
    LOVETT’S CASE. Thomas R. Lovett v. The United States.
    
      On the Proofs.
    
    
      The Government wishes to rent Kaloramafor a military hospital. The owner, being requested soto do, malees an offer, inform of a letter, to rent “forth© purposes of a hospital.” The terms specified are $550 a month for three years, with the privilege of three more, “the buildings to he kept in repair by the Government, arid to be left in as good repair as ordinary wear and tear will permit.” The commanding officer)' of the Department of Washington, to tohom the offer is addressed, in response orders that the premises he rented “ on the following terms,” vie: for $500 a month for one year, with the privilege of heaping it at least three. The order is silent as to the condition lo repair. The oimier gives possession, and the place is occupied hy the Government. Subsequently it is turned into a small-pox hospital, the dead are buried tlwe, loasteis committed, amdfinally thehouseis destroyed by fire. Thebuilding being insured, the owner receives $10,000 from the insurers. On the surrender of the premises, the landlord claims redress for the waste, $-a., and the Quartermaste)' Department estimates and allows a certain amount less than the actual damages. Before the expiration of the first year, it appears, the Government reduced the rent to $250 a month, and the landlord receipted regularly in full.
    
    I. Where the owner offers his premises as a military hospital for three years at $550 a month, to be kept in repair and returned in good order, and a military commander, to whom the offer is addressed, orders that they he rented “ on the following terms,” viz, $500 a month for one year, the fair inference is that the premises were leased on the terms of the first instrument except as modified by the second, and that the condition to keep the building in repair (as to which the second is silent) stands and is obligatory upon tlie tenant; because tbe terms not expressly modified are usual and proper in sucb contracts, and sucb as tbe parties would expect and make amid tbe circumstances, and are in accordance with tbe usage of tbe Government in like cases.
    II. Where a tenancy from year to year is by mere occupancy without an express agreement to repair, tbe liability of the tenant for destruction by fire is not incidental to tbe occupancy. But where there is an express agreement to repair and keep in repair, tbe tenant is liable for loss by accidental fire; and tbe liability attaches though there be no deed with express covenants to repair in case of fire.
    III. Premises leased to the 'Government for a military hospital may not be used as a burial-gound. Such user is an injury to the premises for which' the landlord may recover damages.
    IY. Premises leased to the Quartermaster Department “for the purposes of a hospital” in time of war may be used as a small-pox hospital; for no exception is made by the terms of the lease to any particular species of disease to which soldiers are liable.
    Y. An adjustment .of a claim, for back rent and waste by the War Department, disallowed by the auditing officers of the Treasury, binds neither the Government nor the party. The distinction between this case and United States v. Jones (18 How., p. 92) pointed out.
    YI. The fire-policy of a landlord made in his own behalf and at his own cost does not attach to the building insured, and does not inure to the benefit of the tenant; and the tenant, if liable for the loss of’the building by fire, continues liable notwithstanding the payment of the loss by the insurers.
    
      The Reporters' statement of tbe case:
    Tbe court found, among others, tbe following facts:
    That tbe petitioner, as trustee of Mrs. Louisa Fletcber, was on tbe 17tb day of August, 1861, seized in fee of said premises, containing about ninety-one acres, a dwelling-bouse with wings, measuring in all 150 by 40 feet, a large stable, and a frame building, with a garden, lawns, and walks, a fence all round tbe premises, and a substantial wall, about a quarter of a mile long, from Bock Creek to tbe lodge-gate on Boundary street, and trees of various kinds, and shrubbery.
    In consequence of application made to him for the lease of tbe premises to tbe United States for a hospital by General Mansfield, the petitioner authorized tbe writings hereto annexed and marked 1 and 2.
    
      No. Í.
    “ General : Inclosed is a note of terms for the mansion and lower grounds of Kalorama.
    “ The upper grounds contain about seventy acres, which maybe occupied by the quartermaster for horses and wagons, or whatever else may be desired, at the rent of $100 per month.
    “ Respectfully,
    “CHARLES F. FLETCHER,
    
