
    GILL’S CASE.
    (8 Court of Claims R., 391; 20 Wallace R., 517.)
    Andrew J. Gill, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      In November 1864, the commanding officer of a western fort gives the oivner of a mass of hag a receipt for the whole of it “ for the use of the Government.” The value of the hay is then $38.50 per ton. During the suoeeeding winter the quartermaster of another fort takes three-fourths of the hay for Government animals. The value is then $45 a ton. The court below is in doubt whether the liability of the Government is referable to the transaction in November, when all was receipted for, or to the talcing of it for public use 
      ' during the winter, when three-fourths tvere taken. It finally gives judgment for the three-fourths at its value when taken, $45 per ton. The defendants appeal.
    
    The Supreme Court’now directs the foregoing judgment ho reduced to $38.50 per ton, (the value in November,) for the three-fourths of the hay taken during the winter.
    
    
      The Reporters’ statement of tbe case:
    The claimant’s petition alleged that in the fall of 1864 he furnished to the United States, at Point of Éocks and vicinity, west of Fort Lyon, O. T., on the Arkansas Eiver, under a written contract, 2,000 tons of hay, at the price of $38.50 per ton, all of which was duly received and paid for by the United States.
    “ Anticipáting a further demand for hay by .the United States at that point, your petitioner prepared and had ready, at the same time and place, an additional quantity of 536 tons of good merchantable hay.”
    Your petitioner further shows that on or about the 27th day of November, A. D. 1864, at Point of Eocks, in the vicinity of Fort Lyon, C. T., he delivered the said lot of 536 tons of hay to the officers of the Quartermaster’s Department of the United States Army, and that said hay was received and used in the public service; that the reasonable value of the said hay at the time and place of its delivery aforesaid was $38.50 per ton, whereby an implied contract has arisen to pay your petitioner the sum of $20,636, all of which now remains due and unpaid.
    
      “ Your petitioner prays judgment of this honorable court for the said sum of $20,636, and for such other and further relief as the nature of the case may show he is entitled to.”
    The court below found the following facts:
    I. In November, 1864, the claimant was the owner of 536 tons of bay at Point of Rocks, near Fort Fillmore and Fort Lyon, in the Territory of Colorado. On the 27th November, 1864, he applied to Lieutenant Clark Dunn, the commanding officer at Fort Fillmore, to purchase the same for the use of the defendants. Lieutenant Dunn declined to make the purchase, on the ground that he was not authorized, but he gave to the claimant his receipt in writing, wherein it was stated that he had “ received of A. J. Gill five hundred and thirty-six tons of hay, in good order and well ricked, for the use of the Government,” which was signed u Clark Dunn, First Lieut. 1st Cav. of Col., comd. Camp Fillmore,” and he at the same time referred the claimant to the commander of the district and to the quartermaster at Denver, who could purchase the hay if they saw fit. The commander of the district was applied to, but declined to purchase at that timé. During the same month the military inspector of the district of Colorado, anticipating a short supply of hay for the winter, ordered Lieutenant Cossett, the quartermaster of Fort Lyon, “ to take the hay belonging to Andrew J. Gill and use it for Government stock.” After this the claimant exercised no control over the hay. And the defendants having proved on the trial that the claimant left Colorado on the 4th February, 1865, on business of his own, and that he did not return until the summer of 1866, and that in consequence of Indian troubles then existing it was unsafe for small parties to remain outside of Government posts, he was compelled to leave the hay without any one in charge of it, but in July, 1865, his agent visited the place and found the entire 536 tons gone, the court finds as matter of fact that the claimant did not abandon or intend any abandonment of the hay, and that at the time he left the Territory it had gone into Government use, as set forth in the next finding.
    II. In the month of December, 1864, and during the winter of 1864-’65 the quartermaster and forage-master at Fort Lyon directed Government trains to go to the hay and quarter there. A military expedition having about 2,000 horses was also quartered there and used the hay. In the spring about one-half of the hay had been fed to Government animals, about one-quarter had been thrown out of the ricks, trampled down, wasted, and destroyed, and about one-quarter remained in the ricks, though in a worthless condition.
    III. After Lieutenant Dunn was relieved at Camp Fillmore, bis successor, Lieutenant Dennison, assumed the responsibility of the custody of the hay, and in June, 1805, the post commander at Fort Lyon ordered the quartermaster there to receive the balance of hay remaining,- so as to relieve Lieutenant Den-nison from responsibility. A board of survey being demanded, it was found that the balance remaining was spoiled and worthless, and no receipt was given or responsibility assumed by the post quartermaster.
    IV. The fair and reasonable value of the hay in November, 1864, was $38.50 per ton, and during the winter, at the time it was used, $45 a ton.
    And upon the foregoing facts the Court of Claims decides, as a conclusion of law :
    There being no valid express contract founded upon advertisement or military exigency for the sale and purchase of the hay, the defendants are not liable for the entire quantity alleged to have been sold in November, 1864, at $38.50 per ton. But the defendants are liable for the hay taken and used, at its fair and reasonable value at the time of taking; and they are responsible for the wasteful and destructive manner in which it was taken and used ; and the claimant should recover for three-fourths of the entire quantity ricked, at the rate of $45 a ton.
    
