
    LOVETT’S CASE.
    (9 Court of Claims R., p. 479;
    — U. S. R., p. —.)
    Charlotte Bostwick, administratrix, v. The United States.
    
      On both parties’ Appeals.
    
    
      The Government wishes to rent Kalorama. The owner being requested, offers by letter to lease it “for the purposes of a hospital;” the terms $550 a month for three years to ith the option of three more, “the buildings tobe kept in repair hy the Government, aud to be left in as good repair as ordinary wear and tear will permit.” The commanding officer to whom the offer is addressed, in response, orders that the premises be rented “oh the following terms,” viz, $500 a month, for one year with the option of at least three. The order is silent as to the proposition of the owner. He puts the Government in possession. Subsequently the house is used as a militm'y small-pox hospital; the dead are buried there, waste is committed, and finally the house is destroyed by fire. Before the expiration of the first year the Government reduces the rent to $250 a month, but the landlord accepts amd regularly receipts in full therefor. The court below decides that the premises loere let on the terms of the letter, except as modified by the (yrder; that the obligation to keep in repair made the tenant liable for the loss by accidental fire ; that the use of the premises as a burial-ground was an injury for which the tenant is liable; that qmmises leased for a military hospitalmay beused as h military small-pox hospital; that the acceptance of payment and giving receipts in full-bar u suit for the portion of the rent withheld. Judgment for the claimant accordingly. Both parties appeal.
    
    I. Where a contract is entered into hy correspondence, the whole correspondence must be considered in determining- what the parties have agreed upon; but both must assent to a proposed agreement before either is hound.
    II. Where the owner oifers by letter to lease property on certain terms, and a military officer orders that they be rented on “the following terms,” differing in several particulars from those proposed, and the owner puts the Government in possession, it will he held that the order was a new offer in toto, and not a modification of that proposed hy the landlord.
    
      III. In every lease there is, unless excluded by the operation of some express covenant, an implied obligation on the part of the lessee so to use the property as not unnecessarily to injure it, and to exercise reasonable care to prevent damage to the inheritance.
    IV. Where the Government is tenant, it is bound by the same implied covenants against waste that would bind an individual.
    V. Where the Government rents by express agreement for a year, absolutely, with the option of three more, a reduction of the rent for the first year must be by express agreement founded upon anew consideration. A receipt in full for the reduced rent will not bar a recovery for the portion withheld. But for the subsequent years, when the Government was not bound to keep the premises, acceptance of the reduced rent and giving receipts in full will conclude the landlord.
    
    VI. The use of a building as a military small-pox hospital which has been let for the purposes of a military hospital is within the scope of the lease.
    VII. Though there is in every lease an implied covenant against voluntary waste, there is no implied obligation on the tenant against accidental . damages; and where there is no express obligation to repair, there is no implied obligation to rebuild in case of accidental fire.
    VIII. The destruction of trees, fences, and walls, the quarrying of stone, or the excavation of gravel by the tenant, is voluntary waste, for which the Government, as tenant, may be held liable.
    IX. Damages done by the Army engaged in the suppression of the rebellion, while the Government occupied premises without an express lease, are withheld from the jurisdiction of the Court of Claims by the Act iih July, 1864, (13 St,at. L., 381;) but damages done by'soldiers to the premises, while the Government was in possession under an express lease, rest, upon contract, though the lease contain no express covenant against waste or injury to the premises; of such the court has jurisdiction under the Court of Claims’ Act, (10 Stat. L., 612, § 1.)
    
      The Reporters' statement, of the case:
    The, court below found the following facts:
    That the petitioner, as trustee of Mrs. Louisa Fletcher, was, on the 17th day of August, 1861, seized in fee of said premises, containing about ninety-one acres; a dwelling-house with wings, measuring in all 150 by 40 feet; a large stable, and a frame building; with a garden, lawns and walks, a fence all around the premises, and a substantial wall, about a quarter of a mile long, from Rook Greek to the lodge-gate on Boundary street, and trees of various kinds, and shrubbery.
    In consequence of application made to him for the lease of the premises to the United States for a hospital, by General Mansfield, the petitioner authorized the writings hereto annexed, and marked 1 and 2.
    
      So. 1.
    “GENERAL: Inclosed is a note of terms for the mansion and lower grounds of Kalorama.
    “The upper grounds contain about seventy acres, which may be occupied by the quartermaster for horses and wagons, or whatever else may be desired, at the rent of $100 per month.
    “ Respectfully,
    “CHARLES P. FLETCHER,
    “ For Thomas B. Lovett, Trustee.
    
