behavior of the men to Lieutenant Campbell, but saklhe could find no fault with him nor with Colonel Otis for their action in the matter, but thanked them for saving to him the pay for twenty additional days.
    Subsequently he accepted the following voucher and signed the receipt thereto attached:
    “ The UmieO, States to John J. McLean, Dr.
    
    
      
    
    
      “ Approved.
    “A. L. Hough,
    “ Major 22d InfH’y, Coin’d’g Post.
    
    “I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my report of persons, &c., for the months of Sept., Oct., & Nov’r, 1876.
    “Wm. Jno. Campbell,
    “ 1st Lieut. 22 d Inft’y, A. A. Q M.
    
    
      “ Deceived at Saint Paul, Minn., the 9tli day of Marcli, 1S77, of Major B. O. Card, quartermaster, United States Army, the sum of three thousand & ninety-one (3,091) dollars and twenty-five (25) cents, in full of the above account.
    ' “ John A. McLean.”
    
      Mr. George A. Kinq for the claimant:
    The defendants received and hired twenty-three teams from the claimautfor such time as they should be needed by the United States, in connection with the military service then going on along the Yellowstone Diver. As between the claimant and tlieUnited States, tlie-relationof bailor and bailee was created— loeatio rei. The United States became bound in law to pay the contract rate to claimant of the property bailed while they retained the same, and to surrender the property to the claimant at the expiration of the service for which this property ivas bailed. (Marvin v. Fllwood, 11 Paige, 365; 2 Parsons on Contracts, 128; Frmay v. Fanning, 9 Bars., 176; Boles v. Stanton, 1 Duer, 79.)
    As between the claimant and the owners of the teams when employed by him and placed in the service of defendants, the relation of bailee for hire (loeatio rei) and bailor existed, either •with the knowledge of the defendants or the belief of the defendants that claimant was the owner of the teams; for they were received from him, and borne on the rolls as his, and their services paid for as his, and non-delivery of the property or payment of the compensation to the wrong party leaves the bailee liable to the bailor. (2 Parsons on Contracts, 121; 2 Ban. & Aid., 702; Packard v. Oetman, 4 Wend., 617; Story on Bailments, 414; Frmay v. Fanning, 9 Barb., 176.)
    The claimant therefore had a special property in all these teams by the bailment, during their absence on this military expedition, which was known to defendants, and hence payment for the use of these teams for any portion of said time to. other parties is no defense to the claim for compensation by claimant according' to the contract. (Hielcolc v. Bucle, 22 Yt., 149; Hartford v. Jaelcson, 11N. H., 145; Hurd v. West, 7 Cowen, 752; 2 Parsons on Contracts, 126,128; Roberts v. Wyatt, 2 Taunt., 268.)
    The United States, bailee, not having changed their relation to the property bailed in any respect, could not be heard to.. ignore or question the title and ownership of the bailor, the claimant, and must pay to him the contract price of the property hired while they retained it in their service. (Little v. JPanet, 34 Me., 545 ; White v. Webb, 15 Conn., 305; Benjamin v. Stremple, 13 ¿1., 406; JHekoh> v. BueJe, 22 Vt., 149; Marvin v. BUwood, 11-Paige, 305.)
    The action of the United States in this case was as unnecessary as unlawful. The change of recognized owners occurred in a military camp where the military power was absolute, and where by the law all the men with these teams claiming to be owners were camp followers and subject to military law and discipline the same as soldiers. So that the action of the United States in refusing longer to recognize the title and rights of the claimants, upon whom they had called in an hour of need and who had so promptly responded, was without necessity as it was without law.
    
      Mr. B. A. Orbison (with whom was the Assistant Attorney-General) for the defendants:
    It is true, as alleged by claimant, that the relation of bailor and bailee existed between claimant and the United States, but this relation only continued during the existence of the contract.
    As the contract provided that the teams were furnished for the purpose of “accompanying the Yellowstone expedition for fifty days or njore,” .the termination of the expedition on September 5, 1870, at Glendive terminated the contract, and it could only have been continued by the mutual consent of both parties; it was continued until September 26, when the servants of claimant refused to serve longer.
    Claimant had notice prior to September 20 that the contract would be terminated upon the return of the teams from Tongue Eiver, and no objection was made by him ; this was virtually an agreement to terminate the contract.
    The contract of hire may be terminated, by the expiration of the time for which the thing was hired or by the act of either party within a reasonable time, if no time be fixed by the contract, or by the agreement of both parties at any time. (2 Parsons on Contracts, 129.)
    The owners and drivers of the teams were the servants of claimant. (Stone v. Western Transportation Co'., 38 N. Y., 240.)
    
