
    Herbert B. Titus v. The United States.
    
      On the Proofs.
    
    
      An assistant special agent of tlie' Treasury is appointed in 1865 to collect cotton, Ms compensation to he fixed thereafter. He is paid a per diem allowance and expenses, and the Secretm-y of the Treasury also allows him a percentage on certain cotton collected hy him. Re claims in addition a percentage on other cotton collected hy other assistant special agents. This demand is dis-alloieed by the Secretary. More than six years after the services were rendered, he brings his action to recover the percentage claimed.
    
    I. An assistant special agent of tlie Treasury appointed under tlie Abandoned or captured property Act (12 Stat. L., 820) to collect cotton, tlie amount of Ms compensation to be fixed thereafter, cannot recover a percentage upon tlie cotton be collects until it is allowed and fixed by the Secretary.
    II. The claim of an assistant special agent of the Treasury for a percentage on cotton collected by Mm accrues when the services are rendered, witMn the meaning of the statute of limitations.
    
      The Reporters' statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant on or about November 1,1865, was appointed an assistant special agent of tbe Treasury Department under the following authority and with the following instructions:
    “Treasury Department,
    “ November 1,1865.
    “Sir: You are hereby appointed an assistant special agent of the Treasury Department, and assigned to duty under the special instructions of this date, which are herewith inclosed. The amount of your compensation, to be fixed hereafter, will depend, to some extent, on the result of your labors, and the duration of your employment.
    “Respectfully,
    “H. McCulloch,
    
      " Secretary of the Treasury.
    
    “ Herbert B. Titus, Esq.,
    “ of Neic Hampshire."
    
    “Treasury Department,
    “ November 1st, 1865.
    “Col. H. B. Titus,
    “ Speel. Agt. Treasy. Dept., Washington, D. O.:
    
    “ Sir : J. W. Denver, esq., having represented to this department that he will be able to assist the regularly appointed agents of the department in securing certain specific lots of cotton belonging to the late so-called Confederate Government, and having been authorized by letters to William P. Mellen, esq., general agent of the department (copies of all the papers being herewith furnished you), to take measures to secure such lots of cotton, you will proceed with Geni. Denver to the points in the Southern States indicated by him as the localities where such lots of cotton are to be found and secured, representing and protecting the interests of the department in the premises, and reporting from time to time any action that may be taken.
    “ It is not the intention of the department that any cotton or other property, alleged to have been property of the so-called Confederate Government, shall be seized by Gen. Denver or by yourself; but all such cotton must be taken and secured, if at all, by the regular agents of the department, acting within their designated lines, in pursuance of the policy now adopted for their guidance.
    “Geni. Denver, therefore, will confine himself merely to giving information and pointing out to the existing agents of the department the localities where Confederate cotton may be secured ; and you will confine yourself, in relation to such cotton, merely to observing the progress of any steps that may be taken, and advising with. Geni. Denver, the agents of the department and the department itself, as to the proceedings taken or to be taken in such case. Neither is it the intention of the department that Geni. Denver should institute any general search for cotton; but he is to undertake to point out specific lots of cotton in relation to which he may have information, and which would not otherwise be secured. You will therefore advise and report against any attempt to convert the authority given by the department into a roving commission, and will endeavor to confine action to the specific cases which such authority is intended to cover.
    “The motive which influences the department in making the arrangements indicated with Mr. Denver is the belief that by it cotton will be secured of which the agents of the department have now no knowledge, and which they would not succeed in securing without information furnished by Mr. Denver, and it is on this basis that compensation on account of cotton secured is to be made to him. You will therefore inquire in each case that comes to your attention, in the same manner as the agents of the department have been instructed to do, whether or not the information communicated by Mr. Denver is the first information obtained in relation to any lot of cotton in question, and whether or not such cotton would have been secured without Mr. Denver’s intervention, and report your opinion in each case. For the rest, in your action in connection with Geni. Denver, you will be guided by such oral instructions as have been given you and the knowledge you have obtained of the general policy of the department as to the collection of captured and abandoned property.
    “While engaged in the duties above described you will please make such investigations as you may be able into the management of the various Treasury agencies in the districts through which you may pass, and report your opinion thereon freely to the Secretary, together with any information you may obtain which will be of value to any branch of the public service. In doing this it may be advisable for you for a time to visit points not designated by Geni. Denver, in which event you are authorized to do so, although you will in no case lose sight of the main object of your mission until it is accomplished.
    “Should anything unexpectedly terminate your immediate mission, you may, if you deem it advisable, proceed through the cotton States as far as New Orleans, reporting from time to time to the Secretary for further instructions, and returning at last to Washington.
    “I am, very respectfully, your obedient servant,
    “Wk. E. ChaNdleb,
    “ Assistant Secretary.
    
