
    SPEAR AND LANG’S CASE, (2d.) Charles Spear et al. v. The United States.
    
      On the Proofs.
    
    
      The Maple Leaf is char ter'ed for the military service the 3d September, 1862, for one month, and as much longer as she may be required, at $550 per day. On the 22d Jane, 1863, by order of the Quartermaster General, the rale is reduced to $300 a day from April 22 d past, and to $250 a day after June 22rZ. On the 19í7¡, August a second charter-party is executed by both parties, to take effect from 
      
      the ‘¿M June past, at $250. On the 30 th July the owners receive and receipt for payment at $300 a day to June 22d, hut no release for the balance is given. Ti is claimed by the owners that the second charter ivas exacted by duress.
    
    No legal principle is enunciated in the opinion of tlie court htmt a majority of tlie judges agree that the claimants cannot recover.
    
      Messrs. N. P. Ghipman, G. F. Pedlc, and T. J. Durant, for the claimants:
    The original petition in this case is based upon a charter-party entered into by tlie claimants witli the United States for the services of the steamer Maple Leaf. The charter-party took effect the 1st day of September, 1862, and was at the rate of “five hundred and fifty dollars per day for each and every day the said vessel may be employed; the charter to continue in force for the full term of one month from the above date, and as much longer as the said vessel may be required by the United States War Department.”
    She remained in service, faithfully performing the stipulations of this charter-party, until the 19tb day of August, 1863, when a new charter-party was made. While the original charter-party was in force, the Quartermaster General arbitrarily reduced the rates from $550 per day to $300 per day. This reduction began on the 22cl of April, 1863, and continued until the 22cl of June, 1863. From the 22d of June to the 19th of August a further reduction of $50 per day was made, reducing the amount originally agreed to be paid to $250 per day.
    In preparing the case, that portion of the. reduction prior to June 22 was omitted in the original petition, the intention being to embrace the whole claim in two counts. The omission was supplied subsequently by an amended petition. The amended petition claims the amount of reduction from the 22d of April, 1863, until the 22d of June, 1863, and the original petition from that time to the 19th day of August.
    The return of the Treasury Department shows the payments made in accordance with these several reductions, and for the time as stated, with the exception that the voucher paid in July shows that the reduction began May 3, 1863, instead of April 22, as alleged in the petition. The receipts there given are in the usual form, and are in full of the account, as stated, at the reduced rate. This form of receipt cannot be held under the decisions of this court to embrace within it more than is stated in tlie account, and, even under the circumstances of this case, if the receipt stated “ in full of all accounts for ser-Adces rendered by the steamer Maple Leaf,” we believe the receipt could be impeached, opened, or explained.
    As to the claim for money Avithheld between May 3 and June 22, we conceive there is no room for argument.
    The second claim, that is to say, from the 22d of June to the 19th of August, being the period between the time when the charter purports to have gone into effect and when it was actually executed, opens a Avide field of discussion..
    The doctrine of duress of goods has been heretofore very elaborately and ably treated before this court, and we do not feel competent to add anything to that argument.
    The Assistant Attorney General for the defendants:
    On the, 3d day of September, 1862, the claimants chartered to the g'OA'ernment their steamer Maple Leaf, for one month from September 1, “ and as much longer as said vessel may be required by the United States War Department,” at $550 per day. On the 22d April, 1863, her rates Avere reduced to $300 per day, which sum was paid up to June 23, 1863. On the 19th day of August, 1863, a new charter-party was executed, at the rate of $250 per day, which, it was stipulated, should go into effect on the 22d day of June, 1863. This suit is brought to recover the difference between $300 and $550 per day from April 22 till June 22; and between $250 and $550 from the.latter date till the 19th of August.
    I. The claimants acceded to the reduction.
    On the 21st day of May, 1863, a circular letter was issued from the Quartermaster General’s office to the quartermasters at the various ports or posts Avhere Amssels Avere chartered, *in which, among other things, it was stated:
    “ In the first operations along the coast, and in fitting out great expeditions, it became necessary to pay, for short times, prices much higher than would have been justifiable had it been foreseen that the Amssels would remain more than from thirty to sixty days under charter.
    “ Many of these vessels have been retained until their earnings and their profits have been excessive.
    
