
    MARTIN’S CASE. Milton Martin, appellant, v. The United States, appellees.
    (5 Court of Claims R., p. 215; 18 Wallace, p.—.)
    
      On the elcmnantfs Appeal.
    
    
      The steamer Sylvan Shore is chartered by the Quartermaster Department on the 18th December, 1862, for ten days, or as much longer as she may be required by the Government, at $200 a day. The Qtiartermaster-General subsequently orders that the rate be reduced to $100 a day, to take effect May 1,1863, of which order the claimant does not have notice until a month and more after it has taken effect. Me protests verbally to the quartermasters clerk, who pays him, against the reduction, and demands the discharge of his vessel, but to no officer who has authority to act in the premises. Subsequently the vessel’s accounts are made out at the reduced rate, the money is received and receipted for in full by the oioner until the 12th December, 1863, when she is discharged. Me brings his aetion upon the charter-party to recover the balance remaining unpaid of the agreed rate. The court below decides that the owner, having omitted to make protest to any officer having competent authority to act, and having executed receipts in full for a series of settlements without complaint, thereby ratified the alteration of the original contract. Judgment for the defendants. The claimant appeals.
    
    
      Semble, a vessel being in the service of the Quartermaster Department, under a written charter, and at an agreed rate,.and the Quartermaster-General having ordered a reduction of the rate or the discharge of the vessel, (the Government having the right to discharge her,) it is not sufficient for the owner to protest to and demand the discharge of his vessel from a quartermaster’s clerk, who pays him. If he rests on such protest and demand and subsequently receives and receipts in full for the reduced rate, he will be concluded from seeking the charter-rate under the decision of the Supreme Court in Clydds Case, (7 C. Cls. R., fj. 262.)
    
      The Reporters statement of the case:
    Uo opinion having been given by the Supreme Court when affirming the judgment of the court below, the findings of fact and the argument for the appellant are set forth in full.
    In this case the court find the following facts, and certify them to the Supreme Court:
    1. On the 18th of December, T862, tbe claimant, owner of the steamer Sylvan Shore, entered into a charter-party of affreightment with Capt. C. B. Ferguson, assistant quartermaster, United States Army, whereby the said steamer Sylvan Shore was chartered and to freight lét to the United States for a period of ten days, and as much longer as the said vessel may be required by the United States War Department, at the price of $200 per day for each and every day said vessel may be employed until she is returned to her owner at New York.
    2. The vessel entered the service of the United States on the day of the date of the charter-party, and continued in it until the 12th day of December, 1863.
    3. The compensation charged for the boat’s service, $200 per day, appears to have been a fair and reasonable compensation as compared with other boats in the service of the Government at that time.
    4. During this period she was paid the charter-rates up to the 1st day of May, 1863, and after that date at the rate of $100 per day for the remainder of the time. Under the original charter-ratetheclaimant has received $26,912, and at the reduced rate $17,350; making together $44,262.
    5. The reduction of the wages of the Sylvan Shore was made by Captain Ferguson in pursuance to instructions from the Quartermaster-General’s Office, dated, respectively, March 10,1863, and May 21, 1863, which are hereto appended, and marked Exhibits B & G. These instructions are found based on the belief that in the .first military operations in the late war, along the coasts, and in fitting out great military operations, it was necessary to pay, for short periods, prices much higher than would have been justifiable had it been foreseen that such vessels would be required to remain more than thirty or sixty days under charter.
    “Many of these vessels,” the Quartermaster-General states, “have been retained until their earnings and profits have been excessive. Quartermasters are therefore instructed” (among whom so instructed was Captain Ferguson, with whom the charter-party in question was made) “to take stringent measures to reduce these expenses, by discharging all steamers whose rates appear to be excessive.”
    6. Acting under these instructions, Captain Ferguson assumed to reduce the chartered rate of the Sylvan Shore from $200 to $100 per day, without the assent or concurrence of the owner. Of fcbe instructions of the Quartermaster-General’s Office, marked Exhibits B & 0, as well, also, as of the action of Captain Ferguson, in reducing the wages of the boat, it does not appear that the owner had notice, until about one month and a half after the order of reduction was made. This notice was first communicated to the captain of the boat, who had come down to Alexandria to get her wages, then due, by Mr. H. A. Snow, who was in charge of transportation on the Potomac, under Captain Ferguson, but who had neither power of himself to release nor charter a boat. Mr. Snow informed the party applying for the wages, who is shown to have been either Captain Martin or Oapt. George H. Powers, and which the witness is unable to state, that her wages had been reduced to $100 per day from the 1st of May, 1863. The applicant for her wages then protested against the reduction, and demanded the boat should be discharged. Snow informed him that he could not have the boat — that she could not be spared. It is also shown that the owner of the, boat had hard words with Captain Ferguson, and that they parted with a good deal of feeling, the latter saying he would see his member of Congress as to whether he could not get justice. The protest was verbal, and no further effort appears to have been made to obtain the discharge of the vessel until she was discharged on the 12th of December, 1863.
    7. Subsequently the accounts for the services of the boat were made out at the reduced rates, and the money paid over to the claimant, who received and receipted the accounts as follows :
    “ The United States to Milton Martin, owner of steamer Sylvan Shore, Dr. :
    “ May 31,1863. — For services of the steamer Sylvan Shore, employed transporting troops and supplies from May 1 to May 31,1863, inclusive, thirty-one days, at $100 per day.$3,100 00
    “ 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.
    “O. B. FERGUSON,
    “ Captain, A. Q. M., U. S. A?
    
