
    A. P. DAVIS v. THE UNITED STATES.
    [No. 15729.
    Decided February 23, 1892.]
    
      On the Proofs.
    
    Hie quartermaster at Fort Custer enters into a contract with one McNutt to cut and mate hay at so much per ton. It is cut on an Indian reservation. The claimant agrees with McNutt to cut and stack hay at $3 per ton. After it is stacked he insists on holding it as his own. The military authorities notify him that it must not be sold except to the Government. Subsequently an order is issued to take the hay for Army use, and the claimant is notified that he must settle with McNutt, who pays him the agreed price, which he accepts. He now seeks to recover the value of the hay,
    I. When a person is employed to cut and stack hay on an Indian reservation at so much per ton, the place to be designated by the Government and the hay to be measured when stacked,' the contract is foT work and service, and not for sale and delivery.
    . II. The grass on an Indian reservation, though not the property of the Government, must be treated as such for the purposes of the contract.
    III. Where a subcontractor settled with a contractor upon the basis that the agreement for his work and service was between themselvés and not between himself and the Government, he is bound by it, and can not subsequently set up an implied contract between himself and the Government founded upon the taking of the property still in his possession.
    
      The Reporters’ statement of tliecase:
    The following are the facts of this case, as found by the court:
    I. In June of 1881, Capt. G. K. Sanderson, of the Eleventh United States Infantry, who was commander of the post at Fort Custer, made an agreement with Donald Stevenson to furnish hay at said fort in the summer and autumn of 1881. Stevenson failed to enter upon the performance of his agreement, and the defendants were compelled to make other arrangements. The hay which Stevenson was to deliver to the United States was to be cut from the Crow Reservation, in the Territory of Montana, by the consent of the United States authorities.
    
      II. In June, 1881, tbe claimant settled upon said reservation, under an arrangement with Isaac McNutt that he was to cut grass at so much per ton under the Stevenson contract. Upon the failure of Stevenson, claimant called upon the officer and agent of the defendants to know what he should do. He was told by the officer having control and jurisdiction of the matter that what hay he would cut must go in on any contract which might be made for the delivery of hay, and that he, claimant, would have an opportunity, if he did not contract with the Government himself, to sell his hay to the contractor, but that the hay which he cut must be held subject to the right óf the Government to have it furnished under any contract which the Government might make for the delivery of hay. The Government claimed the right to the grass, and the only thing which it contracted for was the cutting and delivery of the hay.
    III. After the failure of Stevenson to perform his agreement the agent of the defendants bought from Isaac McNutt about 1,000 tons of hay, not by advertisement, but in market. There was not sufficient time after the failure of Stevenson to advertise for hay. The claimant agreed with McNutt to cut and stack on the reservation hay at $3 per ton; but after sometime he found that $3 was not sufficient compensation, whereupon he notified McNutt that he would quit unless he was paid a greater sum. McNutt then agreed to pay him at the rate of $5 per ton, and at that price claimant proceeded with the work. He commenced cutting grass in the latter part of June and quit about the 15th of September.
    IY. After the grass was cut and stacked difference and trouble originated between McNutt and claimant, claimant insisting on holding the hay as his own, subject to the rights of the Government. On the 13th of September, 1881, the agents of the United States notified claimant that they had investigated the hay matter; that he must make some arrangements with the hay contractor, and that he must not sell the hay, except in such a way that it come to the quartermaster’s department.
    Y. On the 2d day of November, 1881, an order was issued by the military officer at Fort Ouster to collect and deliver all the hay cut and claimed “ by Mr. Davis on the military and Indian reservation.” Said order was directed to Isaac McNutt, and on the 21st of November, 1881, the defendants paid said McNutt for 235 tons of bay wbicb claimant bad cut under tbe arrangement with McNutt.
    YI. After tbe taking of tbe bay by McNutt for tbe purpose of delivering it to tbe United States under bis contract Mc-Nutt and claimant had an accounting as to tbe bay, in wbicb McNutt paid claimant tbe sum of $876, wbicb represented tbe price of about 150 tons at $3 per ton, and about 85 tons at $5 per ton.
    That amount claimant accepte'd from McNutt in satisfaction of bis claim for cutting and stacking whatever bay he cut and stacked on tbe reservation under an arrangement with McNutt.
    VII. It does not appear that claimant bad any agreement or contract with tbe defendants that they should pay him for cutting and stacking tbe bay. The defendants claim tbe grass, and only hired parties to cut, stack, and deliver bay.
    VIII. Tbe defendants, when tbe order was issued to McNutt to collect and deliver tbe bay claimed “by Davis,” did not recognize tbe bay as belonging to Davis, but as hay coming within tbe contract with McNutt.
    IX. Tbe agents of tbe United States knew of said accounting between Davis and McNutt, and afterwards paid McNutt for tbe delivery of 160 tons, but it does not appear that they paid him for tbe said 235 tons after said accounting.
    