    “To General Mansfield, B. (?.,
    Eo. 2.
    “Kalorama, August. 17, 1861.
    “ General Mansfield : ■
    “ Sir: I offer to the Government, for the purposes of a hospital, that part of the place known as Kalorama, comprising the house and porter’s lodge, together with about thirty acres of land immediately surrounding and including both sides of Rock Creek, bordering the same, upon the following terms:
    “The lease to be for the term of three years, with the privilege to the Government to renew the same for three years louger, at the same rent, $450 per month.
    “There will be left in the building a portable furnace and hall-stove for the use of the Govern ment. It will be stipulated that the trees and shrubbery on the grounds shall be strictly protected, and any unnecessary injury to the same to be compensated for by the Government, the buildings to be kept in repair by the Government, and to be left in as good repair as ordinary wear and tear will permit. The grounds having already been occupied by troops, and the fence thereby destroyed, it is expected that the Government will renew them, and leave them in good repair at the expiration of the term.
    “Very respectfully, yours, &c.,
    “ CHARLES F. FLETCHER,
    
      " For Thomas B. Lovett, Trustee.”
    
      And thereafter General Mansfield issued the following:
    No. 1.] “Headquarters Department op Washington,
    “ Washington, August 17, 1861.
    “ As soon as .vacated, within two weeks, the United States will hire the whole property of’ Tho's. R. Lovett, trustee of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot, and all his land & privileges, for $500 per month for the period of one year, with the privilege of keeping it at least three years, if desirable, for all purposes.
    “ MANSFIELD, B. <?., cfec.”
    And sent it to the petitioner.
    Under the agreement above made the United States entered upon and occupied the said premises, specified in General Mansfield’s order, from August 23,1861, to September 30,1867, inclusive.
    For rent of said premises the United States paid to the said Lovett $500 per month from August 23,1861, to June 30, 1862; and for each monthly payment the petitioner signed a receipt in the form a copy of which is hereto annexed, and marked “ Receipt Éo. 1.”
    
      Receipt Wo. 1.
    [No.. 97. Abstract B, third quarter 1862.]
    “ The United States to Thomas R. Lovett, trustee, Dr.
    Dollars. Cents.
    “ 1862. For rent of Kalorama, occupied as hospital, from June 1st to June 30, 1862, at $500 per month.-. 500
    “ Copy of deed filed with volume 180, fourth quarter 1861.
    “ See report of persons and articles for June, 1864, page 4.
    “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.
    “E. E. CAMP,
    “ Captain, A. Q. M.
    
    “Received, at Washington, D. O., the 15th of July, 1862, of Capt. E. E. Camp, assistant quartermaster United States Army, the sum of five hundred dollars and cents, in full of the above account.
    “THOMAS R. LOYETT, Trustee
    
    (Duplicate.)
    
      And for rent of said premises the United States paid to the petitioner $250 per month from July 1, 1862, to February 1, 1865; and for each monthly payment the petitioner signed a receipt in the form annexed, and marked “ Receipt Ho. 2.”
    
      Receipt No. 2.
    [No. 60. Abstract B, October, 1862.]
    “ The United States to Thomas R. Lovett, trustee, Dr.
    
    Dollars. Cents.
    “1862. For rent of Kalorama, occupied as a hospital and. camp-grounds, from July 1 to September 30, 1862, at $250 per month.. 750
    “ Copy of deed filed with volume) 180, fourth quarter 1861. “See'report of persons and articles for September, 1862, page 3. *
    “ 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.
    “E. E. CAMP,
    
      “Captain, A. Q. M.
    
    
      ■ “Received, at Washington, D. O., the 9th October, 1862, of Capt. E. E. Camp, assistant quartermaster United States Army, the sum of seven hundred and fifty dollars cents, in full of the above account.
    “THOS. R. LOYETT, Trustee”
    
    (Triplicate.)
    And from the 1st of February, 1865, to September 30,1867, inclusive, the United States paid to the petitioner for rent of said premises $200 per' month; and for each payment the petitioner signed a receipt in the form annexed, and marked “Receipt No. 3.” ♦
    
      Receipt No. 3.
    
    [Ho. 66. Abstract B, September, 1867.]
    “ The United States to Mr. Thomas R. Lovett, trustee, Dr.
    
    Dollars. Cents.
    “1867.
    “ Sept. 30. For rent of Kalorama, as hospital and camp-ground, from September 1, 1867, to September 30,1867, one month.. -. 200 00
    
      “ I certify that the above account is correct and just; thatthe services were rendered as stated ; and that they were necessary for the public service.
    “A. P. BLUNT,
    
      “Brvt. Ool. tfc A. Q. M., U. 8. A.
    