      11 For Thomas Ii. Lovett, Trustee.
    
    “ To General Mansfield, B. G., &e.n
    
    No. 2.
    “Kalorama, August 17, 1861.
    “ General Mansfield :
    “ Sir : I offer to the Government, for the purposes of a hospital, that part of the place known as Kalorama, comprising the house and porter’s lodge, together with about thirty acres of land immediately surrounding, and including both sides of Rock Creek, bordering the same, on the following terms :
    “ The lease to be for the term of three years, with the privilege to the Government to renew the same for three years longer at the same rent, $450 per month.
    “ There will be left in the building a portable furnace and hall stove for the use of the Government. It will be stipulated that the trees and shrubbery on the grounds shall be strictly protected, and any unnecessary injury to the same to be compensated for by the Government. The buildings to be kept in repair by the Government, and to be left in as good repair as ordinary’ wear and tear will permit. The grounds having already been occupied by troops, and the fence thereby destroyed, it is expected that the Government will renew them, and leave them in good repair at the expiration of the term.
    “Very respectfully, yours, &c.,
    “ CHARLES JE\ FLETCHER,
    
      l‘For Thomas B. Lovett, Trustee.”
    And thereafter General Mansfield issued the following:
    No. 1.] “ Headquarters
    “ Department of Washington,
    “ Washington, August 17, 1861.
    “As soon as vacated — within two weeks — the United States will hire the whole property of Thos. R. Lovett, trustee, of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot, and all his land and privileges, for $500 per month for the period of one year, with the privilege of keeping it at least three years, if desirable, for all purposes.
    “ MANSFIELD, B. <?., &cP
    
    And sent it to the petitioner.
    Under the agreement above made the United States entered upon and occupied the said premises, specified in General Mansfield’s order, from August 23, 1801, to September 30,1867, inclusive.
    While the United States occupied the premises from August 23,1801, to September 30,1807, the main house was burned, the flower-garden and shrubbery were destroyed, three and one-half miles of fence torn down; a brick wall fifty feet long, nine feet high, and fourteen inches thick was torn down, and the bricks used, partly for pavement and partly for building a lime-house, where the United States put clothes for purifying them; and some sheds were torn down. The part of the house not burned, about fifty feet long, was greatly damaged, and the glass, with the sashes, was carried away. Ornamental and shade trees of various kinds were cut down, a stone wall was taken down and most of it carried away, and stone was quarried and gravel dug from a stone-quarry and a gravel-pit on the premises and carried away; and the premises were left in a dilapidated condition, and the house unfit for occupancy; and to have restored the building and premises to their condition when leased, reasonable wear and tear excepted, would have cost $20,000.
    The stone quarried and carried away by the United
    States amounted to 2,327 perches, and was worth
    25 cents per perch.. -. $581 75
    The gravel dug and carried away by the United States amounted to 2,347 yards, and was worth 21t7q- cents per yard. 509 20
    The stone wall taken down and carried away amounted to 505 perches, and was worth $3.50 per perch... 1, 767 00
    The extent and valuation of the damage to the part of the dwelling-house not burned, or to other buildings, the number or the value of the trees cut down, the value of the brick wall or fence destroyed, and the disposition of a fire-proof safe, boiler, stove, and heater, were not shown.
    
      That two regiments of the Army of the United States were, previous to said written contract, by them encamped on the northern part of said premises, and thereon and during such occupation, previous to said contract, about fifteen hundred trees were cut down and a portion of the fencing destroyed by the soldiers of said regiments.
    That all the injuries to said premises during the occupation thereof, or of any part thereof, either previous to or during said written contract, were done by the military forces of the United States engaged in suppressing the rebellion, and who were encamped on the premises previous to said written contract or who occupied them under said contract.
    The dwelling-house was used by the United States for a smallpox hospital, and the grounds as a camping-ground for soldiers. Seven or eight soldiers who died were buried on the place; and since it was vacated by the United States, September 30,1867, it has not been rented.
    At the time the dwelling-house was burned, it was insured by the ¿Etna Insurance Company and the Firemen’s Insurance Company, on two policies of $5,000 each. Those companies adopted as their highest rate of insurance on buildings three-fourths of their cash value. The amount of the insurance, $10,000, was paid to the petitioner for a total loss.
    In October, 1867, the claimant made out and presented to the Secretary of War the following claim:
    “ United States to Thomas B. Lovett, tnstee. Dr.
    
    October 1, 1867. — To whole amount of rent according to contract, from August 22,1861, to October
    1,1867, 73 months, 8 days, at $500 per month.. $36,645 16
    Less amount received, from August 23,1861, to July 1, 1862, at $500 per
    month.'.$5,145 16
    From July 1,1862, to January 31, 1865,
    at $250 per month ... 7,750 00
    From January 31, 1865, to October 1,
    1867, at $200. .6,400 00
    - 19,295 16
    Balance 17,350 00
    
      To estimated cost of rebuilding burnt
    portion of mansion. $16,300
    Less insurance... 10, 000
    $6,300 00
    To estimated damage to outbuildings and wing, independently of fire... 3,300 00
    To damage to stable. 200 00
    To damage to lodge. 100 00
    To value of stone taken from quarry, (2,327 perches) 581 75
    To value of gravel taken from pit, (2,777 yards).. 833 10
    To damage to hill in consequence of digging gravel 500 00
    To trees destroyed.. 800 00
    To cost for replacing stone wall on Boundary street, (420 perches)... 1,310 40
    To 1,000 panels rail-fence. 1, 000 00
    To fire- proof safe..... 60 00
    To copper boiler. 30 00
    To hall stove .... 33 00
    To portable heater. 95 00
    32, 493 25”
    Which was by the Secretary indorsed as follows:
    (Indorsed:) “28-1-70. Kalorama. Beferred to the
    Quartermaster-General for investigation and report.
    , “EDWIN M. STANTON,
    
      “Secretary War.
    
