
    Joseph Mason, surviving partner, v. The United States.
    
      On the Proofs.
    
    
      Army transportation contractors employ the claimant to transport supplies from North Platte to Fort Phil. Kearney “in accordance with all the conditions and upon all the liabilities contained and assumed” by them, in their contract with the defendants. That contract provides that they shall have fifteen days’ notice of stores to be transported, stating the points of departure and of destination, “ subject to such changes as may be decided upon while in transitu..” The claimant arrives at Fort Phil. Kearney and ■is ordered to unload. When most of the stores are unloaded he is ordered to talce on additional stores and proceed to Fort Smith, lie refuses. The commanding officer threatens to put him and his teamsters in irons. The claimant submits to superior force under protest, and proceeds with his frain, but refuses to sign the bills of lading. The defendants pay the contractors for this service at the contract rate. The claimant alleges that his train was impressed, and brings his action on the implied contract in quantum meruit.
    I. Where a military officerin an emergency impresses a wagon train against the consent of the owner, who protests and refuses to sign bills of lading but performs the required service, an implied contract arises under the Constitution (Art. V).
    II. Where the claimant sixes on an implied contract arising from the im-pressment of his wagon train, the defendants cannot set up that he was a subcontractor and the contract void, under the statute forbidding the transfer of public contracts (Rev. Stat., <J 3737).
    
      III. Where an Army trsmsportation contract assures to the contractor fifteen days’ notice of stores to be transported, which shall state the point of departure “and ike place of destination, subject to stick changes as ■may be decided uponwhilein transitu,” he, having arrived at a place of destination and having' obeyed an order to unload, cannot be compelled without notice to take on additional freight and proceed to another placo of destination.
    
      The Reporters’ statement of tbe case:
    The following are the facts as found by the court:
    I. Joseph Mason and Asoph Allen were copartners, under the firm-name of Mason & Go., from June, I860, until March, 1869, when said Allen died.
    II. On the 29th of June, 1867, said Mason & Co. entered into the following agreement with Wells, Fargo & Co.:
    “ This agreement, made and entered into this twenty-ninth day of June, A. D. 1867, by and between Mason & Co., of Colorado Territory, party of the first part, and Wells, Fargo & Co., parties of the second part, witnesseth:
    “That the said party of the first part hereby agrees and binds themselves, their heirs, executors, administrators, or assigns, to transport the following military stores and supplies, as per annexed bill of lading, from North Platte, Nebraska, to Fort Phillip Kearney, and deliver the same to the proper officer, to whom they are consigned, in accordance with all the conditions and upon all the liabilities contained and assumed by Wells, Fargo & Co. in a certain contract made and entered into between the Government of the United States and the said Wells, Fargo & Co, dated Washington, D. C., April 4th, 1867, said contract being for the transportation of military stores and supplies, and is hereby referred to and made a part and parcel of this contract.
    “ For and in consideration of the faithful performance of this agreement by the said party of the first part, the said parties of the second part hereby agree to pay to the said party of the first part freight at the rate of one dollar (1.50) per one hundred pounds per one hundred miles (distance to be stated on the bill of lading from the officer receiving the same at the point of delivery) on return of the bill of lading receipted, in good order, as soon as the same is collected from the Government of the United States.
    “MASON & CO., “ WELLS, FARGO & CO., “Per A. STREET, Ag’t”
    
    To which agreement the following bill of lading was annexed r
    “Train No. 35, contract No. 35, to Ft. Phil. Kearney, No. 4, of 24 wagons.
    
      “ To Wells, Fae&o & Co.,
    “ Contractors on Route No. 1:
    “ You will without delay furnish transportion for the public property specified below from. North Platte, Neb., to Ft. Phil. Kearney, D. T., the freight to be paid by Bvt. Brig. Gen. Wm. Myers, quartermaster, U. S. A., the officer of the Quartermaster’s Department at Omaha, Neb., at the rate of one dollar and sixty-four cents per one hundred pounds per one hundred miles, agreeably to your contract with the United States, dated the fourth day of April, 1867.
    “WM. MTEBS,
    
      11 Bvt. Brig. Gen., & Quartermaster, TJ. S. A.
    
    “ Noeth Platte, Neb., June 29, 1867.
    “Deceived from Bvt. Brig. Gen. Wm. Myers, Q. M., U. S. A., the following articles of public property, as specified below, in apparent good order, to be forwarded to Ft. Phil. Kearney and there delivered in like good order & condition unto the act’g ass’t Q. M., freight to be paid by Bvt. Brig. Gen. Wm. Myers, Q. M., U. S. A., at Omaha, Neb., at the rate of one dollar and sixty-four cents' per one hundred pounds per one hundred miles, agreeably to my contract with the United States, dated the fourth day of April, 1867.
    “WELLS, FARGO & CO.
    “ Per A. STREET, Agent.
    
