
    CLYDE’S CASE, (2d.) Thomas Clyde v. The United States.
    
      On the Proofs.
    
    
      27le owner executes a charter-party to the United States of the steamer Itebecca Clyde, at the rate of $300 per day, commencing on the 26th day of October, 1863. On the 19th of December, 1863, the quartermaster who executed the ■charter-party is notified by the Quartermaster General that the rate of compensation will be reduced from the 29th day of December, 1863, but the amount ■of reduction is not specified. The oioner is notified on the 23d of December, '1863. Me offers to reduce the rate to $200 per day from the 29th of December, 1863, if the vessel be employed four months. Mo answer is given. The vessel is ■continued in the service until the 23d of February, 1864, when she is discharged .at the reguest of the owner, who is paid at the rate of $300 per day up to the 2d 
      
      of January, 1864, and from that time to the 23d of February following $200 pen' day. He accepts this, and executes his receipts in full for the service of' the steamer.
    
    
      On the 15th of March, 1863, the owner executes a charter-party of the steamer Mmil-ie-to the defendants, fixing the compensation at $350 a day. On the 22d of April,. 1863, the master of the steamer is notified that the rate must be reduced to $175 a day, to talce effect from the 9th of April, or the vessel will be discharged the-service. On the same day the master offers to reduce the rate to $300, to take effect on the 5th of May, on condition the vessel is retained in the service four-months. This offer is declined on the 22d of June. Thereupon the discharge of the vessel is demanded, but she is detained by military authority until the 15th of July. The defendants pay for the service of the vessel up to the 5th of May $350 a day, as fixed in the charter-party ; from that time until the discharge of the vessel the reduced rate proposed by the master of $300 a day, which amoiintthe mover accepts and receipts for it in full, and malees no further claim-for remuneration.
    
    A majority of tlie judges are not agreed on any legal principle involved in tlie case, t>ut concur in holding that the claimant should not recover.
    
      Messrs. Ghipman & Ilosmer for tbe claimant:
    The petition contains two counts:
    1st. Claiming $6,550 due for unlawful reduction of charter of steamer Eebecca Clyde.
    2d. Three thousand seven hundred dollars due for a similar-reduction in the charter of the steamer Emilie.
    The claim, as set forth in the first count, is briefly stated from the proofs, as follows: That petitioner was, on the 26th day of October, the owner of the Eebecca Clyde; that on that day she was chartered by the Quartermaster’s Department for the military service, at the rate of $300 per day; that she was-discharged February 23d, 1864; that in December, 1863, the-Quartermaster General ordered the charter rates to be reduced to $200 per day; that the owner protested against the reduction, unless the government would continue the charter four months; that the vessel was discharged less than two months, after said reduction took place.
    The record shows, substantially: That Thomas Clyde was, on. the 5th day of March, 1863, the owner of the steamship Emilie that on that day he chartered her to the United States, at a rate of $350 per day; that the steamer remained in service until the 19th day of July, 1863; that on or about the 9th day of April, in the same year, the Quartermaster General ordered tbe pay of the steamer to be reduced to $175 per day; that tbis petitioner, tbroug’b his agent, protested against the reduction, but did agree, in a letter, to accept $300 per day, if the government would keep the boat in service four months, dating from May 5th, 1803.
    It is suggested by the Quartermaster General that the charter-party was void, having no revenue stamps affixed. Upon what ■evidence this statement is made does not appear. The expression used by the Quartermaster General would indicate that he .referred not to this particular charter, but to charter-parties •made about that time. When he made his returns to this court he did not have the charter-party of the Emilie before him; •although he was called upon for a copy, he suggested that it might possibly be obtained from the Comptroller.
    We believe it has been held by the revenue department that ■contracts at this time made with the government did not require revenue stamps. In any event, however, the government never, ■until in this return of the Quartermaster General to this court, .pretended to impeach the validity of a charter for the reason •now given; besides, the government always treated that char'ter-party as in full force until the vessel was discharged, and if the charter is now to be held void, we shall rely upon quantum meruit alleged in the petition and fully proved.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants :
    
      As to the Rebecca Clyde. — It is claimed that the government never accepted the terms proposed by Clyde; did hot take his vessel for four months at $200 per day. The government certainly retained his vessel at the rate stated. That she was not retained four months is explained by the testimony of the claim-ant’s only witness. He says: u I was authorized, by Mr. Clyde to go to Milton Mead and have her discharged from the Quarter- ■ master’s Department, if possible. On account of the lowness of the charter-party, and on account of the worms in that region •at that season, we were anxious to get her back into our own service again. I effected her being ordered home for discharge.”
    
    
      As to the Emilie. — It is argued that the only terms upon which the government could reduce the rate fixed for this vessel was by accepting tbe proposition, and take the vessel for four months. This proposition was made on the 22d of April, 1863. The •claim for $300 per day continued to be disputed, and was not allowed or settled till December, 1863. Then the department agreed to pay it, and the claimant agreed, by his receipt, (dated December 31,1863,) to receive it in full of the account.
    
    There ivas no valid contract to pay the claimant the sum of $350 per day. There was no express contract to pay him anything. The charter executed by Colonel Biggs was void: first, because it was not approved by the Quartermaster General ; and, second, because there was no internal revenue stamp affixed to it, as required by the act of July 1, 1862, section 94, (Stat. at Large, vol. 12, p. 475.)
   Casey, Ch. J.,

opinion:

This case embraces two separate and distinct claims. These claims arise upon two several charter-parties with the United States, made at different times, and for the hire of different vessels.

