
    WILSON’S CASE.
    Joseph Wilson v. The United States.
    
      On the Proofs.
    
    
      During the war a contractor agrees with the Quartermaster-General to deliver a certain number of mules in Washington. When the mules {brought from Kentucky) reach the confines of this city, its capture by the rebel forces is imminent. The contractor seeks to enter and deliver the mules, but is stopped under a general order of the military governor. The picket-guard is notified that the mules are for the Government, and that the enemy’s cavalry is approaching, but nevertheless will neither permit the mules to enter nor allow a messenger to be sent to the Quartermaster-General. In consequence of this hinderance a portion of the mules are captured. The Quartermaster-General compels the contractor to procure and deliver the full number specified in the contract. Ke brings his suit for those captured. The court finds as a fact that he did all that he could be reasonably expected to do amid the circumstances, and that he would have performed all that his agreement required if he had not been directly prevented by the military forces of the defendants.
    
    I. The double character of the Government as contractor and sovereign cannot be lost sight of in any of its transactions. ’ For the acts of its contracting agents, within the scope of their authority, it is liable as a contracting party. For the general acts of a military officer acting for the public defense it is not liable as a contracting party, though the acts operated as an interference, and directly prevented the performance of the contract.
    II. The principle laid down in Jones Broion’s Case, (1 C. Ols. K., p. 383,) that the Government as a contractor cannot be held liable for the public acts of the Government as a sovereign, and that whatever acts- the Government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct, or violate the particular contracts into -which it enters with individuals, extends to the case of a contractor who has done all that he could reasonably be expected to do amid the circumstances toward delivering his mules to the Quartermaster-General, and who would have performed all that his agreement required if he had not been directly prevented by the military forces in forbidding him with all others to enter the agreed place of delivery.
    III. Where goods are captured in transitu, the loss must fall upon him in whom the property is; and the court cannot look beyond the proximate cause, though the capture was directly caused by the military forces of the defendants hindering the contractor as he was in the act of delivering his goods according to the terms of his agreement to the contracting agents of the Government.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    1. On the 2d day of July, A. D. 1864, the claimant entered into a written contract with the defendants, through the Quartermaster-General, for the sale of 500 mules, to be delivered in the city of Washington, D. O.; 200 in five days from that date, and the balance, 300, within twenty-live days from said date, at $170 each, to be paid by the defendants therefor; which contract was made by letter from the claimant to the Quartermaster-General, and the answer thereto signed by “ D. H. Eucker, brig, gen., Q. M.,” both of which are set forth in full in the petition.
    2. The 200 mules mentioned in the contract were delivered within the five days agreed upon, were accepted by the defendants, and have been paid for.
    3. On the morning of the 12th of July, 1864, the claimant had at Beltsville, in Maryland, about ten miles' from the city of Washington, 170 mules, which he had brought from Kentucky, uuder the charge of his mule-drivers, for the purpose of delivering them to the defendants under his contract. An agent of the claimant drove 52 of those mules toward Washington, and arrived at the picket line between 6 and 7 o’clock in the morning, said picket-line being four or five miles from the city mule-corral. The soldiers on picket-duty refused to allow the mules to be driven into the city, or to allow the agent and driver to go in, saying that they had positive orders to let no one come in or go out. The soldiers were acting under. the following military order:
    [General Order No. 22.]
    “ Headquarters Mil. Dis. oe Washington,
    
      u Washington, D. 0., July 12, 1864.
    “ Having been assigned, by order of the Secretary of War, to act as provost-marshal of the forces in and around Washington, it is hereby ordered that no person not in the military service shall be allowed to approach the lines of the defenses surrounding the cities of Washington and Georgetown, or to enter the camps of the forces therein, without a permit signed by or by the order of the major-general commanding the department or the Secretary of War.
    “Any person so offending will be arrested, and his horses, vehicles, or other property seized and condemned to military use.
    “M. N. WISWELL,
    “ Military Governor and Provost-Marshal.”
    The agent informed the pickets that the mules were Government stock, and asked them if he could send a man into the city to get a pass to take the stock in, and they said he could not. Thereupon the agent drove the mules back to Beltsville, arriving there between 10 and 12 o’clock of the same morning. There he found another mule-driver of the claimant by the name of Bowden preparing to start for Washington with the remaining 118 m ales, and informed the latter that it was useless for him to try to go on, as the pickets had positively refused to let Kim go into Washington with the mules he had; and for this reason Bowden did not go with the 118 mules he had in charge up to the picket-line on that day.
    4. On consultation among the claimant’s employés, after the return of his agents with the mules from the picket-lines, it was decided that Bowden should go to Washington the next morning by the railroad, and obtain a pass to admit the mules into the city. Bowden went to Washington accordingly on the morning of the 13th of July, obtained his pass, and returned to Beltsville about noon of that day.
    5. On said July 13, General Johnston, of the Confederate army, commanding a cavalry force, occupied the same ground at Beltsville and vicinity that had been previously occupied by the Federáis, and about 1 o’clock p. m. of that day captured all of the one hundred and seventy mules which the claimant had at that, place, including the fifty-two which the Federal pickets had refused to allow to be driven within the lines the day previous.
    6. Had it not been for the action of the Federal pickets in refusing to allow the claimant’s agent to drive said mules into the city, all of said one hundred- an d seventy mules would have been delivered to the defendants in Washington on the 12th of July, before the Confederate cavalry could have captured them.
    7. The claimant immediately notified the Quartermaster-General of the loss and capture of hi s mules by reason of the refusal of the pickets to allow them to be driven into the city, claimed pay for them, and asked to be relieved from further delivery of mules on his contract; both of which requests were refused. The claimant at his own expense recaptured from the rebels eighty of his said mules, but lost the remaining ninety, which the rebels drove away, and appropriated- to their own use, and which were of the value of $170 each, the contract-price.
    8. The claimant delivered to the- defendants, within the time specified in the contract, said eighty mules so recaptured from the rebels, and the remaining number required by the terms thereof, and fully complied with his agreements therein contained.
    9. On the 29th of December, 1874, Congress passed the following act:
    
