
    
      (2 Court of Claims, p. 68; not reported in Wallace Es.)
    Albert L. Mowry, Appellee, v. The United States, Appellants.
    
      On the defendants’ Appeal.
    
    
      The claimant, a manufacturer, brings Ms action in the Court of Claims on an express contract for the manufacture of railroad-cars. The court finds that the cars were needed for military pxerposes during the rebellion; that they could not be purchased in open market; that a contract in writing was made by the chief quartermaster of the department for the cars, they to be delivered roithin a certain time at a sepeified price ; that the cars were delivered and accepted ; and that the claim was presented by the claimant to the Davis, Holt, Campbell commission. On time facts the court decides that the contract being duly made and performed the claimant should recover, md that the recovery is not barred by the action of the commission. The defendants appeal.
    
    On the facts found by the Court of Claims in this case the Supreme Court is equally divided, and the judgment stands affirmed without opinion.
    
      Findings of the Court of Claims.
    
    First. That in September, 1861, the cars contracted for. were needed for immediate nse on the Pacific Eailroad in Missouri, for the transportation of men and supplies in the military operations of the Department of the West, then in command of Major General Frémont.
    Second. That the Pacific Eailroad Company had not the cars needed for immediate use, and could not furnish them because it had not the pecuniary means, and that the cars could not be purchased in the market, nor obtained except by contract for their construction.
    Third. That on the 22d day of September, 1861, a contract was made in writing, and under seal, by J. McKinstry, brigadier general and quartermaster, for and in behalf of the United States of the first- part, and by the petitioner of the second part, whereby it was agreed, 1st, that the petitioner should furnish to the United States fifty box-cars, and fifty platform-cars, to be built according to the plans and specifications to be furnished by Captain Castle, strictly to his acceptance, and whose opinion as to the workmanship, &c., was to be final between the parties; 2d, that fifty of said cars were to be delivered in eighteen days, and fifty in thirty days, on the track of the Pacific Eailroad Company, free of expense to the United States, and as many more as the j>arty of the first part may require, in forty-five days from the date of the contract; 3d, that the petitioner should be paid at the quartermaster’s office in Saint Louis, Missouri, eight hundred and twenty-five dollars for each of the platform-cars, at the time of their delivery and acceptance by Captain Castle.
    Fourth. Under this contract fifty box-cars and fifty platform-cars were built by the petitioner and delivered by him, and approved by Captain Castle and received and taken into use by the United States, who required no more cars of the petitioner under the contract.
    
      Fifth. That by his iierformance of his contract, the petitioner became entitled to receive from the United States, and they became liable to pay to him, the contract price for the cars delivered and accepted, amounting to $76,250.
    Sixth. That the petitioner presented his claim to a commission appointed .by the Secretary of War, composed of Messrs. Davis, Holt, and Campbell, and they allowed him thereof the sum of $58,750, and gave him their voucher therefor, on the condition that he should sign a receipt and agreement in the words following, viz : u The undersigned acknowledges to have received the vouchers referred to and described below, which, when paid, will be in full of all demands against the United States, on account of the respective claims set opposite their several names.”
    Seventh. That the petitioner protested against the action of said commission in requiring the agreement and receipt aforesaid, and signed the agreement under said protest.
    Eighth. That on the said voucher received from the said commissioners there has been paid by the United States to the petitioner the said sum of $58,750, leaving unpaid the sum of $17,500.
    And as a conclusion of law the court finds, that as the contract in this case was duly made with the petitioner by the officer of the Quartermaster’s Department on the part of the United States, and was duly performed by the petitioner, he is entitled to thebalance claimedinthe contractof $17,500, and that he is not barred from its recovery by the agreement required of him by the commissioners as above stated.
    
      Mr. Solicitor Norton for the appellants.
    
      Mr. R. H. Gillet and Messrs. Carlisle and McPherson for the appellee.
   The judgment of the Court of Claims was affirmed by the equal division of the Supreme Court, no opinion being delivered, at the December term, 1868.  