
    SHREWSBURY’S CASE.
    William S. Shrewsbury v. The United States.
    
      On the Proofs.
    
    
      An Army transportation contract provides that transportation shall he paid “according to tlie actual distance traveled.” The contractor is paid the siip-posed distance. He now attempts to show the actual. But there are two routes, and he shows only the measurements of one and neglects to show that Ms trains did not pass over the other. After the case has been submitted on conflicting testimony, he aslcs that it be remanded for further evidence as to the second route and the trains which passed over it. The defendants set up a counter-claim, and show that some of the contractors trains passed over a route shorter than that paid for, but fail to show the quantity of the freight thus carried.
    
    I. Where a case is submitted on conflicting testimony and tlie court has found tlie facts, it is too-late for a party to ask that it be reopened.
    II. Where an Army transportation contract provides that payment shall be “according to the actual distance traveled,” the burden is on the party disputing the distance, provisionally paid for, to show the actual length of the route traveled, and, if there be a choice of routes, to show by what routes trains actually traveled.
    III. When there are two transportation routes, a longer and a shorter, it will not be presumed that an Army contractor’s trains traveled the longer.
    
      IV. Though it appears from the facts found that the defendants have overpaid a contractor, yet if they neglect to furnish the data for computing the amount thereof, the fact of overpayment will merely defeat the claimant’s recovery; it will not enable them to recover on their counterclaim.
    The Reporters’ statement of the .case:
    The contract referred to appears sufficiently in the opinion of the court.
    The court found the following facts :
    I. The contract between the claimant and Col. J. A.' Potter, annexed to the petition as Exhibit A, was entered into as alledg’ed in the petition.
    II. In the year 1865 there was but one route for freight-trains from Fort Leavenworth to Fort Eiley, and but one from Leavenworth to Fort Zarah.
    III. In the year 1865, the route for all freight-trains going from Fort Leavenworth to Fort Union was by Forts Zarah, Lar-ned, and Dodge, to a point on the Arkansas Éiver twenty-five miles Avest of Dodge, whence to Union there were two routes, to AA7it: 1. The so-called “ Eaton route,” which kept along the northern border of that river to Fort Lyon, and then turned south viá the Eaton Mountains to Union; and, 2. The so-called “ Cimarron route,” which, at Cimarron Crossing, twenty-five miles west of Dodge, crossed to the south bank of the Arkansas Eiver, and went thence in a southwesterly direction across the country in a nearly direct line toAvard Union. This route was far east of the Eaton route, but the two gradually converged until they met at a point about six miles northeast of Union. Trains for Union also crossed the Arkansas at Aubrey Crossing, one hundred miles west of Dodge, and Avent southwestwardly, by what was known as the “ Aubrey Cut-off,” to the Cimarron route, at a point some distance south of that river, apd pursued that route to its said point of junction Avith the Eaton .route. It does not appear that there was, in 1865, any other, route from Leavenworth to Union than the two routes so described.
    IY. In said year the route for freight-trains from Zarah to Dodge forked at a point eight miles west of Zarah; whence there were two roads to Dodge, to wit: 1. One keeping along the north bank of the Arkansas Eiver to Dodge, leaving Larned some miles to the right, and known as the “wet route”; and, 2. One on tbe higher ground, north of the wet route, to Larned, and tbence on the higher ground, and north of the wet route, to Dodge, and known the whole way from the forks aforesaid to Dodge as the “ dry route.”
    V. In said year there was only one route from Dodge to Lyon, and thence by the Eaton Mountains to Union; but at a place south of those mountains there were, for a part of the way, two roads leading to Union, one of which went circuitously by a place called Maxwell’s ranch, and another, east of that, went direct; and between the point where the two diverged and that at which they met again, the distance by the former was four miles greater than by the latter.
    VI. Under said contract the claimant caused to be transported in 1865 the following quantities of military stores and supplies from and to the following-named places; and for all said transportation he was paid by the post quartermaster at Fort Leavenworth, upon distances indorsed on bills of lading by the officer or agent receiving the supplies at the place of delivery; and the claimant gave receipts in full for the stipulated price, on the basis of the distances here set forth in connection with each item, to wit:
    From Leavenworth to Eiley, 2,232,281 pounds, 120 miles.
    From Leavenworth to Zarah, 629,929 pounds, 240 miles.
    From Leavenworth to Larned, 1,863,606 pounds, 266 miles.
    From Leavenworth to Lyon, 1,583,866 pounds, 500 miles.
    From Leavenworth to Union, 6,741,975 pounds, 735 miles.
    In settlements between the claimant and the officers of the Quartermaster’s Department of the Army for this transportation, the claimant always claimed that he had traveled greater dis- . tances than those above stated, and received the payments for those distances under protest, declaring that, when the distances should be measured, he would expect such further allowances, as he was entitled to by the terms of said contract at a fixed rate per mile.
    VII. The actual distance traveled by claimant’s trains, under said contract, from Leavenworth to Eiley, was 123 miles.
    VIII. The actual distance traveled by claimant’s trains, under said contract, from Leavenworth to Zarah, was 247 miles.
    IX. The distance between Leavenworth and Larned by the wet route was 281 miles by chain measurement; and by the dry route, not subjected to chain measurement, 278 miles. Trains of tlie' claimant went by each of those routes; but it does not appear bow many trains carrying freight for Lamed, nor what quantity of freight for that post, went over either.
    X. The distance between Leavenworth and Lyon by the wet route was 509 miles by chain measurement; and by the dry route, not subjected to chain measurement, 494 miles. Trains of the claimant went by each of those routes; but it does not appear how many trains carrying freight for Lyon, nor what quantity of freight for that post, went over either.
    XI. The distance between Leavenworth and Union by the wet route to Dodge and thence by the Eaton route to Union, passing Maxwell’s ranch, was 750 miles; and by the dry route to Dodge and thence by the Eaton route to Union, passing Maxwell’s ranch, 735 miles; and by the last-named route, not passing that ranch, but taking the direct road aforesaid east of that ranch, 731 miles. It does not appear how many trains or what quantity of freight went by Maxwell’s ranch, nor what number of trains or what quantity of freight went by the direct route east of Maxwell’s ranch.
    XII. The distance from Leavenworth to Union over the Cim-arron route, either by the Cimarron or the Aubrey Crossing, was 670 miles.
    XIII. In the said year, under said contract, the claimant sent from Leavenworth to Union 68 trains, carrying and delivering at Union 6,741,975 pounds of freight; of which trains a portion went by the Cimarron route and a portion by the Eaton route; and only 37 trains, carrying 3,658,955 pounds of freight, appear to have gone by the Eaton route.
    (Additional findings allowed on the request of the claimant or in lieu of some'of those requested by him:)
    XIY. That the advantages and disadvantages of the Cimar-ron and Eaton routes to Fort Union were reported to the Quartermaster-Ceneral, July 27,1865, by J. 0. McFerren, major and quartermaster, in which he represented that, notwithstanding the scarcity of water on the Cimarron route at some seasons, it was the route generally traveled by merchant-trains, and, now that rebel raids from Arkansas and Texas are not to be feared, should be the route traveled by government contractors, in order to save expense.
    XY. That no action ivas taken on this report.
    XYI. That G-. M. Dodge, major-general, commanding Kansas and tbe Territories, made official report from Fort Leavenworth, Nans., on tbe 1st day of November, 1865, that the route of travel beyond Fort Lamed to New Mexico was by the way of Fort Lyon to Fort Union, and that such report was accompanied by a map.
    XYII. The Eaton route was the usual traveled route, in 1865, for government contractors’ trains to Fort Union, and most of them went by that route; but the rest went by the Oimaraon route. •
    XYIII. The direct road east of Maxwell’s ranch, specified in finding Y, crossed two creeks, upon which Mexicans had unfenced farms, there being ditches on each side of the creek, rendering the crossings difficult, and rendering it difficult to get stock to Avater; on account of Avhich the road by Maxwell’s ranch was the best route for claimant’s trains.
    