    
      
    
    “Oeeice oe Q. M. Ag-ent,
    “ North Platte, June 29,1867.
    “ I hereby certify that I have inspected train No. 35, contract No. 35, to Ft. Phil. Kearney, D. T., No. 4, consisting of twenty-four ox-wagons and of the means of irans’n composing said train, & have accepted the same.
    “ J. Q. LEWIS,
    “ Q. M. Agent.”
    
    III. The contract between the United States and Wells, Fargo & Co., referred to in said agreement, was as follows :
    “ This agreement-, made and entered into this fourth day of April, one thousand eight hundred and sixty-seven, by and between Brevet Colonel Alexander Bliss, assistant quartermaster, U. S. Army, in charge of fourth divison, Quartermaster-General’s Office, for and on behalf of the United States, of the first pan, and Wells, Fargo & Co., a corporation created by tlie Territory of Colorado, of the second part, for themselves and their successors, wituesseth, that the said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other as follows, viz:
    “ Article 1. That the said Wells, Fargo & Co. shall receive at any time in any of the months ¿rom April 1st, 1867, to March 31st, 1868, inclusive, from the officers or agents of the Quartermasters’s Department at Fort McPherson, in the State of Nebraska, or such points as may be determined upon during the year on the Omaha branch of the Union Pacific Bailroad west of Fort McPherson, or at Fort Laramie, Dakota Territory, all such military stores and supplies as may be offered or turned over to them for transportation, in good order and condition, by the officer or agent of the Quartermaster’s Department at any or all of the above points or places, and transport the same with dispatch, and deliver them, in like good order and condition, to the officer or agent of the Quartermaster’s Department on duty or designated to receive them at any of the posts or depots that are now or may be established in the, State of Nebraska west of longitude 102 degrees, in the Territory of Montana south of latitude 46 degrees, in the Territory of Dakota west of longitude 104 degrees, in the Territory of Idaho south of latitude 44 degrees and east of longitude 114 degrees, and in the Territories of Utah and Colorado north of latitude 40 degrees, including, if necessary, Denver City, or at any other x>oint or, posts on the route, agreeably to the instructions they may receive from the officer or other authorized agent of the Quartermaster’s Department charged with the duty of forwarding the stores and supplies at Fort McPherson or other place of departure; and for the faithful performance of such service they shall be paid in the manner hereinafter provided for in article 17 of this agreement, and at the rates specified and shown in the tabular statement hereto annexed, and signed by the parties to this agreement, which statement is considered as part hereof.
    “Article 2. That the said Wells, Fargo & Co. agree and bind themselves and their successors to transport, under this agreement, from the posts, depots, or stations named in article 1, or from and to any other posts, depots, or stations that may be established within the district described in said article, any number of pounds of military stores and supplies from and between one hundred thousand pounds and thirty millions, of pounds in the aggregate.
    “Article 3. That the said Wells, Fargo & Co. agree and bind themselves to have at Omaha City, and also at Fort McPherson or other starting-point of the route, a ifiace of business or agency; and for all stores to be forwarded from Fort McPherson or other point of departure on the Union Pacific Bail-road notice shall be given to the said Wells, Fargo & Co. at tbeir place of business or agency at Fort McPherson or other starting-point of the route.
    “Article 4. In order that the said Wells, Fargo & Co. shall be in readiness to meet the demands and requirements made upon them for transportation under this contract and agreement, due notice shall be given them or their agent of the quantity and kind of stores to be transported at any one time, ,at what point the stores will be ready for delivery to them, and the place of their destination, subject to such changes as may be decided upon while in transitu, as herein provided for, that is to say: For any quantity less than three hundred thousand pounds, fifteen days’ notice; for any quantity between three hundred thousand and six hundred thousand pounds, twenty days’ notice; for any quantity between six hundred thousand and one million of pounds, thirty days’ notice; for any quantity between one million of pounds and two million five hundred thousand pound, forty days’ notice; for any quantity between two million five hundred thousand pounds and five millions of pounds, fifty days’ notice; for any quantity between five millions • of pounds and ten millions of pounds, sixty days’ notice; for any quantity between ten millions of pounds and twenty millions of pounds, seventy days’ notice; for any quantity between twenty millions of pounds and thirty millions of pounds and for thirty millions of pounds, eighty days’ notice.
    “Article 5. The military stores and supplies which shall be transported under this agreement shall be consigned to their respective destinations, and receipts on bill of lading shall be given by the officer of the'Quartermaster’s Department serving at the place of consignment for the full quantity of stores that shall be delivered; and upon such receipts payment shall be-made to the said Wells, Fargo & Co. as hereinafter provided.
    “Article G. That all the means of transportation to be used by the said Wells, Fargo & Co. under this agreement shall be-submitted to the inspection of the officer or agent of the Quartermaster’s Department at the place of departure, and such only shall be used as may be then and there accepted by him. And it shall be the duty of the officer or agent of the Quartermaster’s Department forwarding stores to certify upon the bill of lading of each train that he has inspected the means of transportation composing said train and accepted the same. The stores turned over to the said Wells, Fargo & Co. for transportation shall be transported in trains of not less than twenty-five wagons each, whenever the officer or agent of the Quartermaster’s Department at the point of starting shall turn over a sufficient quantity of stores to make up- the loading of that number of wagons and in case; all the stores turned over for transportation shall be delivered to the consignee by the contractors in the same lots or invoices as received at points of departure.
    
