
    Baker et al. v. The United States.
    
      On the Proofs,
    
    
      An order is issued by Major General Canby, commanding a military department, to Ids quartermaster at Mew Orleans, directing him to charter or impress vessels for the expedition against Mobile. The quartermaster accordingly charters the brig Fitter. The rate agreed upon exceeds that prescribed for such a vessel by the Quartermaster General, but is less than the vessel would then bring in New Orleans. The Quartermaster General disapproves the contract and refuses to pay the rate agreed upon for the time the vessel was in service. The owners refuse the reduced rate and request that their vessel be discharged from the service. The quartermaster refuses to discharge her, she being needed by the expedition.
    
    Where an emergency exists, requiring the immediate procurement of supplies for the movements of an army, and they cannot be procured in the usual manner, its commanding general may order the chief quartermaster to procure them without advertisement “ during the continuance of the emergency,” underSec. 4, Act 4 July, 1864, (13Stal. L., p. 394.) And the Quartermaster General has no power to annul and disregard such a charter-party on the ground that the rate agreed to be paid exceeds the rate which he has prescribed.
    Mr. D. F. Murphy and Mr. J. Hubley Ashton for claimants:
    This is an .action brought by original petition to recover the sum of $4,612 50, the balance due upon a contract of charter-party for the use of the brig Edwin H. Fitler, belonging to the claimants, by the quartermasters’ department of the United States army.
    
      Facts.
    
