
    Samuel W. Pharis v. The United States.
    
      On the Proofs.
    
    
      In May, 1865, a quartermaster in Missouri sells, at public auction, apiano to ike claimant. In August, 1866, a third person brings an aetion in replevin and reccmers the piano from the claimant. Be now sues to recover lack tkepur-ckase money from the government.
    
    I. If sen officer sells personal property to which the government has no title, and it is recovered from the purchaser hy the true owner, an action to recover hack the purchase money, if it can he maintained against the government, must stand upon the basis of there being in the Treasury money of the claimant’s which, in equity and good conscience, the government should not withhold from him.
    
      II. That a military officer, without authority of law, sold certain personal property and received the purchase money, for which it does not appear that he ever accounted, is insufficient evidence to charge the government with the receipt of the money.
    III. The testimony of a quartermaster’s clerk showing that the quartermaster received money from a sale of certain personal property, reported the sale, and took up the purchase money in his accounts, is insufficient to establish the fact that the money reached the Treasury.
    
      The Reporters’ statement of the case:
    The claimant in this case put in evidence certain military regulations relating to the sale of personal property which had been seized by provost marshals in the district of Southwest Missouri. He also showed that this property was sold at public auction by the officer in whose custody it was pursuant to orders from the commanding officer of the district; that he paid the purchase money to the officer; that an action of replevin was subsequently brought, which he defended in good faith, but in which the property was recovered from him, upon the ground that the plaintiff in that action was the owner, and its seizure by an officer of the government illegal. Finally the claimant called the quartermaster’s clerk to show by parol testimony that the quartermaster reported the sale and accounted for the money received from the claimant. But the claimant did not produce the officer’s accounts, nor establish by the books of the Treasury that the money had been actually or constructively paid into the Treasury. No findings of fact were filed by the court.
    
      Mr. George G. King for the claimant:
    It was certainly not incumbent on the claimant, after paying his money to the authorized agent of the government, to follow it up till it reached the Treasury. Had the quartermaster embezzled the money, the government would still be liable; the money having passed from the claimants hands into those of the authorized agent of the government. (Merchants’ Banlc v. State Banlc, 10 Wall., 604.) But every presumption is in favor of the honesty and good faith of this officer. Such a presumption has been entertained by this court, with the sanction of the Supreme Court, even under a statute requiring that the money shall be shown to be actually in the coffers of the Treas,ury. (Holland’s Oase, 4 C. Ols. B., 465; Silvey’s Oase, 4 O. Ols. E., 490; Henry’s Oase, 6 O. 01s..B., 389; Orussel’s Oase, 7 O. Cls. B., 276; 14 Wall., 1.)
    Passing to tbe merits of the case, the present case is ruled directly by Port’s Oase, 3 Op. O. Cls. B. That was a sale precisely like the present, by a subordinate officer, under the orders of his commanding general; and the government was held liable. Brand’s Oase, 5 O. Ols. B., 312, presents also some analogies to the present. (See, also, Bandon v. Toby, 11 How., 520.)
    In recent cases in the Supreme Court, the same rule has been held. (Otis v. Cullom, 92 U. S., 447; Utley v. Donaldson, 94 U. S., 29.)
    By Mr. Benjamin, the latest and best writer on the Law of Sales (Secs. 627, 641), the rule is nearly as strongly stated. He states that the current of American authority is to the effect that there is an implied warranty of title in a contract of sale, where the goods are in possession of the vendor; blit that no such implied warranty exists in the case of a sale by a vendor out of possession. The rule as laid down by the Supreme Court in the above-cited cases, however, contains no such qualification. This is not material in the present case, as the goods were in possession of the officers of the government, under circumstances strongly implying a claim of title. Under the most rigorous rule, the claimant is entitled to recover. (2 Kent Comm., 478; 2 Bl. Comm., 451; 1 Pars. Oont., 573; Defreeze v. Trumper, 1 Johns., 274; Vibbard v. Johnson, 19 ib., 78; Sherman v. Ohamplain Transportation Go., 31 Vt., 162; 1 Smith L. O. (Pt. 1), 242, 7th Am. ed., 307; Smith v. Fairbanks, 7 Fost., 521.)
    That the taxed costs expended in the unsuccessful defence of a suit brought by an adverse claimant againsr the vendee may be recovered by him of the vendor, in a suit on the implied warranty, see 1 Sedgwick on Dam., 318; 3 Pars. Cont., 164, 212, 213; Kingsbury v. Smith, 13 N. H., 109; Blasdale v. Bab-eoelc, 1 Johns., 518. In the New Hampshire case just cited, counsel fees were allowed, and this is the rule in many States. This, however, is a more liberal rule than is usually applied, and we claim in this case nothing but the actual taxed costs. In the case of a judicial sale there is no implied warranty of title. (The Monte Allegre, 9 Wheat., 6L6.) The officer of the law, in such case, makes no claim of title in himself, or in the government. It is clear that the reasons in such a case have no application to a case like this, where the government makes the strongest pretentions to title in itself. (Port’s Case, 3 Op. C. Ols.)
    Jlir. George G. Wing (with whom was the Assistant Attorney-General) for the defendants:
    The fact is alleged that claimant acquired a piano from a government officer May 6, 1805. The next allegation is that that piano was taken from claimant by virtue of a .judgment in a replevin suit filed August 23,1866. # He has filed the record of that suit, but we maintain that it is not available here as evidence, on the ground that its purpose being to prove that he was evicted because another than defendants was the true owner at the time of the alleged sale, he does not show that defendants ever received notice of the suit’s pendency and were ever called in or had an opportunity to defend the same.
    The burden is upon him, therefore, to prove the fact by evidence other than the record of the former suit. (Burt v. Dewey, 31 Bgrb., 542, 543; Murrell v. Administrator of W. Graham, 1 Brev., 490.)
    Who was a true owner in 1865 must not be left to a proceeding, which might be collusive, to which the United States were not a party. That must be proved in this ease independently of the judgment record. And not having been done, this court will not decide adversely to defendants, for the case comes thus entirely within the doctrine announced this term in Rufus Waples v. The United States (ante, p. 126).
    Passing to the general argument, claimant cites Port’s Case in the early reports of old Court of Claims as being identical with and decisive of this suit. Even if similar, that decision would not have the controlling effect of one subsequent to the reorganization of this court in 1863. (bourse’s Case, 2 O. Cls. It., 2L4; Oruger v. United States, 11 C. Cls. ft., 771.)
    Even if a sale was clearly proven, the question would remain whether recovery could be had when the government in no way has derived benefit therefrom.
    The result of the cotton decisions was to presume that money paid to the agent reached the Treasury only when it was sh'own that there was in the Treasury a corresponding- fund which might upon the facts have been derived from the sale proved about the time the money was received.
   Nott, J.,

