
    HOLTON’S CASE.
    Horace Holton’s Assignee v. The United States.
    
      On the Proofs.
    
    
      In the summer of 1861, General Frémont appoints and temporarily commissions a number of staff officers. One is military-railroad supervisor with the ramie and pay of colonel. Under him are twenty-seven assistants. He is charged with the care of puhlicproperty turned over for transportation. In October, 1861, he hires tarpaulins to cover military stores. It does not appeal' to what officer they were turned over, nor whether they were ever taken up and accounted for on any officer’s accounts, nor does it appear how long they were in the govwnment’s use, nor what ultimately became of them.
    
    I.The official services of certain de facto military officers appointed and commissioned by General Frémont in 1861 are recognized by the Act 25th March, 1862 (12 Stat. L., 374).
    II.It is tlie duty of officers defacto and of custodians of public property to take reasonable precautions for its care and preservation.
    III. Procuring tarpaulins to protect exposed public property from tbe weather is a reasonable and proper precaution.
    IV. Where an officer de facto procures tarpaulins to protect public property in bis custody, the government, as bailee for hire, becomes liable to the owner for a reasonable oompiensation while they continue in its service, and for their reasonable value if lost or destroyed.
    V.Where the bailor of property for hire in the government service fails to show that it continued to be used beyond a certain time for which he was paid, anditismanifestthattheproperty has been lost or destroyed, its loss must be presumed to have taken place about that time, and he can only recover for its value and not for its subsequent hire.
    
      
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. In October, 1861, Edward H. Castle bad charge of tbe railroads and military transportation in tbe Western Department, under Major-General Frémont, and acted as military supervisor of railroads, and was in charge of everything relating to tbe railroad transportation of troops and military supplies in that department. He was not an officer of tbe Quartermaster’s Department, but held an appointment from General Frémont as military railroad supervisor, with rank and pay as colonel on General Fremont’s staff. Under him were twenty-seven assistants, three of whom held like appointments as lieutenant-colonel, major, and captain, and be and bis assistants were charged with tbe care and custody of public property turned over to them for shipment or military transportation$ and a large quantity of public property was at that time in process of shipment, or unladen from tbe trains and in an exposed condition, for which they were held responsible.
    II. On or about tbe 15th of October, 1861, one Thomas Wilson, a clerk of Colonel Castle, by bis written order procured Irom Horace Holton, tbe claimant’s assignee in bankruptcy, thirty tarpaulins, in tbe city of Saint Lotus, for tbe purpose of covering and protecting military stores and supplies along tbe line of tbe railroad. These tarpaulin.? were immediately sent forward by Colonel Castle to Jefferson City and were delivered to Capt. John G. Klinck, a quartermaster on duty at that place. As they were not formally turned over to Captain Klinck, and were only received by him for transportation to such places as they might be needed, be did not take them up on bis property returns; but at tbe time they were delivered to him be directed bis clerk to receipt for them, and a receipt was given in favor of Col. E. H. Castle, per Thomas Wilson, signed u J. G. Klinck, by O. K. Klinck.” Tbe tarpaulins were thereupon used in protecting military supplies along tbe line of tbe railroad. It does not appear to what officers they were turned over, nor whether they were ever taken up and accounted for on tbe property returns of any officer. They were never returned to tbe owner, nor has be nor bis assignee ever been paid for them, or for tbe use of them, except as set forth in tbe petition; nor does it appear bow long they were used by tbe defendants, nor what ultimately became of them.
    
      IIJ. At tbe time that Colonel Castle procured tbe tarpaulins from tbe owner, Holton, it was understood and agreed between them that he should be paid a reasonable compensation for their use and that they should be returned to Mm within a reasonable time in good order and condition. At tbe time tbey were let to Colonel Castle, forty cents a day was tbe usual compensation paid in Saint Louis for tbe temporary use of sucb tarpaulins, and twenty cents a day was a reasonable compensation for continuous use; and tbe tarpaulins were reasonably worth $75 each, amounting in tbe aggregate to $2,250.
    IV. Tbe tarpaulins continued to be used in protecting government stores from two to three months from the time they were let to Colonel Castle.
    And on tbe foregoing findings of fact tbe court decided as conclusions of law ;
    1. Colonel Castle was one of tbe defacto military officers employed in tbe Western Department whose services were recog-by tbe Act 25th March, 1862 (12 Stat. L., 374). As sucb, and as a custodian of public property, it was bis duty to take reasonable precautions for its care and preservation; and procuring tarpaulins to protect exposed property from tbe weather was a reasonable and proper precaution.
    2. Tbe defendants, as bailees for hire, became liable for a reasonable compensation for tbe use of tbe tarpaulins while they continued in their use and service, and for their reasonable value when lost or destroyed.
    3. Tbe claimant not having shown that tbe tarpaulins continued to be used by tbe defendants subsequent to tbe time when, as tbe petition sets forth, tbe defendants’ officers ceased to pay for their use, their loss or destruction must be presumed to-have taken place about that time, and tbe claimant can only recover for their value, and not for their subsequent hire.
    
