
    Thomas P. Morgan et al. v. The United States.
    
      O71. the Proofs.
    
    
      The agent of the steamer Sattie agrees th at she shall proceed down Mobile Bay and, with the assistance of Treasury employés and soldiers, recover certain cotton on a stranded vessel. The government claims to own the cotton and agrees to pay |6 a bale for all recovered. The steamer saves a portion of it, which is left in charge of her agent, is stored in Ms name, and held by him under a lien for salvage. Subsequently it is talcen from his possession under legal proceedings, the nature of which is not shown.
    
    I.Where a salvage agreement is that a vessel shall he paid a designated price “for every balewhich should berecovered by her and brought to Mobile,” a reasonable interpretation includes the delivery or tender of the cotton to the other contracting party. It is not sufficient that the vessel held the cotton under her salvage lien until taken by third parties under legal proceedings.
    II.Where it is alleged that a certain thing was done under legal proceed- . ings in which the present defendants were parties, the best and only admissible evidence of the fact is the record of the court.
    III. Where the petition alleges that certain cotton saved by the claimants’ vessel under a salvage agreement was not delivered to the defendants because of its seizure under certain legal fjroceedings in which they were parties, the claimant cannot prove or assert a constructive delivery.
    IV. Where parties in possession of a vessel undertake through her agent a salvage service and perform it, the other contracting' party cannot . question their title to the vessel.
    
      The Reporters statement of tbe case:
    The following are the facts as found by the court:
    I. A verbal contract was made by the United States, through the Secretary of the Treasury and E. M. Tomlinson, for the services of the claimants’ steamer Hattie, in March, 1806, at Mobile.
    II. The terms of the contract were that the steamer Hattie, with her crew and equipment, should be placed at the disposal of the United States ag’ents and proceed down Mobile Bay, with a Treasury aid and a squad of soldiers, and secure and recover certain bales of cotton, claimed as the property of the United States, and then on a wrecked vessel in said bay, and that the United States would pay six dollars for every bale thereof which should be recovered and brought by the Hattie to Mobile.
    III. The contract was made with the claimants through their agent, Hollingsworth.
    The contract was performed by the Hattie only as follows: The Hattie brought back to Mobile one hundred and eighty-two bales of the cotton in question. These were left by her in charge of said Hollingsworth, were stored by him in his name, and were held under his lien for salvage.
    IV. That the said cotton was soon thereafter taken from the possession of said Hollingsworth, under legal proceedings, to which the claimants were parties, and wherein they asserted their claim for salvage, and the same was considered and decided upon. The nature of such proceedings is not shown, nor is it shown that the defendants had any knowledge of the same.
    V. Neither the said cotton nor any part thereof was ever delivered or tendered by the claimants or their agents to the defendants or their agents.
    
      Mr. J. D. McPherson for the claimants.
    
      Mr. A. I). liobinson (with whom was the Assistant Attorney - General) for the defendants.
   Hunt, J.,

delivered the opinion of the court:

The claimants, through their agent, one Hollingsworth, made a parol contract with the government for the employment of the steamer Hattie, in the month of March, 1866, at Mobile, Ala. The steamer was to proceed down Mobile Bay, and, with the assistance of a Treasury aid and a squad of soldiers taken on board, was to secure and recover certain bales of cotton claimed to belong to the government from a stranded vessel that had been wrecked' there. The government agreed to pay $6 per bale for every bale which should be recovered and brought by the Hattie to Mobile.

Under this agreement the Hattie went down the bay, and returned to Mobile with 182 bales of cotton which she had rescued.

The claimants’ agent in Mobile at once took possession of the cotton, caused it to be stored in liis name, and continued to hold it, asserting a lien upon it for salvage. It was shortly after seized iuider some legal proceedings to which the claimants became parties. The nature of these proceeding is not explained;- but it is shown that the claim now before this court was then passed upon by some other tribunal, and that the cotton Avhich had been rescued by the Hattie never was delivered up to the defendants, but passed into other hands. No notice of all this is proved to have been given the officers and agents of the government. This suit is brought to recover $1,092 for securing and transporting 182 bales of this cotton, at $0 per bale.

Looking to the language of the contract as found by the court, the obligation of the claimants was to rescue certain cotton, and to receive an agreed price “for every bale which should be recovered and brought by the Hattie to Mobile.” A reasonable interpretation of this obligation includes, obviously, the delivery or tender of the cotton to the defendants or their agents, and not a delivery to others. It would be against reason to infer that no delivery was contemplated. It is no less so to hold that a delivery to any one but the defendants was intended. Such a delivery forms an incident tacitly implied in every such contract. In contractibus tacite veniunt ea, quce sunt moris et con-suetudinis.

The claimants in their petition virtually admit the correctness of this view, and seek to exonerate themselves from the liability they were under to deliver the cotton to the defendants, by alleging that it “was taken out of their possession under legal proceedings to which the United States were parties, and, without any default or neglect on the part of their agent, awarded and delivered to private claimants.” But beyond the fact that the cotton was delivered to others and not to the defendants, and that this was done by some sort of legal process, they offer no proof. Th e character of the legal proceedings — who were the actual parties to them, what judicial tribunal entertained jurisdiction of the matter — they have failed to show by any legal evidence. If such proceedings established their allegations, the claimants might have obtained and filed in evidence an exemplification of the record of the court in which they were had. Such a judicial record, if in existence, constituted the best and only admissible proof of tlie facts the claimants rely upon for the non-delivery of the cotton and for their claim to compensation under the contract. This court would then be able to examine into the jurisdiction of the tribunal said to have acted in the matter to know who were parties to the record, and to determine whether the nature and effect of the judgment and decrees invoked be such as the claimants allege.

In the case of Lane v. The United States (7 C. Cls. R., 98), appealed from this court, the Supreme Court held that, “How far a decree against the government in a court of admiralty concludes it in another suit in another court cannot be determined, unless the record of the court of admiralty be before the Supreme Court on appeal.”

But the claimants now contend, in the supplemental brief filed since the argument, that the agency aid who went on the Hattie was cognizant of her arrival and the discharge of her cargo at Mobile. Such knowledge they insist is notice, and became equivalent to a delivery of the cotton to the defendants. It is an answer to this argument to say that the aid and his squad of soldiers were sent on the vessel to secure the cotton and enforce its capture. They had no authority to receive it on its arrival it Mobile; besides, they were not asked by the claimants to do so. There is manifestly an inconsistency in the claimants’ present position that they made a constructive delivery of the cotton, and the allegation of the petition that they made no delivery of it in consequence of legal proceedings.

Much has been said as to the title of the claimants to the steamer. In our opinion this subject is wholly irrelevant. It is immaterial whether the claimants were the owners or charterers of the vessel or held her by any other tenure. They were in possession of her, and their possession was unchallenged by any rival title. They contracted for her employment by the government; and had they fully performed the service they undertook, they would have the right to recover the stipulated reward. As they have failed to show such performance, it is ordered, adjudged, and decreed that their petition be dismissed.

Drake, Oh. J., was absent when this case was heard and took no part in the decision.  