
    GUTTMAN AND STUART’S CASE. Adolph Guttman et al. v. The United States.
    
      On Demurrer.
    
    
      A quartermaster contráete that the claimants shall he “furnished with a suitable escort for the protection of the supplies ” to he transported when they do not exceed 125,000 pounds ; when more than 125,000 powtids, “ no escort shall he furnished.” A wagon train is destroyed hy Indians. It does not appear in the petition whether the train carried more or less than 125,000 pounds.
    
    When an army transportation contract provides that the contractor “ shall he furnished with a suitable escort for the protection of the supplies, should he he required to transport in any one train a less quantity than 125,000 pounds, hut whenever required to transport 125,000 pounds or more, then no escort shall he furnished,’.’ the risk is to he horne-hy the government in the one case, and hy the contractor in the other. Therefore it is essential in an action brought for the destruction of a wagon train hy Indians, that it appear on the face of the petition whether the train transported more or less than 125,000 pounds. If the pleading is silent on such a point, it must he construed against the pleader, and the omission is fatal.
    
      Mr. Jacob Shroder (with whom was the Assistant Attorney General) in support of the demurrer: ■
    The claimants, alleging and setting out in full a contract with the defendants for the transportation of such military stores and supplies as may be offered to them by the officers or agents of the Quartermaster Department, bring suit for the recovery of the value of animals which Indians captured from them while performing their contract.
    There is no complaint of the defendants’ breach of the contract, but judgment is prayed for by virtue of section two of the Act 3d March, 1849, (9 Stat. L., 415,) which provides for the payment for damage by the capture or destruction by an enemy of certain property while in the military service of the United States. I
    I. Capture by Indians is not capture by an enemy as contemplated by the statute. Both the natural and technical import of the word enemy, as used in the statute, is a belligerent power in active hostility against the government of the United States.
    II. The claimants’ property was not in the military service of the United States. It was governed neither by the Army Eegulations nor by the Articles of War; it was not sustained by the United States, as the Act 3d March, 1849, contemplates with respect to'property within its purview, nor was it, save by the express stipulation of Article X of the contract, under the protection of the defendants.
    III. The claimants’ employment was not in, but ancillary to, the military service. They were contractors, as distinguished from officers or government agents. The language of „the contract explicitly maintains this distinction, a distinction founded in law. (Whitehouse v. Langdon, 10 N. H., 331.)
    IY. Article XI of the contract expressly permits the United States to use “ its own means of transportation for such service, whenever it may be deemed advisable to do so.”
    This article, by necessary implication, places the claimants’ property out of the service of the United States, as understood by the Act 3d March, 1849.
    
      Mr. O. JP. Peclc opposed.
    The allegations of the petition are that the claimant entered into a contract with the Quartermaster General for carrying-government stores between Forts Leavenworth, and Eiley, in Kansas, and Fort Union," in New Mexico, and intermediate points.
    The contract was in writing, and is set forth as an exhibit to the petition. That.the means of transportation.were duly presented to the proper officers, and inspected and accepted by them. That while the claimants were proceeding in the execution of their several contracts the trains were attacked by bands of hostile Indians at war with the United States, and the animals were thus captured or destroyed.
    The relief sought for is under the second section of the Act March 3d, 1849, and entitled u An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States.” The defendant demurs to the petition.
    The act under which we claim is as follows:
    
      il Sec. 3. And he it further enacted, That any person who has sustained, or shall sustain, damage by the capture or destruction by an enemy, or b5r the abandonment or destruction by the order of tbe commanding general, the commanding- officer, or quartermaster, of any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the military service of the United States, either by impressment or contract, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner, and any person who has sustained, or shall sustain, damage by the death or abandonment and loss of any such horse, mule, or ox, while in the service aforesaid, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, and any person who has lost, or shall lose, or has had, or shall have, destroyed by unavoidable accident, any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the service aforesaid, shall be allowed and paid the value thereof at the time he entered the service: Provided, It shall appear that such loss, capture, abandonment, destruction, or death was without any fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.” (9 Stat. L., p. 415.)
    To entitle us to a recovery, we must establish three propositions :
    1st. That the property was captured or- destroyed by an enemy.
    2d. While it was actually in the military service of the United States by contract or impressment
    3d. And that the claimant did not agree to incur the risk of the casualty by which the loss happened.
    I. The enemy in this case were hostile Indians. An Indian war was then existing. (Report on the Conduct of the War, 2d session 38th Congress, Part 3, lS64-?65, pages 64 to 84 inclusive. Executive Documents 1864--65-, vol. 5. No. 1, pages 360 to 400, both inclusive, being Report of the Commissioner of Indian Affairs, Colorado Superintendeucy.)
    That such a conflict is a war, and that the Indians who carry it on are enemies, has been maturely considered and decided by this court. Alire v. The United States, (1C. Cls. R., p. 233.)
    This case was reversed by the Supreme Court of the United States on other grounds, but the decision on this point was not disturbed.
    