The first claim set forth in the petition is for a part of the hire of the steamer Bebecca Clyde, and the proofs in the case show the following leading or ultimate facts:

The charter-party is dated on the 4th November, 1863, to take effect on the 26th October, A. D. 1863 — the day the vessel entered upon service. So far as is material to this case, the charter-party provided for the payment to the claimant of a compensation, the full and just sum of $300 per day for each and every day said vessel may be employed, and will furnish all fuel necessary for the navigation of the said vessel, until the said vessel is returned to the said party of the first part, in Philadel-delphia, in the same order as when received, ordinary wear and tear, damage by the elements, collision at sea and in port, bursting of boilers, and breakage of machinery excepted.” “Payable to the order of Thomas Clyde, at the quartermaster’s office in Philadelphia, monthly, upon presenting certificates of the duly authorized agent of the Quartermaster’s Department that the vessel has faithfully performed her part of this contract.”

The war risk was to be borne by the United States, the marine risk by the owner. This vessel in the charter-party was recited to be of the burden of 446ff registered tons. This charter-party made between Captain A. Boyd, assistant quartermaster . at Philadelphia, and the claimant, was executed in quintuplícate, one copy of which was forwarded to the Quartermaster General, at Washington.

In March, or April, 1863, the Quartermaster General had caused circular instructions to be issued and sent to all his subordinates charged with the hiring of vessels, instructing them that the compensation then being paid was too high. They were therein directed to limit the compensation to from 40 to 50 cents per day per registered ton, or measurement, for steamers. On the 19th December, 1863, an assistant of the Quartermaster General, in charge of this branch of the service, wrote to Captain Boyd, approving a bill for the hire of the boat at $300 per day, from 6 a. m., October 26,1863, to November 24, 1863 = 29f days = $8,925, and added, u The rate of this vessel, if her services are required for a longer period, is deemed excessive, and will be reduced from the 20th December, 1863.” These instructions were communicated by Captain Boyd to the claimant; and on the 23d December, 1863, he responded. The material part of his answer is as follows: Her present charter ($300 per day) is reasonable, but, as she was built expressly for the New York and Richmond trade, if the government will keep her for four months, or till that port is open, I will reduce her to $200 per day from the 20th of this month.”

On the 4th January, 1864, the Quartermaster General’s Department wrote to Captain Boyd as follows :

CAPTAIN: It is not known by the department that necessity exists for retaining the steamer Rebecca Clyde in the service. Should she be required, and you can afford her constant employment, you can retain her at the rate authorized by the letter from this office of the 19th December; otherwise she should be at once discharged.”

To this letter Captain Boyd responded on the 5th of the same month:

u General : I have the honor to state, in reply to your letter of the 4th instant, that the steamer Rebecca Clyde was chartered to make two trips to Morris Island with conscripts from this city. On the second trip she was retained therefor service in tbe department. Had sbe returned it was my intention to bave discharged her.”

On tbe 5th January, 1864, Boyd, tbe assistant quartermaster at Philadelphia, wrote to the Quartermaster General:

“ I informed you, under date of 23d ultimo, that Mr. Clyde, her owner, had consented to a reduction in her rate of pay from $300 to $200 per day, from the 20th December, 1863.

“Your letter of 19th ultimo directs a reduction of her pay, but fixes no rate. Is $200 per day satisfactory? ”

She remained in the service at Hilton Head, and in southern waters, until February 12, 3864. The claimant sent his general agent, Ashcroft, to Hilton Head, for the purpose of procuring the discharge of the vessel, for the reasons that the compensation was reduced to $200 per day, and because the worms in those southern waters were fast destroying the vessel. Upon his urgent demand and request, the vessel was discharged at the time stated.

On the 11th March, 1864, the claimant having procured the necessary certificates of service, received the pay on the following voucher, from Captain Boyd,- and gave to him a receipt “in full of the above account.”

“No. 78 ‘_B,’ March, 1864. ■

“ The United States

To Thomas Clyde, De

“ November 25, 1863, to January 2, 1864.

“ For services of steamer Rebecca Clyde, as per charter dated October 26, 1863, from November 25, 1863, to 12 m. January 2, 1864, as per certificate and sailing order annexed.

“ Twenty-five days at $300 per day, old rate.$7,500 00

“ Thirteen and a half days at $200 per day, new rate.. 2,700 00

10,200 00

“ I certify that the above steamer was borne on my report of persons and articles hired for the months of November, December, 1863, and January, 1864.

“A. BOYD,

uOaptain and Assistant Quarter master.

“ Received at Philadelphia, the 11th of March, 1864, of Captain A. Boyd, Assistant Quartermaster United States Army, tbe sum of ten thousand two hundred dollars, in full of the above account.

“THOMAS CLYDE.”

And then, having procured further certificates of service from the 2d January, 1864, till the 12th day of February, 1864, as follows:

“No. 128 ‘B,’ April, 1864.

“ The United States

To Thomas Clyde, Db.

“ January 2, 1864, to February 23, 1864.

“For services of steamer Rebecca Clyde, as per charter, dated October 26,1863, from 12 m., January 2, 1864, to 12 m., February 23, 1864, as per certificates hereto annexed.

“Fifty-two days, at $200 per day.$10,400 00-

“I certify that the above steamer was borne on my report of persons and articles hired for the months of January and February, 1864.

“A. BOYD,

Captain and, Assistant Quartermaster.”

“Received at Philadelphia, the 13th of April, 1864, of Cax>-tain A. Boyd, assistant quartermaster United States Army, the sum of ten thousand four hundred dollars, in full of the above account.

“(Duplicate.)

“ THOS. CLYDE.”

And on April 13th, 1864, he received this sum of $10,400, and gave, as before, a receipt “ in full of the above account.”

So far as the evidence shows, these accounts were acquiesced in by the claimant, and the receipts given without objection or protest.

