
    JOHNSON AND MONTGOMERY’S CASES.
    Cheney Johnson’s Administrator v. The United States. Pearson C. Montgomery v. The United States.
    
      On the Proofs.
    
    
      In August, 1865, the steamer Louis D’Or is on a voyage up the Bed Biver. A quartermaster,pursuant to orders from the general commanding the district, orders the master to proceed above the falls at Alexandria and relieve a steamer there aground, having on hoard Government freight. The master thereupon discharges his own cargo at Alexandria andproceeds to relieve the other steamer. When nearing her, his mvn boat grounds, and he does not accomplish the purpose of relieving the other. The quartermaster gives him a voucher in the usual form “ for three clays’ service of boat as per orders,” $ro. The voucher is not paid, and he brings suit for the service. The quartermaster also, in like manner, employs the steamer National, hut the voucher given to her, though reduced in amount by the Quartermaster-General, is paid.
    
    Where a party by his own contract creates a duty or charge upon himself, ho is bound to make it good. Therefore, where the master of a river steamer is ordered by a quartermaster to relieve a boat aground with Government freight aboard, and he attempts to do so, but grounds his own boat instead, and fails to render a service, he cannot recover, notwithstanding that the quartermaster has given him a voucher for three days’ service while he was aground.
    
      The Reporters’ statement of the case:
    On the 28th of August, I860, it was reported to the military authorities at Alexandria, La., that the steamer Doubloon, laden with commissary stores for that port, was hard aground on the falls above Alexandria, and that if she did not immediately receive assistance the stores would be thrown overboard and the vessel would be a wreck.
    
      General Hawkins, commanding the western district of Louisiana, directed Lieutenant Baltzell, acting assistant quartermaster, to order the first boat that came to Alexandria to render-assistance to the Doubloon.
    Under this order Lieutenant Baltzell issued to Cheney Johnson, owner and master of the steamer Louis D’Or, which arrived at Alexandria on the 28th of August, 1865, with a cargo, on her way from New Orleans to Shreveport, the two following orders
    “ Quartermaster’s Oeeice, U. S. Forces,
    “ Pineville, La., August 28,1865.
    “ Captain steamer Louis D’ Or :
    
    “You will report at this office for instructions before leaving for Shreveport, La.
    “ By order Col. H. Schofield:
    “ S. L. BALTZELL,
    
      “First Lmit. and A. A. Q. ilf.”
    “Quartermaster’s Oeeice, U. S. Forces,
    
      “Pineville, La., August 28,1865.
    “ Captain steamer Louis D’Or.
    
    “ Captain : You will proceed above the falls and report to-the captain of the steamer Doubloon, for the purpose of assisting him in getting his boat off ground, or, failing in that, you will relieve him of part of his cargo; after which you are released from further orders from this office.
    “ By order Col. H. Schofield.
    “S. L. BALTZELL,
    “ First Lieut, and A. A. Q. M.”
    
    Under this latter order the Louis D’Or discharged her carga at Alexandria, and then proceeded up the river about twro miles to the falls, to relieve the Doubloon. The Louis D’Or reached to within about 50 feet of the Doubloon, when the Louis D’Or herself struck upon the rocks and remained there fast, unable-by her own means to get off herself or to render assistance to the Doubloon, until the steamer National, which was coming down the river, came to the assistance of the Louis D’Or and got her off the rocks and afloat, when .the Louis D’Or immediately returned to Alexandria.
    At Alexandria Lieutenant Baltzell gave to Mr. Johnson the-following voucher:
    
      “ The United States to steamer Louis D’Or, Dr.
    
    1865. — For three days’ expense of boat and crew in the relief of steamer Doubloon, above the falls at Alexandria, La., from 3 o’clock p. m. 20th day of August, till 3 o’clock p. m. 31st day of August, I860, at $450 per
    diem.$1, 350 00
    
    For three days’ service of boat as above, per orders of Col. H, Schofield, commanding United States forces at Alexandria, at
    $300 per day. 900 00
    For damage sustained in line, tackle, and block.. 300 00
    Total. 2, 550 00
    “I certify that the above account is correct and just; that the services were rendered as stated, and that they were necessary for the public service, and that the services have been reported by me according to the Army Eegulations, as per my report of “ persons and articles” for December, 1865.
    
      tl SILAS L. BALTZELL, u First Lieut, álth U. S. O. Inf., and A. A. Q. M.”
    
