
    MR§. FIELD’S CASE.
    Rachel A. Field et al. v. The United States.
    
      On the Proofs.
    
    I. Tlie decision of this case at tlio December term, 1876 (12 C. Cls. E., 335), is reaffirmed at tlie rehearing.
    II. BostwlelJs Case (94 U. S. E., 53, reported as Lovett’s Case, 12 C. Cls. E., 67), considered.
    
      The Reporters’ statement of tlie case:
    Tliis was decided at tbe December term, 1876 (12 C. Cls. B., 355). A rehearing on the same record was had at the present term, when the following facts were found:
    I. Charles F. Field, on the 4th day of May, 1863, entered into a charter-party of the steamer M. S. Allison 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. At the time said charter-party was made, the claimants were the owners of the vessel therein named, and said Charles F. Field was their agent in control of the vessel.
    II. The said steamer, on the 4th day of May, 1863, entered into the service of the defendants by force of the said charter. She continued in such service until the 15th day of July, A. D. 1865, and during the whole period faithfully performed what was required of her.
    III. Dp to and until the 4th day of September, 1863, the services of the said steamer were paid for at the rate of $110 per day, being the compensation named in the charter-party. On or about the 23d September, 1863, the Quartermaster-General ordered that the rate of the M. S. Allison should be reduced from $110 per day to $90 per day, and it was indorsed upon the defendants’ copy of the charter-party.that the rate was to be reduced to $90 per day from and after noon of October 4,1863. On the 1st January, 1864, a further reduction to $80 per day was ordered by authority of Major-General Butler, commanding the department. It does not appear that the claimants or Charles F. Field were made acquainted witli either of these contemplated reductions until on or about the 17th day of January, 1804, when Charles F. Field, through the captain of the steamer, received the notice set forth hereafter in finding Y.
    IY. That subsequent to the 4th day of September, 1863, eight different payments were made to Charles F. Field for the use of said steamer upon accounts stated. The first of these accounts was dated the 7th of February, 1864, and as originally presented was not correct. It was returned from the Quartermaster-Generals Office for correction, and as corrected was paid and receipted in full, the following being a verbatim copy of said account as corrected and of said receipt:
    
      The United States to G. F. 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
    And 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.,
    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.
    Eeceived at New York, the 7th of March, 1864, of Captain F. J. Orilly, 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 second of tbe said accounts was dated tbe 4tli day of May, 1864, and was paid and receipted in full on tbe 2d day of June, 1864. Tbe following is a verbatim copy of said second account and receipt:
    
      The United States to Charles F. Field, JDr.
    
    1864. '
    May 4. For services of tbe steamer M. S. Allison, from February 5tb, 1864, to May 4,1864, inclusive, under charter made May 4, 1863, being ninety days, as per certificate herewith. 90 days, at $80 per day. $7,200 00
    Less for stores supplied to steamer Ella May, by commissary department at Newberne, N. C. 15 20
    $7,184 80
    May 19, 1864, vessel still in service.
    I certify that tbe above account is correct and just; that tbe services were rendered as stated; and that they were necessary for tbe public service.
    Deceived at New York City, tbe 2d of June, 1864, of Capt. Francis J. Crilly, assistant quartermaster United States Army, tbe sum of seven thousand one hundred and eighty-four dollars and eighty cents, in full of tbe above account.
    CHAS. F. FIELD.
    Tbe six remaining accounts were made out in tbe name of Charles F. Field, and paid and receipted for by him at tbe rate named in tbe second account ($80 per day), and varied from tbe latter only in dates and aggregate amounts, said dates and amounts being as follows:
    
      
    
    
      On tbe 14tb September, 1865, said Charles F. Field presented to tbe Quartermaster-General of tbe United States a claim for payment for tbe services of tbe said M. S. Allison, under tbe charter, bom January 1,1865, inclusive, to 12 m., July 15, 1865, at the reduced rate of $80 per day, which claim was in tbe following words and figures:
    
      The United States to Charles F. Field, Dr.
    