    The history of the ease is this : The brig arriving at New Orleans in February, 1865, whither she went on a voyage from Philadelphia, in service paying rates more remunerative than the terms of this charter-party, reached there when the government was in great need of water transportation for army purposes.
    Under these circumstances the contract set out in the petition was made, the charter-party being executed by J. H. Holmes, master of the brig, and by Captain F. W. Perkins, assistant quarter-master for tbe United States.
    Under tbis charter-party tbe quartermasters’ department of tbe United States army took charge of the vessel and retained her in their service and employment till the 1st day of June, 1865.
    The charter-party having been approved by Colonel Holabird, chief quartermaster of the department of the Gulf, was forwarded in due course to the Quartermaster General, who disapproved of it, because the rate was more than he considered proper-for Atlantic ports, he having applied a uniform rate for all ports from Portland to Galveston', without regard to particular local circumstances and special emergencies that might exist. This disapproval reached Colonel Holabird, New Orleans, near the close of April, 1865, who thereupon addressed a notification of the disapproval to the master. The master, however, at this time was with the vessel at Mobile, and did not receive this notice till his return to New Orleans, on the 29th of May, 1865, when he promptly refused to continue in service' at the rate proposed by the Quartermaster General, whereupon the vessel was seized as a “ military necessity,” and held for three or four days, being discharged from the service on the 1st of June, 1865. The services of the vessel were paid for in full to the 31st of March, 1865', but in settling for subsequent service fifty per cent, was withheld on account of the Quartermaster General’s disapproval. This action is brought to recover the money so withheld.
    The official character of Captain Perkins, the making of the contract, his right to make it, and the performance of the service under it, surely will not be denied. Its binding force and efficacy are not to be questioned. It is not necessary in this court to refer to authorities to show that the government is held to the same rule in regard to contracts as a private individual. That principle is expressly laid down in regard to charter-parties in 2 Parsons on Contracts, (edition of I860,) p. 301, and is too well settled to be shaken.
    It is submitted that this contract comes within the fourth section of the act of Congress of July 4, 1864, “ to provide for the better organization of the quartermasters’ department,” which provides :
    “ That when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army or detachment, and when such supplies cannot be procured from any established depot of the quartermasters’ department, or from the head of the division charged with the duty of furnishing such supplies within the required time, then it shall be lawful for the commanding officer of sucb army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, and no longer, in the most expeditious manner, and without advertisement; and it shall be the duty of such quartermaster to obey such order.”
    The court is referred to the order of General Canby, as returned by Captain Perkins to the returns office of the Interior Department, and to the same order, as transmitted from the War Department.
    In the case of Parish v. The United States, (1 C.. Ols. It., p. 357,) this court held that the Quartermaster General could not deduct five dollars from the price agreed to be paid for horses by the chief quartermaster at Saint Louis, and in .the opinion the court.say:
    “ The refusal to pay the full price agreed upon is unauthorized.”
    And again:
    “ But apart from all commissions of investigation, he (the claimant) may rely upon the rectitude of his conduct and his contract, exacting as much compliance as he gave, or upon the actual value of the property sold and delivered.”
    In Brown’s case (1 O. Gis. B.., p. 307) this court held, upon a quartermaster’s contract to furnish wagons which provided for an inspection, that after one inspection another could not be ordered, but the government was bound by its contract, and concluded by the inspection for which it provided.
    As ■ to the rate of compensation, is not the government bound by its express contract 1 There is no allegation or suspicion of fraud on the part of the claimants or their agent, or any one acting for them. The testimony shows that the services of the vessel were worth the amount agreed to be paid. Is not the government, like any other contractor, to pay the market price at the time and place when and where service is wanted ? The testimony is uniform that, at New Orleans, at the time in question, vessels were scarce and freights high. The prevalent prices are stated by the witnesses, a calculation from which shows that merchant service woul have yielded much more than the contract rate.
    The Deputy Solicitor for the defendants:
    This is the case of an alleged charter-party, sought now to be consummated at $150 per diem, between Captain F. W. Perkins, assistant quartermaster, and the master of the brig Edwin H. Fitler, acting for the owners. The charter was disapproved by the Quartermaster General on account of the excessive rate, a first payment having, however, been made up to March 31, 1865, so that the claimants have received for the services of this brig, the sum of $9,337 50. Under the adjustment, on the terms conceded to others under like circumstances, they would have received in lieu of this but $7,303 50. They now claim additional pay at the rate of $50 per day, amounting to $4,612 50. The question is, whether they have not already been sufficiently compensated under the arrangement at New Orleans on a quantum, meruit. As proposed in petition and brief, it is an unmiti-gable attempt to deprive this firm of their just rights as owners of the Fitler, but as actually subsisting, in the beaten way of a business transaction, it is fairly inferable, from positive statutory regulations, that the charter-party, out of which the claim for this alleged balance springs, could be nothing else than an inchoate conditional one, dependent upon the approval of the War Department, through the Quartermaster General’s office. As was required in the case of all such contracts, it had to be filed in the returns office, Interior Department, and on reaching the War Office this special paper was promptly disapproved, and its terms so modified as to be brought within the fixed standard for remunerating the owners of all such vessels. There were ruling rates per day per ton registered measurement, for side-wheel steamers and propellers, and from $3 50 to $4 50 per month, for bailing vessels, per registered ton. At the rate of $100 per day, as allowed these owners, they were considerably better paid than all those who received the rate thus established for sailing vessels in most other instances. The