
    MRS. FIELD’S CASE.
    Rachel A. Field et al. v. The United States.
    
      On the Proofs.
    
    
      The steamer Allison is chartered by the Quartermaster Department at $110 a day, the defendants reserving the right to discharge her at any time. While thus in service notice is given by the chief quartermaster on the 20th of the month that the charter-rate must be reduced to $80, to take effect from the With. The notice also requests the master to send the charter-party that the reduction may be indorsed on it. The master protests to the harbor-master who brings him the notice, and does not send the charter-party. Subsequently he accepts and receipts in full for the vessel’s wages at the reduced rate. The charter alsoqn'o-vides that the war risks shall be borne by the charterers, themarine bytheoivners. While on a military expedition a hole is knocked in the vessel’s bottom. Obstructions were planted by the enemy, but there is no evidence to show what caused this injury, nor when nor xuhere it happened.
    
    I. Where the charterers reserved the right to discharge the vessel at anytime, and subsequently gave notice to the master that the charter-rate is reduced with a request that the charter be sent them that the reduction be indorsed thereon, it is not sufficient for him to protest to the messenger and withhold the charter-party. If he allows the vessel to continue in service, and accepts and receipts for her wages at the reduced rate, the owners will be estopped from seeking the charter-rate.
    II. Where the war risk is to be borne by the charterers and the marine by the owners, it is not sufficient for them to show that an injury might have been caused by an obstruction in a river planted by the enemy. If the injury is of the nature of a marine risk, the fact that it was suffered on a military expedition, and might have been caused by the enemy, does not render the charterers liable.
    
      The Reporters' statement of the ease :
    The charter-party in this case was in the usual form of quartermaster’s charter-parties. The following facts were found by the court:
    I. Charles F. Field, on the 4th day of May, 1863, as owner of the steam-vessel called the M. S. Allison, entered into a charter-party of that vessel with a quartermaster of the United States Army, a copy of which is appended to and made part of the petition filed in this behalf.
    
      II. That the said steamer, on the said 4th day of May, 1863, entered into the service of .the defendants by force of the said charter, and so continued uutil the 15th day of July, A. D. 1865, rendering service, and faithfully performed what was required of her by the said charter-party.
    III. That the services of the said steamer were paid for at the rate of $110 per day up to and until the4th day of October, A. D. 1863,- from that date until the 1st day of January, A. I). 1864, at the rate of $90 per day ; and from the last-named date until her discharge at the rate of $80 per day, save and except for 117¿ days when the said steamer was disabled.
    IY. That eight different payments were made for the use of said steamer upon accounts, each of which was stated and receipted for in the following form and words, varying only in dates and amounts, the two following copies being- verbatim copies of the said accounts and receipts :
    
      The United States to O. W. Field, Dr.
    
    1864.
    Feb. 7. For services of steamer M. S. Allison, as per charter of May 4th, from Sept. 4, 1863, to Oct. 4,1863, 30 days, at $110.00 per day.. $3,300 00 Aud from October 4, 1863, to February 4,
    1864, 123 days, at $90 per day, as per certificate of service.. 11,070 00
    From 12 m. September 4, 1863, to 12 m. February 4, 1864. ..$14,370 00
    Less $10 per day, reduced rate from January 1st to February 4,1864, 34 days.. 340 00
    $14, 030 00
    Steamer in service at the date of this account.
    I certify that the above account is correct and just; that the services were rendered as stated; and that they were necessary for the public service.
    Received at New York, the 7th of March, 1864, of Captain F. J. Crilly, assistant quartermaster United States Army, the sum of fourteen thousand and thirty dollars and cents, in full of the above account.
    CHAS. F. FIELD.
    
      
      The United States t > Charles F. Field, Dr.
    
    1865.
    July 15. For services of steamer M. S. Allison, under charter made May 4,1863,12 m., from 12 m. July 1 to 12 m. July 15, 1865, being 14 days, at $80.$1,120 00
    I certify that the above account is correct and just; that the services were rendered as stated; and that they were necessary for the public service.
    Received at New York City, the 29th of November, 1865, of Captain W. W. Yan Ness, assistant quartermaster United States Army, the sum of eleven hundred and twenty dollars, in full of the above account.
    CHAS. F. FIELD.
    Y. That on the 21st day of January, 1864, there was sent and delivered to the captain of said steamer, then lying at New Berne, N. 0., the following notice in writing from the chief quartermaster’s office, district of North Carolina, dated the 17th day of that month:
    “ Sis : I am directed to reduce the charter of your steamer to eighty (80) dollars per day, to take effect from the 15th instant. You will please send copy of charter in your possession to this office at once, to be indorsed accordingly.
    (Signed) “ B. C. WEBSTER,
    “ Captain and Chief Quartermaster.”
    