    “Received, at Washington, D. 0., the 30th of September, 1867, of Bvt. Ool. A. P. Blunt, assistant quartermaster United States Army, the sum of two hundred dollars and cents, in.full of the above account.
    “THOS. R. LOVETT, Trustee»
    While the United States occupied the premises, from August 23,1861, to September 30, 1867, the main house was burned, the flower-garden and shrubbery were destroyed, three and one-half miles of fence torn down; a brick wall fifty feet long, nine feet high, and thirteen inches thick, was torn down,'and the bricks used, partly for pavement and partly for building a lime-house, where the United States put clothes,for purifying them; and some sheds were torn down. The part of the house not burned, about fifty fee.t long, was greatly damaged, and the glass, with the sashes, were carried away. Ornamental and shade trees of various kinds were cut down, a stone wall was taken down and most of it carried away, and stoue was quarried' and gravel dug from a stone quarry and a gravel-pit on the premises and carried away; and the premises were left in a dilapidated condition, and the house unfit for occupancy’; and to have restored the building and premises to their condition when leased, reasonable wear and tear excepted, would have cost $20,000.
    The stone quarried and carried away by the U nited States amounted to 2,327 perches, and was worth 25 cents per perch. $581 75
    The gravel dug and carried away by the United States amounted to 2,347 yards, and was worth 21-jL cents per yard. 509 20
    Thestone wall taken down and carriedaway amounted to 505 perches, and was worth $3.50 per perch ... 1, 767 00
    The extent and valuation of the damage to the part of the dwelling-house not burned, or to other buildings, the number or the value of the trees cut down, the value of the brick wall or fence destroyed, and the disposition of a fire-proof safe, boiler, stove, and heater were not shown.
    Two regiments of the Army of the United States were, previous to said written contraét by them, encamped on the northern part of said premises, and thereou and during such occupation, previous to said contract, about fifteen hundred trees were cut dowu and a portion of the fencing destroyed by the soldiers of said regiments.
    All the injuries to said premises during the occupation thereof, or of any part thereof, either previous to or during said written contract, were done by the military forces of the United States engaged in suppressing the rebellion, and who were encamped on the premises previous to said written contract, or who occupied them under said contract.
    The dwelling-house was used by the United States for a smallpox hospital, and the grounds as a camping-ground for soldiers. Seven or eight soldiers who died were buried on the place; and since it was vacated by the United States, September 30,1867, it has not been rented.
    At the time the dwelling-house was burned it was insured by the .¿Etna Insurance Company anti the Firemen’s Insurance Company on two policies of $5,000 each. Those companies adopted as their highest rate of insurance on buildings three-fourths of their cash value. The amount of the insurance, $10,000, was paid to the petitioner for a total loss.
    On the 21st of December, 1868, the petitioner presented for payment to the United States the following account or bill, marked “Bill.”
    
      Bill.
    
    “ The United States to Thomas B. Lovett, trustee, Dr.
    
    “ 1867.
    Octo. 1. To rent of Kalorama from August 23,1861,
    A1. A2. to October 1,1867, 73 months 8 days, at
    $500 .,. 36, 645 16
    By cash on account.. 19,295 16
    Balance... 17,350 00
    Yo. 1. Damage to outbuildings.'.. 3,300
    2. Do. “ stable. 200
    1 & 2. Do. “ lodge. 100
    
      B. C. D. Value of stoue taken from the quarry, 6,659 pr., at 25 cents.•. 1, 664 75
    B. O. D. Valúe of gravel taken from the pit, 2,347 yards, at 30 .. 704 10
    2. 4. Trees destroyed. 800
    B. D. Stone wall taken, 505 perches, at $5.. 2, 525
    
    2 5 & 4 1,000 panels of fence.,. 1,000
    Fire-proof safe. 60
    Boiler.*.,. 30
    Stove ... .:. 33
    Heater . 95
    - 218
    27, 861 85
    “ E. & O. E.
    “JHO. D. McPHERSOH,
    
      “Attorney, &c.
    
    “December 9, 1868.”
    On February 8,1870, the following notice, marked “Hotice,” • was sent to the petitioner:.
    
      Notice.
    
    “ War Department,
    “ Quartermaster-General’s Oepice,
    
      “ Washington, I). G., February 8, 1870.
    “ Thomas B. Lovett, Esq.,
    
      " Washington, I). 0.:
    
    “ Sir: Vou are respectfully informed that your claim as trustee, &c., of the premises known as ‘Kalorama,’ in this District, has this day been referred to the Third Auditor of the Treasury for the payment of $21,040.42.
    “ Very respectfully, your obedient servant,
    “By order Acting Quartermaster:General,
    “ JAMES A. EKIH,
    “ Deputy Quartermaster-General,
    
    
      Brevet Brig. Gerül U. 8. A.
    