    “February 12, 1868.” -
    On this claim the Quartermaster-General reports as follows :
    “ Quartermastee-General’s Office,
    “ Washington, D. O., November 11, 1869.
    “ Hon. Wm. W. Belknap,
    
      “Secretary of War, Washington, D. O.:
    
    “Sir: I have the honor'to. return the inclosed claim of Thomas B. Lovett, trustee, &c., for rent and repair of premises known as i Kalorama,’ in this city, and for gravel, stone, &c., stated at $32,493, referred to this office from the War Department for further report, in connection with the additional evidence presented, and to invite your attention to the full abstract of the case herein.
    
      “ I -consider the order of General Mansfield taking possession, and directing a monthly payment of $500, and the fact of the claimant receiving and receipting for. this amount, sufficient evidence of a contract or lease, and therefore recommend that rent be paid from August 23,1861, to October 1,1867, 73 months, 8 days, at $500 per month, amounting to $36,633.33, subject to the deduction of all sums which were paid the claimant for the use of the premises during United States occupancy.
    “It is evident from the abstract that injustice was done the claimant in the previous recommendation of Acting Quartermaster-General Rucker as to the allowance for gravel taken and used.
    “I recommend that Mr. Lovett be paid, for 2,777 yards (60,250 bushels) of gravel, at the same rate as that allowed by the War Department in the 1 Denison’ case, viz : one (1) cent per bushel, amounting to $602.50.
    “So much of General Eucker’s recommendation as is for repairs, $2,'300, and for 2,327 perches of stone, at 25 cents per perch, amounting to $581.75,1 recommend be adhered to.
    “Very respectfully, your obedient servant,
    “ J. O. McFEEEAN,
    
      “Deputy Quartermaster-General,
    
      “Acting Quartermaster- GeneralP
    
    This report being examined by an officer of the War Department, he made a report to the Secretary, concluding with the following recommendation: .
    “As to the items mentioned in Mr. Lovett’s proposition as being in the house, a fire-proof safe, copper boiler, hall stove, &c.,and for which an aggregate charge of $218 is made,(Messrs. Allen and Yeatmen say that they are unable to determine whether the responsibility for these rests with the Quartermaster or Medical Department, and the Quartermaster-General does not ask authority to pay them. It is considered, however, that the responsibility of the Medical Department being a matter of doubt, they should be paid for by the same Department as the rest.
    “ It is recommended, therefore, that the Acting Quartermaster-General be directed to make the payments recommended in his letter of November 11, 1869, and to pay, in addition, the sum of $218 for the items last referred to.”
    
      Upon wliicb the Secretary of War indorsed as follows : “ Approved:
    “WM. W. BELKNAP,
    “ Secretary of War.”
    
    Whereupon tlie Quartermaster-General wrote to the claimants as follows:
    “ War Department,
    “ Quartermaster-General’s Oeeioe,
    “ Washington, D. 0., February 8, 1870.
    “ Thomas L. Lovett, Esq., Washington, D. 0.:
    
    “ Sir : You are informed that your claim as trustee, &c., of the premises known as 1 Kalorama,’ in this District, has this day been referred to the Third 'Auditor of the Treasury for the payment of $21,080.42.
    “ Yery respectfully, your obedient servant,
    
      “ By order of the Acting Quartermaster-General.
    “JAMES A. EKIN,
    
      “Deputy Quartermaster-General, Brevet Brig. Gen., U. S. A.
    
    “Allowed on request of petitioner.
    “E. G. L.”
    That the accounting officers of the Treasury disapproved of the recommendation of the War Department, and rejected the claim, except as to the sum of $5,159.99, of which action the claimant was duly advised.
    
      Mr. John D. MePherson for the claimant:
    On the 23d day of August, 1861, the claimant was in possessio n of a tract of land called Kalorama, comprising about one hundred acres, in the District of Columbia, adjoining Washington City. There were on the land a handsome dwelling and all necessary outbuildings.
    On the 23d day of August, 1861, the claimant delivered possession of the property to General Mansfield for the use of the United States as a military hospital. The family left the place simultaneously with the delivering of possession to Surgeon Thomas, of the United States Army'.
    
