
    KIHLBERGr’S CASE.
    Frank O. Kihlberg v. The United States.
    
      On the Proofs.
    
    
      An Army transportation contractprovides that the transportation shall he paid for according to the distance, “to be ascertained and fixed by tho chief quartermaster.” The chief quartermaster, without actual measurement, but by correspondence with officers, <fe., fixes the distance at less than the air-line distance between the places. The claimant is paid accordingly. The contract also provides that payment shall he made on a certificate of the officer who receives the stores. In transitu, the stores lose weight hy unavoidable shrinkage and, leakage. The claimant is paid at the diminished weight. One of his trains being delayed, the quartermaster at the place of delivery sends wagons to bring in apart of the supplies and charges the claimant therefor.
    
    I. Where a contract provides that Army transportation shall bo paid for according to tho distance, “to be ascertained and fixed by the chief quartermaster,” and the chief quartermaster, without measurement, fixes tho distance, it is conclusivo upon tho contractor, though erroneous and less than the air-line distance between the terminal points of transportation.
    II. When a transportation contract, after relieving the contractor from responsibility for unavoidable leakage and shrinkage, provides that payment shall be made on the receiving officer’s certificate, “stating the quantity cmd condition of the stores delivered,” the contractor, though without fault, cannot recover freight earnings on the quantity received by him for transportation, but only on the quantity delivered by him, after leakage and shrinkage.
    III. When, an Army transportation train being delayed, a quartermaster sends wagons to assist in hastening forward the supplies, tho service is voluntary if made without the contractor’s request and cannot be charged to him.
    
