
    SMITH’S CASE. Andrew D. Smith et al. v. The United States.
    
      On the Proofs.
    
    
      In 1864 three barges are impressed for military purposes by officers of the Quartermaster Department at Cincinnati. After the impressment the quartermaster receipts to the owners for the barges, and it is stipulated by the quartermaster and acceded to by the owners that there shall be paid $6 per day for each barge until “ returned or accounted for.” The barges are in the employment of the Government till February, 1865, and are carried on the books of successive quartermasters xvniil June, 1867, when the owners are notified of their previous loss. But previous inquiries were made by them in May, 1866, and they then learned that the existence of the barges teas not known. They bring their action for compensation up till the time of receiving notice and for the value of the barges. The defendants insist that the liability for hire extends only to the time of actual loss.
    
    Under a common contract of hire of personal property, the bailee is bound to pay the stipulated hire for the term agreed upon and return the property in as good order and condition as it was reoeived, reasonable wear excepted. The bailee thus takes the risk of loss, and must indemnify the owner for it, and pay the owner the hire up to the time of loss; and it is the legal duty of the hirer to notify the owners of the loss. Therefore, where the Government agrees that the stipulated hire of a barge shall be $6 a clay until the barge be “ returned or accounted for,” it is charged witli the duty of notifying the owners of the loss of the barges, and is subjected to the payment of the hire till notice be given or the fact of loss be in some way made known to the owners.
    
      The Reporters’ statement of the case :
    The court found the following facts:
    In September, in the year 1864, the petitioners were the owners of three barges, named Lake Erie No. 13, Lake Erie No. 34, and Lake Erie No. 38.
    That these barges were impressed into the service of the United States by officers of the Quartermaster Department at Cincinnati, for transportation required by the Army — No. 13 on the 26th and No. 34 on the 30th December, 1864; No. 38 on the 2d of September, 1864.
    That the receipt or certificate, a copy of which is hereto annexed, was given to the petitioners for No. 38 at the time of her impressment by the officer subscribing it, and a like receipt or certificate was given for each of the other barges at its im-pressment.
    The terms for the hire of the barges stipulated by the assistant quartermaster, and acceded to by the petitioners, were $6 per day for each barge until it was u returned or accounted for P The rate of compensation was the usual rate at the time for such vessels, and was a fair compensation.
    The three barges were employed in the service of the Government in transporting supplies for the Army on the Mississippi and its tributaries, from the time of their impressment to the time of their loss in said service.
    At what time or times the said barges were lost was not shown; but it was shown that No. 38 was in the actual employment of the Government till February 28,1865, and was carried on the books of successive quartermasters till March 24, 1865. That Nos. 13 and 34 were in the actual employment of the Government until April 30, 1865, and were carried on the books of the quartermasters till July 31,1865.
    In March, 1866, search for the barges 13 and 34 was made by the officers of the Quartermaster Department, which resulted in the supposition that No. 34 was destroyed in a storm in March, 1865, and that nothing reliable could be ascertained of No. 13, and a report of this was sent to Washington with other papers.
    
      Neither of the three barges has been returned to the petitioners, and in May, 1866, in answer to their inquiries, they were informed by officers of the Quartermaster Department, as to Nos. 13 and 34, that the Government would do all they could to return the barges, or furnish-such information as they might become possessed of.
    The Government have paid to the petitioners on account of the hire of said barges the sum of $2,928.80.
    
      Mr. T. D. Lincoln and Mr. O. S. Lovell for the claimants:
    The petition in this case is to recover a sum of money due for the taking of the three barges, Lake Erie Nos. 13, 34, and 38, by the United States, in the latter part of 1864, for service in the Quartermaster Department. Such barges were used much during the late war for the transportation of hay, grain, wood, coal, bridge-timber, &c. As they are built for use, and were at the time in great demand by their owners, and as the demand for them could not be foreseen beforehand, but depended from day to day upon the emergencies of the transportation department, this species of craft (and the same is true largely as to steamers) were ordered into the service of the Government. This was nearly equal to a seizure, as no one had the power or thought it prudent to resist.
    When the Government take property into their possession, as this was, they ought to be required to show that they have returned it. In this case Mr. Smith’s mouth is closed. But it appears that the Government officers have inquired for these barges, and that they cannot find them, and have reported them lost; and there is no pretense that they have been returned to A. D. Smith & Brothers. Indeed, the whole evidence and the action of the Government upon the matter is quite conclusive to the point that the barges never were returned. Search was made for them by the officers having charge of that service, a$d they' were finally declared lost; and this was the report made to the claimants after several promises to return them.
    That the barges were forced into the service upon an agreement, entered into before they left, of $6 per day, until they should be returned or accounted for, is clearly shown. The law would, therefore, if the case- was one between two individuals, give the claimants the said agreed charter up to the time the barges were reported lost, and then, in addition thereto, their value when lost. This would be the rule as between individuals. And the same rule holds between the Government on the one side and an individual upon the other. The Government- is treated like any other contractor. (Gurtisv. The United States, 2 0. Ols. B., p. 152; Jones v. The United States, 1 0. 01s. R., p. 384; Tierce v. The United States, 7 C. Cls. R., p. 71.)
    
