
    COBB’S CASE. Francis Cobb v. The United States.
    
      On the Proofs.
    
    
      A steamer is chartered by the government, at a stipulated price per dim. After she has been in service some time a reduction of the charter rate is ordered by the Quartei'master General, and notice given to the owners. They, tlwough an agent, object to such a reduction, and attempt to procure the steamer’s discharge. An officer of the Quartermaster Department replies that the government has a right to malee the reduction and retain the steamer. The agent’s demand for the vessel’s discharge is neither clear, positive, nor unequivocal.
    
    I. Where a •witness has sworn to a declaration made officially by a public officer, and. the officer is called to contradict it, the question put to him must be limited to the precise statement of the former witness. And when the form of an improper question is objected to before the commissioner, and the examining counsel adheres to it, the testimony must be stricken out, though the officer may have intended to contradict what was previously alleged.
    II. Where a party applies to a xmblic officer for his vessel’s discharge from the military service, because of a reduction on her charter rate, the demand must be clear, positive, and unequivocal. If it is argumentative merely, so that the officer is misled and does not discharge the vessel, the owner will be deemed to have left her in the service at the reduced rate.
    III. The inferior agents of the government have no right to retain a vessel m service at her original charter rate, after the receipt of the Quartermaster General’s order to reduce it. Unless the owner assents to the reduction, he cannot leave her in the service. In such eases it is for the defendants to bring knowledge of the Quartermaster General’s order home to the claimant; and it is for the claimant to show that he sought to take his vessel out of the service, and was refused a discharge. If he voluntarily left her in the service after knowledge of the Quartermaster General’s order, he left her subject to the Quartermaster General’s restrictions.
    
      Mr. N. P. Ghvpman for tbe claimant:
    Tbe petition in this case rests upon a charter-party executed tbe 7th day of March, 1862, which took effect the 27th day of February, 1862, stipulating for the services of the steamer Eockland. By the terms of the charter, the United States agreed to pay “the full and just sum of $200 per day for each and every day such vessel may be employed.”
    
      While the vessel was in discharge of her duties, and without any complaint of failure on her part, the Quartermaster General arbitrarily, and without consent, against the protest of the owners, reduced the charter-rates of the vessel from $200 to $100 per day. This reduction took effect upon the 30th day of April, 1863, and continued until the'final discharge of the vessel. The period covered by this reduction was eighty-two days, the vessel having been discharged from the 22d of July, 1863, making the amount claimed $8,200.
    
      The Assistant Attorney General for the defendants :
    By a charter-party, dated March 7, 1862, Henry O. Hodges, captain and assistant quartermaster United States Army, acting for the United States, hired the steamer Rockland, owned by the claimants, at a compensation of $200 a day for no stipulated term of time. Some time in April, 1863, the claimants were notified that the rate of her compensation would be reduced, from the 30th of that month, (Getty’s deposition, p. 8; Spear’s deposition, p. 4,) to the rate of $100 per day. The steamer continued in service till July 22d of the same year, no effort being made by the owners to take her out of the service of the United States before that time. On the 4th day of September, A. D. 1863, the claimants, by their agent, received in full of their account for the services of said steamer, from April 15,1863, to the date of her discharge, the sum of $11,400, being at the rate of $200 per day to May 1, and of $100 per day from that date.
    The answers to this claim, thus stated, are that—
    I. The claimants, by allowing their vessel to remain in the service of the United States after receiving notice of the intention, on the part of the government, no longer to compensate her services at the rate fixed in the charter, consented to her being hired at the rate newly proposed.
    II. The owners voluntarily received in full payment of their account for services performed after April 30 compensation at the rate of $100 per day. The sum paid was the sum claimed. The dispute here did not begin until after the payment; but, if it had begun earlier, if the claimants had demanded the rate specified in the charter, and the government, denying the rightfulness of that demand, had paid the smaller sum, as now, the following cases would show the receipt given in this case to be, a bar to this claim: Stipp v. Cole, 1 Smith, (Indiana,) 75; Calkins v. The State, 13 Wisconsin, 394.
    That the receiving of payment under circumstances less favorable to the payer than the present is to be deemed a receiving in full, see MeGlynn v. Billings, (1C Yermont, 230,) and Cole v. Champlain Transportation Company, (26 Yermont, 92.)
    That, after such receiving, the action cannot be maintained, even for the balance, until the money paid has been returned, see Bisbee v. Sam, (47 Maine, 546.) (The special statute there cited did not affect this principle.)
    For the government a receipt in full does not seem necessary. It is sufficient that it pays in full, and that the money tendered is received. (Calkins v. The State, 13 Wisconsin, 389; Massing v. The State, 14 Wisconsin, 503 and 504. See also 2 C. of Ols. It., 179, Johnson, administrator, v. The United States. Opinions of Attorneys General, yol. 5, pp. 135 and 178.)
    That even .the rule of law which might be cited for claimants is deemed technical, and to be restricted on slight grounds, see Brooks v. White (2 Metcalf, 284,) and Kellogg v. Richards (14 Wendell, 116.)
    As to what would constitute a claim which was actually presented to the government officers for payment — a disputed-claim, see Theodore Adams v. the United States (7 Wallace, 479, 480.)
    III. So far from being in condition to dispute the efíect of the receipt given in this case, in a consideration by the court of the merits of the case, the claimants have never so demanded from the government 2>ayment of the sum now claimed, as to free their case from the preliminary objection found fatal in the case of Thomas Clyde, recently decided by this court. They have never claimed from any executive department of the government the sum now alleged to be due in their petition.
    This circumstance not only places beyond dispute the effect of their receipt in full; but, also, of itself, furnishes a sufficient reason why this claim should be dismissed.
    
