
    Charles H. Adams v. The United States.
    
      On the Proofs.
    
    
      It is agreed by parol during the rebellion between the claimant and a quartermaster ' that the former shall sell 38,000 bushels of corn, then at Manleno, subject to weight and inspection at Cairo. A written order is at the same time handed to the claimant addressed to the Illinois Central Railroad, saying that the corn has been purchased at Manteno and is to be transported to Cairo. It is also agreed that the freight shall be paid by the Government and deducted from the price. The order is also approved by the Chief Quartermaster of the department. Under this agreement the claimant deposits the corn with the railroad company in good, sound, merchantable condition, and worth the agreed price. The railroad considers it Gorernmentproperty, and no further care or custody is exercised over it by the claimant. Within a day or two after its arrival in Cairo itis inspected and rejected. The officers of the Government do nothing rwith the corn, and it is left on the cars. The claimant anives there in a feto days and appears satisfied that the inspection is correct. With a view to save the claimant, the Chief Quartermaster of the Grand Division of the Mississippi authorizes the quartermaster at Cairo to ship to Saint Louis any portion fit for immediate use. He ships 3,000 bushels, but the officers at Saint Louis find only 1,600 fit for use. Vouchers are tendered to the claimant for the 1,600. lie refuses them and seelcs to recover the 18,000 delivered at. Manteno, or failing that, for the 3,000 shipped from Cairo.
    
    A parol-contract entered into by a quartermaster "without previous advertisement and -without an exigency declared by the commanding officer is void. The Government is liable under such a contract only for the goods actually used, and not for such as are spoiled while in the hands of its agents ; nor for such as its quartermasters may accept if not subsequently used. To create liability the goods must be received and used.
    
      Messrs. Hughes, Denver & Peeli for tlie claimant:
    This is an action brought by original petition to recover compensation for 18,000 bushels of corn sold and delivered to the Government.
    It appears that the corn was all shipped from Manteno to Cairo between the 22d and the 29th of April. The corn was then in excellent condition. The time ordinarily required to transport freight from Manteno to Cairo, was two and a half days. When the corn arrived at Cairo, the Government warehouses were all filled to overflowing, and it was impossible to take care of it. ■
    
      It further appears that this corn remained on the track of the railroad, exposed to the most unfavorable weather for several weeks, and as a necessary consequence of this treatment a considerable portion of it became spoiled and worthless. About 6,000 bushels of it was, however, shipped by the G-overnment agents to Saint Louis, Missouri. This corn was in good condition when it reached Saint Louis, but the Government had no use for any but a small part of it. Some sixteen hundred bushels were consumed in the Government service, and for this amount Colonel Adams was offered compensation if he would release his claim upon the Government for the balance of the purchase. This. proposition was declined by Colonel Adams, and thereupon all payment was refused.
    We claim that these facts show not only a valid contract, but one that was fully executed by the claimant. He delivered the whole amount of 18,000 bushels of corn to the Government in the manner agreed upon, and for this he is entitled to receive the price agreed upon, or the actual value, (which in this case is the same;) this amounts to $23,400.
    The only defense thus far set up for the quartermaster, is that the corn was to be subject to inspection at Cairo.
    To this we answer — 1st, There is no evidence of any such stipulation. 2d, If this'had been part of the agreement, the United States was bound to receive the corn when it reached Cairo and cause it to be inspected within a reasonable time. If this had been done, no loss would have occurred.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants:
    
      In this ease the court finds the facts to he as follows:
    
    1. About the 1st April, 1865, Captain William Currie, an assistant quartermaster charged with the duty of purchasing coru for the Army of the.United States, gave to the claimant a parol order to purchase corn tb be delivered at Cairo, Illinois, subject to weight and inspection there. The claimant being unable to transport the corn from Manteno, Illinois, where it then was, by reason of the refusal of the Illinois Central Eailroad to carry private freight, reported to the quartermaster, Captain Currie, his inability to perform the agreement; whereupon, on the 15th April, 1865, at Saint Louis, Missouri, it was agreed by parol between the claimant- and Captain Currie that he, the claimaut, should sell to the defendants 18,000 bushels of good merchantable corn, subject to weight and inspection at Cairo, and that the price of the freight should be deducted from the price of the corn, and there was at the same time delivered to the claimant the following- written order, signed by Captain Currie and approved by Colonel William Myers, the chief quartermaster of the Department of the Missouri:
    “Assistant Quartermaster’s Oeeice,
    Forag-e Department,
    “ Saint Louis, Missouri, April 15, 1865. “Mr. Wm. B. Arthur,
    
      Supt. I. O. B. 22., Chicago, Illinois:
    
    Sir: I have purchased of O. H. Adams, at Manteno, Illinois, for the use of the Government, 18,000 bushels of corn, which I wish you to deliver at Cairo, Illinois, as soon as possible. Please furnish transportation at once and oblige “Your obedient servant,
    “WM. OÜBBIE,
    “ Captain and Assistant Quartermaster.
    
    “By order of Colonel Wm. Myers, chief quartermaster Department of the Missouri,
    “ Approved for transportation.
    “WM. MYEBS,
    “ Colonel and Quartermaster.
    