      Mr. Assistant Attorney-General Goforth for the defendants:.
    In the absence of jiroof as to the time when these barges were lost, and as no account can be.found of one of them as being afloat or in the service after March 24,1865, nor of the other two after Jnly 31,1865, those dates must be taken, respectively, as the time of loss. The time of loss cannot be arbitrarily fixed at a date long afterward, and pay allowed to that date. On that principle claimants might have their barges recognized as in service, and paid for at the charter-rate for an indefinite period. No pay was allowed for them after the respective dates above-mentioned, because they could not be found, although diligent inquiry and search were made for them by the Government officers, and, to all intents and purposes, they were lost from and after those dates, respectively. They do not appear in the return of any quartermaster as being in the Government service subsequently to those dates.
   LokiNG-, J.,

delivered the opinion of the court:

Under a common contract of hire of personal property, the bailee is bound to pay the stipulated hire for the term agreed upon, and return the property at the expiration of the term in as good order and condition as it was received, reasonable wear and tear in the particular service contracted for excepted. The bailee thus takes the risk of loss, and in such event musbindem-nuy the owner for it, and to do this he must pay the owner the hire up to the time of the loss, and the value of the property in the condition it should have been in then. In such a contract it would be the legal duty of the hirer to notify the owner of the loss of the property, because that fact would be specially in the hirer’s knowledge, and would not be likely to be in the owner’s knowledge, and. would be material to his rights under the contract.

In this case, the terms between the parties were that the .stipulated hire of $6 per day for each barge should be paid till it was “ returned or accounted for? These terms, we think, expressly charged the United States with the duty of notifying the owners of the loss of the barges, and subjected them to the payment of the hire till notice of such loss was given by them or the fact of the loss was in some way known to the owners.

And the circumstances of the case, make the terms -stated especially equitable; for the owners had no power of providing by contract for their own security. In impressing the barges, the United States exercised their right, and the owners could not stipulate the nature of the service, nor how long it should continue, nor where the barges should be employed. They were taken from their protection and supervision into the exclusive control of the United States, and the owners had no other means of knowing where the barges were, or what they were doing, or what had become of them, than such information as the United States should give them. The owners, therefore, had no other means.of knowing or acting upon their legal rights, i. e., of knowing when the hire ceased, and the right to their value accrued, and w7hen the necessity of acting on their rights, and making their claims according to them, began.

The evidence does not show precisely when the barges were lost, nor when the loss was ascertained by the United States, nor when they informed the petitioners of the loss. And the petitioners claim in their petition that they were not notified of the loss until June 1, 1867. Bat the evidence shows that the fate of the barges 13 and 34 was a subject of inquiry by the petitioners as early as May, 1866, and that in answer to such inquiries they were informed that the Government would do what they could to return the barges or give such information as they could procure to the petitioners. The petitioners learned then, therefore, that, so far as was known to the officers of the Quartermaster’s Department specially charged with tbe employment and possession of the said barges, their employment or existence was not known; and we think that this was a fair ground for the presumption that their hire had then ceased, and we allow for their hire, therefore, till May 1,1866, and this date was fixed by the counsel for the petitioners in his argument.

It is observable that by the evidence the inquiries of the petitioners and tlie answers of tbe quartermaster above referred to were confined to barges No. 13 and 34, and nothing is shown of the loss or of any inquiry as to barge No. 38. But the claimants in their petition, and their learned counsel in his argument, place the three barges on the same ground, and we have done so.

As to the value of the barges: In their petition the claimants fix the value of each barge at the time it was lost at $700, and in carrying out their claim in figures they so specify the item of value ; and although the evidence would authorize a higher valuation, we cannot exceed that claimed in the petition.  