    The bearer of this notice was one Edward M. Louan, who was harbor-master at New Berne, appointed by Col. Herman Biggs, quartermaster, by order of General Burnside, whose duties were to have the general supervision of all water-transportation, to give orders to masters of vessels, and send them to such points as it was desirable they should go ; to whom, on the delivery of the notice by him, a protest was made against the right and authority of the United States to make such deduction.
    YI. That the captain of the said steamer did not, nor did any other person, send a copy of the charter-party to the office of the said R. C. Webster, captain and chief quartermaster, or elsewhere, to be indorsed according to the request contained in said notice referred to in the fifth finding, which was the only notice given to the owners or agents of the said steamer by which it might be inferred by them that her compensation would be reduced below that stated in the charter-party, unless the receipts hereinbefore named shall be considered as notice.
    ■VII. That the steamer was directed by the defendants to go, and did go, on or about the 20th day of January, A. D. 1865, up the Chowan Eiver, in North Carolina, to a place called Cole-rain, with military forces, equipment, and arms, and after having landed the same at that place, and while there lying in company with another steamer, she was found to have water in her hold, and her stern sank in 17 feet of water, her bow being on and fastened to the shore.
    While iu this condition, in consequence of an apprehended attack from rebel forces, the officer in command at Colerain directed the immediate removal of the steamer, whereupon she was hauled off the shore by another steamer by order of the commandant there, and was put in tow of other vessels and by them was hauled under water down the Chowan Eiver, across Albemarle Sound, and up the Roanoke Eiver to Plymouth, a distance of 30 miles, which caused her to fill with mud, and otherwise damaged her. It does not appear that those on the steamer Allison felt any shock, blow, or concussion which could cause the leak. While at Plymouth, and about six or seven weeks after she had been sunk, the hole in her hull, by the assistance of a diver, was temporarily repaired, and the steamer was used for about thirty days by the defendants, and was directly afterward taken upon the ways and more permanently repaired; all of which was done at the cost of the defendants. The steamer was on the ways being repaired for the space of forty-eight days, making in the aggregate one hundred and seventeen days, or thereabouts, that the steamer was unavailable for the uses of the defendants, and for that number of days the defendants have refused to make any compensation.
    VIII. The planks of the vessel where the injury wms done and through w'hich the water leaked into the vessel were found to have been before and up to the time of the injury sound and substantial for the uses to which they were applied.
    IN. The steamer was at the time of her injury under the management and control of a pilot placed upon her by the defendants.
    
      X. What occasioned the injury to the steamer is not shown, nor is it shown that there was any obstruction in the Chowan River at Colerain which did or could damage her or cause her to spring a leak.
    