      “Article 7. That to insure the delivery of the stores, and to aid the contractors in the execution of their agreement, certificates, setting forth the number of the train, the number of wagons in it, and the condition of the train for the prosecution of its journey, shall be given by the officers or agents of the Quartermaster’s Department at the following points: Forts Sedg-wick, Saunders, Laramie, Casper, Bridger, and Reno, or at such of them as are on the route to destination of the resqiective trains.
    “Upon each certificate so given, setting forth the good condition of the train, payment shall be made to the contractor for the service rendered to that point; and upon the arrival of the train at its place of destination or delivery, the officer or agent of the Quartermaster’s Department at the point of delivery shall indorse the bill of lading in accordance with the finding of a board of survey, as hereinafter provided, stating the quantity and condition of the stores delivered, upon which indorsement payment shall be made as per contract, deducting the amount of any payment or payments previously made, and also for any articles missing, lost, destroyed, or damaged,-and which the board of survey may find to be properly chargeable to the contractors, at the rate specified in article 8 of this agreement.
    “Article 8. In all cases when stores have been transported by the said Wells, Fargo & Co. under this agreement, a.board of survey, to be applied for in writing by the contractors or their agents (one member of which board shall be an officer on duty in the Subsistence Department), shall be called without delay on their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and, in cases of loss, deficiency, or damage, to investigate the facts, and report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractors, or to causes beyond their control; and these proceedings, a copy of which shall be furnished to the contractors, shall be attached to the bill of lading, and shall govern the payments to be made on it.
    “For loss of weight due to shrinkage, and for leakage of vinegar, molasses, or other liquids, the contractors shall not be held liable, if the packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractors or their agent. For loss, deficiencies, or damage attributable to the contractors, they shall pay double the cost at the point where they receive the articles, which cost shall be determined by taking the cost-price at place of purchase and adding thereto the cost of transportation to the point where the stores were turned over to the contractors; and no freight whatever shall be paid on stores deficient. In case of damage, freight shall be deducted in proportion to the quantity damaged. Should no board of survey be called when requested by contractors, through failure on the part of the Quartermaster’s Department, or other military authority, to convene one, it shall be considered that the contractors have delivered all the stores as specified in the bill of lading in good order and condition, and they shall be paid accordingly. But before such payment is made, the fact must be shown that the contractors or their agent did make application in writing to the quartermaster for a board of survey. If the amount of loss, deficiency, or damage exceeds the value of the bill of lading, it shall be deducted from any after-payments that may become due.
    “Transportation to be paid in all cases according to the distance from the i>lace of departure to that of delivery, the distance to be indorsed on the bill of lading by the officer or agent receiving the supplies, and in no case to exceed the distance by the usual and customary route. Where, however, stores are taken from trains before reaching their destination by competent military authority, the contractors will be allowed an increase of 5 per cent, on contract-rates to point of actual delivery: Provided, That no greater amount shall in any case bo paid than would have accrued if the stores had been transported to original destination.
    “ Article 9. That in case any one or more of the trains of the said Wells, Fargo & Co. are stopped or delayed at any time or place exceeding two days, either by the orders of an officer or agent of the Quartermaster’s Department, or the commanding officer of a post, or of troops present, or by failure of the proper officer to convene a board of survey when requested by contractors in writing, the contractors shall be paid, upon a statement in writing procured from the officer or agent of the Government causing the delay, the sum of $5 per diem for each and every team in tbe train for each and every day they may be so delayed. But no such payment shall be made when the order for the stoppage of a train or any portion thereof is given because of the inability of the contractors to proceed with the said train or any portion thereof by reason of deficiency in quantity or quality of means of transportation or by any act or fault of theirs. In case the officer or agent of the Government aforesaid shall refuse to furnish the statement in writing above referred to, then the delay shall be paid for as above, on the affidavits or other satisfactory evidence of credible and competent witnesses.
