
    CROWELL’S CASE. William Crowell (for the use of various parties) v. The United States.
    
      On the Proofs.
    
    
      The action is prosecuted in the name of the original contractor for the use of various persons to tohom his quartermaster vouchers were transferred, and who are the real parties in interest. The case is tried and submitted, when it appears that the respective interests of the several parties are not sufficiently established by the evidence, but that the contract is identical with one which has been adjudged valid and binding upon the defendants. The vouchers referred to are not in the possession of the different parties, but were by them, surrendered to the Treasury before suit, and paid in part. Neither were they transferred by indorsement nor formal assignment, nor by any designation which will enable the court to identify and marshal them. With regard to one of the parties, there is no evidenee to establish-his interest in the vouchers, and there are vouohers outstanding, issued under the contract, which, are not owned by any party named in this suit.
    
    I. The government, by consenting to be sued in the Court of Claims, consents to an adjudication upon the merits; and, as it recovers no costs, is not interested in obtaining a mere judgment of nonsuit, which will not bar a second action.'
    II. Wliero the interests of several parties are united or represented in one action, and their right to recover is clearly established, as against the defendants, but the amount of their respective interests is left obscure, the Court of Claims will order a reference to determine the same.
    III. Where an action is prosecuted by assignees for their own use, but in the name of thp original contractor, they must establish, by evidence, tlio transfer of the chose in action, to themselves. For when judgment is recovered in such suit, it is paid at the Treasury, not to the nominal claimant, but to the real party in interest.
    
      Mr. Thomas Wilson for the: claimant:
    This is a case brought by original petition. Numbers 3784-, 3799, 4CG1, 4662, 5919, 3826, 3827, 5565, 5566, are similar to this case, and, by agreement with the Attorney General, are to be argued and decided together.
    The action is to recover a reduction made upon certain vouchers issued by Captain B. F. Simpson, Fifteenth Kansas Cavalry, acting, assistant quartermaster.
    The vouchers were issued by Captain Simpson to these vari, ous plaintiffs in payment for certain quartermaster stores de. livered by tlie xfiaintiff to Mm, on certain contracts made betweeu the plaintiffs and Captain Simpson on the 20th of September, 1864.
    The contracts were for certain and specific amounts, at certain and specific prices, made in due form and by proper authority and it is not seen how any objection can be made to them.
    Under these contracts the deliveries were made, and the vouchers now in suit issued by the quartermaster receiving the stores.
    As the deliveries took place day by day, these vouchers were issued for the quantities received, and soon after, the vouchers were sold by the plaintiffs to the various parties for whose use these suits are brought. The record of these assignments is in the papers.
    About the time of the completion of the deliveries of the stores under the contracts aforesaid, the Quartermaster General suspended or prohibited payments upon a21 vouchers issued in Kansas, ordered them to be collected by. Colonel Potter, and forwarded to Washington. About the time of the arrival of the vouchers in Washington, the Quartermaster General ordered a board of officers to convene to examine into the administration of affairs in the Quartermaster General’s department in Kansas, and these vouchers, in common with others,-were referred by him to that board.
    The board held its sessions secretly; no notice was given, no claimant appeared before it, nor ivas he allowed to appear; no testimony was taken.
    The board ignored the contracts and fixed new prices for the stores delivered, and reduced the prices fixed in the contracts and vouchers of corn about 53 cents per bushel, hay about $2 50 to $5 per ton, and wood from $3 to $4 per cord, made indorse-ments of their action on the vouchers, and returned them to the Quartermaster General, with the recommendation to pay at the reduced rates. This recommendation of the board was concurred in by him, and the vouchers transmitted to the Third Auditor for settlement and payment. The vouchers were settled and paid at the Treasury Department.
    No question arises as to the effect of a receipt, because no receipt was given. No receipt was needed. Out of abundant caution, however, the plaintiffs gave notice to the Quartermaster General, in advance, that they would not relinquish, by the receipt of tbe portion paid, tke right to recover the balance unpaid.
    •Here is the sum of the whole matter: These were legal contracts, regularly and fairly made by competent authority, fairly and fully carried out and executed by the plaintiffs, and on which the United States have paid them a portion of the amount agreed upon, without requiring either receipt or release.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants :
    I. There was clearly a combination among bidders at the letting of these contracts. Every circumstance in the case goes to show this.
    The report of Colonel W. II. Owen, one of the counsel of record in this case, and a person whose character, both as an ■ officer and a gentleman, is above reproach, although it may not-be competent evidence of all the facts stated in it, is perfectly convincing evidence of the fact that there was a combination among the bidders at the letting of these contracts to put up the price of corn, hay, and wood.
    Under these circumstances, with the facts before him, it was the duty of the Secretary of War to adopt measures to protect the interest of the Government.' (United States v. Adams, 1 Wall., IG3.) This he could do in no other wáy than to ascertain the amount justly due for the articles furnished, and see that no greater amount should be paid. To accomplish this, what way could be more simple or more just than the one adopted? To appoint a board of officers to examine and audit the vouchers was certainly a legitimate course to pursue.
    II. That these parties did not appear in person before the board, and produce evidence in contradiction of the various official reports and affidavits presented, is not a circumstance of any consequence. They might have done so. The board was open, and was instructed to “consider all the testimony which may he offered to establish the propriety of each claim presented.” Several persons were before the board. The “cashier of the First National Bank of Washington was in several times.” This cashier was W. S. Huntington, the person who presented the vouchers to the Quartermaster Department, and to whom the amounts allowed on them- were paid — the person wbo, so far as the department knew, was the owner of the Touchers.
    III. The payment made to Huntington was a payment in full. The War Department was well justihed, under the circumstances, in suspending payment of these vouchers, and therefore “they must be regarded as claims disputed by the Government.” (United States v. Adams, 7 Wall., 463.) Huntington knew the claims were to be submitted to a board of officers when he presented them to the Quartermaster General; he knew afterward that they had been so submitted; he had every opportunity to know, and did know, what action was taken upon them-by the board; he knew that the payment made was intended by the government officers as a payment in full. Knowing these facts, he received the money. He received it in silence. Had he received it otherwise, it would have made no difference. Adams did not present his claim to the St. Louis commission, and he protested against receiving the amount awarded by the commission. But, nevertheless, he “took the benefit of the adjustment of his accounts by them;” he received his money, and thereby was concluded. (United States v. Adams, 9 Wall., 554.)
    That the payment of a part of a claim as in full, and the re-= ceipt of the sum paid, with whatever intentions on the part of the person receiving the money, is a settlement in full of the claim, (Oalhins and another v. The State, 13 Wis., 389, and cases there cited; also, Massing v. The State, 14 Wis., 502.)
    IY. The foundation of this claim is, the contracts set forth in the amended petition, and not the vouchers. A voucher is not a contract nor an evidence of indebtedness.
    These contracts, or an alleged breach of them, being the foundation or cause of action, the claimant cannot maintain more than one action, or, at most, one action on each contract. “A creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments.” (Mandeville v. Welch, 5 Wheaton, 277. Tiernan et al. v. Jaehson, 5 Peters, 580.)
    In this case, not only is suit brought on various vouchers which are claimed to be partial’assignments of Crowell’s claim under the contracts referred tO\ but one of the vouchers is split. Judgment is sought for two-thirds of a, sum claimed to he dm upon a single voucher ; while in another case it is sought by another party to recover the other third.
    V. Whatever claim there may be for any balance owing by the government for the corn and hay delivered to Captain Simpson by Crowell, E. H. Gruber & Go. have not, nor has their assignee, any interest in the matter. (Act of February 26th 1853, 10 Stat. L., p. 170.)
    The scope of this act is not confined to placing the assignee in the place of the assignor as to the equities existing between him. and the government. In fact, the accomplishment of this was no part of the intention of Congress. No legislation was necessary to do this. The intention was — and it clearly appears from the act itself — to put a stop to assignments or transfers of claims against the United States. . The act does not say that such an assignment or transfer shall operate as an appointment or equitable right to the sum due; it says that all such transfers and assignments “-shall be absolutely null and void.” ' It .is not any assignment; it is empty.
    