      Mr. A. S. Oragin for tbe claimant.
    
      Mr. Jolm 0. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for tbe defendants.
   Weldon, J.,

delivered tbe opinion of tbe court:

In tbe year 1881 tbe military officer and agent of tbe United States at Fort Custer, in tbe Territory of Montana, made an agreement for tbe delivery of a large quantity of bay at Fort Custer and Fort Smith, in said Territory. Tbe bay was to be cut on tbe “Crow Reservation.” Tbe original contract was with Donald Stevenson, but be having failed, a contract was made with Isaac McNutt, who employed tbe plaintiff to cut and stack bay on said reservation. After tbe making pf tbe contract with plaintiff; a disagreement took place between him and McNutt, and in tbe bringing of this suit tbe claimant alleges tbat he out a large amount of hay for the defendants, for which he claims a balance of $3,049 in his request for findings. His suit is based upon the theory that he had an agreement with the United States and not with McNutt.

This case was most elaborately argued on both sides, and the court has carefully considered the testimony in order to arrive at a proper conclusion.

It is impossible to reconcile the testimony of the witnesses, they contradict each other on the vital points of the case.

Passing other matters, the findings show that the agent of the defendants notified plaintiff that he must make terms with the contractor; and that the Government must have the hay through McNutt. In a short time after that we find McNutt, and claimant accounting together as to cutting the hay. In that accounting they reached a result, to wit, $876, as the amount which should be paid by McNutt to plaintiff. That sum was paid, and by a calculation upon the theory of McNutt’s testimony it will be found that the $876 represents substantially 150 tons at $3 per ton, and 85 tons at $5 per ton, making 235 tons; which is the amount embraced in one of the vouchers given to McNutt about the time the hay cut by plaintiff was taken by McNutt to fulfill the agreement which he had with the defendants.

The'court is unable to find, from the evidence, that the claimant had any agreement with the Government as alleged by him, and do not find that the Government took and appropriated the property of the claimant to public use.

We have held in a similar case (McClure v. The United States, 19 C. Cls. R., 173) “When a person is employed to cut and stack hay on an Indian reservation at so much per ton, the place of cutting to be designated by the Government and the hay to be measured when stacked, the contract is for work and service, and not for sale and delivery. Where the Government employes a person to cut hay on an Indian reservation, the grass, though not the property of the Government, must be treated as such for the purposes of the contract.”

Whatever may have been the terms of the original agreement between McNutt and claimant, or whether the agreement was abandoned, we have found that he settled with McNutt upon the basis and theory that the contract was with him, and not with the defendants; and although claimant’s necessities compelled bim to make the settlement, he is none the less bound by it. Payments were made to McNutt after such settlement, with knowledge upon the part of the Government officers that sncli settlement had been made, and it is now too late to permit the claimant to attack the settlement to the prejudice of the United States. If it was unfair, the claimant’s right is againt McNutt and not against the defendants. They have paid a most exorbitant price for the hay, and should not be again called upon to pay claimant for the same hay. It may be a hardship upon the claimant to be restricted to the compensation paid him by McNutt; but the court must determine the rights of parties as they are shown by the facts under the law.

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