
    HERSCH’S CASE.
    Joseph Hersch v. The United States.
    
      On the Proofs.
    
    
      •One Gr. has a contract with the Commissary Department for the sale and delivery of flour at a fort on the frontier. Be assigns his interest in it to the claimant, who malees deliveries under it in the name of the contractor and is paid therefor. Subsequently he starts a wagon-train with flow for the fort, then changes his mind and orders his agent to deliver it to a third person there. When the flour reaches the fort it is seized by the military authorities being needed for the use of the garrison.
    
    I.An implied promise is created by law that the owner of property shall receive its value from a party who appropriates it to his own use; and this principle extends to the government when it appropriates and enjoys private property.
    II.Where a party brings his action in his own name and upon the implied contract arising from the taking of his own property for public use, it is no defense that he had been acting as assignee of a contract for the sale of similar goods, and that the transfer of such contracts renders them void under the Revised Statutes ($ 3737).
    III.If the assignee of a public contract can be held to the liabilities of the contractor, he must nevertheless be put in default by proper notice.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbis case as found by tbe court: I. On September 21,1868, tbe following written agreement was entered into between Abrabam Gold, of Santa Fé, N. Mex., and Capt. Charles McClure, United States Army, and was approved by the officer commanding the district:
    “Articles of agreement, made this twenty-first day of September, eighteen hundred and sixty-eight, between Bvt. Major Chas. McClure, commissary of subsistence, United States Army, of the one part, and Abraham Gold, of the county of Santa Fé, in the Territory of New Mexico, of the other part.
    “ This agreement witnesseth, that the said Bvt. Major Chas. McClure, capt., commissary of subsistence, for and on behalf of the United States of America, and the said Abraham Gold, for himself, and for his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, in manner following, aúz:
    “First. That the said Abraham Gold shall deliver at Fort Wingate, New Mexico (Ojo del Oso), 225,000 (two hundred and twenty-five thousand-) pounds of superfine flours of the best quality, well bolted, and perfectly free from grit, smut, and all foreign substances, and put up in strong cotton sacks of one hundred pounds net each, and branded with the name of the contractor and the date of manufacture. First deliveiy, of 25,000 pounds, required by the 20th day of October, 1S68, and the remaining deliveries as required by the A. C. S. at the post.
    “Second. The contract to be in force for twelve months or such less time as the Commissary-General of Subsistence may direct, commencing on the first day of October, 1868.
    “Third. The said Abraham Gold shall receive (6^ cts.) six cents and eighty-one one-hundredtlis of one cent for each and every pound net of superfine flour delivered and accepted under this contract.
    “Fourth. Payment to be made at the time of delivery for the amount of subsistence stores received and furnished under this contract; but in the event of the chief commissary of subsistence being without funds, then payment to be made as soon as funds may be received for that purpose.
    “Fifth. The flour delivered under this contrat shall be rigidly inspected by the acting commissary of subsistence, or such other person as he may appoint for that purpose, and is not to be accepted or paid for until that inspection is made.
    “ Sixth. That in case of failure or deficiency in the quality or quantity of the superfine flour stipulated to be delivered, then the chief commissary of subsistence, or such officer as he may designate, shall have power to supply the deficiency by purchase, and the said Abraham Gold will be charged with the difference in cost.
    “ Seventh. No member of Congress, officer or agent of the government, or person employed in the public service, shall be admitted to any share herein or any benefit that may arise here-from.
    
      ■“ In witness whereof the undersigned have hereunto placed tneir hands and seals the day and date above written.
    “Chas. McClure, [seal.]
    “ Captain and Commissary Sub. and Bvt. Major, Ú. S. A.
    
    “Abraham Gold.” [seal.]
    II. Afterwards, Abraham Gold made with the claimant the following agreement:
    “ Translation of an original paper in Spanish, transmitted to the court by the Secretary of War with the original papers in the above cause. '
    
