
    MADISON W. STEWART v. THE UNITED STATES.
    [Nos. 15701, 16440.
    Decided November 4, 1889.]
    
      .On the Proofs.
    
    An army transportation contract provides that “ transportation by means of ox teams is contemplated, by this agreement, but when, in the judgment of the forwarding officer, horse or mule teams are required,” the contractor shall furnish them; and when furnished on “notice signed or approved in writing by the forwarding officer or agent," the contractor shall be paid 25 per cent, in addition to the rates provided. On a notice given by the quartermaster’s agent at the place of shipment, the contractor furnishes horse transportation. At that place there is no officer or other person in charge, and the stores are turned over to the contractor by him.
    I. Though one article of a contract provides that the judgment to lie exercised in relation to the kind of army transportion required shall be that of the forwarding “ officer," yet if other articles contemplate the exercise of the same discretion “ by the proper officers or agents ” of the Quartermaster’s Department the construction must be that which should be given to the whole agreement.
    II. When a quartermaster’s agent was in charge of stores and authorized to ship thorn, and there was no commissioned officer at 'the post, he was the proper forwarding officer or agent to determine the kind of transportation within the intent of the agreement.
    
      
      The Reporter’s statement of the case: '•
    The following are the facts as found by the court:
    I.The parties entered into a written contract, a copy of which is annexed to and forms part of the petition. In pursuance of the contract, the claimant, within the fiscal year ending June 30, 1882, at the request of the officers of the Quartermaster’s Department of the Army, performed transportation, for which vouchers were given at contract rates as follows:
    (1) Transportation between Wilcox and Ports Apaché, Bowie,
    ■ Grant, and Thomas, Arizona Territory. $1,608.06
    (2) Transportation between Port Thomas and Rocky Canon, Cedar Springs, and Port Grant, and between Rocky CaHon, Wilcox, and Cedar Springs, Arizona Territory. 1, 746.19
    (3) Transportation between Willcox and Port Thomas, Arizona Territory. 143.81
    (4) Transportation between Willcox and Port Thomas, Arizona Territory. 351.11
    (5) Transportation between Willcox and San Simon and Camp Price, Arizona Territory... 1,007.08
    4,856.25
    Previously to the above, the claimant during said year performed other transportation under said contract, for which he received vouchers in due form, and was paid the amount thereof less 5 per cent, retained under article 20 of the contract, which retained amount was $1,695.85.
    II. In the vouchers given for the transportation mentioned in said items numbered 1, 2, 3, 4, 5 there were included sums amounting to $115.63, and in said vouchers previously given and paid (with the exception of the amount retained) there were included sums amounting to $4,340.44, in all $4,456.07, for parts of said transportation performed as immediate and expeditious transportation by horse and mule teams, under the circumstances hereinafter stated, at 25 per cent, additional to the contract price for transportation by ox teams, in accordance with articles 3 and 18 of the contract.
    III. During said time Henry O. Hodges was deputy quartermaster-general, and was chief quartermaster of the Department of Arizona, stationed at Whipple Barracks, Arizona Territory.
    
      D. H. Smith, who was not an army officer, was quartermaster’s agent at Willcox, in said Territory, and (except at Fort Apaché, where Lieutenant Carter, mentioned in Finding Y, was in charge) was the person by whom the stores transported were turned over to the claimant, and the only person in immediate charge of transportation under said contract. He received the following instructions from said deputy quartermaster:
    “Headquarters Department oe Arizona,
    “Oppioe op the Chief Quartermaster,
    “ Whipple Barracks, Prescott, A. T., Aug. 18, 1881.
    “ Mr. D. H. Smith,
    “ Qrfur’s Agent, Willcox, A. T.:
    
    “Sir: You must make great efforts to get grain to Grant and Thomas. The supply is getting low at these posts, and the trouble from washouts on the railroads renders it necessary that great exertion be made to send forward grain the moment trains carry it to your depot. Let me know when grain arrives at Willcox, how much for each post (Grant and Thomas), and when shipped.
    “Yery respectfully, your obd’t servant,
    “ Henry C. Hodges,
    “ Deputy Qrmr. Gen’l, U. B. A., Ghief Quartermaster.”
    