This same vessel was, on May 29 th, 1S64, again chartered to the United States, at $200 per day. And again on the 22d February, 1865, rechartered to the United States, at forty-five cents per ton per day.

In another count in the petition the claimant alleges that his steamer called Emilie, on the 5th of March, 1863, entered into the service of the United States, under a due and lawful charter-party. That by the terms of tbe charter-party, the Dnited States agreed to pay him the sum of $350 per day for each and every day said vessel was retained in the service; that the vessel remained in such service until August 13,1863, when a new charter-party was executed. And that on or about July 3d, 1863, the Quartermaster General arbitrarily and against the protest of the petitioner reduced the rate of compensation from $350 per day to $200 per day, and directed that such reduction should take place from May 5th, 1863, and that for a period of seventy-five days he was paid, to his great wrong, at such reduced rate of compensation.

This vessel was chartered by Lieutenant Colonel Herman Biggs, quartermaster at New Berne, North Carolina, at the time stated. On the 18th March, he inclosed a copy of the charter-party to the Quartermaster General, (p.43.) On the 9th April, 1863, the Quartermaster General wrote to Quartermaster Biggs, disapproving of the rate of compensation, and the valuation named in the charter, which was $65,000. He directed her compensation to be reduced to $175 per day, and her valuation to a sum not exceeding $25,000. On the 22d April, 1863, Quartermaster Biggs inclosed a copy of the letter of the Quartermaster General to Mr. Ashcroft, the agent of Clyde the owner, and received from him a reply dated on the same day. In that reply he stated that, in view of the great burden of expense under which the nation was groaning, he was willing to reduce the per diem compensation to $300 per day, after the 5th May, 1863, “provided the government agree to keep her in service for the term of not less than four months.”

On the 23d April, 1863, Colonel Biggs directed his assistant, Colonel Hoffman, to reduce her pay to $175 per day, or discharge her. On the 24th of the same month Colonel Hoffman replied that a military necessity existed for detaining the vessel, and that she would necessarily be detained under the orders of General Foster, commanding the department, for two or three weeks while the garrisons were being changed. On the 24th April, 1863, General Foster wrote to the Quartermaster General as follows:

“ Headquarters 18th ARMY Corps,

New Berne, April 24,1863.

“ Geheral : I have the honor to inclose copies of correspondence in relation to the charter of the steamer 1 Bmiliel

I would respectfully recommend that tbe reduced terms offered'by tbe agent of tbe vessel be accepted by tbe Quartermaster's Department, on account of tbe carrying capacity of tbe steamer, ber light draught of water, and consequent great usefulness in these waters, as well as ber sea-going qualities, which render ber equally useful in sending ber in cases of emergency to Fortress Monroe.

“ I am, general, very respectfully, your obedient servant,

“j. g. F0st.ee,

u Major General Commanding.

u General M. 0. Meig-s,

Q. M. G. U. 8. A., Washington, D. G.n

On tbe 22d June, 18G3, Captain E. C. Webster, quartermaster at New Berne, wrote to Mr. Ashcroft that, by order of tbe Quartermaster General, tbe compensation of tbe Emilie would be reduced to $175 per day from and after tbe 9th April, 1863. On the following day Ashcroft -replied, protesting against service for less than $300 per day, and asking for tbe discharge of tbe steamer.

On tbe 19th July, 1S63, tbe steamer was discharged. Sbe was paid at tbe rate of $350 per day from tbe 5th of March until tbe 5tk May, 1S63, and from that day until ber discharge at tbe rate of $300 per day.

On tbe 13th August, 1863, this same vessel was chartered again to tbe United States, at tbe rate of compensation of $200 per day, with the accruing and purchasing claifses contained in tbe charter-party.

The services of tbe boat from May 5th, 1863, to July 19th, 1863, upon certificates of service, and approval of tbe Quartermaster General's Department, were paid on tbe following voucher and tbe receipt appended given :

“No. 322 1 Bf December, 1863.

“The United States

To Charles D. Ashcroet, Dr.

“ May 5 to July 19, 1863.

“ For services of steamer i Emilie,’ as per charter, dated March 5, 1863, from May 5 to 3 p. m. July 19,1863, as per certificates hereto annexed, being 75-'-f days, ® $300 per day...$22, 687 50

“Also, one day, April 5, 1863, as per certificate hereto annexed. $350 00

23,037 50

“Deduct for May 5, paid on last certificate. 350 00

22, 687 50

“ Approved.”

“ Deceived at Philadelphia, the 31st of December, 1863, of Captain A. Boyd, assistant quartermaster United States Army, the sum of $22,687 50, in full of the above account.

“CHAS. D. ASHOBOFT.”

This bill had been previously approved 3d December, 1863, by the Quartermaster General. (See his report, Eecord, p. 9.) No objection or protest was made to this voucher or the receipt of the money at the time, and no additional demand has ever been made upon the War Department for any part of the claim set up in this case.

The evidence shows in both cases — the Bebecca. Clyde and the Emilie — the claimant acquiesced in the reduction of the rate of compensation, and received the pay at those reduced rates without objection or protest.- It was clearly and distinctly the acceptance of such reduced pay as the compromise and settlement of a disputed and doubtful claim.