      11 Tour attention is called to this matter, and you are directed to take stringent measures to reduce these expenses by discharging all steamers whose rates appear to be excessive.
    “ The department has invited proposals for charter and sale of steamers, proposing to replace the more costly vessels, and those whose rates are excessive, by others at lower rates.
    , # * # * # *
    “The ruling rates of these offers are from 35 to 50 cents per day per ton, registered measurement, for side-wheel steamers and propellers, and $3 50 to $4 per month for sailing vessels, per registered ton.”
    This was sent to Captain McKim, at Boston, who had chartered the Maple Leaf, but it does not appear that he acted upon it; and it seems that the order to reduce her charter was specially issued from the office of the Quartermaster General. When issued it related back two months.
    Had the claimants then refused to receive the reduced rates and demanded their vessel, they might have had a legal, if not a just claim against the government. But they did not. Getty testifies that they placed their claim in his hands for collection, to secure an advance of money made by his firm, and he and one of the claimants came on to Washington to collect. He gives somewhat in detail an account of the conversation he had with Colonel Clary in regard to the matter, much of which is improbable, and parts of which are positively contradicted by Colonel Clary in his deposition. The gist of it all is that he undertook to argue Clary into paying the enormous rates fixed by the charter, and he would not do it. He insisted upon a reduction to $300 per day, and that if the vessel was retained a new charter-party should be executed, with the accruing clause, at the rate of $250 per day, to take effect from June 22, 1863. Nothing was said about the vessel or about her discharge. Captain Spear, who was in Washington, does not seem to have visited the Quartermaster General’s office at all. The result, as summed up by Getty, was :
    ■“ Colonel Clary indorsed an order to Captain McKim, of Boston, to execute the new charter-party, dating back to June, and which was executed in August, as I suppose; at least that was the agreement made, and the order given in my presence.”
    As to the receipt of the sum paid, Getty says : “ Finding that nothing else could be done, we agreed, to receive what he toas 
      
      willing to give us, and consented to the execution of this new charter-party.”
    
    II. The original charter-party was a fraud upon the United States. Under the rates fixed therein the claimants would realize a net profit exceeding the cost of the vessel in less than two months. Such a contract, made by a mere agent, will not be enforced by this court. (Beard’s Oase, 3 C. Gis. R., p. 122.)
    III. The claimants received the compensation at the reduced rates and signed a receipt in full. This is prima facie evidence of a settlement and payment in full. (Kirhhami & Broion’s Case, 4 O. 01s. It, p. 226.) There is nothing appearing in this case to overthrow such a receipt. (Lawrence v. Selmyllcill Navigation Company, 4 Wash. 0. 0. R., p. 562.)
    The pretense that the second charter-party was obtained from the claimants by duress of goods is not worth considering. The payments up to June 22, when the new charter-party took effect, were made on the 30th day of July, twenty days before the said charter-party was executed. The subsequent payments could not be paid or presented, because no certificates of service had been given.
   Loking, J.,

delivered the opinion of the court:

The petitioner claims against the United States the sum of $32,650, alleged to be due on a charter-party, and the court finds the facts to be—

1. That Spear and Lang were the owners of the steamer Maple Leaf, and at Boston, on the 3d September’, 1862, by a charter-party made between them and Captain McKim, assistant quartermaster, chartered the steamer to the United States for the term of one month, from September 1, 1862, and as much longer as she might be required by the United States War Department, at the rate of $550 per day, to be paid to said Spear and Lang by the United States.

2. On the 21st day of May, 1863, a circular letter was issued from the Quartermaster General’s office to the quartermasters at the various ports or posts where vessels were chartered, in which, among other things, it was stated:

“In the first operations along the coast, and in fitting out great expedition's, it became necessary to pay, for short times, prices much higher than would have been justifiable had it been foreseen that tlie vessels would remain more than from thirty to sixty days under charter.

“Many of these vessels have been retained until their earnings and their profits have been excessive.

“Your attention is called to this matter, and you are directed to take stringent- measures to reduce these expenses by discharging all steamers whose rates appear to be excessive.