   Nott, J.,

delivered the opinion of the court:

This is ah action, consisting of four eases consolidated into one, founded upon quartermaster vouchers, and seeking to recover for the use of the claimant Fendery, as assignee, $14,240 66; for the use of the claimants, Osborne and Fendery, assignees, $1,830 30; for the use of the claimant Osborne alone, $1,720 06; for the use of the claimant Higinbotham $1,545 35; amounting in the aggregate to $-19,336. 37.

-The respective parties in interest for whom this suit is prosecuted originally brought their several actions against the defendants. Those actions were founded on two contracts, or, so far as the legal questions in the case are involved, on one and the same contract. Quartermaster vouchers had been issued to a contractor from time to- time as he made deliveries under his contract, These vouchers he sold and transferred to various parties. Some of those parties allege a balance dee upon their vouchers. Under the construction which this court gave to the Act2QthFebnary, 1853, (10.Stat. L., p. n0,),müie Floyd Acceptance Case, (1 O. Ols. B., p. 270,) and again in Cote's Case, (3 id., p. 04,) such transfers and assignments are void. Therefore the claimants brought their actions in the name of their assignor, the contractor. It was next doubted whether several actions for money due on a single contract could be maintained by the contractor, though for the use of different parties in interest. Therefore the claimants moved to consolidate their several cases into one case, to be prosecuted by the contractor Crowell, for the use of the different parties respectively. The court allowed the motion, and the four cases are now merged in one.

This single consolidated case has been brought to trial and submitted upon the merits. Under the decision of this court in Gyrus Shaiv’s Case, (5 C. Cls. It., p. 722,) we entertain no' doubt as to the claimants’ right to recover. But after a laborious examination of a long, involved, and intricate reeord, made up largely of obscure vouchers and other documentary evidence, we find that as regards the respective interests of the several parties for whose use the suit is prosecuted, the evidence does not enable us to reach an intelligent conclusion.