In the case of The United States v. Adams, (7 Wall., 477,) the Supreme Court of the United States fully recognize the power and right of the head of an executive department, where satisfied that the public interests require it, to suspend the execution of a contract or the payment of money under it. And when the claim is so suspended, it becomes a dispute which is the subject of compromise. And where the government proffers, and the other party accepts voluntarily, without duress or compulsion, a stipulated sum in payment of a larger claim, it constitutes a settlement and compromise between the parties. And courts will not' disturb such amicable arrrangements, unless it is shown that undue or unfair advantage was taken of the party complaining. In the case cited the settlement and compromise was affected through a commission, appointed without any direct authority of law. But that does not vary the principle or its application. An adjustment by and a compromise with, the officers of the department, have precisely the same validity, and neither more nor less; for in each case it must rest upon the consent, acquiescence or agreement of the parties. And the means or instrumentality by which their minds were brought to this accord is of no manner of account. These elements are as strong in this case as in that quoted, and the proof of acquiescence and consent much more clear and decisive.

In the case of Beard v. The United States, (3 C. Cls. R., 122,) we held that “groat exorbitancy of price in public contracts necessarily implies imposition or collusion.” And that, whether such exorbitancy results from advantage taken of the ignorance, or from corrupting the integrity of an officer, is equally fatal to the claim or contract. We hold there that the utmost fairness and good faith is required on the part of those dealing with a public officer.

The cases of Baker and Folsom and of Calebs (3 C. Cls. R., 343-351) bear only a slight resemblance to this case. When the reduction in those cases was ordered, the claimants instantly demand a discharge. They were discharged; and it was sought to make the reduction retroactive. When payment was made at the reduced rates the claimants protested. They followed it up with a prompt presentation of the claim for the balance withheld. When payment of that was denied, they brought suit at once. There was not the slightest consent or acquiescence. Besides, these vessels’ had been chartered for a special military emergency, under orders from General Oanby, according to the Act of 4th July, 1884, §4.

So in the case of L. B. Pratt v. The United States, (3 C. Cls. R., 105,) when it was attempted to reduce the compensation of his vessel, he at once filed a written remonstrance and demanded its discharge. This being refused, he followed it up with clear, distinct, written protests against her retention and the reduction of her pay. When finally paid he filed in the Quartermaster General’s office a distinct and earnest protest, ■with notice that he would claim his contract rate of pay.

So likewise in the case of Emery & Blake v. The United States, (4 C. Cls. R., 401,) we held, upon full consideration, that where a charter-party was made by a subordinate officer at rates exceeding those prescribed by the Quartermaster General, which was disapproved by the latter and a reduction ordered, ■and tbe owner, after notice of these facts, voluntarily permitted his vessel to remain in the service thereafter, that he could only recover at the reduced rate.

This principle we have recently reaffirmed in the case of Thomas Clyde for compensation of steamer Tallaeca (not yet reported.)

In the case of Sarah 1. Daugherty v. The United States, (not yet reported,) where certain premises Avere leased by claimant to the United States at a monthly rent of $300, and the department reduced it to $200 per month, against the objection of the claimant, she afterward from month to month received the rent at $200 per month and gave receipts in full. After some time she applied to have the original rent restored. It was refused. And thereuimn she continued to receive and receipt for the rents at $200 per month till the end of the occupation of the premises by the United States. She then brought suit to re-cover the difference between the stipulated rent and the amount paid her. We held that these facts proved a consent and acquiescence to tbe reduction of the rent, and the claimant failed to recover.

These cases, Ave think, furnish us a safe guide and sound principles for the decision of these cases. The highest considerations of public policy require, that, after the executive officers of government have fairly and fully settled and adjusted disputed matters of claims or accounts with persons dealing Avith the United States, each party fully acquainted with their respective rights, such settlements should be sustained. Whenever such adjustments and compromises are free from fraud, oppression, or compulsion, they ought not to be disturbed; for where such settlements and arrangements have been made, vouchers made out in pursuance of them, the balances found due paid, and receipts and acquittances in full given, Avithout objection or remonstrance, such circumstances furnish the strongest, clearest, and best evidence of free consent and acquiescence.

The justice and propriety of the Quartermaster General’s conduct in reference to the hiring of these water transports was fully vindicated by the result; for the evidence shows that the claimant was not only ready but eager to recharter both these vessels to the United States at the reduced rate of compensation, and with other provisions vastly more favorable to the government than had been the old charters Avith the higher' rates. This shows that the reduced rates were the full value of the ■services and more than could be .made in other employment. It moreover shows that there was no oppression, wrong, or injustice inflicted on this claimant, and others like him, by the officers of the United States in these cases. Satisfied that the government officers charged with the hiring of these vessels had either been deceived or debauched, it was the duty of the Secretary of War and of the Quartermaster General to take prompt measures to avert the consequences. Nor do I think, speaking for myself on this point, that in such circumstances they were put to the alternative of imperiling' the existence of the nation, by discharging the means of transport of its troops, or of bankrupting its treasury and wasting its resources by the payment of the unconscionable and exorbitant rates of compensation which weak or wicked subordinates had stipulated for. In such cases, where the United States could not without peril discharge the vessel, and at the same time could not pay the stipulated hire without submitting to injustice and extortion, I do not think they were bound to do either. The law would furnish a rule for a fair and just compensation, and neither would be wronged.

On this subject the Supreme Court of the United States, in the case of Theo. Adams, already quoted, after saying that injustice in individual cases may be done by arresting payment and settlement of account, says:

“But this is no argument against the power or right of the heads of the departments to refuse the payment. What other-remedy has the government to arrest the execution of fraudulent contracts, made by its subordinates, or the unfaithful execution of them ? In such cases the courts are open to protect the rights of private individuals, but this remedy is unavailable to the government. The multitude of agents, official and otherwise, which it is obliged to employ in conducting its affairs, render this remedy utterly impracticable. Unless, therefore, some' power exists in the government, summarily, to interfere, and arrest the frauds and irregularities committed against it, they must be allowed to go on to consummation. No one, we think, on reflection, will deny this power.”