    “ 120-103 Claims.”
    The facts following were requested by the petitioner.
    In October, 1867, the claimant made out and presented to the Secretary of War the following claim:
    
      “77. S. to Tkos. It. Lovett, trustee., Dr.
    
    “1867.
    Oot. 1. To whole amount of rent, according to contract, from August 22, 1861, to October 1,1867, 73 months 8 days, ® $500 per month. 36, 645 16
    Less amount received, from August 23, 1861, to July 1, 1862,. <® $500 per month .... 5,145 16
    From July 1,1862, to January 31,1865, ® $250 per month. 7, 750 00
    From January 31, 1865, to October 1, 1867, @ $200 . 6, 400 00
    —- 19,295 16
    Balance. $17,350 00
    To estimated cost of rebuilding burnt portion of mansion .... 16,300
    Less insurance. 10,000
    - 6,300 00
    To estimated damage to outbuildings and wing, independently of fire. 3,300 00
    To damage to stable.. ... 200 00
    To damage to-lodge .......... 100 00
    To value of stone taken from quarry, (2,327 perch). 581 75
    To value of gravel taken from pit, (2,777 yards)__:. 833 00
    To damage to hill in consequence of digging gravel. 500 00
    To trees destroyed.. 800 00
    To cost for replacing stone wall on Boundary street, (420 perch). 1,310 00
    To 1,000 panels rail-fence. 1,000 00
    To tire-proof safe. 60 00
    To copper boiler. 30 00
    To hall-stove. 33 00
    To portable heater. 95 00
    $32,493 25”
    
      Which was by the Secretary indorsed as follows :
    (Indorsed:) “28-l-’70. 12.a Kalorama. Referred to the Quartermaster-General for investigation and report.
    “EDWIN M. STANTON,
    “ Secretary War.
    
    “FEBRUARY 12, 1868.”
    On this claim the Quartermaster-General reports as follows:
    “ Quartermaster-General’s Oepioe,
    
      “Washington} D. 0., November 11, 1869.
    “Hon. Wm. W. Belknap,
    “ Secretary of War, Washington, D. 0■:
    
    “Sir: I have the honor to return the inclosed claim of Thomas R. Lovett, trustee, &c., for rent and repair of premises known as ‘Kalorama,’ in this city, and for gravel, stone, &ci, stated at $32,493, referred to this office from the War Department for further report, in connection with the additional evidence presented, and to invite your attention to the full abstract of the case herein.
    “ I consider the order of General Mausfteld taking possession, aud directing a monthly payment of $500, and the fact of the claimant receiving and receipting for this amount, sufficient evidence of a contract or lease, and therefore recommend that rent be paid from August 23, 1861, to October 1, 1867, 73 months 8 days, at $500 per month, amounting to $36,633.33, subject to the deduction of all sums which were paid the claimant for the use of the premises daring United States occupancy.
    “It is evident from the abstract that injustice was done the claimant in the previous recommendation of Acting Quartermaster-General Rucker, as to the allowance for gravel taken and used.
    “I recommend that Mr. Lovett be paid for 2,777 yards (60,250 bushels) of gravel-, at the same rate as that allowed by the War Department in the Dennison’ case, viz, one (1) cent per bushel, amounting to $602.50.
    “So much of General Rucker’s recommendation as is for repairs, $2,300, and for 2,327 perches of stone, at 25 cents per perch, amounting to $581.75,1 recommend to be adhered to.
    “Yery respectfully, your obedient servant,
    “J. Ü. MoFERRAN,
    “ Deputy Quartermaster- General,
    
    
      “Acting Quartermaster-General.”
    
      This report being examined by an officer of the War Department, he made a report to the Secretary, concluding with the following recommendation:
    “As to the items mentioned in Mr. Lovett’s proposition as being in the house, a fire proof safe, copper boiler, hall-stove, &c., and for which an aggregate charge of $281 is made, Messrs. Allen and Yeatman say that they are unable to' determine whether the responsibility for these rests with the Quartermaster’s or Medical Department, and the Quartermaster-General does not ask authority to pay them. It is considered, however, that, the responsibility of the Medical Department being a matter of doubt, they should be paid for by the same Department as the rest.
    “It is recommended, therefore, that the Acting Quartermaster-General be directed to make the payments recommended in his letter of November 11, 1869, and to pay, in addition, the sum of $218 for the items last referred to.”
    Upon which the' Secretary of War indorsed as follows:
    “Approved:
    “WM. W. BELKNAP,
    “ Secretary of War?
    