      “ An ACT referring the ease of Joseph Wilson to the Court of Claims.
    
      u Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of Joseph Wilson, for compensation for mules captured by the rebels in July, eighteen hundred and sixty-four, in consequence, as he alleges, of the refusal of the pickets of the Army to allow him to pass within the lines and deliver the mules to the Government on his contract, be, and the same is hereby, referred to the Court of Claims for its decision according to the law and practice of that court in such cases and proceedings.
    “ Approved December 29, 1874.”
    The court also, at the claimant’s request, found the following additional facts:
    
      1. The ninety mules captured, and for which payment is claimed, were in description suitable to comply with the terms of the contract.
    2. The Government retained $500 on the payment of each one hundred mules received, including the first four hundred, and refused to pay the claimant any portion of this $2,000 retained pay, unless he would deliver the last one hundred mules.
    3. The agents of the claimant in charge of the mules at the time they tried to force them into the city past the picket-line informed them of the close proximity of the rebel cavalry and the great danger to be apprehended; if the mules were turned back they would be captured by the rebel forces, and, if so, the Government would be held responsible for the loss.
    4. The place to which the agents of the claimant took the mules after they were refused permission to drive them into the city was the nearest one to the picket-lines that could have been selected by them, and the nearest safe and convenient place for corraling them for the night.
    
      Mr. T. J. I). Fuller for the claimant:
    As a matter of law, where a party to a contract for the delivery of specific articles, at a time and place, does perform, or offers performance to the extent the other contracting party will permit him, it is performance. At all events, it does not lie in the mouth of the objecting party to allege non-performance as an excuse from just liability. If the mules had been driven in and accepted, their subsequent capture would have been the loss of the Government. And we claim, if not obstructed, the mules were to have been, and would have been, delivered on that day, (the 12th of July,) and consequently would not have been captured. That their capture was the natural and approximate consequence of refusing us permission to bring them in, as we had the lawful right to do, on the 12th, there can be no doubt.
    If the Government, by way of defense, shall rely upon the General Order No. 22, as a necessary and proper means of defending the city from the capture it was threatened with, we have this to say, in reply: our complaint is the refusal of the Government to allow the mules to come into the city when we tried to get them in. We introduce the order and rely upon it only so far as may be necessary to show that our exclusion was the act of the Government, and not the unauthorized act of lawless individuals, not acting under color of authority. But we further say it could not have béen the intention of the Government to exclude the mules from coming into the city as a means of defending the city, for' it was the very material it needed for the defense of the city. It could not have been the intention of the Government, as a means of defense of the city, to exclude the mules and allow the rebels to capture them, for that would weaken the Government and strengthen the rebels to an equal extent.
    The exclusion of the mules and their consequent capture was the result of the order, though perhaps not intentional on the part of the Government. Bow, will the court permit the Government to shield itself from liability under cover of an order, because in terms it embraced an act within its letter, but not within its spirit and meaning? The court full well know that military subordinates are taught and required to obey orders literally. They are not permitted to judge what is embraced in the spirit of an order. No sensible man can say that these mules, when driven up to the picket-lines, as it is shown they were, should have been turned back; yet these pickets, for so doing, had the justification of the military order promulgated on that day.
    These orders should have been so given, so worded, and so executed to work no injury to the contracting parties. We insist it is just and reasonable that losses and misfortunes should as well fall upon the Government for the omissions and commissions of its regularly-constituted agents, rather than upon zealous and worthy contractors who exercise the utmost diligence and care.
    
