
    ISAAC G. BAKER v. THE UNITED STATES.
    [No. 15608.
    Decided May 15, 1893.]
    
      On the Proofs.
    
    The claimant contracts to furnish and deliver cattle at the Port Peck Indian Agency for the subsistence of the Indians there, subject to weighing and inspection at the time of delivery. Pursuant to the contract he brings cattle within the reservation before they are weighed and accepted. Some of them are seized and used by the Indians. A voucher is given by the agent and approved by the Secretary of the Interior, but disallowed by the accounting officers.
    I. Where property intended for delivery to the United States under a contract is captured by the public enemy or by Indians before acceptance and change of possession the loss is the contractors.
    II. A statutory obligation to furnish subsistance to Indians must be treated as a legal obligation resting upon the Government, though not one known to the common law.
    TTT. "Where cattle intended for the subsistence of Indians were seized by them while in the contractor’s possession, and the agent treated the seizure as an issue to them and gave a voucher which was approved by the Secretary of the Interior and charged by him to the appropriation for the support of Indians at that agency, the Government acquired a benefit from the transaction, and a contract must be implied under the rule in Solomon’s Case (19 Wall. R., 171.
    IT. Where cattle intended for the subsistence of Indians are seized by them while still in the hands of the contractor the Government has an election either to regard the cattle as not having been furnished and furnish the Indians with others, or to treat the seizure as a quasi delivery for the benefit of the Indians and charge them with the issue.
    
      The Reporter’s statement of the case:
    The following are the facts of the case asfonnd by the court:
    I. On the 21st of June, 1878, the following contract was executed under authority of the appropriation made by the Indian appropriation act for the year ending Juné 30,1879, approved May 27,1878 (20 Stat. L., 63, 83), for “ support and civilization of the Sioux at Fort Peck Agency,” etc.:
    “This agreement, made and entered into this 21st day of June, one thousand eight hundred and seventy-eight, by and between E. A. Hayt, Commissioner of Indian Affairs, for and on behalf of. the United States of America, party of the first part, and Isaac G-. Baker, of St. Louis, Missouri, party of the second part, for himself, his heirs, executors, administrators, and assigns—
    “ Witnesseth that the said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other as follows:
    “Article 1. That the said party of the second part, for himself, his heirs, executors, and administrators, hereby covenants and agrees with the said party of the first part to furnish and deliver at the places herein designated, to such agent or agents of the United States as may be appointed to receive them, beef cattle on the hoof in the quantities and at the prices herein stated, and subject to such inspection by Army officers or otherwise as may be deemed necessary by the party of the first part, as follows:
    
      
    
