
    WILDER’S CASE. Amherst H. Wilder v. The United States.
    
      On the Proofs.
    
    
      A written contract for army transportation, entered into on the 23c? May, 1801, specifies no period of duration, but provides a certain rate of compensation for six months named, and a certain other rate for the other six months also named. The parties continue to act under it until July 19, 1863. They then decline to receive and transport the goods under that contract, and refuse to acknowledge its force or validity. The quartermaster in charge enters into a verbal agreement with them that they shall transport certain supplies he then wishes to send forward, at such price as the specified service may be reasonably worth. The claimants receive and transport the goods under this agreement. The quartermaster fixes the value, subsequently, at $4 50 per hundred as the reasonable value, but the Quartermaster Department refuses to alloio any greater price than that fixed by the original agreement, which, it is insisted, could only be terminated by reasonable notice. More than six years elapse from the rendition of the services before suit brought, but less than six years from the payment made of the amount allowed by the Quartermaster’s Department.
    
    I. The Act 3d March, 1863, (12 Stat. L., p. 765, sec. 10,) reconstituting the Court of Claims, provides “thatevery claim against the United Slates, cognizable by the Court of Claims, shall be forever barred, unless the petition ” be filed, &.C., “within six years after the claim first accrues.” Tlie statute makes certain exceptions in cases of personal disability, but is silent as to the effect of a payment. Whether payment of a part within six years will take a case out of the statute, especially when the balance was never admitted by the defendant’s agents to be due, and the payment was made by them avowedly upon another and different contract previously subsisting between the parties, though relating to th e same services, is a point upon which the court is divided.
    II. Where a written agreement for the transportation of army supplies specifies no period of duration, but by different enumerated rates for different months covers one year of service, the contractors may, subsequently, at any time, decline to continue the service, and may then enter into a new agreement with the quartermaster in charge, fixing a different rate for the same service, notwithstanding that they have continued to act for a long time under the written agreement and seek to terminate it in the midst of a year.
    
      Messrs. Sanborn & King for the claimant:
    The claimant, Amherst H. Wilder, is the assignee of the late copartnership firm of J. C. and H. C. Burbank & Co., of which he was a member.
    This claim originated as follows: On the 17th day of July, A. D. 1SG3, Captain E. B. Carling, assistant quartermaster United States Army, ordered J. C. and H. C. Burbank & Co. to transport without delay 25,000 rations and 100,000 pounds of hard bread lrom'St. Paul to Fort Abercrombie, Dakota Territory. Captain Carling did this pursuant to orders from the general commanding the district. The said firm transported the commissary stores as ordered, the weight of which was 219,763 pounds. The firm claimed $4 50 per hundred pounds for the transportation of these supplies from St. Paul to Fort Abercrombie, making in the aggregate $9,889 33.
    On the 1st day of October, 1863, the firm was paid by Captain E. B. Carling, on account of said transportation, $6,393 12, leaving unpaid the balance now claimed of $3,516 21, which the War Department has refused to pay.
    The War Department has all the time insisted that the firm of J. C. and II. C. Burbank & Co. were under contract and bound to transport all military supplies from St. Paul to Fort Aber-crombie for $2 90 per hundred pounds.
    The said firm and claimant insist that they were not under such a contract, and were not bound to transport any supplies except under a special agreement made between them and the assistant quartermaster, and then at such a rate of compensation as might be agreed upon in each particular case, and that in this case the compensation was to be so much as the transportation was reasonably worth; and this constitutes the only issue in this case, as all the witnesses agree that a reasonable price for this transportation would be $4 50 per hundred pounds from St. Paul to Fort Abercrombie.
    The contract exhibits no provision or condition for a longer duration or existence than that provided by law, which is one year from its date. (See act of March 2, 1861,12 Stat. L., p. 220.)
    The contract of May 1,1861, was not revived generally, so as to apply to all transactions done in Minnesota, or between St. Paul and Fort Abercrombie, for any given period of time. This would have required a compliance with the act of March 2,1861, and the department regulations., and a written contract and a bond to fulfil its terms.
    We submit the following propositions of law as governing this case:
    1. That no contract with the Quartermaster’s Department United States Army, or with any of its subordinates, made since the 2d day of March, 1861, is of any force or validity longer than for the current year from its date. (12 Stat. L., p. 220.)
    2. That no contract which has expired by statutory limitation can be revived without the same formality and proceedings required by law in making original contracts, except in cases of emergency, and then only for the emergency.
    3. That when the public exigencies require the immediate performance of transportation service, it is, and since March 2,1861, has been competent for the officers of the Quartermaster’s Department to procure it without first advertising for proposals, and that an order of a general commanding an army in the field, or geographical district, or a department, for such service, on the ground that an exigency exists, is conclusive on all departments of the government, and any contract made by an officer of the Quartermaster’s Department pursuant to such orders is binding and valid.
    4. That admissions made against interest may be explained, rebutted, denied under oath, and disproved by a party, unless they have been acted upon by a third party, and their disapproval would be to the prejudice and injury of such party. (G-reenleaf on Evidence, -vol. 1, par. 209, and authorities there cited.)
    5. Receiving money or vouchers for work done under a contract, with a protest from the party receiving it that it is not full payment, and not to be so considered, as with the understanding between the parties that it shall not be considered full payment, and not prejudice the rights of the creditor to larger compensation, does not constitute a waiver on the part of the party receiving it of his claim for other and greater compensation.
    6. That if the firm of J. C. and H. 0. Burbank & Co. did the transportation under the contract of May 23, 1861, as claimed by the War Department, they are still entitled to the difference between the value of the Treasury notes and gold on the day of payment, to wit: October 1,1863, which was 40 per cent., making $2,549 24, having protested against receiving that amount of Treasury notes as payment.
    