      Mr. T. B. Gates and Mr. F. J. Lippitt for the claimants:
    The defendant had the right to retain the boat by the terms of the charter, but no right to change those terms. • (Pratt’s Case, 3 N. & Ii., 105; The People v. Brandreth, 36 N. Y., 196, 197.)
    Mr. Justice Hunt, writing an opinion in The People v. Bran-dreth, holds that the obligation of a state or nation to the performance of its contract is governed by the same rules which maintain between individuals, and that “ honor, morality, and duty require it to perform its promises.” And cites State of Illinois v. Butterford, 8 Paige, 534; The United States v. Arredondo, 6 Pet., 711, 712; TheUnited States v. Banlc of Metropolis, 15 Pet., 377. (See also 2 Parsons on Contracts, 302, and authorities cited.)
    Receipts are always open to refutation or explanation, and if the person who made them (not being a party to the action) is not admissible as a witness, his declarations out of court certainly are inadmissible. Wherever what the agent did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it. (1 Greeuleaf on Ev., § 113.)
    If the receipts are allowed it is because they are admissions by claimant’s agent of payments. But the invariable rule is that the whole admission must be taken together, for one part may explain or quality another. (1 Greeuleaf on Ev., §§ 201, 202.)
    A receipt is simply prima-facie evidence of the matters contained in it, and subject to contradiction or explanation like any oral testimony. (Houston v. Sehendler, 11 Barb., 36; Riley v. White, 6 N. Y. Legal Obs., 272; MoCrea v. Purmart, 16 Wend., 474; Ryan v. Ward, 48 X. Y., 204; Pratt’s Case, 3 Nott & H., 105 ; Kellogg v. Richards, 14 Wend., 118.)
    The decision in the Clyde Case, upon which defendant relies, is not in conflict with the position of claimant in this case.
    That decision is upon the ground that the claimant did not object to the reduction nor demand surrender of boat, and gave receipts in full without objection. In this case tbe claimants objected to the reduction; refused to have it indorsed on charter ; demanded surrender of boat; protested when surrender was refused; and if they gave receipts at all gave them under objection and protest. In short, did everything in their power to manifest their dissent.
    Even the fact that an account is disputed is not sufficient; there must not only be a dispute, but a compromise must be agreed upon. (Ryan v. Ward, supra; Parmenter v. Euxford, 4 Denio, 166; Pierce v. Pierce, 25 Barb., 243.)
    The words “in full” were never regarded “ as of any sort of consequence” in the' Treasury Department. (Eancox v. The United States.)
    
    If the parties did not intend that the receipts should conclude them, the court cannot adjudge that they do.
    The claimants could make no investigation without military protection, which was withdrawn; moreover they were excused from making any by the acts of defendant, and were led into non-action by his concession that it was a war-risk casualty, and defendant cannot now deny it. (2 Parsons on Contracts, 793.)
    If defendant had not conceded the question, claimants would have endeavored to fix liability by examination, and would have repaired boat themselves at once, and lost little time.
    Morgan v. United States, cited by defendant,’ was clearly a marine risk. The boat was stranded going over the bar at mouth of Brazos Elver.
    It is respectfully submitted there is no parallel between the case at bar and the cases on which the Attorney-General relies; and that it is too late to dispute the allegation that the injury was within the war risk.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    Charles F. Field voluntarily permitted the vessel to remain in the service of the Government after the reduction of her charter-rates, and received the amount allowed for her services in full satisfaction for the same. No complaints as to the reduction, no demand for the return of the vessel, and no objection to receiving the amount paid, wmre made to any officer of the Government having authority to act in the premises. 
      {United States v. Clyde, 13 Wall., 35; 7 0. 01s. E., 262.) The stipulations as to the marine risk being borne by the owners and the war risk by the United States follow, and are contained in the covenants of the owner. They are, as I apprehend, limitations upon the covenant of the owner to deliver the cargo in good order and condition, and relate solely to the cargo. The covenant of the United States was to return the vessel in the same order as when received; and there is no allegation that this has not been complied with. This part of the claim must, therefore, rest upon the covenant to pay for each and every day said vessel may be employed a per diem compensation; and to this I reply that the party of the first part agreed to keep the vessel tight, staunch, strong, &e., and that the time lost in consequence of any deficiency in these respects should not be paid for by the United States.
    But if the construction contended for by plaintiffs be giyen to the charter-party, that the United States became insurers of the vessel against the acts of the public enemy, they are not liable for anything but the repairs, and these they made. The insurance did not cover freights. The fact that the repairs were made by the United States in no wise affected their liability for time lost. But it is not shown that the accident was caused by any act of the enemy or by a casualty of war; in fact, no effort has been made to show what it was that stove in the bottom of the vessel. (See Leary v. The United States, 14 Wall., 607; Beyhold v. The United States, 15 Wall., 202.)
   Peck, J.,

delivered the opinion of the court:

The claimants, by the first count of their petition, represent that on the 4th day of May, A. D. 1863, being the owners of the steam-vessel called the M. S. Allison, they entered into a charter-party with the defendant, on which day the said vessel, by force of and under the said charter-party, entered into the service of the defendant, and so continued in service until the 15th day of July, A. D. 1865, and faithfully performed all that the said charter-party required of her.

That the claimants were to have been paid a per diem of $110 for the use of said vessel for the time she should continue in said service.