If, notwithstanding the evidence, clear, distinct, and full, presented in this case of settlement and compromise, we are bound to overhaul these transactions, no public account can be considered as closed. All tbe vast accounts of this government may be ripped up and made the subject of litigation in this court. And the whole financial system of the nation would be-thrown into uncertainty, disorder, and confusion.

This matter was arranged and accommodated in a way and upon principles that were just and fair to both parties. The evidence leaves no doubt that it was entirely satisfactory to each of them at the time. And we best subserve the cause of' public justice and good morals by holding them to their compromises.

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

Nott, J.,

concurring:

I dissent from the preliminary ruling of the court, which admits in evidence against the objection of the claimant certain subsequent charter-parties in no way connected with the subject-matter of this action. They are, in my judgment, wholly irrelevant and immaterial, and should not enter into the consideration of the case. ■

As to the steamer liebecca Clyde, I place my concurrence in the judgment of the court, exclusively, on one very simple fact. The claimant was notified that the rate must be reduced or the vessel would be discharged; and he said, in writing: “ If the ■ government will keep her for four months, * * * I will reduce her to $200 per day.” He did not ask for a formal agreement nor demand a reply. His offer was coupled with a voluntary continuance of the vessel in the service, and was made conditional only upon the length of her service. If the defendants had retained her for four months the imposed condition would have been complied with fully. But the claimant prevented compliance by voluntarily taking the vessel out of the service before the four months elapsed. He thereby waived the condition.

This construction of his offer the claimant has himself' affirmed. The reason assigned by his agent for seeking the vessel’s discharge was not the failure of the defendants to accept his offer, but the “ lowness of the charter-party, and on aceount of the toorms in that department at that season.” As the defendants had then named no rate of reduction, this “ lowness of th&-charter-party” must refer to the claimant’s own jmoposed reduc-ction, and he must have understood that the vessel was then in ■service at that rate. The defendants must have understood ffhe same, for they paid (and the claimant accepted it) at that rate. Thus all the contemporary acts of the parties lead to the •same construction. The defendants complied with the agreement as construed by both parties, and have even overpaid the -claimant. He proposed that the reduction to $200 a da,y should take effect on the 20th December, 1863, while they continued ■the old rate of $300 up to the 2d January, 1864.

As to the Emilie, I place my concurrence exclusively upon ■these facts. The defendants, on the 22d April, 1863, notified the master that the charter rate must be reduced to $175, a day to take effect from the 9th April then past, or that the vessel would “ be discharged the service.” The master thereupon offered to reduce the rate to $300 a day, to take effect on the 5th May ensuing,upon the condition that she should be retained for four months in the sendee. This offer, after being transmitted to the -Quartermaster General at Washington, was declined June22d, by the defendants, and the vessel’s discharge was demanded by the master, June 23d, but the vessel was detained by military authority till the 13th July.

So far, I should say that the owner ought to be paid at the •■original rate of $350 a day up to the time of receiving notice •of the proposed reduction to $175, that is to the 22d April. During the pendency of the master’s offer, he took the risk of the ■defendants’ declining it and cannot hold them to a higher rate than they had named to him. They did decline it, and hence, for that intermediate period, the owner should receive only what they proposed to give, $175 a day. During the time the vessel was detained by military authority the original charter-party rate revived, and the owner should be paid $350 a day from the 23d June till the final discharge of the vessel at Philadelphia.

But it appears that instead of following the vessel through these legal fluctuations of her rate, the defendants paid $350 a •day, not till the 9th April, at which time they proposed this reduction should take effect, nor to the 22d April, when they •gave notice of their intended reduction, but up to the 5th May, when the owner proposed that his reduction should begin; and that from the 5th May they paid not at the rate named by themselves, $175 a day, but at the rate named by the master, $300 day. It also appears that they paid this with the expressed understanding that no other charge was to be brought by the owner, and that the claimant accepted and receipted for it in full, making no claim for any other remuneration. It was the parties’ own way of settling an involved account. Such a transaction is a final settlement which no court should allow them to disturb.

Peck, J.,

dissenting:

I concur with the majority of the court in the conclusion stated in the opinion of the Chief Justice in so far as it has reference to the vessel Einilie. I dissent from so much thereof as has reference to the vessel Eebecca Clyde. I dissent from nearly all the positions assumed in the opinion of the Chief Justice just read, and shall state briefly the views I entertain in this case, reserving to myself the privilege of stating my opinions more at length in some one of the other cases germane to this now under advisement by the court.

The Quartermaster General states as follows. I copy from his letter of the 6th of February, 1869, to the Secretary of War:

“ General : I have the honor to return, herewith, communications from the Court of Claims, dated December 15 and 30, 1868, and February 1st, 1869, requesting evidence in the claim of Thomas Clyde, esq., owner of the steamers Eebecca Clyde and Emilie, which have been referred to the Quartermaster General for report.

I have the honor to state that the steamer Eebecca Clyde was chartered on the 26th of October, 1863, by Captain A. Boyd, assistant quartermaster United States Army, at Philadelphia, from Thomas Clyde, at the rate of $300 per diem, and remained in service under this charter until February 23,1864, when she was discharged.

u On the 19th December, 1863, Captain Boyd was informed by this office that ‘ the rate of this vessel, if her services are required for a longer period, is deemed excessive, and will be reduced from the 20th December, 1863.’

Captain Boyd, it appears, notified Mr. Clyde of the proposed reduction, who, under date of December 23, 1863, agreed to reduce the rate to $200 per day.