* # * #

“The department has invited proposals for charter and sale of steamers, proposing to replace the more costly vessels, and those whose rates are excessive, by others at lower rates.

* # #

“The ruling rates of these offers are from thirty-five to fifty •cents per day per -ton, registered measurement, for side-wheel steamers and propellers, and $3 50 to $4 per month for sailing vessels, per registered ton.”

This was sent to Captain McKim, at Boston, who had chartered the “Maple Leaf.”

3. On the 22d June, 1863, by an order of the Quartermaster -General, the rate of hire of the Maple Leaf was reduced to $300 per day from April 22, 1863, to June 22, 1863, and to $250 per day after June 22, 1863.

4. On the 19 bh August, 1863, by a second charter-party, made (in substitution of that first mentioned) by Charles Spear, agent of the owners, and said Captain McKim, assistant quartermaster, on the part of the United States, the Maple Leaf was chartered to the United States, the charter-party to go into effect .at 12 o’clock m., on the 22d June, 1863, and to continue in force -as long as the steamer might be required by the War Department.

5. The reductions of the rate of hire of said steamer above specified were made with the assent of her owners, and the -said charter, dated August 19, 1863, was made voluntarily by them, to continue said steamer in the service of the United States.

The said owners of the steamer Maple Leaf have been fully paid for the services and employment of said steamer, according to the reduced rates and the charter-party last made as above stated, and this suit is brought to recover the difference between $300 and $550 per day from April 22 till June 22,1863, and between $250 and $550 from the [latter date till the 19th August, 1863, when the steamer was discharged from the service of the United States.

It was contended for the petitioner—

1st. That the reductions of the hire of the steamer were unauthorized and made without their assent and against their protest.

2d. That the second charter-party, dated August 19, 1863, was obtained by duress.

The record shows that, on the 19th November, 1862, the Maple Leaf, then at Fort Monroe, was ordered by Lieutenant Colonel Thomas to report to Captain McKim, at Boston, to be discharged, unless otherwise ordered by him $ that the captain of the steamer did not obey said order, but went to Baltimore ■and returned with a cargo to Fort Monroe in December; and that her captain stated that he had not received the order to report to Captain McKim, at Boston, for discharge.

These facts are stated in an official letter, dated at Fort Monroe, June 10, 1863, addressed by Colonel Thomas to Captain McKim, at Boston, and recommending that the steamer be not paid for her services till her non-compliance with his order be satisfactorily explained, and then only at a reduced rate. This letter Captain McKim referred to Mr. Charles Spear, who made the following reply:

u Boston, June 15, 1863.

“Sir: To the letter of Colonel Thomas, quartermaster at Fortress Monroe, of the 10th, to you, I have to reply that I am very much surprised at its contents.

“ The captains of all the steamers for which I am agent have positive instructions to obey fully, in every particular, the orders of the quartermaster in whose department they may be, and the captain of the Maple Leaf is a high-minded, honorable gentleman, brother of S. H. Dale, esq., the present mayor of the city of Bangor, and is well known in this city and vicinity, and is totally incapable of ignoring the order referred to, and I am fully convinced that it could not have been presented to him; and yet I cannot question the statement of Colonel Thomas, and I should be truly g’la'd, and will endeavor, to get at an explanation of the matter.

“ Bespecting the price per day of the Maple Leaf, I have to say that,, at the time she was chartered, the price paid was not high, in comparison to other steamers, in view- of her capacity for passengers and freight and her qualities as a sea steamer, and I think he is in error when he says that steamers equal to her in every respect are under charter at from two to four hundred dollars per day. I do not question the fact that steamers, that will carry as many men as she will are now in the service at the latter price, but men are all they can carry, while the Maple Leaf will carry men and cargo also, and the steamers referred to are probably not as suitable to go outside of the Gapes as the Maple Leaf, which is adapted for any voyage.

“ But, if it is fully decided that the charter of the Maple Leaf is too much, I am perfectly willing to agree to any equitable arrangement in the premises.

“.Recently this steamer has been placed in the hands of Messrs. E. A. Souder & Co., of Philadelphia, and their Mr. Getty is well known by General Meigs; and either Mr. Getty or myself, or both, will meet you or Colonel Thomas, or General Meigs, and adjust this as above; and I do not for a moment entertain a doubt but that a very short interview will suffice to arrive at an equitable arrangement.