    “ Col. H. B. Titus,
    “ Special Agt. Treas. Dept., Washington, D. OP
    
    
      II. Under said appointment and letter of instructions, tbe ■claimant at once entered upon the performance of his duties •as therein prescribed, and continued in the performance of them up to and including February. 16, 1867, and was paid $10 per day and his expenses for his service during that period.
    III. During that period four lots of cotton, known as the Dennistoun cotton, the Silcox cotton, the Carswell cotton, and the Dead cotton, respectively, were seized and sold under direction of Treasury agents. The papers on file in the Treasury Department show the following facts in regard to these lots of ■cotton:
    
      1. — Dennistoun cotton.
    
    2,473 bales, collected by J. E. Willett and J. O. Savery, gross proceeds .. $289,133 03
    Freight and expenses on same to New York... $148,681 45
    Expenses at New York, including commissions to agents... 42,451 58
    Legal and other services, paid to F. Smith, Hughes, Denver & Feck, and others. 39, 000 00
    Balance released to owners. 59, 000'00
    289,133 03 289,133 03
    
      2. — Silcox cotton.
    
    205 bales, collected by J. C. Savery, gross proceeds ... $40, 841 44
    Freight and expenses on same to New York. -. $3,728 81
    Expenses at New York, including commissions. 2,058 39
    Hughes, Denver & Feck, legal expenses ... 12,808 00
    Balance proceeds in Treasury. 22,246 24
    40, 841 44 40, 841 44
    
      
      3 — Carswell cotton.
    
    244 bales, collected by W. B. Garrard, gross proceeds... $36,955 98
    Freight and expenses to New Tort . $5,460 12
    Expenses at New York, including commissions. 3, 046 49
    Released to "W. S. Ligktfoot. 1,420 00
    Released to Macon Manufacturing Company..... 27, 029 37
    36,955 98 36, 955 98
    
      4. — Bead cotton.
    
    10 bales, collected by claimant, gross proceeds... $1,267 88
    Expenses at New York. $113 40
    Balance in the Treasury. 1,154 48
    1,267 88 1,267 88
    IY. At the time of the seizure of the said several lots of cotton the commissions allowed to agents, supervising agents, special agents, and assistant special agents were as set forth in. in the following circular, dated August 18, 1865:
    “Treasury Departmemt,
    “ Washington, B. C., August 18th, 1865.
    “ Sir : In carrying out the system for collecting captured property pursuant to my letter of this date, I have determined upon the following mode of payment of the one and one-half per centum authorized by Regulation XYI concerning captured and abandoned property, series July 29th, 1864:
    “ One per centum of the net proceeds of sales of all cotton received at New York from the 1st, 2nd, 3d, 4th, 8th, and 9th agencies shall be set aside by the agent selling for equal distribution among the supervising agents of said'agencies and the general agent, and shall, by said agent selling, be paid to them, respectively, on proper vouchers for their proper shares.
    “ The remaining one-half per centum shall be set aside for payment of contingent expenses, as provided in said regulation.
    “And in order to stimulate assistant agents engaged in collecting. captured cotton to a speedy and effective discharge of their respective duties, each of such agents will be allowed, in addition to his per diem and mileage, commissions on the netproceeds of sales in New York of cotton collected and forwarded by him, at the following rates:
    “ On the first one hundred thousand dollars ($100,000), two and a half (24) per cent.
    
      “Onany amount above one hundred thousand dollars ($100,000) and not exceeding two hundred thousand dollars ($200,000), two (2) per cent.
    “On all amounts above two hundred thousand dollars ($200,000), one and a half (1J) per cent.
    “The amount of these commissions will be reserved from the proceeds of sales of said cotton received from said agencies by said TJ. S. cotton agent, and the amount due each assistant agent will be paid to him upon proper certificates and vouchers from the supervising special agent of his agency, and not otherwise, as part of the expenses of collecting and forwarding said cotton.
    “Vouchers and certificates shall in all cases be made in triplicate.
    “Bespectfully,
    “H. McCulloch,
    
      11 Secretary of the Treasury.”
    The said James B. Willett appointed the claimant his attorney in fact to state his account as assistant special agent at the Treasury, and to receive what might be found due thereon. The claimant thereupon, on the 15th day of February, 1867, addressed to the Secretary of the Treasury the following letter, and transmitted therein the following memorandum accounts, as attorney in fact of said Willett, and on his own behalf, both the said accounts being on one piece of paper:
    “Treasury Department,
    
      u February 15, 1867.
    “Sir: I have the honor respectfully to request that the acc’t this day stated from the records of the department, of commissions due Ass’t Sp. Agent Jas. B. Willett and myself on the “Dennistoun” and other cottons, shipped under your orders, may be approved, and the am’t paid, or such advance made thereon as you may deem advisable at this time.
    “Very resji’y, your ob’t serv’t,
    “H. B. Titus,
    “ Sj). Agent.
    