      Mr. A. D. Robinson (with whom was the Assistant Attorney-General) for the defendants:
    No damages can be recovered against the Government as a contractor, resulting from an order as sovereign, particularly in time of war. This principle has been recognized by this court over and over again; no reference to cases is necessary.
    Neither claimant nor his agents exercised due diligence in tbe delivery of the captured mules, under the circumstances, and therefore he cannot recover. They knew that the rebels were about, and would, of course, capture mules, if they could get them. Claimant was therefore bound to extraordinary diligence.
    There was never any pretense of tender of any but the fifty-three mules, and more than that number is proved to have been recaptured and received, and therefore claimant cannot, recover, because all that he tendered were received.
    The claim is and must be based entirely upon the contract. What claimant did was either a tender of the fifty-three mules or it was not. If it was a tender, claimant should have relied and insisted upon it, and not furnished any others in their stead. Having furnished others and completed the contract in that way, he admits that it was not a sufficient tender, and therefore cannot recover.
    The principle decided in case of Gibbons (7 C. Ols. R., 105) is conclusive against the defendants on this point. (See Grant v. United States, 7 O. Ols. R., 53.)
    In the last case the court says: “ Whether there are equities in this particular case, and if so, whether they require that the claimant should be re imbursed in whole or in part for the capture of his property under the circumstances, are questions that must be addressed to Oongress, for it is not the province of the judicial department of the Government to determine them.”
    This is undoubtedly the true doctrine in all- such cases. The case is sent here to be decided “ according to law.” Act approved December 29,1874.
   Nott, J.,

delivered the opinion of the court:

The case, briefly stated, is this: In 1864, a contractor agreed with the Quartermaster-General, 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 is, on whom shall this loss fall ? The court is 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.

The first case in this court where the public acts of the Government were set up as a breach of a contract was that of Dem-mg, (1 C. Ols. R., p. 190.) The alleged interference was by the legislative branch of the Government. The contractor had agreed to furnish certain articles to the Government which could only be procured by importation. Between the making of his agreement and the time fixed for performance, Congress imposed an additional duty on all such articles, and the contractor set this up as a breach or interference which had cast additional expense upon him in the performance of his contract. The court held that the general enactments of Congress are not to be construed as evasions of a particular contract; that a contract between the Government and a private party cannot be specially affected by the enactment of a general law $ that such a statute bears upon such a contract as it bears upon all similar contracts between individuals, and affects it in no other way; and that the Government as a contractor is not responsible for the Government as a law-giver.

The question in another form was again presented in the case of Jones & Brown, (1 C. Ols. R., p. 383.) There the acts complained of were by the executive branch of the Government, and consisted in the withdrawal of troops from the Indian country, and the consequent inability of the contractors to complete a public survey. The court extended the rule in Deming’s Case to executive as well as legislative acts, and held that it is a principle, applicable to all cases, that the United States as a contractor cannot be held liable for the public acts of the United States as a sovereign, and that whatever acts the Government may do, be they legislative or executive, so long as they are public and general, cannot be deemed specially to alter, modify, obstruct, or violate the particular contracts into which it enters with individuals.

Notwithstanding the peculiar hardships of the case now before us, and with a full appreciation of the good faith of the contractor, his diligence and due observance of all the obligations of his agreement, we are satisfied, after mature deliberation, that it cannot be distinguished in principle from those which have been cited above. In the recent decision in the Sot Springs Gases it was held that the Government might acquire a vested right under a statute as a third person “ in its corporate or proprietary, as distinguished from its legislative, character. (10 C. Cls. P., p. 370.) This double character of the Government cannot be lost sight of in any of its transactions. The Quartermaster-General was the contracting agent of the United States, and bound the corporation. For his acts, within the scope of his authority, the Government, as a contracting party, is liable. But neither the Quartermaster-General nor any of his assistants, nor any other contracting-agent of the Government, interfered with the claimant or prevented performance on his part. The military governor of Washington, on the other hand, was not a contracting-agent of the Government, and his acts were limited strictly to the public defense. He did not interfere with this contractor as such. His order was general, applying to all persons, and affecting the claimant precisely as though he had contracted with any private corporation. It has been repeatedly held in this court, and often reiterated by the Supreme Court, that the Government, as a contractor, can be held to no greater liability than other contractors ; and that seems decisive of the case now before us; for the Government, as contractor, did nothing which would have cast a legal liability upon any other contractor.

We have reached this conclusion irrespective of the decision of this court in Grant’s Case, (1 C. Cls. R., p. 61,) and its affirmance by the Supreme Court. (7 id., p. 53.)

There it was held that where goods are captured in transitu the loss must fall upon him in whom the property is; that a court cannot look beyond the proximate cause of loss, notwithstanding that the Government, as contractor, had so hindered and delayed the claimant as to bring his goods within the danger which occasioned the loss. Applying that case to this, it is evident that the'claimant could not-recover for his mules captured by the public enemy. His damages, at most, would be limited to the direct expenses occasioned by such delay.

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