
    WILLIAM J. MARTIN v. THE UNITED STATES.
    [No. 16978.
    Decided February 20, 1893.]
    
      On the Proofs.
    
    Tn 1849 the claimant agreed to sell and deliver cattle at Fort Hall, Oregon, payable on delivery. He does so. In 1890 Congress pass an act referring his claim for an unpaid balance to this court? It appears that the commissary who made the purchase was provided with funds to pay for the cattle; that he died without rendering his accounts; that the claimant neglected to notify the Government of the nonpayment, and that the case now rests entirely on his own testimony.
    I.Payment is not ordinarily presumed. But the rule which casts the onus prolmdi upon the defendant may be affected by the facts and circumstances of the case and modified by reasonable presumptions.
    II.An act which refers a claim to this court and relieves it from the operation of the statute of limitations nevertheless leaves it subject to all presumptions of fact. Act Septeniber SO, 1890. (26 Stat. L., p. 1313.)
    III.Where it appears that the price was payable on delivery; that the officer to whom the goods were delivered was provided with sufficient funds to discharge the indebtedness; that it was his official duty to do so; that there are no accounts or reports which indicate that he did not; that he is now dead; that the claimant waited 34 years before he presented his claim, and that it rests entirely upon his own testimony, unsupported by any voucher, receipt, acknowledgment, letter or memorandum, a presumption arises that the debt was paid when the goods were delivered.
    IT. Where an agent is not authorized to buy on credit, and the agreement into which he enters requires immediate payment on delivery, the other party is bound to notify the principal within a reasonable time if payment be not made.
    
      The Reporters’ statement of tbe case:
    The following are the act referring the case to this court and the facts as found:
    
      “ Be it enacted, etc., That the claim of William J. Martin, of Oregon, heretofore presented to the War Department, being a balance of seven thousand five hundred and twenty dollars alleged to be due and owing to him under his contract for beef cattle, made with Lieutenant G-. W. Hawkins in June, eighteen hundred and forty-nine, and for the delivery of beef cattle under sucli contract for the use of the Army, bo, and the same is liereby, referred to the Court of Claims for adjudication ; and said court is directed to ascertain what amount, if any, is due said William J. Martin by reason of and under said alleged contract, and to render judgment therefor, any statute of limitation or prior disallowance by the War Department to the contrary notwithstanding.
    “Approved, September 30, 1890.”
    I. On or about the 25th day of June, 1849, the United States by Lieut. G. W. Hawkins, of the U. S. Army, then acting assistant quartermaster and an acting commissary of subsistence, entered into a contract with the said claimant, William J. Martín, a citizen of the United States, for the purchase of beef cattle for the supply of the army.
    II. By the terms of the said contract it was agreed that the claimant should deliver from 120 to 150 head of beef cattle at Fort Hall, Oregon, unless they met' a certain regiment before they reached there. He was to deliver’the cattle on foot, about 96,000 pounds at 12 cents per pound. That all losses of cattle on the way to Fort Hall caused by the Indians were to be borne by the United States; any loss occasioned by the negligence of himself or men to be borne by him. He was to drive the cattle to Fort Hall at his own expense, unless the regiment was met before reaching that place. The weight of each animal was to be ascertained before starting, and it was agreed upon before starting at 800 pounds, or $96 each.
    III. Thereupon claimant procured and placed under said military escort, and in charge of said Lieut. Hawkins, in Yam-hill County, 122 head of good beef cattle, and also in person and with proper and sufficient herdsmen, proceeded to drive said cattle under said military escort to Fort Hall.
    IY. While said cattle was being so driven, 12 head of cattle were slaughtered on the way by order of Lieut. Hawkins, and used as supplies for the military force that constituted the train and escort aforesaid, then under command of Lieut. Hawkins.
    Y. While said cattle were being so driven, 22 head thereof were stolen and driven away by Indians and became a total loss without fault of the claimant.
    YI. Eighty-eight head of cattle arrived at Fort Hall on or about the 30th September, 1849, and 30 head of cattle were turned over to Lieut. F. Bussell, acting assistant quartermaster and commissary of subsistence at that camp, and were taken np and accounted for on his returns. What became of the remainder does not appear. Lieut. Hawkins made no return, and on the 27th January, 1853, he was dismissed from the Army for having failed to render his accounts. There were other commissaries of subsistence at or near Fort Hall, to whom the cattle might have been turned over.
    VII. In June, 1849, Lieut. Hawkins was charged with the duty of procuring 15,000 rations of fresh beef for the subsistence of the troops at Fort Hall, which would amount to 20,000 pounds. But as losses would occur in driving cattle a long distance, and from depredations by the Indians and from shrinkage in weight on the road, a large margin was necessary at the place where those cattle were purchased. It appears that of the cattle purchased, 12 were slaughtered for the use of the escort, which at their weight before starting, amounted to 9,600 pounds; that 22 were captured by the Indians, which at the same weight amounted to 17,600 pounds; and that 30 were turned over to Lieut. Bussell, which at the same weight amounted to 24,000 pounds. It d oes not ajipear that any other of the cattle purchased was turned over to any officer or agent of the Government or used by or on behalf of the defendants. Therefore the account for cattle applied to rises of the defendants will stand as follows:
    12 cattle slaughtered for escort, 9,600 Tbs., at 12 cts.$1,152
    22 cattle captured by Indians, 17,600 “ “ “ “ .2,112
    30 cattle turned over to Lieut. Russell, 24,000 lbs., at 12 cts.2,880
    Amounting in all to. 6,144
    Admitted to have been paid by Lieut. Hawkins.2,500
    3,644
    Wages of herdsmen conceded to have been assumed by Hawkins.... 1,500
    Leaving (if claimant be entitled to recover).2,144
    IX. At the time when the claimant procured the cattle from a third.party, Lieut. Hawkins advanced to him as a payment upon the contract $2,500. It does not appear by the testimony of any person, except that of the claimant himself, that the balance due to him upon tire contract was not paid to him when the cattle were finally delivered at Fort Hall on or about the 30th September, 1849. Before Lieut. Hawkins purchased the cattle there had been turned over to him $10,000 for the purchase of 15,000 rations of fresh beef and other commissary supplies, and these cattle were bought under that authority. Subsequently there was turned over to him, in March, 1851, $10,000, in addition to funds already received by him, upon his representation that that amount was necessary to enable him “to close up the accounts of the expedition in 1849:” and sufficient funds were in his hands at various times out of which it was his duty to discharge the indebtedness to the claimant. It does not appear that the claimant presented his claim to Congress or to the Treasury or War Department, or to any department or officer of the Government, excepting Lieut. Hawkins, in 1849, until the year 1884, when it was presented to ‘Congress.
    