“ I remain, dear sir, respectfully yours,

“CHAS. SPEAR,

11 Agent for Owners.

“Captain W. W. McKim,

“Assistant Quartermaster U. 8. A., Boston, Mass.

“A true copy:

“WM. W. McKIM,

“Captain and Assistant QuartermasterA

So that, as early .as June 15,-1863, Mr. Spear knew that a reduction of the original charter-party was required by the government, and he declared his readiness to concur in that and keep his steamer in the service, and proposed that the rate of reduction should be adjusted by him and Mr. Getty, in conference with the officers of the Quartermaster’s Department.

On the 2211 June, 1863, Colonel Clary addressed to Captain McKim the following order:

“Quartermaster General’s Oeeice,

“ Washington, JO. C., June 22,-1863.

“Captain: The account of the steamer Maple Leaf for services from March 1 to March 16, 1863, both dates inclusive, at-$550 per clay, is herewith referred, to you for payment, in accordance with the evidences of service inclosed; also the account from February 1 to 28, 1863, inclusive, in like manner referred. You will please cause a new charter-party to be executed with the owners of the Maple Leaf, to take effect from June 22,1863, inclusive, at the reduced rate of $250 per day, using the latest form of charter-party, at a valuation of $50,000 and at a rate of profit of 33 per cent.

“ Very respectfully, your obedient servant,

“ By order:

“R. E. CLARY,

u Colonel and Quartermaster.

“Captain W. W. MoKim,

Quartermaster, Boston, Massachusetts.”

And on the same day, (June 22, 1863,) Colonel Clary addressed to C olonel Thomas, at Fort Monroe, where the Maple Leaf then was, the following order:

“ QuakterMAstek Gekekal’s Oeeice,

Washington, I). C., June 22, 1863.

“Sir: The rate of the steamer Maple Leaf is hereby reduced to $300 per day from April 22, 1863, to June 22,1863, and still further reduced to $250 per day after June 22, 1863.

“You will please cause certificates of service to be made out for the time she has served tinder the old rates, tip to date, and forward' them to the proper parties iimnediately, so that the accounts may be adjusted as soon as possible.

“ Respectfully, your obedient servant,

“ By order:

“R. E. CLARY,

Colonel and Quartermaster.

“Lieutenant Colonel C. W. Thohas,

“Assistant Quartermaster TT. S. A., Fort Monroe, Va.”

And, on July 30, 1863, Mr. Spear receipted, at Boston, for the services of the steamer to June 22,1863, at $300 per day, according to the above-mentioned order of reduction. The owners knew then, therefore, of the rates of reduction ordered by the department.

In August, 1863, Mr. Spear and Mr. Getty, whose firm had advanced money to the owners on the charter-party, came to • Washington, and there, in various interviews with General Clary, running through, ten days, sought an adjustment with the government, in which they contended for the original charter price of $550 per day, anti labored for the best terms the5' could get; and Colonel Clary adhered to the order given, which was finally acceded to by the owners. Of this, Mr. Getty, who-conducted the negotiations for the owners with the privity of Mr. Spear, says:

Finding that nothing else could be done, we agreed to receive what he was willing to give us, and consented to the execution of this new charter-party. I considered it the best terms these claimants could get. We had advanced money to-them upon this charter of the Maple Leaf as our own security,, and we wanted our money; therefore we advised them to accept the terms offered.”

The case claimed by the petitioner rests on Mr. Getty’s statements of what passed between him and General Clary in the ten days of negotiation, and General Clary denies Mr. Getty’s-statements. These, therefore, are not proved, and they are improbable and, in every case but one, immaterial.

Mr. Getty states that General Clary refused to pay the amount-due and payable at the reduced rates unless the owners would execute the second charter-party. This would require strong-evidence, but it rests only on Mr. Getty’s, and General Clary states expressly that the consent of the owners was obtained in all cases where the vessels were continued in the service.