“ Payment bas been, made to the claimant for services of the Eebecca Clyde as follows :

“ From October 26,1863, to November 24,1863 — 29f days, a $300 per day. $8, 925 06

“ From November 25,1863, to 12 m. January 2, 1864, being 25 days a $300 per day. 7,500 00

2,700 00 “ 13 J days, a $200 per day

“And from 12 m. January 2, 1864, to 12 m. February 23, 1864, 52 days, a $200 per day. 10,400 00

“Total. 29,525 00

“ The owner now claims additional pay from December 20, 1863, to February 23,1864, 12 m., being 65J days, at $100 per day, being the difference between $300, the charter rate, and $200, the reduced rate, amounting to $6,500 50, which the Quartermaster General recommends be disallowed, the owner having agreed to the reduction of pay, which was ample remuneration for a vessel of her class. Attention is respectfully invited to the accompanying copies of charters of this vessel, dated May 29,1864, and February 22,1865, at the rate of $200 per day; and also to letters of Captain E. T. Allen, assistant quartermaster, and C. D. Ashcroft, dated, respectively, September 27,1864, and May 10,1865, from which it will be seen that Mr. Clyde offered his vessel to the government, and was anxious to secure her employment after the expiration of the first charter, for $200 per day.”

The statement of this letter, that claimant, on the 23d December, 1863, agreed to reduce the rate of the vessel to $200 per day, is not sustained by any proof. If the Quartermaster General knew the fact to be so, he should have been sworn as a witness to prove it. His bare assertion, however correct it may be, is not evidence. The claimant objected to this letter as evidence, and I think his objection was well taken. The Quartermaster General, in the concluding part of his letter, states what is fair to presume was his only information about that fact, viz., that the claimant offered his vessel at a later period at $200 per day. From this uncertain data and inconclusive reason, he (and the majority of the court seem to agree with him) believes that this is satisfactory evidence that the claimant, by making the proposition referred to, did consent to a reduction.

If this letter is to be considered as good evidence of one fact, it must be equally good for another. Suppose we refer to the second paragraph of the letter, which admits that the Eebecca Clyde was chartered at the rate of $300 per day, and remained i'll service under the charter until February 23,1864, for another fact, and then see how little ground there is for contesting this claim. The letter, being all about the same subject, must be taken as good in all its parts, if taken at all. The first admission is derived from the papers in his own custody, and should have far greater weight than the second statement.

I shall now show from the record what the proposition made by the claimant was, and upon what terms and conditions the claimant proposed or consented to reduce the rate of hire of his vessel.

On the 19th of December, 1863, E. E. Clary, Colonel and Quartermaster, wrote to Captain Boyd, Assistant Quartermaster United States Army, as follows:

“Captain : The accounts of the following named vessels are referred to you for payment, in accordance with the evidences of service and remarks herewith, viz:” * * * *

“ Steamer Eebecca Clyde from 6 a. m., October 26, 1863, to November 24, 1863=29| days, at $300 per day=$8,925.

“ The rate of this vessel, if her services are required for a longer period, is deemed excessive, and will be reduced from the 20th December, 1863.”

It nowhere appears that the intention of the defendants to reduce the price was directly communicated to the claimant, but it may be inferred from the following letter that it was. The claimant, after insisting that the vessel was worth the price agreed upon by the charter-party, consents to a reduction if the defendants will also agree to' new conditions and ■terms, but not otherwise:

“Philadelphia, December 23,1863.

“Dear Sir: Your note in reference to reducing the charter of the steamship Eebecca Clyde received.

“ In reply, I would say that lam always willing to charter my steamers to the government at the lowest rates, but I am satisfied that this new steamship is not known to the government. She made the first trip to Hilton Head in seventy-two, and the second in fifty-six hours. She is a full double-deck ship, with ample carrying capacity, superior accommodations, great power and speed, and draws, loaded, but nine feet of water. Her present charter ($300 per day) is reasonable, but as she was built expressly for the New York and Richmond trade, if the government loill keep her for four months, or till that port is open, I will reduce her to $200 per day from the 20th of this month.

“Yours, respectfully,

“THOS. CLYDE.

“ Captain A. Boyd,

Assistant Quartermaster.”

Whether these new terms were ever communicated to the Quartermaster General is not shown, but Colonel E. E. Clary writes the following letter to the same Captain Boyd:

“ Quartermaster General’s Oeeice,

Washington, JD. G., January 4, 1864.

“ Captain : It is not known by the department that necessity exists for retaining the steamer Rebecca Clyde in the service. Should she be required, and you cau afford her constant employment, you can retain her at the rate authorized by the letter from this office of the 19th December; otherwise she should be at once discharged.

“ Very respectfully, your obedient servant,

“By order,

“B. E. CLAEY,

Colonel and Quartermaster.

“ Captain A. Boyd,

“Assistant Quartermaster, Philadelphia, Pa.”

No rate of hire for the vessel was authorized by the letter of the 19th December, 1863. Nor is a word here stated as to the conditions upon which alone the claimant consented to a reduction. But Colonel Clary directs that the vessel, if needed, should be retained at the price arbitrarily fixed by the defendants, without regard to the conditions offered by the claimant.

That the vessel was not discharged until some days after the 5 th of January, is shown by the following admission and letter:

“Assistant Quartermaster General’s Oeeice,

Philadelphia, January 5,1864.

“General: I have the honor to state, in reply to your letter of the 4th instant, that the steamer Rebecca Clyde was chartered to make two trips to Morris Island with conscripts from this city. On the second trip she was retained there for service in the department. Had she returned, it was my intention to• have discharged her.

“ Yery respectfully, your obedient servant,

“A. BOYD,

Captain and Assistant Quartermaster.