      See also the case of Strcmglum v. The United States, 1C. Cls. R., p. 324.
    .This act is a remedial act, and should be liberally con-stmed. (Opinion of Attorney-General Bates, vol. XI, p. 25.)
    II. This property was in the military service of the United States.
    The first section of the act provides for indemnity to all officers and soldiers of various degrees who should suffer a loss of property while employed in the public service. The second section refers to persons who shall suffer a loss while their property is in military service, under contract or impressment, evidently contemplating that civilians would have their property thus employed by contract.
    Article two of the contract provides as follows:
    “Article II. That the said Andrew Stuart agrees and binds himself, his heirs, executors, and administrators, to transport, under this agreement, from the posts or depots named in article one, or from or to any other post or depot that may be established within the district named in said article, any number of pounds of military stores and supplies, from and between one hundred thousand pounds and ten millions of pounds in the aggregate.”
    Article six is as follows:
    ‘ ‘Article YI. That all the means of transportation to be used by the said Andrew Stuart, under the agreement, shall be submitted to the inspection of the officer or agent of the Quartermaster Department at the place of departure, and such only shall be used as may be then aud there accepted by him, provided that the said Andrew Stuart shall be authorized to employ mules or cattle, as he may elect.”
    Article nine is as follows :
    “Article IX. That in case any one or more of the trains of the said Andrew Stuart are stopped or delayed, at any time or place, exceeding two days, either under the orders of an officer of the Quartermaster’s Deportment or the commanding officer of a post, or of troops present, or any other act of the government or its agents, the contractor shall be paid upon a statement, in writing, procured from the officer or agent of the government can sing the .delay, the sum of five dollars per diem for each and every team in the train for each and every day they may be so delayed; and in case the officer or agent of the government aforesaid shall refuse-to furnish such statement in writing, then the delay shall be paid for, as above, on affidavits or other satisfactory evidence of credible and competent witnesses.' All orders from officers or agents of the government to halt trains shall be given to the contractor or his agent in writing, expressing fully the reasons therefor.”
    Part of article four is as follows :
    “Article IY. In order that the said Andrew Stuart shall be in readiness to meet the demands and requirements made upon him for transportation under this contract and agreement, due notice shall be given him or his agent of the quantity and kind of stores to be'transported at any one time; at what points the stores will be ready for delivery to him, and the place of their destination, subject to such, changes as may be decided upon while in transitu, as herein provided for, that is to say, for any quantity less * * * . * * *
    By the express terms of the contract the means of transportation were to be such as the officers of the Quartermaster Department should accept, upon a careful inspection, and they were after that to be under the control and direction of the United States officers, proceeding wherever they were ordered and delaying whenever, they were directed.
    III. The contractors did not agree to assume these risks.
    The only semblance of such an agreement is to be found in the tenth article of the contract, which is as follows:
    Article X. That the said Aiidrew Stuart shall be furnished with a suitable escort for the protection of the supplies, should he be required to transport in any one train a less quantity than one hundred and twenty-five thousand pounds, but whenever required to transport one hundred and twenty-five thousand pounds, or more, then no escort shall be furnished.”
    The utmost that is stipulated for here is that the government shall not be required to furnish an escort for trains carrying-over 125,000 pounds of freight, but this is very far from being a stipulation that the contractors shall assume all risk of capture for such trains. In this article the contractors do not agree to do anything or to assume anything. Without it they stood insured against capture to the extent that they should be paid for the actual value of the property which might be taken from them. This would, however, be only a partial indemnity; a capture of a train would result in a loss of the freight money, and it might be difficult or impossible to rejilace the animals, so that future earnings would be imperiled. These dangers furnished a sufficient inducement for them to desire an escort, and it was therefore stipulated that one should be furnished for small trains, but not for large trains; the government thereby risking the loss of its stores and the contractors the loss of their freight money.
    It will be observed that the language of article ten precludes any other construction; it says an escort shall be furnished for the protection of the supplies, not for the protection of the animals. This clause evidently has no reference or application to the indemnity provided in the act of March 3d, 1849, but was designed to fix the rule for escorts, so as to avoid delay and confusion.
    Without such a rule the contractors might incur censure for proceeding without escort, or for delaying in expectation of one, and thus giving rise to claims for demurrage.
   Milligan, J.,