    “All orders from officers or agents of the Government to halt trains shall be given to the contractors or their agent in writing, expressing fully the reasons therefor: Provided, That when such delay is occasioned by proper military authority for the protection of the trains, the delay shall not entitle the contractors to any compensation; but the time so lost shall be allowed them in computing the time of the trip.
    *‘Article 10. The said Wells, Fargo & Co. shall be furnished, on application to post commander, with a suitable escort for the protection of the supplies, should they be required to transport in any one train a less quantity than one hundred and twenty-five thousand pounds.
    “Article 11. That the said Wells, Fargo & Co. shall transport all the military stores and supplies for which the Quartermaster’s Department may require wagon-transportation by contract on the route specified by this agreement during the year ending March thirty-first, one thousand eight hundred and sixty-eight, provided the weight of such military stores and supplies shall not exceed, in the aggregate, thirty millions of pounds; yet nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service whenever it may be deemed advisable to do so.
    “Article 12. That all stores should be delivered in a reasonable time after being turned over to the contractors, not to exceed ten days per hundred miles for mule-trains and fourteen days per hundred miles for ox-trains, from the time of starting, unless detained by orders en route, which must be produced. And in determining the date of starting, the date of bill of lading shall govern, anil the bill of lading shall bear date on the completion of the loading of the train, and the contractors shall be allowed for loading not to exceed two days for each train of twenty-five wagons, and in that proportion for any greater or less number of wagons, from the time the stores are turned over to the contractors for transportation, as provided for in articles 1 and 4= of this agreement.
    “Any delay beyond such time as specified to be charged to the contractors, at the rate allowed for delay caused by orders, as provided in article 9 of this agreement, unless such delay arises from causes beyond the control of the contractors and so determined by a board of survey.
    “Article 13. That in case of failure, by reason of deficiency in the quality or quantity of the means of transportation furnished, or from any other cause, on the part of the said Wells, Fargo & Go., to be in readiness to meet the demands and requirements made upon them for transportation under this contract or agreement, after due notice shall have been given them or their agents, as provided for in article 4 of this agreement, then the officer or authorized agent of the Quartermaster’s Department charged with the duty of forwarding the stores and supplies shall have power to supply the deficiency either by purchase, hire, or special contract, as the said officer or agent may elect, and the said Wells, Fargo & Co. will be charged with the difference of the cost or expense thus incurred.
    “Article 14. It is understood that if at any time stores or supplies are required tobe transported back to any point on tbe road, or to any of tbe original points of departure, or from one point to another witbin tbe route, tliey shall be carried upon tbe same terms and conditions as herein provided.
    “Article 15. It is understood that tbe Government will, whenever it is deemed advisable, contract for forage to be delivered at any of the posts witbin the territory described in article 1,
    “Article 1C. It is distinctly iinderstood that, should any of tbe supplies while in tbe bands of tbe contractors be transported by rail over any portion of tbe route, tbe Government will pay the rates tbe contractors pay for said transportation and nothing more.
    “Article 17. For and in consideration of tbe faithful per-forinance of tbe stipulations of this agreement, tbe said Wells, Fargo & Co. shall be paid, at the office of tbe Quartermaster’s Department at Omaha City, in tbe State of Nebraska, ip tbe legal currency of tbe United States, according to tbe distance supplies are transported, and agreeably to tbe rates specified in tbe tabular statement hereto annexed, signed by tbe parties to this agreement.
    “Article 18. It is expressly agreed and stipulated between tbe parties to this contract that, upon mutual agreement, it may be changed, altered, modified, or abrogated, in whole or in part.
    “Article 19. It is expressly understood that no member of Congress, officer, agent, oremployé of tbe Government shall be admitted to any share or part of this contract or agreement, or derive any benefit to arise therefrom.
    “ In witness whereof tbe undersigned have hereunto placed their bands and seals at Washington, D. 0., tbe day and date first above written.
    “ALEX. BLISS, A. Q. M. [seal.] “WELLS, FABGO & CO.” [seal,;
    IV. Said Mason & Co., in pursuance of their said agreement with Wells, Fargo & Co., transported tbe military stores and supplies described in tbe bill of lading thereto annexed from North Platte to Julesburg by rail, and thence by a train of twenty-four ox-wagons, and tbe necessary oxen, men, and accompaniments therefor, to Fort Phil. Kearney, where they arrived in tbe latter part of Arigust, 1867. Said train was in tbe control of one Patterson, as wagon-master, in the employment of Mason & Go.
    
