
    BRAND’S CASE. Anselm P. Brand v. The United States.
    
      On the Proofs.
    
    
      Three bonds issued by the town of Altona, to pay bounties for the enlistment of volunteers in 1864, are placed by the supervisor of the toivnin the hands of one Tates, who is acting for him in recruiting. Bates leaves the bonds in the hands of an acting provost marshal at Blattsburg to be filled and delivered to one B., a recruit. At the time of this transaction B. is absent on leave, and has no 
      
      knowledge of llie bonds being left in the office for him. Be never reports for duty and is treated as a deserter. The bonds being without date or amount and in blank as to the name of the obligee, are filled np in Ms name, without his authority, or that of the supervisor of the town, by some one unknown. In this condition they are found in the provost marshal’s office. They are treated as forfeited to the United States, advertised, sold by the provost marshal, and purchased by the claimant. The amount is paid into the United States Treasury. The claimant brings suit on the bonds against the town of Alterna, which goes off at his cost without formal trial on the merits. This action is then brought to recover back the price paid for them, now in the Treasury.
    
    Where town "bonds are left with the United States provost marshal to "be filled np as to name, date, and amount, and to he delivered to an absent recruit, should he return and be credited as a volunteer to the town, and he does not return, but is treated as a deserter, the bonds cannot be filled up with'his name, and then be declared forfeited, and sold by the provost marshal. The purchaser, failing to recover of the town may sue for, and recover back the purchase money in the Treasury. The facts establish an implied warranty of title, which the purchaser may assert in the Court of Claims.
    
      Mr. A. L. Merrimcm for tbe claimant:
    This is a suit for the recovery of the amount paid by claimant for three bonds of the town of Alton a, New York, hearing date September 20, 1861, and payable to George Brimble, or bearer, one for $400, and two for $100 each.
    Isaac G. Gates testifies that these bonds were issued in blank by the town authorities, and handed to witness with others for the purpose of paying the bounties of such soldiers as enlisted in the late war, and were credited to the town; that this soldier had enlisted nominally, and went away to report on a certain day; that he filled up these bonds for delivery to Brimble, in case he reported on the day appointed; that he did not so report; that under the advice of the provost marshal, the bonds were left with him for delivery to Brimble, in case he should report, for the reason that if he should come and there was no money for him, he might go off and enlist for the benefit of some other town’s quota. The bonds so left with said provost marshal were retained by him, and were afterward turned over to his successor in office, who, having the bonds in his possession, asked instructions from the War Department as to what disposition he should make of them, and was instructed to sell them as being the property of a deserter, and pay over the proceeds to Captain G. H. Corning, which was done, and the proceeds, $373, were paid to the Government and placed to the credit of tbe deserters’ fund. Claimant was tbe purchaser for said price, believing the representations of tbe provost marshal, that the same belonged to the Government.
    He finds himself in possession of the bonds, but, after investigation, that he has no title; that one material ingredient in the title thereto was wanting, to wit, delivery; that the bonds were never delivered to the payee, or to any person for him, but were simply left with the provost marshal for tbe purpose of delivery in case the payee performed his contract and reported for duty; but as he did not so report there was no delivery, and the soldier himself was reported as a deserter for not so doing. The Government therefore having no title, no title was conferred by the sale upon claimant, the purchaser; wherefore he sues for money had and received upon the principle laid down in Kelsy’s case, (1 C. Gis. B.., 374.)
    
      Mr. A. Johnston, (with whom was the Assistant Attorney General,) for defendants:
    It is claimed that as the bonds were never delivered to Brim-ble, he never acquired any title to them, and therefore the government had no title; and this suit is brought to recover the amount paid for them.
    I. Whether the claimant acquired title to the bonds is a question of law arising upon facts entirely within his knowledge at the time of the sale. Money paid under a mistake as to the law cannot be recovered. FUiott v. Swartwout, 10 Peters, 137. Norton v. Mar den, 15 Maine, 45. Rill v. Green, 4 Pick, 114. Wyman v. Farnsworth, 3 Barbour, 369. Onondaga v. Briggs, 2 Denio, 26. Fleetwood v. City of New York, 2 Sanford, (S. 0.,) 475. Abell v. Douglass, 4 Denio, 305. Mowatt v. Wright, 1 Wend., 535.
    II. There was no warranty of title. The officer making the sale testifies that, except to announce that the sale was made by direction of the United States Government, he made no statement as to who owned the bonds. If the officer had undertaken to guarantee the title, or make any representations in regard to the matter, the Government would not thereby be bound. Lee v. Munroe, 7 Cranch, 366.
    III. The claimant shows no failure of title. He brings into court and files with the clerk the identical articles that he bought. Nobody else claims them. As to whether the amount of the bonds can be collected from the town of Altona, is a matter with which the Government has nothing to do. The bonds wTere long past due, and the claimant took them for what they might be worth. He bought them as a speculation. The price paid shows this. The bonds, when he made the purchase, called for (principal and interest) $033 76, and he paid but $373. He made a mistake, and rues his bargain — a bargain made with full knowledge of all the facts. He might have found out his mistake after the purchase, and before the money was paid. The sale was on the 11th, and payment was made on the 30th, of July.
   Milligan, J.,

