
    PROVINE’S CASE. James M. Provine v. The United States.
    
      On the proofs.
    
    
      A block of stores, owned by the clamant in Memphis, is taken possession of, in February, 1863, by the military authorities. The buildings are materially altered and used as a hospital. They are held under this seizure until February, 1864, when the quartermaster makes a verbal contract tviih the owners to pay $125 per month for each, and they are borne on Ms returns to the War Department. This rent continues until October, 1864, when 'the quartermaster agrees to increase it to $250 per month. By an error of his clerk the increased rent is not reported anddraivn, and the property is borne on the quartermaster’s returns at the original rate. In March, 1865, that officer’s attention being called to the error, he causes the proper return to be made, and the agreed rent is then paid until May 22,1865. On the termination of the lease the quartermaster advises the owner to restore the buildings as ^ühen they were seized, and recommends the payment of his bill for so doing. The claimant applies to the War Department for the rent withheld from him by the error of the quartermaster’s elerk, and for the expenses he incurred in putting the buildings in the condition they were when taken possession of by the defendants. The claim is rejected, and to recover these sums he brings this suit.
    
    I. Whore a building in Memphis is seized and appropriated by the army as a hospital, and after being so held for a year is rented from the owner by the quartermaster in charge, and properly borne on his returns to the War Department, the rent thereof being paid with theknowledge and approbation of the War Department, the building must be deemed as held under contract, and not by appropriation, and tie court has jurisdiction of an action for a balance of rent notwithstanding the Act 4th July, 1864, (13 Stat. L., p. 381.)
    II. Where a building in Memphis, Tennessee, is held by the government under a lease, with the knowledge and approval of the War Department, and at the expiration of the lease the quartermaster in charge authorizes the owner to repair and make good the injuries done to the building, and the owner does so, the Court of Claims has jurisdiction of an action brought to recover the money so paid, notwithstanding that the damage was done by the army engaged in the suppression of the rebellion, and while the building was held by military appropriation, and notwithstanding the Act 4th July, 1864, (13 Stat. L., p. 381,) which provides that the jurisdiction of the court shall not extend to any claim “ growing out of the destruction or appropriation of, or damage to,property T>y the army.”
    
    
      Mr. T. J. D. Fuller for the claimant:
    On the 13th day of February, 1863, the claimant’s stores, (six in number,) situated in Memphis, Tennessee, were taken possession of by the military authorities of the United States, and converted into military hospitals, and the use so continued to February 1,1864, when a contract to pay rent for the same was entered into between the claimant and the United States, through the agency of the chief depot quartermaster, Captain Eddy, at the monthly rent of $125 per store, and the same was monthly reported by Captain Eddy up to the 1st of October, 1864, when ' he was relieved by Colonel Clary, who reported the stores under rent, monthly, to the Quartermaster General, at the same rate, to March 1,1865; after that he reported the rent, for the remainder of the time of the occupation, at $250 per month, up to May 23,1865, when the stores were surrendered to the claimant.
    