    Whereupon the Quartermaster-General wrote to the claimants as follows:
    “ WAR Department,
    “ Quartermaster-General’s Office,
    “ Washington, D. 0., February 8, 1870.
    “ Thomas L. Lovett, Esq.,
    “ Washington, I). C.: .
    
    “Sir: You are informed that your claim as trustee, &c., of the premises known as ‘ Kalorama,’ in this District, has this day been referred to the Third Auditor of the Treasury for the payment of $21,080.42.
    “ Very respectfully, your obedient servant,
    “ By order of the Acting Quartermaster-General,
    “ JAMES A. EKIN,
    “ Deputy Quartermaster-General,
    
    “ Brevet Brigadier-General, U. 8. A.
    
    . “Allowed on request of petitioner. E. G. L.”
    
      That the accounting officers of the Treasury disapproved of the recommendation of the War Department and rejected the claim except as to the sum of $5,159.99, of which action the claimant was duly advised.
    That the following letter was received by the Quartermaster-General :
    “Washing-ton, January 31,1868.
    “ To Brig. Gen. Rucker, A. Q. M. G.,
    “ Washington, D. C.:
    
    “General: In reference to the accompanying account, I would respectfully state that the place known as ‘ Kalorama,’ lately occupied by the Government, (a plat of which accompanies this communication,) comprises about ninety acres of land. It was hired on the 17th day of August, 1861* by Brigadier-General Mansfield, on the part of the Government, as an hospital and catnp-grouuds, by written contract, at a monthly rent of $500; of which contract the following is a copy :
    “‘Headquarters Dep’t op Washington,
    
      111 Washington, August 17, 1861.
    “‘As soon as vacated, within two weeks, the United States will hire the whole property of Thos. R. Lovett, trustee of Mr. ‘Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot and all the land and privileges, for $500 per month for the period of one year, with the privilege of keeping it at least three years, if desirable, for all purposes.
    ‘“MANSFIELD,
    
      “‘Brigadier-General, dbcS
    
    “ Possession of the premises was given on the 23d day of August, and, ou the 10th day of October following, the contract was filed in the office of Gapt. E. E. Camp, A. Q. M., and by him entered on the roll by order of Brigadier-General Van Vliet.
    “I am, respectfully,
    “THOS. R. LOVETT,
    “ Trustee, &e., Mount Airy, Philadelphia, Pa.”
    And the court below decided as conclusions of law—
    That the letter of Charles Fletcher for Thomas R. Lovett, trustee, dated August 17, 1861, addressed to General Mansfield, as qualified by General Mansfield’s reply dated August 17,1801, and with that, made a contract of lease subsequently acted on by the parties, by the terms of which the United States were bound to repair the premises in case of their damage by fire, and to release them in as good repair as ordinary wear and tear would permit.
    That under said contract and under the tenancy between the parties the United States were liable for injuries to the'premises, in the nature of waste.
    That the claimant is not. entitled to damages for the use of the premises as a small-pox hospital by the United States.
    That the claimant is barred of all claims for reductions of rent by his receipts in full given for such rents.
    That the United States were not entitled to be credited with $10,000 paid to the claimant by insurance companies on policies ofassurance obtained and paid for by him for his benefit.
    That the report of the officers of the Quartermaster’s Department that $21,040.42 were due to the claimant, approved by the Secretary of War and ratified by the War Department to the claimant, was not binding and conclusive on the United States.
    That the.claims of the petitioner for loss by fire and damage by acts of waste were not barred by the statute of limitations.
    
      Mr. John D. McPherson for the appellant, Lovett:
    Out of the relation of landlord and tenant there arises on the part of the tenant an implied contract to use the leased premises in a tenant-like manner. It arises, notwithstanding that in the articles of agreement there is an express stipulation to leave the premises in the same state as they were at the commencement of the tenancy. (White v. Nicholson, 4 Man. & Gr., 95 j 43 E. O. L. Rep., 58.) But it does not arise when the tenant holds under an express contract which provides for the very matter — beeping the premises in tenantable repair. (Stan-den v. Christmas, etc., 10 Adol. & Ell., U. S., 135; 59 E. O. L. Rep., 135.) Nave v. Berry (22 Ala., 382) was an action of assumpsit upon a lease of a tavern-building, which was by an assignee of the lessees used as a ladies’ seminary, and while so used was destroyed by fire. Lessor contended that such use was not authorized by the lease. The court held that- it .was, the lease simply designating it as the old tavern-building, and containing no stipulation as to its future use.
    
