
    SHREWSBURY’S CASE. William S. Shrewsbury, appellant, v. The United States, appellees.
    (7 Court of Claims R., p. 374; 18 Wallace R., p. —.)
    
      On the claimant’s Appeal.
    
    
      The Quartermaster Department contracts with the claimant for the transportation of all military stores, for which the Department may require transportation, between Forts Deavemoorth and Union. Subsequently the commissary at Fort Leavemcorth, having to send 18,000 bushels of corn to Fort Union, instead of buying it at Fort Leavenworth and turning it over to the quartermaster ofthe department for transportation in the usual way,buys it at Leavenworth, deliverable at Union. The vendor, not having the corn then at Leavemcorth, borrows it from the Quartermaster Department there, and then transports it to Union. The claimant insists that the transaction is a cover to defraud him of the transportation, and brings his action to recover his profits. The court below decides that the commissary at one post may contract for corn deliverable at another,notwithstanding that the Quartermaster Departments charged 
      
      with the duty of army transportation, and has contracted for all that may he required between the two posts. Also that the fact of the vendor borrowing the corn from the Quartermaster Department to fulfill his contract with the Commissary Department does not render the Government liable. Judgmentfor the defendants. The claimant appeals.
    
    I. Where a contract between A and the Quartermaster Department provides that A shall have all the transportation of military supplies required by the Quartermaster Department between Forts Leavenworth and Union, and a subsequent contract between B and a commissary at Leavenworth provides that B shall^fnrnish corn to the Commissary Department, deliverable at Union, the two contracts are not identical, and the making of the latter and its performance is not a breach of the former, although the vendor of the corn may have borrowed it from the Quartermaster Department at Leavenworth, and delivered it to the Commissary Department at Union.
    II. The duties of the Quartermaster aud Commissary Departments are separate and distinct, and the authority of the officers of each is confined to matters connected with their own Department. An officer of the Commissary Department may buy corn at a certain post, deliverable at another post, notwithstanding that the Quartermaster Department has contracted for transportation between the two posts.
    