      On' the 1st of November, 1864, Colonel Clary determined to increase the rent to be paid by each of these eight stores from $125 per month to the sum of $250 per month. But the increase of rent, by an oversight and accident of a clerk of Colonel Clary’s, was not reported until March 1, 1865, when the attention of Colonel Clary was called to such omission, which he readily acknowledged, and corrected it from that time forward; but said that he could not correct the omission for the four prior months, for the reason that his reports of property rented had gone forward, without the increase, as intended and determined. The rent from 1st February, 1864, to May 23,1865, was paid claimant, as reported, and it was approved by tbe Quartermaster General.
    Upon tbe surrender of tbe premises in May, 1865, tbe claimant demanded that tbe buildings be placed back in tbeir original condition. Tbis Colonel Clary declined to do, and referred tbe claimant to tbe Quartermaster General, with a recommendation that it should be done; but Colonel Clary recommended that tbe claimant should do it himself, judiciously and economically, taking vouchers of the expense, and submit them to him, which was done.
    Tbe present claim is for rent in arrear, $3,000, and repairs, $4,485.
    Tbe claimant, from February 1, 1864, claims a contract was made with Captain Eddy for rent, at tbe rate of $125 per store per month, and in proof of it be refers to Captain Eddy’s monthly reports from February 1,1864, to October 1,1864, so long as Captain Eddy remained chief depot quartermaster at Memphis, and to tbe subsequent monthly reports of Colonel Clary for tbe remainder of the term tbe stores were occupied, and tbe payment of rent in pursuance of such agreements.
    From November 1,1864, to March 1,1865, be claims rent due by reason of short payments of $3,000; that an agreement was made to pay an increased rent at $250 per month per store, from that date, but by an oversight of a clerk it was not paid at that rate, until March, when tbe proper corrected report of tbe agreement was made, and without making any new agreement, but in pursuance of tbe old one of November 1.
    That tbe claimant was a loyal man, who gave no aid or comfort to tbe rebellion, from tbe beginning to tbe end thereof.
    That tbe necessary expenditure of $4,485, in placing tbe buildings in tbeir former condition, should be refunded to him by tbe United States, as implied from tbe relations of landlord and tenant.
    The'tenant, as a matter of implied contract arising from tbe relation of tbe tenancy, is bound to restore tbe premises in like good order and condition as when taken, ordinary wear and tear excepted; tbe act of God and tbe king’s enemies alone excepted. (Arehbold’s Landlord and Tenant, 177; Wood vs. Pope, 1 Benj. N. C., 467, E. C. L., vol. 12; Hoover’s ease, 3 C. Cls. R., p. 309.)
    
      
      Mr. Alexander Johnston (with, whom was the Assistant Attor'ney General) for the defendants:
    I. There was never any valid lease of the premises for which rent is claimed. No lease could be valid unless approved by the Quartermaster General. It does not appear in this case that even the payment of rent was approved by him. No liability, therefore, was fixed upon the Government. (Filor’s Case, decided at present term of Supreme Court.)
    II. This is a claim growing out of the appropriation and destruction of property by a part of the army engaged in the suppression of the rebellion. Hence this court has not jurisdiction of the case. {Act of July 4,1864,14 Stat. L., p. 381; Ayre’s Case, 3 C. Cls. R., p. 1; also, Mlor’s Case.)
    
   Casey, Ch. J.,

delivered the opinion of the court:

After the occupation of Memphis by the Union army,' and about the 13th February, 1803, a block of eighf stores in that city, six of which belonged to the claimant, and two to a lady of the name of Talbot, were taken possession of by the military, and occupied and used as a hospital. They were held under this military seizure and occupancy .until about the 1st- February, 1864, when Captain Eddy, the depot quartermaster, entered into a verbal contract with the owners to pay them the sum of $125 per month as rent for each store. From this time they were borne upon his monthly abstracts and returns to the Quartermaster General, and the stipulated rent was paid by him, and returns thereof duly made in his accounts current up to October 1,1864. Captain Eddy was then relieved, and Colonel Robert E. Clary succeeded him as post quartermaster at Memphis. He reported the claimants’ stores at the same rent up to March 1, 1865, and from that at $250 per month, until the 22d May, 1865, when they were surrendered, and possession delivered up to the owner.

About the latter end of October,-or first of November, 1864, the attention of Colonel Clary was called to the inadequacy of the rent being paid for these stores by Mrs. Talbot, the owner of two of the eight in the block, with a request that the rent should be increased. Colonel Clary, upon inquiry, determined that the rent being paid by the United States for these stores was mueh below what they could be rented for to private indi-victuals, determined to increase tbe rent to $250 per month for each store; and he directed his clerk to so return them at the increased rent. By a mistake or omission of the clerk, only Mrs. Talbot’s two stores were returned at the increased rent, from November 1,1864, while the claimants’ were borne upon the returns at the former rate of $125 per month. Thesereturns were so continued up to March 1, 1865, when Colonel Clary’s attention was called to the matter by the claimant, when he caused the proper return to be made and paid him at the rate of $250 for each store until their surrender on the 22d May, 1865.

These matters were represented to Colonel Clary by the claimant in December, 1865, and Colonel Clary reported them to the Quartermaster General, as follows:

“Deputy QuabtebMASteb Genebal’s Oeeice,

“Memphis, December 28, 1865.