      The family vacated the premises, and the Government took possession in pursuance of an agreement in writing’.
    On the 30th day of September, 1867, the premises were vacated by the Government. During’ the occupation by the Government the following acts were done on the premises: A great number of trees were cut down and used by soldiers; a quantity of stone was quarried and used for public purposes; a quantity of gravel was dug and taken away for public use; a great quantity of fencing was destroyed for fuel by soldiers; a long stone wall bounding the property was taken away and the materials used for public purposes. Besides these acts done for the public benefit, the folio wing injuries to the property occurred: a great part of the mansion-house was burned; other buildings were greatly damaged. The actual value to the United States of the property taken and used is not the just measure of indemnification to the claimant. Gravel and stone, whether taken out of a barren and remote hillside, or out of an ornamental lawn, are as mere stone or gravel of the same value, but to the owner of the ground the inj ury is not measured at all by the mercantile value of the material, but entirely different considerations. It is impossible to place a certain value upon the damage done by taking the material. In addition to this the property was used as a small-pox hospital, and thereby so injured that it has never been rented since, but. has stood idle from the time it was vacated by the United States.
    The propositions of law applicable to the case appear to be these: The letter of General Mansfield accepts the terms offered by the claimant except so far as expressly changed by him, and the changes were these. Instead of $550 per month, the rent was to be $500 per month; instead of a lease for three years certain, with privileges of renewal for three years, the lease was for one year with the privilege of renewal forthreeyears. Thetermsoftheoffer,notobjectedtoorchanged, then were: the trees and shrubbery to be protected, and injury thereto to be paid for; the buildings to be kept and left in good repair, ordinary wear and tear excepted; the Government was thus bound to rebuild after the fire; the fences to be renewed and left in good condition. Independent of the express contract, the Government was bound to leave the property in as, good repair as when taken possession of, except damage by fire. And the difference between the express obligation and that imposed by law would be the expense of rebuilding what was destroyedlby fire, and restoring the fence, which had been removed before the leave was made. The use of the property as a small-pox hospital Avas in violation of the contract. The Government‘was bound not to put the building to any use materially different from that for which they were hired, and their use for a small-pox hospital was such an unauthorized use. The terms of the lease did not warrant the quarrying of stone, digging of gravel, taking down of stone wall, or cutting of trees. The Government is not entitled to the deduction from the cost of reconstructing the burnt building of the amount received from the underwriters. The policy was purchased with the money of the insured party, and the premiums were a full equivalent for it. The Go\Ternment, not paying the premiums, is not entitled to the proceeds of the policy.
    Besides the claim upon the original merits, the allowance by the Secretary of War constitutes a distinct ground of action.
    The Secretary of War, on or about the 13th day of January, 1870, considered the claim, and allowed the sum of $21,040.42,. viz:
    Arrears of rent, $36,033.33, less $19,295.16 . $17, 338 17
    Gravel..i. 002 50
    Repairs.... 2,300 00
    Stone... 581 75
    Heater, hall stove, boiler, and safe. 218 00
    Total... 21, 040 42
    (See reports of Quartermaster-General, November 11, 1870, and General Swayne, January 17, 1870, approved by the Secretary of War, and letter of Quartermaster-General, February 8,1870, to claimant.)
    This decision of the Secretary was conclusive. (United States-v. Jones, 18 How., p. 92.) A third ground of claim is the conversion of the property into a pest-honsé. Such use of it was unauthorized, and the result has been the loss of the rents of the property ever since — now more than five years. If the property was worth only $200 per month, this alone Avould show a loss of $12,000; but, in fact, the property is assessed at $60,000, and is worth more. A fair rent would be not less than $0,000 a year, and the loss has been $30,000.
    
