
    TILLSON’S CASE.
    Robert Tillson et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants enter into express contracts vjith the Ordnance Department for the sale and delivery of horse equipments and infantry accoutrements. By the terms of the contracts, “ payments in such funds as the Treasury Depiartment may provide for each delivery are to be made on certificates of inspection and receipt by tbe United States inspectors.” The Ordnance Department without delay inspect the goods and transmit vouchers to the Treasury. In the Treasury delays occur, varying from seven to one hundred and fourteen days. The claimants’ business 'necessities compel them to borroio money at a high rate of interest by hypothecating the vouchers. When payment is made it is in part by certificates of indebtedness sent by mail. The claimants neither solicit nor object to therm, but they are below par in the market and occasion loss to the claimants. Congress pass aprivaie act for their relief.
    
    Where a private aot authorizes tbe court to “investigate” a claim and i!to ascertain, determine, and adjudge the amount equitably due, if any, for such loss and damage,” tbe claimants cannot recover remote damages resulting from their inability to purchase on a rising market; nor a discount paid by them on certificates of indebtedness which they accepted in part payment without objection; nor interest for the delay in payment while their accounts were being audited at the Treasury in the regular routine of the public business. (Act 23 June, 1874,18 Stat. L., p. 614.)
    
      The Reporters’ statement of the case:
    A number of contracts existed between the Ordnance Office and the claimants, all of which contained substantially the following provision as to payment: “ Payments in sucb funds as the Treasury Department may provide, for each delivery, are to be made on certificates of inspection and receipt by the United States inspectors, at the rate of three dollars and seventy-nine cents ($3.79) per set, for each set of infantry accouterments.” As to the manner in which this provision was carried out by the defendants the following facts were found by the court:
    The claimants, at various times between the 9th October, 1862, and the 24th October, 1864, delivered horse equipments and infantry accoutrements, under said contracts and agreements, to the defendants’ officers at the United States arsenal in Saint Louis, to the amount of $494,972.66.
    There were one hundred and fifteen distinct deliveries of the above-described goods made by the claimants, extending from the 9th October, 1862, to the 24th October, 1864, and the goods -delivered were then, at the respective times of delivery, inspected and approved by the defendants’ officers, and bills therefor were duly authenticated by the proper officers of the Ordnance Department, as provided by the contract, and no negligence or delay is attributable to the officers of the Ordnance Department in regard to the inspection of the goods or the issuing of the vouchers. The vouchers so received by the claimants were by them presented to the Ordnance Office in Washington, and were by the Ordnance Office transmitted'to the Treasury, to be audited and paid, and no delay in so transmitting them is .attributable to the Ordnance Office. After the vouchers reached the Treasury Department, intervals of different length occurred before they were audited and drafts issued in payment thereof. The shortest interval between the receipt of a voucher by the Treasury Department and the issuing of the draft in payment was seven days, and the longest was one hundred and fourteen days; the average was thirty-six days. During the period of the fulfillment of their contracts and agreements, before described, the claimants’ business necessities compelled them to borrow money by hypothecating or selling their vouchers, and the rate of discount paid by them generally was 10 per cent, per annum.
    A portion of the payments made to the claimants upon the vouchers before described were made, to the extent of 25 per sent, thereof, by certificates of indebtedness issued under the 
      Act 1st Marcha 1802, (12 Stat. L., p. 352.) These certificates were sent by mail to the claimants, accompanied by ordinary Treasury drafts for the remaining 75 per cent, of the payments. The claimants neither solicited such certificates nor objected to them. • Being below par in the market, the claimants sold them at a discount of 7¿ per cent. The total amouut of the certificates so issued to them was $77,000, and the discount or loss suffered by the claimants in disposing of them for cash was $5,775.
    
      Mr. M. E. Baine for the claimants.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

A majority of the court are of the opinion that the damages resulting to the claimants from their inability to purchase on a rising market in consequence of the Government’s delay in making payments, are too remote to be the subject of judicial relief within the intent and meaning of the private act passed for the claimants’ relief on the 23d June, 1874, and in that conclusion I concur. A majority of the court are also of the opinion that the claimants should not recover the discount paid by them on the certificates of indebtedness which they voluntarily accepted in part payment of their accounts against the Government, and in that conclusion I also concur. A majority of the court also are of the opinion that the delays in auditing the claimants’ accounts in th'e Treasury Department did not constitute a breach of the contracts before referred to, and, therefore, that nothing is equitably due to the claimants within the intent and meaning of the private act for the failure of the Government to-keep and perform the contracts as to the time of payment, inasmuch asin contracting with the Government the parties submitted themselves to the regular routine of the public business. In that conclusion I am unable to concur, being of the opinion that the delay was unreasonable and in violation of the terms of the contracts, and that the private act was intended to make the claimants whole in this particular, and that they should recover interest upon the payments thus delayed ; but in the absence of our brother, Mr. Justice Richardson, it is impossible to render final judgment without my concurrence, and as the claimants’’ counsel have intimated a desire to take the case to the Supreme Court, I unite with the majority of the court in directing judgment to be entered in favor of the defendants.  