delivered the opinion of the court:

This case stands on demurrer, and the only question now presented for our determination is, whether the averments in the petition are sufficient to sustain the action. The suit is brought under the second section of the Act 3d March, 1849, (9 Stat. L., 415,) and the allegations in the petition are, in substance, as follows:

Andrew Stuart, on the 25th of July, 1864, entered into a contract with the government of the United States for the transportation of military stores and supplies. The contract is in writing, a copy of which is annexed to the petition and made a part thereof.

Pursuant to its stipulations, the said Stuart provided himself with the necessary means of transportation, and in all respects fully complied with the terms of the agreement. And, in the month of July, 1864, while he was proceeding, in execution of said contract, with a train of wagons from Fort Leavenworth, Kansas, to Fort Union, New Mexico, the train was, on the 12th of July, 1864, in the vicinity of Crow Creek, Kansas, attacked by a band of hostile Indians, and without any fault or neglect on the part of the claimants, or any of them, or their agents, fifty-six head of oxen, employed in moving said train, were captured by said band of hostile Indians, and no part thereof has been recovered.

The oxen and the other means of transportation used in said train had been, as alleged in the petition, duly inspected by the United States quartermaster, and accepted by him at the place of departure, as required by the contract; and said oxen were in the military service of the United States, and, at the time of capture, worth $4,480.

The contract is in the name of Stuart, and the cattle employed in its execution, as charged in the petition, at the date of capture, was the property of Guttman.

In deciding the demurrer, which is to the sufficiency of the petition, we have not assumed to interpret the act of Congress under which this suit is brought, or the applicability of the facts stated in the petition to its provisions. It is enough to meet and answer the issue raised by the demurrer, and leave all other questions which may hereafter arise in the case to be determined when they are presented.

The contract is drawn out at great length, and with much particularity; and, in its tenth article; the following stipulation is found:

“That said Andrew Stuart shall be furnished with a suitable escort for the protection of the supplies, should he be required to transport in any one train a less quantity than 125,000 pounds; but whenever required to transport 125,000 pounds, or more, then no escort shall be furnished.”

Admitting the strict construction of this article contended for in argument, that the escort stipulated for was to protect the supplies when under 125,000 pounds, and not the cattle and wagons with which they were transported, it does not follow that the latter clause of the tenth article does not contain a positive stipulation that no escort shall be furnished by the United States-for any purpose when 125,000 pounds, or more, is required to be transported. In such a case, the risk, by the express terms of the contract, is to be borne by the claimants, and there is no averment in the petition bringing the cause of action as therein set out within the first clause of the tenth article of the contract.

The petition simply avers that while the claimants w'ere proceeding with a train of wagons from Fort Leavenworth, Kansas, ta Fort Union, in New Mexico, the cattle were captured by a band of hostile Indians, without distinguishing whether the train was, at the time, carrying 125,000 pounds, or more, or less than 125,000 pounds. If the latter, the United States were bound to furnish an escort; and if the former, the risk was the claimants’ own. It is obvious, therefore, that the case made in the petition is not such a one as can be sustained. The court cannot give to the petition an interpretation beyond the fair and reasonable meaning of its language. All pleadings must be, at least, “certain to a common intent;” and if otherwise, we cannot hold them good by intendment. The rule is to construe them most strongly against the pleader. (Stephens’s Pleading, 378.)

The demurrer is sustained, with leave to the claimants to amend within thirty days; otherwise the petition will stand dismissed.

Boring, J.:

I think the demurrer should be sustained, because the case is not within the statute on which the claim is rested.  