      
      Mr. Joseph K. MeOcmmon (with whom was the Assistant Attorney-General) for the defendants :
    The claimant or lessor assented to the reduction of the monthly rental by acquiescence and by acceptance of the reduced rates as in full, without protest, of rent for the whole period of the defendants’ occupancy, by monthly and quarterly receipts, and hence is debarred from recovering the additional rent claimed. The case of Dougherty v. United States (5 C. Cls., B., p. 108) is identical with the present case, and Clyde v. United States (13 Wall., p. 35) is also in point. The claim for additional'rent from July 1,1862, to September 1, 1864, and all other claims made in the petition, are barred by the statute of limitations, the actions having accrued, as far as is shown by the claimant, more than six years before the filing of the petition. (Wilder v. United States, 13 Wall., p. 254, and Dullcley v. The United States, 8 C. Cls. B., p. 517.) The letter of Charles F. Fletcher, attorney for Thomas B. Lovett, trustee, to General Mansfield, offering to lease the property known as “Kalorama” to the United States was merely a business communication. General Mansfield offered as an independent proposition to hire the property, not on the terms proposed by Mr. Fletcher, but “ on the following terms, inclusive of his upper lot, and all his land and privileges, for $500 per month for the period of one year, with the privilege,” &c. No further communication, verbal or written, on the part of the claimant, is alleged to have been made; but General Mansfield’s proposition was accepted by the claimant by delivery of possession and acquiescence in its terms, and the claimant understood the rental to have been made under this proposition alone. But the proposition of General Mansfield and its acceptance by the claimant merely formed an executory agreement for a lease, and the actual lease was from year to year, and did not, in any way, depend upon the contents of the communications between the claimant and General Mansfield, but existed independent of such contents. In order to bind the United States to pay for the building destroyed by fire it would be necessary to prove a written deed with express covenants to repair the premises in case of fire. (Taylor’s Landlord and Tenant, p. 101, § 146.)
    There was no written lease of the property whatever, and no parol agreement to lease by wbicb tbe United States covenanted to repair tbe premises in case of fire, and, independent of an express ag’reement, tbe law does not make a tenant liable for tbe wear and tear of premises, nor answerable if they are accidentally burned down, nor to make substantial and lasting repairs snob as are usually called general repairs.
    
      (Leach v. Thomas, 7 Carrington & Payne, p. 327; Sorsefall v. Mather, Holt, p. 7; Brown v. Grump, 1 Marsh., p. 5G7, Go. Litt., 53, b, sect. 67, book 1; Boole v. Worth, 1 Yesey, sr., p. 462 ; Wainscott v. Silvers, 13 Indiana, p. 497$ Warner v. Sitchins, 5 Barb., p. 666.)
    Tbe premises were leased for tbe purposes of a hospital, and tbe introduction of small-pox patients into tbe buildings was merely an incident to tbeir use as a hospital. What damage this introduction did to tbe claimant’s property, tbe evidence and tbe claimant’s brief fail to disclose. It would be impossible for tbe claimant to show that the use of the buildings by small-pox patients was an actual damage. Besides, he made no objection to tbeir use for small-pox patients at any time, and he cannot now claim any special damages for such use.
   Losing-, J.,

delivered tbe opinion of tbe court:

The premises were hired by the United’States for a rent specified, and thus a contract was made under wbicb the lessors surrendered tbe possession of tbe premises to tbe Uuited States, and they occupied them from August 23, 1861, to September 30, 1867.

Tbe first question is as to the terms of tbe contract. Tbe petitioner claims that the terms be proposed were accepted so far as they were not modified by tbe order of General Mansfield, and we think that is the fair inference from the circumstances, because the terms not modified were such as are usual and proper in such contracts and such as parties entering upon them would expect and make; and they were especially proper and called for in this case, in wbicb the premises were to be occupied by large numbers of common soldiers, whose use of them would be very different from that of a private family, and for whose use of them tbe United States, who held them there, should be responsible; and then tbe evidence shows that it was tbe practice of tbe United States to repair premises they bad occupied, and therefore tlie parties would expect it. As to tbe fence destroyed during the occupancy by the United States of the northern part of the premises, before the written contract, they were then liable for that, and the agreement they should restore it and return it would be just and equitable.

It is a common thing that a contract should be contained in several papers; and if they are made at the same time, between the same parties, and in relation to the same subject, they are held to constitute one contract.

And the- question is not whether a contract was made, but as to the terms of the contract as they were understood by the parties at the time, and this is to be inferred from the circumstances shown. And where terms proper to the subject of the contract are proposed for acceptance, and a modification is made of some of them, and not of the others, the presumption would seem to be that those not modified were accepted.

And we therefore adopt the construction claimed by the petitioner, and on that the contract was as follows: The entire premises at $500 per month, for one year, with the right in the United States of renewal for three years, determinable within that time by them ; the trees and shrubberies to be strictly protected, and any unnecessary injury to be compensated for by the Government; the building to be kept in repair by the Government and to be left in as good repair as ordinary wear and tear will permit. The fence, destroyed before the written contract, to be restored and left in good repair.

The petitioner claims the amount, of reductions made from time to time in the rent stipulated in the contract. But, without protest, he receipted for the reduced payments as payments in full for the time specified in the receipts, and we think this bars his claim.

The petitioner claims indemnity for the injuries he sustained from the fire, and we think he is entitled to it. The rule between landlord and tenant is, that, on an express agreement to repair and keep in repair, the tenant is liable for loss or injury by accidental fire. This was expressly held in Bullock v. Demmet, (6 T. R., 650,) and was there declared to have been decided law long before. And it has never been questioned since, but often affirmed both in England and in this country. (Buckworth Canal Company v. Pritchard, 6 T. R,, 750; Phillips v. Stevens, 16 Mass., 245; 6 idem, 63.)