    At that time General J. E. Smith was in command of said Fort Phil. Kearney, with six companies, five of infantry and one of cavalry; brigadier General Dandy was acting quartermaster, and Lieutenant Bowman was post adjutant.
    
      Y. Wagon-master Patterson reported Ms arrival to General Dandy, and was. ordered to unload. Most of tbe stores and supplies were unloaded, when tbe agent of Wells, Fargo & Co. applied to Mm to put on additional loading and go to Fort O. F. Smith, a military post distant therefrom ninety miles, and offered an increased rate of freight therefor. Patterson refused to go on any terms whatever. Thereafter General Smith sent for Patterson and told him he must go to Fort 0. F. Smith with the goods. Patterson still refused, because Ms employers, Mason & Co., were under bonds to All a wood and hay contract with the United States at Fort Laramie, and depended on this train to fill said contract, and so informed General Smith, who replied that he “ didn’t care if they did,” threatened to put Patterson in irons, and went so far as to order another wagon-master to falce the train. This wagon-master went to the corral, but, finding the men unruly, Avas afraid to go, and returned. Thereupon General Smith told Patterson that he would put Mm and all his men in irons and take the train to Fort C. F. Smith with soldiers. The men Avere employed by Mason & Co. to go only as far as Fort Phil. Kearney, and some of them had engaged to Avork for other parties as soon as the train was unloaded.
    On the 23d of August, 1867, Patterson received the MIoav-ing order:
    “Headquarters Post,
    
      “Port Philip Kearney, 2>. T., 23rd Aug., 1867. “Mr. Patterson,
    “ In charge of train:
    
    “Sir: The commanding officer directs that you moAm out from the post with escort awaiting you within a half an hour. In the eAmnt of your failing to move, you will be dealt with in such a manner as your tardiness merits.
    “A. IT. BOWMAU,
    “ Lt. & Post Adfnt.”
    
    Patterson, submitting to superior force and under protest, loaded his train of twenty-four teams with supplies, which were in part those he had brought there and in part other and different supplies, and transported the same to Fort Smith, under military escort, refusing to sign the bill of lading.
    The bill of lading was as follows:
    “ F’t Phil. Kearney, D. T., Aug. 23d, 1867.
    “ Kecerved from Bvt. Brig. Gen’l G. B. Dandy, A. Q. M., U. S. A., the following articles of public property, as specified below (contents and value unknown), in apparent good order, to be forwarded to Fort C. F. Smith, M. T., by the train of Wells, Fargo & Co. and connecting lines, there to be delivered, in like good order and condition, unto the act’g ass’t q’rm’r. Freight to be paid by the proper officers of the U. A., at--rates, and on the original bill of lading only.
    “ WELLS, FAKG-0 & CO., “Per A. T. LITCHFIELD, Agt.
    