    
      “Received at Alexandria, ya., 24th of July, 18G3, of Capt. C. B. 'Ferguson, A. Q. M., U. S. A., the sum of three thousand one hundred dollars, in full of the above account.
    “MILTON MARTIN,
    
      “Oicner Steamer Sylvan Shore.,,
    
    And again, for the months of June, July, August, September, October, November, and up to and including the 12th of December, 1863, separate and similar accounts were made out for the services of the Sylvan Shore at .$100 per day, and in like manner receipted in full by the claimant, as owner of the boat, which was the day on which the vessel was finally discharged.
    8. At the request of the claimant’s counsel, the court find, in the language of the witness Snow’s deposition:
    “ The owners subsequently received the reduced rates. They did not give me or Captain Ferguson to understand that they acquiesced in this reduction, but, on the contrary, they reiterated their demand. They blamed us for the order as we executed the law, and thought we were doing them great injustice by keeping their boat. The matter remained in that way until the boat was finally discharged, some six or seven months after the reduction — some time the next winter. There was no change in their attitude with regard to this matter that I saw until the boat Was finally discharged. I saw very little of them after the reduction; they would come in, get their papers, and leave immediately.”
    9. The court further find that the owner of the Sylvan Shore did hot apply to the Quartermaster-General’s Office, or to any of the Executive Departments, for redress of his grievances, although he was apprised of the Quartermaster-General’s orders of the 10th of. March and the 21st of May, 1863, as shown in fact No. 5, under ’which Captain Ferguson was acting; nor do we find in this record that he ever applied to any of-the Executive Departments for the settlement of his claim, or the balance now claimed to be due him, until the 30th of December, 1868, when this suit was brought.
    10. We further find the claimant bore true allegiance to the United States, and gave no aid or comfort to the rebellion.
    On these facts the court held, as conclusions of law, that no alteration or change in a contract can be made by one party without the consent or concurrence of the other, either express or implied.
    
      ' But wlien such alteration is made by one party, and the other party afterward comes to full knowledge of the extent and nature of the alteration, he has the full right to ratify or reject the alteration; but in such a case he is bound to act promptly, efficiently, and in good faith ; and if he fails to do so, aud goes on and executes the contract as altered, and acts equivocally, when the courts are open to redress his injury, his assent to aud ratification of the alteration may be implied from the facts and circumstances of the case.
    And on this view of the case the court held the claimant ratified the alteration in the contract, and therefore dismissed the petition.
    
      Mr. N. P. Chip man, Mr. Thomas J. Durant, and Mr. G. F. Peck for the claimant, appellant:
    It has been held that where, in the case of a charter of a steamer to the United States at a certain rate, the Quartermaster-General notified the owner of a reduction, and notwithstanding the order of reduction the owner permited his boat to remain in the service, knowing the change of terms which the Quartermastei had made, that his (the owmer) subsequently receiving the reduced rate amounts to an acquiescence, and precludes the owner from subsequently demanding the charter-rate from the United States. (See the opinion in Clyde's Case, 7 0. Cls. B., p. 262.) Applying the principle embodied in the opinion in the Clyde Case, it is important to understand the value of the expression employed by the court in saying the owner “ permitted- his boat to remain in the service,” since his action in that regard was an essential element in the determination of his rights. By the written contract for the hire of his boat, Clyde had agreed she should remain iu the service for “ ten days from the date of the charter, and as much longer as she might be required by the United States War Department.” Clyde could not have taken his boat out of the service without the consent of the Quartermaster. The necessities of the military service would not have permitted that. The finding of the fact given to this court, on this feature of the case, by the Court of Claims, was that Clyde “failed to show whether, on being notified of the order, he determined to allow his boat to remain in the service at the reduced rate or sought to take her out of it, and terminate ber employment by the Government.” The expression of this court, then, that Clyde “ permitted his boat to remain in the service,” must be read by the light of the finding of fact, and thus is found to mean that Clyde did not seek to take his boat out of the service, and terminate her employment by the Government, and hence was deemed to have acquiesced in the order of reduction. In the case at bar, the facts and circumstances differ totally from the Clyde case. Here, Captain Ferguson, assistant quartermaster, who had chartered the Sylvan Shore, was ordered by the Quartermaster-General to discharge all steamers whose rates appear excessive. The rate of the Sylvan Shore appeared excessive to Captain Ferguson, for he reduced it one-half) but he did not discharge her. The petitioner, on being informed of the reduction, when he came to get his pay, as usual, at Alexandria, Va., “protested against the reduction,anddemanded that the boatshould be discharged,” “and had hard words with Captain Ferguson, and they parted with a good deal of feeling.” Surely it was the duty of Captain Ferguson at that time, under the instructions of his chief, to give up the boat to the owner. The United States having thus been put in mora, by the demand and refusal just shown, cannot be heard now to say that the owner acquiesced in the reduction of his rate of pay. The payments subsequently made to him, and his receipts, do not change the legal aspect of the relations of the parties. The Government was all the while in mora, was constantly keeping petitioner’s steamer against his will. “There was no change of his attitude with regard to the matter,” and his receipt under the circumstances does not conclude him. (See Perkins v. Hart, 11 Wheat., p. 356.)
    
      Mr. Assistant Attorney-General Sill for the defendants, ap-pellees.
   The judgment of the Court of Claims was affirmed by the Supreme Court, no opinion being delivered.  