“Brigadier General M. 0. Meigs,

Quartermaster General O'. 8. A., Washington, B. CJ

There are two letters in the record of the 5th of January,, 1864. I give copies of both, for they do not change the facts of the case. No answer was given to either letter, nor does it appear that the conditions making a part of the offer to reduce the price were stated by Captain Boyd. Whether they were or not does not make any change in the law of the case so far as the-, claimant was concerned. It is not shown that he ever saw or heard of either of the letters. Without that fact established,, two quartermasters, by correspondence between themselves,, could not change, suspend, or destroy his contract.

“Assistant Quartermaster General’s Oeeice,

Philadelphia, January 5, 1864.

“ General : I have the honor to state, in reply to your letter of the 4th instant, that the steamer Bebecca Clyde was chartered to make two trips to Morris Island with conscripts from this city. On the second trip she was retained there for-service in the department. Had she returned it was my intention to have discharged her.

“ I informed you, under date of 23d ultimo, that Mr. Clyde,, her owner, had consented to a reduction in her rate of pay from $300 to $200 per day, from the 20th December, 1863.

“Your letter of 19th ultimo directs a reduction of her pay,, but fixes no rate. Is $200 per day satisfactory %

“Yery respectfully, your obedient servant,

“A. BOYD,

Captain and Assistant Quartermaster.

“Brigadier General M. C. Meigs,

Quartermaster General O. 8. A., Washington, B. C.n

The vessel was discharged on the 23d of February, 1864. As sbe was only paid lier charter rates, notwithstanding what "the Quartermaster General states, up to the 20th December, 1863, and thenceforward was only paid $200 per day until her discharge, there remains due to the claimant the sum of $100 per day, for the time between the 20th of December, 1863, and “the date of her discharge, which I think the claimant should recover.

I leave the second charter-party out of the question. The claimant had a right to stand upon the first until his vessel was nither discharged or until a new bargain had been made by the •consent of both parties.

The defendant could not, except by duress, retain the rmssel for a single day upon any other terms than were consented to by the claimant.

No unaccepted proposition to modify the contract could operate to suspend it, unless the suspension was apart of the proposition, which was not the case. Until the modification proposed became absolute by acceptance of its terms the contract retained its original vigor.

The claimant remaining in doubt about the acceptance of his proposition, sought and obtained the discharge of his vessel rather than continue her in service upon uncertainties as to time and compensation. It seems to me that no conclusion from this fact can be drawn against the right of claimant to recover. He sought by this means to avoid controversy. The defendant would not say yea or nay to his offer, and he could not conjecture how long or how short a time his vessel might be retained.

Next in order of discussion are the two receipts, each “in full of the above account.”' The accounts so receipted state the number of days which the vessel had rendered service, and the ■compensation paid for those days, which was $100 per day less than that fixed by the contract. That the service was rendered the receipts and certificates accompanying them fully show. The claimant had fully performed all his obligations, as he shows, for without that he could not receive even payment- on account. This places all dispute and controversy as to the sum. due out of the case.

The receipts were in the ordinary form, furnished and prescribed by the defendant, who, doubtless, prepared them $ they were not under seal and do not purport to be in full of all de-mancls for tlie service rendered. They are only in full of tlie amount wbicli the defendant then chose to pay.

It has been long recognized as a settled principle “that the discharge of an obligation by an ordinary writing is of no legal efficacy, merely considered in itself; a receipt for a sum of money is only evidence of the act of payment;” it is open to contradiction and has no immediate intrinsic operation in producing a discharge. (Evans Potliier on Obligations, vol. 2, page 141.)

That the claimant was willing to receive partial payments may well be inferred from the fact that he had, by his charter-party of the vessel, agreed to pay all the current expenses of the officers and men who managed her, besides keeping her in repair. This created a necessity for money, and he only did as all others have done or would do under like circumstances. It is the common course of business, followed by a very large majority of men in the ordinary transactions of life. The contract was to pay the vessel a per diem for her services; and unless the argument of inconvenience is adopted, or that of custom, or a resort to the mutual understanding of the parties is had, (the latter of which the court rejects in this case,) the inference would be that the claimant should be paid as often, at least, as he came to a port where payment could be made.

In Pratt’s Case, (3 C. Cls. R., p. 105,) this court unanimously held, that a receipt precisely like those in this record “ does not bar or estop this claimant from further recovery upon his contract.” I will only refer to a few of the other decisions heretofore made by this court, after much deliberation and discussion, where the same principle is sustained. I refer only to the following, viz: Theodore Adams, (2 C. Cls. R., p. 70,) Mowry’s Case, (p. 68,) Reeside’s Case, (pages 55, 56, 57, 58, 59, 60, 61;) Ramsdell & Smith’s Case, (p. 508;) all in the same volume. There seems to me to be a lamentable want of respect in this court for its own decisions.

All that is said about protests in Pratt’s case was said as make-weight, to show the injustice of the action of the Quartermaster’s Department toward Pratt. It was not, nor was it made, the turning-point in the case. No protest is necessary to entitle a party to recover what is due him, under a contract, nor can acquiescence be inferred from an omission to protest. It is not to be presumed against a party, that he relinquishes his rights under a contract, because he receives partial pay-meats .Avithout protesting on every occasion, when he accepts money on account. Much less can it be presumed from such conduct that his contract has been suspended or altered, or that a new one has been made. The party who alleges the change must show mutual consent thereto. The contract stands unless the party asserting the change proves it. Was a protest necessary, in order to notify the quartermaster that 200 was not the equivalent of 300® Was it necessary, in that way, to inform him that he was not paying the full price fixed by the charter-party ? The United States could not suffer loss by an omission to protest; the money was in their custody and was kept there, and no other person than the claimant had any pretense of right to it. The defendant could not suffer damage by reason of any want of notice, and that is all a protest could avail.