And it is perfectly clear, on Mr. Getty’s testimony, that lie-made no request for the discharge of the vessel, but avoided doing so, for he testifies that he told General Clary that the-proper procedure for the government, if it refused to pay the original charter price of $550 per day, was to discharge the vessel and then offer another charter-party. But, if the discharge of the vessel was a right of the owners, they had an election as to that, and it was for them to exercise it by a demand of her discharge, and they had already declared that they preferred her employment at a reduced rate.

And the result of the whole case is that the owners, by-Charles Spear’s letter of 15th June, proposed to the government to leave their vessel in the service at a reduced rate, which they should adjust thereafter with the officers of the Quartermaster’s Department; that afterward the rate, and nothing but the rate, was made by the owners the subject of a negotiation, and in that, without requiring the discharge of the vessel or any suggestion that they wished it, they agreed to and accepted the reduced rate, on which the vessel was continued in the service.

And our conclusion in this ease is on its facts, which are unlike those of any preceding case. •

And, on the whole case, it is adjudged that the defendants-are entitled to judgment and that the petition be dismissed.

Peck, J.,

dissenting:

I do not concur in the above opinion, and I especially dissent from the statement of fact on which it is based. The whole opinion is simply an argument to prove the correctness of that statement, and is to my mind illogical and bad.

In clause third of the “ statement,” it is said, “ On the 22d day of June, 1863, by an order of the Quartermaster General,, the rate of hire of the Maple Leaf was reduced,” &c. I object to this statement. I do not think the Quartermaster General had the power, “ by his order,” to reduce the rates. He could discharge the vessel: he could not reduce the rates without the assent of the owners. He cannot control both sides of a contract. As the representative of the government he may act for it, but he cannot also act for the opposite parties; their rights are beyond his control.

The fourth clause of the same “ statement” asserts that “ the reduction in the rate of hire of said steamer was made with the assent of her owners, and the said second charter-party, dated August 19,1863, was made voluntarily by them. To this assertion I also object. The evidence in the case not only, to my mind, does not sustain it, but is inconsistent with it. The whole opinion is simply a statement of the reasons for arriving at this conclusion;

I shall, therefore, first consider those reasons; and I shall then endeavor to show that even if they were sufficient, and if the second charter-party was voluntarily made by the claimant, still, notwithstanding that fact, he is entitled to recover in this suit.

The fifth clause asserts that the said owners have been fully paid,” &'c. This is the very point in controversy. I do not think they have been fully paid, and I object to the insertion in the statement of fact of a conclusion to which I do not agree, and which, if inserted, precludes the claimants from any appeal to a higher tribunal.

The opinion proper begins with the statement that “ the record shows that, on the 19th November, 1862, the Maple Leaf, then at Fort Monroe, was ordered to report to Captain McKim, at Boston, to be discharged, unless otherwise ordered by him.” The only evidence in the record to that effect is a letter from Colonel Thomas to Captain McKim, dated June 10, 1863, more than six months after the order was said to have been issued. There is no proof that either the captain of the vessel or her owners ever received such an order, but it is abundantly proven that the steamer was all the time in the service of the government, and that she faithfully performed her duties under the direction of its proper officers. Even if the order for her discharge had been issued, it would not affect the right to her hire up to the time when she was actually discharged. She performed the service, and is entitled to her pay.

The letter above referred to is also made to do further duty as showing that notice was given of an intention on the part of the government to reduce the rates of the vessel; and a letter of the'claimant of June 15, referring to the above, is cited to show that the claimant knew of such intention. This letter of June 10 speaks generally of a reduction, but makes no specific statement of what or how much reduction is desired.

In reply, Mr. Spear, as agent for the owners, states that at the time the steamer was chartered the rate was not high, but that he is willing to make an “ equitable arrangement.” The first statement as to what reduction was demanded is in the letter of the quartermaster. Clary, of June 22, 1863. Until that time there had been no specific proposition which the claimant could either accept or reject. This proposition he did not think a an equitable arrangement,” and did not accept.

But the question whether claimant knew that it was decided to reduce the rates of his vessel is not material. So long as his steamer was retained in the service he was entitled to her hire at the rates which were stipulated in her charter, unless he had previously consented to change them. The material point is as to his assent to the change. If he voluntarily assented to the change, he is bound by it, but he is not bound by any attempted reduction by the quartermaster, unless he consented thereto.