    “Headquarters Department op Arizona,
    “Office of the Chief Quartermaster,
    “ Whipple Barracks, Prescott, A. T., Sept. 2, 1881.
    
    
      “ Quartermaster’s Agent,
    
      “Willcox, AT.:
    
    
      “ Sir : In view of probable trouble with Indians inthevicinity of Grant and Thomas, I have directed the agent at Los Angeles to receive from contractor and ship 150,000 lbs. barley for Camp Thomas, and 120,000 lbs. for Fort Grant, and to notify you when it starts. You will make arrangements with the transportation contractor to be in readiness to forward this grain without delay as soon as received.
    Yery respectfully, -
    «“Henry C. Hodges,
    “ JDep’y Q’rm’r-General, Chief Quartermaster.”
    
    
      “ HEADQUARTERS DEPARTMENT OE ARIZONA,
    “ Office of the Chief Quartermaster,
    “ Whipple Barracks, Prescott, A. T., FeVy ‘2,1,1882.
    “ Quartermaster’s Agent,
    “ Wilcox, A.'T.:
    
    “ Sir : The following amounts of grain have been ordered from San Francisco, to be shipped in time to reach the posts by the time specified:
    Pounds.
    Fort Thomas, Maz'ch 10. 80,000
    Fort Bowie, “ 20. 60,000
    Fort Grant, “ 30. 80,000
    “.You will forward this grain with as little delay as possible.
    “ Very respectfully, your ob’d’t servant,
    “Henry C. Hodges,
    
      “Deputy Q'rhn’r-General, Chief Quarter master.
    
    IV. With each of the numerous bills of lading (save one hereinafter mentioned) there was filed a written notice given by said Smith in the following form :
    “ Wilcox, A. T.,-, 188-.
    “M. W. Stewart, Esq.,
    “ Freight Contractor, Wilcox, A. T.:
    
    “ Sir : You will please furnish immediate and expeditious transportation under the terms of your contract dated June 5,
    1881, for-lbs. of subsistence and other stores from this place
    to Fort Thomas, Arizona Territory.
    “ Very respectfully,
    “ D. H. Smith,
    “ Quartermaster’s Agent.”
    With one bill of lading (excepted above) there was filed a written notice, as follows:
    “ Office A. A. Q. M.,
    “ Fort Apache, A. T., April 12,1882.
    “ M. W. Stewart, Esqr.,
    “ Freight Contractor, Wilcox, A. T.:
    
    
      ■ “Sir: You will please furnish immediate transportation, horse or mule, under the terms of your contract, dated June 5, 1881, for 13,914 pounds of company property, etc., from this place to Wilcox, A. T.
    “Very respectfully, your obedient servant,
    “W. H. Carter,
    “1st Lieut, and B. Q. M., 6th Cav’y, A. A. Q. M.”
    
    Said Carter was the only person stationed at Fort Apache in charge of transportation from that place.
    
      Y. Said vouchers were made out, signed, and certified substantially as was the following, taken as a sample of them all; the quartermaster not being the same in all cases:
    
      
    
    “Army transportation, fiscal year ending June 30, 1882.
    “ I certify that the classification and rates of freight charged in the above account were the current and lowest rates charged the public when the service was rendered.
    “Madison W. Stewart,
    “ In charge of freight depot.
    
    “1 certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and that Madison W. Stewart, signing receipt below, is authorized so to do.
    “A. J. McGonnig-le,
    “ Quartermaster, U. S. A.”
    
    YI. No part of the vouchers mentioned in said items 1, 2, 3, 4, and 5, in finding 2, and no part of the amount retained on the previous vouchers mentioned in said finding 2 have been paid.
    
      Mr. George A. King (with whom was Mr. John Mullan) for the claimant: t
    The decisions of this court in Parish v. United, States (2 O. Ols. R., 341), McCann v. United States (18 C. Ols. R., 445), and Countryman v. United States (21 O. Ols. R., 474), and of the Supreme Court in Salomon v. United States (9 O. Ols. R., 54), are conclusive in regard to the merits of the claim, the suit being founded upon certified vouchers issued in strict accordance with the contract, and at the rates therein fixed by the authorized officers of the Quartermaster’s Department.
    