    On the evening .of that day the Louis D’Or, having reshipped her cargo, returned to New Orleans, as the river had so fallen that she could not pass over the falls.
    The time'spent by the Louis D’Or in going from Alexandria to the falls, and in remaining there on the rocks and returning to Alexandria and departing thence for New Orleans, was three days.
    While the Louis D’Or was on the rocks, as above stated, and in attempting to get off, she broke her capstan, and some of her lines and blocks, and injured her nigger-engine, and thus sustained damage to the amount of $300.
    At the time of her employment by Lieutenant Baltzell, as above stated, the Louis D’Or was engaged in a general freighting business from New Orleans to Shreveport, and was not in the service of the United States. The Doubloon was also engaged in such general freighting business on the Eed and Mississippi Eivers, and at the time above specified had on board 400 barrels of hard bread and commissary stores, and the rest of her lading was general freight of individual shippers.
    It was not shown that the orders issued by Lieutenant Balt-zell to the owner and master of the Louis D’Or were objected to by him or enforced against him. And he undertook their execution for a compensation.
    The voucher given, as above stated, by Lieutenant Baltzell to Cheney Johnson was presented by him to the Quartermaster’s Department, and there $600 was allowed and recommended for payment; but it was disallowed and payment refused at the Treasury.
    The National, then descending the river, arrived at the falls, about two miles above Alexandria, and there found fast upon the rocks the steamer Doubloon, which, had some commissary stores on board for the military post of Alexandria, and the steamer Louis D’Or, which had been sent to the relief of the Doubloon by the military authorities at Alexandria.
    Lieutenant Baltzell issued to the master of the National the order following:
    “ Quartermaster's Office, U. S. Forces,
    “ Alexandria, La., August 29,1865.
    “ Captain commanding steamer national.
    “ Captain : You will please assist with your boat, lines, machinery, &c., the steamer Louis D’Or, which is on ground above the falls; you will remain with her, and render her all the assistance you can until further orders.
    “By order of Col. H. Schofield, commanding forces.
    “ SILAS L. BALTZELL,
    “ First Lieut, and A. A. Q. M.”
    
    Under this order the National first got the Louis D’Or and then the Doubloon off the rocks and afloat, and then the National proceeded to Alexandria.
    There Lieutenant Baltzell gave to the master of the National the voucher following:
    
      « Ihs United States to steamer National, Ur.
    
    Sept. 1, 1865. — For services rendered in extricating steamer Louis D’Or from the rocks on tbe falls in Bed Biver, as per order óf Col. H. Schofield, commanding forces, 36 hours, or 14-
    days, $300 per day.. . $450 00
    Expenses of boat at $450 per day... 075 00
    For 'damage in breaking capstan while performing the above service . 150 00
    Also, damage sustained to hawser and rigging. 250 00
    Total.. 1, 525 p0
    « I certify that the above account is correct and just; that the services were rendered as stated, and that they were necessary for the public service, and that the services have been reported by me according to the Army Begulations, as per my report of « persons and articles for the month of December, 1865.
    «SILAS L. BALTZELL,
    « First Lieut, With U. S. Inf., and A. A. Q. MP
    
    The National was paid for her services in getting the Doubloon off the rooks by that vessel.
    The petitioner presented the voucher given him by Lieutenant Baltzell to the Quartermaster’s Department, and the amount due him for said services was disputed, and $600 was ■allowed him and paid him by a draft for which he receipted. The draft has been paid to the petitioner and no more.
    
      Mr. Thomas Wilson for the claimants.
    
      Mr. John S. Blair (with whom was. the Assistant Attorney - General) for the defendants.
   Loking-, J.,

delivered the opinion of the court:

The employment of the Louis D’Or and the National was upon contracts made between the United States and the owners of those vessels respectively, i At the time of their employment the vessels were engaged in a general freighting business for their owners, and were in no way subject to the orders of the officers of the Government. There was' no appropriation of them, in the statute meaning of that word, and no action on the part of the United States was enforced against them. Their service was voluntary and rendered for a compensation, and the claim in each of these cases is correctly described by the learned counsel for the petitioners to be for a quantum meruit.

Upon the facts stated, these vessels]were not in “ the military service” of the United States as those words are used in the Acts ILarch 3,1849, (9 Stat. L., 414,) and its amendment of 1863, (12 Stat. L., 72,) for the employment of the vessels was to get a freighting vessel belonging to a private person off the rocks, and there was no war or enemy at the time and place. In the case of Gutman & Stuart v. The United States (18 Wall., 84, 9 C. Cls. R., 60) the Supreme Court held that transportation under a quartermaster’s contract of ¡military stores from one military post to another in time of war, buthn a peaceful locality and not attending any military expedition, was not a military service within the statutes referred to; and these vessels were not employed even for such service, for all the military stores were carried by the Doubloon, and none by these vessels or either of them. In these cases, therefore, there is no ground of action under the statutes specified.