The evidence of Mr. Getty shows that the reduction desired by the government was not voluntarily assented to by the claimant. He was presented with a new charter-party, prepared by direction of the Quartermaster General, and was told that he must sign it before any money would be paid him; that “ the government was not suffering if claimant was;” that unless he complied with the terms proposed, he would “ be kept out of his money perhaps for years.”

No compromise was permitted and no representations of the injustice of a course so unusual and arbitrary were listened to. He must sign or his money would be withheld. To rebut this testimony the evidence of Colonel Clary is offered, in which he proves that a general order had previously been issued by the Quartermaster General in reference to charter-parties, and then states generally what had been the practice under that order. He does not swear particularly as to the case in controversy, but states the general course of action.

Under this evidence, the court find that the second charter-party was voluntarily executed. I thiulc it was forced upon the claimant. I think that evidence of general rules, and of general practice under them, is not sufficient to rebut proof of a particular act in a special case. General orders are not always obeyed; and although this court is not very familiar with proceedings before courts-martial, still there is reason to believe that there would be fewer military trials than there are, if military orders were invariably followed by implicit obedience.

But besides these general considerations, the cases which have already been brought here for adjudication have furnished us with opportunities of knowing something about the practice under this order of the Quartermaster General, and we can, ourselves, decide whether, as was stated by Colonel Clary, “ the consent of the owners was obtained in all cases.” Our records are full of evidence to contradict him. I feel constrained, therefore, notwithstanding my respect for my associates, to protest against accepting the opinions of an officer as to the practice under, or the effect of, a general order, especially when his own standing might be affected by his statement, and allow that opinion to override the direct, evidence to the contrary of an unimpeached and disinterested witn ess. I am, therefore, forced to the conclusion that the second charter-party is not binding upon the claimant; that it was exacted under duress, and is void.

In the Reeside Oase (2 Court of Claims, page 58) it is said, “ to make an agreement of compromise effectual, it must be fair, open, and free from undue influence, oppression, and extortion. The parties must stand upon equal ground.” And again on page 59, same case, “It was at one time maintained that duress of the person was necessary to avoid an agreement, and that duress or detention of goods could not have that effect. That doctrine is now exploded.” In support of this statement, Chief Justice Casey refers to Wheeler v. Smith, (9 How. p. 55.) On page 61, it is said, To present to a man the alternative of paying an extortionate sum, or of reUnqtdsldng a legal right on the one hand, or be deprived of the rightful possession of his property, or obtain it through the delay, vexation, and expense of a lawsuit on the other, the law holds to be unconscionable and unlawful, and renders every promise and agreement extorted in that way wholly null and void.” Judge Loring, in the conclusion of his opinion in the case of Theodore Adams, (page 70 of the same volume,) affirms the same doctrine. In the case of Ramsdell and Smith, (page 508, same volume,) Judge Loring, delivering the opinion of the court, again affirmed this doctrine and stated: “ Then it was plain that this suit was barred by Mr. Smith’s proposal to take $11 per gun, and the payment of that price to him; but that was at the most an agreement to take a part of the debt for the whole, when the whole was due, and as nudum pactum is of no legal obligation; moreover the officers and agents of the War Department refused that adjudication of Mr. Smith’s claim to which he was entitled, and thus in fact enforced from him the proposal he made as his only means of obtaining any part of the money due him, which he needed to meet his engagement for the guns, and this is legal duress which voided the transaction made under it.” This claimant needed money quite as much as Mr. Smith, and an examination of the facts in all the cases above cited, and a comparison of them with the proofs in this case, show that no greater force or compulsion was used against any of those parties than that to .which this claimant was subjected. If it was duress then, it is no less so now.- I therefore think that this claimant is not bound by the terms- of the charter-party which he was forced to sign, so far as they affect the price for his steamer for the time previous to the elate when it was actually executed. I think that from June 22d to August 19th, he is entitled to the full hire of his vessel, as fixed in his first charter.