    
      
    
    “F’t C. F. Smith, 5th Sept., 1867.
    “ Deceived of Wells, Fargo & Co., contractors on routeNo. 1, by train No. 3, contractors’ No. 3, from F’t Phil. Kearney, all the public property specified within, in good order and condition, with the exceptions stated in the proceedings of board of survey, hereunto annexed, and that the distance, as travelled by the usual and customary route, from F’t Phil Kearney to F’t O. F. Smith is unknown at this post.
    “E. B. P. SHUELEY,
    
      11 Lieutenant 21th U. S. Inf., A. -A. Q. JÍ.”
    VI. For the transportation of said supplies from FortPhil. Kear-ney to Fort Smith, as aforesaid, the defendants paid said Wells, Fargo & Co. according to the terms of their contract set forth in the third finding.
    VII. It does not ap>pear that the claimants’ firm knew of any of the occurrences set forth in the two next preceding findings until after they had transpired. They have demanded payment of the defendants for the use of their train, which has been refused, and they have not been paid therefor, neither by the defendants nor by said Wells, Fargo & Co.
    VIII. The value of the services of said train in transporting said supplies from Fort Phil. Kearney to Fort Smith was $6,048.
    il/r. John B. Sanborn for the claimant.
    The train was impressed and used by the defendants as the property of the claimant, and they thereby became liable on an implied contract to pay the claimant the reasonable value of the services.
    The claimant had aright to elect whether he would treat this ■as a distinct service performed by himself- on an implied contract, or as additional service performed by his principals under the original agreement. (.LoWs Case, 8 C. Ols. B., 250, 251, a case very similar to this, and in which this point is expressly ruled.)
    
      Mr. Joseph K. MeOammon (with whom was i/te Assistant Attorney-General) for the defendants.
    In the Loll) Case (8 O. Cls. B., 250) the sub-contractor, so-called, carried the military supplies to a point beyond the scope of the contract, and it differs, therefore, from this case, as the transportation was done between two points within the scope of the contract. As the facts in this case are more favorable to the defendants than those in the Lobb Case, so the points of law there decided apply with greater force to the facts developed in the present case.
   Biciiakdson, J.,

delivered the opinion of the court:

The findings of the court present a case of hardship to the claimant and of corresponding benefit to the defendants. An officer of the Army in command of a military post in unsettled territory, finding it necessary to send supplies to a fort ninety miles further within such territory, surrounded by Indians, in. an emergency impressed into the service of the United States twenty-four ox-teams, with all their accompaniments, belonging to the claimants’ firm, and used them for the transportation of the necessary supplies without the consent and against the protest of the claimant or of his wagon-master in charge of the train. The principles of law as well as the dictates of natural justice raise an implied promise in such case to compensate the owner for the use of his property which the defendants have thus had the benefit of. It would be so in like transactions between individuals if the injured party chose to waive the tort and bring his action upon an implied assumpsit; and it is no less so when the United States are parties, since the Constitution has guaranteed to all that private property shall not betaken for public use without just compensation. (Arndts, to Const., Art. Y.)

Tlie claimant is therefore entitled to judgment unless barred therefrom by other circumstances relied upon by the Assistant Attorney-General as a defense, which we shall consider.

The facts more fully yet concisely stated are these:

In the year 1867, Wells, Fargo & Co. entered into a written contract with the United States to transport all such military stores and supplies, to the extent of thirty millions of pounds, as should be turned over to them for transportation within a largo territory therein described, and embracing parts of the State of Nebraska and the Territories of Dakota, Montana, Idaho, Utah, and Colorado. A requisition having been made upon, them to furnish transportation for 130,213 pounds of supplies from North Platte, Nebr., to Fort Phil. Kearney, Dak., they entered into a written contract June 29, 1867, with Mason & Co., the claimants’ firm, to perform that particular service “in accordance with all the conditions and upon all the liabilities contained and assumed by Wells, Fargo & Co.,” in their said .contract. Mason & Co.’s teams were accepted by the quartermaster, and the supplies were duly transported by them to Fort Phil. Kearney in accordance with Wells, Fargo & Co.’s contract, where they were nearly all unloaded and delivered, when the commander of that fort found it necessary to send supplies forthwith to Fort Smith, a military post in Montana Territory, distant ninety miles.