And these vessels were nob in the possession or control of the United States, but were in the possession and control of their respective owners, by their agents the officers and crews of the vessels; and therefore the vessels were not in any way in the service of the United States, but were in the service of their respective owners, performing for thenUtheir parts of contracts which they had made with the United States.

And where a party contracts for the performance of a service by him for a price to be paid to him, the performance of the service is a condition-precedent to payment, and the costs and risks of performance are his unless otherwise expressly stipulated.

And in the case of the Louis D’Qr, the contract is in writing and cannot be extended beyond ‘its terms against the United States, and was for a specified service, viz, to proceed to the Doubloon and assist her master to get her off the rocks, or, failing in that, to relieve him of part of his cargo. And in these respects the Louis D70r failed altogether. She rendered no service to the Doubloon, for she got upon the rocks before reaching the Doubloon, and after she was got off the rocks by the National she rendered no service to the Doubloon, but abandoned her and returned directly to Alexandria. And we think she is no more entitled to payment for services rendered than, if she had sunk in the harbor of Alexandria before leaving it.

Where the performance of a contract for services is so prevented by the fault of him who was to perform the service that no benefit whatever accrues to t,he other party, he who was in fault can claim nothing on a quantum meruit or any other equitable ground of relief. And the rule is necessarily the same where the performance is so prevented by a risk assumed by him who was to perform the service, for otherwise the risk and its consequences would be shifted from him'to whom it belonged ou to him who was insured against it by the contract, for the price to be paid to the contractor includes the premium for the risks he assumes.

Now, in this case the Louis D’Or was in the possession of the petitioner, and her navigation .was by him, and the risks of that belonged therefore to him, and, whether her running on the rocks was by fault or¡mísfortune, the consequences belong to him, and these prevented any benefit to the United States ; so that as to them there was a total failure of the consideration that induced their contract.

And where, as here, a plaintiff claims upon a contract for services, and at the same time shows that he did not perform the service, the burden is on him at the least to show affirmatively that the non-performance was not owning to any want of care and skill in him. And this the petitioner does not show, for the evidence is that under the same circumstances in which he ran on the rocks the National kept off of them and got him off of them, and, moreover, performed the very service he failed to perform.

The rule of the common law is, and has been for over two centuries, (2 Alleyn, 27,) “that where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity.” And here there was no “inevitable necessity,” for there was no violence of wind or wave, and no sudden or unforeseen peril, but only a low stage of the water belonging to the locality and season, and as patent to the Louis D’Or as to the National, and as familiar to the one as to the other, for the evidence is that both- were vessels employed in freighting on the river.

And in the modern action of assumpsit a claim upon a quantum meruit is for an equitable compensation for a benefit conferred ; and where no benefit is rendered no compensation is recoverable. In Farnsworth v. Garrard (1 Camp., 38) the action was assumpsit and the count was a quantum meruit for building a wall, and the defense was that the wall was so out of the perpendicular that it was liable to fall. And Lord Ellen-borough, in stating the nature of the action, said: “ This action is founded on a claim for meritorious service. The plaintiff is to recover what he deserves. It is therefore to be considered how much he deserves, or if he' deserves anything. If the defendant has derived no benefit from his services, he deserves nothing, and there must be a verdict against him.” And the verdict was rendered for the defendant on the ground ‘that he had received no benefits •, and there, as here, the work was for a thing to be done, i. e., for the job; there the work was ill done, here it was left undone.

If the petitioner is not entitled to recover on the facts of his case and the contract shown, he cannot recover on- the voucher, per se, for then that was given for debt which the United States did not owe, and the officer who gave the voucher had no authority so to do, and was not the agent of the United States for any such purpose.

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

As to the National:

The claim for the National is only for her services in getting the Louis D’Or off the rocks, and for the damages sustained by the National in that; because the contract for the services of the National refers only to the Louis D’Or, and the National has been paid by the owners of the Doubloon for the services rendered to her.