Great stress is laid in the opinion on the fact that the claimant made no particular request for the discharge of the vessel. Why should he? He was under no obligation to do so.. His contract stood until the vessel was discharged, unless he in the mean time made a new agreement. He had made his charter-party, and his price was fixed, with the assent of the government, “ for so long a time as the vessel should be employed.” All that he asked was his stipulated price. This is all he now asks. I think him entitled to it. The defendants could discharge the rrnssel at pleasure; the claimant could not withdraw her from service; Like almost all contracts with the defendants, it was one-sided in that regard, and submission or punishment was inevitable to the claimants.

But there is another branch of the subject on which I desire to say a fe w words. The Maple Leaf it is conceded performed the services required of her for the ichole time for wldeh compensation is now claimed; she was paid, in accordance with her charter, at $550 per day, only till April 22, 1863.

On the 22d day of June, 1863, a quartermaster, assuming to act for the Quartermaster General, by what authority does not appear, ordered that her rates should be reduced to $300 per day, to take effect, not at the date of the order, but on the 22d day of April, sixty days previous. The service had been already performed. No notice had been given. The first intimation that any reduction was contemplated was contained in the letter of June 10,1863, from Colonel Thomas to Captain McKim, and this did not state what or how great a reduction was desired. I am unable to see by what course of reasoning this action of the Quartermaster General is sustained. Instructions from the Quartermaster General to his assistants, or correspondence between the latter, I do not regard as evidence sufficient to bind a civilian, in no Avay cognizant of or directly connected with them. In the management of public affairs within the line of their duties the' officers might be held amenable to those in authority for omission or neglect, but not to the citizen; he would be powerless in the premises. The second charter-party, even if valid, only purports to affect the price after June 22. There is not a particle of evidence that claimant ever consented to any reduction previous to that date, unless the fact that he signed various receipts for portions of the hire of his vessel, which contained the words “ in full of the above account,” is held to be sufficient to bind him to the reduction. This point is not mentioned in the opinion of the court, and I should not now consider it if I could see any other grounds for this portion of the decision. The rule as to the effect of receipts in the form used in this case has been very fully discussed by the court in other cases, and the decision that, when given for a portion of the debt, they do not preclude the creditor from a further recovery, is, in my opinion, correct and well sustained.

I think the claimant should also recover the balance withheld from him, from April 22 to June 22, in addition to the balance due him from June 22 to August 19. The second charter-party, if voluntarily executed, might account for the reduction after June 22, the date at which by its terms it was to take effect, but there is nothing to show any assent or agreement'by the claimant to this arbitrary reduction for the time which had already elapsed, when the order of the Quartermaster General was issued.

There is no pretense even of a new contract which covers that time, and unless the Quartermaster General can do what no other power in the state is permitted to do, impair the obligations of contracts at pleasure, the claimant is entitled to recover.

With regard to the acceptance of part payments on these charter-parties, under the precise circumstances shown by the record, I may even concede that they were accepted at the-time in payment, and yet the claimants may recover the whole ■amount due, previous to the giving of the receipts, and not included in them.

Metcalf, in his work on contracts, thus states the law, see page 191: “A promise to take a less sum, in satisfaction of a greater, where the greater sum is fixed and liquidated, or is ■ascertainable by merely arithmetical calculation,” (as in the case now under discussion,) “is without consideration and void; and after talcing it and, agreeing to discharge the debtor, the creditor may recover the balance;” and refers to the following reported cases as sustaining the rule: (1st Si,range, 426; 2d Term Bep’ts, 124; 5 East., 232; 2d John., 450; 25th Vermont, 386; 2d Hall, 185; 15tb Alabama, 700; 12th Gray, 341; 5th Wharton, 319; 1 Zab., 391. See also page 279 of Metcalf.)

The inference against a claimant that be conseuts to relinquish bis demand, because be does not bring suit at every refusal of the defendants to pay what they justly owe him under a written contract, seems to me contrary not only to public policy, but also against all authority. He has the right to sue at any time within six years, and no presumption arises against him because he prefers to wait and bring one suit, rather than bring several suits, where one should answer every purpose. Suppose he had sued, my observation convinces me that the quartermaster would not have been notified of the fact, or changed his conduct. No good could or would have resulted to the defendants had suit been brought daily. None of the departments pay any regard to proceedings instituted here. It would not be far from, the truth, should I say, that until after judgment they habitually disregard all proceedings in the Court of Claims. This fact is shown by the opinions of this court in several cases, and more especially in that of Stow v. The United States, recently decided.

