
    GUSTAV BECKER v. THE UNITED STATES.
    [No. 16777.
    Decided February 16, 1891.]
    
      On the Proofs.
    
    The claimant sells and delivers wood, hay, etc. ■ A check is given by the purchasing quartermaster, drawn upon a national bank which is a Government depository. The claimant indorses the check payable to the order of another bank and mails it in a registered letter. The post-office is robbed, including the claimant’s registered letter. Notice of the loss is given.
    I. Where a Government check or draft is lost or stolen the Revised Statutes (5$ 306, 307, 308, 310, 3646) do not require that payment must be postponed for 3 years or preclude a suit. They simply authorize disbursing officers to duplicate small checks in certain cases.
    II. The power given to the accounting officers to duplicate lost checks is not exclusive, and does not affect the jurisdiction of this court.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant and A. S. Kimball, quartermaster of the United States Army, entered into the following contracts:
    “Articles of agreement entered into this fifteenth day of June, eighteen hundred and eighty-nine, between Major A. S. Kim-ball, quartermaster, United States Army, chief quartermaster of the Deparment of Arizona, of the first part, and Gustav Becker, of Springerville, of the county of Apache, Territory of Arizona, of the second part.
    
      “This agreement witnessetli that the said Major A. S. Kim-ball, for and in behalf of the United States of America, and the said Gustav Becker (designated in this instrument as the contractor), for himself, his heirs, executors, and administrators, have mutualy agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “Article 1. That the contractor shall deliver at Fort Apache, A. T., during the fiscal year ending June thirtieth, eighteen hundred and ninety (3890), nineteen hundred (1,900) cords of pinon, cedar, juniper, and oak wood.
    ####*##
    “A. S. Kimball, [seal.]
    “ Quartermaster, U. S. Army.
    
    “ Gtjstay Becker.” [seal.]
    Articles of agreement entered into this twenty-eighth day of June, eighteen hundred and eighty-nine, between Major A. S. Kimball, quartermaster, United States Army, chief quartermaster of the Department of Arizona, of the first part, and Gustav Becker, of Springerville, of the county of Apache, Territory of Arizona, of the second part.
    “This agreement witnesseth that the said Major A. S. Kim-ball, for and in behalf of the United States of America, and the said Gustav Becker (designated in this instrument as the contractor), for himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    Article l. That the contractor shall deliver at Fort Apache, A. T., during the fiscal year ending June thirtieth, eighteen hundred and ninety (3890), nine hundred and fifty thousand (950,000) pounds of wild mountain hay.
    * 4P # # # # *
    “A. S. Kimball, [seal.]
    “ Quartermaster, U. S. Army.
    
    “ Gustav Becker.” [seal.]
    II. Under these contracts the claimant furnished certain supplies for which he received the following vouchers:
    
      The United States to Gustav Deelcer} Dr.
    
    
      
    
    
      
      The United States to Gustav Becker, Dr.
    
    
      
    
    III. On these vouchers the following check was issued:
    
      
    
    In exchange for the cheek the claimant gave a receipt in full to the assistant quartermaster for the amount. The bank upon which the'check was drawn is a designated depository for the United States.
    IY. This check was mailed by the officer issuing it on the day of its date at Los Angeles, Cal., to the claimant, at his home at Springerville, Apache County, Ariz., and was there received by him on or about January 20, 1890. The claimant made the following indorsement on the back of the check:
    “ Pay to the order of the First Nat’l Bank, Albuquerque, N. M.
    “Gustav Becker.”
    This done, he remailed this check in a registered letter, at said Springerville, Ariz., on January 21,1»90, to M. W. Flour-noy, cashier of the First National Bank of Albuquerque, N. Mex., for collection by said bank. It reached the post-office at Albuquerque on-the night of January 23,1890, but before it could be delivered the post-office was, the next morning, between the hours of 3 and 6, broken into by armed and masked robbers, who overpowered the clerk in charge, and took all the first-class registered matter, including the letter containing claimant’s check, as aforesaid, together with all other valuables which were in the post-office safe, and made their escape. A reward was offered for the apprehension and conviction of the robbers, and every effort for that purpose was made by the local police force and several private detectives, but said robbers have never been caught, nor have any of the letters, money, or other stolen property been recovered up to August 30, 1890, when this testimony was taken.
    Y. The claimant made application to the quartermaster who issued the check for a duplicate thereof, but the quartermaster declined to issue such duplicate. At the time said check was drawn there were sufficient funds on deposit at the Los An-geles National Bank to the credit of the quartermaster who drew it for its payment, and it has never been presented to or paid by said bank. On receiving a notice of the loss of the check the quartermaster drawing the same promptly, on the 18th of February, 1890, stopped its payment by telegram and letter to the bank.
    
      Mr. Allen Rutherford and Mr. George A. King for the claimant:
    The loss of negotiable paper constitutes no defense to an action upon it. It simply requires that a bond be given indemnifying the Government against any possible claim that might be made against it for a double payment. Belief may be had in such cases in equity, but the jurisdiction of the courts of law is equally well established, the entry of judgment in those courts being conditioned upon the giving of a bond of indemnity (1 Story Equity Jurisprudence, § 82-86a). Such a bond of indemnity the claimant is ready and willing to give, in such form, and with such sureties, and with such approval as may be required by the court, and upon giving the same judgment should be entered in his favor for $1,342.50. (Buffalo Bayou R. R. v. United States, 16 0. Ols. B., 238; Kinney v. United States, 19 O. Ols. B., 671.)
    Interest is always allowed upon negotiable instruments, and, the claimant being in no way at fault for the delay in payment, interest should be allowed at 6 per cent, per annum from the date of the check, January 14, 1890. (United States v. Banlc of the Metropolis, 15 Pet., 377; National Bank of the Republic v. Millard, 19 Wall., 158; Martin v. Gole,10i U. S. B., 30.)
    