It being established first that the contractor would be entitled to recover if he had no.t parted with his chose in action, it remains for those claiming under him to establish the transfer to themselves, and the nature and extent of their respective rights. For when a judgment is recovered in such an action, it is paid by the Treasury, not to the nominal claimant, but to the real party in interest.

Possession may ordinarily evidence the transfer. But here the parties in interest have not 'actual possession of the vouchers; for the vouchers were in part allowed and paid, and surrendered to the Treasury, this action being merely to recover a balance remaining unpaid on each. Neither were the vouchers transferred by indorsement, nor by formal assignment, nor by any designation which (with three or four exceptions) will enable the court to identify and marshal them where they respectively belong. With regard to the party Higinbotham, there is no evidence whatever to establish his alleged ownership of any vouchers. And the court finds, though the fact was not disclosed on the trial, that there were vouchers issued w-hich are not claimed or represented by any party before the court.

It is therefore apparent that justice cannot be done to the . real parties in interest as the case now stands.

The right of the nominal claimant to recover being established, and all contested questions adjudged in his favor, and nothing being wanting save evidence to enable the court to determine the precise amount of the judgment, the case is analogous to a suit in chancery, which would be sent to a master to take proofs as to the amount of the indebtedness, &c., &c., or to an action at law, where the court would allow a juror to be withdrawn, or direct a judgment of nonsuit. There is no reason why this court should show less liberality than others in furtherance of justice •, and there are at least two important reasons why this court should somewhat exceed in this regard the practice which prevails in others.

First, in the Court of Claims the defendants, like the claimants, are to be regarded as ever seeking an adjudication upon the merits. The government, by consenting to be sued, waives the technical defences and advantages by which ordinary defendants frequently seek to delay or elude an adjudication upon the merits. If the'government wished merely to defeat those who prosecute it in this tribunal, it would have an absolute defence at hand in simply refusing to be sued. It is-in fact, as in law, to be sued only with its own consent,

Secondly, in the Court of Claims no costs are awarded to either party. There are, therefore, classes of oases in which the government has not the interest in a recovery of an ordinary defendant. He frequently should have judgment not necessarily final, for he would then take costs $ but the government in such cases would take nothing, and such a judgment would he hut a form.

This court has undoubtedly exercised great liberality in remanding cases to the docket; but it has never, that I am aware of, remanded a case to the docket where there has been a conflict of testimony, in order that one party or the other might make his side of th e ease appear the plainer. But it has exercised this power always in those cases where an ordinary court at nisi prim would withdraw a juror. Not always has this been done actually at the trial, unless the trial be considered as continuing into the deliberations of 'the conference-room. In a court constituted like this, having to determine the law and to find the facts, and having moreover no witnesses before it, but evidence taken by deposition and reduced to writing, a hasty decision at bar would be needless and foolish. Neither party can possibly lose anything by having more deliberation awarded to the preliminary questions of the case than could be awarded at nisiprius. Danold’s Case (5 0. Ols. K., p. 65) is an illustration. It was a question upon which party might rest the onusprdbandi to establish a certain fact, viz, the ratification or disavowal of a certain contract. The counsel for the claimant relied, as he reasonably might, upon a presumption that would have existed if the transaction had been between two men. The court did not think that this presumption could be turned against the government as against an individual, and held that the burden of proof was upon the claimant. “Believing,” the court then says, “that this proof can be readily supplied, and thinking that the claimant cannot justly be held to have anticipated its necessity, the case will be remanded to the general docket for further proof on this point.-'’

The court has also exercised this power generally in those cases in which an ordinary plaintiff', in an ordinary court of law, would suffer nonsuit. For in cases where the judgment would be simply nonsuit, the judgment would not be final to both. The claimants would have the right to bring tlieir second action, on similar pleadings, and would be subjected to the needless cost of retaking the same testimony, and retracing the same steps. The defendants would recover nothing by way of costs, and, like the claimants, would be put to the trouble and expense of again preparing their defence.

The conclusion that we draw from these views is, that the petition in this case should not be dismissed for the defect of proof in this particular. At the same time we think that a claimant should not be allowed to lightly submit his case on imperfect proof, subjecting the court to needless labor, and imposing upon the defendants the burdens of two trials instead of one. The unproved parts of the case relate only to the respective interests of those seeking their rights in this court, and but little affect the defendants. It is adjudged that they are liable to some one to the full extent of the balances -withheld ; it is not fully shown how much they owe to each of the parties who hold the vouchers.

The case will, therefore, be referred to Enoch Totten, esq., a counsellor of this court, to take proof as to the rights and interests of the respective parties for whose use and benefit this action is prosecuted, and of the amount of vouchers described in tlie petitions beltl and'owned by each of said parties: and judgment in this case will be suspended until the coming in and confirmation of such report. The cost of such reference to be borne by the claimant.  