      The court have found that the United States held the premises from August 23,1861, to September 30,1867, under an agreement in writing reserving a rent of $500 per month, and that this rent was not paid, but only a smaller sum was paid aud receipted for in the terms stated in the finding. The petition averred that under an order of the Secretary of War, aud without the concurrence of the claimant, the monthly payments had been reduced to $250 and afterwards to $200, and the court, finding that these amounts had been receipted for as the monthly rents, ruled that such receipts barred all further claims. It is conceded that such receipts would be evidence tending to show that the original contract had been changed or modified, but the court did not consider them in such light, but, finding in effect that the contract of lease remains unchanged, rule that the receipt of $250 was a satisfaction of a debt of $500.
    Such is not the law. “ The payment of a part of a debt is no legal satisfaction of the debt, although the creditor receive the smaller sum in full discharge of the whole demand and give a receipt accordingly.” (Ohitty Oont., 578, and cases cited.)
    There are no facts in this case to bring it within the adverse ruling of this court in the cases of Adams v. The United States and Child v. The United States.
    
    
      Mr. Assistant Attorney-General Smith for the United States :
    What is the contract made between, these parties 7 In what papers, if any, is it to be found ?
    We say it was completed by the verbal or implied assent of Lovett to the proposition contained in General Mansfield’s letter of August 17, 1861; while the claimant is supported by a majority of the Court of Claims in his effort to bring into the case his own letter of that date to General Mansfield, and to make its contents part of the contract, so far as not palpably and directly repugnant to those found in General Mansfield’s letter.
    We consider Mr. Lovett’s letter of August 17, 1861, “ a mere offer, not assented to,” which, (as Story says,) “ constitutes no contract; for there must.be not only a proposal but an acceptance thereof.” (Story on Con., § 490.)
    Mr. Lovett proposed to lease a part of the estate, to wit, 30 acres, with house and lodge. General Mansfield did not consent to take a part on any terms, but would take the whole, consisting of 90 acres. Lovett offered it for hospital purposes. General M. proposed to take it for all purposes. The owner desired to lease this part for three years, with right of renewal for like term, at $450 a month. General Mansfield would hire the whole for but one year certain, at $500 a month, with right to retain it three years, if desirable.
    Lovett sets up a contract, containing these special terms, with the United States. Then the burden is upon him to prove it by satisfactory evidence. If, after adducing all he has, the thing is left in doubt, even then he cannot recover; certainly not where the natural implication of the language uséd by the United States is against him. “There must be a distinct acceptance of the terms offered” to bind the other party. (Andrews v. Garrett, 6 C. B., (N. S.,) 269; Tuttle v. Love, 7 Johns-., 471.)
    .Story states precisely the doctrine which we believe applies here: “ § 503. But if a proposition be made with certain conditions or limitations the acceptance' must correspond to it in terms, or otherwise it will be considered a new proposition, requiring the subsequent .assent of the other party to render it binding.” (1 Story on Con., (5th ed., 1874,) 455 ; ¡¡Haymaker v. Irwin, 4 Whar., 369; Soneyman v. Marryatt, 6 House of Lords Oas., 112.)
    General Mansfield’s letter was no lease at all. It is a misnomer to call it so. It merely proposed to the owner terms upon which the Government would (if those terms were assented to) occupy the estate. A lease is given by the landlord to the tenant as evidence of the latter’s right to enter upon and retain possession of the demised premises, not a letter from one proposing to become a tenant if his wishes are acceded to. A tenant’s letter cannot possibly be construed as a lease; certainly, then, the letter of a person proposing an occupation in the future cannot be. ■
    Lovett’s assent to the proposal made its terms those of the holding, but did not make the letter a lease; the letting was verbal. Under the first section of the statute of frauds it was a mere tenancy at will. There was no liability to rebuild in case of fire. (Taylor’s Land. & Ten., 101, § 146; Leach v. Thomas, 7 Carr. & P., 327; Horsefall v. Mather, Holt, 7; JBroum'v. Grump, 1 Marsh., 567 ; Book v. Worth, 1 Yes., sr., 462; Wainscott v. Silvers,- 13 Ind., 497; Warner v. Sitchins, 5 Barb., 666.) The court rested this liability upon the erroneous assumption that the property was occupied under an express agreement to repair, agreeably to the contents of Mr. Lovett’s letter of August 17, 1861.
    The stipulation for rent at $500 was positive only for one year, to be continued for three more, if desirable. It was paid for that year, except for July and a fraction of August. To avoid a return of the premises to him at the expiration of the year the claimaut assented to a reduction, commencing before the year closed ; and after its expiration, and when the three years additional had nearly passed, to a further reduction.'
    Whatever his motive, he is bound by his assent, especially as the Government continued an optional occupancy upon the faith of his acquiescence. (United States v. Clyde, 13 Wall., 35.) ■
    The Court of Claims apparently adopts claimant’s assumption that the property was taken “ for hospital purposes,” notwithstanding General Mansfield’s rejection of that limitation, and declaration that if taken it will be used u for all purposes,” including those of a hospital.
    It was for a soldiers’ hospital; to receive those sick of such diseases as troops are exposed to, of which small-pox is oue of the most common.
    