“The statement within is correct, and it was by an error in omission of my clerk, in not reporting the buildings in question at an increased price, corresponding with that paid for all others of a similar character, that Mr. Provine received $725 per month from his buildings from November 1,1864, to March 1,1865. This gentleman is jn justice entitled to the increased rent for the period stated, and it is respectfully referred to the Quartermaster General for his approval.

“The payment of rent on buildings seized for public purposes on the capture of Memphis was originally determined upon and ordered by the military commander of the district, upon proof of the loyalty of the owners.

“I should not consider it expedient to go beyond this period, or to entertain claims of a prior date.

“The papers in the case are returned.

“Yery respectfully, your obedient servant,

“R. E. CLARY,

“Assistant Quartermaster General.”

The claim for the additional rent was rejected by the War Department.

The claimant also seeks to recover the sum of $4,485 for repairs and alterations required to put the buildings in the same condition in which they were when the United States entered into their occupancy. This claim was also rejected. It is to recover these two sums that the claimant prosecutes this suit.

The claimant proves that he has always borne true allegiance to the United States, and has never given any aid, countenance, or encouragement to rebellion against the same.

And upon the facts so found, the court rule as matter of law—

1. That the property was held under a contract and not by virtue of an appropriation by the army, and that this court has jurisdiction of the subject-matter of the claim.

2. That upon the contract made with the quartermaster, the claimant is entitled to recover the balance of the rent of $125 per month for each store, from the 1st November, 1864, until March 1,1865, amounting to the sum of $3,000.

3. That upon the facts stated, the claimant would be entitled to recover the same amount on an implied contract for use and occupation, if no amount was expressly agreed upon, that being the fair value or rent of the premises.

4. That upon- the facts stated, the claimant is entitled to be repaid the sum necessarily expended by him in putting the premises in the same condition and repair as when the United States took possession of the same. a

5. That upon all the facts stated, the claimant is entitled to judgment for the sum of $7,485. And for this sum judgment is rendered in his favor.

Loring-, J.,

dissenting:

I think the case proved here, and stated in the petition, is, that the premises for which rent is claimed were taken possession of by the military authorities at Memphis, for hospital purposes, on the 1st of February, 1863; and that they were continuously used for those purposes till the 23d of May, 1865, when the United States left them, and surrendered them to the claimant who owned them; that, during such occupation, they were held without rent till February 1,1864; that then the military authorities contracted with the claimant to pay him $125 per month, and on November 1,1864, $250 per month.

Now, whether the original taking possession was the’ capture of enemy’s property or the taking of private property for public use by the United States, by their exercise of their right of eminent domain, it was, in either case, lawful, and vested in the United States a legal title, and a right of possession under that title, for so long as they pleased; and Such title and right of possession were as absolutely vested in the United States, by such capture or taking, as in any case the fee or any other estate could have been by deed.

And I think that while the United States had such title and were holding under it, it was not competent for any military officer to divest them of it, and substitute for it a different title, and a tenure under a contract by lease rendering rent.

If the property was seized as enemy’s property during war, the United States had a right to hold it as such, and without rent, while the war continued; and they abandoned it before the war ended.

If it was, as I think it was, a taking of private property for public use, then the United States would be liable for an indemnity; but the military officers could not fix that indemnity, nor substitute for it an annual rent fixed by them.

And, therefore, I think that the contracts for rent made during the war, and while the property was in the use and needed for the purposes for which it was originally taken, were made without authority and are void, and are to be laid out of the case; so that it remains on the original taking a mere case of capture or an appropriation by the Army, made under the authority of the United States, and so within the statute.

On the whole case I think the defendants are entitled to judgment.

Nott, J., concurred in the. opinion of the court only as to the right of the claimant to recover for the rent of the premises.

Milligan, J., concurred in the opinion of the court only as to the right of the claimant to recover for the repairs upon the buildings. 
      
       The alterations made in tlie Tmildings, whinli rendered these repairs and restorations necessary, were made by the agents and officers of the United States, while the premises were held under the airpropriation or seizure, and before any contract existed for the rent of the premises.
     