    “Hon. Hugh McCulloch,
    “ Secretary of the Treas’y.
    
    JAMES R. WILLETT.
    Mileage by certificate. $180 20
    Commission on Dennistoun. $248,646 95
    And Silcox cottons. 37,457 84
    2J per cent, on $100,000. 2,500 00
    2,000 00
    If per cent, on $86,104.79 1,291 57
    5, 971 77
    
      H. B. TITUS.
    Commissions on 10 bales Dead cotton.. $1,154 47
    Carswell cotton. 29, 790 67
    2£ per cent, on.>. 30, 945 14 $773 63
    One per cent, on net proceeds of all the above cottons. 317, 049 93 3,170 50
    3, 944 13
    “ Mr. Titus also reserves his claim for commissions on 136 bales Dennistoun cotton not included above, as they were shipped to Europe, and maybe paid for on determination of pending suits.”
    YI. In the month bf February, 1867, William E. Chandler was the Assistant Secretary of the Treasury, in charge of the bureau of captured and abandoned property, and had general authority to fix the compensation due to parties under contracts like the contract of November 1,1865, with the claimant, subject to the power of the Secretary of the Treasury to reverse, modify, or change his action thereon. The claimant’s said letter of February 15, and said memorandum accounts, were submitted to said Chandler, who thereupon indorsed on the paper containing the said memorandum accounts the following words and figures:
    “Approved. An advance to be made to Mr. Titus of five thousand dollars and payment of balance delayed until further orders.
    “Wat. E. Chandler,
    
      uAss’t Sec’y.
    
    “ Treasury Department, Feb. 16, ’67.”
    VII. On the same 16th February the Secretary of the Treasury took the following action on the said letter and accounts, and the said approval of said Chandler thereon:
    “Treasury Department,
    
      u February 16 th, 1867.
    “Sir: You are hereby authorized and instructed to issue a requisition on F. E. Spinner, Treasurer, U. S. special agent, in favor of H. B. Titus, attorney in fact of Jas. B. Willett, late ass’t special agent, for the sum of five thousand dollars ($5,000) on account, and in advance of settlement of the amount of his commissions on the nett proceeds of captured cotton collected by him and sold in New York, as allowed by my general letter of August 18, 1865.
    
      “ The draft is to be handed to Mr. S. H. Kauffman, of this office, for delivery to the payee on his proper receipt.
    “ Respectfully,
    “IT. McCulloch,
    
      “ Secretary of the Treasury.
    
    “To NATHAN SARGENT, Esq.,
    “ Commissioner of Customs.”
    The said sum of |5,000 thus allowed was duly paid to the claimant.
    YIII. Soon after the payment of said sum of $5,000 the claimant went abroad. On his return he presented his accounts at the Treasury for adjustment, and the Treasury officers adjusted it as follows, and the amount adjusted and allowed, namely, $752.07, was approved and allowed by the Secretary of the Treasury, and was paid to the claimant.
    “ Treasury Department IT. S. to II. B. Titus, Dr.
    
    “To commissions as agent for collection of captured and abandoned property as follows:
    Dead cotton, 10 bales: Net proceeds.. $1,154 47
    Cotton, Petersburg Steamship Co.: Proceeds collected. 9, 000 00
    $10,154 47 '
    Commissions, © 2¿ p. c.: $253 86
    “ Silcox ” cotton, proceeds... 34,821 35
    Commissions, © 1 per c. 348 21
    Cash paid James R. Willett. 150 00
    “ First Auditor’s Oeeice, May 29,1872.
    752 07
    “R. E. Prest on.”
    “Treasury Department,
    “ Oeeice oe Comm’r oe Customs. “ Examined and passed by—
    “ S. E. Gough.
    “ June 1st, 1872.”
    [Endorsement.]
    “Treas. Dep’t, May 28, 1872.
    “Approved and referred to the First Auditor for examination and settlement, as payable out of the appropriation of April 20,1870, for payment of expenses of collecting captured property, etc.
    “Geo. S. Bout well, Secretary.”
    