      
      Mr. W. 1. Hill (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    It is contended that the notice given by the agent is not such notice as will bind the Government, and is not such notice as contemplated by the section of the contract authorizing it. It was the duty of the contractor to know whether the agent was acting within the scope of his authority before he undertook to perform the extra service, and in so doing he performed the work for which he now makes charge at his peril. It is an undisputed proposition of the law of principal and agent, that the latter can only bind the former by acts within the scope of his duty. The contract was made by the officer in charge of the department; the agent could not have made a legal contract, still less can he by act alter or change any condition of the contract. When it is admitted by all the papers and proceedings in this cause that the claim for extra compensation arises upon the act of an agent, to state the proposition carries with it all the force of the objection raised. It is considered quite unnecessary to cite authorities in support of this position.
    But it appears that the quartermaster’s agent ordered the contractor to expedite his service, simply upon a notice from the officer in charge of the quartermaster’s department to make great efforts to get provisions forward to the forts. It is contended that the act of the agent in this particular does not come within the meaning and intention of the third and eighteenth articles of the contract, because he was not directed to order expeditious movement of supplies, nor 'does he even pretend that such an order was ever given, but on the contrary the act is shown to be the act of the agent without the least authority from the officer in charge. The judgment of the forwarding officer had not been exercised, and hence this portion of the claim must be disallowed.
    The claimant in his brief refers to an opinion of Attorney-General Brewster to be found among the papers. This, it is urged, can not help the claimant in his present demand. That opinion was given as to the question whether a criminal prosecution could lie against the agent for corruptly acting in the premises. That question can not arise in this proceeding. If be acted corruptly, tbe greater reason for denying tbis claim; but tbe position taken is that be acted without any kind of authority to bind bis principal. Claimant is not helped by citing authorities to. show the value of vouchers as proof given for pay to the claimant on account of services rendered. These are only prima facie in the way of evidence, and can.be attacked for regularity or correctness. In tbis particular case these vouchers are shown to have been incorrectly issued, because they arise not from any clear and unconditional term's of the • contract, bub they were issued upon the presumption that the authority upon which they were founded was right and proper. The defendants attack their regularity and correctness because the record shows that they are based upon the act of an agent, and not upon the act of the officer who could alone give them life and validity.
   Richardson, Ch. J.,

delivered the opinion of the court:

This case, founded upon a written contract for transportation of army supplies, was commenced by original petition filed by the claimant June 27, 1887. Subsequently the claim involved therein was transmitted to the court by the Secretary of the Treasury by letter, of which the following is a copy, and the two proceedings were thereupon consolidated into one case:

“Treasury Department,
“ Oeeice oe the Secretary,
“ Washington, D. 0., January 19, 1889.
“ To the honorable the Chief Justice
and Judges of the Court of Claims r
“ Under the provisions of section 1063 of the Revised Statutes I herewith transmit to your honorable court, upon the recommendation and certificate of the Second Comptroller, the claim of Madison W. Stewart against the United States, for transportation of army stores under contract, now pending in this Department, with all the vouchers, papers, proofs, and documents pertaining to said claim, for trial and adjudication by your honorable court as .provided by law.
“ Respectfully, yours,
“C. S. Fairchild,
“ Secretary.”

The only controvery arises upon the interpretation to be given to the following provisions of the contract, as applied to the undisputed facts, the italicising being our own for convenience of reference in this opinion :

“Article 1. The said Madison W. Stewart shall, during the period commencing on the first da.y of July, 1881, and ending on the thirtieth day of June, 1882, furnish wagon transportation from * * * for all such public stores as may be turned over to the said Madison W. Stewart, or his agent, in good order and condition for transportation by the proper officers or agents of the Quartermaster’s Department.
“Art. 3. Transportation by means of ox teams is contemplated by this agreement, Imt when in the judgment of the forwarding officer horse or mule teams are required for the expeditious movement of public stores, the said Madison W. Stewart shall furnish such number as may be required, and the written notice calling for them shall he filed with the hill of lading.
“Art. 18. For transportation furnished under this agreement the said Madison W. Stewart shall be paid as follows: * * *
“Provided, That when, in accordance with the provisions of article 3 of this agreement, horse and mule teams less than twenty in number are furnished for the expeditions movement of public stores within four (4) days from receipt of notice signed or approved in toriting hy the forwarding officer or agent, the said Madison W. Stewart shall be paid the rates hereinbefore specified, and an allowance of twenty-five (25) per cent, in addition thereto. * * * ”