      
      The Reporters' statement of tbe case:
    Tbe following are tbe contracts on wbicb tbe action is brought and tbe facts found by tbe court.
    “This agreement, made and entered into tbis thirty-first day of January, one thousand eight hundred and seventy, bjr and between Brevet Major-General L. 0. Easton, deputy-quartermaster-general, United States Army, chief quartermaster department of tbe Missouri, for and on behalf of tbe United States, of tbe first part, and Frank O. Kihlberg, of Kansas City, Jackson County, in tbe State of Missouri,' of tbe second part, for himself, bis bens, executors, and administrators, witnesseth: That tlie said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other, as follows, viz:
    “Article I. That tbe said Frank O. Kihlberg shall receive at any time, in any of tbe months from April 1,1870, to March 31, 1871, inclusive, from tbe officers or agents of tbe Quartermaster’s Department, at such points on tbe Kansas Pacific Bailway as may, during the existence of tbis contract, be designated by tbe said chief quartermaster of tbe Department of tbe Missouri, or bis successor in office, all sucb military, Indian, and government stores and supplies as may be offered or turned over to him for transportation in good order and condition by tbe officer or agent of tbe Quartermaster’s Department at any or all of tbe above points or places, and transport tbe same with dispatch, and deliver them, in like good order and condition, to tbe officer or agent of tbe Quartermaster’s Department on duty or designated to receive them at any places that may be designated by tbe forwarding officer in tbe State of Kansas and Territory of Colorado south of latitude (40) degrees north, and in sucb portions of tbe State of Texas and Indian Territory as lie north of the lied Elver and west of longitude ninety-seven (97) degrees, and at Fort Union, New Mexico, or other depot that may be designated in that Territory, and to any other points on tberoute to that depot, agreeably to the instructions be may receive from tbe officer or other authorized agent of tbe Quartermaster’s Department charged with tbe duty of forwarding tbe stores and supplies at tbe place of departure; and for tbe faithful performance of sucb sendee be shall be paid in tbe manner hereinafter provided for in Article XYII of tbis agreement, and at tbe rates sxiecified and shown in tbe tabular statement hereto’ annexed, and signed by tbe parties to tbis agreement, wbicb statement is considered as part hereof.
    “ Art. II. That tbe said Frank Q. Kihlberg agrees and binds himself, bis heirs, executors, and administrators, to transport, under tbis agreement, from and to tbe posts, depots, or stations named in Article I, or from and to any other posts, depots, or stations that may be established within the district described in said article, any number of pounds of military, Indian, and government stores and supplies from and between one hundred thousand pounds and ten millions of pounds in the aggregate.
    “Art. III. The said Frank O. Kihlberg agrees and binds himself to have at Sheridan, Kansas, or any other starting-point on the route that may be agreed upon by the parties to this agreement, a place of business or agency; and for all stores to be transported under this agreement, notice shall be given the said Frank O. Kihlberg at said place of business or agency.
    “Art. IY. In order that the said Frank O. Kihlberg may be in readiness to meet the demands and requirements made upon him for transportation under this contract and agreement-, written notice shall be given him or his agent of the quantity and kind of stores to be transported at any one time, at what point 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 than three hundred thousand pounds, fif- ' teen days’ notice; for any quantity between three hundred thousand and six hundred thousand pounds, twenty days’ notice; for any quantity between six hundred thousand and one million of pounds, thirty days’ notice; for any quantity between one million of pounds and two million five hundred thousand pounds, forty days’ notice; foi; any quantity between five millions of pounds and ten millions of pounds, sixty days’ notice; for any quantity between ten millions of pounds and twenty millions of pounds, seventy days’ notice. It is also understood that no two of the said notices shall take effect within ten days of each other.
    “ Art. Y. The military, Indian, and government stores and supplies which shall be transported under this agreement shall be consigned to then? respective destinations, and receipts on' bills of lading shall be given by the officer of the Quartermaster’s Department serving at the place of consignment for the full quantity of stores that shall be delivered, and, upon such receipts, payment shall be made to the said Frank Q. Kihlberg, as hereinafter provided.
    “Art. YI. That all the means of transportation to be used by the said Frank O. Kilhlberg, under this agreement, shall be submitted to the inspection of the officer or agent of the Quartermaster’s Department at the place of departure, and such only shall be used as may be then and there accepted by him. The stores turned over to the said Frank O. Kihlberg for transportation shall be transported in trains of not less than twenty-five wagons each, whenever the officer or agent of the Quartermaster’s Department at the point of starting shall tan over a sufficient quantity of stores to make up the loading of that number of wagons; and in all cases the stores turned over for transpon-tation sliall be delivered to tbe consignee by tbe contractor in tbe same lots or invoices as received at points of departure..
    “Aut. VII. Tliat- to insure tbe delivery of tbe stores and to aid tbe contractor in tbe execution of bis agreement, certificates setting- forth tbe number of tbe train, tbe number of wagons in it, and tbe condition of tbe train for tbe prosecution of its journey, sliall be given by tbe officers or agents of tbe Quartermaster’s Department at Fort Lyon, when that post is on tbe route to tbe destination of tbe train. Upon each certificate so given, setting forth tbe good condition of tbe train, payment shall be made to tbe contractor for tbe service rendered to that point; and, upon tbe arrival of tbe train at its place of destination or delivery, tbe officer of tbe Quartermaster’s Department at tbe point of delivery shall indorse tbe bill of lading in accordance with the-finding of a board of survey, as hereinafter provided, stating tbe quantity and condition of tlie stores delivered, upon which indorsement payment shall be made as per contract, deducting tbe amount of any payment or pajnnents previously made, and also for any articles missing, lost, destroyed, or damaged, and which tbe board of survey may find to be properly chargeable to tbe contractor, at tbe rate specified in Article VIII of this agreement.
    “Atit. VIII. In all eases when stores have been transported by the said Frank O. Kihlberg, under this agreement, a board of survey, to be applied for in writing by tbe contractor or bis agent (one member of which board sliaíí be, if practicable, an officer on duty in tbe Subsistence Department), shall be called without delay, on their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and, in cases of loss, deficiency, or damage, to investigate tbe facts and report tbe appearent causes, assess tbe amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on tbe part of tbe contractor or to causes beyond bis control; and these proceedings, a copy of which shall be furnished to- tbe contractor, shall be attached to tbe bill of lading, and shall govern tbe payments to be made on it.