    
      “ Treasury Department,
    “ First Auditor’s Oppice, May 29th, 1872.
    “ I hereby certify that I have examined and adjusted an account between the United States and H. B. Titus, late special agent of the Treasury Department, and find that the sum of seven hundred and fifty-two dollars and seven cents is due from the United States to him for expenses and commissions on cotton collected and sold under the circular letter of the Secretary of the Treasury, under date of August 18th, 1865, payable out of the appropriation “ for payment of expenses of collecting captured and abandoned property,” contained in “An act making appropriations to supply deficiencies,” &e., approved April 20,1870, $752.07, as appears from the statement and vouchers herewith transmitted for the decision of the Commissioner of Customs thereon.
    “D. W. Mahon,
    “ First Auditor.
    
    “ $752.07.
    “To the Commissioner op Customs.”
    “Oppice op the Commissioner op Customs.
    “ I admit and certify the above balance this first day of June, 1872.
    “W. T. Haines,
    “ Commissioner of Customs.
    
    “To the REGISTER OP THE TREASURY.”
    IX. The claimant likewise, on his return, presented his account as attorney in fact for said Willett, at the Treasury, and the Treasury officers adjusted it as follows, and the amount adjusted and allowed, namely, $971.77, was approved and allowed by the Secretary of the Treasury, and was paid to the claimant:
    “ United, States Treasury Department to James It. Willett, late ass’t special agent, Dr.
    
    To balance of commissions for collecting the “Dennis-toun ” and Silcox cottons, as approved by Ass’t Secretary Chandler, Feb’y 16, 1867. $791 57
    Mileage, 1,802 miles, at 10c. 180 20
    $971 77
    “R. E. Preston.
    “ First Auditor’s Oppice, May 31st, 1872.”
    “ Treasury Department,
    “ Oppice op Comm’r op Customs.
    “ Examined and passed by—
    “ S. E. Gough.”
    
      [Endorsement. ]
    “ Tee AS. Dep’t, May 28,1872
    “ Approved and referred to the First Auditor for examination and settlement as payable out of the appropriation of April 20, 1870, for payment of expenses of collecting captured property, etc.
    “ Geo. S. Boutwell, Secretary.”
    
      u Treasury Department,
    “ First Auditor’s Oeeioe,
    “ May 31,si, 1872.
    “ I hereby certify that I have examined and adjusted an account between the United States and James B. Willett, late assistant special agent of the Treasury Department, and find that the sum of nine hundred and seventy-one dollars & sevénty-seven cents is due from the United States, being balance of commissions for collecting the ‘ Dennistoun ’ and ‘ Silcox’ cottons, so called, and for mileage, payable out of the appropriation for payment of expenses of collecting captured and abandoned property contained in ‘ An act making appropriations to supply deficiencies,’ &c., approved April 20th, 1870, as follows:
    To Mrs. A. E. Hall, assignee... $971 77
    
      u As appears from the statement and vouchers herewith transmitted for the decision of the Commissioner of Customs thereon, $971.77.
    “D. W. Mahon,
    “ First Auditor.
    
    
      11 To the Commissioner oe Customs.
    “Draft to be sent to office of Comm’r of Customs.”
    “ Oeeioe oe Commissioner oe Customs.
    “ I admit and certify the above balance this seventh day of June, 1872.
    “N. A. Looicwood,
    
      uAct,g Commissioner of Customs.
    
    
      “ To the Register oe the Treasury.”
    
      Mr. A. S. Worthington for the claimant:
    It will not be questioned that the Secretary of the Treasury had power, under the laws relating to captured and abandoned property, to employ the claimant and fix his compensation. It is equally indisputable that the Secretary did so employ him, and that it was a part of the contract of employment that tbe amount of Ms compensation should be fixed thereafter, and should depend to some extent upon the result of his labors and the duration of his employment. Having rendered services, Mr. Titus presents to the Treasury Department an account prepared at the Treasury Department showing what he thinks would be a fair compensation for those services. The department agrees with him, and approves the account as presented, thereby, for the first time, fixing the amount due him for the services in question.
    We maintain that this was the stating of an account between the parties, binding upon the claimant, and equally binding upon the United States. It was not action upon an ordinary claim by an ordinary accounting officer; it was the settlement of the amount due for services rendered by the department at the instance of which they were rendered, under a contract which specially provided that the rate of compensation should be fixed after the services should be rendered. Under such circumstances the allowance of this claim has the effect of an account stated, and in the absence of evidence of fraud or mistake it is here, now, conclusive against the government. {Kaufman v. United States, 11 C. Cls. B., 659; affirmed in 96 U. S. B., 567; Corliss Steam JEngine Co. v. United States, 10 C. Cls. B., 494; affirmed in 91 U. S. B., 321; Parish v. United States, 2 C. Cls. B., 341; Mrs. Alexander's Case, 4 C. Cls. B., 218; Lawrence v. United States, 8 C. Cls. B., 252; and see McKnight v. United States, 13 C. Cls. B., 308, 309.)
    
