
    CARR’S CASE.
    Allen Carr v. The United States.
    
      On the Proofs.'
    
      One Burnham enters into a contract with the chief quartermaster for Texas for transportation on certain military routes. Subsequently he calls on B. to furnish transportation at the contract rate on another route. B. agrees, and sends Carr as his agent to malee arrangements with the officer needing transportation. Subsequently the officer makes requisition upon C. for transportation, which he furnishes in his own name at a higher rate than that specified in B.’s contract. The quartermaster gives him Ihe usual vouchers. B. neglects to bring suit within six years, and C. brings suit in his own name.
    
    When a, contractor agrees orally to fnrnisli military transportation at the-contract rate on another route than those specified in his contract, and sends his agent to perform the service, and the latter, concealing his agency from the officer in charge, performs in his own name at a higher rate and brings suit on the vouchers given him, he must he deemed to stand in the place of his principal, and can recover only at the rate specified in the latter’s contract.
    
      The Reporters’ statement of tbe ease:
    Tbe court found tbe following facts:
    I. On tbe ICtb of January, 1869, Bvt. Maj. Gen. E. R. S. Canby, United (States Army was in command of tbe fifth military district,. State of Tesas, with headquarters at Austin,. Tex., and on that day be caused to be issued a general order, assigning various troops under bis command to different posts; and among tbe troops so assigned was Company H, Sixth Cavalry,, which was then stationed at Sulphur Springs, Tex., and which, by said order, was assigned to Jefferson, Tex., aplace about ninety miles distant from Sulphur Springs. By said order Sulphur Springs was made a part of the post of Greenville, Tex. The said order concluded with the following sentence: “ The proper staff department will make immediate arrangements for the moving and supplying the troops and for the disposition of the public property at the posts and stations that are discontinued.”
    II. Ou the day aforesaid the said Canby caused to be issued a special order, containing, among other things, the following:
    “ Upon the arrival of four companies of the Twenty-ninth Infantry from Jefferson, Tex., at Greenville, Tex., the post of Sul-phur Springs, Tex., will be discontinued. Company H, Sixth Cavalry, will thereupon proceed to Jefferson, Tex., and there take post. * * * The Quartermaster’s Department will furnish the necessary transportation.”
    III. On the day aforesaid, and after-ward during the period of time covering the transactions hereinafter set forth, Bvt. Brig. Gen. J. A. Potter, quartermaster, United States Army, was chief quartermaster of said military district; and Bvt. Lieut. Col. O. H. JEoyt, assistant quartermaster, United States Army, was on duty as depot quartermaster at.Jefferson, sixteen miles distant from Marshall, Tex., and about three hundred miles distant from said Austin.
    IY. On the day aforesaid, General-Potter telegraphed from Austin to Colonel Hoyt, at Jefferson, the following words:
    “ The new disposition of troops will require a large amount of extra transportation. Cast about and tell me if it can be hired in Northeast Texas, in case the contractor (Burnham) at Marshall cannot supply it. Send you particulars as soon as order is issued.”
    To this telegram the said Hoyt returned to said Potter the following answer by telegraph:
    “ Telegram received. Transportation for present movement can probably be hired by contractors, or at their expense, in case they are unable to furnish it. Will send further report.”
    Y. On • the day aforesaid, General Potter telegraphed from Austin to A. M. Burnham, at Marshall, the following words:
    “ There will be a large movement of troops in a few days to and from the various posts ■ in Northeastern Texas. Are you prepared to furnish transportation 1 Will give you particulars soon.”
    To this telegram the said Biirnham, bn the 18th of January, 18G9, returned by telegraph to said Potter, from Marshall, the following answer:
    ' “Am, prepared to furnish any reasonable amount of transportation. Waiting instructions.”
    YI. On the 20th of January, 1869, at Marshall, the said Burn-ham signed a contract in writing with said Potter, as chief quartermaster as aforesaid, acting for and on behalf of the United States, which contract had been previously signed by said Potter at Austin. The first, second, fifteenth, and sixteenth articles of said contract were as follows:
    “Article 1. That the said A. M. Burnham shall, from the date hereof to the first day of November, 1869, receive and transport with dispatch, in securely-covered wagons or carts, to and from any and all points in Texas east or northeast of the Brazos Biver and south of the Bed Biver, except Marshall or Jefferson, Texas, and Bryan or Courtney, Texas, or the terminus of the Texas Central Bailroad, all such military stores and supplies as may be turned over to him in good order and condition by the officer or agent of the Quartermaster’s Department at either point of starting, and deliver the same in like order and condition to the officer of the Quartermaster’s Department designated to receive them, agreeably to the instructions he may receive from the officer or agent charged with the duty of forwarding the stores and supplies ] provided that when troops are moved, mules or horses must be used.
    “Article 2. For the faithful performance of the above-named service, the said A. M. Burnham shall be paid in the manner hereinafter provided for in article 15 of this agreement, and at the rates specified and shown in the tabular statement hereunto annexed and signed by the parties to this agreement, which , statement is considered a part hereof.
    “Article 15. For and in consideration of the faithful performance of the stipulations of this agreement, the said A. M. Burnham shall be paid, at a point to be designated by the chief quartermaster, fifth military district, in the legal currency of the United States, according to the distance supplies are transported, and agreeably to the rates specified in the tabular statement hereto annexed, signed by the parties to this agreement.
    “Article 16. It is expressly agreed and stipulated between the parties to this contract that, upon mutual agreement, it may be changed, altered, modified, or abrogated in the whole or in part.”
    The tabular statement of prices subjoined to said contract stipulated that freight should be paid at the rate of three dollars and forty-three cents ($3.43) per one hundred pounds per one hundred miles.
    YII. On the last-named day the said Burnham, as principal, aucl one A. Pope and the claimant, as sureties, signed, sealed, and delivered, at Marshall, the following bond :
    “United States oe America,
    