    “For loss of weight due to shrinkage, and for leakage of vinegar, molasses, or other liquids, tbe contractor shall not be held liable, if tbe packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or bis agent. For loss, deficiency, or damage attributable to tbe contractor, be shall pay double tbe cost at the point where be receives tbe articles, which cost shall be determined by taking tbe cost price at place of purchase and adding thereto tbe cost of transportation to tbe point Avliere tbe stores were turned over to tbe contractor, and no freight whatever shall be paid on stores deficient. In case of damage, freight shall be deducted in proportion to tbe quantity damaged. Should no board of survey be called, when requested by contractor, through failure on the part of the Quartermaster’s Department, or other military authority, to have one convened, it shall be considered that the contractor has delivered all the stores, as specified in the bill of lading, in good order and condition, and he shall be paid accordingly. Hut before such payment is made, the fact must be shown that the contractor or his agent did make application in writing to the Quartermaster for a board of survey. If the amount of loss, deficiency, or damage exceeds the value of the bill of lading, it shall be deducted from any after payment that may become dire.
    “Transportation to be paid in all cases according to the distance from the place of departure to that of delivery; the distance to be ascertained and fixed by the chief quartermaster of the district of New Mexico, and in no case to exceed the distance by the usual and customary route. Where, however, stores are taken from trains before reaching their destination by competent military authority, the contractor will be allowed an increase of pay of five per cent, on contract rates to points of actual delivery: Provided, That in no case more, than the regular rates for the whole distance are paid.
    “Art. IX. That in case any one or more of the trains of the said Frank O. Kihlberg are stopped or delayed at any place any time exceeding two days, either by the orders of an officer or agent of the Quartermaster’s Dejiartment, or the commanding officer of a post, or of troops present, or by failure of the proper officer to convene a board of survey when requested by contractor in writing, the contractor shall be paid, upon a statement in writing, procured from the officer or agent of the government causing 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.
    “ But no such payments shall be made when the order for the stoppage of a train or any portion thereof is given because of the inability of the contractor to proceed with the said train, or any portion thereof, by reason of deficiency in quantity or quality of means of transportation, or by any act or fault of his. In case the officer or agent of the government aforesaid shah refuse to furnish the statement in writing, above referred to, then the delay shall be paid for as above, on the 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: Provided, That when such delay is occasioned by proper military authority for the protection of the trains, the delay shall not entitle the contractor to any compensation, but the time so lost shall be allowed to him in computing the time of the trip.
    “Art. X. The said Frank O. Kihlberg shall be furnished, on application to post commander, with a suitable escort for the protection of tlie supplies, should be be required to transport in any one train a less quantity than one hundred and twenty-five thousand pounds.
    “ Art. XI. That the said Frank O. Kihlberg shall transport all the military, Indian, and government- stores and supplies for which the Quartermaster’s Department may require wagon transportation by contract on the mite specified by this agreement, during the year ending March 31, 1871, provided the weight of such stores and supplies shall not exceed, in the aggregate, ten millions of pounds; yet nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service whenever it may be deemed advisable to do so.
    “Art. XII. That all stores shall be delivered in a reasonable time after being turned over to the contractor, not to exceed ten days per hundred miles for mule-trains, and fourteen days per hundred miles for ox-trains, from the time of starting, unless detained by orders en route, which must be produced; and in determining the date of starting, the date of bill of lading shall govern, and the bill of lading shall bear date on the completion of the loading of the train, and the contractor shall be allowed for loading not to exceed two days for each train of twenty-five wagons, and in that proportion for auy greater or less number of wagons, from the time the stores are turned over to the contractor for transportation, as provided for in Articles I and IY of this agreement.
    “Any delay beyond such time a sspecifiedto be charged to the contractor, at the rate allowed for delay caused by orders, as provided in Article IX of this agreement, unless such delay arises from causes beyond the control of the contractor, and so determined by a board of survey: Provided, That in the case of trains starting in the months of November, December, January, February, and March, and destined to points not more than one hundred and fifty miles from the point of starting, the contractor shall not be chargeable for any delay beyond the time specified in this article, unless it shall appear that such delay arose from causes within his control.
    “Art. XIII. That in case of failure, by reason of deficiency in the quality or quantity of the means of transportation furnished or from any'other cause onthepart of the said Frank O. Kihlberg to be in readiness to meet the demand and requirements made upon him for transportation under this contract or agreement, after due notice shall have been given him or his agents, as provided in Article IY of this agreement, then the chief quartermaster of the department or district shall have power to supply the deficiency either by purchase, hire, special contract, or the use of government transportation, as the said officer may elect, and the said Frank O. Kihlberg shall be charged with the additional cost or expense thus incurred over the rates of this contract; and in tlie case of tlie use of government transportation, the additional cost or expense shall be considered to be one-fourtb of the sum which, under the contract, Avould be payable under the service; the rate to be that of the month in which the stores are started by the government transportation.
    “Art. XIY. It is understood that if at anytime stores or supplies are required’ to be transported back to any iioint on the road, or to any of the original points of departure, or from one point to another within the route, they shall be carried upon the same terms and conditions as herein provided.
    “Art. XY. It is understood that the government will, whenever it is deemed advisable, contract for forage to be delivered at any of the posts within the territory described in Article I.
    “Art. XYL It is distinctly understood that should any of the supplies, while in the hands of the contractor, be transported by rail over any portion of tlie route, the government will pay the rates the contractor pays for said transportation and nothing more.
    “Art. XYII. For and in consideration of thefaitliful performance of the stipulations of this agreement, the said Frank O. Kililberg shall be paid at the office of the dejiot quartermaster at Fort Leavenworth, Kansas, in the legal currency of the United States, according to the distance supplies are transported, and agreeably to the rates specified in the tabular statement hereto annexed, signed by the parties to this agreement.
    “Art. XYIII. It is expressly agreed and stipulated between the parties to this contract that, upon mutual agreement, it may be changed, altered, modified, or abrogated in whole or in part; but no such change, alteration, modification, or abrogation shall be interpreted as entitling the contractor to increased rates of compensation over the rates herein specified.
    “Art. XIX. It is expressly understood that no member of Congress, officer, agent, or employee of the government shall be admitted to any share or part in this contract or agreement, or derive any benefit to arise therefrom.
    “Art. XX. This contract is made subject to the approval of the commanding officer of the Department of the Missouri, and of the commanding officer of the Military Division of the Missouri.”
    The following axe the facts found by the court:
    I. Tlie contract subjoined to the claimant’s petition as Exhibit A was entered into as alleged in the petition.
    II. On the ICth of June, 1870, the chief quartermaster of the Department of the Missouri addressed to the department-quartermaster at Fort Leavenworth, Kans., the following letter:
    