      Mr. W. W. Upton for the claimant.
    
      Mr. 11. M. Foote (with whom was Mr. Assistant Attorney-General Ootton) for the defendants.
   Nott, J.,

delivered the opinion of the court:

Payment is not ordinarily presumed. When the plaintiff has proved his demand it is not necessary for him also to prove that the defendant has not discharged the indebtedness. But the rule which casts the'ohms probandi upon the defendant, like other rules of law, may be affected by the facts and circumstances of the case, and modified by reasonable presumptions. Where the terms of a sale, express or implied, are cash on delivery, the silence, acquiescence, and inaction of the vendor will raise the presumption after awhile that the agreement was carried out according to its terms by both parties. Where his unreasonable neglect to prosecute his demands brings it within the statute of limitations, the presumption becomes one of law, and the debt is as effectually discharged as if payment were proved. The act referring the present case to this court relieves the claimant from this legal presumption of payment, but leaves it subject to all presumption of fact.

It appears in this case that the price was payable on the delivery of the cattle ; that the officer to whom they were delivered is dead; that the defendants placed in his hands sufficient funds to discharge this indebtedness; that it was his official duty to do so, and that there are no accounts or reports which indicate that he did not. It also appears that the claimant did not report the violation of the contract to the commanding officer of the post ; that he waited upwards of thirty-four years before he presented his claim to Congress, or to any depart ment or officer of the Government; that he waited upwards of thirty years after the death of the officer who made the purchase; that every officer who might have been cognizant of the payment, if made, had died before the suit was brought; and that the averment of nonpayment rests entirely upon the testimony of the claimant himself, unsupported by any voucher, ' receipt, acknowledgment, letter, or memorandum.

On these facts and circumstances we are of the opinion that a presumption arises that the debt was paid when the goods were delivered; and that the evidence is insufficient to rebut the presumption or to support a judgment.

There is also in this case the element of agency. The agent was authorized to purchase for cash and was not authorized to buy on credit. He was supplied with money to pay for the cattle, and the agreement into which he entered required immediate payment. When the claimant found that this agreement was not carried out he was bound to notify the principal within a reasonable time. If courts were to allow principals in cases of ordinary litigation to be held liable under such conditions as are disclosed by this case, it would render insecure the whole business of the country. The claimant not having spoken when he should have spoken is estopped from speaking now.

The judgment of the court is that the petition be dismissed.

Weldon, J., did not sit in this case and took no part in the decision.  