      “State of Texas, County of Samson, ss :
    
    “ Know all men by these presents that .we, A. M. Burnham, as principal, and A. Pope & Allen Carr, as sureties, held and firmly bound unto the United States of America, represented by the Quartermaster’s Department of the U. S. Army, in the penal sum of fifty thousand dollars ($50,000.00), lawful money of the United States, well and truly to be paid if default be made to the condition of this obligation, and to which-payment, so to be made, we jointly and severally bind omselves, our heirs, executors, administrators, and assigns, each and all, by these presents :
    “ Now, the condition of this obligation is, that if all the provisions of the attached contract, which we hereby acknowledge as genuine and binding upon us all, shall be strictly fulfilled by the said A. M. Burnham, then this the said obligation to be mill and void, but otherwise to remain in full force and virtue.
    “And we, the said A. M. Branham and the said A. Pope & Allen Carr, do also certify on oath that we execute this bond for the uses and purposes stated herein, only signing in quintuplí-cate all as originals. We, the* said ‘A. M. Burnham, as principal, A. Pope & Allen Carr, the sureties, specially deposing on oath that we are personally worth,, over and above all obligations against us, the sum specified as bond-money on above obligation.
    “A. M.” BURNHAM. [seal.]
    “A. POPE. [SEAL.]
    “ALLEN CARR. . [seal.]”
    VIH. On the 21st of January, 1S69, General Potter sent from Austin to Colonel Hoyt, at Jefferson, the following telegram:
    “To B’v’t L’e’t Col. C. H. Hoyt,
    “ Depot Q. M.:
    
    “ Color Company C, Fifteentk(15) Infantry, goes from Palestine to Bryan; Company A, Sixth (6) Cavalry, goes from Pilot Grove to Nacogdoches; Company H, Sixth (6) Cavalry, goes from Sidpliur Springs to Jefferson; Companies D & G, Seventeenth (17) Infantry, from Sulphur Springs to Waco; Company B, Fifteenth (15) Infantry, from Clarksville to Canton; Com pany D, Twenty-ninth. (29) Infantry, goes from Jefferson to Clarksville 5 Company I, Fifteenth (15) Infantry, goes from San Augustine to Livingston; Companies D & F, Fourth (4) Cavalry, from Jefferson to Griffin. Movements, consult with A. M. Burnham, contractor; if he fails to supply transportation, provide it yourself. Letter by mail with orders.
    “J. A. POTTEB,
    
      “B’v’t Brig. Gen’l & G. Q. iff. 0th Mil. JD-ist.”
    