      
      Tbis ^vas the precise ground taken by the Court of Claims in Clyde's Case, (5 C. Cls. R., 134,) and overruled by tbe Supreme Court on appeal, (7 id., 262,) on the ground that the matter had beeD “disputed.” See &'illiman's Case, (post.)
    
   Mr. Chief-Justice Waite

delivered-the opinion of the court:

In the determination of this cause it is necessary at the outset to ascertain definitely the terms of the contract under which the United States occupied the property of the petitioner. On the one hand, it is claimed that the proposition of Mr. Lovett was accepted by General Mansfield with modifications, and that all stipulations suggested by him are included in the contract' as finally entered into, unless modified or rejected in terms by th^note of General Mansfield. On the other hand, it is contended by the United States that the note of General Mansfield, instead of being an acceptance of the proposition, was a rejection of it, with an offer of new terms, which, when acceded to by Mr. Lovett, embraced all there was of the contract as made. The latter, we think, is the true construction of the correspondence. We know that when a contract is entered into by correspondence the whole correspondence must be considered in determining what the parties have agreed to, but we also know that both parties must assent to a, proposed agreement before either is bound by it. Here General Mansfield has nowhere indicated a willingness to accept any of the terms offered him, bnt, rejecting all, has made a new offer of his own. No reference whatever is made by him to any of the special stipulations suggested by Mr. Lovett. All these are laid aside, and he states the terms upon which the United States will hire the property. The words “ as above,” where they occur in his note, are used to designate the- property, not to extend the offer. In short, Mr. Lovett proposed his terms, and General Mansfield his. Mausfield’s were accepted, but Lovett’s were not.

This being the case, the contract is one by which Mr. Lovett agreed to let, aud the United States to hire, the premises described for the term of one year, with the privilege of three, at a rent of $500 a month, and without restriction as to the use to which the property might be put. The United States agree to nothing in express terms except to pay rent and hold for one year.

But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not unnecessarily to injure, it, or, as it is stated by Mr. Comyn, “to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the willful or negligent conduct of the lessee.” (Com. Land. & Ten., 188.) This implied obligation is part of the contract itself, as much so as if incorporated into. it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. (Holford v. Dunnett, 7 M. & W., 352.) It is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs as far as possible. (Horsefall v. Mather, 7 Holt, 9; Brown v. Crump, 1 Marsh., 569.)

There are in this contract no stipulations to taire the place of or in any manner restrict this implied obligation on the part of the United States growing out of their relation to the petitioner and his lessees. They had the free^nd unrestricted right to use the property for any and all purposes, but were bound to so conduct themselves in such use as not to cause unnecessary injury. Whatever damages would necessarily result from a use for the same purpose by a good tenant must fall upon the lessor. All that the relation of landlord and tenant implies in this particular is that the tenant while using the property will exercise reasonable care to prevent damage to the inheritance. His obligation repts upon the maxim,sie títere tuo, ut alienum non ladas. If he fails in this, he violates his contract and must respond accordingly.

The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. No lease in form was ever executed in this case, but the contract, followed by the delivery of possession'and occupation under it, is equivalent, for the purposes of this action, to a lease duly executed containing all the stipulations agreed upon.

Such being the agreement of the parties, it remains only to consider the questions arising under it as they appear in the record.

1. As to the rent. The United States hired for a year absolutely, at the agreed rent of five hundred dollars a month, and occupied during the whole of that term. They therefore, by their agreement, were expressly bound to pay rent at that rate for the whole of the year. This they have paid in full to June 30, but after that, until the end of the year, August 23, 1862, their payments have been only at the rate of two hundred and fifty dollars a month. Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration. It is not found that there was any new consideration in this case. All that appears is that an account was made out for the rent from July 1 to September 30, at the new rate, and that this account was receipted by Mr. Lovett after payment. Upon this finding, therefore, in the absence of anything more showing that the reduction in the rent of the first year was part of the agreement to.continue the lease beyond the year upon the new terms, the petitioner will be entitled to judgment for rent at the rate of two hundred and fifty dollars a month from June 30 to August 23, 1862, that being the balance remaining after deducting payments made.