      
      Mr, James H. Nixon (with whom was Mr. Assistant Attorney-General Cotton) lor the defendants:
    We claim that a lost Government check i& for 3 years like a note, or any other obligation, not yet matured. The moment it is lost it takes on that character by virtue of the statutes recited, and it is as idle to undertake to compel its payment in a court of law as it would be to compel the payment of a promissory note before its maturity. It can not affect the validity of this defense that the check was lost while being transmitted through the United States mails. No carelessness on the part of the Government mail officers is anywhere alleged, nor would it avail anything if it had been.
    But the claimant is in no danger of losing his money. It will be put to his credit at the end of 3 years, and he can go to the Treasury Department and draw it. It may be called a hardship to wait that long, but Congress doubtless passed the law to avoid greater evils than the occasional inconvenience of delay to individuals in collecting their money.
    But the claimant need not wait. Our statute books abound with special acts passed by Congress for the relief of payees of lost checks or drafts. If he had applied to Congress instead of bringing this suit, it is probable that he would have had relief before this time. If a citizen can settle his account with a quartermaster, give a receipt in full, accept a check in payment, lose it, and then come to this court and sustain a suit in which he claims to recover both on the check and on the original cause of action for supplies furnished the Government, then, in our opinion, all the wise laws passed by Congress for the protection of the Government on the subject of lost checks are a mere mockery, and had better be immediately repealed. If our view of the case is correct, there can be no judgment rendered in favor of the claimant, and it is therefore not necessary to answer the brief of claimant’s counsel on the subject of interest.
   Scofield, J.,

delivered the opinion of the court:

This is a suit to recover the amount of a check given to the claimant and lost under the following circumstances :

The claimant resided at Springerville, Ariz. June 15,1889, he contracted with Major Kimball, of the United States Army, and chief quartermaster of the Department of Arizona, to deliver 1,900 cords of wood, at the rate of $3.09 a cord. June 28, 1889, he further contracted to deliver 950,000 pounds of hay at the rate of 95 cents for 100 pounds. The wood and hay were duly delivered and proper vouchers given, for which the claimant gave receipts.

For these vouchers a check, dated January 14, 1890, was drawn upon the Los Angeles National Bank, a Government depository, in favor of the claimant, by T. E. True, assistant quartermaster of the United States, for the sum of $4,342.50, and sent by mail to the claimant, at Springerville. The claimant indorsed the checks, specially, to the First National Bank at Albuquerque, N. Mex., where he kept his accounts, and mailed it in a registered letter to that bank. The night of its arrival at that place, January 23, 1890, and before delivery, the post-office was entered by masked robbers and rifled of its valuable contents, including all the registered letters.

Notice of the loss was forthwith given to the quartermaster, and also to the Los Angeles Bank, and payment stopped.

A reward was offered for the apprehension of the robbers, but they have never been discovered, nor has any of the stolen property been found.

From these facts it very clearly appears that the United States are indebted to the claimant to the amount of the contract price of the wood and fodder as stated in the vouchers and check. The stolen check has not been paid nor presented, and the funds against which it was drawn áre still under the control of the Government. Notice to the bank that the check had been stolen, as well as the failure to present it within a reasonable time, precludes the possibility of an innocent payment in the future.-

The counsel for the Government does not question the justness of the claim, but contends that, under sections 306,307, 308, 310, and 3646 of the Revised Statutes, payment must be postponed for 3 years from the date of the check.

We do not understand that these provisions impose this hardship upon the claimant. Sections 306,307,308, and 310 simply provide that money standing to the credit of disbursing officers, against which drafts or checks have been drawn, but not presented for payment within 3 years, shall be withdrawn from such disbursing officers, covered into the Treasury, and carried to the credit of the payees of such outstanding drafts or checks.

Section 3646 authorizes disbursing officers to issue duplicate checks when the originals have been lost, stolen, or destroyed after the expiration of 6 months and within 3 years from the date of the originals and when the amount does not exceed $1,000. This amount has been enlarged to $2,500 by the act of February 16,1885. While this section authorizes disbursing officers to duplicate small checks which have been lost, stolen, or destroyed, and certain other executive officers to pay them “ upon notice and proof of the loss of the original checks,” it can hardly be said to deprive this court of its general jurisdiction to hear and decide upon all such cases, certainly not upon cases not therein provided for. Congress appears to have thought that proof of the loss of small checks, where the opportunity and motive for fraud are correspondingly small, might safely be left to the informal and ex parte investigating of disbursing officers, but large alleged losses should still undergo the scrutiny and publicity of judicial investigation.

The claimant proposes to indemnify the Government by satisfactory sureties against loss by reason of the outstanding check. Although the possibility of loss under the facts of this case is extremely remote, it is proper, if the judgment of the court shall be finally paid at the Treasury, that a bond of indemnity should be then taken.

The court directs judgment to be entered in favor of the claimant for $4,342.50.  