
    George Caleb v. The United States.
    
      On the Proofs.
    
    
      The schooner Lanfair is chartered, ly the chief quartermaster of the army of Major General Canly, under circumstances similar to those of the hrig Filler, in the .case Baker Sf Folsom. (See syllabus and opinion in that case, ante, p. 343.)
    Messrs. Chipman and Hosmer for claimant:
    This claim is founded upon alleged arrears of pay due for the services of the schooner H. S. Lanfair while in the service of the military authorities, under a charter-party, and it is brought into this court by original petition.
    On the 25th day of February, 1865, the claimant, .who was the master and sole owner of the schooner H. S. Lanfair,-entered into a charter-party with Captain F. W. Perkins, acting quartermaster, at New Orleans, in the State of Louisiana, conditional for the-services of said vessel and crew, for the sum of $1,000 per month, for an unlimited time.
    The vessel was taken into service at noon of the day on which the charter-party was executed, and was retained and used therein until June 8, 1865, at noon.
    The vessel was paid for her services from the date of the charter to May 1, 1865, and 50 per cent, of the price agreed upon — i. e., $500 per month subsequent to that time.
    No reason for withholding the balance of this money was given to the claimant prior to the date on which the vessel was discharged. After her discharge he was informed that it was done in pursuance of a rule or order of the quartermasters’ department. - •
    ■ The time for which half payment was made is from April 30 to June 8, 1865, and the remaining half pay, after deducting the income tax, is $620 83.
    The Deputy SolicitoR for the defendants:
    In this case there is a marked discrepancy between the printed exhibit A, appended to the petition, and the original paper, filed in the clerk’s office, of which it purports to be the counterpart. The indorsement of the approval of the colonel and chief quartermaster of the department of the Gulf, should have been fully and clearly certified to this court under the proof; but a comparison of the two papers in this case will indicate the fact that the alleged charter-party, on which party it is sought to recover a balance of #620 83, was never transmitted to the returns office, Interior Department, as required under the provisions of the act of 2d June, 1862. (12 Stat. L., p. 411.) The original, so called, is itself only a copy, and it is defective in not having the indorsement above mentioned; and. even were it bolstered up with this indorsement of the chief quartermaster, within’whose department it might have been signed, sealed, and approved, it yet needed other essentials to make it binding upon those defendants, even .for an emergent occasion.
    
      The paper on which this action has been based was in no legal aspect that full charter-party which would fix a liability upon the United States for the amount apparent on its face. For the services of his vessel, the claimant, it will be seen, has been overpaid. On the 25th February, 1S65, an arrangement is alleged to have been made between Captain F. W. Perkins, assistant quartermaster, and himself, for this rate of $1,000 per month, for the use of a schooner of 110 registered tons, instead of $440, the common rate elsewhere; the vessel then belonging to the port of New Orleans, as it is to be presumed, though the enrolment and license in the coasting trade do not appear in evidence. In all questions having regard to the ownership of vessels, these are material papers, and the absence of them might, under certain circumstances, be set down among the badges of fraud. The vessel was valued and appraised at the sum of five thousand dollars, an exorbitant valuation in itself; and on the 25th day of February, 1865, she is taken into the service of the government for the sum of one thousand dollars per month, and, so far as the assumed discretion of the assistant quartermaster could be conclusive, for so long as she might be required. This alleged charter was not made subject to the approval of the Quartermaster General, and it remains to be proved, on some explanation of the discrepancy between the papers as filed and as printed, whether the indorsement of the colonel and chief quartermaster at New Orleans had been duly obtained.
    On March 10, 1863, Special Orders No. 3, as certified to this court, were promulgated from the Quartermaster General’s Office, requiring all such claims for compensation of steam or sail vessels, chartered for service in the quartermasters’, department, upon the Atlantic or Gulf of Mexico, rated by the day or month, to be referred to that office before allowance or payment. On the 21st May, 1863, the circular letter, now in evidence, under return from the War Department, was forwarded to the chief quartermaster in each department, stating what the ruling rates were in the future to be. For sailing vessels, per registered ton, $3 50 to $4 were estimated as reasonable sums, after, collating the. offers made to the Quartermaster General. These orders,, and the circular letter, must have been brought home to the knowledge of the assistant quartermaster at New Orleans, and to all concerned, as in due office routine they had been transmitted to Colonel S. B. Holabird, chief quartermaster department of the Gulf, for publication and general reference. On the 25th day of February, 1865, the charter-party, out of which this balance for $620 S3 has accrued, was signed between Captain Perkins and the owner of the schooner Lan-fair. The payment of the $1,000 per month, so long as the service might last, was to be made to the order of Campbell & Zerega, ship-brokers, at New Orleans. This is specially inserted in the alleged charter-party, as may have been usual. The claimant testifies, indeed, that these ship-brokers were his agents, and while no regular power of attorney is in proof, there is indorsed on the paper, filed as the charter-party, Caleb’s written order to these brokers to transact the business of the vessel.
    The distance from New Orleans to Mobile bay is so short, that sailiug vessels can make the run within 48 hours. It is about 75 miles from bar to bar; and here is a case of pressing exigency, alleged to be continuous from 25th February, 1865, to the 8th of June then next ensuing for the use of this schooner, when the testimony discloses four trips ongovernment account. By the concussion or the blowing up of some ordnance stores, at the city of Mobile, the schooner was somewhat impaired about the middle of May, and after the fall of Mobile, April 12, 1865, the emergency of the first week of February, under any order for seizure of vessels by General Canby, may be presumed to have passed away.
   Casey, C. J.,

delivered the opinion of the court:

The facts .of this case are almost identical with the case of Baker & Folsom. A similar contract was made with him by Captain Perkins, for the use of his schooner H. S.Lanfair, on- the 25th February, 1865. She continued in that service until the 8th day of June, 1865. In that time she earned, at the agreed compensation, $1,000 per month, three thousand three hundred and sixty-six dollars and sixty-six cents, ($3,366 66.) By order of the Quartermaster General, who disapproved the contract, the sum of six hundred and twenty dollars and eighty-three cents ($620 83) was deducted from the earnings of the vessel, and payment has been refused to the claimant.

The contract made by Captain Perkins with the claimant was an • honest and fair one. It was made under the order of General Canby, military commander of the district or department, to provide for a pressing emergency. The contract was fairly and honestly performed by the claimant. The Quartermaster General had no right to interfere with the contract in any way whatever. The law .of Congress is plain and explicit. ■

We must, therefore, render a judgment in favor of the claimants for the residue of the agreed compensation, six hundred and twenty dollars and eighty-three cents ($620 83.)  