The agent of Wells, Fargo & Co. applied to the claimants’ wagon-master, who was in charge of their train, to take on those supplies and proceed with them to Fort Smith,' offering him increased compensation therefor. This the wagon-master refused to do, because his employers were under a contract with the United States to supply wood and hay at Fort Laramie, and depended on this train for use in fulfilling that contract ; besides, the men were not hired to go farther, and some of them had entered into other engagements. The commander of tlie fort, after having been informed of these facts and having made ineffectual attempts to induce the claimants’ wagon-master to load his teams and proceed, ordered a military wagon-master to take possession of the train and perform the service therewith. The men proving unruly, this last order was abandoned, and the following peremptory order was issued to the claimants’ wagon-master:

“ Headquarters Post,
11 Fort Philip Kearney, JD. T. 23d Aug., 1867.
“ Mr. Patterson,
uIn charge of train :
“ Sir : The commanding officer directs that you move out of the post with escort awaiting you rvithin a half an hour. In the event of your failing to move, you Will be dealt with in such manner as your tardiness merits.
“A. II. BOWMAN,
uJLt. (& Post AdfntP

Patterson, submitting to superior force and under protest, loaded his train with supplies which were in part those he had brought there and in part other and different supplies, and transported the same to Fort Smith, under military escort, refusing to sign any bill of lading.

Wells, Fargo & Co.’s agent signed the bill of lading, and they have been paid as though the service had been performed by them.

All this took place without the knowledge of Mason & Co., who thereafter, when the facts became known to them, demanded payment from the defendants for the use of their teams, but they have never been paid, either by the defendants or by Wells, Fargo & Co.

Two grounds of defense are set up on these facts:

First. That the contract of Mason & Co. with Wells, Fargo* & Co. was a transfer, so far, of the latter’s contract with the United Statess, or of an interest therein, contrary to the terms of the statute (now Eev. Stat., § 3737).

A conclusive answer to this proposition as a defense is, that the claimant does not bring his action upon either of those contracts, does not make any claim against the United States thereon, and, by the very terms of the contract itself, he was to look entirely to Wells, Fargo & Go. for payment of whatever service was performed thereunder. The present action is upon an implied contract by the defendants for services performed outside of the claimants’ contract with Wells, Forgo & Co., and upon a route not included therein.

Second. That the claimants, by their said contract with Wells, Fargo & Co., having bound themselves to transport the stores and supplies “in accordance with the conditions and upon the liabilities contained and assumed ” by the latter in their contract witli tbe Government, took upon themselves the obligations of Wells, Fargo & Co. to transport these stores to any point within the territory described in their contract, under the provisions of article 14, which sets forth that “ it is understood that if at any time stores or supplies are required to be transported back to any point on the road, or to any of the original points of departure, or from one point to another within the route, they shall be carried on the same terms and conditions as herein provided,’ or that they assumed the still greater liability of putting under the control of Wells, Fargo & Co., and through them under the control of the defendants’ officers, the twenty-four os-teams of the claimants, for any use contemplated by Wells, Fargo & Co.’s contract.

This ground is wholly untenable, because the claimants’ agreement was limited by its very terms to the transportation of supplies from North Platte to Fort Philip Kearney and to the delivery of the same at the latter place, and it is manifest that the conditions and liabilities contained in the Wells, Fargo & Co. contract therein referred to were those only which were applicable to the transportation thus expressly agreed to be performed, such as that the means of transportation should be submitted to an officer or agent of the Quartermaster’s Department, and only such used as should be accepted by him, as provided in article 6; that all stores should be delivered in reasonable time after being turned over to the contractors, not to exceed ten days per hundred miles for mule-trains, and fourteen days per hundred miles for ox-trains, as provided in article 12; that in case of loss or damage to the stores, the contractors should be liable in the cases specified in article 7 and other provisions of like application to each particular case of transportation.

But conceding that the claimants did assume all the liabilities of Wells, Fargo & Co., still the defendants were at fault and could not claim and demand the service of these teams even had they belonged to the original contractors, since by article 4 of the contract Wells, Fargo & Co. were entitled to fifteen days’ notice whenever they were required to transport any quantity of stores less than three hundred thousand pounds, and in the present case the notice was to start in half an hour. Had the notice required by the contract been given, other arrangements might perhaps have been made, and the claimants’ teams might not have been thus pressed into service.

So from every point of view we find that the defendants had no claim upon Mason & Co. to transport the supplies from Fort Kearney to Fort Smith $ and, having required them to perform that service, they are legally bound to pay therefor.

The commander of Fort Kearney no doubt did what he considered best for the Government in the pressing necessities of the case, and no blame is imputed to him. Military officers in command of distant posts in unsettled territory must often be compelled to take responsibilities and create liabilities which under other circumstances would not be justified, and if they exceed the just limit which their superiors approve they may be tried by court-martial therefor, but innocent parties who are obliged to submit to the force of military authority must not suffer.

The judgment of the court is that the claimants recover the sum of $6,048.  