    And, on the same da3~, said Potter sent to said Hoyt the following letter:
    “ H’dq’rs 5th Mil. District,
    “ Oeeice oe Gh. Q’kk’r,
    
      “Austin, Texas, Jan. 21, ’69.
    “ B’v’t L’t Col. C. H. IIott,
    
      “Depot Q’rm’r, Jefferson, Texas:
    
    “ Col.: The following telegram was sent you this day:
    “ Co. E, 15th Inf’y, goes from Palestine to Bryan.
    “ Co. A, Gth Oav’y, “ Pilot Grove to Nacogdoches.
    “ Co. H, 6th “ “ Sulphur Springs to Jefferson.
    
      “ Cos. D & G, 17 thlnf’y u Sulphur “ to Waco.
    
      u u u “ Co. B, 15th Clarksville to Canton.
    
      u u u “Co. D, “ San Augustine to Livingston.
    
      u “ Cos. D & F, 4th “ u Jefferson Griffin.
    “You are charged with the movements Consult with A. M. Burnham, contractor. If he fails to supply transportation, provide it yourself. Letter by mail with order. Of course you will be guided in this matter as to the best interests of the government.
    “ The contractor should furnish all the transportation; yet, if he is not able to do so, you will have to avail yourself of such means as are in your power.
    “Use every exertion to get them to their destination in a comfortable and speedy manner. The intolerable state of the roads will cause delay, undoubtedly. I enclose two copies of orders for your information. Beport progress often by telegram.
    “I am, &c., &c.,
    “J. A. POTTEB,
    
      B’v’t Brig. Gen., &e.”
    
    IX. On the 22d of January, 1869, Colonel Hoyt telegraphed from Jefferson to Bnruham, at Marshall, the following words:
    “Beport here at once to consult in reference to extensive movements of troops.”
    
      To this telegram tlie said Burnham, on tbe same day, from Shreveport, La., returned by telegraph’ the following answer:
    “Will he in Jefferson Sunday; impossible to come sooner.”
    Said Burnham appeared at Jefferson at the time stated in this last telegram, and reported there to said Hoyt.
    X. When said Burnham so reported to Colonel Hoyt, General Potter’s said telegram of January 21-'was shown to him by said Hoyt, who instructed him as contractor, to furnish ah the transportation required for the movements of troops indicated in said telegram; and Burnham agreed orally to furnish it at the rate stipulated in said written contract, and presented the claimant as his agent to make the necessary arrangements; and the claimant was thereafter known to said Hoyt only as the agent of Burnham in connection with the business of the latter as contractor.
    XI. On the 5th of February, 1869, a written notice was sent by Colonel Hoyt to Burnham, as follows:
    “Oeeice Ass’t Q’rm’r, D. S. A.,
    “ Jefferson, 'Texas, February 5th, 1869.
    '“Mr. A. M. BURNHAM,
    “Contractor, Marshall, Texas: . '
    
    “ Sir : Transportation is required for the baggage and stores of the following troops in movements ordered:
    “ Color Co. 0, 15th Inf’y, from Palestine to Bryan.
    “Co. A, 6th'Cav., from Pilot Grove to Nacogdoches.
    “Co. H, 6th “ “ Sulphur Springs to Jefferson.
    “Cos. D&G,17 Inf. “ “ “ “Waco.
    “ Co. B, 15 “ “ Clarksville to Canton.
    “ Co. I, 15 “ “ ' San Augustine to Livingston.
    “You will please make arrangements to furnish the same without delay. . ,
    “Yery respectfully, yom ob’t servant,
    " “O. H. HOYT,
    
      “Bvt. Maj. & A. Q. M., TJ. 8. A.”
    