    1865. To services of steamer M. S. Allison, under . charter dated May 4, 1863, from January 1st, 1865, inclusive, to 12 m., July 15,1865, 195J days, © $80 per day.$15,640 00
    Less 5 days, from 12 in., Jrnie 26, ’65, to 12 m., July, 1865, not covered by certificates, © $80 per day. 400 00
    $15,240 00
    ' Certificates for actual sendee to be taken out, and accounts sent to New York for payment, 73 da3's, © $80 .... 5,840 00
    
      V. On tbe 17th day of January, 1864, there was sent and delivered to tbe captain of said steamer, then lying at New Berne, N. O., tbe following notice in writing from tbe chief quartermaster’s office, district of North Carolina, dated tbe 17th day of that month:
    
      “ Sir : I am directed to reduce tbe charter of your steamer to eighty (80) dollars per day, to take effect from tbe 15th instant. You will please send copy of charter in your possession to this office at once, to be indorsed acccordingly.
    (Signed) “B. C. WEBSTEB,
    “ Captain and Chief Quartermaster.”
    The bearer of this notice was one Edward M. Lonan, who was harbormaster 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.
    At or about the time of the delivery of said notice, said Chas. F. Field informed said Lonan that he would not submit to it, and that be wanted tbe vessel discharged, and that be would not send bis charter-party to tbe office to have tbe indorsement made on it. Lonan answered that be could not release tbe vessel, and Charles F. Field then said that be protested against it. Said Lonan reported this conversation to Captain Webster, chief quartermaster at New Berne, who laughed and said “be guessed be would have to keep her.”
    YI. Tbe captain of tbe said steamer did not, nor did any other person, send a copy of tbe charter-party to tbe office of tbe said E. C. Webster, captain and chief quartermaster, or elsewhere, to be indorsed according to tbe request contained in said notice referred to in tbe fifth finding; which was tbe only notice given to tbe owners or agents of tbe said steamer, by which it might be inferred by them that her compensation would be reduced below that stated in tbe charter-party, unless tbe receipts here-inbefore named shall be considered as notice.
    YU. Tbe steamer was directed by tbe defendants to go, and did go, on or about tbe 20th day of January, A. D. 1865, up tbe Chowan Eiver, in North Carolina, to a place called Oolerain, with military forces, equipment, and arms, and after having landed tbe same at that place, and while there lying in company with another steamer, she was found to have water in her bold, and her stern sank in 17 feet of water, her bow being on and fastened to tbe shore.
    While in this condition, in consequence of an apprehended attack from rebel forces, tbe officer in command at Oolerain directed tbe immediate removal of the steamer, whereupon she was hauled off tbe shore by another steamer by order of tbe 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 Eoanoke 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 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 tlie 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.
    YHI. The planks of the vessel where the injury was done and through which 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 wore applied.
    IX. The steamer was at the time of her injury under the management and control of a pilot placed upon her by the defendant.
    X. What occasioned the injury to the steamer is not shown, nor is it shown that there was any obstruction in the Chowan Fiver at Colerain which did or could damage her or cause her to spring a leak. ‘
    And the comt, at the claimants’ request, found the following additional facts:
    XI. The rivers in North Carolina were very much obstructed by the enemy; the obstructions were sticks of timber headed with pointed iron and placed with the heads three feet under water.
    XII. Other boats had gone to Colerain without suffering damage.
    XIII. There was no wharf at Colerain, and the captain protested against being required, as he was, to lay his vessel along shore. While lying there, artillery was dragged from another vessel across her decks.
    
      Mr. Lowndes, for the claimant,
    cited Bostioiclds Case (94 TJ. S. B., 53), and contended that it overruled Clyde's Case (13 Wall. B., 35), so far as that case had been held by this court at the former hearing to be binding upon it.
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. John S. BlaAr) for the defendants.
   Davis, J.,

delivered the opinion of the court:

On the rehearing of this case, the facts found vary but little from those found at the hearing in the December term of 1876.

In May, 1863, the claimants’ agent, in his own name as owner, and without disclosing his agency, made a charter of the claimants’ vessel to the defendants by charter-party, executed in the nsnal manner, at an agreed compensation of $110 a day, the charter to continue during the defendants’ pleasure and until the vessel should be delivered back at the port of New York.

The claimants’ agent remained on the vessel in the character of superintendent and manager, and as apparent owner, and received the charter-money at the agreed rate, and receipted for the same as owner up to September 4,1803, after which time no payments were made until February, 1804.