      
      Mr. Alexander Johnston, (with whom was the Assistant Attorney General) for the defendants:
    I. The contract of May 23,1861, had not expired on the 17th of July, 1863. The act of March 2, 1861, (12 Stat. L., p. 220,) does not limit the existence of such a contract to “ the current year.” The proAdsion of the act (in section 10) upon which the claimant relies is as follows:
    “ No contract or purchase shall hereafter be made unless the same be authorized by law, or be under an appropriation adequate to its fulfilment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.”
    No contract authorized by law, or made under an appropriation.adequate to its fulfilment, is affected by this provision of the act. The act was intended to restrain and regulate extraordinary expenditures in anticipation of appropriations by Congress j and a contract made in Adolation of its proA’isions is void ah initio.
    
    If, as is claimed, the act terminates all contracts at the end of the current year, it was absurd to make such a contract as this one. The term “ current year,” in this connection, clearly means the current fiscal year — a time for which appropriations are made. Then why make a contract at a time so near the end of the year that (taking into consideration the time necessary to secure its approval by the Quartermaster General, and its transmission to St. Paul) nothing could be accomplished under it? And why fix the. rates for transportation for times that could not recur during that “current year?”
    II. If, as a formal Avritten contract, the contract of May 23, 1861, expired at the end of “the current year” by virtue of the provisions of the statute, yet as the claimants continued to furnish transportation under it for two years, this constituted a renewal of it from year to year, or at least until such time as it might be terminated by reasonable notice. Notice given at a time when the contractors were called upon to furnish transportation was not reasonable notice as to the transportation then required. The government officers had been led, by the conduct of these contractors, to suppose that there was an existing contract for transportation of stores from St. Paul to Fort Abercrombie; and hence no steps were taken to make a new contract. An emergency arose, and the contractors were called upon to furnish transportation. They were the only parties who could furnish the transportation without delay. Then, and not till then, they objected.
    And they do not then ignore the existence of the contract; on the contrary, two weeks afterward, they expressly acknowledge its existence.
    III. The claim is barred by act of March 3,1863, section 10, (12 Stat. L., p. 766.)
    Against charges for services the statute runs from the time the services are performed. (Bothery v. Munnings, 1 Barn. & Ad., p. 15.)
    - The claimant has not, by anjr competent testimony, proved an assignment of the claim to him; and, if he had, the suit is improperly brought in his name.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $3,516 21, being a balance due under a parol agreement for the transportation of army supplies.