The learned counsel for the defendants claimed that such a liability did not attach, to the tenant without a deed with express covenants to repair the premises in case of fire, and for this cited a verbal inaccuracy in Taylor’s Landlord and Tenant, § 148. But a deed or covenant is only an express agreement under seal, and the only effect of the seal is to import a consideration ■, the binding force is the agreement or contract, and this may as well be verbal or it may be inferred. Mr. Taylor, in his work cited, says: In general, where circumstances exist from which an agreement may be inferred, they are equivalent to an express agreement.” (Taylor, § 247.) And in reference to the liability of a- tenant, 1 Parsons on Contracts, 425, says : “ If there be an express and unconditional agreement to repair, or to redeliver in good order, or to keep in good repair, the tenant is bound to do this, even though the premises are destroyed by fire so that he is compelled to rebuild them.” And the numerous authorities he cites, both English and American, are to that effect.

All that is true is that where a tenancy from year to year is by mere occupancy, without any express agreement, the liability for destruction by fire is held not incidental to such mere occupancy. That is the decision in Holt, 7 ; 1 Marshall, 507, and other authorities cited for the defendant. And it is the rule in Maryland where the parties contracted. Thus, in the case of Wagner v. White, (4 Harris & Johnson,) which was for destruction by rioters, it was held the claim was not incident to mere use and occupation, but was recoverable on an express though verbal agreement.

Then the petitioner claims for damages done generally to the premises. These certainly were excessive and in the nature of waste, for which the tenant is liable at common law without any express agreement to repair, for he is bound to use the premises'in a hnsbandlike manner. This is incidental to the relation of landlord and tenant, and as much a part of their contract as if expressed in terms, and any default of the tenant in this is a breach of contract for which he is liable in damages.

The statement of facts shows that the premises were in excellent order when the United States took possession of them under the written contract, and they left them dilapidated and in ruinous condition; the flower-garden and shrubberies were destroyed ; shade and ornamental trees were cut down to the amount of thousands; some miles of fence were destroyed; a brick wall 50 feet long, 9 feet hig'h, and 14 inches thick was taken down; a stone wall was taken down and its materials carried away ; shed and outbuildings were destroyed; the part of the house not burned was abused and its sashes and glass carried away, and large quantities of gravel and stone were dug from pits and quarries on the place, and carried away and used elsewhere. And the only qualification of this extensive and voluntary waste is that, previous to the written contract), soldiers encamped on the northern part of the premises by the United States had there destroyed about fifteen hundred trees and some fence.

Some of the bricks taken from the wall were used to make walks on the place, and others to build a lime-house, which the United States used to fumigate clothes of their sick; and it was claimed by the United States that these walks and lime-house remained on the place. That may be, but nevertheless taking down the wall and using the bricks to make walks and a lime-house -was strictly waste; the petitioner may not desire a lime-house in which to fumigate the infectious clothes of a small-pox hospital, nor brick-walks instead of gravel-walks. And the United States are liable for the cost of. removing the lime-house and walks, and restoring the walls and sheds, &c., as well as for the other injuries recited.

It was shown in evidence that many soldiers were buried on the premises, and this we think the contract did not authorize. A hospital is not a charnel-house, and such use of such premises is not usual, and the dead are generally buried in burying-grounds appropriated to the purpose. ■

It was also shown that the building was used as a small-pox hospital, and the petitioner claimed this as a special cause of damage. But we think such a claim cannot be supported. The building was hired for a hospital, and no exception was made of any particular kind of hospital, or any particular species of infectious diseases, to all of which soldiers are subject.

It was also shown that after the United States vacated the premises, the petitioner presented his claim, amounting to $32,493.25, to the Secretary of War, who referred it to the Quartermaster-General, who referred it for examination to the officers of his Department. They examined the case and reported upon it that the sum of $21,040.42 were justly due, and tliis was approved by the Secretary of War, and the petitioner was notified by the War Department that his claim had been referred to the Third Auditor for payment of the sum specified. But the sum was not paid.

The petitioner contended that this finding, approved by the Secretary of War, was in the nature of a judgment, and concluded his right to recover the amount stated; and he cited and relied on the case of United States v. Jones, (18 How., 92.) In that case an officer was sick abroad and in France, and procured medical attendance, and afterward, while he was employed on special service there, in collecting information as to a steam navy, the Secretary of War sent to him the money to pay for his medical attendance, and it was so applied. It was held that the United States were legally bound to furnish the officer with medical attendance, and that where the Army surgeons could not be employed others must be, and the Secretary might employ them or ratify their employment and pay them ; and that the officer having applied money he received according to the command of his superior, could not be charged with it in his accounts at the Treasury, which was the point in issue. Thus the case was but the payment of a debt of the United States, like the payment for forage purchased, and in the regular course of the service in which the subordinate executed the order of his superior. But the case at bar is entirely a claim for unliquidated damages for breach of contract, for the relation of landlord and tenant, however formed, rests on contract. And we think that neither the War Department nor the Secretary of War were authorized to finally adjudicate the claim and conclude the parties to it.

