
    LOCKWOOD’S CASE. John Lockwood v. The United States.
    
      On the proofs.
    
    
      The general commanding at Natchez orders, on the 19th November, 1864, a quartermaster to establish wood-yards at convenient points on the Mississippi, and to contract for wood at the lowest market rates. Under this order a contract is made with the claimant, and lands belonging to Mrs. M., beyond the United States military lines, are designated by the quartermaster on which the claimant is authorized to out timber. Wood is cut, under military protection, and delivered. But on the 17th January, 1865, a nets commanding officer orders the quartermaster to withhold from the claimaini 75 cents per cord, and pay it to the owner of the land. The case is referred to the judge advocate ; that officer reports that the trespass ivas committed by the government and not by the contractor. The agreement is annulled by the parties, the claimant expressly reserving his demand for the75 cents per cord withheld.
    
    I. Where a military officer in time of war and in the enemy’s country peremptorily orders that a part of the contract price of wood, cut and delivered by the claimant, he withheld from him and paid to the owner of .the land, parol evidence is admissible to show that, at the time of exe; curing the written contract, there was a distinct agreement and understanding- between the claimant and the quartermaster that the former should pay the owner of the land for her wood.
    II. Where, under a military order, a part of the contract price of wood cut and delivered by the claimant is withheld from him and paid to the owner of the land, it being within the enemy’s country and held by actual military force, it is incumbent on the claimant to show that he ob-' jeeted. Otherwise it will be deemed a payment by his appointment.
    
      Mr. Enoch Totten for tbe claimant:
    On 'tbe 18tb day of November, 1864, a contract between tbe plaintiff and defendants was executed, by wbicb tbe plaintiff bound bimself to sell and deliver to tbe United States, on tbe banks of tbe Mississippi Eiver, at convenient points for- landing boats and barges, on land to be designated by tbe defendants, at sucb times as might be required by said defendants, 10,000 cords of good merchantable wood, to supply tbe military post of Natchez. Tbe United States, in consideration thereof, agreed to pay tbe plaintiff, in monthly payments, for tbe wood so delivered, tbe sum of $3 50 per cord.
    It was also stipulated that tbe plaintiff should be furnished such military protection, in. fulfilling his contract, as could be furnished without detriment to the service.
    The plaintiff, in December of that year and in the months of January, February, and March following, delivered to the defendants large quantities of wood in pursuance of the said contract. A guard was furnished to protect the plaintiff while he was cutting the wood.
    This contract was made to provide for a public exigency, and in pursuance of special orders from General M. Brayman, commanding the United States forces at Natchez. General Bray-man was subsequently relieved by General Davidson.
    On the 17th day of January, 1865, General Davidson issued an order requiring the quartermaster to withhold 75 cents from the contract price of each cord of wood from the plaintiff, and to pay the same over to the wife of John Minor, whose' land was designated by the defendants as a wood-yard, and from which land the wood was cut. On the 26th of March, 1865, the said quartermaster retained or took from plaintiff the sum of $876 93 in cash, being 75 cents per cord for wood delivered by plaintiff in the preceding months of December and February. There had been made, previously, a like deduction from the voucher given for wood delivered in January.
    The plaintiff delivered in all, in pursuance of the contract, a fraction over 3,052 cords of good wood to the defendants, which they received and accepted.
    * Upon settlement with the plaintiff the defendants’ agent paid only $2 75 per cord, and retained or deducted, either in vouchers or in cash, the sum of 75 cents per cord, in obedience to the said order of January 17,1865.
    The plaintiff protested against the breach of contract and the reduction of 75 cents per cord.
    On the 1st day of June, 1865, said contract was annulled, in writing, but without prejudice to plaintiff’s claim for the balance due on the contract price for the wood delivered and accepted.
    Mr. John Minor and his wife were both disloyal to the United States during the late rebellion, while the plaintiff was an earnest and active supporter of the Government.
    The plaintiff was able and willing to deliver the full quantity of wood.
    Here is a contract by which the plaintiff agreed to deliver wood of a certain quality to the defendants, for which the defendants bound themselves to pay, for each cord of wood so delivered, the sum of $3 50. The plaintiff delivered wood of an acceptable quality, and exactly in accordance with the contract. The defendants then refused to pay the contract price, and undertook to force the plaintiff' to accept a much smaller sum.
    