      Mr. B. M. OrMson (with whom was the Assistant Attorney-General) for the defendants.
   Davis, J.,

delivered the opinion of the court:

On the 1st of November, 1865, the claimant was appointed an assistant special agent for the collection of cotton. The amount of his compensation was left to be fixed thereafter, and was to depend upon the result of his labors and the duration of his employment. The regulations at that time only entitled assistant agents who collected less than $100,000 of cotton to 2J per cent, on the amount collected.

Other assistant special agents, named Willett, Savery, and Garrard, were employed in tbe same district with, the claimant. Four lots of cotton were seized, the commissions upon which are in controversy.

The largest lot was the Dennistoun lot. It was collected by Willett and Savery. Its proceeds amounted to $289,133.03. Of this large amount $230,133.03 was eaten up in expenses, and the remaining $59,000 was restored to the owners.

The Silcox cotton was collected by Savery. Of its proceeds $18,595.20 were consumed in expenses, and $22,246.24 went into the Treasury.

The Carswell cotton was collected by Garrard. The expenses on it were $8,506.61, and the remainder of the proceeds, amounting to $28,449.37, was released to owners.

A small lot of ten bales, known as the Dead cotton, was collected by the claimant. The expenses on this were $113.40, and $1,154.48 went into the Treasury.

At the close of the work Willett appointed the claimant his attorney in fact to collect-what might be due him from the Treasury.

The claimant thereupon presented to the Treasury two memorandum accounts, both written on the face of the same piece of paper. In one of them he claimed, in Willett’s name, the commissions on the Dennistoun and Silcox cottons which the regulations allowed to an assistant agent. In the other he claimed in his own name similar commissions on the Carswell and Dead cottons, and a commission of 1 per cent, on all the cottons.

At the time of presenting these claims the claimant had been paid a per diem pay of $10 during the time employed, and his expenses. The commissions claimed on Willett’s behalf were within the terms of the allowances by the regulations, as were also those claimed by the claimant on the Dead cotton; but the claim put forward for an extra 1 per cent, on the whole cotton was outside of the regulations.

The Assistant Secretary of the Treasury wrote upon the back of the paper thus presented, “Approved. An advance to be made to Mr. Titus of five thousand dollars, and payment of balance delayed until further orders,” and signed his name.

The matter then went before the Secretary of the Treasury, Mr. McCulloch, who on the same day signed an order directing a requisition to issue “in favor of H. B. Titus, attorney in fact of James B. Willett, late assistant special agent, for the sum of $5,000 on account, and in advance of tbe settlement of the amount of his commissions on the net proceeds of captured cotton collected by him and sold in New York.”

The effect of this double action was to authorize the payment of $5,000 on Willett’s account, and to leave the settlement of Willett’s and the claimant’s demands for commissions for future adjustment and allowance.

In May, 1872, the demands which had been made on Willett’s behalf were allowed by Mr. Boutwell, and were paid in full. There is no controversy about them.

In the same month Secretary Boutwell allowed the claimant his claim of 2¿ per cent, commission on the Dead cotton, and also 1 per cent, on a revised return of the proceeds of the Silcox cotton; and these amounts were paid.

The present suit is brought in fact to recover the remainder of the 1 per cent, on the four lots of cotton. This we hold the claimant is not entitled to—

, 1st. Because it is not allowed him by the regulations.

2d. Because his claim to it has been disallowed by the Secretary of the Treasury, who, by the terms of the original engagement, was to fix the allowances to be made him.

3d. Because it does not appear that he did any service to earn the commissions he demands.

4th. Because the services he claims to have rendered were rendered more than six years before the commencement of this action.

The judgment of the court is that the claimant’s petition be dismissed.

Hunt, J., having been appointed Secretary of the Navy, did not take part in the decision of this case, nor in any of the succeeding cases in this volume.  