The defendants contended that the writings which passed between the parties did not constitute a lease, but was an exec-utory agreement only, and the occupancy was from year to year and independent of the writings.

Whether writings make an actual lease or an executory agreement for alease depends upon the intent of the parties as shown by their words and acts, and when the parties surrender and take possession on and according to writings made between them, the legal presumption is that the writings were intended for a lease because the parties have so acted on them. Now, here the writings consist of specified terms, and the modification of part of them. And General Mansfield’s letter is that tbe United States will hire on a certain event, viz, the vacation of the premises by the lessor, and that is made, and the United States enter. And this, we think, proves the intent to hire and let therefrom on the terms proposed and modified in the writings, and by and under those ivrilings, and especially as no other writings were made, and those made were acted on. And if so, then necessarily the lease was for a year certain, for General Mansfield specifies thatterm, and the right of theUnited States to renew under the contract did not begin till after that year had expired, and then the renewal was executed by the occupation of the United States, continued after the first year, and was thus executed for three years certain, determinable sooner by the United States only, because a renewal for that time, and no other was expressly stipulated between the parties. And the renewal and all the subsequent occupation by the United States were on the terms of the first contract, so far as they were applicable and not subsequently altered, as in the case of the reduced payments.

The statement of facts shows that at the time the house was burned it was insured by the petitioner for his benefit for the sum of $10,000, which was paid to him as for a total loss ,* and it was claimed for the defendants that if they were liable for the loss by fire they were to be credited with this sum as sub-rogated for the petitioner in the benefits of his contract with the insurance companies. But we think the defendants have no such rights. Such subrogation of the insurer for the insured belongs to marine insurance, which is a part of commercial law; and it is a doctrine of English equity law, for both of these deal with equities, but it does not belong to the common law, which deals with contracts, nor to the relation of landlord aud tenant. And it was introduced into marine insurance upon the difference between an actual total loss and a technical or constructive total loss, in which there is salvage and abandonment. But there is no such thin gin fire insurance on buildings, and there is no such rule between landlord and tenant in the common law. The fire-policy of a landlord, made in his own behalf and at his cost, does not attach to the building insured, but is personal to him. It is not a covenant running with the land, for these always are referable to tenure, and requires privity of estate and must affect it in quantity or quality, value nr enjoyment; and a fire-policy does none of these things, and therefore does not enure to the benefit of the grantee of the insured. The lessee is a grantee, for a lease for a rent is legally a sale of the premises for a term.

The rule as to fire-policies on buildings was determined in the case of Carpenter v. The Providence Washington Insurance Company, (16 Pet., p. 495.) iu which the benefit of a fire-policy procured by the owner of premises insured was claimed by his mortagee of the premises. Iu their opinion the court had referred to and cited previous cases decided by them, and cases decided by Lord King and Lord Hardwicke; and then they say: “ The language of Lord King and Lord Hardwicke, and of this court in the cases already cited, shows conclusively that policies of this sort are not deemed in their nature incidents to the property insured, but that they are mere special agreements with the persons insuring against such loss or damage as they may sustain, and not the loss or damage that any other person having an interest as grantee, or mortgagee, or creditor, or otherwise, may sustain by reason of a subsequent destruction thereof by fire.” On this authority we hold the claim made by the defendants not sustainable.

The defendants pleaded the statute of limitations to all the claims of the petitioner. As to the claim for .reductions of rent, we have held these barred by the receipts in full, given as the rents became due. As to the claim for loss by fire, and for acts of waste done during the written contract, neither the evidence nor the plea specifies when they were done; and all that appears is that they were done previous to the vacation of the premises by the .United States, which was September 30,1867, and that was three years only before the filing of the petition, which was in September, 1870. The defendants, therefore, do not as to those substantiate their plea. The plea is efficient, therefore, only for the damage done before the written contract ; and for that we allowed it in the assessment of damages.

Draice, Ch. J.,

dissenting:

I dissent from so much of the opinion just read as holds: 1, that the claimant’s offer of the Kalorama property was agreed to by General Mansfield; and, 2, that the claimant is entitled to recover for the injury done to the property by the troops while occupying it, for the burning of the house, and for the rock, gravel, &c., taken from the premises by the military forces of the United States. In my opinion, there is not the least foundation in law for any recovery on any of those grounds.