Now, the United States had no pecuniary interest in or responsibility for tbe Louis D’Or; sbe bad no military stores on board belonging to tbe United States, and, as bas been said, sbe was not in tbe posséssion or service of tbe United States, but in tbe possession and service of ber owners, and performing tbeir contract witb tbe United States; and on that contract tbe liability of tbe United States was to pay for services rendered, and nothing more. They were not in any way insurers of tbe Louis D’Or, and if sbe had not been gotten off tbe rocks, but bad perished upon them, tbe loss would not have been that of tbe United States, but of ber owners, for ic res perit suo domino.” And when tbe owners of tbe Louis D’Or undertook tbe service they contracted to perform, they assumed tbe risk of that service for tbe price to be paid for it.

Admitting, therefore, that tbe military officers at Alexandria, on tbe information they bad as to the peril of tbe Doubloon, and as to the military stores on board of ber, and in tbe circumstances in which they were placed, were justified in contracting for assistance to the Doubloon, it does not follow that they bad authority to bind tbe United States to pay for assistance to tbe Louis D’Or, and thus impose upon the United States a liability which belonged to tbe owners of tbe Louis D’Or, and which they bad assumed by tbeir contract.

We think they bad no such authority, and on tbe reasons stated we decide that tbe contract between Lieutenant Baltzell and tbe owner of tbe National, for tbe relief of tbe Louis D’Or, and tbe voucher given upon it, are of no legal validity, and not binding on tbe United States.

Tbe judgment of tbe court is that tbe petition be dismissed.

Nott, J.,

dissenting:

It is true that when a man agrees to do a specific thing for a specific price, tbe law regards him as warranting tbe accomplishment of tbe undertaking, and that be can recover nothing until tbe work be done. But it is also true that when one man engages tbe services of another, the law pays some attention to tbe circumstances of tbe case, and to tbe calling, profession, or trade of tbe party employed, assuming, in tbe absence of an express agreement to tbe contrary, that tbe compensation is tO' be such as is ordinarily given to persons of like occupation or pursuits. Thus, if 'I send a wrecker to help my stranded vessel, tbe law will imply that he is engaged upon the usual terms that regulaté such employments, and that he cannot recover unless he renders assistance, and then that his compensation will be salvage and not a per diem. So if I engage an artist to paint my portrait, he cannot recover for half the value of the picture if it be but half finished. But if I-hire a gardener to grow my vegetables, or a laborer to dig my cellar, it would be no defense for me to say that the one had failed to make a crop or the other had been prevented from digging the cellar by a substratum of rock which he should have foreseen when I employed him.

In the case now before the court, the Louis D’Or was neither a wrecker nor a lighter. She wras a frieght and passenger steamer plying on the waters of the Bed Biver, and then pursuing her usual avocation. She was one of a class of vessels whose employment is universally compensated under an entirely different principle than that which governs the compensation of wreckers. Furthermore, she -was on her upward trip, and her master had not seen the stranded steamer and was entirely ignorant of the condition of affairs and of the extent of the risk which he is held to have covenanted to assume. There is no allegation by the defendants, nor finding by the court, that he was guilty of fault or negligence; so the question is simply one of construction. It is undeniable that the master might have agreed to take the risk of his vessel’s failure to render assistance, or that the quartermaster might have stipulated that the compensation should be contingent upon success, but, in the absence of any such express agreement or stipulation, I do not think that the law will thrust any such implication into the case. A wrecker would be held t'o have taken the risk without express agreement, because it is a wrecker’s business to take such risks. An ordinary river-going craft should not be held to have impliedly assumed such a risk, because ordinary craft do not take such risks as a matter of business, and, when employed by other persons than their owners, are compensated by the day or month.

In this case it also appears that the contracting parties did not fall into any difference of interpretation of their agreement. The quartermaster recognized the fact that he had interrupted a steamer’s passage in order that she might do the Government a service, and he did what seems to me a very sensible and just thing, he computed the fair value of her time, and gave the owners the usual voucher for a service rendered. The owners accepted the voucher and seek to recover upon it. The terms of the employment were at best doubtful, and the case is in this particular like Garrison’s, (7 C. Cls. E. p. 78,) where an ordnance officer gave vouchers according to his and the contractor’s interpretation of the agreement, and this court saw fit to award, to the contract an entirely different and more restricted construction, and the Supreme Court reversed its decision.

I think that the claimants should recover for their services rendered the amount fixed by the quartermaster who employed them.

As to the steamer National, the voucher given by the quartermaster, though reduced in amount by the Quartermaster-General, was paid; and I agree that the claim, being unliqui-dated and fairly disputable, was compromised and finally settled by the payment and receipt in full.  