      Mr. Attorney-General Williams and Mr. Assistant Attorney-General Goforth for the United States, appellants :
    There was no valid express contract founded upon advertisement (Act March 2,1861,12 Stat. L., p. 220, § 10) or military emergency, (Act July 4,1864,13 Stat. L., p. 394, § 4,) and therefore the defendants were not liable for the hay alleged to have been sold, if the taking was not a trespass by Government troops. The refusal of the district commander to receive the 536 tons of hay belonging to the claimant was a notice to the claimant, as well as to all officers and agents of the defendants, that the hay would not be purchased for the use of the Government animals. The direction of the district inspector to the post quartermaster at Fort Fillmore to use claimant’s hay was illegal and of no effect, as it was not within the line of his duty or within his power to declare an emergency. The law provides that when an emergency shall exist, it shall be lawful for the commanding officer to procure supplies during the continuance of the emergency, bat no longer, in the most expeditious manner and without advertisement. {Act July 4, 1864, 13 Stat. L.. pp. 394, 396, § 4; Henderson's Case, 4 C. Cls. B., 75.)
    In the present case the court decided that no military exigency existed; so not even the district commander could have lawfully ordered the purchase of the hay, much less could a staff officer, a subordinate, a district inspector, purchase it without previous advertisement. But here the district inspector directed its use without the semblance of authority to do so. If the hay was taken and used by order of an officer without authority to act, or by Government troops and parties, without the claimant’s knowledge and consent, and when he had left the Territory, much more if they scattered and trampled it under foot, it was a trespass, and the Court of Claims had no jurisdiction of the case. The taking and using of the hay by the Government troops and parties was an “ appropriation within the Act July 4, 1864,” (13 Stat. L., 381,) and the Court of Claims has no jurisdiction of the action. (Mlor v. United States, 9 Wall., 45.) The memorandum receipt given to claimant by Lieutenant JDunn was not binding upon the United States, there being no delivery or acceptance of the same on the part of Lieutenant Dunn or any other officer, but, on the other hand, it was accompanied by a statement by Dunn that he was not authorized to make the purchase, and was given as an accommodation to the claimant, in order that the district commander might know that he (Dunn) was cognizant of the fact that the claimant had 536 tons of hay cut and ricked in the vicinity of Fort Fillmore. The claimant demanded compensation for his hay at the rate of $38.50 per ton, and no more, and offered to sell the same to the Government for that price, and it was improper for the court to rate it as worth $45 per ■ton.
    
      Messrs. Durant <& Hornor for the claimant, appellee:
    The facts being beyond all dispute before this honorable court, there is no error of law known to counsel for appellee properly brought up for review here. The United States certainly urged none in their brief before the Court of Claims, ■unless under the point of “appropriation,” which needs no detailed argument, in our opinion, to overcome. And we submit that the question whether there was an implied promise is a question of fact on which the finding of the Court of Claims is conclusive. So, too, in regard to the damages recovered on a quantum meruit or quantum valebat, the measure of damages in such cases “ becomes a question of evidence as to the value of the property or services ;” u what the thing or property is worth.” (See Sedgwick on Damages, 254, ed. 1869; also, J. JET. Clarice & CoJs Case, opinion by Justice Grier, 7 C. Cls. B., 32.)
    We understand that your honors will steadfastly adhere to the doctrine enunciated in your construction of the rules of court regulating appeals from the Court of Claims: “ Their purpose was to bring nothing here for review but questions of law.” (Malian v. United States, 14 Wall., Ill; Shreiosbury v. Same, 18 Wall., 668, a case in which a certiorari to bring up most important written evidence was denied; United States v. Adams, 9 Wall., 661, and many other cases.)
    “ Certainty in practice is of the essence of benefit.” (Pease v. Nortoood, L. B., 4 C. P., 258.)
    We submit that on genreal demurrer to the facts constituting the case in the court below, the judgment here would be in favor of Gill; that if there is any error in the decree or in the statem ent of facts, amount awarded, imperfect justice, contrary to evidence, or if the United States has fault to find with the doings' of the court or has discovered any evidence, a motion for a new trial is the remedy provided, as it seems to us, bylaw. (Aot June 25,1868, 15 Stat. L., 65.)
    
      
      
         The reporters are unable to understand upon wbat legal principle this decision was intended to rest. It is not to be supposed that the Supreme Court went to one transaction to get the smallest value of the hay, and to another to get the smallest quantity; yet that is the precise effect of the decision. The claimant indeed alleged in his petition that the hay was worth $38.50 per ton, but that allegation was expressly confined to “ the time md place of its delivery” “in November.” It is possible that the attention of the Supreme Court was not directed to the fact that the court below rendered judgment for only three-fourths of the hay alleged to have been delivered in November.
    
   Mr. Chief-Justice Waite

delivered the opinion of the court:

Upon the facts found we think the judgment should have been for the value of the hay in November, 1864, to wit, $38.50 per ton, instead of $45, its value during the winter. To this extent the Court of Claims erred. The judgment is therefore reversed and the cause remanded, with instructions to enter a new judgment in accordance with this opinion.  