      The Assistant Attorney General for the defendants:
    I. The purchase of fuel for the post of Natchez should have been made by the head of the seventh division of the Quartermaster General’s Office.. {Act of July 4, 1864,13 Stat. L., p. 395.) Such a ease as this cannot1 come under the fourth section of said act. The wood was not “ supplies for,the necessary movements and operations of an army or detachment.” Besides, as a matter of fact, no such u emergency” as is contemplated by section 4 existed. Natchez was a military post, and had been in undisputed possession of the federal forces, for over a year, during all which time the opportunities for procuring’ wood were just as good as when the contract with claimant was entered into. Then, again, the emergency contemplated here can only be temporary, and supplies can only be procured, according to the provisions of this section “ during the continuance of such emergency.” In this case, the first wood was furnished in December, the next in February, and so on till the middle of June.
    II. The contract was also made in violation of the Act of March 2, 1861, (12 Stat. L., p. 220.) The order of General Bray-man setting forth that “the exigencies of the case” required an immediate supply, and authorizing Captain Perce to contract without advertising, was itself unauthorized. The' logic of circumstances disproves the assumption that a public exigency existed which required the immediate delivery of the wood. As stated before, Natchez had been in peaceful possession of the Dnion forces for over a year.
    III. The contract being unauthorized and illegal, the case, if it has any standing in this court, stands on a quantum meruit, and not on an express contract. The claimant has been settled with and paid according to the distinct understanding between him and Captain Perce, which existed when the supposed contract was made. General Davidson, in ordering tbe retention of tbe 75 cents per cord from claimant, and its payment to Mrs. Minor, was simply enforcing tbe equities that existed between tbe parties.
   Losing-, J.,

delivered tbe opinion of tbe'court:

Tbe petitioner claims against tbe United States $2,583 90 as tbe balance due him on a contract for furnishing wood, and $áOO as damages for tbe breach of tbe contract; and tbe court finds tbe facts to be:

On tbe 19th November, 1864, Brigadier General M. Bray-man, commanding tbe United States forces at Natchez, by an order of that date, stating that tbe exigencies of tbe case required' an immediate supply of wood, authorized Captain Perce, assistant quartermaster, to establish wood-yards at any point on tbe river be might deem expedient for supplying tbe post, and to contract for wood to be cut and delivered at tbe lowest market price without advertising.

In pursuance of this, order, tbe lands belongingto Mrs. John Minor, situated about ten miles below Natchez, and outside of tbe Union lines, were designated by Captain Perce by bis order dated November 21,1864, as a wood-yard for tbe supply of tbe post, and tbe claimant was authorized to go. upon such lands with a sufficient force, establish tbe yard, and cut timber thereon, in fulfillment of tbe following contract made between him and said Captain Perce, assistant quartermaster, on tbe part of tbe United States:

“This agreement, made this 8th day of November, A. D. 1864, between John Lockwood, of tbe city of Milwaukee, State of Wisconsin, now residing at tbe city of Natchez, Mississippi, of tbe first part, and the United States, by L. W. Perce, captain and assistant quartermaster United States volunteers, of tbe second part, witnesseth:

“ That whereas authority has been given to establish a wood-yard at any point on the Mississippi Biver deemed expedient by tbe said Captain Perce, for tbe purpose of supplying tbe post of Natchez with wood:

“Now, therefore, the said party of tbe first part hereby agrees to sell and deliver to said party of tbe second part, on the banks of the Mississippi River, at convenient points for landing boats and barges, on- tbe land designated by tbe said Captain L. W. Perce, under tbe said authority above'mentioned ten thousand cords of wood, the same to be delivered from time to time', as required by the depot quartermaster, at said post of Natchez.

. “ In consideration of the above agreement the said party of the second part hereby agrees to pay said party of the first part for the wood so delivered, as follows, viz: for all wood delivered on the banks of the Mississippi, on lands designated by said Captain L. W. Perce, as above specified, the sum of three dollars and fifty cents ($3 50) per cord.

“ It is farther understood and agreed that such military protection will be given to said party of the first part, in carrying out this contract, as the commander of the post of Natchez may deem not detrimental to the public service, and in case such protection is not furnished, and by reason thereof the said party of the first part is driven off and is unable to fulfill the agreements hereby made, no damage shall be claimed against him by reason of such non-fulfillment, but actual inability by reason of no protection being furnished will be required to exempt from liability.”