delivered the opinion of the court:

This action is brought on an implied warranty of title, arising out of the sale of personal property to the claimant by an officer of the Quartermaster Department. The material facts are these.

On the 13th March, 1865, the commanding officer of the military District of Southwest Missouri by a general order directed all commissaries and quartermasters throughout the district “ to sell such property not suitable for use or issue as may have been, or may hereafter be, turned over to them by the officers of the provost-marshal’s department.” The sales were to be public, ujmn notice “ to be given in the manner prescribed in the case of sales of condemned property “the proceedings and reports of said sales ” were to be “ approved by the general commanding the district”; and “all proceeds arising from such sales” were to be “accounted for in the same manner as proceeds arising from the sale of condemned property.”

At that time Capt. R. B. Owen, an assistant quartermaster of volunteers, on duty at Springfield, Mo., as. chief quartermaster of the District of Southern Missouri, had in his custody a piano, which, on the 6th May, 1865, he sold at public auction to the claimant. On the 23d August, 1866, the owner of the piano brought an action of replevin against the claimant and recovered it from him. The claimant now brings his action against the government to recover back the purchase money which he paid and the costs to which he was subjected.

If an action like this can be maintained against the government (upon which point we express no opinion) it is manifest, we think, that it must stand upon the basis of the government having in its possession money of the claimant which, in equity and good conscience, it should not withhold from him, and for which, upon a well settled principle of law, he should have an action to recover it back as money had and received to his use. But in this case all that is established by competent evidence is that a military officer, without authority of law, sold certain personal property to the claimant and received from him the purchase money thereof for which he has never accounted to his principal, the defendants in this suit.

It is true that the claimant has given in evidence the testimony of the officer’s clerk to the effect that he did report the sale and take up the proceeds on his accounts; but we cannot accept such testimony standing alone as evidence of the fundamental fact that the government has in its possession, actually or constructively, the money of the claimant.

It is also true that the claimant’s counsel has cited the decisions of this court in a number of abandoned or captured property cases to sustain the proposition that a presumption arises that the officer did his duty, from which the court may infer, in the absence of proof to the contrary, that the money actually reached the Treasury or was properly expended for and on behalf of the government. But this court never in fact decided that seizure by an officer raised the presumption that captured property was forwarded and sold, or that the proceeds reached the Treasury. The farthest which this court ever went in those cases was to hold that where a capture was shown on the one hand and a fund appeared in the Treasury on the other, derived from, property of the same Hand, captured about the same time, and brought from the same place or vicinity, a presumption arose from those facts that the claimant’s property contributed to the unidentified fund in the Treasury. lioss's Case, (12 C. Cls. R., 565, 577). As to the presumptions of law which do and do not arise from mere official duty, it is sufficient to refer to the exhaustive opinion of our brother Richardson in Johnson's Case (14 C. Cls. R., 276).

The judgment of the court is that the claimant’s petition be dismissed.  