
    STUART’S CASE.
    Andrew Stuart v. The United States.
    
      On the Proofs.
    
    
      The facts are substantially those set forth in Shrewsbury's Case (ante), exceptthat it appears affirmatively what quantity of freight went by a route shorter than that paid for.
    
    The obligation, of a party attacking supposed distances for which payments have been made under a transxsortation contract as defined by the court in Shrewsbury’s Case (ante) reaffirmed.
    
      
      The Reporters’ statement of tbe case’:
    Tbe contract referred to appears sufficiently in tbe opinion of tbe court.
    Tbe court found tbe following facts:
    I. Tbe contract between tbe claimant and Capt. Henry C. Hodges, annexed to tbe petition as Exbibit A, was entered into as alleged in tbe petition.
    II. In tbe year 1864 there was but one route for freigbt-trains from Fort LeaAmnworth to Fort Eiley, and but one from Leavenworth to Fort Zarah.
    III. In tbe year 1864, the route for all freigbt-trains going from Fort Leavenworth to Fort Union (except five of tbe claimant’s trains, which went to Union via Nebraska City, Kearney, Cottonwood, Denver, and Pueblo) was by Forts Zarah, Larned, and Dodge, to a point on tbe Arkansas Eiver twenty-five miles Avest of Dodge, whence to Union, there Avere two routes, to Avit: 1. Tbe so-called “Eaton route,” which kept along tbe northern border of that river to Fort Lyon, and then toned south via tbe Eaton Mountains to Union; and, 2. Tbe so-called “Cimarron route,” which at Cimarron Grossing, twenty-five miles west of Dodge, crossed to tbe south bank of tbe Arkansas Eiver, and went thence in a southwesterly direction across tbe country in a nearly direct line toward Union. This route was far east of tbe Eaton route, but tbe tAvo gradually converged until they met at a point about six miles northeast of Union. Trains for Union also crossed tbe Arkansas at Aubrey Crossing, one hundred miles west of Dodge, and went southwesterly, by AArhat was known as tbe “Aubrey Cut-off,” to the Cimarron route, at a point some distance south of that river, and pursued that route to its said point of junction Avith tbe Eaton route. It does not appear that there was in 1864 any other route from LeavenAvortb to Union than tbe two routes so described, except that above excepted Ada Nebraska City, Kear-ney, Cottonwood, Denver,, and Pueblo.
    IV. In said year tbe route for freigbt-trains from Zarah to Dodge forked at a point eight miles Avest of Zarah; whence there Avere tAvo roads to Dodge, to Avit: 1. One keeping along tbe north bank of tbe Arkansas Eiver to Dodge, leaving Lar-ned some miles to tbe right, and knoAvn as tbe “wet route”; and, 2. One on tbe higher ground north of tbe wet route to Lamed, and tbence on tbe higher ground and north of the wet route to Dodge, and known the whole way from the forks aforesaid to Dodge as the u dry route.”
    V. In said year there was only one route from Dodge to Lyon and thence by the Eaton Mountains to Union; but at a place south of those mountains there were, for a part of the way, two roads leading to Union, one of which went circuitously by a place called Maxwell’s ranch, and another east of that went direct ; and between the point where the two diverged and that at which they met again the distance by the former was four miles greater than by the latter.
    YI. Under said contract the claimant caused to be transported in 1864 the following quantities of military stores and supplies from and to the following-named places; and for all said transportation he was paid by the post quartermaster at Fort Leavenworth upon distances indorsed on bills of lading by the officer or agent receiving the supplies at the place of delivery; and the claimant gave receipts in full for the stipulated price on the basis of the distances here set forth in connection with each item, to wit:
    From Leavenworth to Eiley, 287,783 pounds, 120 miles.
    From Leavenworth to Zarali, 28,416 pounds, 240 miles.
    From Leavenworth to Lamed, 1,135,906 pounds, 266 miles.
    From Leavenworth to Lyon, 662,146 pounds, 500 miles.
    From Leavenworth to Union, 6,147,815 pounds, 735 miles.
    In settlements between the claimant and the officers of the Quartermaster’s Department of the Army for this transportation, the claimant always claimed that he had traveled greater distances than those above stated, and received the payments for those distances under protest, declaring that when the distances should be measured he would expect such further allowances as he was entitled to by the terms of said contract at a fixed rate per mile.
    VII. The actual distance traveled by claimant’s trains, under said contract, from Leavenworth to Eiley, was 123 miles.
    VIII. The actual distance traveled by claimant’s trains, under said contract, from Leavenworth to Zarali, was 127 miles.
    IX. The distance between Leavenworth and Larned by the wet route was 281 miles by chain measurement; and by the dry route, not subjected to chain measurement, 278 miles. Trains of the claimant went by each of those routes; but it does not appear bow many trains carrying freight for Lamed, nor wbat quantity of freight for that post, went over either.
    X. The distance between Leavenworth and Lyon by the wet route was 509 miles by chain measurement; and by the dry route, not subjected to chain measurement, 494 miles. Trains of the claimant went by each of those routes; but it does not appear how many trains carrying freight for Lyon, nor what quantity of freight for that post, went over either.
    XI. The distance between Leavenworth and Union by the wet route to Dodge, and thence by the Eaton route to Union, passing Maxwell’s ranch, was 750 miles; and by the dry route to Dodge and thence by the Eaton route to Union, passing Maxwell’s ranch, 735 miles; and by the last-named route, not passing that ranch, but taking the direct road aforesaid east of that ranch, 731 miles. It does not appear how many trains or what quantity of freight went by Maxwell’s ranch, nor what number of trains or what quantity of freight went by the direct route east of Maxwell’s ranch.
    XII. The distance from Leavenworth to Union over the Ci-marron route, either by the Cimarron or the Aubrey Crossing, was 670 miles.
    XIII. In said year, under said contract, tbe claimant sent from Leavenworth to Union 52 trains, which carried over the Eaton route and delivered at Union 4,949,059 pounds of supplies ; and he also sent five other trains, which carried over the Cimarron route and delivered at Union 453,887 pounds of supplies.
    XIV. Under said contract, in said year, the claimant sent five trains from Leavenworth, via Nebraska City, Kearney, Cottonwood, Denver, and Pueblo, to Fort Union, which carried 744,869 pounds of supplies; for which he was paid the contract price, on vouchers stating the distance traveled at 735 miles; and he receipted in full for the payments so made to him; and it does-not appear that the distance traveled by his trains over that route exceeded the distance stated in said vouchers.
    XV. The Eaton route was the usual traveled route, in 1864 and 1865, for government contractors’ trains to Fort Union, and most of them went by that route; but the rest went by the Cimarron route, except the five trains referred to as having gone via Nebraska City, Kearney, 'Cottonwood, Denver, and Pueblo.
    