      “Headqbs. Dept, oe the Mo., Che. Qbmb. Oee.,
    
      uSk Louis, Mo., June 16,1870.
    “ Lt. Col. J. M. Mooee,
    
      “Dept. Qrmr., Fort Leavenworth, Kan.:
    
    ' “ Sik : Tbe following distances are fnxnisbed yon for your government in making settlements under tbe contract of F. O. Kibl-berg, dated January 31st, 1870, for transportation:
    
      
    
    “Distances from Kit Carson, C. Ty.,.will be furnished you as soon as ascertained.
    “Very respectfully, your obedient servant,
    “L. C. EASTON,
    
      u Deputy Q. M. General, O. Q. M.n
    
    III. On or about tbe 30th of June, 1870, tbe agent of tbe claimant was having bis first settlement with Col. James M. Moore, quartermaster at Fort Leavenworth, for transportation' done under said contract between Fort I-Iays and Camp Supply, when said Moore informed tbe agent that tbe chief quartermaster bad instructed him to pay for 80 miles from Hays to Dodge, and for 166 miles from Hays to Camp Supply. Tbe agent protested that those distances were not satisfactory, and refused to receive payment without assurance that it should not prejudice tbe contractor’s claim for greater distances, if tbe greater distances claimed should be ascertained to be correct, which distances the biformation then in the possession of tbe contractor and tbe agent indicated to be, from Hays to Dodge, 86 miles; from Hays to Camp Supply, 181 miles; and from Hays to Larned, 52 miles. Tbe said Moore referred tbe agent to tbe chief quartermaster, who assured tbe agent that, should tbe distance be ascertained to be what tbe latter claimed, payment would be made accordingly; and that tbe settlement .made at tbe time of these conversations should be no bar or prejudice against such payment for work already done or to be done. On tbe 5th of August, 1870, after payments bad been made to tbe claimant through tbe said agent for transportation from Hays to Dodge and from Hays to Camp Supply, tbe agent again saw tlie chief quartermaster, who informed him that he had corresponded with the officers at Fort Hays, and was satisfied that the distances he had instructed Colonel Moore to settle for were correct. It does not appear that, prior to August 5,1870, there had been any actual measurement of the road from Fort Hays to Fort Dodge or of that from Hays to Lamed.
    IY. During the period of time covered by said contract, the distance by an air-line from Hays to Dodge was 84 miles and 50 chains, and from Hays to Lamed, by an air-line 47 miles and 30 chains; and the road between Hays and Dodge and that between Hays and Lamed were each two miles longer than the air-line distances named. At the trial, the claimant admitted that the distance from Dodge to Camp Supply, as stated in the letter of the chief quartermaster, set forth in finding II, was correct.
    Y. Under said contract, from time to time, stores were delivered to the claimant at Fort Hays for transportation to Fort Dodge, the total weight of all of which, when so delivered to him, was 1,560,242 pounds.
    Of that quantity the claimant delivered at Dodge 1,551,714 pounds.
    The deficiency of 8,528 pounds was found by boards of survey, constituted as required by said contract, to be attributable not to neglect or want of proper care on the part of the claimant, but to causes beyond his control, namely, unavoidable shrinkage, wastage, or drying up of solid stores, and unavoidable leakage of vinegar, molasses, and other liquids. Upon this deficiency no freight lias been paid to the claimant, but he was paid the contract price for the number of. pounds actually delivered at Fort Dodge, as above stated, upon the basis of a distance of 80 miles from Hays to Dodge.
    YI. Under said contract, from time to time, stores were delivered to the claimant at Fort Hays for transportation to Camp Supply, the total weight of all of which, when so delivered to him, was 2,353,283 pounds.
    Of this the claimant delivered at Camp Supply 2,347,046 pounds.
    Of the deficiency of 6,237 pounds, the claimant was charged with and paid for 1,452 pounds, according to the terms of the contract j and as to the remainder of 4,785 pounds, it was found by boards of survey, constituted as required by said contract, that it was attributable not to neglect or want of proper care on tbe part of the claimant, but to causes beyond Ms control, namely, unavoidable shrinkage, wastage, or drying up of solid stores, and unavoidable leakage of vinegar, molasses, and other liquids.
    Dpon this deficiency of 4,785 pounds no freight has been paid to the claimant; but he was paid the contract price for the number of pounds actually delivered at Camp Supply, as above stated, upon the basis of a distance of 166 miles from Hays to Camp Supply.
    Y1I. Under said contract, stores were delivered to the claimant at Fort Hays for .transportation to Fort Lamed; the weight of Avhich, when so delivered to him, was 68,659 pounds; all of which stores were delivered at Lamed, and the claimant was paid the contract price therefor, upon the basis of a distance of 41 miles from Hays to Lamed.
    VIII. Under said contract, from time to time, stores were delivered to the claimant for transportation from Kit Carson, Colo., to Fort Union, N. Mex., and from Kit Carson to Fort Lyon, Colo., and from Fort Harker, Kans., to Fort Sill, Iud. T. At each of those points of delivery, when the claimant’s trains arrived there, a board of survey, organized in conformity with said contract, found deficiencies in tire weight of the stores transported and delivered, not attributable to neglect or want of proper care on the part of the claimant, but to unavoidable shrinkage, wastage, or drying up of solid stores,; and unavoidable leakage of vinegar, molasses, and other liquids; and in no case ivas the claimant paid anything for the transportation of the quantity so found deficient, but was in each case paid only for the number of pounds of stores actually delivered.
    The first occasion when the attention of the claimant or of his agent was called to the fact of the refusal of Colonel Moore to pay anything on account of the transportation of the quantities so found deficient was in July,, 1870, when the agent protested to him and also to the chief quartermaster that such deductions were not properly chargeable to the claimant, except in cases where boards of survey reported such losses of weight to be the fault of, and justly chargeable to, the claimant; and at the same time the agent notified the cMef quartermaster that, if not paid, he would prosecute a claim therefor against the government.
    