    Under and in pursuance of this order the claimant, on the 22d, 24-th, and 25th of April, 1865, delivered to the Illinois Central Bailroad Company, at Manteno, 18,000 bushels of corn. The corn was then in good, sound, merchantable condition, and was worth and had actually cost at Manteno the agreed price of $1.30 per bushel. It was received by the railroad company as Government freight, and was charged at Government rates, the same being less than the rates charged to private jiersons, and the charges of the railroad company for the transportation of this com to Cairo were paid by the defendants. The officers of the railroad also considered and treated the corn as the property of the defendants, and no care or custody was exercised by the claimant over it after being delivered to them.
    II» The corn was inspected within a day or two after its arrival at Cairo, and not being’ found in good condition was rejected by the inspecting officer. A few days thereafter the claimant called on the inspecting officer to ascertain why the corn was rejected, when the officer went with him and re-examined a considerable portion of the corn, when the claimant expressed great surprise to find it in such bad condition, and was satisfied that the officer’s action was correct. After the inspection, which took place before the claimant appeared at Cairo, the Government officers did not attempt to do anything with the corn, but left it in the cars in which it came to Cairo, which were shoved down on one of the side-tracks of the railroad. Afterward General Allen, the chief quartermaster of the GrandDivision of the Mississippi, with a view to save claimant as far as possible from loss, gave authority to Captain Flanagan, the quartermaster in charge at Cairo, to ship to Saint Louis any portion of the corn which might be fit for immediate use there, and in pursuance thereof a quantity, somewhere between 3,000 and 0,000 bushels was shipped to Saint Louis, and the attempt was there made by the officers of the Quartermaster’s Department to use the same, but only 1,600 bushels of it were used by the Government, for which quantity vouchers were offered to claimant, which he refused to accept. The rest of the quantity so shipped was found to be unfit for use. It does not appear who paid the freight from Cairo to Saint Louis on the corn so sent to Saint Louis.
    All the corn was destroyed and lost except the 1,600 bushels used at Saint Louis. If the corn had been properly cared for immediately after the time of its first inspection at Cairo, a greater portion,than the 1,600 bushels might have been saved.
   Dkaice, Oh. J.,

delivered the opinion of the court:

Upon the foregoing facts the court announces the conclusion of law to be that the claimant is entitled to recover for no more than the 1,600 bushels of corn used in Saint Louis.

The contract under which the 18,000 bushels were shipped from Manteno to Cairo was a parol contract between an assistant-quartermaster and the claimant, entered into without previous advertisement, without-any exigency declared by the commanding officer of the army or detachment with which the assistant quartermaster was connected, and without any authority from. sucb commanding officer, and was not reduced to writing and signed by the parties as the law requires. Such a contract is void, as has been repeatedly held by this court.

But, as we have also repeatedly held, he who delivers supplies to the Government under an executory contract, which, as such, is void, is entitled to pay for so much of the supplies as the Government receives and ases.

It is therefore the judgment of the court that the claimant recover for the said 1,600 bushels of com, at $1.30 per bushel, making in the aggregate $2,080.

Nott, J.,

dissenting:

There had been a contract between the parties which broke down because the claimant was unable to perform. The reason of his inability was that the Illinois Central Railroad, which the defendants controlled, would not, at the time, carry private freight. The claimant went to the contracting quartermaster, and told him, whereupon they made a new contract, which is the contract in suit.

This new contract stands expressed partly in the words of a witness and partly in a written order from the quartermaster to the defendants’ transportation agent, the Illinois Central Railroad. The words of the witness, that is to say, the conversation of the parties, did not, of themselves, niake a contract, but the deficiency was filled by the written order, which was a part of the transaction, and was given to the claimant with the intent that he should act upon it, and with regard to which both parties did act.

This contract, in part consisting of conversation and in part reduced to writing, was for the sale and delivery of 18,000 bushels of corn at Manteno, Illinois, subject, nevertheless, to weight and inspection by the receiving officer of the Quartermaster Department, on arrival at Cairo. “ I have purchased of G. H. Adams,” are the words of the written order, “at Manteno, Illinois, for the use of the United States Government, 18,000 bushels of earn, which I loish you to deliver at Cairo.” The claimant acted on its terms and delivered the corn at Manteno; the Illinois Central Railroad acted on its terms and received the freight: the defendants acted on its terms and paid the railroad company for the transportation. The written order was not addressed to the contractor, but was delivered to him with the intent that he should act upon it, and he did so act. It being a part of the transaction, was a part of the agreement.

The facts, as they are found in this case,' are not ultimate facts in the nature of a special verdict, to which a court can apply the law, but circumstantial evidence from which a jury must deduce ultimate facts. As I deduce them, they<are these:

1. The corn was delivered at Manteno under and in jrarsuance of the written order, and was in good, sound, merchantable condition.

2. The railroad company received and accepted the corn under and in pursuance of the written order, and transported it to Cairo, and the contractor exercised no ca,re or control over it after its delivery at Manteno.

3. The corn was spoiled partly while in transitu, but chiefly after its arrival at Cairo, and the cause of the loss was the excessive heat of the weather, coupled with the fact that the corn was left on board of the cars, which, amid the circumstances, constituted an exposed and dangerous situation.

4. The corn might have been saved if it had been promptly and properly cared for on its arrival at Cairo, but the defendants’receiving officer there took no steps toward saving it, nor did he notify the contractor of its exposed condition.

From these facts I draw the following conclusion of law:

The defendants were entitled to have the corn weighed and inspected by their receiving quartermaster at Cairo, and if it did not pass his inspection, to throw it back upon the claimant; but, while it was in their custody and under their control, they were bound to exercise over it ordinary care; and they were also bound to have'it promptly inspected, and, if rejected, to return it to the claimant at Manteno, or at least to immediately notify him of its rejection. Haviug failed in all of these obligations, they thereby become responsible for its loss; and the claimant should recover the contract price, being also the quantum valébat of the entire amount by him delivered, to wit, 18,000 bushels, at $1,30 per bushel, amounting to $23,400,  