After the end of the first year the case is different. The United States were not bound absolutely to keep the premises for a longer term than one year. After that they could make new terms or leave. The acceptance by Mr. Lovett of the. reduced rates from that time, without objection, is conclusive evidence of his assent to a modification of the original agreement in this particular, in consideration of the continued occupancy by the United States. Having thus secured the occupancy, he cannot now object to the agreement under which it-was obtained.

2. As to the use for a small-pox hospital., Mr. Lovett originally offered the property to the Government for the purpose of a hospital,” and all the receipts for the rent expressly state that the property was beiug so occupied. No objection to such an occupancy was ever made, and, if there was nothing more, the presumption would be that the lessor expected the property was to be used for any and all hospital purposes that the.necessi-tiesof the Government for the time being might require. But the note of General Mansfield is broad enough to cover such an occupancy, for he expressly states that the hiring is to be for all purposes.” No recovery can be had upon this specification of claim.

3. As to the destruction of a part of the buildings by fire. There was, as has been seen, qo express agreement to repair in the lease. The implied obligation is not to repair generally, but to so use the property as to make repairs unnecessary as far as possible. It is in effect a covenant against voluntary waste, and nothing more. It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild if the buildings are burned down or otherwise destroyed by accident. In this case it has not been found, neither is it claimed in the petition, that these premises were burned through the neglect of the United States. . No judgment can, therefore, be rendered against the United States on this account.

4. The destruction of the trees and fences and the digging and carrying away of gravel and stone. Whatever injury was done to the property during the occupation, previous to the agreement for the lease, cannot be recovered for in this action. Mr. Lovett’s proposition included an undertaking on the part of the United States to make good this loss, but his proposition was not accepted, and the case stands as if it had never been made. The obligations of the United States under the lease, as to the preservation of the property, relate only to the condition of the premises as it was when the term commenced. All damage done before that is clearly “ damages ■ * * by the Army and Navy * * # engaged in the suppression of the rebellion,” and on that account not recoverable in the Court of Claims. (13 Stat. L., 381.) But damages after the lease commenced, and while the United States were actually in possession under it, occupies a different position. That comes within the contract by which the rights of the parties in this action are to be determined. As has been seen, that does not bind the United States to make good any loss which necessarily results from the use of the property, but only such as results from the want of reasonable care in the use. It binds thenti not to commit waste or suffer it to be committed. If they fail in this, they fail in the performance of their contract, and are answerable for that in the Court of Claims, which has jurisdiction of “all claims founded upon any contract, express or implied, with the Government of the United States, which may be suggested to it by a petition filed therein.” (Rev. Stat., sec. 1059,• 10 Stat. L., 612, § 1.) If there had been in this lease an express agreement to repair, certainly it could not have been succ essfully claimed that the Court of Claims would not have had jurisdiction to award damages for a failure to rebuild after the fire, even though the fire was caused by the soldiers while in the hospital for treatment. But the implied obligation as to the manner of the use is as much obligatory upon the United States as it would be if it had been expressed. If there is a failure to comply with the agreement in this particular it is a breach of the contract for which the United States consent to be sued in the Court of Claims. All depends upon the contract. Without that the jurisdiction does not include actions for damages by the Army. With it, damages contracted against may be recovered as for a breach of the contract.

It appears in the finding that during the occupancy under the lease ornamental trees were destroyed, fences and walls torn down, and the materials used for sidewalks and the erection of other buildings, or carried away, and that stone was quarried and gravel dug from a stone-quarry and gravel-pit on the premises and taken away. This was voluntary waste and within the prohibition of the implied agreement in the lease. For this the Court of Claims can award compensation in this action. The amount of this damage has not been found.

5. The account as stated in the Quartermaster-General’s office. This does not conclude the United States. It was a mere adjustment of the accounts by oue of the bureaus in one of the Departments of the Government rejected by the accounting-officers of the Treasury, and never paid. Certainly this can have no binding effect upon the United States.

The judgment of the Court of Claims is reversed, and the cause remanded with instructions to render judgment against the United States for the rent of the premises from June 30 to August 23,1862, at the rate of two hundred and fifty dollars per month, and for the damages done «to the property other than the destruction of the house by fire during the occupation of the United States under their lease, except to the extent that the same necessarily results from the use of the premises by the soldiers of the Army of the United States for the purposes of a hospital and camp-ground.  