I regret.as much as any one the conduct pursued by the Quartermaster’s Department, toward claimants, about these charter-parties. The whole proceeding of that department toward this claimant and others, as I think, was in violation of law. It would seem from the many and repeated notices and objections by this and other claimants, that advice should have been sought from the law officers of the government as to the legality of their action. If the defendants should be made to suffer for the wanton wrong of its officers in disregarding the obligation of contracts, it is their fault, and not the fault of the law.

I would gladly retrieve the errors of the quartermaster, if possible, but it is no part of my duty to favor injustice, or to omit to declare the law as I understand it. I should dishonor my position by so doing, and I have not been placed here by the United States for any such purpose. That would dishonor the- government. This court was established, as I. believe, that justice might be done, and the law administered with an equal balance between the state and the citizen. The quartermasters have misconducted, and the government should bear the loss resulting from that misconduct. The citizen makes his bargain with a view to profit, and when he makes it with fairness he should be protected. In this case there is no pretence even of unfairness, and not a syllable of evidence to show, any exorbit-ancy of price. If the defendants could have made better bargains than these for the charter of vessels, they should have done so. This claimant had no power to coerce the defendants or to extort from them. The defendants -would neither discharge the vessels nor pay the price agreed upon for their use, but compelled this and other claimants to continue their vessels in the service, and expected them to be satisfied with whatever compensation might be offered them.

Whether the defendants could or could not have made better contracts is not important. These are the bargains they did voluntarily make, and they are bound by them.' My duty is simple and plain. It is to enforce the existing contract, which establishes and settles the law as between the parties to it, so recognized by universal precedent and common consent.

Nott, J.,

dissenting:

In this case, as set forth in the findings of the court, the Quartermaster General on the22d June, 1863, ordered that the charter rate of the Maple Leaf be reduced from the 22d April previous. The owners, as the opinion shows, objected to the deduction, but allowed the boat to remain in the service. On these facts the majority of the court hold the retroactive order of the Quartermaster General to be binding, and the claimants not entitled to recover the charter rate withheld.

In the case of Clyde, decided at the beginning of the present term, the Quartermaster General, on the 13th May, 1803, ordered that the charter rate of the Tallaeca be reduced from the 10th November previous." The owner, as the court found, objected to the deduction, but allowed the vessel to remain in the service.

The two cases are similar, nay, identical. There was the same retroactive order in each, the same objection by the owner, the same failure to demand the discharge of the vessel.

The case of Clyde was submitted in May last, and held under advisement till December. The opinion then delivered had been submitted to and duly considered by all the judges, and tbe decision when announced received the sanction of every member of the court. Therefore the case of Clyde was one maturely considered, deliberately determined, unanimously decided — a case invested with a full measure of the principle of stare deeisis.

The decision in the case of Clyde was that the owner should recover; that the order of the Quartermaster General had no retroactive power; that the reduction required took effect only from the time the owner received notice.

In this case the facts are slightly clearer than in Clyde’s j for there the vessel continued in service under the old charter, and there’might have been a shadow of reason for saying that this continuance in service was an agreement to remit the earned excess and a consideration for its release. But here the old charter was terminated on this same 22d day of J une by a new charter made on the 19th August following, though by its express terms relating back to the 22d June. From the 22d June it worked a retroactive reduction and remitted the old charter rate for that interval; before the 22d June it left the earnings of the vessel untouched and the rights of the parties unchanged. By including the one period it excluded the other. By carrying back the reduction to the 22d June, it carried it no further. Mxpressio wnms, exclusio alterius.

I am unable to comprehend the decision in this case. The opinion of the court points out no distinction between it and Clyde’s, and I perceive none. Stare deeisis is a principle which I have always endeavored to maintain, and certainty, which (as has long been said) in law “is the mother of repose.”

The claimant should recover for the charter rate withheld from the 22d April to the 22d June, 1863.  