    “Article 2. That the party of the first part, however, reserves the right to require a greater or less quantity, not exceeding twenty-five per cent in either case, than that specified in said schedule, at the price or prices therein stated, of which increase or decrease in the quantity required reasonable notice shall be given to the party of the second part.
    “Article 3. That the party of the first part agrees to pay, or cause to be paid, to the said party of the second part, his heirs, executors, and administrators, for all the cattle received under this contract, at the rate or price designated in the above schedule, payment to be made on presentation, at the Office of Indian Affairs, of proper receipts, in duplicate, of the respective agents, and certificates of inspection, in duplicate, of inspecting officers when required by thefparty of the first part, after the same shall have been properly approved : Provided, That for all cows delivered under this contract a deduction of twenty (20) per centum on the price stipulated in article one (1) shall be made.
    “Article 4. That the party of the second part agrees to keep beef cattle, as described in article 5 of this contract, in the vicinity of the places of delivery in such quantities as to give assurance of his ability to make deliveries when required; and should he fail to collect such cattle at such points fast enough, or should he fail to deliver them as required, the party of the first part shall have the right to purchase, or cause to be purchased, beef cattle as he may elect, at the expense of the party of the second part.
    “Articles. That it is further agreed by and between the parties hereto that the beef cattle furnished under this contract shall be good, healthy, merchantable steers and cows (no bulls or stags), not over seven years of age,* that they shall be delivered on the Government scales, upon which the weight shall be ascertained (steers and cows to be weighed separately) ; or if weighed together they shall be accepted at an equal average per head for both class, and payments therefor made as described in article three (3) hereof, at the agency aforesaid, at the times and in the quantities required by the respective Indian agent, in charge, upon five days’ notice by said Indian agent to the said party of the second part, or his authorized agents or representatives; that they shall be “lotted” without food or water during the twelve hours immediately preceding each and every delivery; that the average gross weight thereof at each delivery from May 1st to December 1st shall not be less than eight hundred and fifty (850) pounds per head, and from December 1st to May 1st not less than eight hundred (800) pounds per head; that all animals offered under this contract weighing less than seven hundred (700) pounds, gross, or being in such condition as to net less than fifty per centum of their gross weights in good, merchantable beef, from May 1st to December 1st, or less than forty-five per centum in such beef from December 1st to May 1st, shall be rejected (except as they may be received under the provisions of article 6 hereof) as inferior to the requirements of this article.
    “Article 6. That it is also farther agreed by and between the parties hereto that for all the cattle offered under this contract which are not in conformity with the requirements of article 5, but which the respective Indian agents may be compelled by the necessities of the service to receive, there shall be a deduction of one (1) per centum in the price agreed upon in article 1 for each and every five (5) pounds, or fraction thereof, that said cattle so received shall fall short of the standard weights agreed upon in the preceding article. And if the respective Indian agents are compelled by the necessities of the service to receive cattle whose condition as to quality — although weighing the required average, as expressed in article 5 of-this contract — renders them inferior to the requirements of said article,5, then the value of the cattle so received shall .be determined by deducting from the price thereof, as agreed upon in article 1 of this contract, such a percentage as may be agreed upon by the agent and (if practicable) a military officer detailed for that purpose by the commander of the nearest military post, upon the written request of said agent to said commander; tbe said agent and tbe officer so detailed as aforesaid to appoint, in case of tbeir disagreement as to tbe percentage of said deduction, a third and disinterested person to form with them aboard of survey; tbe decision of a majority of such board so constituted as aforesaid to be final and binding on tbe parties hereto.
    “ Article 7. That it is also further agreed by and between tbe parties hereto that if any of tbe cattle offered for acceptance shall fail to conform to tbe requirements of this contract, tbe same, unless received under tbe provisions of article 6, shall be rejected by tbe agent to whom tbe same is offered, who shall have authority to require of tbe said party of tbe second part tbe delivery, within five days after such rejection, of proper cattle in the place of those rejected; and in case tbe said party of tbe second part shall fail to deliver cattle of tbe kind required within tbe said period of five days, then the said party of tbe first part shall have tbe right to purchase, or cause to be purchased, in open market or otherwise, such cattle as may be required to supply tbe deficiency. And it is agreed and understood by the parties hereto that tbe said party of tbe second part and his sureties shall be held accountable, under tbe bond which may be given for tbe faithful performance of this contract, for any excess in tbe cost of tbe cattle so purchased over and above tbe cost of said cattle at tbe price or prices designated in said schedule.
    * * * & * # #
    “Article 12. That this agreement is made subject to tbe approval of tbe Commissioner of Indian Affairs, the Board of Indian Commissioners, and tbe Secretary of tbe Interior.”
    II. In pursuance of tbe foregoing contract tbe claimant brought a large number of cattle in tbe vicinity of Poplar Elver, Montana, Fort Peck Agency, in October, 1878. While they were awaiting inspection and before they were weighed and received by tbe agent, 162 bead, weighing in tbe aggregate 242,550 pounds, of tbe value at tbe contract price of $5,820.33, were stampeded by tbe Indians and driven to tbeir bunting camp on Milk Eiver, where they were killed and used by them, they being Indians of tbe agency. Subsequently tbe following voucher was given by tbe agent and approved by tbe Secretary of tbe Interior, and an account thereon was stated by tbe Commissioner of Indian Affairs, as hereinafter set forth:
    
      “Port Bisnton, M. T., June 20th, 1879.
    “ The United, States to I. G-. Balcer, JDr.
    
    “162 head cattle, 1,497 lbs. each, 242,550 lbs., at 2.40. $5,820.3a
    “Delivered at Poplar River Agency during month of October, 1878.”
    “I hereby certify on honor that I believe the above account to be correct and just; that the cattle were delivered with others in the vicinity of Poplar River, Mont., Ft. Peck Indian Agency, in October, 1878, and before they were weighed and received these cattle were stampeded by the Indians; that the number of cattle claimed for I believe to be correct and that the weight given is the average weight of the remainder of the herd then received and weighed on the agency scales; that the cattle were driven by the Indians to their hunting camp on Milk River, where they were killed. This has been admitted to me since by the Indians engaged in the act through the agency interpreter, and the hides thus obtained have since been offered and sold at different places. And that there is now due the said I. GL Baker, as claimed, the sum of five thousand eight hundred and twenty and dollars ($5,820 j^), and that this certificate is signed by me in duplicate.
    “ff. Bird,
    
      UTJ. S. Indian Agt.
    