      Mr. Edioard Lander and Mr. A. L. Merriman for tbe claimant.
    
      Mr. A. í>. Robinson (with whom was tbe Assistant Attorney General) for tbe defendants.
   Nott, J.,

delivered the opinion of tbe court:

When Major-General Frémont assumed tbe command of tbe Western Department in tbe summer of 1861, be proceeded with characteristic energy to organize an army for his department. At that time the State government of Missouri was in a disorganized condition, the seat of the general government at a distance, the War Department overburdened and clogged by an accumulation of business, and General Frémont was thrown upon his own resources and told by the President and Secretary of War to exercise whatever powers were necessary for the public defense.

One of the methods of organization which he adopted was to appoint and temporarily commission such officers as were not appointed and commissioned by the governors of other States, it being supposed .by him and by them that these appointments would be ratified by the government and that in due time commissions would .be issued by the President. Such officers immediately entered upon their military duties, wearing the uniform of the United States, assuming responsibility, exercising command,'and sharing in the dangers and hardships of active service, being regarded by the public as possessed of all the authority of regularly appointed and commissioned officers. Ultimately a different policy was adopted by the government, some of these officers being transferred to the States from which they or their commands came, and commissioned by the governors thereof, the remainder being discharged from service.

Among these temporarily commissioned officers were nearly all of General Frémont’s staff, one of whom was Col. Edward H. Castle. He was assigned to the duty of superintendent of railroad transportation, with the rank and pay of colonel on the staff. Under him were a lieutenant-colonel, major, and captain, with twenty-four assistants. By virtue of this appointment of General Frémont’s, Colonel Castle performed the services of a quartermaster in charge of military transportation, and controlled and directed the railway transportation of troops and supplies throughout the Western Department as effectually as if he had been a regularly commissioned officer in the Quartermaster Department assigned to duty on General Frémont’s staff. By referring to Mowry’s Case (2 C. Cls. R., 68), it will be seen that the railway ears which formed the subject of that action were, by the terms of a contract made .by the chief quartermaster of the department, to be built according to plans and specifications to be furnished by Colonel Castle, that they were to be subject to his acceptance, and that they were turned over to him when completed.

It is a familiar principle of law that a title to an office cannot be tried in a collateral suit or proceeding. If the officer was an officer defacto, it would be held in a suit between third persons that the question whether he was an officer de jure could not be put. in issue. But whether a contract made by a defacto officer would bind the government in a case where it would be valid if made by an officer properly commissioned, and whether the government, like an ordinary principal, would be bound by the acts of one who was allowed by the highest executive authority to act as a public agent, are questions which it is not necessary to determine now.

The Act 25th March, 1862 (12 Stat, L., 371), recognizes those officers of the Western Department as having been “ actually employed m the military service,” and provided for the payment of their services as if they had been regularly commissioned officers. It is not to be supposed that Congress intended to ratify their services, so far as they themselves were concerned, and to leave innocent third persons, who dealt with them on the faith of their being officers of the United States, to suffer from a technical want of authority. No discrimination has ever been exercised by Congress when appropriating for the expenses of the Western Department, or for the awards of the Holt-Davis-Campbell Commission, or for the gunboat flotilla upon Western rivers, between contract-debts created by regularly or irregularly commissioned officers. This suit is the first instance, we believe, where such a distinction has been taken, and we are of the opinion that at this late day it cannot be sustained.

Moreover, as a custodian of public property, which Colonel Castle unquestionably was, it was his duty to take reasonable precautions to secure its preservation; and where perishable property was exposed to the weather, nothing could be more reasonable than that he should have tarpaulins to cover it. That these tarpaulins were not taken up on the property returns of the quartermaster to whom Colonel Castle sent them was no responsibility of the owner. It was sufficient for him that he delivered them to one acting as a public officer for use in the government service, and that they were used by officers of the government in the preservation of public property. An implied contract arises from such acts, under the decisions of the Supreme Court in Solomon’s and Clark’s Cases (19 Wall., 17; 95 U. S., 539).

As to the measure of damages, we are of the opinion that this is the case of a bailment for hire, where the bailee is bound to pay the agreed or a reasonable compensation for the use of the thing, and to return it in as good order and condition as when received, reasonable wear excepted, or in case of its loss or destruction to pay for its use until it was destroyed, and its reasonable value at the time of the loss. (Smith’s Case, 9 C. Cls. R., 237.) The claimant here assumes that the tarpaulins continued in use throughout the-entire period of the war, and he seeks to recover compensation accordingly. He admits that he was paid for their use for a period of eighty-six days, that they could not then be found, and that they have never been traced to the custody of any officer, nor known to have been in the government service after the expiration of this period for which he was paid their hire. On these facts, we are of the opinion that his damages must be restricted to their value, and that he cannot recover for their use.

The judgment of the court is that claimant recover of the defendants the sum of $2,250.  