      The Reporter’s statement of tlie case:
    The facts found by the court below are sufficiently set forth iu the opinion of the Supreme Court.
    Jir. Thomas J. Durant for the claimant, appellant:
    The QuartermasteCDepartment provides “ all necessary quarters and transportation for all Army supplies, Army clothing, camp and garrison equipage, cavalry and artillery horses, fuel, forage, straw, and stationery.” (2 Stat. L., p. 69G; 5 Stat. L., p. 513.) Iu accordance with these laws, the contract for “ all the military stores and supplies for which the Quartermaster Department may require transportation by contract” was made in due form, of law with the plaintiff. Both the Acts of March 3, 1849, (9 Stat. L., p. 415,) and March 3,18G3, (12 Stat. L., p. 743,) entered into and formed part of the claimant’s contract with the United States. The claimant and all the means of transportation used by him became a part of the military service of the Government, which protects itself, in various ways, by the terms of its agreement, from any loss or damage to the military service arising from the fault of the contractor. We submit pies of public policy tbe whole is void. Here, the agreement that the transportation of the corn in question from Leavenworth to Fort Union belonged exclusively to the Quartermaster Department. The Commissary Department purchases and issues to the Army such supplies as enter into the composition of the ration, (3 Stat. L., p. 437.) Admit that corn, e. g., is an accidental part of a ration, the right to purchase and issue it may be conceded to the head of the Commissary Department, under the direction of the Secretary of War,'(3 Stat. L., p. 437,) provided it be done in conformity to law. And by section 8 of the same act, the officers of the commissariat are forbidden to be concerned, directly or indirectly, in the purchase or sale, in trade or commerce, of any article entering into the composition of the ration. We submit that transportation of the elements of the ration from Leavenworth to Fort Union, 771.89 miles,-is not vested in but excluded from the Commissary Department of the Government, unless expressly authorized by tlie Secretary of War. Hence, the indirect employment of two outsiders to transport the “Army supplies ” of corn, admitting that article to be an accidental element of the ration, was contrary to law, and an invasion of the duties of the Quartermaster Department. But the entire contract made by the Commissary Department with these outsiders is otherwise stricken with absolute nullity. Because there was, in fact, no emergency to justify the contract, more than half of the required corn being on hand and not wanted in the Quartermaster Department at 'the time, and found by the lower court to be loaned to outsiders ; which is, to say the least, a novel disposal of the Government’s property; because no emergency is provided for in cases when the supplies are necessary to feed Mexicans or Indians, especially in times of peace and free intercommunication; no order from the Secretary of War is exhibited; nor can a contract for corn and for its transportation be mixed up together ; nor was the corn bought openly, at the place or in the way it is usually bought and sold; (13 Stat. L., p. 220.) And even if all these objections could be answered satisfactorily, there still remains the contract, call it what you please, a contract of sale, or bailment, or a mere agreement, which, if otherwise binding, is admittedly not a cash transaction at all, in any mercantile or legal sense whatever, but a contract on several suspensive con-diate procurement of supplies can by no reasonable interpretation be made to sanction any such transaction as this on the part of the commissariat; nor can it be validly argued that the corn was not the property of the United States. Part of it was illegally loaned to the outsiders; and about this portion there can be no question. If there was any commixtio, the mass became entirely the Government’s property until the separation was made. The Government treated the whole of it as their property, and took a part of it en route, leaving the outsiders to get their money the best way they could. This is not surprising*, considering* how devious the whole transaction was.
    But whether the whole 18,000 bushels were the property of the United States or not, it is indisputable that the portion of it loaned by the Quartermaster Department to the outsiders remained the property of the Government. The ownership was never clianged. This portion of United States corn, belonging* to the Quartermaster Department, was transported over plaintiff’s route; and no sophistry can elude the conclusion that the defendants should have employed the plaintiff to transport it under their contract with him. Either the loan of the 10,000 bushels was good or bad; if good, the Government could not avoid its transportation by plaintiff without a gross breach of contract; if bad, as it unquestionably was, it defrauded plaintiff, and made the Government liable in damages.
    It is suggested that the case is one governed by the principles of the law of mandate; and this we fully concede. But the legal relation of principal and agent requires both parties honeste vivero, neminem Icedere, suum cuique tribuere. If a principal employed two agents in two distinct and separate spheres of action, he could not, by any devious arrangements between his agents, violate these fundamental principles of justice. The agreement with the outsiders is a mere pretense. ■ The United States officer admits that he knew of plaintiff’s contract with the Government for the transportation. For he specifies its terms, and bases his action in contracting with Fuller & Tier-nan upon an “ emergency,” and “ because it was cheaper.” Where the price of corn is $1.25, and its transportation $7.29 per bushel, a contract to deliver is six-sevenths of it “ transportation” and one-seventh corn; but where the agreement is one-seventh valid, and six-sevenths void, on all well-settled princiditions, and which, has a time or term given or limited for its performance. The law as to emergencies requiring the immesimulates a sale on delivery, when it is mainly a bailment; and by confusing the two, it violates the clear spirit of the law. (14 Stat. L., p. 73, § 3, Act of June 23, 1866.) And as to plaintiff, the agreement is fraudulent; not merely “ evasive anü tricky.” We have exposed the deceitful allegation of11 emergency” when more than half of the ordered corn was in the Quartermaster Department, and was loaned to the outsiders ; but to adopt the doctrine that it is any part of an officer’s duty “ to save money” to the Government by a devious arrangement,is to degrade the science of war and convert its generals into “great arithmeticians.” Such a principle would debase the service and destroy the republic.
    Is it true that the alleged arrangement was made to “ save money” to the Government! The Subsistence Department could make no contract, not even on an emergency, without the order of the Secretary of War. (1 Stat. L., p. 610.) Dnder the facts, there being no emergency, and more than half being Quartermaster corn, loaned under the circumstances illegally, the contract with the outsiders, made without competition or advertisement, gives rise to the presumption of omnia contra spoliatorem, with the additional presumption, that he who is in illegal possession of trust-property will err in the management of it.
    In looking over the argument of the Court of Claims in this case, the erroneous principles ruling it will be readily discovered. We admit that the commissariat and Quartermaster Department are separate and distinct; but we go a step further, and say that they should he kept so. We maintain that the commissariat has no right to make a contract for the furnishing of commissary stores at a given point, when saving money to the United States is the solely-avowed object, and the intended result is a loss to a contractor with the Quartermaster Department. It is impossible to doubt that the commissariat should have abstained from making the contract in question. Dor can the Quartermaster Department set up its act that, not having the corn, it made and could make no requisition for its transportation. Its act was prevention; and prevention is equivalent to performance. (Quotiesper eum, De Reg. Jur., 161.)
    