On the 17th January, 1804, the defendants’ agent notified the claimants’ agent, as supposed owner, that from October 4,1803, to January 1, 1804, the charter-money would be reduced from $110 per day to $90 per day, and that after January 1, 1804, it would be reduced to $80 per day. This is the only notice of the reductions which the claimants or their agent appear to have received. The claimants’ agent, on receipt of this notice, without disclosing his agency, protested verbally against the reduction, and said that the vessel should not remain in the defendants’ service; but the vessel did remain in that service, notwithstanding such protest and declaration, up to the 15th July, 1805, without disclosure of the agency, and, so far as appears, without further dissent on the part of the claimants or of their agent. The agent accepted as owner the payment of compensation at the reduced rates, and as such owner gave the usual aquittance therefor in full.

The claimants now seek compensation for the use of the vessel at the rate originally stipulated in the charter-party — (1) for the term during which the defendants admit she was in their service, deducting therefrom the amounts already paid and received; (2) for the further period of 117 days, diuing winch the defendants maintain that she was out of their service by reason of accidents Avhich were at the owners’ risk.

At the former hearing, this court was of the opinion, on the authority of Clyde's Case (13 "Wallace, 35), that the claimants were not entitled to recover on the first of these claims; and as to the second claim, that the injury which resulted in laying up the steamer for 117 days was not a “war risk,” such as was assumed by the defendants in the charter-party, and such as would make them liable for the rent while the ins sel was disabled.

At the present hearing, little stress ivas laid upon the second claim. It was not even suggested tbat tlie former conclusion of the court respecting it was erroneous. We think there is nothing in the facts as found warranting such a suggestion.

But as to the first claim, it has been urged upon us that the doctrine in Clyde’s Case has, since the former hearing in this case, been so modified and explained by the Supreme Court in Bostwick’s Case (94 U. S. R., 53) as to make it our duty now to render judgment for the claimants on that claim.

In Clyde’s Case it was held, (1) that, where the charter of a vessel by the United States was terminable at their option, a quartermaster’s notice, parallel in every respect with the one in this case, operated to change the rate of the hiring of the vessel for the whole period covered by the notice, past as well as future, if acquiesced in by the owner; and (2) that the retention of the vessel with the owner’s permission after such notice and the owner’s acceptance of payment on the basis contended for by the government, were such evidence of acquiescence in the change of the rate as concluded him from making further demand.

. It is conceded that Clyde’s Case should control the disposition of the present one, unless we think Bostwick’s Case affects it. That case was a suit brought to recover rent alleged to be due on a hiring of real estate. The United States hired the premises in question for a term of one year at an agreed rent, with a privilege of extending the term to three years. Before the expiration of the first year they gave the owner notice of a diminution of rent; and the lessor accepted the reduction under protest, and receipted in full at that rate for so much of the original term as remained after the notice. The United States continued to occupy the premises for the two additional years atthe reduced rate, the lessor continuing to give receipts in full as payments were made. The suit was brought to recover, among other things, the balance of rent at the original rate for the whole period. It was held as to the arrears during the first year that the claimant might recover,-notwithstanding the payments and receipts in full, because it did not appear that the extension of the hiring beyond that year was the consideration for the reduction of the rent during a part of the first year, or that there was other consideration therefor; but that the receipts in full were a bar to a recovery after tbe first year. Had it been shown, or could it have been assumed, that Rostwick’s intestate, Lovett, was moved to acquiesce in the reduction of the rent during the first year by the defendants agreeing to continue their occupation for two years more, the payments at the reduced rate and the receipt therefor in full during the first year, would undoubtedly have been sustained as a satisfaction.

We therefore find in Rostwick’s Case nothing to weaken the doctrines in Clyde’s Case as applied to the present case.

The views which we take render it unnecessary to consider whether the owner of a vessel can recover on a charter-party, finder seal, signed by his agent as absolute owner, with no disclosure of the agency or of the real ownership until after the termination of the service of the vessel, and after payment to the agent as owner, and the written acknowledgment by him of the receipt of payment in full.

The claimants’ petition must be dismissed. 
      
       This caseisreportedinl2C. Cls.R., 67, asLoyett’s Case. Loyett, thelessor, died ponding the suit, and his administratrix was substituted in his stead.
     