      Tbe payments to the claimant for transportation between the points above named in this finding were made on the basis of the following distances:
    From Kit Carson to Union, partly 273 miles and partly 263 milesj from Kit Carson to Lyon, 53 miles; and from Harker to Sill, 32!) miles.
    The total number of pounds of such deficiencies, for transportation of which payment was refused, was as follows:
    From Kit Carson to Union, in cases where delivered stores of the same shipment were paid for on the basis of 273 miles, 5,952 pounds; and in cases where delivered stores of the same shipments were paid for on the basis of 263.miles, 3,055 pounds; from Kit Carson to Lyon, 762 pounds; and from Harker to Sill, 5,245 pounds.
    IX. On the 27th of October, 1870, under said contract, stores of the weight of 147,531 pounds were delivered to the claimant at Fort Harker, to be transported to and delivered at Fort Sill; and the arrival at Sill of the train conveying the same, which was an ox-train, was delayed until the 4th of March, 1871, by swollen streams, heavy snow-storms, and the unusually bad condition of the roads, making it necessary to unload a portion of the stores and double the teams on the remainder.
    Owing to this long delay of this train the post of Fort Sill became short in supplies, and, to assist in hastening them, the post commander and quartermaster at that post, on the 3d of January, 1871, ordered fifteen mule-teams to go and meet the claimant’s train; and said teams did go and meet the claimant’s train, and did assist it, by taking stores therefrom to Sill, which, arrived there before the claimant’s train, and so afforded relief at the post till the claimant’s train arrived. The claimant made no request to have said mule-teams so sent, nor did he make any objection to their taking of stores from his train.
    In a settlement made on the 22d of June, 1871, by the claimant’s agent with Colonel Moore, aforesaid, for other transportation done by the claimant between Harker and Sill, the said Moore caused to be deducted from the. amount due the claimant therefor the sum of $608.99, charged against him, in connection with the assistance afforded by said fifteen teams, as set forth in the following statement:
    
      
      Statement of charges against Jurante 0. Kihlberg, transportation contractor, by Capt A. F. BocJaoell, A. Q. M., U. S. A., at Fort Sill, I. T.
    