    “Know all men by these presents that I, Abraham Gold, in consideration of the sum of (six hundred dollars), to be paid to me by Joseph Hersch, on or before expiration of eight months from this date, have transferred, and in effect do transfer, in the favor of Joseph Hersch, all my interest in a contract for two thousand two hundred and fifty sacks of flour, of one hundred pounds to each sack, which I have taken for Fort Win-gate, N. M., under the proposals opened in Santa Fé, N. M., on the fourteenth day of the present month of September of 1888.
    “Be-it remembered, further, that Joseph Hersch promises to deliver the said two thousand two hundred and fifty sacks of flour on the same terms and conditions that the undersigned has contracted with the chief commissary of the district of New Mexico; it is equally conditioned that the undersigned Abraham Gold shall give full and sufficient power to the said Joseph Hersch to use his name in the vouchers, and to receive from the commissary the money due from said contract.
    “ In testimony of the same, we have signed this document this eighteenth day of September, one thousand eight hundred and sixty-eight-.
    “Abraham Gold.
    “Joseph Hersch.
    “ Witnesses:
    “ Gasper Ortiz.
    “Antonio Sena.”
    And Abraham Gold, on the 23d of November following, executed the following power of attorney, which was duly acknowledged before the probate judge of the county of Taos, New Mexico, on that date:
    “Know all men by these presents that I, Abraham Gold, of Santa Fé, in the county of Santa Fé, and Territory of New Mexico, have made, constituted, and appointed, and by these presents do make, constitute, and appoint Joseph Hersch, of said city, county, an d Territory, my true and lawful attorney, irrevocable for me and in my name, place, and stead, to sign my name to any vouchers issued in my name and favor by the acting commissary of subsistence,U. S. A., at Fort Wingate, New Mexico, on account of flour delivered by me at said fort, upon a contract entered into by me with the chief commissary of subsistence of the district of New Mexico, dated September 21st, 1868, and to • receive and receipt for to Bvt. Major Chas. McClure, commissary of subsistence, U. S. A., any and all monies and dues, of whatsoever nature accruing to me from said contract, giving and granting to my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present and assenting thereto; with full power of substitution and revocation, and hereby annulling and revoking all former powers of attorney or authorizations whatever in the premises, ratifying and confirming all that my said attorney or his substitute may or shall lawfully do or cause to be done by virtue hereof.
    “In witness whereof I have hereunto set my hand and seal this 23d day of November, 1868.
    “ Abraham: Gold.
    
      “ In the presence of—
    
      “ Mayses Vigil.
    “ Datjrigo Jaromillo.”
    The agreement and power of attorney were both delivered by the claimant to the officers of the government, and were filed in the War Department.
    III. All the flour delivered under this contract was furnished by the claimant; and all payments made for such flour were made to the claimant as the agent of Gold.
    IV. The 9,653 pounds of flour claimed in the first count of the petition were paid for to claimant March 8,1869, at the contract price, by check payable to the order of claimant (which was afterwards indorsed by him and paid), and were receipted for by him for Gold in full, and without protest or objection.
    V. The flour mentioned in the second count of the petition (12,383 pounds) was sent forward from Santa Fé about the middle of April by the claimant, to be delivered to the government officers at Fort Wingate under the contract with Gold, and by agreement between the claimant and Gold. When the flour was on its way the claimant sent written instructions to the person in charge of his wagons not to deliver the flour to the government, but to his agent at Fort Wingate, one D. Prov-encher.
    
      About tlie 1st of May, 1869, while the wagons were on their way, and when they were twenty miles from Fort Wingate, an officer of the Army, with an escort of soldiers, stopped the wagons, and talcing- out several sacks of flour, placed them in a government wagon, and drove with it to Fort Wingate. The officer returned the nest morning with the wagon-load of flour; no report of a seizure was made, but that the wagon-master had informed him that he had been directed to turn the flour over to other parties. This, was against the objections of the carriers, the officer saying that there was no flour at Fort Wingate, and that he must have the claimant’s, without regard to the ownership.
    VI. .The carriers thereupon'Continued their journey and arrived at Pro vencher’s store at Fort Wingate. Before the wagons were unloaded they were there ordered by an officer of the Army, with a party of soldiers, to be taken to the commissary storehouse of the government, where the flour was unloaded and placed in the storehouse (p. 32), and was afterwards applied to the use of the United States.
    VII. Tbe claimant and Gold were at the time of these transactions both residents of Santa Fé. The claimant was a dealer in flour and merchandise. Gold was a clerk, and was the grand nephew of the claimant.
    VIII. At the time of these transactions the market price of flour at Santa Fé ivas only 4.35 cents per pound (p. 48), and at Fort Wingate not exceeding 8.25 cents per pound, although in small quantities a larger price was sometimes charged.
    IX. It is not shown that the claimant or Gold was called on by the military authorities to furnish flour under Gold’s contract with the. government and failed to do so, or was otherwise regularly put in default for failing to furnish flour until June 9,1869, after the transactions already stated had transpired.
    X. Some flour that had been furnished by the claimant, under the contract with Gold, was of an inferior quality, and some was rejected by a board of survey. The quantity of that Avhich was below the contract standard is not shown, and there is no claim in this suit for that rejected.
    XI. Claimant never demanded of the officers more than the contract price, and never made further claim till the commencement of this suit. The claimant has been demanding payment from May 8, 1869, until the 21st of May, 1878, when the case was-referred to this court by the War Department.
    
      
      Mr. A. D. Robinson (with, whom was the Assistant Attorney-General) for the defendants:
    I. The flour claimed in the first count of the petition was not only not seized, but has been paid for and receipted in fall, and therefore there can be no recovery for it.
    II. The flour claimed in the second count never having been seized, but delivered on the contract of Gold, no recovery can be had except at the contract price.
    