delivered the opinion of the court:

On the 11th of January, I860, Andrew J. Cheritree, acting provost marshal for the sixteenth congressional district in New York, sold at public sale three bonds issued by the corporate authorities of the town of Altona, one for $400, and the other two, each for $100, dated the 20th of September, 1864, and payable March 1, 1865. The bonds were sold to the highest bidder, and purchased by the claimant at $383.

The object for which the bonds were issued was to pay bounties for the enlistment of soldiers, and to aid the town in sup plying its quota of volunteers, under the call of the President, made in July, 1864. These bonds, with others of the same character, were placed by the supervisor of the town in the hands of one Isaac G. Bates, who it appears was acting for him in getting up volunteers. Bates left the three bonds under consideration, without date or amount, in the hands of George Clenden, then acting provost marshal at Plattsburg, to be filled up and delivered to one George Brimble, who had previously volunteered and been sworn into the service. At the time of this transaction, Brimble was not present, nor is it shown that he had any knowledge of the bonds left in the office for his benefit. He was absent on leave, and the bonds were to be filled up and delivered on his return. He never did return or report for duty, and the bonds were afterward filled up with the amounts and Brimble’s name, in his absence and without his authority, or the authority of the supervisor of the town, by some one not shown in the record, and in this condition found in. tbe provost marshal’s office by Gheritree, the successor to ClendeD.

Brimble failing to report himself for duty, or to call for the bonds, was treated as a deserter, and the bonds as forfeited to the United States, and advertised and sold by the provost marshal to the highest bidder, and the claimant became the purchaser at $383, which, less the sum of $10, %. e., change and auctioneer’s fees, was paid into the Treasury of the United States.

Subsequently the claimant made demand of payment, and instituted a suit against the town of Altona for the recovery of these bonds, which appears to have gone off at the cost of the claimant without a formal trial on the merits.

Under this state of facts this action was brought against the United States, to recover the price paid for the bonds now in the Treasury.

It is clear, from a careful inspection of this record and the record of the circuit court of Clinton county, in New York, where the first s.uit was instituted, that there could, on the facts before us, have been no recovery in the State court. The bonds when passed to the provost marshal were incomplete. They were payable to nobody ; nor did they contain any amount, or bear any date; nor was any one authorized to fill them up and deliver them to Brimble, except on the conditions that he returned and allowed himself to be credited as a volunteer to the town of Altona, neither of which was ever complied with. Assuming the bonds were complete in their execution, and that no objection lies to the want of authority to fill them up and to deliver them, they were at most delivered as escrotos to the provost marshal, to be delivered to Brimble on conditions which never transpired, and consequently they never became valid obligations against the town of Altona, or the lawful property of Brimble.

The record also fails to show that there was any obligation of indebtedness subsisting between the town and Brimble, whereby the former was bound to pay the latter the bonds in question, or any other amount. They were left with the provost marshal, to be ready for him on his return, “ for fear,” as the witness expresses it, if he came and found no money ready for him he would enlist for some other town. He never did return or clothe himself with the legal title to the bonds, and consequently there could hare been no forfeiture to the United States.. The Government never had any title to them, and the sale was utterly without authority of law.

The sale having been conducted under the authority of the Government, and the bonds fair on their face, in the possession of its lawful agents, an implied warranty of title results, which the claimant has the right to insist on in this court. He bought in good faith and without notice of the inherent defects in the bonds, but as it turns out he tools nothing by his purchase. His money is wrongfully in the treasury, and an implied contract results, in the nature of a contract for money had and received, whereby he can, on the plainest principles of common justice, maintain this action to recover it back.

The amount paid into the Treasury we find to be $373, for which judgment will be entered.  