    
      
    
    A. D. BOCEWELL,
    
      Captain tú A. Q. JLT., V. 8. A.
    
    DoitT Sill, I.-T., May 13,1871.
    The claimant’s agent objected and protested against the deduction of this sum from what was due him when the deduction was made, because the bills of lading against which it was alleged to be chargeable — namely, those covering the stores shipped on the 27th of October, 1870 — had been receipted in full and settled May 5, 1871.
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. A. I). Robinson (with whom was the Assistant Attorney-General) for the defendants:
    The distance having been ascertained and fixed by the chief quartermaster of the Department of the Missouri in accordance with the contract, and payments made accordingly, claimant cannot recover on distance, whatever the true distance may have been, there being no pretense of fraud.
    Supposing it had been ascertained in the next year or two after the contract that the distances fixed by the chief quarter- . master were too great, would claimant have consented to a reduction ?
    Claimant cannot recover for freight on stores that leaked or wasted or for shrinkage. It will be noted that the contract says that such stores as he shall transport he shall “ deliver,” and for such as are delivered u he shall be paid.” Again, that upon the arrival of the train at its place of “ delivery,” the officer shall indorse a receipt on the bill of lading “ stating the quantity and condition of the stores delivered, upon which indorsement payment is to be made; and upon such receipts payments shall bo made.” Thus payment is to be made only on goods “ delivered.” Claimant made the contract, and the payment is made strictly in accordance with it, and he must stand by it, whatever the law might be under other circumstances.
   Drake, Ch. J.,

delivered the opinion of the court:

Under the contract sued on the claimant makes three demands :

I. The first is for increased compensation for transportation of supplies under the contract, claimed on the ground that the distances traveled by his trains in performing the transportation were greater than those for which he was paid.

For transportation from Fort Hays to Fort Larned ho was paid for a distance of 41 miles, when the court finds that the airline distance between these forts was 47 miles and 30 chains, and the traveled road was two miles longer.

For transportation from Fort Hays to Fort Dodge he was paid for a distance of 80 miles, when the court finds that the air-line distance between these forts was 84 miles and 50 chains and the traveled road was two miles .longer.

For the transportation from Fort Hays to Camp Supply he was paid for a distance of ICC miles. The road between these points passed by Fort Dodge, and the claimant admits that the distance allowed for that portion of it between Fort Dodge and Camp Supply, namely, 86 miles, was correct; but he insists that he is entitled to pay for the greater distance of 6 miles and 50 chains between Hays and Dodge than he was paid for. '

The claim, then, is for compensation for 9 miles and 30 chains between Hays and Larned; for 6 miles and 50 chains between Hays and Dodge$ and for a like distance between Hays and Camp Supply.

If the contract required that he should be paid according to the distance actually traveled by his trains, we should have no difficulty in awarding a judgment for compensation for those greater distances; but such is not the case. The stipulation in the contract governing the matter of payments is in these words:

" Transportation to be paid in all cases according to the dis-tfince from tbe place of departure to tbat of delivery; the dis- ' dance to he ascertained and fixed hy the chief quartermaster of the Department of the Missouri, and in no case to exceed tbe distance by tbe usual and customary route.”

Tbe mere perusal of this stipulation can leave no question in tbe mind tbat tbe claimant agreed to be.paid for sucb distances ■only as should be “ ascertained and fixed by the chief quartermaster of tbe Department of tbe Missorm'” ; and it is found by tbe court that that officer, before any transportation bad been performed, fixed tbe distances to be paid for, and tbat tbe claimant Avas paid according to tbat fixation. And Avhen, in consequence •of tbe objection of tbe claimant's agent tbat tbe distances so fixed were too short, tbe matter AAras subsequently again brought before tbe chief quartermaster, be corresponded with officers at Fort Hays, and declared himself satisfied tbat tbe distances be bad at first fixed were corrcet.

Under these circumstances there would seem to be no recourse for tbe clabnant against tbat officer's decision, though it Avas in fact an erroneous one.

At tbe trial, howeA’er, tbe claimant’s counsel urged tbat tbe chief quartermaster, though be bad fixed, bad not legally ascertained, tbe distances.

We do not perceive exactly AA'bat is meant by a legal ascertainment in sucb a case. We liave been referred to no law prescribing any mode of ascertainment, or any description or quality of eA'idence upon which tbe ascertainment should be based. Upon what evidence or by what process o’f computation tbe officer should ascertain tbe distances was left wholly to him to determine, and neither tbe claimant, nor this court, nor any other tribunal could reAÜeAv bis judgment on tbat point and substitute another ascertainment.