In the first place, what was the contract between the claimant and the United States, represented by General Mansfield? This is to be found nowhere but in the letters of the claimant and General Mansfield, of August 17, 1861.

It is claimed that General Mansfield’s answer accepted the claimant’s proposition, with a modification, and that all of the terms of the proposition which General Mansfield did not by his answer modify were accepted and agreed to by him. This view seems to me to be entirely at variance with all well-established rules governing the establishment of a contract through a request on the one side and an assent on the other.”

The doctrines applicable to such a case are very clearly stated in 1 Parsons on Contracts, 5th ed., p. 475 et seg., as follows :

“There is no contract unless the parties.thereto assent; and they must assent to the same thing in the same sense. * * * A mere affirmation or proposition is not enough. * . * * It becomes a contract only when the proposition is met by an acceptance which corresponds with it entirely and adequately. * * * The principle may be stated thus: The assent must comprehend the whole of the proposition; it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter. * * * Where the answer, either in words or in effect, departs from the proposition or varies the terms of the offer, or substitutes. for the contract tendered one more satisfactory to the respondent, * * * there is no assent and no contract. The respondent is at liberty to accept wholly or to reject wholly; but one of these things he must do; for, if he answers, not rejecting, but proposing to accept under some modification, this is a rejection of the offer. * * *' An answer or a compliance has been sometimes held insufficient to make a contract where the difference of terms between the parties did not seem to be very important. In fact, the court seldom inquires into the magnitude or effect of this diversity; if it clearly exists, that fact is enough.”

Iu the light of the doctrines thus succinctly and clearly stated, let us first see what the claimant offered in his letter. His proposition contained the following eig'ht particulars:.

1. To lease a part of the Kalorama tract, comprising the house and porter’s lodge with thirty acres of land.

2. The premises to be leased for the purposes of a hospital.

3. The lease to be for three years.

4. The rent to be $450 per month.

5. The Government to have the privilege to renew the lease for three years longer at the same rent.

6. The trees and shrubbery on the grounds to be strictly protected, and any unnecessary injury thereto to be compensated for by the Government.

7. The buildings to be kept in repair by the Government, and to be left in as good repair as ordinary wear and tear would permit.

8. The fence on the property, which had been destroyed by troops during a previous occupancy, to be renewed by the Government, and left in good repair at the expiration of the term.

It is no exaggeration to say that General Mansfield’s letter did not accept a single one of those eight particulars. On the contrary, he made a counter proposition, containing the following five particulars:

1. To hire the whole Kalorama property, which is shown by •the evidence to have embraced about ninety acres.

2. The rent to be $500 per month.

3. The time to be one year.

4. The Government to have the privilege of keeping it at least three years if desirable.

5. The property to be used for all purposes.

This was not merely a modification of the claimant’s proposition; it was, in law, a clear and distinct rejection of it, by making a totally different one, which the claimant could accept or not as he saw fit. There is no evidence of an express acceptance of it by him, but abundant evidence of his implied assent, in two facts:

1. That the premises were, as General Mansfield’s letter required, vacated by the claimant, or those then occupying them, within, the time specified in that letter, and the occupancy turned over to the Government; and 2. That the claimant re-eeivecl the rent of $500 per month, as stipulated by General Mansfield, uutil the same was reduced to $250 per month ; that is, from August 23,1881, to June 30,1862. Of course, if the claimant’s prox>osition had been agreed to by General Mansfield, only $450 per month would have been paid; and equally, of course, if the claimant had not accepted General Mansfield’s counter-proposition, he would not have been paid $500 per month.

Thus it is to my mind clear that the claimant’s proposition was never accepted by the Government, and that General Mansfield’s counter-proposition was accepted by the claimant. If this be so, 'then that part of the claimant’s case which seeks to charge the Government, ex contractu, for the value of the house that was burned and for the injury done to the premises • by the troops, falls to the ground.

But so far as the injury to the premises is concerned, there is another and more conclusive defense, in that this court is, by the first section of the Act July 4,1864, (13 Stat. L., p. 381,) expressly denied jurisdiction of any such claim. That section is as follows:

“That the jurisdiction of the Oourc of Claims shall not extend to or include any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army or Navy, or any part of the Army or Navy, engaged in the suppression of the rebellion, from the commencement to the close thereof.”

I am unable to comprehend how, in view of that provision, it could be supposed that this court has any semblance of authority to consider this part of the claimant’s demand. If that language be not clear enough, full enough, and strong enough to debar recourse here on such a claim, I should be at a loss to know what form of words could be effectual to that end. In my judgment, this court has no more right to take jurisdiction of such a claim than it would have of an action for an assault and battery. '  