Serious doubts are entertained by the court whether a payment made by a quartermaster within six years of the time of bringing the action, can take the case out of the statute of limitations,, especially when the balance was never admitted by the defendants’ agents to be due, and the payment was made by them avowedly upon another and different contract, previously subsisting between the parties, though relating to the same services. But inasmuch as this statute of limitations is going-up to the Supreme Court for a construction in other cases and upon various points, and inasmuch as a majority of the judges are agreed as to the claimants’ right to recover upon the merits, it has been thought best to forego expressing an opinion on the point and to reduce our decision to the following formal findings of fact:

I. The firm of J. C. and H. C. Burbank & Co. contracted with Major McKinstry, a duly authorized quartermaster of the defendants, on the 23d May, as follows:

u Fourth. That they will receive at St. Paul, Minnesota, store, attend to forwarding and transporting all public stores delivered to them at the rates following, to toit:

u From St. Paid to Port Abercrombie, Dalcota Territory, $2 90 per one hundred pounds, to be transported overland in water-proof covered wagons. Time, about twelve days, or with privilege of carrying between St. Anthony cmd St. Cloud, during the season of navigation by steamboats, balance of route by %oater-proof covered wagons, between the 15th of April and loth of September, from St. Paul to Port Abercrombie, Dalcota Territory, at $2 40 per one hundred pounds; and for allpublic stores delivered to them between the loth of September and the 15th of April, at St. Paul, Minnesota, at the rates following, to wit:

u Prom St. Paul to Port Abercrombie, Dalcota Territory, $3 05 per one hundred.”

Tbe contract specified no period of duration, but tbe parties acted under and in pursuance of its terms until tbe 19tb July, 1863. On that day Captain E. B. Carling, an assistant quartermaster in charge of tbe department at St. Paul, being obliged to send forward quartermaster and commissary stores to Fort Abercrombie in a military exigency, notified Burbank & Co. to receive and transport them under tbe contract referred to. But Burbank & Co. declined to receive and transport tbe goods under that contract, and refused to acknowledge its force or validity, and represented that tbe Indian hostilities bad greatly increased tbe cost of transportation. Captain Carling being unable to obtain transportation from other parties, thereupon entered into a verbal agreement with them that they should transport such supplies and should receive for their service whatever price tbe same might be reasonably worth. The firm of Burbank & Co. thereupon received and transported the goods and stores set forth in the petition, from St. Paul to Fort Abercrombie, 'and performed all the requirements of the agreement. The quartermaster, Captain Carling, fixed the value subsequently at, and the transportation was reasonably worth, $4 50 per hundred pounds. But the Quartermaster’s Department refused to allow or pay to Burbank & Co. any greater price than $2 90 per hundred pounds, for the alleged reason that the obligations of the original written contract had not been terminated by reasonable notice, and that the services should justly and legally be deemed to have been rendered thereunder and at the agreed rate of compensation.

II. The services set forth in the petition were performed and completed by Burbank & Co., at Fort Ambererombie, on the 31st July, 1863. On the 1st October, 1863, the firm was paid by the quartermaster at St. Paul $6,393 12, being a payment at the rate of $2 90 per hundred pounds, and leaving unpaid a balance of $3,516 21. This balance the defendants then and there refused to pay, and it still remains unpaid, as is correctly alleged and set forth in the petition. The petition by which this action was commenced on such alleged indebtedness was filed in this court the 26th August, 1869, being more than six years from the time the services were performed, and less than six years from the time of payment and refusal, as described.

And upon these facts the Court of Claims, as a conclusion of law, decides:

1. That the claimants have a good and valid cause of action upon the parol agreement set forth in the second finding of fact for the fair and reasonable value of the services rendered by them to the defendants, and that they should recover the balance remaining due thereupon, to wit, the sum of $3,516 21.

2. That the claimants are not barred from maintaining this suit upon the facts set forth in the second finding under and within the real intent and meaning of the Act 3d March,, 1863, (12 Stat. L., p. 765, sec. 10.)

The judgment of the court is that the claimants recover of the defendants for the use of the claimant, Amherst H. Wilder, the sum of $3,516 21.  