      
      Mr. Assistant Attorney-General Kill for tbe United States, appellees:
    By tbe statute of 1818, chapter 61, sections 3 and 6, (3 Stat. L., pp., 426, 427,) the Quartermaster Department and tbe Commissary Department are separate and distinct divisions of tbe Army. By tbe express terms of this agreement, tbe claimant only agreed to transport supplies and military stores which be should receive “from tbe officers of tbe Quartermaster Department at Forts Leavenworth and Riley,” and by tbe eleventh article of the agreement Colonel Potter agreed with him that he should “ transport all tbe military stores aud supplies for which the Quartermaster Department may require transportation by contract' on the route specified.” There is nothing to show that the Quartermaster Department had authority to make contracts binding a department of the Army separate and distinct from it. But, independently of this, it must be presumed that the contract was limited intentionally to the supplies which one branch of the Army required; and it would be a violation of all established rules governing a construction of written instruments to hold that the contract, directly contrary to its terms, was to include all the supplies which military officers might require to be transported. Such a construction might, perhaps, be allowable, if it were not possible to give effect to the contract without it. But it appears from the findings of The court below that the Quartermaster Department had furnished the claimant with stores for transportation amounting to-more than fourteen million pounds; so that the Quartermaster Department had substantially furnished all that they were bound to.
    But, besides this, we contend that this was not a contract for transportation at all, but only a contract for the sale and delivery to Government officers at Fort Union of so much grain. And the fact that the Quartermaster Department lent Fuller & Tiernan part of the supplies, in order to help them in the exigency, cannot affect the legal character of the transaction, unless it was collusively done, which is not pretended, the corn having been returned in kind.
   Mr. Justice Hunt

delivered the opinion of the court:

The claimant and Colonel Potter, a quartermaster in the United States Army, on the 27th of March, 1865, entered into a written agreement, whereby it was agreed that the claimant “ shall receive at any time, in any of the months from May to September, inclusive, during the year one thousand eight hundred and' sixty-five, from the officers of the Quartermaster Department at Forts Leavenworth and ltiley, in the State of Kansas, and the town of Kansas, in the State of Missouri, all such military stores and supplies as may be turned over to him for transportation, in' good order and condition, by the officer or agent of the Quartermaster Department, at any or all of the above-named points or places, and transport the same *

* * to the officer or agent of the Quartermaster Department on duty, or designated to receive them, at Fort Union, in the Territory of New Mexico, or any other depot that may be designated in that Territory.”

It was agreed by the eleventh article of that contract that claimant “ shall transport all the military stores and supplies for which the Quartermaster Department may require transportation by contract, on the route specified by this agreement, during the year one thousand eight hundred and sixty-five, provided the weight of such military stores and supplies shall not exceed in the aggregate fifteen million pounds; yet nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service whenever it may be deemed advisable to do so.”

Under this agreement stores were furnished to the claimant by the Quartermaster Department to the amount of over fourteen million pounds, for the transportation of which he was paid. The claimant was prepared with the means of transportation, and ready to transport the remainder of the fifteen million pounds which under the contract he was bound to carry ; but it was not furnished to him for transportation.

On the 29th of September, 1865, Colonel Morgan, commissary of subsistence at Fort Leavenworth, entered into a contract with Fuller & Tiernan to deliver at Fort Union eighteen thousand bushels of corn on or before the 20th of December, 1865.

The essential parts of that contract are in the words following, viz:

“ That the said parties of the second part agree to deliver at Fort Union, in the Territory of New Mexico, eighteen thousand bushels of shelled corn, of the best quality, well sacked in new gunny-sacks, securely sewed with linen twine; said corn must be free from dirt, cobs, or other foreign matter, and must be either yellow or white, but not mixed in the sacks; to be delivered to the officer of the Subsistence Department at Fort Union, N. Mex., on or before the 20th day of December, 1865.

“ The parties of the second part agree that said corn shall be subject to the inspection, acceptance, or rejection of the officer receiving the same, and that if default shall be made by the said parties of the second'part, or either of them, in the time of delivery, or any of the terms of this contract, the party of the first part, or any person acting for him on behalf of the United States, shall have power to purchase the corn in open market, and the said parties of the second part, and their sureties, shall be charged with the difference between the cost thereof and the price hereinafter stipulated to be paid to the said parties of the second part.

“ For and in consideration of the faithful performance of the stipulations of this contract the said party of the first part agrees to pay, or cause to be paid, to the parties of the second part, at the office of the commissary of subsistence at Fort Leavenworth, Kansas, the sum of $8.54 for each and every bushel of corn delivered and accepted in accordance with the terms thereof, in such funds as may be provided by the Government for that purpose, payment to be made on vouchers issued and certified by the officer receiving said corn.”