    “Ft. Peck Indian Agency,
    
      “Poplar River, M. T., June 20th, 1879P
    
    “Department oe the Interior,
    “ Washington, February 17th, 1881,
    
    “ The Commissioner of Indian Affairs:
    
    “Sir: I return herewith tbe papers which accompanied your letter of the 9th instant in the matter of the application of Mr. Isaac G-. Baker for the settlement of his claim for the value of 162 head of beef cattle taken from his herd while awaiting delivery at the Fort Peck Agency, Montana, and killed by the Indians on the 14th of October, 1878.
    “It appears from your letter that there is no question'in relation to the destruction of the property by the Indians and that the only point to be decided is the value of the cattle. In this view of the case I am of opinion that the average weight of the cattle delivered at the agency from the herd from which the cattle killed and consumed' by the Indians were taken would be the correct basis upon which to frame a settlement.
    “ The average is stated to have been l,497|f pounds per head, and this weight multiplied by the number of cattle found to have been so taken and consumed by the Indians, at the rate per pound allowed under tbe contract, would seem to comprehend tbe amount due Mr. Baker, and a settlement of tbe account upon tbis basis is hereby authorized. .
    “ Yery respectfully,
    “ C. Schurz, Secretary.”
    
    “Department oe the Interior,
    
      “ Oeeice oe Indian Aeeairs,
    
      FeVy 23rd, 1881. ,
    
    “ Tbe within account of Isaac G-. Baker for 162 bead of beef cattle taken by Fort Peck Indians, Oct. 14, ’78, allowed under contract of June 21, ’78, amounting to $5,820.33, allowed by tbis office for tbe sum of $5,821.20, and referred to tbe Second Auditor of tbe Treasury for settlement, charging appropriation “ support of Indians at Fort Peck Agency, 1879,” $5,821.20.
    
      u For authority see letter from Secretary of tbe Interior, herewith inclosed, dated Feb’y 23, ’83.
    
      “ Payment to be made to claimant, care Glum & Dingman, present, and property charged to Agent Bird.
    “Thos. M. Nichol,
    
      “Act’g Commissioner,
    
    
      “ Pugh, Examiner.”
    
    TTT- Tbe claimant’s account as certified by tbe Commissioner of Indian Affairs was not audited and certified by tbe accounting officer of tbe Treasury, tbe rejection of tbe account being upon tbe ground that there bad not been a delivery of tbe cattle in tbe manner prescribed by tbe contract. At that time there remained a balance of tbe appropriation for tbe support of tbe Indians at tbe Fort Peck Agency for 1879 sufficient to pay tbe, amount of tbe claimant’s account, which balance remained unexpended and was turned into tbe Treasury.
    
      Mr. George A. King for tbe claimant.
    
      Mr. John 0. Chaney (with -whom was Mr. Assistant Attorney-General Cotton) for tbe defendants.
    Tbe claimant seeks to bind tbe United States for cattle stolen from him by tbe Indians.
    He does not claim that they were delivered, inspected, and accepted, although be uses tbe term deliver, andbas succeeded in inducing the agent to employ tbe same term in tbe so-called voucher. Bird does not say they were inspected and accepted, however.
    
      There are two parties to this cattle contract. By the contract the claimant was to “deliver” the cattle to the Fort Peck Indian Agency when required. • It was a different kind of a delivery from that of getting the cattle in that vicinity; they were then to be inspected by the other party to the contract, and, if they turned out to be such cattle as were contemplated in the contract, acceptance follows. Claimant’s cattle were not even delivered. They were simply in his herd, collected near to the agency, as required by the contract, to show his ability to perform the contract.
    They were not yet needed at the agency, and no request had been made for their delivery. He was getting ready to deliver when requested to do so. The cattle were not inspected; they were not weighed; they were not received nor accepted. This is an Indian depredation claim, for which provision was made by the last Congress.
   Nott, J.,

delivered the opinion of the court:

In Wilson’s Case (11 C. Cls. R., 513) these facts appeared:

The case, briefly stated, is this: In 1864 a contractor agreed with the Quartermaster-G-eneral to deliver a large number of mules in the city of Washington. He endeavored to perform according to the very'letter of his contract; but when the mules, which he had brought from Kentucky, reached the confines of the city, the capture of Washington by the forces of Early was imminent. The agents of the contractor sought to enter the city and deliver the mules, but were stopped at the picket-line and turned back, under an order of the military governor of Washington, forbidding all persons to approach the defenses or enter the camps. The agents notified the picket-guard that the mules were for the military service of the United States; that they were to be delivered in Washington under a contract; that the enemy’s cavalry was approaching; and they demanded leave to send one of their number to the Quartermaster-General to procure an order for their admission. The request was refused and the mules were captured, and in part lost to the contractor. The question before the court, was, on whom should the loss fall? The court was satisfied that the contractor was acting according to the letter and spirit of his agreement; that his agents did all that men in such perplexities could reasonably be expected to do, and that the contractor would have fully performed all that his agreement required of him if he had not been directly prevented by the military forces of the United States.