That without the consent of the claimants, and to their great wrong and injury, while the said charter-party was in full force and effect, the Q u a r t er m a s te r- Ge d e r al, or one of his assistants, arbitrarily reduced the compensation agreed to be paid from $110 to $90 per day, the said reduction to take effect on the 4th day of October, in the same year; and that the said last-named rate of payment was, by order of Major-General Butler, further reduced from $90 to $80 per day, the last-named rate to take effect on the 15th day of January, A. D. 1864.

That by reason of the said reductions the claimants were deprived of the lawful gains assured to them by the conditions and terms of the said charter-party of the sum of $18,300, for which they ask judgment.

The answer of the defendants to these allegations is simply this, that the claimants accepted payments from time to time of the defendants for the services of the said vessel upon accounts stated, in which the number of days, covering all the days of service, and the price allowed therefor, were precisely named, aud gave receipts upon each of the same “ in full of the above account,” which it is contended releases the defendants from all further claims and demand for the rendition of such services.

However repugnant to justice and good faith this defense may be, and however repugnant to well-recognized legal principles as they formerly existed, it must now be admitted that recent authority is against the claimants, and that such receipts as they gave for the-money paid them will preclude any further recovery for their benefit.

There is not anything to show that the claimants did nut acquiesce in the reductions insisted upon by the defendants, except that when they were notified, in January, 1864, that the daily rate to be paid them would be reduced to $80, the captain in command of the vessel stated to the messenger who brought the written notice to him of such intended reduction that the owners would not accept such reduction, and wished the vessel discharged from service, and that they did not, as requested by the written notice, present the charter-party to the quartermaster that such reduction might be indorsed thereon. It does not appear that any objection whatever was made against the reduction of the per-diem allowance to $90.

All the accounts stated for which receipts in full were given had upon their face the statement that they were under the charter made May 14,1863.

We have to follow the decisions heretofore made in cases presenting similar facts, and decide that the claimants have been paid in full for the cause of action set out in their first count. No evidence of duress is given. The reference to the charter on the face of the accounts receipted for may be understood as notices to the claimants that the defendants intended the payments to be in satisfaction of the obligations assumed under the charter, and so named it, that they might be forewarned that no more v ould be paid to them for the services of their vessel at any time. ■ Submitting to this as they did, without making immediate complaint, they must- submit for all time.

The counsel for claimants strenuously insisted in argument that they should at least recover at the higher rate for the days which their steamer had been employed prior to the service of the notice dated the 21st of January, which then announced that a reduction would be made to take effect from the 15th of that month, because, as they alleged, under no circumstances could a reduction arbitrarily be made retroactively.

However reasonable that supposition might have been, as consonant with justice, it cannot now be recognized as law, for the Supreme Court has decided otherwise. See 13 Wall. R., 35, where this question was directly presented for the eonsideraton of the Supreme Court. See also Martin v. United States, 5 C. Cls. R., 216.

The second count of claimants’ petition is founded upon the assumption that their vessel,' during the continuance of the charter-party, on or about the 22d day of January, 1865, was ordered by the defendant to proceed up the Chowan River, in North Carolina, with troops, arms, &c., which it alleged was an extra-hazardous and dangerous service, coming within the “ war-risk” named in the charter-party.

That on that trip the vessel became injured and leaky, and while being repaired by the defendants she was ont-of service for one hundred and seventeen and one-half days, for which lost time the defendants refuse to make any compensation. No facts are found to show that the navigation of the Chowan River was extra-hazardous,or dangerous.

It is true the steamer received an injury in her hull while on this trip which caused her to leak, and which rendered it necessary^ she should be repaired, and we are requested to find that the injury was caused by some obstruction placed in the river by rebels, but sufficient evidence to convince ns of that fact has not been placed in the record. It was the business of the claimants to keep their vessel tight, stanch, strong, and well and sufficiently manned, &c.; if they did not do so, they should not expect the defendants to pay them for their omission, and were unusually fortunate that defendants voluntarily repaired their vessel for them. The vessel did not, so far as we can ascertain, encounter any “ war-risk.” See White's Case, 11 C. Cls. R., 578, which was in its charter-obligations, in this regard, the twin of this. (Leary v. United States, 14 Wall. R., 607.)

That the pilot was placed on the steamer for this trip by the harbor-master acting at New Berne for the defendants does not involve the defendant in liability for the injury to the vessel, since it does not in any way appear that the pilot was either unskillful or negligent, or that he in any manner mismanaged the vessel.

The claimants cannot recover on the case made, and their petition is dismissed.  