      XYI. Tbe direct route east of Maxwell’s ranch, specified in finding Y, crossed two creeks, upon which Mexicans had unfenced farms, there being ditches on each side of the creek, rendering the crossings difficult, and .rendering it difficult to get stock to water; on account of which the road by Maxwell’s ranch was the best route for claimant’s trains.
    
      Mr. Thomas J. Durant and Mr. Haney Spalding for the claimant.
    
      Mr. Horace M. Hastings (with whom was the Assisstant Attorney-General) for the defendants.
   DRAKE, Ch. J.,

delivered the opinion of the court:'

This case differs in no essential particular from that of William S. Shrewsbury, just decided. The terms of the contract-are the same as in that case, and the only difference between the two cases is that in this five of the claimant’s trains went via Nebraska City, Kearney, Cottonwood, Denver, and Pueblo to Fort Union, and therefore did not travel either the Eaton or the Cimarron routes. But as the claimant was paid for those five trains the same distance as for those which went by the Raton route, and fails to show that the distance they traveled was any greater than that for which he was paid, he has no claim on their account.

Nor has he any claim for additional compensation for the transportation by the Raton route, for he fails to show what quantity of supplies he carried over the “wet route” and what quantity over the “dry route” between Fort Zarah and Fort-Dodge, and what quantity went by Maxwell’s ranch, and what quantity went by the shorter road east of that ranch 5 and there is, therefore, no sufficient basis laid for any judgment in his favor.

A motion was made, as in Shrewsbury’s case, to remand this case to the general docket for further evidence; which, on the grounds stated in that case, must be overruled.

This case, however, differs from that of Shrewsbury in the matter of the counter-claim in this, that the court has found affirmatively that five of - the claimant’s trains went over the Cimarron route and carried 453,887 pounds, for the transportation of which he was paid as for 735 miles traveled, when, in fact, the travel was only <370 miles. He therefore charged and was paid for 65 miles more than his trains traveled, and the amount of the overpayment on . that number of pounds was $5,812.02. Dpon the question of the right of the defendants to recover under the counter-claim the court is divided in opinion, and there can, therefore, be no recovery thereunder.

The judgment of the court is that the petition and the counterclaim be both dismissed.  