    After Burnham had received this notice; he again orally agreed to move at the contract rates all the baggage and stores of the troops named in General Potter’s telegram of January 21.
    XIII. On the 6th of February, 1869, .Colonel Hoyt wrote to tbe commanding officer of Company H, Sixth. Cavalry, the following letter:
    “Opeice Ass’t Quae’m’e, TJ. S. A.,
    
      " Jefferson, Texas, FeVy 6th, 18C9.
    “COMMANDING OPEICEE,
    “ Go. IT, 6th Cavalry:
    
    
      l'1 Sie : I have tlie honor to transmit herewith copy order for the movement of Co. H, Cth Cavalry, from Sulphur Springs to Jefferson, Tex.
    “The bearer, Mr. A. Carr, agent of the contractor, is instructed to furnish necessary transportation for the baggage and supplies of the command on military bills of lading.
    “You are requested to expedite the movement as much as lies in your power.
    “Very respectfully, your ob’d’t serv’t-,
    (Signed) “O. H. HOYT,
    “NVi 2lay. & A. Q. M., TJ. 8. A.”
    
    This letter was placed in the hands of the claimant for delivery, and was by him delivered on or about the 13th of said February to the commanding officer of Company H, Sixth Cavalry,, at Sulphur Springs.
    On the 17th of said February, the claimant informed Colonel Hoyt by letter that the said company of cavalry, then at Sulphur Springs, were awaiting further orders; and in answer to that letter Colonel Hoyt wrote the following:
    “Depot, Jepperson, Tex.,
    
      “FeVy 22nd, 1869.
    “ Mr. Allen Caee,
    “ Agent for Contractor, Sulphur Springs, Tex.:
    
    “ Sie : Yoiu’ letter of the 17th inst., stating that the company of 6th Cavalry, now at Sulphur Springs, were awaiting for further orders, has been received.
    “ A courier will be sent from here at once with dispatches for the commanding officer at Sulphur Springs, containing further instructions.
    
      " Please make all necessary arrangements to expedite the movement so far as transportation is concerned.
    “Yery respectfully, your ob’t serv’t,
    (Signed) “0. H. HOYT,
    “Wt Maj. & A. Q. J1£., TJ. S. A.’
    
    
      XIII. On tbe 2d of April, I860, E. P. Colby, first lieutenant of Twenty-ninth Infantry, A. A. Q. M., issued tbe following requisition :
    “OPEICE A. A. QUARTERMASTER, U. S. A.,
    “ Greenville, Texas, April 2,1869.
    “ Tbe Allen Carr and connecting bnes will, without delay, furnish transportation for tbe public property specified below from Sulphur Springs, Texas, to Jefferson, Texas, tbe freight to be
    paid by tbe proper quartermaster, IT. S. A., at-, at $6.75
    per hundred pounds rates.
    . ■■ “E. P. COLBY,
    “ 1st Lieut. 29 Yn/., Quartermaster U.
    
    And on tbe 8th of said April, tbe claimant signed and delivered tbe following bill of lading of property belonging to Company H, Sixth Cavalry, and baggage of tbe officers of said company:
    “ Sulphur Sprikg-s, Texas, April 8,1869.
    “Deceived from 1st Lieut. E. P. Colby, 29th Inf., A. A. Q. M., United States Army, tbe following articles of public property, as specified below (contents and value unknown), in apparent good order, to be forwarded to Jefferson, Texas, by tbe wagon-train and connecting lines, there to be delivered, in like good order and condition, unto Lieut, C. G. Gordon, 6th Cav’y, A. A. Q. 1L, U. S. A. Freight to be paid by tbe proper officer of tbe United States, at $6.75 per hundred pound rates, and on tbe original bill of lading only.
    “ALLEN CABE..”
    Maries. 2STos. Packages, &c. ‘ Contents. Pd Yreight.
    Company property belonging to Co. H, 6th U. S.
    Cavalry.1. 35,212
    Baggage of Capt. T. M. Tolman,'6tb Cav’y. 700
    “ “ Lieut. G. Schreyer, 6fh Cav’y. 509
    “ “ Asst. Surg. G. H. Gunn, U. S. A... 500
    “ “ Lieut. C. G. Gordon, 6th Cav’y. 500
    Total weight, thirty-seven thousand four hundred and twelve... 37,412
    All the property and baggage specified in said requisition and bill of lading was transported to and, delivered at Jefferson to-Lieut. 0. G. Gordon, Sixth Cavalry, acting assistant quartermaster, United States Army, and was receipted for by Mm there on the 13th of said April.
    XIV. The said E. P. Colby issued to claimant the following’ voucher:
    
      uThe United States to Allen Carr, Ur.
    