      Mr. James Lowndes for the claimant:
    The government, having got the benefit of claimant’s flour, is liable on the implied contract. (Johnson's Case, & O. Cls. R., 248; BurohieVs Case, 4 G. 01s. R., 549; Danold's Case, 5 C. Gls. R., 65; Devlin's Case, 12 0. 01s. R., 266; Salomon's Case, 19 Wall., 19; Bawldns' Case, 96 U. S., 689.)
   Hunt, J.,

delivered ihe opinion of the court:

The claimant was a dealer in flour and other merchandise in Santa Fé, N. Mex., in 1868 and 1869. One Abraham Gold, his grand nephew, was then a clerk in the same town, and entered into a contract with the military officers of the government to supply .the garrison at Fort Wingate with flour for twelve months from the 21st September, 1868, or for such less time as the Commissary-General of Subsistence might direct, and when required by. the commissary of subsistence. Soon after making this contract the claimant undertook to discharge its obligations, and for that purpose a writing was executed between him and Gold by which the latter transferred to the claimant all his interest in the contract.

The claimant delivered the flour stipulated for in the contract, and, under a power of attorney from Gold, received pay for the quantities so delivered. He brings this suit to recover the price of two parcels of flour, which he alleges were delivered by him in his own behalf.

The first parcel for which he claims judgment is found by the court to have been paid for to him. The only controversy to be disposed of refers to the second parcel, which consisted of 12,383 pounds. This has not been paid for, although the flour was received and consumed by the government.

The findings show that tbe flour was started from Santa Fé to be delivered at Fort Wingate to tbe officers of tbe garrison; but before it reached there tbe claimant sent orders, which overtook tbe wagons transporting it, and directed that it be not delivered to tbe government officers, but to one Provencher, bis agent at Fort Wingate. After this, and while tbe wagons were yet on their way, an officer of tbe garrison, with an escort of soldiers, stopped tbe wagons and took from them a number of sacks of flour, with which be drove oft to Fort Wingate. This was done against tbe objections of tbe carriers. Tbe officer disregarded their objections, said there was no flour at tbe garrison, and that be must have that without regard to its ownership. Tbe wagons with tbe remainder of tbe flour kept on to Fort Wingate, and proceeded to tbe store of Provencher. They were there ordered by an officer, attended by a party of soldiers, to tbe commissary storehouse, where tbe flour was unladen and stored against tbe protest of Provencher and tbe carriers. It was in time consumed by tbe troops, and never has been paid for to tbe claimant.

An implied promise is created by law as well as by natural justice that tbe owner of property shall receive its value from a party who may have appropriated it to bis us'e and benefit. This is as much tbe case where tbe government enjoys tbe property as in tbe instance of a private individual. (Mason v. The United States, 14 C. Cls. R., 70.)

Several objections are urged against tbe claimant’s demand which call for notice. It is contended that tbe claimant is tbe transferee of Gold, and bad such an interest in tbe contract of tbe latter as is prohibited under § 3737, Eevised Statutes. It is an answer to this objection to say that tbe claimant does not bring bis action upon tbe contract, and makes no claim under it. (14 C. Cls. R., ib.) It is tbe defendants who set up tbe written contract and seek to bind tbe claimant within its folds.

But, conceding that tbe claimant came under tbe liabilities of tbe contract with Gold, we find that be was not put in default for a failure to deliver tbe flour according to its tenor. It was only after tbe appropriation of this flour that a demand is proved to have been made upon him or Gold to furnish flour; and it is not shown that tbe government sustained any specific loss from tbe failure of Gold or tbe claimant to comply with tbe contract.

The claimant had the undoubted right to dispose of his goods as he chose. No one could properly interfere with that right except by authority of law. Even if the claimant had originally intended to deliver this flour under the contract, and had started it forward for that purpose, he could change his mind and its destination at any moment before it was reduced to possession by the agents of the government.

Whether the change of the destination of the flour was effected by the claimant in the hope that his agent might take advantage of the necessities of the garrison and so secure a higher price than that stipulated in the contract, or from any other sinister motive, it is unnecessary to inquire. There is> much cogency and plausibility in the argument of the learned counsel for the defendants that the claimant and his nephew, Gold, were in substance one and the same person, and had confederated and conspired together in order to speculate with impunity upon the government by fraudulently evading the obligations of the contract.

There is some reason for suspecting that the claimant has, perhaps, walked in the border-land of fraud and followed its crooked paths, where the footsteps of honest suitors ought not to stray. Whilst the evidence fails to make this legally certain, still there is enough in the record to warrant us in awarding him' only the market value of his goods at the place and time the government took possession of them.

The claimant is entitled to recover the price of 12,383 pounds of flour, at 8;{: cents per pound, viz, $1,021.60.  