      Mr. T. J. Durant in reply:
    The burden of proof of any change in the charter-party is on the defendants. The defendants were bound by the char-tei'-party to discharge tbe vessel at Eockland. They should have ordered her there for discharge, or have entered into a new and formal agreement.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $8,200 upon the charter-party of the steamer Eockland.

There is a preliminary objection in this caseto the admission •of testimony. The claimants called as a witness a Mr. Getty, who testified to a conversation between himself, the agent of the claimants, and Acting Quartermaster General Clary, the agent of the defendants. In this conversation Mr. Getty ascribes to Colonel Clary declarations expressive of an intent to hold the claimant’s vessel against the will of her owners, and to use this property, in possession of the government under a valid contract, in a manner unlawful, arbitrary, and tyrannical.

Colonel Clary was called by the defendants to contradict this testimony. Several questions were propounded, made up in part of Mr. Getty’s testimony, in part of the inferences of .counsel. The claimants objected to the questions, but the counsel of the defendants adhered to them. Colonel Clary decisively replied in the negative, but the questions covered more than the declarations imputed to him by the former witness. It would seem to the court, as Getty’s testimony was then 'in print and before the commissioner, that nothing could have been easier than to have read it to the witness and asked him whether he said so or not; and it would seem that an opportunity should have been afforded to Colonel Clary to contradict what were virtually charges against his own good conduct as an officer. If no objection had been taken by the claimants, the court would consider Colonel Clary’s answer as a substantial denial. But the counsel for the claimant promptly objected, and to the form of the question. The counsel for the defendants having adhered to it, leaves the court no alternative. The question violates one of the most familiar of the rules for the examination of witnesses, and the defendants having neglected their opportunity to correct the question, the objection must be sustained and the testimony be stricken out. — (2 Phillips’ Ev.,. p. 405.)

There is but one controverted fact in the case. The steamer was chartered by an assistant quartermaster, under the charter-party set forth in the petition. In April, 18G3, a reduction of the charter rate was ordered by the Quartermaster General, and notice was given to the owners. Their agent, by their direction, went to Washington to remonstrate, and procure the steamer’s discharge. This is his statement of what transpired:

I protested against the right of the department' to make an arbitrary reduction without the consent of the owners. • Colonel Clary replied that the government had the right; that they had these boats, and when they said, we had no say in the matter; that the government would take the property and fix a price; they claimed the right to do this matter in his own way; and that the owners had no rights they could enforce. I replied to him that in mercantile usage it was customary for parties, in making bargains for the hire or charter of a vessel, when they agreed to pay so much per month, or so much per voyage, they were bound to carry out their contract, and pay the amount agreed upon in good faith. If they did not desire the vessel longer, they were either to discharge the property and make a new bargain, or to dispense with the use of the property altogether. I claimed that between the government and individuals the government was bound to act in the same way that individuals were required to act in carrying out contracts in good faith. Colonel Clary took the ground that the government was not bound to act in the same way as individuals; that they had the right to dictate their own termsj that they had the property in their possession, and would keep it from that time forward.”

The court regards this demand for the vessel’s discharge to have been argumentative, and neither clear, positive, nor unequivocal. Upon the evidence we find as matter of fact that the owners of the steamer allowed her to remain in the service after receiving notice of the reduction, but did protest against and object to the reduction, and did insist upon the original compensation fixed by the charter-party.

The counsel of the claimant have, to a certain extent, anticipated the finding, and have argued as a principle of law that the owners must assent to the reduction or the defendants must discharge the vessel from the service; that so long as she remains in service under the charter, and so long as it remains unreformed in terms, so long the charter rate must prevail. The question, is uot open to discussion in tbis court, for it was ■decided by a full bench, and unanimously in Clyde’s Case, at the beginning of the present term. The principle of the decision may be stated thus:

The inferior agents of the government, such as assistant quartermasters, have no right to retain a vessel in the service at her original charter rate after the receipt of the Quartermaster General’s order to reduce it, unless the owner assent to the reduction; and the owner, with knowledge of the Quartermaster General’s order, cannot leave his vessel in the service except as subject to its terms. " In such cases it is for the defendants to bring knowledge of the Quartermaster General’s order home to the claimant j and it is for the claimant to show that he sought to take his vessel out of the service and was refused a discharge. If he voluntarily left his vessel in the service after knowledge of the Quartermaster General’s order, he left her subject to the Quartermaster General’s restrictions.

The judgment of the court is that the petition be dismissed.

Casey, Ch. J.:

Although the questions put to Colonel Clary were not, as they should have been, in the words of Getty, the witness he was called to contradict, and so far as his evidence is merely responsive to the question, it should be rejected. But I think there are other portions of Colonel Clary’s testimony that do pointedly and positively contradict the main points of Getty’s evidence. And those portions of the testimony should be admitted and considered.

Peck, J.:

I concur in so much of the opinion of the court as excludes the testimony qf Clary, but dissent from the other parts of the ■opinion.  