      Mr. Thomas J. Durant and Mr. Harvey Spalding for the claimant.
    
      Mr. Horace M. Hastings (with whom was the Assistant Attorney-General) for the defendants.
   Drake, Ch. J.,

delivered the opinion of the court:

Before proceeding to express the views of the court upon the merits of this case, we Avill dispose of a motion made in it by the claimant.

After the court had found the facts and filed its finding, the claimant, complaining that “great and irreparable injustice” would be done him if we should proceed to render judgment on that finding, filed a motion to have the case remanded to the general docket, to enable him to prove the facts to which we hereinafter adArnrt, as necessary to his recovery, and Avhich, in said motion, his counsel said he hoped to be able to prove, if opportunity should be given for that purpose.

This court has always shown liberality toward claimants in remanding cases after trial and submission, where it seemed that the ends of substantial justice would thereby be subserved. In Crowell's Case (6 C. Cls. R., 23), the action of the court, in so remanding a case, was considered to be analogous to the withdrawal of a juror in a case before a nisi prius court, and to the case, in such court, of a plaintiff’s suffering a* nonsuit; but that is not the position here.

This suit was brought in 1870. More than three years ago it was tried, and upon the facts as then found the claimant could not have recovered. Before judgment was rendered he moved, as now, to remand the case, and give him opportunity to produce further evidence. Erring, if at all, on the side of leniency, we granted the motion. After the lapse of three years he goes to trial again, with a large amount of new evidence on both sides, and with every point strenuously contested ; but, as will presently appear, his proofs were again fatally deficient. He seems not to have discovered this until after the finding of facts was filed, when he again requests that the case be remanded.