The claimant protests against the action of the defendant in withholding his money, by bringing this action within the proper time. He has brought his suit within six years, the only limitation which the law fixes. This court has not the power to make a different limitation from that named by Congress; and no argument can fairly be drawn against the rights of a party, because he does not prosecute his claim sooner than the act of Congress requires.

The right of revision, reserved by the charter-party to the Quartermaster General, should have been exercised, if at all, the vessel being in his service, within a reasonable time, but it was not. No complaint of the charter-party was made until nearly two months after the vessel was in service — a length of time which could not have been anticipated. When the objection was at length made, it was not by the Quartermaster General, to whom alone the right of revision was given, but by his subordinates, who had no authority in the premises. The claimant had a right to infer from this long acquiescence that no objection would be taken to the price or terms of the contract.

There is no magic about a charter-party, which requires or justifies any deviation from settled rules of law, to comprehend its force or explain its meaning. It is to be construed, not by the arts of legerdemain, but Tike all other contracts, and equally binds all the parties to it.

The contents or - obligations of a charter-party cannot be varied by one of tbe parties to it, without the consent of the other -, nor by inferences or vague presumptions. Such is the daily ruling of this court. It is the law between the parties, and there is no power on earth, or should not be, to change it. Even the Quartermaster General is not invested with this right.

It is inferred that the price fixed by the first charter-party was ■excessive, and justified the Quartermaster General in refusing the money earned under that charter, because the same vessel was subsequently hired by the United States at a lower rate. This inference strikes me as unreasonable. The premises do not sustain the conclusion. The value of the vessel might have been reduced in many ways, perhaps by the very service for which the stipulated compensation is now refused. Competition may have been greater, or the changed condition of the country, as well of the vessel or of its owner, might furnish other and sufficient explanation to account for the reduction.

My observation indicates that the values of vessels and of their earnings fluctuate more than any other property. I might also add that the second and third charters, introduced as evidence by the United States, are improperly in the record, and should not be considered. Each charter has its own force and stipulations, and is alone the contract of the parties, for the time to which it relates. These later charters of course are not referred to in the first one, and cannot explain it. They are independent contracts which have no relation to each other. Such an inference, drawn from such facts, is an indication of the difficulty of adducing good reasons for the judgment rendered.

The same logic, if carried out, would show that the third charter-party of the same vessel, between the same parties, at a less rate of compensation than that fixed by the second, is also conclusive evidence of fraud or collusion or of excess of price in the second ; thereby furnishing cumulative evidence of the abuse suffered by the United States, in having voluntarily made what is now denominated a vicious bargain about this vessel.

I think that much of the matter which encumbers this record is not legal evidence. The letters of the Quartermaster General to his subordinates, giving instructions to them in relation to their duties, cannot be considered as binding on other parties, especially where there is no evidence that such parties were even cognizant of them.

They contained not public but private instructions, for the guidance of officers only, liable to be varied from day to day,, and might never be enforced. They had no application to any particular charter, and until the subordinate gave direct obedience to his instructions, by applying them to some particular person or instance, each individual might well, nay, had a right to suppose that he would be exempt from interference. Had he even inquired after or about such instructions, he probably would have been regarded as impertinent. The letters from one assistant quartermaster to another in reference to their transactions with a citizen cannot be used to affect his relations with the government to his j>rejudice. They may make very good history for the whole people, but do not make good evidence to bind one of them.

The charter-party in question gave the government the control of the vessel, and the option of holding or of discharging her at pleasure. If the United States did not think her services an equivalent for the price agreed to be paid, the proper and easy way of relieving them from so oppressive a burden was to do what the contract provided for, that is, discharge the vessel. As between individuals no other course would have been resorted to or thought of, unless resort was had to a new contract, in which both parties should again unite upon new terms. Instead of pursuing this course, a military order, dated December 19, 1863, was issued, directing that “ the rate of the vessel, if her services are required for a longer period, is deemed excessive and will be reduced from the 20th December, 1863.” This is the language of authority and command, which means with or without the consent of the owner. It will be observed that if her services were required for a longer 'period she toas not to be discharged. No direction was given to make a new hiring at a reduced rate, but her price must and will be reduced. This is the flat that was issued to and obeyed by the officer. There was no deference whatever observed as to the rights of the citizen.

It may be inquired why the claimant, on the first intimation that his pay was to be reduced or withheld, did not immediately apply to this court for relief? I cannot answer explicitly. There may have been many reasons for the delay; he may not have been informed as to his rights in the premises. No matter what the reasons — these were for his own consideration. I can, however, suppose one reason that might have deterred him from adopting this line of conduct. Oar rules, supported by decisions, require the claimant first to apply to the department for redress before he can be permitted to bring his suit and have a hearing here. We compel him to appeal to the same Caesar who has done him the wrong he complains of, and he must then wait until Caesar relents and condescends to grant a gracious hearing, or take as an answer to his supplication there another denial, before he is permitted to take his first step in the way of a recovery here.

In this, as in all like cases of agreement, where the sovereign is one of the contracting parties, the citizen is not on a footing of equality. "

The government is stronger than any of its citizens. To resist is useless. There are many influences as well as prejudices which contribute to discourage the citizen in any efforts he may make to maintain a position against such odds as the government and circumstances oppose to him. This case, as I believe, illustrates the difficulty of applying to the court for redress. Implications and presumptions, except in occasional cases, rise to the dignity of evidence, and are applied on behalf of the sovereign against the citizen.

The highest function of the law is to protect the weak against the strong, and if it fails to furnish that protection when appealed to, and to sustain the individual in his rights against his government, it neglects its most imperative duty.

Losing, J., did not sit in the case and took no part in the decision.

Milligan, J., agreed in the opinion read by the Chief Justice.  