Laying aside, then, tbe question of tbe legality of bis ascertainment, we come to tbe simple point whether be made any ascertainment at all; and upon this the facts found do not, as we conceive, admit of a doubt. It was bis official duty to make, sucb ascertainment, and tbe l;vw Avill presume tbat, before bo fixed tbe distances, be bad, in some way tbat satisfied bis OAArn judgment and sense of dtdy, ascertained to bis oaati satisfaction ' tbat tbe distances be fixed were correct. And Avhen, on tbe appeal of tbe claimant, be reconsidered and reinvestigated the, matter, and adhered to bis first conclusion, all question about bis liaving in fact ascertained wbat tbe distances were should be laid aside. It matters not that be was in error; tbe only point here is whether be ascertained and fixed tbe distances, and we deem it clear that be did; and, having done so, tbe question of distances was, in orn1 view, finally closed between tbe claimant and tbe Government, unless on one side or tbe other there was fraud, of which there is no pretense.

Had be fixed too long a distance, and tbe claimant been paid thereby, tbe Government would have been as much entitled to recover back tbe excess paid him as be is to recover from it tbe alleged deficiency. Tbe simple answer to either claim would be that both parties agreed to abide by tbe ascertainment and fixation of distances made by that officer, and neither can overturn bis action and substitute that of this court in tbe premises.

II. Tbe claimant’s second demand is connected with tbe diminution, while in transitu, of tbe weight of tbe supplies, caused by unavoidable shrinkage, wastage, or drying up of solid stores, and unavoidable leakage of vinegar, molasses, and other fluids. This diminution was found by boards of survey, organized as required by tbe contract, not to have been attributable to neglect or want of proper care on tbe part of tbe claimant; and their finding on that point is, by tbe terms of tbe contract, conclusive in bis favor. Tbe question in that connection is, not whether be is accountable to tbe Government for tbe loss of weight in transitu, but whether be was entitled to be paid for tbe transportation of tbe entire number of pounds of supplies delivered to him at tbe place of departure, when be delivered all the supplies at tbe place of delivery, but with unavoidable diminution of weight. He contends that be was so entitled; while tbe Government claims that be should have been paid oidy for tbe actual number of pounds which tbe stores weighed when delivered by him at tbe place of destination, and that be should not be paid for tbe weight lost as before stated.

Were there ni tbe contract nothing bearing on this point, we should have to decide it on general principles of law; but as tbe parties embodied there their agreement on tbe subject, we must be governed by that. There are two clauses in tbe contract affecting this subject, the first of which is as follows:

“For loss of weight due to shrinkage, a,nd for leakage of vinegar, molasses, or other liquids, tbe contractor shall not be held liable if tbe packages are delivered in good order and condition, and the board of survey ,shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or his agent.”

. The insertion of this provision in the contract shows that it was known to both the claimant- and the contracting officer that .stores transported over the routes embraced in the contract were subject to unavoidable shrinkage and leakage, and that they agreed upon a rule which should govern the rights and liabilities of the claimant in such case. That rule simply relieved him from liability to pay for the lost weight if the board of survey should be satisfied that it did not arise from neglect or want of proper care on his part. It did not refer to the matter of payment or non-payment of freight on the weight lost by shrinkage or leakage.. But Ave find another clause in the contract which seems to us to cover that point. It is as follows:

“Upon the arrival of the train at its place of destination or delivery, the officer of the Quartermaster’s Department at the l>oint- of delivery shall indorse on the bill of lading, in accordance with the finding of a board of survey, as hereinafter provided, stating the quantity and condition of the stores delivered, upon which indorsement payment shall be made as per contract.”

"When it was thus stipulated that the officer should “indorse on the bill of lading the quantity of the stores delivered,” and that the claimant should be paid upon that indorsement, and when he was, by other terms of the contract, to be paid according to the number of pounds transported, it is clear to us that the word quantity must be held to include not only the supplies shipped and transported, but also their weight when handed over at the place of delivery. If so, then the claimant agreed to receive pay of freight for just so many pounds as he actually transported to and delivered at that place, and no more. Xo other rule, seems to us capable of just and practical enforcement. The shrinkage and leakage would, in the nature of the case, be gradual, beginning immediately after the shipment of the stores, and continuing thougliout the whole period of their transportation, and neither party could in any way find out, except by daily unloading and weighing the stores, what the daily diminution of weight was. As such a daily proceeding was impracticable, it was impossible for either party to know, or even guess with any approach to accuracy, at what point on the route there Avas a diminution in weight of any given number of pounds, and therefore quite impossible to fix any sensible rule or devise any feasible plan by which the gradual loss of compensation might be accurately adjusted to the gradual loss of weight. That the claimant knew all this beforehand, and that the probable percentage of freight to be lost through the inevitable loss of weight was a matter of calculation entering into the rate of compensation he agreed to receive for work done under the contract, we think there is no reason to doubt; and yet he took no pains to protect himself against such loss of freight, though he carefully guarded himself against responsibility for the value which he certainly foresaw would be lost through shrinkage and leakage not resulting from fardt of his.