Notwithstanding the peculiar hardships of the case and “with a full appreciation of the good faith of the contractor, his diligence and due observance of all the obligations of his agreement,” the court was satisfied, after mature deliberation, that there was no delivery under the contract and that the loss must be ascribed to the act of the public enemy.

In Salomon’s Case (19 U. S. R., 17) a contractor had failed to deliver corn according to the terms of an express contract. The Supreme Court, however, held that there might be a delivery outside of the requirements of a contract, whiph would cast a liability upon the Government.

It is plain, therefore, that in this case there was not a delivery within the intent of the contract. The case indeed is not as strong as that of Wilson, while it bears a very close resemblance to it. The resulting question is whether the Government treated the occurrence as a delivery and derived a benefit from it within the intent of the decision in Salomon’s case.

In the first place there was an obligation on the part of the Government to support certain Indians at the Fort Peek Agency in the Territory of Montana. That this obligation was not one known to the common law and was in the nature of a gratuity is immaterial. It is enough for the purposes of this suit and of the rights of this party that the Government had assumed such an obligation; and it is enough for the executive officers and the judiciary that it was authorized and required by law. To all intents and purposes the Government was bound to supply those Indians at that time with beef, and these cattle had been purchased or provided for that purpose.

In the second place the agent charged with the duty of procuring and distributing supplies treated the seizure of the cattle by the Indians as a delivery. He certified substantially that the cattle came to their possession; that they were taken by the Indians to their hunting camp, and that they derived apparently a benefit from them as if they had been issued through the agency in the ordinary way. The agent also issued his voucher and charged himself thereby with the cattle, and the only way in which, he could obtain a credit for himself in his accounts was to charge them as an issue to the Indians.

In the third place, the highest executive authority, the Commissioner of Indian Affairs and the Secretary of the Interior took the same view of the case and ratified the action of the agent. Mr. Secretary Schurz speaks of the cattle as having been “taken and consumed by the Indians,” and he directs a settlement of the claimant’s account upon the basis of the contract. Pursuant to instructions the Commissioner of Indian Affairs stated and allowed the account under the contract and referred it to the Second Auditor of the Treasury for settlement with the express direction that it be charged to the appropriation for ‘^Support of Indians, at the Fort Peck Agency 1879.” He also directed that the property be charged to the agent. It is impossible to understand how the Department of the Interior could have charged the amount to the appropriation and the property to the agent unless the Indians who took the cattle and who would have been entitled to receive them in due time through the ordinary official channel had been charged with them as a regular issue.

In the fourth place, the appropriation for the support of these Indians for that year was not exhausted; and on the contrary a balance remained sufficient for the payment of this account, which was turned into the Treasury. If these cattle had not been treated as support for the Indians at that agency; if the agent had purchased other cattle to take their place and the appropriation had thereby been exhausted, the case would be different. But as it is now presented it is apparent that the G-overnment had the benefit of the cattle and that the Indians had the benefit of the cattle, but that the contractor who furnished them has been left without redress.

Finally, this is the view substantially which was taken by two Secretaries of the Interior Department and by the Board of Indian Commissioners and by the Comptroller of the Treasury. The last named says: “I entirely agree with the Secretary of the Interior that the claim is meritorious and ought to be paid, and regret that my judgment leads me to the conclusion that there was not such complete delivery of the cattle as would authorize me in certifying a balance.” He also says that the cattle were intended for “ the very Indians who took and consumed them, though not in a lawful manner.” In these conclusions the Comptroller was undoubtedly right. There was not a technical delivery according to the terms of the contract such as accounting officers could recognize and certify; but there was an acceptance and a benefit derived by the defendants which, upon being judicially ascertained, renders them liable to the other contracting party. When the cattle were taken the defendants in contemplation of law had an election, either to regard the cattle as not having been furnished for the use of the Indians and to furnish them with other cattle, or to treat this as a quasi delivery for the benefit of the Indians and to charge them with the issue accordingly. The responsible agent having charge of the matter elected the latter course. His election was ratified by the executive officers who represent the Government as its authoritative agents, and this election now binds the defendants.

The judgment of the court is that the claimant recover of the defendants the sum of $5,820.20.  