legal registered tonnage of the brig they sent to New Orleans was, it is contended, far below her actual capacity; and while the Edwin H. Fitler, as enrolled and licensed in the coasting trade and fisheries, appears, under the certificate and seal of the deputy collector at Philadelphia, to be 541|-f tons in measurement, there is attempted •parol proof of her reaching, under other modes of measurement, a carrying capacity of over 800 tons dead weight. It is the misfortune of these claimants, then, to have so agreed to such a description and measurement, in the matter of the enrolment, as to have made it imperative on the Quartermaster General’s Department, in adjusting the quantum meruit for the services of the brig, to look to the best documentary evidence in the case. Freights are so fluctuating that speculative damages are at once suggested when the earnings of a round voyage between New Orleans and Philadelphia is set down at the sum of $21,600 for this brig, valued and appraised at $38,000 in the paper, to which so much of force and effect is given, however inchoate in law. Coasting vessels, with slight repairs from time to time, and with proper care, last from 25 to 30 years. The usual run from New Orleans to Mobile bay requires about forty-eight hours for sailing vessels under favorable circumstances, the distance from bar to bar being about seventy-five miles. And here is a grave assertion of equity in a case where the whole appraised value of their brig could, in two or three trips, have been realized by these claimants. Port charges, it will be remembered, are paid by the United States, and so here is so much clear gain to the owners of the vessel put into service. So great is the competition at times in most of the leading seaports that freights suddenly fall to nominal rates; and vessels, as was the case with the Fitler, in July, 1865, according to the statements of the owners among the papers, returned in this pending matter, were making their way from New Orleans to New York with a freight no more than covering expenses. On the basis of a quantum, meruit to these owners, $100 a day, as between individuals, would have been enormously high. Yet this is the sum which they have been paid by the United States on a paper purporting to be a charter-party, though promptly rejected as'such at the earliest possiblé moment by the Quartermaster General.
    The forwarding of this charter-party to the returns office, under the stringent provisions of the act of 2d June, 1862, (12 Stat. L., p. 411,) was a condition precedent, which the law brought directly home to the knowledge of both the parties to the transaction of 27th February, 1865, at New Orleans. The approval of the War Department was essential as a prerequisite to such a paper becoming a charter-party. Captain Perkins did not choose to take the responsibility of concluding the arrangement, and it was referred for the action of Colonel Hola-bird, before transmission to the returns office, Interior Department, for the final supervision and approval of the War Department, through the Quartermaster General. It is clear that Captain Perkins regarded it as something more than a form in mere routine duty, for he accompanied the counterpart of the intended contract with his seal and affidavit.
    The indorsement of Colonel Holabird could hardly have been deemed as closing the transaction. This reference to Colonel Holabird is, too, a concession in the ease, showing that the contract, by way of a charter-party, had not been consummated, even when made doubly sure by the joint action of both officers at New Orleans. To give the paper validity as a charter-party, concluding and binding the government, something else was needed, and that was positively and peremptorily withheld. It is assumed that the master of the brig, then lying at tha New Orleans levee and discharging her cargo on freight, in the government service, from Philadelphia, was put under some sort of duress. In support of this assumption, Major General Canby’s instructions to Colonel Holabird are cited in the evidence of these claimants, (p. 24,) while the charter-party, proposed to he submitted for approval or disapproval, under the special law governing such matters, is in conflict with the assumption. The brig was not seized, but the master being left to his own shrewdness, secured for himself what was to be deemed a charter-party, in his opinion. Just then business at New Orleans was particularly brisk; hut not so after 1st June, 1865. The $150 per day paid by the government would have paid, it seems, better than private employment, if it would continue for any length of time. Admitting the emergency to have existed under the act of July 4, 1864, “ to provide for the better organization of the quartermasters’ department,” this vessel would have been impressed, without subjecting the parties to delays and difficulties that might possibly arise under the act organizing the returns office. But the matter was adjusted on the basis of a commercial transaction, where the equities were not wholly on the side of these claimants. The government had its safeguards against improvident action and mistakes of fact in subordinate officers. The Quartermaster General was not gagged and bound in his high office, and if he found it in the line of duty to act on the reasonable belief, that one of his subordinates, with no purpose to become party to a corrupt bargain, had, in some measure, been hoodwinked, there was this reserved right to interpose on the first inkling of such a thing through the returns office after inspection of the papers filed. This alleged charter-party of 27th February, 1865, was merely inchoate, to be subject to preliminary sanctions under the act of 2d June, 1862.
    Fraud is not to he presumed in any case; but the scope of the acts of 16 July, 1798, sec. 6, (1 Stat. L., p. 610,) and of this more recent one of 2d June, 1862, (12 Stat. L., p. 411,) so qualifies the authority of the subordinate officer, in signing and sealing a paper of this nature, as remits the claimants to a right of recovery, if such right exists at all, to a quantum meruit on an implied contract from the beginning to the end of this business at the port of New Orleans.
    It was not necessary that the paper, in the form of a charter-party, should, on its face, contain a clause in regard to the act of 2d June, 1862, as the law itself was presumed' to be present to the minds of both parties seeking to enter into an agreement, and the plea of the emergent occasion for the 8th February, 1865, needed a continu-ando to serve its purpose for the 28th February, when these claimants, by their agents, agreed for the service of the brig Edwin H. Fitler, with Captain Perkins, as under ordinary circumstances, subject to the guards and checks of subsisting laws and regulations. The services of the brig were thus fairly weighed and measured, when the owners, on adjustment, were actually paid, not alone what others were to receive under like circumstances for the same work and labor, but a sum in excess of this.
   Casey, C. J.,