The fair conclusion from this is, that he was willing to bear that loss of freight, and to be paid only for the transportation of the number of pounds which he should deliver at the place of destination. This he has been paid, and in our judgment he cannot legally claim more.

III. The third demand of the claimant is for the sum of $608.09, which was, by the quartermaster who settled and ]>aid his accounts, deducted from an amount due him and is still withheld.

The finding sets forth fully the facts connected with this item. Briefly stated, they were these: The claimant’s trains, proceeding from Fort Harker to Fort Sill, were, by bad roads, bad weather, and swollen streams, delayed in arriving at the latter place long beyond the time contemplated by the contract for the journey; in consequence of which the post at Fort Sill became short in supplies, and the commanding officer there, to assist in hastening forward the stores, sent fifteen public mule-teams to meet the claimant’s ox-trains, and bring supplies to the post more quickly than the latter could. The mule-teams took supplies from claimant’s trains, and so relieved the post. In that service ten of those teams were out six days and five more out fourteen dajrs, and for the forage and use of the teams and pay and rations of teamsters the quartermaster at Fort Sill charged the claimant the said sum of $608.99, which was retained from the claimant’s subsequent earnings under the contract.

We are of the opinion that there was no authority for withholding that sum. The sending of the teams was not done at claimant’s request, but was purely voluntary on the part of the officer at Fort Sill; nor did the contract require or authorize them to be sent in sncli case; nor did be therein agree to pay the government for such a service; nor were the teams and teamsters placed at Fort Sill to be, in effect, hired out at so much a day; nor did the teams, while on that service, cost the government, so far as appears, a dollar more than they would if they had remained at the post. There might -possibly be found some words in the contract which might give the Government some judicial recourse against the claimant under such circumstances, but none that should place him so entirely at the will of officers of the Quartermaster’s Department as he would be if this transaction should be sustained.

Judgment for $008.99 in favor of the claimant will be entered.

Nott, J.,

dissenting:

The contract here authorized the defendants’ shipping-officers to malee a requisition on the carrier for a wagon-train to carry whatever freight they chose to send. The defendants now, in effect, contend that they had a right to load such a train with molasses and vinegar in barrels, which the carrier had no right to inspect or object to, to be carried a distance of 100 miles, and that if, without fault of the carrier, and through defects in the defendants’ barrels, the whole of the molasses and vinegar should leak away and be lost on the road, the carrier should lose his freight-earnings, and stand in the plight of having sent a train in his own wrong.

I am unable in this case to perceive-any distinction between the Government and an ordinary shipper of freight. The contract here does precisely what the law does in the case of an implied contract, and nothing more; it throws the loss of goods in transitu on the carrier if he were in fault, and leaves him free from responsibility if he were not in fault. The provisions of the contract concerning boards of survey and payment do not affect the question now in dispute. They provided for the ascertainment of two facts: first, as to the quantity of freight lost; second, as to whether the loss was with or without fault on the part of the carrier. Upon those questions the findings of the boards of survey were conclusive upon the parties and are conclusive upon the court. But when the boards of survey had found in favor of the carrier, the contract did not make the quartermaster a final arbitrator to determine all remaining matters of construction; but, on tbe contrary, left tlie construction where ordinary contracts leave it, to the judgment of a court.

The contract being silent as to the freight-earnings in the case of leakages in transitu without fault on the part of the carrier, it is to be determined by the general rule of law in such cases. That rule it is unnecessary to discuss, as it has been laid down by the Supreme Court in an almost precisely similar case. I perceive, indeed, no difference whatever between this and the case of Nelson v. Woodruff (1 Black, 156), and there the Supreme Court held that the carrier should recover his freight-earnings on the goods lost as well as on the goods delivered.

Upon the other points in this case, viz, that the quartermaster was an arbitrator to determine the distance and that the defendants’ services in carrying a part of the contractor’s freight were voluntary, I agree with the opinion of the court.  