The claimant insists that the making of this contract by an officer of the United States, in September, 1865, and its performance, constituted a breach of his contract made with Colonel Potter in March of the same year. He claims as damages the profit on the transportation of about 800,000 pounds of corn, which he insists should have been furnished for transportation on his contract, instead of being purchased and delivered under the contract with Fuller & Tiernan.

The Court of Claims held adversely to the petitioner, and dismissed his claim. He now appeals to this court.

» It can hardly be denied by the most zealous advocate that the two contracts before us differ essentially in their nature and form. The contract made with the claimant is a contract for the transportation of corn, at a price fixed, and in quantity not to exceed 15,000,000 pounds. The sole duty of the claimant under this contract was to carry and deliver the corn. He did not purchase it nor own it; be had nothing to do with its value or quality, and could neither make nor lose by a fluctuation in the value of the corn.

The later contract with Fuller & Tierman, on the other hand, is strictly a contract for the purchase of 18,000 bushels of corn, to be delivered at a place and within a time named and at a price specified, to be paid on the delivery and acceptance of the corn. In this case the corn is the property of Fuller & Tiernan until delivered. They purchase it; they own it. If the price of corn in the market varies essentially, they will make a profit or be losers, according as the direction of the variation shall he. Their contract is to furnish the corn at Fort Union, N. Mex., and they are at liberty to obtain it from any source they choose. They have no claim for payment until delivery, and the United States have no ownership of the corn until delivery and payment.

The foundation, however, of the claimant’s demand rests upon the identity of these dissimilar contracts. Having contracted to deliver to him for transportation all the corn of which the Quartermaster Department required transportation from Fort Leavenworth to Fort Union, he insists that this contract is violated by a purchase by the Subsistence Department of the United States, made at Fort’ Leavenworth, of corn to .be delivered by the seller of the same at Fort Union. This view cannot be sustained; there is not only not an identity, but there is not a similarity, between the contracts. The making of the latter contract, and its performance, was not a breach of the former.

It is suggested in the claimant’s brief that the proceeding of the United States in making the contract with Fuller & Tiernan was a device unfairly to evade the performance of the claimant’s contract. No such fact is found by the Court of Claims, and their findings of fact are taken by us to be the facts in the case. We discover nothing in the case that would have justified th# Court of Claims in coming to such conclusion. We should at all times be slow to sustain such an imputation upon the good faith of the Government.

The claimant makes comqflaint that the quartermaster at Fort Leavenworth lent Fuller & Tiernan a quantity of corn to be used by them in performance of their contract of salé with the Commissary of Subsistence; that the loan of corn was illegal, the title still remaining in the United States ; and that this fact furnishes evidence that the second contract was a device and a pretense only. We have only to say, ou this branch of the ease,thattheclaimantisnot invested with authority to supervise the transactions of the different Departments of the Government. Whether the Commissary of Subsistence had authority to malte the contract with Fuller, whether there was an irregularity in the loan of the corn to Fuller, and what was the motive of these dealings, are matters to be investigated by the War Department. They cannot be challenged by the claimant. He rests his claim for damages upon the making and performance of Fuller’s contract. That contract has not been repudiated or objected to, so far as we know, by the proper authority. The record contains no .evidence that any of the transactions are the subject of censure by the Government.

The supplies contracted to be transported by the claimant were those of the Quartermaster Department, that is, the supplies to be used for and by the Army. The corn purchased by the Commissary of Subsistence was sent to New Mexico, not for the Army, but to feed the Mexicans or Indians. The duties of the Quartermaster Department and of the Department of Subsistence are separate and distinct. The Departments are managed by different officers, whose authority is confined to the matters connected with their Departments.

The contract to transport, in the case before us, relates to supplies for the Quastermaster Department. The arrangement which is set forth as a violation of that contract related to supplies needed by the Commissary of Subsistence, a different subject entirely.

The duty of the Commissary Department, in general terms, is to feed the Army, to provide supplies for its subsistence. Transportation is not understood to be among its duties. That office belongs to the Quartermaster Department. What the Commissary provides to feed the Army, it is the duty of the Quartermaster to transport to such points as may be needed. Hence, in the case before us, it was in the ordinary course of business that, the contract for transportation being already made, and further supplies being needed, the purchase of the same should devolve on the Commissary Department.

The judgment of the Court of Claims must be affirmed.  