In pursuance of this contract the claimant cut and delivered wood up to June 1,1865, when the contract was annulled by this agreement between the parties:

“ The contract between the United States Government and John Lockwood is hereby annulled, subject to the following provisions:

“ 1st. No wood shall be cut on the lands of Mrs. John Minor after the 15th instant by the said John Lockwood.

“ 2d. That the said Lockwood be allowed to sell the wood on the said lands cut prior to the 15th instant, to such parties as he desires, paying the said Mrs. Minor for the same, in accordance with the present order allowing him to sell to private steamboats.

“ 3d. The cancellation hereby made shall not preclude a claim being made by the said Lockwood against the United States for the 75 cents retained from the contract price under orders of Brevet Major General J. W. Davidson, dated Natchez, June 1,1865.

“JOHN LOCKWOOD.

“ L. W. PEKOE,

Gcvptain md Assistant Quartermaster.”

On January 17,1865, General Davidson, wbo had succeeded to the command by an order of that date, ordered Captain Perce to withhold from Mr. Lockwood the sum of 75 cents per cord for each and every cord of wood cut under contract with, tlie Government on the lands of Mrs. John Minor, and pay the same over to Mrs. John Minor, a loyal citizen. And this was done, and the sums so deducted and paid to Mrs. Minor amounted to the sum of $2,583 90, claimed in this suit.

General Davidson, by an order not dated, referred the wood contract to Major Perce, judge advocate, “for his opinion as against whom the claim for damages committed on the lands of said Mrs. John Minor lay.” '

And on May 25,1865, the judge advocate reported that the trespass in this case, if any, was committed by the Government, and not by the contractor, and that he was not liable for damages.

The claimant agreed and assented that he should pay to Mrs. Minor 75 cents per cord for the wood cut by him, and made, himself, the last payment to Mrs. Minor; the other payments to Mrs. Minor were made by the United States.

The husband of Mrs. Minor was. living during the transactions above stated, and had not taken the oath of allegiance, and her loyalty was distrusted by the military authorities.

In this case, the evidence shows clearly that the claimant assented and agreed that from the contract price payable to him by the United States 25 per cent, should be paid to Mrs. Miner. Captain L. W. Perce, assistant quartermaster, who made the contract and saw to its execution, on cross-examination by the defendants, was asked:

“ Question. Was. it not a distinct agreement and understanding with Ml. Lockwood that he, Lockwood, should pay Mrs. Minor for her wood1?”

Witness answers: “It was.”

And this express testimony is confirmed by the fact that the last payment to Mrs. Minor was made by the claimant, himself, a month after the contract was annulled.

The evidence shows that the officers of the United States paid the money to Mrs. Minor, instead of leaving that to the claimant, but he never objected to this, and all that is sought to be shown is that he objected to the payment being made to Mrs. Minor at all. And this is not shown; all the evidence on fcbe subject is tbe statement of Captain Perce on bis examination-in-chief, as follows:

“ Witness does not remember whether Lockwood objected to the deduction until at or about tbe final settlement. I think that be did object a short time previous to said final settlement. By final settlemeht witness means tbe cancellation of tbe contract, as shown by Exhibit F. Witness thinks that Lockwood may have made objection to a deduction, but there was no formal protest.” This testimony is too vague and uncertain to revoke or annul the express agreement of the petitioner, clearly proved and affirmed by his own payment according to it, made si month after his contract with the Government had been annulled.

And on the facts stated, the court adjudge that the defendants arc entitled to judgment, and that the petition be dismissed.

Nott, J.,

dissenting:

The evidence to show a parol alteration of the contract in allowing a part of the contract price to be diverted and paid to a person living beyond the United States lines, I think inadmissible.

The consent which the court infers from the payments, I think rebutted by the fact that they were exacted by a retroactive military order, imperative in terms and allowing no choice to the contractor; by the fact that the contractor sought and ultimately procured a repeal of the order; and by the express terms of the written agreement which terminated the contract.

The defendants compelled the contractor to cut the wood on a tract appropriated by the army and held by actual military ■oceux>ancy. The order to deduct 75 cents a cord and pay it to a stranger was an arbitrary and illegal order, which could not bind the contractor nor reform the terms of the written agreement.

Peck, J., did not sit in this case, and took no part in the decision.  