    "1809. Dollars. Cts.
    “April 8. For transporting (37,412) thirty-seven thousand four hundred and twelve pounds of government stores from Sulphur Springs,
    Tex., to Jefferson, Tex., at ($6.75) six and seventy-five one hundredths dollars per (100) hundred pounds, per attached authority . 2,525 30
    “The exceedingly bad condition of the roads at this season, and the great difficulty in procuring teams, on account of the farmers requiring their teams at home, rendered it impossible to obtain transportation at a lower rate than is here given.. 2,525 30
    
      CO X o <X>' $
    
      u I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and will be reported by me on my report of persons and articles for April, 1869.
    “E. P. COLBY,
    “lsf Lieiot. 29 Inf., A. A. Quartermaster
    
    XV. After the delivery of said property and baggage to said Gordon at Jefferson, the said Burnham called upon Colonel Hoyt for payment for the transportation thereof, who offered to pay him therefor at the rate specified in the contract set forth in paragraph VI of these findings, but said Burnham refused to receive payment at that rate.
    The claimant was present when Burnham requested said payment, and made no objection thereto, nor any demand that the payment should be made to himself.
    Ño payment has been made to either said Burnham or said Carr on account of said transportation.
    XVI. Prior to October, 1870, the claimant caused a claim on his behalf for the said transportation to be presented to the Treasury Department; and on tbe 3d of April, 1871, be signed tbe following power of attorney, wliieb was afterward put on file in tliat department; but it does not appear tliat it was delivered to said Bnrnbam or that be ever acted under it.
    “ Know all men by tliose presents that I, Allen Carr, of tbe • county of Harrison, and State of Texas, do make, constitute, and appoint A. M. Burnbam my true and lawful attorney, for me and in my name and stead, to make settlement for me of a certain claim against tbe Quartermaster’s Department of tbe United States Army for transportation of 37,412 pounds of government stores from Sulphur Springs, Texas, to Jefferson, Texas, at six and dollars per hundred pounds per hundred miles, as per a bill of lading made on tbe 8th day of April, 1889, and signed by C. G-. Cordon, lieut. 6th IT. S. Cavalry, said claim having been referred to tbe Third Auditor of the Treasury Department for settlement. Any settlement made by said A. M. Burn-bam of tbe above claim shall be considered as though I were present and made same myself; said A. M. Burnbam is also authorized to receipt in my name for any monies due on said claim.
    “ In witness whereof I have hereunto set my hand and seal this 3d day of April, 1871.
    “ALLEN CARE.”
    XYII. On the 20th of April, 1871, the said Burnham notified the Third Auditor of the Treasury that the transportation aforesaid was furnished under his said contract with General Potter ; that the supplies transported from Sulphur Springs to Jefferson, under said bill of lading, were transported by teams belonging to him, and that'he had no knowledge of the contract made by claimant with said Colby.
    XVIII. The teams with which the transportation in question was made did not belong to either the claimant or said Burnham, but were hired in the neighborhood of Sulphur Springs; but by whom they were hired does not .appear.
    
      Mr. B. JP. Grafton for the claimant.
    
      Mr. A. J). BoMnson (with whom was the Assistant Attorney-General) for the defendants.
   Drake, Ch. J.,

delivered tbe opinion of the court :

In January, 1869, A. M. Burnham entered into a written contract with the chief quartermaster of the fifth military district of the State of Texas for transportation of military stores and supplies to and -from any and all points in Texas east and northeast of the Brazos River and south of the Red River, except Marshall or Jefferson, Texas, at the rate of $3.43 per 100 pounds per 100 miles freight.