delivered the opinion of the court:

The claimants are residents of the city of Philadelphia. They were, in the winter'of 1865, the owners of the brig Edwin H. Fitler, which they despatched on a voyage to New Orleans. At the date of her arrival there the expedition against Mobile was being fitted out by General Canby. That officer, on the 8th of February, 1865, had issued orders to seize, if necessary, all steamers and sailing vessels requisite to transport the troops, munitions, and supplies. These orders were transmitted to Colonel Holabird, the chief quartermaster of the Department of the Gulf, and by him to Captain F. W. Perkins, in charge of water transportation. To prevent the seizure of the vessel under these military orders, Jeremiah H. Holmes, the master of the vessel, entered into a written charter-party, with Captain Perkins, for the hire of the same, at the stipulated price of $150 per day for each and every day the vessel should be employed, the United States furnishing the necessary fuel. This contract was dated the 28th February, 1865. The brig immediately entered upon the stipulated service, making several voyages to Mobile and return to New Orleans, under orders of the military authorities of the United States. Captain Perkins transmitted a copy of the contract to the returns office, with the order of General Canby directing the procuring of transportation. And he also transmitted -a copy of the same to the Quartermaster General. The latter officer disapproved of the contract, because the rate of compensation allowed was greater than the scale of prices established by the quartermasters’ department. This disapproval was on the 11th April, 1865, and was sent and notified to the quartermaster at New Orleans. The brig arrived at New Orleans on the 29th of May, 1865, and the master of the brig was notified of tbe action of tbe Quartermaster General, and that be would be paid at the reduced rate of service ordered. This be refused to accede to, and asked to have the vessel discharged from the service. She was detained until tbe 1st day of June, and then released. Captain Perkins, in accordance with the instructions of the Quartermaster General, paid to the master of the vessel $9,225, or at the rate of $100 per day, for 92J days. They claim in this suit the remaining $50 per day, stipulated to be paid them by the charter-party, up to the 29th of May, and at the rate of $150 per day for the remaining three days the brig was detained. The questions discussed on the trial here were, whether the quartermaster at New Orleans had power to make the written contract, and whether the Quartermaster General could exercise a supervision over it, when made, by reducing the amount or rate of the stipulated compensation.

Subordinate officers frequently make contracts of this character, subject to the ratification or approval of their superiors, and where they do so, there can be no doubt that the transaction is- subject to and dependent upon the stipulation. To make it binding as an express contract, such approval or ratification must be first obtained. But where a public officer, with full power to enter into contracts, makes an absolute agreement, and submits it to his superior officer, in the due course of official duty and routine, I am not aware that the law confers upon the latter any power of revision or amendment. Such a power would be totally inconsistent with the promptness and despatch necessary in the movements of an army operating at remote points ' from the seat of government. The present is a fair illustration of how such a rule would operate. The contract was made on the 28th of February. The disapproval of tbe Quartermaster General is dated on the 11th of April, following. And that disapproval is notified to the quartermaster at New Orleans some time in the May following, when the objects of the expedition had been fully accomplished.

We think Captain Perkins, acting under the orders of Colonel Hol-abird, the chief quartermaster of the department, who was obeying the instructions of General Canby,. in command of that military department, had full power-to make the contract. There is nothing developed in the facts to cast any suspicion of fraud or unfairness upon the transaction. On the contrary, the evidence satisfies us that it was made in good faith, and that the compensation allowed under all the Circumstances was reasonable and fair. We find neither in the .contract nor in the facts or the law a,ny right or authority of the Quartermaster General to subject this contract to the procrustean process by conforming it to any special standard he had established. We think it comes within the words, and certainly within the reason and spirit of the fourth section of the act of July 4,1864, “ to provide for the better organization of the quartermasters’ department,” which enacts :

That when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army or detachment, and when such supplies cannot be procured from any established depot of the quartermasters’ department, or from the head of the division charged with the duty of furnishing such supplies within the required time, then it shall be lawful for the commanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies during the continuance of such emergency, and no longer, in the most expeditious manner, and without advertisement; and it shall be the duty of such'quartermaster to obey such order.”

This makes the commander of the army or detachment, whose movements are to be provided for, the sole judge of when the emergency exists. And the law is not so lame and impotent in its conclusions as to allow the plans of a campaign to be thwarted, nor an army paralyzed in its movements by requiring a commander to wait for necessary transportation and supplies until all the contracts for their purchase and procurement have been submitted to and approved by the Quartermaster General.

The contract was made in this case and fulfilled by the claimants in good faith, and we can see no reason founded in justice or law why they should not be paid according to that contract.

We therefore find for the claimants, and direct a judgment in their their favor for the sum of $5,062 50.  