If we should grant this second request, why might we not do so a third, fourth, or fifth time? Manifestly there must be a limit to indulgence to claimants in this respect, and we think it should be interposed here. The claimant might, before the case was submitted, have had it remanded; and after submission, and before the finding of facts was filed, we Avould not probably have seriously objected to that course; but when a second trial has been had on conflicting evidence, and the court has passed upon the whole case, and found the facts, and filed its finding in the nature of a special verdict, we know of no principle of law which would authorize us, on the motion of one party, such as that now before us, to undo all that has been done and reopen the case for further contest. The motion to remand must therefore be overruled.

We will now proceed to dispose of the questions arising upon the facts as found.

This action is based upon a written contract between the claimant and the defendants for the transportation of supplies by the former from Fort Leavenworth to Forts Zarah, Larned, Lyon, and Union, in which contract this stipulation is found:

“Transportation to be paid in all cases according to the actual distance traveled from the place of departure to that of delivery; the distance to be indorsed on the bill of lading by the officer or agent receiving the supplies.”

The whole controversy is connected with this stipulation; the claimant contending that the actual distance traveled by his trains in transporting the supplies from Leavenworth to Zarah, from Leavenworth to Larned, from Leavenworth to Lyon, and from Leavenworth to Union, was, in each case, greater than that for which he was paid.

This is found by tbe court to be true as to tbe road from Leavenworth to Riley, and also as to that from Leavenworth to Zarah; and, consequently, were that the whole case, the claimant would be entitled to recover additional. compensation for the transportation of 2,232,281 pounds for 3 miles over the former, amounting to $1,372.85, and of 629,929 pounds for 7 miles over the latter, amounting to $903.94.

This result is arrived at without difficulty, because there was but one route from Leavenworth to Riley and but one from Leavenworth to Zarah, and each of them has been subjected to actual chain measurement. In regard, however, to all the transportation done west of Zarah, other results ensue, because, as to supplies intended for Lamed, Lyon,' and Union, there were two roads west of Zarah, one longer and the other shorter than the distance for which the claimant was paid; and some of his trains went by one and some by the other; but what quantity of supplies went by either has not been found by the court, simply because it was not proved. In the argument, the claimant’s counsel asked the court to presume that all of his trains went by the longer road, because some of them did so; but no such presumption could be based upon that fact, particularly when the petition avers that the greater distances claimed for “were the actual distances traveled by the shortest customary traveled routes.” Against that allegation we are not to presume that the “ actual distances traveled” were by the longer of two routes. That was a fundamental and indispensable fact to be proved, and without proof of it the claimant could not be considered entitled to more than was paid him. But even on the supposition that trains for Lamed, Lyon, and Union traveled greater distances than those paid for to those points respectively, no judgment could be rendered in favor, of the claimant, for his case does not disclose what number of pounds of supplies traveled that greater distance; and in the absence of proof of that fact, it was clearly impossible to find that any more was due him than he received.

The remaining point to be considered grows out of the defendant’s counter-claim, under which it is sought to recover from the claimant a large sum of money for alleged overpayment to him on stores transported to Fort Union. For all stores so transported he was paid on the basis of a distance of 735 miles, which is that by the Raton route; when the court finds that a considerable part of them (but bow mncb is not found) went by tbe Cimarron route, tbe distance by wbicb was 65 miles less than by tbe Raton route. Tbe fact of overpayment is therefore clear. But upon wbat quantity was it made 1 Tbe facts found do not enable us to say, for tbe evidence did not justify it. We found that a portion of tbe claimant’s trains went by tbe Cimar-ron route; and we found that- only 37 trains, carrying 3,658,955 pounds, appeared to bave gone by tbe Raton route; but we did not find that all tbe rest went by tbe Cimarron route, nor wbat quantity did so. While, therefore, it is quite certain that tbe claimant was paid for too great a distance on whatever went by the Cimarron route, we can base no judgment on that fact alone, for tbe quantity on wbicb be was so paid does not appear. There can, therefore, be no recovery by tbe defendants under the counter-claim.

If there is not enough before tbe court to enable it to render any judgment against tbe claimant on tbe counter-claim, there is yet enough to satisfy us that tbe amount overpaid the claimant fully equals, perhaps largely exceeds, any claim for additional distance traveled by bis trains between Leavenworth and Riley and between Leavenworth and Zarah; and we therefore believe that tbe ends of substantial justice will be attained if we leave tbe parties as they were before this suit was brought.

Tbe judgment of tbe court, therefore, is that tbe claimant’s petition and tbe defendants’ counter-claim be both dismissed.  