Immediately after the making of this contract it became necessary for the assistant quartermaster at Jefferson to provide transportation for the baggage and stores of Company H, Sixth Cavalry, from Sulphur Springs, Texas, to Jefferson. This being a route terminating at Jefferson, was expressly excepted from the contract, and transportation over it could not have been rightly demanded of Burnham, nor could he have been held responsible for not providing it. Nevertheless he was, by the quartermaster at Jefferson, called upon to furnish it, and verbally agreed to do it, at the rate specified in the contract, .and at the same time presented the claimant to that officer as his agent to make the necessary arrangements; and the claimant was thereafter known to the officer only as Burnham’s agent. In February, 1869, the claimant bore a letter from the quartermaster at Jefferson to the commanding officer of Company II, at Sulphur Springs, transmitting to him a copy of the order for the movement of that company to Jefferson, and informing him that the claimant, aas agent of the contractor,” was instructed to furnish necessary transportation for the company’s baggage and supplies. This letter was delivered by the claimant to the commanding officer of 'the company on the 13th of February, 1869. On the 22d of that month the quartermaster at Jefferson addressed a letter to the claimant, styling him “ agent for contr actor.” Up to this date there is no ground whatever for considering the claimant as anything but Burnham’s agent, known only as such to both the quartermaster at Jefferson and the commanding officer of Company H, at Sulphur Springs.

From this time until the month of April following, nothing .appears in the case in regard to the claimant’s movements and doings or those of Burnham. The claimant then reappears in a new character.

On tbe second of that month, E. P. Colby, the post quartermaster at Greenville, issued a requisition, not upon Burn-ham or the claimant by name, but upon u the Allen Carr and connecting lines,” for the transportation from Sididiur Springs to Jefferson of the property and baggage of Company H and its officers, at a freight of $(>.75 per 100 pounds for the trip, which was nearly double the price that Burnham had agreed to do such work for, upon a computed distance of 100 miles between the two points, and more than double that price on the distance of 90 miles, found by the court to be the true distance; and on the 8th of that month the claimant signed in his own name, and not as agent fox Burnham, a bill of lading of the property and baggage, stipulating for its delivery at Jefferson, and for freight at the rate specified hi the requisition. On the same day the post quartermaster at Greenville issued to the claimant a voucher for the transxiortation at that rate.

The property was duly delivered at Jefferson, and the quartermaster there having refused to pay the rate stipulated in the voucher, or any more than that agreed upon by Burnham, this suit is brought to recover the voucher rate.

In some views of the case it might be important to consider whether the claimant, shown to have been the agent of Burn-ham, is the proper party to maintain this action; but under the circumstances we lay this question aside. The transportation was done under a receipt signed by the claimant as an individual, and it has not been paid for, and Burnham has never sued for it, and the time for him to sue has elapsed. That Burnham was the principal and the claimant his agent, is very certain; but it does not distinctly appear that this ivas known to Quartermaster Colby. We may, therefore, without wrong to any party, waive the question as to whether the right of action is strictly in the claimant, and regard him as, in effect, Burnham the principal, bound by the same obligations, and subject to the same liabilities, as wordd rest upon the latter were he the claimant.

So treating the case, we consider the claimant entitled to recover, but not at the rate of compensation claimed by him. Though Colby may not have known that he was acting as Burn-ham’s agent, the claimant himself knew it; and whether the claimant knew or. not that Burnham had agreed to perform the transportation for $3.43 per TOO pounds per 100 miles, he as agent was bound, by that agreement. When, therefore, Colby, unaware, perhaps, of Burnham’s agreement, stipulated for the higher rate, that could hare no effect to set aside that agreement and subject the government to the payment of that rate. Had Burnham brought this suit, he would have been entitled only to a judgment for the transportation of the property and ' baggage 90 miles at the rate of $3.43 per 100 pounds per 100 ■ miles, amounting upon 37,412 pounds to $1,154.56. For that sum judgment will be entered for the claimant.  