The whole amount claimed as now due for transportation under the contract is $6,552.10. Of this amount the defendants resist their liability for $4,456.07 on the sole ground that, being 25 per cent, additional for expedited transportation by means of horse or mule teams, over the prices of transportation by ox teams, as provided by articles 3 and 18, there was, as they allege, no sufficient authority given to the claimant as required by said articles thus to expedite the service.

The findings show that with each bill of lading there was filed a written notice calling for expedition as required by article 3. The notice was signed, except in one case, “D. H. Smith, quartermaster’s agent.” On the part of the defendants it is contended that, by the contract, authority for expedition, for which the contractor was to be paid 25 per cent, extra, could be given to Mm only by “ the forwarding officer; ” that Smith, “ not being an army officer, was only an agent and not the forwarding officer, and that the notices given by him were without authority and so no justification for the claimant’s extra charge. In our opinion these grounds of defense are not well founded.

Article 3 provides that when, in the judgment of the forwarding officer, horse or mule teams are required for the expeditious movement of public stores the contractor shall furnish such number as may be required, and that written notice calling for the same shall be filed with the bill of lading. It is upon this language that the defendants rely in support of their contention, and if it were to be taken by itself and the case depended upon that alone it might require us to determine who was technically the “ forwarding officer” within the meaning of the contract under all the circumstances of the case. But this language must be construed with other provisions, and its true interpretation and the final decision must depend upon the whole contract taken together, with the light of its different parts thrown upon each other.

Section 18 supplies what is omitted in section 3. It expressly provides by whom the notice of expedition shall be given, by requiring it to be “ signed or approved in writing by the forwarding officer or agent.” The notices, all save one, in this case were signed “ D. H. Smith, quartermaster’s agent,” and if he was the “ forwarding agent ” the statute was complied with and the contractor had the required authority. That he was so there can be no doubt. In letters of instruction sent to Smith by the chief quartermaster of the department, his immediate superior in authority, set out in finding 3, he was addressed as quartermaster’s agent. Article 1 of the contract requires the contractor to forward all such public stores as should be turned over to him by the proper officers or agents of the quartermaster’s department. At the place whence these stores were transported there was no officer or person in charge for the Government except Smith, and it was by him that the stores were turned over ,to the contractor.

He was the only person acting for the Government from whom the contractor appears to have received any instruction. The chief quartermaster instructed him to make great efforts to have the stores forwarded. Whether or not the letters of instruction set out in finding 3 were a sufficient justification, if any were required, for the agent to issue such notices, it is not necessary to determine, because by article 18 the contractor was not required to look behind the notices given in exact accord with its provisions. When notified in accordance with that article the contractor was bound by his agreements to furnish horse or mule teams, and he would have been liable in damages if he had refused. So when he furnished such teams upon notice given as there required he became entitled to the 25 per cent, extra as he mow claims.

There were some stores in one instance turned over to the contractor at Fort Apache by Lieutenant Carter, an army officer in charge of transportation at that place. With the bill of lading was filed an order for expedition signed by said Carter. The extra charge for expedition in this instance is not controverted by the defendants, because upon their theory he was an officer, and so might technically be considered the forwarding officer within the terms of the contract. But we do not consider his authority to issue notice of expedition to the contractor at Fort Apache, any greater than that of Smith at Wilcox. One was an agent and the other an .officer, and each come within one or the other of those persons authorized by article 18 of the contract to sign or approve such notice under the designation of “ forwarding officer or agent.”

The claimant is entitled to recover the sum of $6,552.10, and judgment will be entered accordingly.  