      Tlieir action in refusing to continue in the service of the government under claimant’s contract must be held as his action, and if their refusal was his refusal, it follows that the contract was terminated by him, and no right of action would accrue to him for the services performed under the new contracts made with the owners of the teams.
    Claimant ratified the new contract made with the drivers of his teams by accepting the compensation proAdded in that contract.
   Scoeield, J.,

delivered the opinion of the court:

In the spring of 1876, while the government was organizing at Fort Lincoln, in Dakota Territory, a military expedition against hostile Indians, Lieutenant Nowland, acting quartermaster, was directed to hire forty teams to accompany the expedition. Claimant contracted to furnish and did furnish twenty-six, at $1.95 per day. It subsequently transpired that he was the owner of only four of these teams. For the other twenty-two he had subcontracted at $1 per day with other team-owners, who were also to be the drivers. As it was expected that the teams would be discharged some distance from home, it was further agreed that they should be allowed the daily pay for the return trip.

The train left Fort Lincoln about the middle-of May, 1876. Three of claimant’s teams, having given out on the way, were sent back. The other twenty-three continued with the troops until they arrived,'about the 1st of September, at the mouth of Glen-dive Creek, on the Yellowstone River. The mouth of this creek was at that time the head of steamboat navigation. A military post, with Lieutenant-Colonel Otis in command and Lieutenant Campbell as quartermaster, was there established. To the latter officer Lieutenant Nowland, the quartermaster who had accompanied the expedition, on September 5, 1876, turned over the teams and all the public stores. Thereupon the drivers and owners of the twenty -two teams, taking the position that their contract with claimant Avas ended, declined to perform any further service under it. Steamboats Avere at that time unloading supplies designed for a cantonment at Tongue River. The drivers, though urgently besought by both Otis and Campbell to load for that place, obstinately refused. They would no longer work for claimant. They proposed, however, each one on his own account, to hire to the government at $5 per day. Lieutenant Campbell, in tlie belief that claimant was entitled to the profit on his contract for the ten days that would be consumed in returning to Fort Lincoln, promised the team-owners if they would make one trip to Tong’ue River he would endeavor to secure, upon their return, the acceptance of their proposal. With this understanding, they undertook the trip. During the absence of the teams, claimant arrived at Glendive. From Lieutenant-Colonel Otis he learned the position and determination of the teamsters. He did not propose to arrange with them nor furnish others in their stead. He suggested nothing and did nothing. After this interview, September 26,1876, by authority given him September 10, 1876, Lieutenant Campbell hired all the teams, including the one belonging to claimant, at $5 per day. From that time until November 13, 1876, under the new arrangement, the teams were employed in hauling supplies from the boat-landing to Tongue River. After that time they went to Fort Buford. There, under General Hazen, they continued in the employment of the government until January 24,1877.

All these services have been 2>aid for by the defendants— first, to the claimant for all the teams at $4.95 per day up to September 26, 1876, and for his own team after that date at $5 per day; second, to the several owners of the twenty-two teams for all their services after September 25, 1876, at $5 per day. In the opinion of the claimant these last payments were made in error. They should have been made, he thinks, only to himself. To enforce a repayment he brings this suit. In support of his position it is claimed that his contract did not expire until the teams, about February 7,1877, returned to Fort Lincoln. It will be observed that his contract was to furnish teams “ for transportation of military supplies accompanying the Yellowstone expedition en route from Fort Lincoln for fifty days or more.” No terminus of the route nor limit in time is given. The team-owners claimed that when the Army established posts along the Yellowstone and went into camp it was no longer en route. They did not agree, they insiste'd, unattended by troops to haul supplies from post to post. JSn route, on the way, as they understood it, meant while the troops were moving in pursuit of Indians or only temporarily encamped. In the opinion of the Court, the drivers were right. But suppose they were wrong ; the defendants were not responsible for tlieir mistake. Both Lieutenant-Colonel Otis and Lieutenant Campbell urged them to continue under claimant’s contract, not because they considered it obligatory, but because it made a small saving to the government and because itwas easier to deal with one man than with twenty-two. It was the claimant who was in fault. He agreed “ to furnish teams, drivers, and wagons complete and in every respect ñt for the service.” Unwilling drivers, no more than balky horses, would fulfill that agreement. He was as much bound to furnish drivers who would drive as he was to furnish teams that could be driven. If there was a breach of contract it was for the defendants, not tlié claimant, to complain. They were put to additional trouble and expense. At that time claimant himself seemed to take this view' of the case; for while he complained of the teamsters, he thanked the government officers for inducing them to remain in the service twenty days longer than they had at first intended. He settled his contract to September 26, 1876, without protest, and after that date accepted pay for his own team at $5 per day without reservation.

But, it is said, the claimant is at least entitled to receive his profit on the return trip. Unloaded teams would travel from Glendive to Fort Lincoln, a distance of about two hundred miles, in ten days. If his contract terminated on the 5th day of September, he has already received the profit not only on ten, but on twenty additional days. For it was with this return trip in view, and the profit that the claimant might be entitled to receive thereon, that the teamsters were persuaded to continue work and allow him the profit, twenty days after their contract, as they understood it, had expired. It made no difference to claimant, provided he received his profit for ten additional days, whether the teams staid or returned. If, on the other hand, his contract with the government expired neither on the 5th nor the 25th day of September, and the obligation to furnish teams and drivers willing to work still rested upon him, as he most illogically insists, his utter failure to discharge that obligation precludes the consideration of future profits.

The claimant’s petition is therefore dismissed.  